Can Israel Deport Families of Terrorists and Revoke Their Citizenship?

I usually help explain human rights legal decisions that affect Israel and the Jewish community. Here is some background on an issue that comes up from time to time and has been recently raised again.

As Israel faces yet more terrorist attacks, there has been a renewed push to revoke the citizenship of terrorists and their families as punishment. It’s understandable why Israel wants to do this, but legal and practical obstacles mean it is probably not a workable solution.

First, the problem. When a person commits a crime, unfortunately in this case usually murder, the state has a right and duty to punish the perpetrator. This can mean prison, or in some cases the death penalty. However, neither of those options work well here.

A key problem for Israel with putting terrorists in prison is that they then often wind up released in prisoner swaps. In fact, imprisoning terrorists incentivizes terrorist organizations to take Israelis hostage in order to exchange. This is made worse by some world media, which infuriatingly often refers to incarcerated Palestinian mass murderers as ‘political prisoners’ and equates them with innocent Israelis being held captive as bargaining chips.

The death penalty, once carried out, would of course remove this issue. However, Israel does not currently have a death penalty on its books. In addition, killing terrorists might turn them into martyrs or otherwise glorify both their deeds and their deaths. Finally, many terrorists die carrying out their attacks, making further punishment impossible.

Against this backdrop Israeli government officials have from time to time moved to punish the deceased terrorist’s family. This has in the past sometimes been by home demolition, with the most recent suggestion being citizenship revocation instead.

Punishing Family Members

But there are two significant hurdles. First, it goes against fundamental principles of fairness and due process of law to punish a person for a crime committed by someone else, even a family member. The latest proposal in Israel tries to get around that by punishing relatives of a terrorist only if the relatives knew about the plan in advance and failed to report it, or if they expressed sympathy and encouragement for the terrorist.

The ‘sympathy and encouragement’ provision seems particularly problematic. Surviving family members, even if they oppose terrorism and are appalled by the actions of their loved one, can still be expected to grieve their personal loss. The Mishnah (Sanhedrin 6:6) states that when an evil-doer is executed by the Sanhedrin, while relatives do not sit shiva they still have a halachic status called ‘aninut’. This means they are exempt from saying blessings and performing positive commandments from the time of death up until the burial. The rationale is that no matter the circumstances, it must be expected that people will mourn the loss of a member of their family. But according to this proposed Israeli law, virtually any expression of sadness could be construed as a sign of ‘sympathy for the terrorist.’ This seems overly broad, intrusive, and ripe for abuse.

Revocation of Citizenship

A second question involves the revocation of citizenship itself. In today’s world, citizenship is considered a human right. After all, everyone needs a place to live and a stateless person wouldn’t have anywhere on earth that they are entitled to go.

There is actually a treaty called ‘The Convention on the Reduction of Statelessness’ which speaks about this. It pretty much limits circumstances in which a country can revoke citizenship to cases where the person in question is already a dual-citizen with some other country and therefore has an alternate citizenship available. While Israel is not a signatory to this treaty, it is still bound by the general principle that citizenship is a right and that many aspects of this treaty have become customary international law.

There would also be the practical issue of where to send family members after their citizenship is revoked. If they are made stateless, there might be no country to take them. Israeli political figures have therefore suggested Gaza, although there are numerous reasons why that would be problematic too. Most obvious is that this may actually be where the terrorist’s family is already from. Even if not, as Gaza is currently occupied by Israel, forcibly moving a terrorist’s family from the West Bank to Gaza could be construed as a form of population transfer that is forbidden by the Geneva Convention. Even should Israel withdraw and Gaza no longer be under occupation the problem would not be solved, as in that case exiling people to Gaza would require the agreement of whatever authorities there are in power.

While it’s necessary to punish and deter terrorism, revoking the citizenship of family members and sending them into exile is unlikely to be a workable solution. The truth is that there doesn’t seem to be one. This represents a failing of international law to responsibly address this situation, and also highlights the need for a political arrangement to bring peace, justice, and stability. International law reform and peace talks both may seem light years distant, but those truly are the only ways.