Law of Return
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The Law of Return (חוק השבות) is Israeli legislation that allows Jews and others to settle in Israel and gain citizenship.
The Law
The Law of Return was enacted by the Knesset, Israel's Parliament, on July 5, 1950 CE (in the Jewish calendar, 20th Tammuz 5710), and the related Law of Citizenship in 1952. These two pieces of legislation contain expressions pertaining to religion, history and nationalism, as well as to democracy, in a combination unique to Israel. They do indeed grant preferential treatment to Jews returning to their ancestral homeland.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 the Declaration of Independence.
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 be they living in affluence and safety. The law declares to the Jewish people and to the world that the State of Israel welcomes the Jews of the world to return to their ancient homeland.
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, events which occasioned upon European Jews incalculably large losses of family members, friends, communities, and livelihoods. This context also included consideration of a consistent pattern of persecution of Jews in virtually the entire diaspora.
Jewish immigration to Palestine was not only seen as the fulfillment of a religious cultural vision, but as the only viable option for Jews seeking refuge from anti-Semitic persecution. While other states had denied the mass immigration of Jewish refugees, forceful Zionist advocates in Palestine had become symbolic of both a literal interpretation of the cause for a Jewish homeland and a tangible and immediate means for continued survival.
Those who are eligible for the Law of Return are immediately granted citizenship. The controversy arises whether all should be given Jewish status as citizens. Jewish status is granted according to the traditional definition of being Jewish-- if your mother is Jewish, you are Jewish as well (conversions to Judaism can also occur). Originally, the Law did not specify who qualified for being Jewish. The 1970 amendment, however, said "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). 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 cede Jewish status to those granted citizenship. Thus one can be Jewish and be excluded from Israeli citizenship under the Law of Return (e.g. Meyer Lansky or Brother Daniel) or not be Jewish and yet be granted citizenship (but not Jewish status).
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. They further claim that the purpose of the Law of Return runs counter to the claims of a democratic state.Others point to the fact that some countries explicitly bar Jews from obtaining or maintaining citizenship in their respective constitutions. The Israeli constitution explicitly states the exact opposite: that Jewish foreigners along with their relatives are eligible for "positive" discrimination because they can obtain automatic naturalization.
Defenders of the Law of Return propose three basic arguments:
- The Law of Return is only one way of acquiring citizenship. It is not the only way. There are other ways to acquire citizenship, Jew or non-Jew, such as naturalization, by birth, or residence. The Law of Return is meant to deal only with the Jewish problem of homelessness and worldwide persecution. Israel's non-Jewish population has other ways to acquire citizenship.
- That special privileges to one group (i.e., Jews) does not necessarily or automatically discriminate against another. Israel has residency and citizenship laws for non-Jews that are equivalent to those in other liberal democracies. As well, they argue 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.
- 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 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.
- Section 116 of Germany's constitution allows people of "ethnic German origin" from Eastern Europe residency and citizenship rights.
- Section 375 of the Greek citizenship law confers automatic citizenship to people of "Greek nationality" if they enlist in military service.
- Section 25(1) of the Bulgarian constitution gives people of "Bulgarian origin" special access to obtaining Bulgarian citizenship.
- Section 18a of the Finnish foreigners' law states that a person from the Soviet Union who is of "Finnish origin" may, along with their spouse and children, receive permission for permanent residence and citizenship.
- Section 14a of the Irish citizenship law of 1986 grants the interior minister authority to confer automatic citizenship on any applicant of "Irish origin or affiliation".
Bulgaria: Article 25 of the 1991 constitution specifies that "person[s] of Bulgarian origin shall acquire Bulgarian citizenship through a facilitated procedure." Article 15 of the Law on Bulgarian Citizenship provides that an individual "of Bulgarian origin" may be naturalized without any waiting period and without having to show a source of income, knowledge of the Bulgarian language or renunciation of his former citizenship.
China: The only significant immigration to China has been by the overseas Chinese, who in the years since 1949 have been offered various enticements to return to their homeland. Several million may have done so since 1949. (Source: http://countrystudies.us/china/35.htm )
Croatia: Article 11 of the Law on Croatian Citizenship allows emigrants and their descendants to acquire Croatian nationality upon return, without passing a language examination or renouncing former citizenship. In addition, Article 16 permits "a member of the Croatian people who does not have a place of residence in the Republic of Croatia [to] acquire Croatian citizenship" by making a written declaration and submitting proof of attachment to Croatian culture.
