Pursuant to section 11(b) of the Israeli Nationality Law, the Minister of Interior may revoke the citizenship of a person who “has committed an act that constitutes a breach of loyalty towards the State of Israel.” This power has been exercised only twice in Israel’s history – at the end of 2002, Interior Minister Eli Yishai revoked the citizenship of two Israeli Arabs suspected of involvement in terrorism. Nevertheless, a bill aimed at increasing the use of the power to revoke citizenship on grounds of disloyalty has already been proposed in the Knesset. This study will deal with several fundamental justifications for revoking citizenship on grounds of disloyalty, as well as with the benefits and risks entailed by this power.
First of all, one should clarify just what citizenship is and how the duty of allegiance derived therefrom is manifested. These are not simple questions. Throughout history the concept of citizenship has taken on two distinct meanings. On the one hand, citizenship represents a certain political ideal – a moral obligation that the individual be actively and significantly involved in the life of the political community. This ideal reflects the approach of Aristotle, who viewed the individual as a “political animal.” On the other hand, citizenship is a legal status that engenders the rights and duties of the individual vis-à-vis the state. There is some tension between these two meanings, since the legal meaning of citizenship nullifies the active emphasis of its political sense. Both meanings were developed in ancient times and have been integrated into modern political theories such as liberalism, which emphasizes rights, and republicanism, which espouses the realization of citizenship through political participation.
From a practical perspective, the dominant meaning of citizenship is as a source of rights and obligations. This reflects a type of exchange between the individual and the state: The rights express the needs of the individual and the obligations express the needs of the state. In the modern Western world, citizenship is mainly perceived in terms of rights. Even political participation, which was a duty in Athenian democracy, is currently viewed solely as a right in most countries (and it is of a more diluted content than in the past). This approach is termed “citizenship as rights,” and it conforms to the liberal tradition that has taken root in the We
It is important to clarify which rights derive from the status of citizenship in order to understand the implications of revoking citizenship as well as in order to examine practical alternatives to the use of this power. The currently accepted approach is that all persons are entitled to basic rights, irrespective of their affinity to the country in which they happen to be. Thus, for example, foreigners are also entitled to equality before the law and due process. The status of residency, as well, engenders rights that vary in scope from country to country. Nevertheless, some rights are only granted to citizens: the right to vote and to be elected to national institutions of government; the ability to occupy senior public positions; the right to be issued a passport, which is a prerequisite for freedom of movement between countries; immunity against extradition (in Israel, this immunity was very broad in the past, but has now been restricted to immunity against serving a prison sentence in a foreign country); the right to enter the country of citizenship without the need for a visa; and, most important, immunity against deportation.
As far as obligations are concerned, the accepted view is that the main duty imposed on the citizen is that of allegiance to the state. Other duties, such as obedience to the law and the payment of taxes, are also imposed on non-citizen residents. In certain countries, like Israel, compulsory military service also applies to non-citizen residents. The civic duty to vote in elections or to serve on juries only exists in some countries (not in Israel). However, the duty of allegiance remains too abstract. Among other things, the question arises as to whether or not it is limited to “negative” duties (manifested in prohibitions) or includes “positive” duties (to take action) as well.
It seems that the duty of allegiance to the state is essentially a negative duty and does not require that the citizen identify with and show devotion to the state. History provides enough examples of the anticipated danger to freedom of opinion, conscience, and expression following an overly broad definition of this duty. A minimal, passive duty of allegiance is necessary, inter alia, because the heterogeneity of the modern state makes it difficult to locate an experience of common history that produces a sense of identification among its citizens. The complicated reality characterizing the modern state, in general, and the nation-state, in particular, demands a clear distinction between citizenship and nationality. It also calls for a distinction between allegiance to the state, which creates legal obligations, and patriotism and civic virtue, which concern the sphere of morality. One of the advantages in limiting the duty of allegiance to its passive sense is that this reflects a simple dichotomy: A person can be either loyal or disloyal. This dichotomy suits the legal realm since the law demands that behavior be clearly categorized in order to determine its practical implications in view of the laws of the state. On the other hand, in the realm of morality, a person could be more or less patriotic and a better or worse citizen. In these matters there is no dichotomy. For these reasons, this study supports a narrow, passive concept of allegiance – at least in the legal realm – expressed primarily in the duty to refrain from committing offenses that harm national security. In Israel, these are the offenses of treason – however, it should be noted that these offenses are drafted overly broad.
