Law of Return

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This article is about the right of return in Israel. For the equivalent laws in other countries, see Right of return.
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The Law of Return (Hebrew: חוק השבות, hok ha-shvut) is Israeli legislation that allows Jews and those with Jewish parents or grandparents, and spouses of the aforementioned, to settle in Israel and gain citizenship.

The Law

On July 5, 1950, the Knesset, Israel's Parliament enacted item 5710-1950, the Law of Return.[1] Follow-up legislation on immigration matters as they pertain to Jews and non-Jews is enshrined in the Nationality Law passed in 1952. These two pieces of legislation combine religion, history, nationalism, and democracy, in a way unique to Israel. Together, the legislation grants preferential treatment to Jews with the aim of facilitating their immigration to what the State of Israel views as the Jews' ancestral homeland.

The Law of Return declares that Israel constitutes a home not only for the inhabitants of the State, but also for all members of the Jewish people everywhere - be they living in poverty and fear of persecution or in affluence and safety.

Purpose

The purpose of the Law of Return, like that of the Zionist Movement, was to provide a solution to the Jewish people's problem - to reestablish a home for the entire Jewish people in Eretz Yisrael, the Land of Israel. In the Law of Return, the State of Israel put into practice the Zionist Movement's "credo" as pledged in Israel's Declaration of Independence.

Supporters of the Law of Return claim that in order to understand the Law, one must comprehend the political context in which it was written. At the time of the measure's adoption in 1950, only five years had passed since the end of World War II and the Holocaust. These events caused incalculably large losses of family members and friends of Jews; the events also destroyed communities, and livelihoods. In this context, there was too consistent a pattern of persecution of Jews in virtually the entire Jewish diaspora.

A religious and cultural vision

Jewish immigration to Palestine was not only seen as the fulfillment of a religious cultural vision, but was portrayed as the only viable option for Jews seeking refuge from anti-Semitic persecution. While other states had denied the mass immigration of Jewish refugees, Zionist advocates in Palestine worked to make a tangible political reality out of the yearning for a Jewish homeland, putting it forward as an immediate means for continued survival.

Eligibility requirements

Those who are eligible to immigrate under the Law of Return are immediately granted citizenship. Controversy has arisen as to whether all those claiming citizenship rights under the Law of Return should be registered as "Jewish" citizens for census purposes. Jewish status is traditionally granted according to the halakhic definition of being Jewish-- if your mother is Jewish, you are Jewish as well or if you convert to Judaism (though conversions to Reform and even Conservative Judaism streams are generally not recognized by many people in Israel). However, any Jew regardless of affiliation may return and claim citizenship in Israel.


Originally, the Law of Return was restricted to Jews only. A 1970 amendment, however, stated that, "The rights of a Jew under this Law and the rights of an oleh under the Nationality Law...are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew" (Law of Return).

One explanation for this amendment is that the Law of Return attempts to provide sanctuary as a citizen in Israel to anyone who would be persecuted under the Nuremberg Laws. As the Nuremberg Laws did not use a halakhic definition in its definition of Who is a Jew, the Law of Return definition for citizenship eligibility is not halakhic, either. The Law of Return merely provides citizenship for anyone covered under the Nuremberg Laws, but does not necessarily denote Jewish status to those granted citizenship.

A second explanation is that in order to increase immigration levels so as to offset the "demographic threat" posed by the continuing presence and growth of the Palestinian population, the law expanded the base group of those eligible to immigrate to Israel. [citation needed] A third explanation promoted by religious Jews is that the overwhelmingly secular leadership in Israel sought to undermine the influence of religious elements in Israeli politics and society by allowing more secular Jews and their non-Jewish spouses to immigrate. [2]

Exceptions

A Jew can be excluded from Israeli citizenship under the Law of Return if he or she is considered to be dangerous to the welfare of the State of Israel. Jews who have a past that involves a serious crime, such as murder, or who are fugitives in another country for any felony (unless they are labeled such as persecution victims) can be denied the right of return, (e.g. Meyer Lansky, Chaim Ben Pesach). [3]. Also Jews converting to other religions lose their right to citizenship under the Law of Return, (e.g. Brother Daniel).

Controversy

Critics claim that the Law of Return is part of a larger system of discrimination ("institutional apartheid"), whereby Israeli Jews are given superior civil and social rights over Israeli Arabs. [4] They further claim that the Law of Return runs counter to the claims of a democratic state [5] [6] and that Israeli support for the Law of Return for the Jews, "excuses and maintains the act of ethnic cleansing that dispossessed the Palestinian refugees more than half a century ago." [7]

Critique of the Law of Return by Palestinians and advocates for Palestinian refugees is often linked to the Palestinian demand for a right of return. [8] The Law of Return, as contrasted against the as-yet unfulfilled right of return is cited by Palestinians and their supporters as a deep offense that amounts to asking them to accept what they see as institutionalized ethnic discrimination that privileges the rights of Jews. [9]

