How HRW and Amnesty twist international law against Israel: The Nottebohm Case

One of the most bizarre claims made by anti-Israel activists is that the fictional "right to return" applies not only to Arabs who fled their homes in 1948, but also to their descendants, forever.

But it is not only the explicit Israel-haters who make this argument. Both Amnesty International and Human Rights Watch claim that such a right exists - and they further claim that it is a right under international law.

Amnesty's policy statement on the matter was written in 2001; HRW's in 2002.

Both use similar arguments.

First they quote the International Covenant on Civil and Political Rights, which says "'No one shall be arbitrarily deprived of the right to enter his own country."

They then quote the UN Human Rights Committee to interpret the statement as meaning that "his own country" does not necessarily mean a state.

The scope of 'his own country' is broader than the concept 'country of his nationality'. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien....Since other factors may in certain circumstances result in the establishment of close and enduring connections between a person and a country, States parties should include in their reports information on the rights of permanent residents to return to their country of residence.

How does one define "special ties" and "close and enduring connections"?

Both HRW and Amnesty pretend that the definition can be determined from the Nottebohm Case, a 1955 ruling by the International Court of Justice that changed the definition of nationality in certain cases. By using Nottebohm, the organizations are claiming that international law supports the "right to return" - not only for refugees but also for descendants.

Amnesty quotes this part of Nottebohm as their definition of "close and enduring connections":

"...a social fact of attachment, a genuine connection of existence, interests and sentiments..."

Both Amnesty and HRW also quote this section:

"Different factors are taken into consideration, and their importance will vary from one case to the next: there is the habitual residence of the individual concerned but also the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc."

Both HRW and Amnesty are misrepresenting Nottebohm. In fact, an unbiased reading of the Nottebohm case would indicate the exact opposite to what they are claiming.

Let's look at the full context of the first Amnesty quote, italicizing the specific part quoted:

According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. . Conferred by a State, it only entitles that State to exercise protection vis-a-vis another State, if it constitutes a
translation into juridical terms of the individual's connection with the State which has made him its national.

Amnesty took the quote out of context, and in context it shows that Nottebohm is specifically speaking about legal citizenship, not a tenuous link with an area that one's ancestors lived. It is talking about the reciprocal relationship between a state and its nationals.

Here's the full context of the other quote:

International arbitrators have decided in the same way numerous casés of dual nationality, where the question arose with regard to the exercise of protection. They have given their preference to the real and effective nationality, that which accorded with the facts, that based on stronger factual ties between the person concerned and one of the States whose nationality is involved. Different factors are taken into consideration, and their importance will vary from one case to the next: the habitua1 residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.

The ICJ is very clear that it is talking about the relationship between an individual and the State, not between him and the place his grandfather may have lived.

In the case of Israel, it is clear that the Arabs wishing to "return" are not interested in any "reciprocal rights and duties" that citizenship demands. They don't identify with Israel, so the demand that they can become Israeli citizens based on Nottebohm is exactly the opposite of reality. Unlike the ICCPR's use of the word "country," Nottebohm uses the unambiguous word "State" to determine whether one's ties are genuine and effective. There is no indication that Nottebohm would consider Palestinian refugees and their descendants to have any links to Israel, which has a completely different culture than the Levant of a hundred years ago.

Other parts of the ICJ ruling make Israel's rights even more explicit:

The character thus recognized on the international level as pertaining to nationality is in no way inconsistent with the fact that international law leaves it to each State to lay down the rules governing the grant of its own nationality. The reason for this is that the diversity of demographic conditions has thus far made it impossible for any general agreement to be reached on the rules relating to nationality, although the latter by its very nature affects international relations. It has been considered that the best way of making such rules accord with the varying demographic conditions in different countries is to leave the fixing of such rules to the competence of each State.

Nottebohm shows that Israel has the sole right to determine who can be a citizen and who cannot.

To apply Nottebohm as an interpretation of the UNHRC's comment is knowingly deceptive. And both HRW and Amnesty extend the deception by pretending that their misinterpretation of the ICJ would also apply to descendants, who supposedly also maintain "genuine and effective links" to a state that never existed.

Beyond that, both HRW and Amnesty - by insisting that Israel give citizenship to a population that is by and large hostile to Israel - are ignoring the Hague definition as well as the European Convention on Nationality, which states

"Each State shall determine under its own law who are its nationals. This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality."

Thsi is fully consistent with Nottebohm, and completely inconsistent with Amnesty and HRW - unless they are arguing that Israel itself is illegitimate.

Furthermore, the entire point of Nottebohm's "genuine and effective ties" test was not to force a state to grant citizenship based on those criteria, as Amnesty and HRW insist, but to allow a state not to accept the citizenship of a person in another state if he doesn't have such ties. (Briefly, Nottebohm lived in Guatemala but had German citizenship; at the outbreak of WWII he changed his citizenship to Lichtenstein, but Guatemala didn't accept that quickie conversion and regarded him as an enemy alien when he tried to return in 1943.) To generalize from Nottebohm to the "right to return" is more than a stretch - it is a completely novel interpretation.

In fact, the ICJ ruled that the only country that Nottebohm truly had genuine ties to was - Guatemala! Yet it did not insist that Guatemala accept him as a citizen, while - if the case supported the "right to return" - it would have forced Guatemala to do exactly that. Indeed, the ICJ accepted that Lichtenstein had the right to apply its own laws of citizenship domestically - it was only ruling whether other countries must accept that citizenship if it appeared to be a sham.

In short, on a number of levels, the Nottebohm case proves that there is no "right to return," that Israel has the full right to determine who its citizens are, and that the "genuine and effective ties" test is meant for ties to a state, not to a land.

Beyond this, HRW - while acknowledging how badly Arab states have treated their Palestinian "guests" - does not call on Arab states to abide by the 1951 Convention Relating to the Status of Refugees, which states in Article 34: "The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees." Neither, apparently, does Amnesty, as its report on discrimination against Palestinians in Lebanon never urges naturalization for those who want to become Lebanese citizens.

The only conclusion that can be drawn is that HRW and Amnesty are purposefully twisting international law in two separate but related ways. On the one hand, they are misinterpreting international law to destroy Israel demographically, creating a standard that they demand of no other country. On the other hand, they  are ignoring international conventions and simple morality by placing no obligations on Arab states to end their discrimination against Palestinian Arabs and their right to citizenship if they so desire. (As we have shown countless times, Palestinian Arabs who are given the rare opportunity to become citizens of Arab countries will not hesitate to take advantage of it.)

Instead of caring about human rights, these organizations are denying the rights of hundreds of thousands of Palestinian Arabs who desire to integrate into the countries that they were born into and raised in, and they insist that Israel - and only Israel - doesn't have the right to determine who is allowed to become a citizen.

This is a travesty of both international law and human rights.