A survey of attitudes towards revoking citizenship in international law and the law of other countries, past and present, offers the necessary vantage point for examining the Israeli law. As a rule, international law does not interfere with the citizenship law of individual states, with one exception – the absence of citizenship. While there is disagreement over whether dual citizenship is a desirable situation, it is agreed that statelessness is undesirable from the perspective of both international order and individual rights. Therefore, the Convention on the Reduction of Statelessness stipulates, inter alia, that a person may not be deprived of his nationality if this will render him stateless. This rule is subject to several exceptions that express recognition of the state’s right to revoke a person’s citizenship for having taken an oath of allegiance to another country or for a clear manifestation of disloyalty, provided that the citizen is given a fair hearing by a court of law or other independent body. In addition, it should be noted that the Convention absolutely prohibits the deprivation of nationality on racial, ethnic, religious, or political grounds. Israel signed this Convention but has never ratified it, therefore, it does not have the status of law. Nevertheless, the act of signing itself is normatively binding.
Over the years, changes have occurred in the legal situation in other countries regarding this issue. In the past, a distinction has prevailed between the revocation of naturalized citizenship and the revocation of birthright citizenship. In both cases, many states have allowed citizenship to be revoked following acts reflecting disloyalty, especially during wartime. Nevertheless, naturalized citizens have been suspected of disloyalty – particularly during periods of tension between their new country and their previous country of citizenship. In the United States, for example, during the first half of the twentieth century, the citizenship of many naturalized citizens, particularly those of German descent, was revoked, including that of persons who had been American citizens for many years prior.
Furthermore, comparative law demonstrates that the attitude towards revoking citizenship is influenced by the nature of the regime. The distinction between naturalized citizens and birthright citizens, which, over time, has been eliminated in democratic nations, still prevails in undemocratic countries. Moreover, legislation in undemocratic nations allows citizenship to be revoked on grounds that are broader than those accepted in democratic countries – inter alia, for acts and expressions considered to be manifestations of subversion. Such legislation existed, for example, in the Soviet Union, Fascist Italy, and Nazi Germany, and was vigorously enforced in those regimes.
In the vast majority of democratic countries, a revocation of citizenship that leads to statelessness has been expressly prohibited, and in some cases this restriction has even been established in a constitution. Furthermore, it is rare to find democracies that allow citizenship to be revoked for acts of treason. Such acts are solely dealt with by the criminal law. The most common ground for revoking citizenship in democratic countries is the acceptance of foreign citizenship, and even this is less common than in the past since the current trend is to permit dual citizenship. An even less prevalent ground is foreign military service or public service on behalf of a foreign nation, and in some countries it must be proven that this has actually caused harm to the interests of the state. It should be noted that, in Great Britain, the power to revoke citizenship is exceptionally broad (subject to the exception of statelessness) as a result of legislative amendments enacted in the wake of the fight against terrorism. In the United States, on the other hand, the grounds for revoking citizenship were greatly expanded in law at the end of the first half of the twentieth century, but this legislation became a “dead letter” after the US Supreme Court held it unconstitutional to revoke a person’s citizenship against his will.
Given all of this, it is clear that the Israeli statute allowing the revocation of citizenship is inconsistent with principles of international law and the prevailing law of democratic nations, for the following reasons: (1) the ground of disloyalty is unacceptable as well as overly vague; (2) the law does not establish an exception for a revocation of citizenship that results in statelessness; (3) the power is delegated to the Minister of Interior and not given to the courts. It should be noted that another ground for revoking Israeli citizenship – unlawfully visiting an enemy state – has no parallel in any other democratic nation. This ground was established in law in 1980, within the framework of an amendment transferring the power to revoke citizenship from the courts to the Minister of Interior. It is no wonder that this amendment was passed without any real discussion in the Knesset. To complete the picture, it should be made clear that the acceptance of foreign citizenship is not a ground for revoking Israeli citizenship and that the problems stemming from dual loyalties are dealt with mostly through the criminal law. For example, an Israeli citizen serving voluntarily in the army of a foreign nation is committing a criminal offense unless this is done by permission, under law, or under an international agreement.