Palestinians’ Historic and Legal Rights to Palestinian Nationality

Jerusalem Story sat down with Professor Susan Akram in March 2021 to discuss the historical and contemporary realities of Palestinian nationality and citizenship. Akram is Clinical Professor of Law and Director of the International Human Rights Clinic at Boston University, and she also helped establish the research unit at BADIL, the Resource Center for Palestinian Residency and Refugee Rights in Bethlehem. She has over a dozen publications on Palestine, the Palestinians, and the Palestine-Israel conflict. She has also lectured on Palestinian refugees to general audiences around the world as well as to United Nations organs and agencies (including meetings and sessions of the UN High Commission for Refugees and the United Nations Relief and Works Agency for Palestine Refugees), the European Union, and representatives of European and Canadian government ministries and parliaments.

In this interview, Akram describes how Palestinians’ rights to Palestinian nationality and citizenship have been continually challenged, if not altogether denied, since the ouster of the Ottomans from Palestine by British forces in 1917. She examines British and Israeli nationality and citizenship legislation with respect to international law, showing how the law was blatantly violated; offers an explanation of what is at stake today for millions of stateless Palestinian nationals both within historic Palestine and throughout their expansive diaspora; and suggests what Palestinian leadership must do to safeguard the international legal status of Palestinians.

Jerusalem Story: Beginning with the Ottoman period, when and how did Palestinians legally become citizens of the Ottoman Empire?

The first and only nationality law passed during the Ottoman period was the Ottoman nationality law of January 1869. This governed nationality in the Ottoman Empire for Palestinians—and for all other subjects in the empire, for that matter. For Palestinians specifically, this was the law on nationality until the British occupation of Palestine that began in December 1917.

Before the 1869 Ottoman nationality law, the nationality of Ottoman subjects was governed by Islamic law. Individual status was determined on the basis of religion. So the Ottoman nationality law actually did away with religious-based nationality status. It was essentially a secular law, and all residents of the empire were classified as either citizens or foreigners regardless of their religious affiliation.

The law was crafted in this way particularly to terminate the religious-based capitulations system by which Ottoman subjects had obtained foreign citizenship through agreements with about a dozen countries. These agreements exempted them from taxes and other obligations to the Ottoman Empire.

The 1869 law defined Ottoman citizens as persons born at a time when their fathers held Ottoman citizenship. This is what is called the jus sanguinis principle of nationality, that is, the conferral of citizenship based on bloodline or lineage. The law also conferred nationality on every child born on Ottoman territory to unknown or stateless parents, unless that person proved his or her foreign status; there was a presumption of Ottoman citizenship. This is the jus soli principle, which is conferral of citizenship through birth on the territory. Finally, the 1869 law permitted naturalization. It was available to anyone residing in the Ottoman areas for five years or more; this is the jus domicilii principle, which is nationality based on a period of residence.

In a way, the Ottoman nationality law was incredibly progressive because it incorporated all three provisions of nationality. Many states have only one, most states have two, and few have the kind of progressive residency, or jus domicilii provision, that the nationality law had at the time.

Dual or multiple nationality was prohibited under the law, and that was of course in order to end the capitulations system. Anyone who had become a foreign citizen through the capitulations agreements had to renounce it in order to obtain or retain Ottoman citizenship.

The rules on nationality through marriage were more ambiguous. But Ottoman citizens for the most part retained their citizenship even upon marriage to foreigners, though foreigners remained for the most part noncitizens, unless they were eligible or opted for naturalization.

All these provisions applied to Palestinians and to Jerusalemites upon passage of the 1869 law, making the vast majority of Palestinians Ottoman citizens.

In July of 1869, the Ottoman passport law was enacted, and a specialized passport agency was set up for the first time. Both Ottoman passports and identity cards, or identity certificates, were issued at the agency and were recognized as proof of Ottoman citizenship from that point onwards.

In August of 1914, the Ottoman population law was passed, after which every Ottoman citizen was required to register first for an identity card, and then, if they wished, for passports. They also had to register their civil status and keep it updated. But in the three years between when the law was passed and when the British occupation began, it is unclear how many Palestinians were actually registered and how many obtained identity cards; that data is apparently unavailable. It is important because it is that registration, and the identity certificates and passports, that confirmed that a Palestinian had Ottoman Palestinian citizenship on which all later conferral of nationality was based.

