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Position Paper

Te Law o Return at Sixty Years: History, Ideology,

Justifcation

Ruth Gavison

ranslated rom Hebrew

Te Metzilah Centerfor Zionist, Jewish, Liberal and Humanist Tought

Jerusalem,



Te Metzilah Center was ounded in to address the growing tendency a mongIsraelis and Jews worldwide to question the legitimacy o Jewish nationalism andits compatibility with universal values. We believe that Zionism and a liberal worldview can and must coexist; that public discourse, research, and educationhold the key to the integration o Zionism, Jewish values, and human rights in the Jewish state; and that the integration o these values is critical or the lasting wel areo Israel and the Jewish people worldwide.

Metzilah aims at disseminating knowledge, deepening the understanding andawakening the public discourse in the areas that we deem are the core issues acingthe citizens o Israel and the Jewish people worldwide. Tese key issues include:the Jewish people’s right to national sel -determination in (part o ) the Land o Israel, contemporary Jewish identities; the complex nature o Israeli society; and thepreservation o human rights or all Israeli citizens and residents.

Te early stages o the Zionist movement were characterized by pro ound andcomprehensive discussions. While the State o Israel and its society are still acingcomplex challenges, the contemporary public discourse has lost depth and tends tobe characterized by the use o slogans and stereotypes. o counter this trend, theMetzilah Center ocuses on the academic and historical research o these topics orideological clari cation and practical policy recommendations.

In our e ort to meet this crucial challenge, the Metzilah center strives to publish avariety o pro essional and accurate publications which shed new light on key issuesand lay the necessary actual, historical and ideological oundations to promotepublic discourse and action in these essential matters. Te clari cation o these key issues is a necessity or Israeli society and the Jewish people.

Te Metzilah Center believes that a sustainable State o Israel is crucial or the

wel are and prosperity o the Jewish people and that actions need to be taken inorder to achieve the State’s objectives to their ull extent: to reestablish the right o the Jewish people to sel -determination by means o a Jewish state in their historicalhomeland; respecting the human rights o all o Israel’s citizens and residents; andconsolidating Israel as a democratic, peace-seeking, prosperous state that acts orthe wel are o all its inhabitants.

Te Law o Return at Sixty Years:History, Ideology, Justi cationRuth Gavison

Series Editor: Ruth Gavison

Assistant Editor: Michal AmramResearch Assistant: Michal Margaliot

ranslation: Gadi Weberranslation Editor: Allan Arkush

Copy Editor: Esther Rosen eldProduction Coordinator: Dikla CohenGraphics: Adi RubinCover photograph courtesy o “Ne esh b’Ne esh”

Te contents o this position paper do not necessarily represent theviews o the Metzilah Center and are presented at the sole responsibility o the author.

© All rights reserved, Te Metzilah Center Jerusalem, July

Copies may be ordered rom:Te Metzilah CenterPOB , Jerusalem , Israelel: - / / Fax: -

Email: [email protected] www.metzilah.org.il



Board o Directors o the Metzilah Center

Maj. Gen. (Res.) Giora Romm – Chairperson Adv. Yoav Artsieli

Pro . Ella Bel erPro . Aviva Halamish

Dr. Ariel Halperin

Mr. Meir Kraus Adv. Moshe Lusky Pro . Vered NoamDr. Daniel Polisar

Pro . Gideon ShimoniDr. Gadi aub

Dr. Alexander Yakobson

About the Author Pro . Ruth Gavison holds the Haim H. Cohn Chair or Human Rights atthe Faculty o Law o the Hebrew University o Jerusalem. She has served as avisiting pro essor at the Yale Law School and the University o South CarolinaLaw Center. Her elds o research include: Philosophy o Law, Constitutionmaking and constitutionalism, state and religion, Human Rights, and Israelas a Jewish State and a Democracy.

Pro . Gavison is a ounding member o the Association or Civil Rights inIsrael and served or many years as the association’s chairwoman and as its

president rom - . She has been a member o a number o publiccommissions, including: the Kahan Commission (protection o privacy), theZadok Commission (legal regulation o the press), the Shamgar Commission(appointment and powers o the Attorney General), and the Winograd Com-mission (investigation o the Second Lebanon War). ogether with Rabbi

Yaakov Medan she composed a covenant among Jews on state and religionissues in Israel, or which the authors received the Avichai Prize ( ). Sheserved as the senior advisor on the subject o the constitutional process to theConstitution Committee, under the leadership o MK Michael Eitan (Likud)in the th Knesset. Since she has served as the ounding president o Te Metzilah Center. She received the EME Prize in Law ( ), an hon-orary doctorate rom Bar-Ilan University ( ), and was the rst recipiento the Cheshin Senior Scholar Prize or Academic Excellence in Law ( )[email protected]

Acknowledgements I would like to express my gratitude to the many kind and generous people

who assisted us with data and with comments, including the participants inthe internal discussion which was held on April , . Tis paper was mademore complete and accurate on account o their important observations andinsights. Te positions taken in the paper do not always re ect their opinions,and the responsibility or them alls solely on the author. A special thank-youis owed to Dr. Na’ama Carmi or her generous help in developing this paper.

Tanks are also due to Te ikvah Fund or its nancial support o thepublication o this paper.



Contents

Executive Summary

Pre ace A. Introduction B. Te subjects o the position paper

Chapter One: Aliyahand the Law o Return A. Aliyahbe ore the ounding o the state B. Te Proclamation o Statehood and the passing o the Law o Return 23

. Te Proclamation o Statehood

. Passing the Law o Return 2.1. Te separation o the Law o Return rom the Citizenship Law 24

. . Te main provisions o the Law o Return

. . Te acquisition o citizenship by virtue o return as opposedto naturalization based on the Citizenship Law

C. Aliyahpolicy in the State’s rst decade

Chapter wo: Te Principle o Return: Presentationand Justi cation

A. Introduction B. Justi cations or the principle o return as a law o repatriation

. Sel -determination and preserving the character o a community

. Afrmative action

. International law

. Te practices o states C. Te historical argument against the principle o return

. Te status o the principle o return in light o the case or theillegitimacy o the ounding o the state

. Te Law o Return and the Palestinian “right” o return



D. A time limit on the principle o return? E. Conclusion

Chapter Tree: Speci c Arrangements Pertaining to Return A. Introduction B. Who is a Jew?

. Te rst years

. Judicial ruling and legislation in the s . . Te Rufeisen A air: “Brother Daniel” ( ) . . Te Benjamin Shalit A air ( ) . . Te Amendment to the Law o Return

. Te conversion debate C. Aliyahsince the s

. Individuals who are eligible or Aliyahand are not Jews

. Beta Yisrael and the debate over the Falashmura

. Te Stamka a air: the right o a citizen to convey status toa oreign spouse

. Methods o encouraging Aliyahand the stringent veri cationo eligibility and Jewishness o Aliyahcandidates

. . Veri ying the Jewishness o olimand Aliyahcandidates

. . Policy o encouraging Aliyah

. . Te Israeli public administration’s treatment o the questiono the Jewish identity o olim

. Statistics

Chapter Four: A Critical Discussion o the Speci c Arrangements or Return A. Introduction B. Te principle o return: a right to make Aliyahor a

consideration o pre erence? C. Who should be “eligible or Aliyah” ? D. What should be the rights o a “member o the Jewish people”?

