Daoud Kuttab
A senior Middle Eastern journalist confided to me this week: “I do not understand how the Israeli policy that has caused so much trouble for Palestinian Americans, Arab and Muslim Americans, and others all of a sudden has been erased.” The journalist was referring to the new Israel-US memorandum of understanding, in which the Israeli government suddenly ended its security mechanism of profiling Americans, based on their ethnicity or color, in return for the chance of the US allowing Israelis access to its Visa Waiver Program.
The Israel-US agreement does indeed make significant changes and attempts to provide access for Americans to Israel through all international points of entry, but the change is not total and does not appear to be genuine. If Tel Aviv was serious, all it would have had to do is instruct all soldiers, police officers and passport control officials to treat anyone with a valid US passport the same. But it has not done that and it appears the Americans are allowing the Israelis to continue to discriminate against US citizens, even if the discrimination may now be more nuanced.
The US Visa Waiver Program has a number of requirements, among them the need for denials of applications for US visas to be under 3 percent. Normally, Israelis applying for US visas are denied at a rate of 6 percent to 10 percent annually. But recently, largely due to the COVID-19 pandemic, fewer Israelis have been denied and all of a sudden Israel became partly eligible for the waiver.
Other requirements, however, needed to be addressed; among them is the issue of total reciprocity. For Israelis to be admitted to the US without a prior visa, federal US law requires that all Americans be treated equally upon entry to and departure from the state of Israel. The US State Department archives are chock-full of complaints by Americans of diverse backgrounds, but especially Palestinian Americans, Arab Americans, Muslim Americans and African Americans, who have all faced discriminatory Israeli policies. These policies begin with an initial profiling of members of these groups and then, at times, rejecting their entry, sometimes for frivolous reasons such as a logo on a T-shirt, a like on Facebook or the manner in which they answered a question while being interrogated.
Israel seems to have agreed to the US requirement of total reciprocity during a trial period beginning July 20 but, even with these changes, Israel continues to treat Americans in different ways depending on their ethnicity.
In clear noncompliance with US federal statutory requirements, the memorandum of understanding adopts the existing Israeli policy of differential treatment for certain categories of US citizen travelers. According to the statute, reciprocity is specifically about “reciprocal privileges,” not eligibility to enter a country admitted into the US Visa Waiver Program. At least four dissimilar categories of travelers have been created with different requirements for entry/exit. The memorandum distinguishes between American travelers on the basis of whether they hold a Palestinian ID, reside in the West Bank, reside in Gaza, reside outside of the Occupied Territories, or have a first-degree family member they seek to visit in Gaza.
For example, while Israel has agreed to allow Americans who are residents of the West Bank to travel to and from the US using Israeli entry points such as Ben Gurion Airport, which they were previously banned from using, it deals with them differently than it deals with American Jews. Palestinian Americans who are residents of the West Bank cannot drive their cars in Israel, including to the airport, while other Americans, including those living in settlements, are able to use Israeli cars and drive them both in the West Bank and in Israel.
The discrimination faced by Americans who want to get to or leave the Gaza Strip is an even more difficult situation. Palestinian Americans are only allowed to visit Gaza if they can prove that they have a relative of the first degree (parent, child or sibling), while being denied permission to visit a grandparent or an uncle and certainly being denied a visit to Gaza for any other reason. Americans living in Gaza cannot simply go to Ben Gurion Airport via the Erez checkpoint. Israel, however, says it will allow them to travel in a special bus to the King Hussein Bridge so that they can travel to and from the US via Jordan.
The memorandum allows Israel to apply military law to some Americans and civilian law to others based solely on national origin or religion. Americans on the Palestinian population registry who reside in the West Bank or Gaza must obtain a military-issued permit to enter Israel. Again, this is not equal treatment for all US citizens and keeps the final decision in Israeli hands.
The restrictions placed on travel to Gaza are arbitrary, capricious and discriminatory. There is no logic behind limiting the possibility of entry to Gaza for first-degree family members of people who live there. Why should a grandchild be denied the right to be reunited with their grandparents? Why should any US citizen that passes through Israel’s stringent airport security checks be denied travel to Gaza? And why should a Palestinian American resident of Gaza be denied the ability to travel out of Israel’s Ben Gurion Airport when all other Americans are provided that right?
Israel must allow all Americans reasonable access to travel and transit. Any legitimate security concerns Israel has may be addressed at the Erez crossing to Gaza, which it controls. The security of US citizens inside Gaza has only been put at risk during Israel’s military escalations against the Strip. No American citizen has posed a security risk to Israel during their stay in Gaza. Limiting US citizens’ access to Gaza is, therefore, punitive and arbitrary.
The Israel-US visa waiver appears to be a win-win for Palestinian Americans and for Israelis. But the danger in this process is that Israel is allowed to continue discriminating between Palestinian Americans, albeit to a lesser degree than previously, and at the same time it is unclear whether the Israelis will not revert to more overt discrimination if the visa waiver is not finally approved by Washington in September.