Defenders of the Law of Return propose three basic arguments

  1. The Law of Return is only one way of acquiring citizenship. It is not the only way. There are other ways to acquire citizenship for non-Jews, such as naturalization, by birth, by residence, or by marrying an Israeli citizen. The Law of Return is meant to deal only with the Jewish problem of homelessness and worldwide persecution.[10] [11]
  2. That special privileges are granted to one group (i.e., Jews) does not necessarily or automatically discriminate against another. Jewish foreigners along with their relatives are eligible for "positive" discrimination because they can obtain automatic naturalization. Israel has residency and citizenship laws for non-Jews that are equivalent to those in other liberal democracies. It is argued that these kinds of laws are common and consistent with International Law, including the Convention on the Elimination of All Forms of Racial Discrimination Article I(3) which allows for preferential immigration treatment of some groups, provided there is no discrimination against a specific group.[12] Others point to the legal barring of Jews from several Arab states, with Jordan going so far as to enshrine that principle in its constitution.[13][14]
  3. That while the purpose of the Law of Return is to keep Israel predominantly Jewish, the policy that it represents is legitimate and justified. In a world where Jews have been persecuted, the concept of maintaining a Jewish state is necessary for the survival of the Jewish people generally and to provide a safe haven for Jewish refugees in specific cases. Here again, defenders cite the Convention on the Elimination of All Forms of Racial Discrimination Article I(4), which allows for preferential treatment for some groups in order to remedy past discrimination. [12]
File:Law of Return Passport.jpg
A stamp in a passport issuing holder Israeli citizenship based on Law of Return

Similar laws in other countries

In addition to Israel, several other countries provide immigration privileges to individuals with ethnic ties to these countries (so-called leges sanguinis). (See Right of return and Repatriation laws.) These citizenship laws seem to have been enacted by states wishing to guarantee a safe-haven to diaspora populations assumed to be living under precarious conditions.

Debate in Israel

In Israel, a debate continues over the Law of Return. Some people wish to retain it as it stands, others want to modify it, and a small minority wants to abolish the Law completely. Those who would abolish the Law believe that it grants Jews rights that members of other groups governed by the State of Israel do not have [15], a situation which would be contrary to the spirit of a modern liberal democracy. They further claim that although the law did indeed contribute to immigration and absorption when Israel was established, it is no longer needed.[citation needed] Proponents state that Israel is "Jewish and democratic" not just democratic, that it was established as a Jewish state and a refuge for the Jewish people, not as a pale copy of other world states. [citation needed]

Applicability

See also Who is a Jew?

Amongst those who are in favor of retaining the Law, controversy exists over its wording. The Law's definition of a "Jew" and "Jewish people" are subject to debate. Israeli and Diaspora Jews differ with each other as groups and among themselves as to what this definition should be for the purposes of the Law of Return. Additionally, there is a lively debate over the meaning of the terms "Jewish State" and "State of the Jews."

Discussion around the Law and its wording constantly reappears on private and public agendas in Israel and in the Diaspora. The Knesset has repeatedly debated proposals to amend the Law of Return, and it has indeed been amended a number of times over the years. These modifications reflect the changes that have taken place in Israeli society, the shifts that have taken place in political dialogue both inside Israel itself, and the political discourse between Israel and the Diaspora. The present law constitutes an expression of permanent trends as well as of the Israeli legislative system's ability to adapt itself to changing circumstances.

It is not only the Knesset, however, which has been repeatedly obliged to directly or indirectly address these issues. Over the years, many of Israel's interior ministers have examined the issue of the Law of Return and wavered as to how to apply it. The judiciary has also been called upon to express an opinion on matters relating to the Law. This burning and recurrent question in the country's political dialogue not only reveals but also exacerbates differences of opinion between Israelis.

One central issue is who has the authority over determining the validity of conversions to Judaism for purposes of immigration and citizenship. For historical reasons, the Chief Rabbinate of Israel, under the Israeli Ministry of Religious Affairs, made this determination, but this arrangement is in question. This practice has met opposition among non-Orthodox religious leaders both within Israel and in the diaspora. Several attempts have been made to resolve the issue, the most recent being the Ne'eman Commission, but an impasse persists.

On March 31, 2005, the Israeli Supreme Court ruled 7-4 that all conversions performed outside of Israel would be recognized by the authorities under the Law of Return, notwithstanding the Ne'eman Commission's view that a single body should determine eligibility for immigration. Orthodox religious leaders objected vehemently to this ruling, arguing that it would lead to fraudulent immigration applications.

See also

References

  1. ^ http://www.mfa.gov.il/MFA/MFAArchive/1950_1959/Law%20of%20Return%205710-1950
  2. ^ Eleonara Poltinnikova-Shifrin. "The Jewish State and the Law of Return." [1] 1 January 2002.
  3. ^ Crime Library.[2]
  4. ^ Arab Human Rights Association. "Discrimination in the Israeli Law. [3] Access date=2 October 2006.
  5. ^ Permanent Observer Mission of Palestine to the United Nations. "UN Economic, Social and Cultural Committee Expresses Grave Concern Over Israel's Discriminatory Practices." [4] Access Date=2 October 2006.
  6. ^ [5]
  7. ^ Jonathan Cook. "Hollow Visions of Palestine's Future." [6] November 18, 2006. accessdate=23 February 2007.
  8. ^ Israeli Ministry of Foreign Affairs. The Law of Return. [7]
  9. ^ [www.adc.org/issue_papers/ror/issuepaper30.PDF]
  10. ^ Israel Ministry of Foreign Affairs, "Acquisition of Israeli Nationality". [8]
  11. ^ International Convention on the Elimination of all forms of Racial Discrimination, CERD/C/471/Add.2, 1 September 2005.
  12. ^ a b "From 'Ethnic Cleansing' to Casualty Count, Prof. Qumsiyeh Errs" Committee for Accuracy in Middle East Reporting in America, August 20, 2004.
  13. ^ http://www.meforum.org/article/263
  14. ^ http://findarticles.com/p/articles/mi_m2501/is_n1_v18/ai_18413376/pg_13
  15. ^ Gail J. Boling. "Palestinian Refugees and the Right of Return: An International Law Analysis." [9] Badil Information & Discussion Brief. 1 January 2001.
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