. Immediate and automatic citizenship or naturalization with conditions?

. Te right to pass on a status to amily members E. Legal principles and immigration policy

Chapter Five: Summary, Conclusions and Recommendations A. Te principle o return B. o what extent has Israel ul lled the promises included in the

Proclamation o Statehood? C. Specifc arrangements pertaining to return and immigration policy 120D. Te level o legal regulation: Constitution, law, administrative

directives and administrative discretion

Epilogue

Notes

Sources

Appendix: Te Law o Return o 1950





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Executive Summary Introduction

Jewish Aliyahand kibbutz galuyot (the “ingathering o the exiles”) are twoo the primary goals o the Zionist enterprise and o the State o Israel. Te

Law o Return is the political and legal instrument through which theState o Israel has sought to ul ll these ideals. Tis law is perceived by many as one o the major expressions o the state’s Jewishness. Te Law o Return

serves as a ocus or controversy, both with respect to the justi cation orthe pre erence given to Jews in Israeli immigration policy, and with respectto the internal Jewish question regarding the essence o the Jewish collectiveand the standards or identi ying its members or or becoming one. Tisposition paper addresses these topics.

Chapter One: Aliyahand the Law o Return

Aliyahand the struggle or Aliyahbegan years be ore the oundation o thestate. With the Proclamation o Statehood the gates o the country wereopened to Jewish immigration, and Aliyah rom numerous overseas com-munities began immediately. It was only two years later, in , that thepassing o the Law o Return established that “Every Jew has the right tocome to this country as anoleh.” In the state’s rst years, despite the war andthe difcult situation in the country, tens o thousands made Aliyah romevery corner o the world. Te state worked to bring many communities

in distress to Israel and ound a variety o ways to assist their immigration.Te numerous problems o immigrant absorption which accompanied thelarge waves o Aliyahin those years led to controversy among policy makersregarding the perpetuation o a large-scale Aliyahand even led to noticeableshi ts in policy. And indeed, the priorities were not consistently applied. Telaw’s statement that “Every Jew has the right to come to this country as an



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Te Law o Return at Sixty Years: History, Ideology, Justi cation

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Executive Summary

sustained by the population living in the territory which they wanted, andthat the recognition o the principle o return or Jews is inconsistent withthe act that Israel ails to recognize the “right” o return to Israel o thosePalestinians who had lived in the territory o the state be ore the War o Independence, and o their descendants.

Chapter Tree: Speci c Arrangements pertaining to ReturnIn this chapter the arrangements or return which have been enacted in

the law and in its various amendments, in rulings, and in practice, are sur-veyed with the understanding that it is difcult to analyze and evaluatethese arrangements without taking into account the context in which they

were created and the implications o their application. Tis evaluation isundertaken with regard to three topics:1) Te identi cation o the group o individuals eligible or Aliyah – a discussion o the original attitude o thelaw and the manner in which it was amended ollowing the rulings in thecases o Ru eisen(Brother Daniel) and Benjamin Shalit : Te de nition o “Jewish” took on a halachic basis while eligibility or Aliyahwas extended toinclude three generations o a Jew’s descendants and their spouses. Te eli-gibility o a Jew’s descendants and o their spouses is not dependent on the

Jew who entitles them to make Aliyah. 2) Te characteristics o the right tomake Aliyah – the right to make Aliyahbestows immediate and automaticcitizenship upon the person making Aliyah, as well as the right to bring rela-tives to Israel, according to the Law o Citizenship. Tis is in additionto certain bene ts, economic and otherwise. 3) Te policy and practice o encouraging Aliyah – the conduct o the Israeli government, not only as abody responsible or the integration o immigrants but also as a promotero and catalyst or Aliyah rom Jewish communities all over the world, willbe examined.

oleh” was not taken as requiring an unlimited Aliyahpolicy. Te actual ex-tent o the Aliyahwas not determined exclusively, or even primarily, by theprovisions o the Law o Return, but rather by the Aliyahpolicy institutedby the government.

Chapter wo: Te Principle o Return – Presentationand Justi cationTe meaning o the principle o return (as opposed to thespeci c arrange-

ments contained in the law) is that within the ramework o the immigra-tion policy it is acceptable and correct to pre er members o the Jewish peo-ple. Te primary objection raised against the principle o return is that it is aracist principle which discriminates on the basis o religion or ethnicity. Tischapter presents the general justi cations or the principle o return, whileaddressing the criticisms against it. Te central claim presented in this chap-ter is that the principle o return is justi ed by virtue o the undamentalprinciple o sel -determination, which justi es both the establishment andcontinued existence o a Jewish nation-state as well as the right o memberso the Jewish people to lead a ull Jewish existence in such as a state. Justi -cations such as these are the basis o the immigration pre erence granted tothe majority ethnicity in other nation-states as well; and these justi cationsare recognized by international law. Te large-scale concerted e ort to bring

Jews to Israel can also be justi ed, at least up until a certain point, by theneed to “remedy” past injuries – persecution, and even genocide – rom

which Jews have su ered throughout their history on account o the actthat they have not had a nation-state. Tis enterprise helps in that it createsa territory in which Jews can live and ul ll their right to sel -determination.In this chapter the objections against the Law o Return raised in light o theextended con ict between Jews and Arabs are also examined – and rejected.In this context we will examine the objections that Jews should not have ex-ercised their own right to sel -determination in view o the inevitable injury



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Executive Summary

other applicants. Te right to grant status in Israel to relatives also needs tobe reviewed in accordance with the goals and justi cations or the principleo return. Such an examination indicates that the original phrasing o theLaw o Return is pre erable to the provisions o the law resulting rom itsamendment. Nonetheless, it is o ten possible to achieve the desirable stateso a airs by modi ying the relevant policies without necessarily changing theprovisions o the law themselves.

Chapter Five: Summary, Conclusions and RecommendationsIn the sixty years o its existence, the State o Israel has absorbed millions o Jews who have made Aliyah rom around the world. In this way the state hasaccomplished one o the most important goals o Zionism:kibbutz galuyot .It is essential or the state to return even now to a discussion o the centrality o this ideal and its in uence on the image o the state and its policies. It isimportant that these discussions be re ected not only by low-pro le policy decisions. Tis requirement concerns both the policy with regard to encour-aging Aliyah rom Jewish communities, as well as policy decisions regardingthe encouragement o Aliyahamong non-Jews eligible by virtue o the Law o Return, or among communities whose Jewish identity is disputed and

where there are wide cultural gaps separating them rom the Jewish com-munity in Israel. Tese decisions should not be ramed as humanitarianquestions regarding the uni cation o Jewish amilies whose members wishto make Aliyah, but rather as strategic questions with a potential in uenceon the demographic make-up o the Israeli population.