What we can say about this period is that Ottoman nationality was firmly established in Palestine. Palestinian Ottoman citizenship was recognized all over the world, and during the Ottoman period no other state claimed sovereign rights over Palestine or the residents within the Palestinian area. The Ottoman citizenship law continued to regulate Palestinian Ottoman citizenship until 1925.

JS: What changed in nationality and citizenship governance during the British Mandate?

When Britain occupied Palestine in December 1917, it did not change the nationality status of Palestinians as Ottoman citizens, at least not right away. Palestinians continued to be recognized as Ottoman citizens in what was then “occupied Turkey,” and they used and traveled on their Ottoman-issued passports.

Britain first governed Palestine through military rule for three years, and then through civil administration for the remainder of the British Mandate period. The British Government of Palestine began regulating British-issued Palestinian passports and travel documents—but still under the Ottoman nationality law. Nationality certificates, passports, and travel documents were all issued to Palestinians who were Ottoman residents or Ottoman citizens in Palestine.

Then, in 1920, the British Government of Palestine issued the first Palestine passport regulations, distinguishing between foreigners in Palestine and Palestinian citizens who were then called “Palestinian citizens and British-protected persons.” Through Britain and other states’ practices during this period, there was recognition of Palestinian nationality as continuing unbroken after the end of Ottoman rule.

The League of Nations approved the British Mandate in July of 1922, and the mandate included a provision that contemplated a Palestine nationality law. But the British included in the mandate terms that the new law should facilitate the acquisition of Palestinian citizenship by Jews who would take up permanent residence in Palestine. This was, of course, consistent with the Balfour Declaration of 1917 through which Britain claimed its intentions to establish a national home for the Jewish people in Palestine.

Though Palestinian citizenship was initially created under the Ottoman nationality law, the League of Nations had already contemplated Palestine becoming an independent sovereign state in April of 1923. The League terms under the Minority Treaties that governed the status of mandate territories were that the status of native inhabitants of mandated territories was separate and distinct from nationals of the mandate power, and that inhabitants of mandate territories would become citizens under their own laws. As a matter of international law, then, Palestinian citizenship in a sovereign—though occupied—territory was created on August 6, 1924, which is the date that the Treaty of Lausanne came into force for Britain, and hence for Palestine.

The Treaty of Lausanne was signed on July 24, 1923, and ended World War I between the Allied governments and Turkey. Both the status of Palestine and the nationality of its inhabitants was settled by the treaty in terms of international law. And the British government itself recognized and proclaimed that under that treaty, Palestinians were to obtain a separate nationality.

JS: Can you say more about the Treaty of Lausanne and why it is important for understanding Palestinian nationality and citizenship?

The provisions of the Treaty of Lausanne—which led to the Palestine citizenship orders of the mandate—confirmed Palestinian citizenship as an international matter. The main provision in the treaty governing Palestinian nationality is that Turkish subjects habitually resident in the territory will automatically become nationals of the state that succeeds Turkey. The nationality and sovereignty provisions in the Lausanne treaty applied to all the former Ottoman territories that are described in the treaty. These territories that came under international mandate, including Palestine, Iraq, and Syria, were to become independent, sovereign, and establish their own citizenship and nationality laws.

There were two basic ways in which Palestinian nationality could be created under the Lausanne treaty. The first was that the inhabitants had to be Turkish Ottoman citizens, which is why the Ottoman nationality law was so significant; it set the main condition for who would become a citizen during the mandate. The individual had to be a Turkish Ottoman citizen or subject of the Ottoman Empire as of August 6, 1924.

The second provision was that the individual had to have been a habitual resident of the territory—Palestine in this case—as of that date. People who were residing abroad or were born in Palestine could also obtain Palestinian nationality, and Palestinian men could confer nationality to their wives but not vice versa. Nationality through the male line is a legacy of the entire region; it is a rule interpreted from Islamic law.

These treaty provisions, though they had international effect from 1924 on, had to be incorporated into the domestic law of the particular territories, and the criteria had to be further detailed in domestic law in order to be implemented. There was a gap from 1924, when the treaty came into effect, and July 1925, when Britain issued the first provisions for Palestinian citizenship. The first Palestine citizenship order was amended a number of times, and is known as the consolidated Palestinian citizenship orders of 1925 to 1951. This cluster of provisions was the nationality law of Palestine that remained until after the State of Israel was established.

JS: Can you describe these Palestinian citizenship orders and how they impacted Palestinians?