Finland: Finnish law provides a right of return to ethnic Finns from the former Soviet Union, including Ingrians. Applicants must now pass an examination in the Finnish language. [Ed. note: I have been informed by Jussi Jalonen, based on a translation of the Finnish Directorate of Immigration web site, that certain persons of Finnish descent who live outside the former Soviet Union also have a right to establish permanent residency, which would eventually entitle them to qualify for citizenship.]
Germany: Article 116(1) of the German constitution confers a right to citizenship upon any person who is admitted to Germany as "refugee or expellee of German ethnic origin or as the spouse or descendant of such a person." At one time, ethnic Germans living abroad (Aussiedler) could obtain citizenship through a virtually automatic procedure, but since 1990 the law has been steadily tightened to limit the number of immigrants who can come each year and require proof of language skills and cultural affiliation.
Greece: Ethnic Greeks can obtain Greek citizenship by two methods under the Code of Greek Nationality. Pursuant to Article 5, ethnic Greeks who are stateless (which, in practice, includes those who voluntarily renounce their nationality) and who "really behave as Greeks" may obtain citizenship upon application to a Greek consular official. In addition, ethnic Greeks who join the armed forces acquire automatic citizenship by operation of Article 10, with the military oath taking the place of the citizenship oath.
Hungary: Section 4(3) of the Act on Nationality permits ethnic Hungarians (defined as persons "at least one of whose relatives in ascendant line was a Hungarian citizen") to obtain citizenship on preferential terms after one year of residence. In addition, the "Status Law" of 2001 grants certain privileges to ethnic Hungarians living in territories that were once part of the Austro-Hungarian empire and permits them to obtain an identification card, but does not confer the right to full Hungarian citizenship.
India: Persons with at least one Indian great-grandparent may apply for a Person of Indian Origin card, provided that neither the applicant nor any ancestor has ever been a citizen of Pakistan, Bangladesh, Nepal, Sri Lanka, Afghanistan or China. This card is a travel document and permits the holder to enter and stay in India without a visa, own land and attend educational institutions, but not to vote or hold office. In addition, persons of Indian origin who are nationals of certain specified countries (again subject to an exclusion for Pakistanis and Bangladeshis) may apply for Overseas Indian Citizenship, which confers similar rights and also permits the holder to apply for full Indian nationality after one year of residence.
Ireland: The Nationality and Citizenship Act allows any person with an Irish grandparent to become an Irish citizen "by registering in the Foreign Births Register at an Irish embassy or consular office, or at the Department of Foreign Affairs in Dublin." Such an individual may also pass his entitlement to Irish nationality on to his children by registering in the Foreign Births Register even if he chooses not to take up citizenship himself.
Israel: The Law of Return, as amended in 1970, confers an automatic right to citizenship on anyone who is Jewish by birth or conversion, or who has a Jewish parent or grandparent.
Italy: Persons of Italian descent may claim citizenship through a maternal grandparent if neither the grandparent nor their mother has ever renounced Italian nationality.
Japan: A special visa category exists exclusively for foreign descendants of Japanese emigrates (Nikkeijin) up to the third generation, which provides for long-term residence, unrestricted by occupation, but most Nikkeijin cannot acquire Japanese citizenship.
Kiribati: Articles 19 and 23 of the constitution provide that "[e]very person of I-Kiribati descent... shall... become or have and continue to have thereafter the right to become a citizen of Kiribati" and that "[e]very person of I-Kiribati decent who does not become a citizen of Kiribati on Independence Day... shall, at any time thereafter, be entitled upon making application in such manner as may be prescribed to be registered as a citizen of Kiribati."
Lebanon: Lebanese law currently makes no provision for reacquisition of nationality by members of the diaspora, but a pending government proposal would permit descendants of Lebanese emigrants to acquire an overseas identity card that confers rights similar to the Person of Indian Origin scheme.
Poland: The Statute on Polish Citizenship, as amended in 2000, permits the descendants of Poles who lost their nationality involuntarily between 1920 and 1989 to take up Polish citizenship without regard to ordinary naturalization criteria.