Israel needs to re-examine not only the provisions o the law , but itsimmigration policy as well. Israel needs to make in ormed and clear deci-sions regarding the subject o encouraging Aliyahand to distinguish clearly between the absorption o olimwho initiate their own Aliyah, and the deci-sion to adopt state initiatives or its acilitation. It is important to maintainapproaches to immigrant integration which are adjusted to the needs o the

Chapter Four: A Critical Discussion o the Speci c ArrangementsPertaining to ReturnIn this chapter we survey a ew problems in the existing legal arrangements,in light o the situation described in Chapter Tree through an examinationo the application o the justi cations – which have been presented or theprinciple o return – to the existing arrangements.First o all , accordingto the justi cation which bases the pre erence or Jews on the principle o sel -determination, it would seem that on the one hand the characterizationo Aliyaheligibility according to the law is too broad and includes numer-

ous people who lack any connection to the Jewish people or to its nationalhome; on the other hand, the characterization o “Jewishness” according tothe law is too narrow and excludes individuals who actually have a strongconnection to the Jewish people but who nonetheless are not considered

Jews by part o the Orthodox religious leadership. Te amendment to thelaw which was passed in (Law o Return [nd Amendment] )does indeed grant the right to make Aliyah to the vast majority o those

who are not considered Jewish by the Orthodox establishment, but it doesso at the price o labeling them as “non-Jews.” While the signi cance o thislabel is mainly theoretical and symbolic and not practical, it nonethelessgreatly in uences the sel -perception o the Jewish collective and its right tosel -determination. It also has ar-reaching social rami cations with respectto the integration o immigrants, and a ects the social characteristics o the population living in Israel. Second,even with respect to those eligible

or Aliyah it is advisable to maintain the basic distinction between Aliyah and receiving citizenship, so that the pre erence granted by virtue o theLaw o Return be expressed only in eligibility or Aliyah(that is, enteringand settling in Israel) and not through the automatic acquisition o Israelicitizenship. It would be pre erable to require that acquisition o citizenshipby olimbe granted only i appropriate conditions are met – or instance aperiod o residence in Israel, integration into its social and economic li e,and a declaration o loyalty - as is the practice with the naturalization o



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individuals and groups eligible or Aliyah in order to preserve the hithertoimpressive achievements o this integration. Upon establishing an immi-gration and integration policy or those eligible or Aliyah, it is essential toavoid abusive behavior aimed at those who do not meet the approval o aparticular minister or civil servant. Te conclusions chapter also discussesthe question o the level o the legal arrangements on return (constitutional,statutory or administrative) in the event that an Israeli constitution will in

act be adopted.Tis being said, the current position paper does not propose legislative

changes in the provisions o the law regarding the immigration o Jews andtheir amilies, and this is or a number o reasons.First , the highly sensitivecharacter o the Law o Return;second , the extent o the current Aliyahisrather limited, and it appears that this situation will continue; third , mosto the suggested changes can be made on the policy level, with no need or alegislative change; nally, the main challenge at hand is actually how to deal

with the success ul integration o individuals already in Israel.

Pre ace

A. IntroductionTis position paper is based on a lecture which I delivered as part o a lectureseries at the Cherrick Center at the Hebrew University o Jerusalem, devot-ed to the sixtieth anniversary o the Israeli Proclamation o Statehood. Telecture ocused on an evaluation o Israel’s ul llment o the commitments

which it took on itsel in that document. Te relevant section o the declara-tion opened with the ollowing sentence: “Te State o Israel will be open to

Jewish Aliyahand kibbutz galuyot .” Only a terwards came the universal com-mitments to the values o the state and to the protection o human rights init. Kibbutz galuyot and the renewal o Jewish independence in the Land o Is-rael were indeed listed as the most important goals o the Zionist enterprise,the culmination o which was the oundation o the State o Israel, and they

were part o the most basic eatures o the state’s Jewishness. Te Law o Return was the political, symbolic and legal instrument with which thestate ul lled its obligation. While the struggle or Aliyahdated rom the very beginning o the Zionist enterprise, the State o Israel nonetheless needed toimplement an active policy o encouraging Aliyahimmediately upon the endo the British Mandate and the issuance o the Proclamation o Statehood.Te Law o Return was passed only two years later.

oday, the debate about the Israeli policies orkibbutz galuyot and Jew-ish immigration centers on the Law o Return and the connection betweenit and the Citizenship Law, which regulates the acquisition o Israelicitizenship by individuals who acquired it through Aliyahas well as those

who obtain it in other ways.

B. Te subjects o the position paperIn this position paper I re-examine the question o Aliyah according to the Law o Return. I ocus on the ollowing our subjects:



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Pre ace

• A description of the place that theideal o kibbutz galuyot and Jewish Aliyah holds in the Zionist enterprise and the manner in which Jewish Aliyah policy developed be ore the ounding o the state and ollowingit. In the discussion I indicate that the legal ramework is an importantelement o the policy which is in act implemented, but that it does notexhaust or determine it.

• Confronting the question: Was it, and is it still, justi able to adopt theideal o kibbutz galuyot and subsequently the principle o return? Tat isto say, is it justi able to establishin law a pre erence or the immigration

o Jews to Israel over that o other people? Te answer to this question isin the afrmative.

• A review of developments in the Law of Return, including the 1970 Sec-ond Amendment a ter the Supreme Court ruling in the Benjamin Shalit a air, and an account o its contribution to the realities o immigration

rom the moment when it was passed until today.• An examination of the principal features of thespeci c arrangements or

return as they are established in the Law o Return, including a responseto the questions, “Who is entitled to pre erence under the law?” and“What are the scope and characteristics o this pre erence?” Tis criticalexamination reveals that there is tension between some o the speci c ar-rangements or return and the justi cations or the principle o return.

In the position paper I claim that Israel has indeed ul lled its commit-ment that the state be open to Jewish Aliyah. Mechanisms which could, ordi erent reasons, have limited this commitment, despite its enunciation as aprinciple in the Law o Return, were not in act applied – mostly on accounto political considerations. Additionally, according to the amendment,there are individuals, considered to be Jews by part o the public, who enjoy no pre erence under the law, and on the other hand there are – mostly in thepast ew decades – many individuals who are not Jews by any standard andnonetheless bene t rom this pre erence.

Tis position paper supports the continued anchoring in law o theprinciple o return (including the possibility that this principle would beestablished in a uture state constitution). Tis paper does not recommendchanges in the legal ramework pertaining to the question o return whichis currently in e ect, but nonetheless emphasizes the need to re-examine thequestion o Aliyah– o both Jews and non-Jews – with special attention tothose components o policy which do not currently nd explicit expression –and perhaps should not nd such an expression – on the level o the law itsel .



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Chapter One

Aliyahand the Law o Return

A. Aliyahbe ore the ounding o the stateDeliberations on the subject o Aliyahhave accompanied the Zionist enter-

prise rom the beginning. Tey have ocused on the limitations imposed on Aliyahby the powers-that-be or the obstacles to Aliyahand to the success ulintegration o individuals who make Aliyah, and on internal discussions

within the Zionist movement on subjects such as the nature, identity andextent o the pre erred Jewish immigration at every stage o the movement’sexistence.