The Palestinian citizenship orders were intended to implement the provisions of the Lausanne treaty, but they departed from the treaty in a number of important ways. The basic provision of the Lausanne treaty was that all Ottoman subjects habitually resident in Palestine on August 1, 1925, were to automatically become Palestine citizens. Around 800,000 Palestinians became citizens of Palestine under this provision.

But under the orders, Ottoman citizens born in Palestine but residing abroad as of that date were not entitled to become Palestine citizens, though they should have been under the Lausanne treaty because they could trace their national status through lineage, which was one of the main provisions of the treaty. These Palestinians residing abroad and who lost their nationality became stateless because they also lost their Ottoman nationality at the same time.

Another way in which the citizenship orders departed dramatically from the Lausanne treaty is that the naturalization provisions in the citizenship orders operated to confer nationality on recently arrived Jewish immigrants, including those entering illegally. There was clear preference in nationality conferral, which is against international law. The orders also provided for naturalization based on a very short two-year residence, but gave the British authorities unfettered discretion to grant naturalization to anyone they wanted. Over 100,000 Jewish immigrants became Palestine citizens through the orders, while at least 40,000 Palestinians lost their Palestinian nationality because they were residing abroad. By the end of the mandate, about one quarter of Palestinians were rendered stateless.

JS: It seems as though Britain contravened international law in its governance in Palestine. Can you elaborate on this?

Britain was bound to over 150 international treaties that related to issues about Palestine or Palestinian nationality. The treaty and customary rules to which Britain was committed at the time it acquired the Palestine mandate were that it had to recognize and confirm the nationality of all the inhabitants found on the successor’s state after change in sovereignty. This meant that any Palestinian resident of the territory, after it was no longer part of Ottoman Turkey, had to obtain successor state—Palestinian—citizenship. That’s what Britain was obliged to do.

In addition, Britain could not withdraw nationality from anyone if by doing so they would become stateless. And it could not deprive nationality from any individual who had a genuine claim to the territory of Palestine, regardless of whether they were still residing there.

A critical point is that Britain’s mandate over Palestine was conditioned by the terms of the League of Nations covenant in Article 22. This particular provision made it clear that the mandate countries were only governing as such to prepare those territories for independence, and that the mandatory—Britain here—did not have sovereignty over Palestine. It was never granted sovereignty.

The five Arab states—Palestine, Transjordan, Iraq, Syria, and Lebanon—were characterized as class A territories, meaning, in the League of Nations covenant, that they were to be the first to achieve independence through the supervision of the League. In other words, Britain had no authority to govern in any manner that undermined the independence and sovereignty of Palestine, and that included in the conferral of nationality.

But it is very important to distinguish between nationality and citizenship, particularly in the Palestinian case. Nationality and citizenship are two different concepts from an international point of view, though they converge. Nationality is an international law concept that relates to the relationship an individual has to a particular territory. And under a series of important international cases and customary international law, nationality is governed by something called a “genuine link” between a person and a territory. The “genuine link” relates to family ties, ethnicity, and long-term residence, and international law considers these ties as always being stronger with relationship to one territory for an individual over any other. International law considers this “genuine link” in determining whether or not an individual has a claim of nationality with regard to a particular territory, or whether a state can act in a particular way to grant or sever nationality, or affect that nationality link in any way.

Citizenship, on the other hand, refers exclusively to a state’s domestic law on nationality; in other words, how nationality is preserved or perfected. Someone can become a citizen regardless of whether the “genuine link” exists between the individual and that territory based on a state’s domestic laws that allow the granting of citizenship under certain conditions. This is usually through residence, or jus domicilii laws, which I mentioned earlier. But nationality is that “genuine link” that a person has to a territory, regardless of where they are living in the world.

However, these two terms are used quite interchangeably, though international law does not govern citizenship, or the decisions that a state might make in terms of granting citizenship or withdrawing it—unless the citizenship decision violates the international law prohibitions on denying or failing to confer nationality.

In this way, Britain’s citizenship orders could deny citizenship to certain Palestinians. The Treaty of Lausanne governed, and still governs, that relationship between an individual Palestinian and Palestine.

JS: How did Palestinian nationality and citizenship change after the establishment of the State of Israel in 1948?