Romania: Romanian expatriates who lost their citizenship prior to December 22, 1989, as well as their children and grandchildren, may reclaim their nationality upon presentation of a declaration and supporting documents.
Russia: Until recently, persons holding Soviet passports could exchange them for Russian Federation nationality on a virtually automatic basis. The 2002 amendment to the Law on Russian Federation Citizenship, however, puts substantial qualifications on this right, including language and financial requirements and preferences for immigrants who have a secondary education or who join the armed forces. Former Soviet citizens may, however, still apply for Russian citizenship without a waiting period.
Rwanda: Article 7 of the Rwandan constitution provides that "Rwandans or their descendants who were deprived of their nationality between 1st November 1959 and 31 December 1994 by reason of acquisition of foreign nationalities automatically reacquire Rwandan nationality if they return to settle in Rwanda." In addition, "[a]ll persons originating from Rwanda and their descendants shall, upon their request, be entitled to Rwandan nationality."
Serbia: Article 23 of the 2004 citizenship law provides that the descendants of emigrants from Serbia, or ethnic Serbs residing abroad, may take up citizenship upon written declaration.
Slovakia: A person with at least one Slovak grandparent and "Slovak cultural and language awareness" may apply for an expatriate identity card entitling him to live, work, study and own land in Slovakia. Expatriate status is not full citizenship and does not entitle the holder to vote, but a holder who moves his domicile to Slovakia may obtain citizenship under preferential terms.
South Korea: The law of South Korea grants special status to descendants of ethnic Koreans who emigrated after 1922. As with India and Slovakia, this status falls short of full citizenship and does not confer political rights, but permits them to live, work, own property and conduct business in South Korea.
Spain: Citizenship on preferential terms may be obtained after two years' residence by Andorrans, Portuguese, citizens of Latin American countries, the Philippines or Equatorial Guinea, and Sephardic Jews.
Turkey: Turkish law allows persons of Turkish origin, and their spouses and children, to apply for naturalization without the five-year waiting period applicable to other immigrants.
Ukraine: Article 8 of the Law on Citizenship of Ukraine permits any person with at least one Ukrainian grandparent to become a citizen upon renunciation of his former nationality.
They also cite many other countries with similar laws, including Poland, Hungary, Slovakia, the Czech Republic, Slovenia, and Croatia[link]. Similarly, the Liberian constitution (currently defunct and being rewritten) allows only people "of Negro descent" (regardless of ethno-national affiliation) to become citizens. All these peculiar 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.
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 want 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, 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. Detractors 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.
Some critics argue that Israel should provide similar privileges to Palestinian refugees. Advocates for Palestinians cite several international resolutions and mandates supporting their own claim of a "Right of Return", such as United Nations Resolution 3236 of 1974, which: "Reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return." Similarly, international law states that refugees are entitled to return to the land from which they fled.
Detractors from the Palestinian position argue that:
- UN General Assembly resolutions merely express the political convictions of a simple majority of governments in the assembly and do not approach the status of international law.
- In any event, international laws on refugees do not apply to descendants of refugees.
- A just resolution of the Palestinian refugee problem must take place in a broader context that includes consideration of Jewish refugees from Arab countries, as well as the ability and unwillingness of Arab countries to absorb their Palestinian brothers
- Most importantly, that Israel can not make concessions that would endanger its very survival. An influx of hostile Palestinians to Israel now would seriously endanger the state's security, so a peaceful resolution must precede any such arrangements.
Applicability
- See also Who is a Jew?
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
- Right of return
- Aliyah
- Jewish diaspora
- Politics of Israel
- Basic Laws of Israel
- Who is a Jew?
- Population exchange in the Middle East
- Palestinian refugees
- A Spanish law decreed under the rule of Miguel Primo de Rivera states that Sephardi Jews have the right to apply for Spanish citizenship. This law was applied to thousands of Holocaust refugees during the Second World War and even to Sarajevo Jews during the War of Bosnia.
External links
- [The Law of Return] - The text of the law and its various amendments
- [Democratic Norms, Diasporas, and Israel’s Law of Return] by Alexander Yakobson and Amnon Rubinstein
- [The problem is how to become an Israeli] by Amnon Rubenstein, Ha'aretz
- [Judt Labels Israel "Anachronistic," Calls for Binational State]
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