Te subject o immigration has always been a source o controversy inthe con ict between Zionists and Arabs. Resistance to Jewish immigrationre ected a consistent and even understandable Arab position. Te Arabsunderstood that the Jews wanted to be the majority in the country, and dideverything in their power to prevent them rom succeeding. For the Zion-ists, the aspiration or a Jewish majority was the touchstone or membershipin the Zionist camp.

Even within the di erent Jewish groups there broke out, at the begin-ning o the th century, numerous disputes regarding the entire Zionistenterprise and regarding its implications with respect to Aliyah. While theleaders o the Zionist movement all agreed that an important goal or the

Jewish state should be to serve as a place o re uge open to Jews who wishedto become a part o it, there nonetheless arose not a ew disputes aroundthe question o whether it was advisable to bring to the Land o Israel im-mediately anyone who so desired, or whether perhaps the Zionist enter-prise ought to be a long-term process, one that had to be well prepared by elite “pioneer” orces which had been properly trained. Such orces would

prepare the ground—politically, socially, militarily and economically— orthe establishment o the state and or the absorption o large groups o

Jews.Tis is the backdrop against which we must view Ze’ev Jabotinsky, who

already in the s envisioned a large-scale Aliyah, in opposition to theelitist approach which he believed was held by the leaders o the Labormovement. Jabotinsky called or a mass Aliyahmovement and or the crea-tion o a Jewish majority in all parts o the country, both in order to rescuethe Jews o Europe and to build a demographic “iron wall,” since this alone,

in his opinion, would make a stable Jewish state possible. In this state, Arabs were to be entitled to dignity, equal rights and an independent status as aminority in the Jewish state. We should mention that other Zionist leadersas well, including Herzl, were concerned about the ate o European Jewseven be ore the Holocaust, and that this concern lay at the center o theirreadiness to consider the Uganda proposal. We should also mention thattheir concerns or the physical well-being o the Jews o Europe were by nomeans a prediction o the extent o the Holocaust, and that undamental toZionist thought was also the deep interest in creating conditions or a ull

Jewish existence which would not be possible in the Diaspora.During the Mandate period the British government set the immigration

policy, and the Aliyahactivity o the JewishYishuv institutions took place orthe most part within this ramework. Te policy o the Mandate also under-

went shi ts resulting rom developments in Palestine, in the region and inthe world. Te immigration policy o the Mandate government was based,until July , on the principle o the economic absorption potential o the country without damage to its social make-up. Following the Arabuprising which occurred rom - , and ollowing the recommenda-tions o the Peel and Woodhead Commissions, which were not approved,the policy was radically altered. Te new policy was published in the “White Paper,” which established severe limits on the continued immigra-tion o Jews to the country. Te struggle against this restrictive policy unitedall the groups o the Jewish community, who demanded “ ree Aliyah.” (Te



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groups were divided with regard to cooperation with the British in the ghtagainst the Axis Powers.)

Te struggle or Jewish Aliyahyielded impressive results. In , atthe beginning o the period o Aliyot and the new settlement in the spirit o Zionism, , Jews lived in the country. Within years, in , there

were , Jews living in the country. Te success o the Jews in creatinga critical mass o Jews who generated an impressive activity o settlementand industrialization was one o the main reasons or the Peel Commission’srecommendations or the partition o the country and or the establish-

ment o a Jewish state in part o it. By the s, Ben-Gurion also beganto support the mass Aliyaho all who wished to come. Ben-Gurion judgedthat in this way it would be possible to rein orce the strength o the Jew-ish community, and thus greatly impede any possibility o an anti-Zionistsolution to the Palestine question upon the end o the Mandate. Indeed,Ben-Gurion’s concept, according to which huge masses o Jews should bebrought to the country a ter the Second World War just because they were

Jews, gained a broad consensus. Tis consensus stemmed not only rom thenational interest or rom the eeling that this was a one-time historical op-portunity or Zionism to ul ll its goals, but rather rom the understandingo the terrible calamity which had be allen the Jews o Europe. Te idea o “selective Aliyah” became anachronistic during the war and did not suit thenew situation. Humanitarian and political considerations, as well as histori-cal timing, clearly tipped the scales in avor o the immediate adoption o the Land o Israel as a place o re uge or those uprooted by the war, andbrought about the unequivocal rejection o the pre erred model o some o the leadership: limited and slow Aliyah or the purposes o building a new society o workers and settlers.

B. Te Proclamation o Statehood and the passing o theLaw o Return1. Te Proclamation o StatehoodTus it is not surprising that the third part o the Proclamation o Statehoodopens with the issue o Aliyah, and states the ollowing:

Te State o Israel will be open to Jewish Aliyahand kibbutz galuyot , willstrive to develop the country or the bene t o all o its inhabitants, and will be ounded on the principles o liberty, justice and peace in light o the vision o the prophets o Israel; will maintain a complete equality o social and political rights or all o its citizens, regardless o religion, raceor gender; will insure reedom o religion, conscience, language, educationand culture; will preserve the holy places o all the religions, and will be

aith ul to the principles o the United Nations Charter.

Te rst part o the opening sentence contains the only speci cally Jewishelement in all o the third part o the document. While the principles o liberty, justice and peace are ascribed to the vision o Israel’s prophets—and not to humanistic or international principles o ethics—all o the othercomponents o the paragraph are universal. Indeed, in the debate in thePeople’s Council be ore the rati cation o the document, it was said that thissection expressed the Israeli response to the demands made o the two statesby the General Assembly, and reiterated in the Partition Resolution. In this

way the declaration sought to link the particularistic-national character o the Jewish state with universal equal rights and liberty. Accordingly, as op-posed to the other parts o this passage, the clause “will be open to Jewish

Aliyah” expresses the Jewish aspect o the declaration, which is distinct romits democratic and universal aspect.

As we have said, it is one o the goals o this position paper to determineto what extent the vision o this declaration has been realized. I shouldstate that, along with the Proclamation o Statehood, the rst legislationpassed by the institutions o the s tate removed the limitations imposed by the Mandate government on Aliyah; the country’s gates were opened wide



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and the State o Israel intensi ed its e orts to encourage Aliyah rom variouscountries.