Israel passed two important laws relating to nationality soon after it was established in 1948. The first was the 1950 Law of Return, which provided that every Jew has the right to immigrate to Israel, and it conferred “Israeli nationality”—as it is called—on all immigrating Jews or those Jews residing in Palestine. That was the core provision. Then there was the second law, the 1952 nationality/citizenship law, which confirmed nationality for all Jews under the Law of Return. It also conferred Israeli citizenship by residence, birth, or naturalization.

Palestinians could not, of course, qualify under the 1950 Law of Return, so they had to meet the criteria of one of the other three provisions. To qualify through residence, a Palestinian had to be an inhabitant of Israel and registered as such under the Israeli registration ordinance by March 1 of 1952; they also had to have remained in Israel from the date it was founded until the date the nationality law was passed.

None of the approximately 700,000 Palestinian refugees who were forced to flee during 1948 could meet these requirements. Most Palestinians could also not meet the registration requirement, and another provision restricted citizenship for Palestinians born in Palestine by requiring that only those whose parent was already an Israel national—father or mother—could become an Israeli national.

Finally, the 1952 law did something really critical. It retroactively repealed the Palestinian citizenship that was conferred under the Palestine citizenship orders to the date that Israel was established. That provision says that any reference to Palestinian citizenship or Palestinian citizens refers to Israeli nationality or Israel nationals. From an international point of view, any Palestinian who could not meet the requirements to become an Israel national thus became stateless.

This is how the vast majority of Palestinians and Jerusalemites became stateless—through the operation of the 1952 law.

But it is important to realize that there are two sets of legal realities in operation here. One is the effect of Israeli domestic law, which has rendered all those Palestinians who cannot meet the requirements of the 1952 nationality law stateless. The second is international law, according to which Israel’s acts violate fundamental international law norms. Among these are that the habitual residents of a territory of a state that succeeds another must be granted citizenship in the new state. Another is that a state cannot arbitrarily denationalize habitual residents on prohibited grounds like race, religion, ethnicity, or national origin.

Yet another important violation is that Israel’s denationalization of Palestinians is the denial of the right of return of nationals of a territory—people with a “genuine link” to the territory—effectively denying them the right of return to their homes. Everyone, including refugees, has the right to return to their country. So, from an international law point of view, the Palestinians are stateless because the only country whose law governs their nationality status has deprived them of that status. It is also the international law perspective that the Israeli law itself is illegal.

JS: What can be done to safeguard the internationally protected rights of Palestinians to Palestinian nationality in order to end their stateless status?

Rather than stateless, I would say that the more accurate term would be that Palestinians are stateless nationals. That is, they are stateless by operation of Israeli law, but they are nationals of Palestine as a matter of international law. It is, of course, up to Palestinians to advocate on the basis of this duality to ensure that all those who are entitled to Palestinian nationality under the Lausanne treaty—which is really what governs their status until today—can perfect it through whatever solutions become possible as part of the statehood project.

There are so many ways in which Palestinians can act on this. Now that Palestine has been recognized as a state by the vast majority of countries in the world, it is up to the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) to have other states recognize Palestinian passports and nationality—not just on the basis of those Palestinians who are in the West Bank and Gaza, but Palestinians around the world who should be legally entitled to Palestinian nationality and passports.

The PLO could, on the other hand, demand sanctions against people who are wrongly granted Palestinian nationality; this would be aggressive, but it would be an act that would be consistent with international law. It could also call for sanctions on a state that has engaged in massive denaturalization, a mass act that is an international wrong.

Cases of denaturalization or denial of nationality can be taken to the International Court of Justice, and they can be litigated on an individual level. That is, Palestinians can demand to be recognized by the states in which they reside as Palestine nationals with everything that that confers. There are many, many ways in which this reality can be acted upon to insist on Israel’s conformance with international law vis-à-vis Palestinian nationality.

Arguably, only the PLO has the authority to enact laws that address the entire Palestinian population—Palestinians as defined under the Lausanne treaty. The PA does not. But if the PA drafts a Palestinian citizenship law—and there have been several attempts at that—we must ask what that law does in terms of the unique legal and historical narrative of Palestinian nationality. What effect does it have on the claim to Palestinian nationality for those who are not within the West Bank and Gaza and who do not have a second citizenship, or who want to retain their Palestinian nationality?

A Palestinian citizenship law would determine whether Palestinians in the diaspora continue to have the nationality claim from outside. The nationality question is an existential question; it is the heart of the issue, yet you hear almost nothing about it in the public discourse.