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Abstract
This article seeks to show that liberal law continues to justify and legitimize displacements of minority populations, even in an age of universal human rights. As demonstrated by the Israeli court's 1988 decision legitimating the deportation of Mubarak Awad, citizenship and immigration laws provide juridical justifications for contemporary ethno-national settler projects. In the aftermath of a territorial conflict that defines or redefines the bounds of the state, native minority populations are vulnerable to being legally recast as ‘aliens’ or ‘virtual immigrants’. National conflict may thus be transformed by legal formalism into a question of immigration law, allowing the power relations that produce state sovereignty to slip into the background.
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Acknowledgements
I am grateful for comments on earlier drafts by Rainer Bauböck, Irus Braverman, Bill Corlett, Marwan Dalal, Galya Ruffer and Diana Yoon. I also thank my anonymous referees who provided insightful reviews.
Notes
1. Spire's study of several decades of French administrative records found that North African citizenship applications were rejected on the slightest pretext, while those of other nationalities did not face this bias.
2. To give an example from the US context, Mexican laborers who crossed the border to work in commercial agriculture have been constructed through law as the prototypical illegal alien, a status that justifies their subordination and control.
3. The denationalizations of the Albanian minority in Macedonia and Croatia and of the Roma in Slovenia are recent examples.
4. This is particularly the case if they fail to take advantage of a certain window of opportunity for individuated and formally egalitarian citizenship registration, since residency rights are then predicated on the citizenship statuses resulting from this legally foundational moment.
5. Within the latter, jurisdictional divisions were multiplied as the result of changes resulting from the Oslo Accords.
6. Under its Absentee Law, the State refused residence permits to Palestinian Jerusalemites who were not present or failed to take part in the census.
7. Installing settlers in an ‘occupied territory’ is itself a violation of international law. See IV Geneva Convention Article Citation49, section 6 (1949)
8. In 1977, approximately 150,000 Jewish residents had been settled in East Jerusalem. See Hodgkins (Citation1996).
9. The Israeli Supreme Court serves a dual function: as a high court of appeal and as a high court of justice with original jurisdiction over disputes that are not within the jurisdiction of other courts.
10. In fact, the decision cited the Israeli Foundations of Law Statute of Citation1980 to justify this prioritization of state law over international law. Even here, the State's law is coordinated and rational, and thus, by implied assertion, legitimate.
11. The initial determination of the Ministry of Interior not to extend Awad's tourist visa for unspecified but presumably political reasons is not mentioned in the court's decision.
12. For example, the State of Georgia in December 1828 passed ‘an act to add the territory lying within this state and occupied by the Cherokee Indians, to the counties of Carroll, De Kalb, Gwinett, Hall, and Habersham, and to extend the laws of this state over the same’. The act authorized the governor to punish any person trespassing on certain parts of the former Cherokee country.
13. As Stuart Banner meticulously documents, English colonial law had included no such concept, nor had American law before the 1790s. Unsold Indian land had been thought to be owned by the Indians. See Banner (Citation2005).
14. The situation of indigenous Australians was even more precarious, since until recently Australian courts refused to accord any recognition to Native peoples’ pre-settlement existence and thus made no attempt to create or apply law relating to land title that aboriginals could invoke. See Pateman (Citation2008).
15. A significant moment in this trajectory was the international consolidation of the Westphalian system of hardened territorial borders following the post-World War I. See Sassen (Citation2006).
16. The United Nations Security Council, the High Contracting Parties to the Fourth Geneva Convention, and the International Committee of the Red Cross, have each resolved that the territories acquired by Israel during the 1967 War are occupied and that the Fourth Geneva Convention provisions regarding occupied territories apply. In its advisory opinion on the separation barrier, the International Court of Justice described the West Bank, Gaza Strip and East Jerusalem as occupied territories.
17. A strong majority of Palestinian Jerusalemites continue to live in this situation in which they may have their residency revoked. As of 2007, some 250,000 Palestinians resided in Jerusalem and only 12,000 of them had sought to obtain Israeli citizenship since 1967, an average of about 300 new citizens a year (Shaked 2007). In 2008, the most recent year to date for which figures are publicly available, Israel revoked the residency of 4577 East Jerusalemites, including 99 minors (Hasson 2009).