2. Passing the Law o Return. Te separation o the Law o Return rom the Citizenship Law

Te Law o Return, which is brie and and ceremonial in nature, was rati-ed in the Knesset over the course o two days, on the th o July , the

twentieth day o ammuz , on the memorial day or Herzl, the man who envisioned the state. But its passing was the culmination o a long and

drawn-out process.Shortly a ter the ounding o the state, discussion o the legal arrange-

ments regarding citizenship and Aliyahcommenced. Te aim was to pass aCitizenship Law which would not explicitly distinguish between Jews andnon-Jews. Seventeen proposals, processed by the Ministry o Justice anddiscussed by the provisional government and its various committees, pre-ceded the proposal or the combined Citizenship Law, which was broughtbe ore the First Knesset on July , . Te Ministry o Justice re rained

rom proposing a special privilege or Jews making Aliyah, and stuck to itsproposals or a “neutral” Citizenship Law. Tus, the explanatory notes orthe seventeenth proposal reads: “Te law re rains rom discrimination. ) Itdoes not discriminate according to race, ethnicity, religion, language or gen-der. ) It does not distinguish between Jews and non-Jews.” Te pre ace tothe same proposal reads: “Accordingly, Israeli citizenship is not contingenton membership in the Jewish people or the Jewish religion or the Jewish na-tional movement, and on the other hand such membership is not sufcientto con er the status o Israeli citizenship.”

Te encouragement o Jewish Aliyahwas supposed to be accomplishedby means o immigration policy . Te condition or acquiring citizenship

was a permanent residence permit which was to be granted to Jews eas-ily and quickly, according to the discretion o the Ministry o the Inte-rior. Although the conditions or acquiring citizenship were also supposedto be neutral, the proposed law opened a airly wide window or releasing

individuals or groups rom some o these requirements. Tis approach wasstable, and was supported by legal and public statements made by leading

jurists such as Pro . Benjamin Aktzin and Pro . Nathan Feinberg.Te turning point came in the wake o the decisive intervention o Ze-

rah Warha tig, who was the director o the Institute or the Study o JewishLaw in the Ministry o Justice. Warha tig believed that the law should stateunequivocally the principle that a Jew “returns” to his homeland and is notan immigrant like all other immigrants. In a memorandum submitted tothe Minister o Justice on December th, , in response to the th

proposal or the Citizenship Law, Warha tig wrote:It is inevitable that the Citizenship Law in the State o Israel will strug-gle with the apparent contradiction between two undamental principleso the state: a) the ingathering o Israel’s exiles; b) the guarantee o equalrights or every citizen and resident. Te realization o the goal o Zion-ism—kibbutz galuyot —requires a special stance toward Aliyah rom the Jewish Diaspora and the naturalization o its immigrants. Tere is a needand a necessity to give expression to this stance in law. Every disregard oror an attempted neglect o the quest or an appropriate way to underscorethe principle o kibbutz galuyot in law, out o ear o creating a disparity o treatment between Jews and non-Jews, will only pass the core o theproblem on to the administration. Apparent discrimination will perhapsdisappear rom the law, but not rom li e. Camou aged discrimination is

ar worse than open and clearly de ned discrimination. Leaving the or-ganization and ormal arrangement o these matters in the hands o thegovernmental administration is likely to undermine the rule o law in e -

ect in the country, and will undermine the principle o equal rights at thestage o execution, which is the critical stag e o any law.

Warha tig believed that it was necessary to separate the general CitizenshipLaw rom another special law, which would be called the “Law o Kibbutz Galuyot ,” which would de ne who was anoleh(i.e., an individual making

Aliyah), and the essence o which would be the principle that every Jew making Aliyah in order to settle in the country should be viewed as an



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individual returning to his or her homeland. An oleh, according to Warha tig’s proposal, would receive an “olehvisa” as opposed to an “immi-grant visa” which would be given to other immigrants. In the CitizenshipLaw a special clause would establish the automatic naturalization o olimonthe basis o the Law o Kibbutz Galuyot . Warha tig rejected the objectionthat such a law was discriminatory. While a democratic state must maintainequal rights or its citizens, he acknowledged, this does not apply to those

wishing to immigrate to it, and every state is at liberty to determine its ownprinciples o immigration.

Indeed, the government rejected all the earlier proposals, pre erring in-stead Warha tig’s position, which encompassed two separate law proposals:the proposal or the Law o Return and the proposal or the CitizenshipLaw.

. . Te main provisions o the Law o Return Article o the law states the principle o return decisively and clearly:

Every Jew has right to come to his country as an oleh.

Tere are our principles in this article:• Te article confers theright to make Aliyah—the right and not just the

reedom to do so. It is a right in the sense that it is orbidden to preventa Jew rom exercising it. Nonetheless this declaration does not state thatthe State o Israel mustassist Jews who wish to make Aliyah, and i so—to

what extent.• Te right is not to become a citizen, but ratherto make Aliyah—that is, to

come to Israel and to settle there.• Te article does not de ne who is a “Jew” for the purposes of this right.• Te right to return refers to the historical territory called “the Land of

Israel,” and not to the legal jurisdiction o the State o Israel.

Despite the broad and symbolic de nition in Article , the legislaturechose to limit eligibility or Aliyahby some additional requirements, which

were speci ed in the second article o the law.First , the law creates a pro-cedural barrier when it states that “ Aliyahshall be by oleh’s visa”, the latterbeing granted by the Minister o the Interior. Tis barrier can be o practi-cal signi cance, since it apparently grants the minister broad discretion re-garding Aliyah. It is not clear i the authority to grant or not grant a visa waslimited to determining whether all o the conditions established in the law had been ul lled. Second , the law states that the minister will not grant

the visa i he learns that the applicant “is engaged in an activity directedagainst the Jewish people” or “endangers the public health” or “the security o the state.”

Already at the time o the dra ting o the original law, there was debate con-cerning limitations on Aliyah. Tere were those who objected to the state-ment that Aliyahwould be limited by means o the administrative actiono granting a visa and saw in this an immediate violation o the principledeclared in Article . Others objected to the criteria established by the law as the basis or rejecting a visa application. Tus MK Yaakov Gil (GeneralZionists) said in the course o the legislative debates:

Te Law o Return, which is a historic law, is not the proper place tospeci y that the AliyahMinister […] can prevent the entry o a Jew into theState o Israel, on the grounds that he has acted against the Jewish peopleor the State o Israel. I he is a criminal, he should be brought to the coun-

try and put on trial here […]. Te second clause is more problematic, inthat it seeks to prevent the Aliyaho an individual likely to jeopardize thepublic health […] [I] there is a sick Jew outside the country, he should bebrought to the State o Israel in order to heal him, or to quarantine him,so that he will not endanger the public health […] [ ]he prevention o the Aliyaho an individual who is likely to endanger the public sa ety—I donot understand this. Why do we have prisons? I a person threatens thepublic sa ety, he should be isolated, he should be arrested, and then he will



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not threaten the public sa ety. It is not possible to punish a Jew or somecrime or or some de ect by denying his right to make Aliyah.

In the same spirit MK Benjamin Minz (United National Front) asked:“Supposing a Jew is guilty, what are his children guilty o ?”

Against these objections Ben-Gurion responded:

Tere is nothing better or the people o Israel than Zionism, but oolishZionism is not good or the people o Israel […] I object to the statements

o MK Gil who said that i there are criminals or prostitutes or crazy peo-ple we should bring them here and put them in prison or in a hospital. Weare not building a prison or an insane asylum; we are building a promisedland or the people o Israel.

Nonetheless, the substantive restrictions o the Law o Return are relatively narrow and certainly do not leave room or political considerations such asthe absorptive capacity o the country, the economic or pro essional abilitieso theolim, or their actual capacity to contribute to the project o establish-ing a Jewish state in Israel. It appears as i the Law o Return ruled very clearly against a policy o selective Aliyah, but in practice the deliberationsin the government about Aliyahpolicy and its timing continued even a terthe passing o the law. It would seem there ore that the Minister o theInterior was permitted to prevent the entry o a Jew who had arrived in thecountry and was requesting entry solely or the reasons listed in the law; butthe government (and the minister) had a wider discretion with regard toinitiating Aliyahor active assistance in bringing eligible individuals to Israel.Tis discretion there ore went beyond these reasons.

It is important to note that in the deliberations on the Law o Returnthere was no debate about the very justi cation or pre erence or Jews in

Aliyah. Tis was sel -evident. Te question was: Who should decide about Aliyaheligibility and about its limitation? Te concern was not only withrespect to the unjusti ed limitation o the principle o reedom o Aliyah,

but rather with respect to the abuse o the power given to the government orto one o its ministers or with respect to the generation o bureaucratic di -

culties. Te concern about the abuse o power was based on the objectionsraised against Aliyahpolicy in the past: the ear that the authorities wouldpre er to bring their political or social associates and would prevent or limitthe Aliyaho others.

We will conclude by brie y addressing Article o the law, the impor-tance o which will become clearer later. Article states:

Every Jew who made Aliyahbe ore this law came into e ect, and every Jew born in the country either be ore this law came into e ect or a terwards, is to be treated as one who made Aliyahaccording to this law.

Tis Article creates a ction in that it includes in the group o olimaccord-ing to the Law o Return three di erent groups o Jews who are notolimac-cording to the law in the normal sense o the word: a) Jews whomade Aliyah be ore the law; b) Jews whowere bornin the country be ore the law; c) Jews

who will be born in the country a ter the enactment o the law. Whereasthe rst two groups were “static,” and their members could be identi ed atthe moment o the law’s passing, the third group was dynamic and not lim-ited in time. Te justi cation or this provision was that it created a sort o common destiny among Jews. Tus the right o return o one who has usedit in the past was symbolically equated with the right o olim in the uture.Te article created a ction which applied the law to past generations and

uture generations alike. Tis article, when read together with Article o the Citizenship Law (see below), meant that the acquisition o citizenshipby virtue o the Law o Return did not necessarily require the applicant tobe an “oleh.” Every Jew ever born in Israel received citizenship by virtue o the Law o Return. A reservation regarding this article was raised by MK Meir Wilner, who claimed that the logic o the article became clear whenone combined it with the provisions o the Citizenship Law (which by now

was separated rom the Law o Return), and that it had a serious impact inthat it distinguished between the automatic granting o citizenship to Jews



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and the conditional granting o citizenship to Arabs born in the country be ore or a ter the law.

At the end o the deliberations in its rst reading it was agreed to “ab-breviate procedures” regarding the Law o Return in order to enable therati cation o the law the next day. Be ore that, it had been decided toseparate the Law o Return rom the Citizenship Law, some o whose pro-visions were controversial, and which was passed only two years later. TeLaw o Return did come up or a second and a third reading the next day,and was unanimously accepted by the Knesset—a ter a discussion about

some reservations (most o which were dismissed)—and with a great senseo celebration. Despite this eeling, the Law o Return wasnot de ned asa “Basic Law,” and Ben-Gurion rejected a proposal to entrench it (that is,to limit the power o a uture Knesset to change the law). Tis was becausethe law was rati ed a short time a ter the Harari decision, which suspendedthe adoption o a constitution. Ben-Gurion did not wish to return to thisdebate and to enact entrenched laws.

. Te acquisition o citizenship by virtue o return as opposed to naturali-zation based on the Citizenship Law In order to obtain a complete picture o the arrangements concerning Ali-

yah and the naturalization o Jews in Israel, it is also necessary to examinethe provisions o the Citizenship Law, which as we have said was passedonly in . Te Law o Return itsel does not deal with the granting o citizenship, but rather only with Aliyah. Te Citizenship Law completesthe ormal arrangements and states in Article (a) o the law: “Every oleh by virtue o the Law o Return will be an Israeli citizen.” Article

was interpreted as the immediate and automatic bestowal o citizenship onanyone de ned as an “oleh” by the Law o Return. Apart rom citizenshipby virtue o return, the Citizenship Law establishes additional mechanisms

or acquiring citizenship: citizenship by virtue o residence in Israel (Article) was the primary channel through which Arabs who were citizens under

the British Mandate and remained residents in Israel received citizenship.

Citizenship by virtue o birth (Article ) was granted according to theius sanguini according to which an Israeli citizen passes citizenship on to his/her children. In addition to these routes, in which citizenship is grantedautomatically on the basis o certain actual conditions which the individualsatis es, the law states in Article (a) the conditions or the naturalization o an adult. Article exempts certain categories o people rom satis ying someor all o these conditions. Article makes it possible to relax the conditions

or the naturalization o the spouse o an Israeli citizen, or o one who ap-plies or citizenship and satis es the conditions o Article (a) or is exempt

rom them. Article o the law states that the naturalization o an indi-vidual grants citizenship to those o his/her minor children who were in his/her custody or who were residents o Israel or o territory occupied by theIDF on the day o the parent’s naturalization. Article enables the Ministero the Interior to grant Israeli citizenship in certain circumstances.

It should be noted that while the Law o Return deals with theright to make Aliyah, the Citizenship Law distinguishes between automatic citi-zenship and naturalization based principally on thebroad discretiono theMinister o the Interior. Te conditions established in the law structure hisdiscretion, but the law states explicitly that the decision to grant citizenshipis constitutive, and that not everyone who satis es the conditions stated inthe law will in act be naturalized. Likewise the law requires the naturalizedindividual to swear loyalty to the state.

C. Aliyahpolicy in the State’s rst decade With the Proclamation o Statehood on the th o Iyyar (May th,

), and despite the War o Independence being waged against the armieso the neighboring Arab countries, the gates o the country were opened

wide and a diverse and extensive Aliyahbegan to ow into Israel. Te situa-tion in which the Jewish community was struggling with the British govern-ment to permit the entry o Jewisholimhad come to an end. Te State o Israel invested considerable e ort and resources in order to acilitate Aliyah



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and in order to integrate those who arrived, while bearing the entire burdeno the monetary expenses incurred in this titanic enterprise. Indeed, a terthe Proclamation o Statehood the tide o the Aliyahexceeded the expecta-tions. In the thirty months between the Proclamation o Statehood and themiddle o , more than hal a million Jews made Aliyah( , - ,olimper month). Tus, over the course o the rst three years o the coun-try’s existence the Jewish population in the country was doubled.

Israeli oreign policy in the rst years walked on a tightrope betweenEast and West. With the intensi cation o the Cold War this was no easy

task. One o the important goals o the nation’s relations with the countrieso the Communist Bloc was to obtain permission or the Aliyaho Jews

rom Eastern Europe. In Eastern European countries Foreign Ministry per-sonnel collaborated with people rom “Te Institute or Aliyah.” Some o them did so in the context o their diplomatic work in the same countriesand some o them did so secretly. Te subject o Aliyahwas linked morethan once with trade agreements in order to conceal the giving o a bribe toenable the departure o Jews. Tese agreements, which involved very largesums, could not take place without the assistance o the Joint, which wasthe primary nancing body. From onwards Israel clearly aligned itsel

with the Western Bloc countries, and this had a decisive impact on the con-tinued Aliyah rom the Communist Bloc countries.

Te activity o the Foreign Ministry in Islamic countries was completely di erent. Tese countries identi ed with the Arab struggle against Israel andsaw themselves as being in a state o war with the young state. Moreover, na-tionalist movements began to awaken in the Muslim countries at this time,and the treatment o the Jewish communities in these countries gradually began to deteriorate. In these cases contact was maintained through Franceor through Britain, depending on which o them controlled the Arab coun-try in question.

Te rst wave o Aliyahbrought with it mostly olim rom the displacedpersons camps in Germany, Austria and Italy, who had been saved romthe atrocities o the Second World War. A ter October a new wave

o Aliyahbegan, which almost completely emptied entire Diaspora com-munities.

While in Israel the large Aliyah had been eagerly awaited, there wasinsufcient preparation or it. Te conditions o war and the disruptedeconomy greatly impeded the absorption o the multitudes o olim. For thepurposes o temporary housing, immigrant camps were built in the aban-doned British Army camps, and tents and shacks were acquired. In lighto the situation, the government discussed the question o limiting Aliyah.Te Minister o Aliyah, Hayim-Moshe Shapiro (NRP), warned against an

uncontrolled Aliyah. Shapiro wished to make Aliyah dependent on the se-curing o sources or its unding:

Tere must be some regulation o the Aliyah. A kind o regime under which not everyone who wants to can load Jews up onto a rickety boat andbring them to Israel even i they are eighty years old. Tis is not a regimeo Aliyah, this is a regime which will inevitably lead us to catastrophe, i people getting o the boat now roam without a bed and without a mat-tress and without a blanket. […] I am also in avor o a large Aliyah, butdepending on which Aliyah, how it is directed, and how it is chosen.

o those who insisted on limitations, Golda Meir(son) objected ercely:

Tere is a state which was ounded or nothing else besides the absorptiono Aliyah. And i it was not ounded or this reason, it is not necessary.Tere is no place or a debate on limiting Aliyah.

And indeed, the waves o Aliyah continued. Tey were not preceded by planning at the executive levels o the government, in discussion rooms orby other bodies. Tis is because the contacts took place in dozens o placessimultaneously, and it was not possible to predict when and where the gates

would open and what would be the number o those leaving.Te Aliyahcontinued o and on throughout the s as well. Fol-

lowing the difculties aced by the previous mass Aliyah, the governmentand the Jewish Agency decided to limit Aliyahand to lter it based on



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the criteria o age, health and tness or productive labor; but with respectto countries where there was a danger to the lives o Jews or where there

was a ear that the exit gates would suddenly close, these limitations wereremoved. Accordingly, the communities rom the Islamic countries and

rom the communist countries, where Jews were persecuted, were includedin the category o “rescue Aliyah” and were not limited. Nonetheless thedecisions about which country was a country in distress and which com-munity was more urgently in need o rescue were difcult and the subject o constant debate within the government.

In conclusion: While the ofcial policy was that “the State o Israel will beopen to Jewish Aliyahand kibbutz galuyot ,” nonetheless some members o the government and the Jewish Agency objected tobringing a large Aliyah all at once, without limits and without regard or the personal and eco-nomic situations o theolim. Tose who dissented believed that it wouldbe wrong or the government toinitiate a mass Aliyah, since it lacked thecapacity to ensure the conditions essential or their absorption. Since only aminority o theolimarrived independently and without the assistance o thestate, the opponents o unlimited active initiation o Aliyahinsisted that thescope o Aliyah t the absorption capacity. But the implementation o deci-sions regarding the limitation o Aliyahin the rst decade o the country’sexistence was characterized by inconsistency resulting rom the consensusthat it was unacceptable to abandon communities in danger and on accounto the inability to determine the extent o distress and the urgency o bring-ing each community. In the end, the Aliyahto Israel continued in the rstyears almost without limit. Te State o Israel not only permitted almost

ree Aliyah, but also o ered assistance during all o its stages: rom encourag-ing entire communities to pull up their roots, to nancing travel expenses,to dealing with the absorption processes in Israel. Not only Zionist ideology accounts or this situation, but also the pressure o time. Te leadershipacted as i it had be ore it a one-time opportunity that was likely to come to

an end at any moment. Te ear that the “iron curtain” would come downand would block the path o large Jewish communities was very present inthe minds o policy makers. Te dimension o time was also o the essence

with regard to developments within the State o Israel. Ben-Gurion soughtto solidi y a Jewish majority in the country as quickly as possible in order tode eat diplomatic decisions that would be likely to harm the young state.

It is interesting to note that, in all o the discussions on the subject o Aliyahpolicy and the connection between Aliyahand optimal absorptive ca-pacity, there was almost no mention o the provisions o the Law o Return!

Te governments o Israel did not see themselves as prevented by this law rom maintaining an immigration policy which limited the acilitation o

Aliyahand its active initiation. Tis subject deserves special emphasis. TeLaw o Return carries with it a substantial symbolic meaning, but mostly itis a clear declaration that there will be no legal power in Israel to impose aprohibition on Jewish Aliyah, such as had existed during the Mandate pe-riod. According to this reading, the truly binding e ect o the law pertainedto instances o Jews who arrived on their own and knocked on the gates o the State. Te law was meant to rule out a repetition o the situation whichtook place during the Mandate government a ter the issuance o the WhitePaper.

Nonetheless, Aliyahwas based to a large extent on the aid extended by the government agencies and at times even began at their instigation. Tisaid and initiation were not based on the principle o return alone, but ratheron its combination with the ceremonial declaration that one o the purposeso the State isto act to gather in the exiles . Tat is, the State o Israel inter-preted the Law o Return as granting itlegal reedomto apply a policy o

Aliyah acilitation or assistance which would suit its needs, even i politically and publicly it could not always act according to its wishes on this issue. Inother words: the Law o Return does not make discussions o immigrationpolicy with regard to the Aliyaho Jews and o individuals eligible or returnunimportant or unnecessary. We shall return to this important topic later.



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Chapter wo: Te Principle o Return: Presentation and Justi cation

Chapter wo

Te Principle o Return:Presentation and Justi cation

A. Introduction

Te Principle o Return states that it is acceptable and correct in the ramework o Israeli immigration policy to pre er members o the Jewish people.One orm o this pre erence is the principle which today establishes in theLaw o Return that “every Jew has the right to come to this country as anoleh.” Te principle o return is distinguished rom the question o speci c arrangements as they are currently stated in the Law o Return, the Citizen-ship Law, and in regulations regarding Jews and other “individuals eligible

or Aliyah.” In this chapter I will present the justi cation or the principle o return while dealing with the primary objections raised against it.

We have seen that awareness o the tension between the principle o return and a neutral policy o immigration accompanied Israeli legislators

rom the beginning o the legislative process. Justi cations or a principle o return which is not neutral and which leads to a pre erence on the basis o ethnicity were proposed in the opinion given by Warha tig, in Knesset pro-ceedings, and in presentations o the Law o Return in Israel and elsewherein the world. Harsh criticisms o the law and even statements labeling it asa racist law were voiced in certain circles as early as the s. But in recentyears both the justi cation (even i it is at times quali ed) and the criticismhave been the subject o more systematic examination. I should say atthe outset that the Supreme Court, which consistently applies the principleo equality within the State o Israel, has stated that the Law o Return isdi erent, since it deals with “giving the key to the house,” and there orethe principle o equality in the strong sense is inapplicable to the law.

Nonetheless, concerns about a situation in which the Law o Return wouldbe declared unconstitutional because it con icts with the principle o equal-ity are requently voiced in discussions about the adoption o a constitution

or Israel, and various proposals are produced which are intended to preventsuch a situation rom evolving.

Te main justi cation or the principle o return is based on its beingpart o the immigration policy which applies to oreigners seeking entry into the country, and there ore it is not subject to the obligation o thestate not to discriminate between its citizens on the basis o ethnicity or

religion. But is such a distinction really valid? In terms o international law,the answer is yes. But in ethical terms it must be conceded that an Aliyah policy which grants systematic pre erence to Jews over others, and especially a policy which grants Jews the right to come to Israel and receive immedi-ate and automatic citizenship, has an enormous in uence on the wel areo the country’s residents.First o all , such a pre erence in uences naturaldemographic processes, which would perhaps increase the proportion o the

Arab minority in the population o the state to the point o being a majority.Second , the allocation o resources or Aliyahand absorption is likely to beat the expense o the allocation or improving the wel are o the country’sresidents and citizens. Finally , the prevalent assumption in internationallaw that states possess almost unlimited authority to establish immigrationpolicy is itsel morally debatable, mostly on account o considerations o global justice and on account o a concern about inequality among potentialimmigrants.

Tis discussion is divided into two parts: Te rst part will presentthe justi cations responding to the claims that ethics, or international law,prohibit a state rom passing laws that give pre erence in immigration tomembers o the majority community. In the second part we will presentthose justi cations that respond to the claims that even i it is permissible

or states in general to act in this way—it is orbidden or Israel, since at thevery outset Jews had no right to political sel -determination in (part o ) theLand o Israel, and there ore there was no justi cation or the very creation



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o the state by virtue o whose sovereignty it is permissible to give pre erenceto the members o the majority community living in it. Tis is especially the case since the Law o Return is conjoined with the re usal to permit Pal-estinians to return to their homeland and a ailure to recognize their “righto return.” Dealing with this question requires a response not only to thequestion o the adoption o the principle o return in the state’s legislation,

which is an expression o the Jews’ right to sel -determination in the placein which they are now living, but also a response to the objection that Zion-ism, which brought Jews to Israel and made them a power ul ethnic actor

here, is an “original moral sin.”

B. Justi cations or the principle o return as a law o repatriation We have seen that the aspiration to gather in the exiles and to encourage Jewish Aliyahstood at the center o the Proclamation o Statehood and hasalways occupied a central place in Zionist and Israeli policy. But is it a legiti-mate aspiration? All agree that democracy in general, and liberal democracy in particular, must treat all o its citizens equally. Tat being said, interna-tional law recognizes immigration control as one o the important aspectso state sovereignty. Sovereignty cannot justi y every kind o immigrationpolicy, but in general someone who is not a citizen o a country does nothave the right to receive citizenship, and someone who is not a citizen or apermanent resident does not have the right to enter a country.

Despite this broad principle, it is also generally admitted that laws o immigration cannot discriminate and that the reasons or decisions regard-ing immigration should not be arbitrary. It is there ore important to ask directly: Is the desire to give pre erence to the members o the majority community (or o other communities living in the country) over memberso other groups a legitimate consideration or immigration policy? Teoristsare divided on this subject, but it would seem that political philosophy ingeneral supports such a pre erence, or the same reasons that are the basiso the right to sel -determination and the right to preserve the cultures o

communities. Tere is also basic support or such a pre erence in the normsaccepted both by international law and in the practices o many coun-tries.

1. Sel -determination and preserving the character o a community Te main argument in avor o the principle o return is based on the princi-ple o sel -determination. Tis principle recognizes the right to sel -determi-nation o groups and even the notion o the “nation state”—a state in whichthe ethnic majority group realizes its right to sel -determination. Indeed, the

Zionist narrative, which was adopted by the State o Israel, and which wassupported by UN decisions, views the State o Israel as the place in whichthe Jewish people realizes its right to sel -determination.

It is important to remember that the claim in avor o the Jewish peo-ple’s right to sel -determination speci cally in (part o ) the Land o Israel

was not sel -evident, since at the beginning o the Zionist enterprise rela-tively ew Jews lived in the country, and the right to sel -determination wasusually intended to support the will o the people living in a country to casto the yoke o oreign power (whether this power was colonial or the ruleby another people native to the region, as was the case in Europe a ter theFirst World War). But the orce o this argument against the resolve o the

Jews to actualize their right to sel -determination precisely in (part o ) theLand o Israel was greatest during the rst stages o the Zionist enterprise,

when this argument was directed against the beginning o Jewish Aliyah and against the decisions that acilitated it. Te success o the Aliyahmove-ment led to a situation in which there was a strong Jewish presence, whichresulted in international recognition o the right o the Jewish people tosel -determination in (part o ) the Land o Israel in . Te argument

justi ying sel -determination or Jews precisely in the Land o Israel shouldthere ore distinguish between the rst period, be ore there was a prominent

Jewish presence in the Land o Israel, and the second period, a ter such apresence was established. In my opinion, such a justi ying argument—withrespect to both periods—should rely not on biblical promise, but rather on



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the persistent historical and cultural connection o the People o Israel to theLand o Israel, even though it was dispersed in exile or hundreds o years;on the act that only in the Land o Israel has the people enjoyed politicalindependence; and on the act that it could not realize national sel -deter-mination in even one o the other places it which it resided. I shall returnlater on to the argument justi ying the creation o conditions or realizingthe right o sel -determination or Jews in the Land o Israel.

When we discuss the Law o Return (as opposed to the Aliyahactivitieso the Zionist movement be ore the ounding o the state), and especially

when we discuss the Law o Return today, the argument justi ying the pre -erence or Jews stems directly rom the right o Jews to sel -determination.Tis is because the State o Israel does in act grant the Jews living in itunique advantages which are possible only in a place where the right to

ull state-level political sel -determination is realized. One o the most im-portant eatures o such a situation is a stable Jewish majority. Tus Israelis the only place in the world where Jews can live a ull Jewish existence onall levels, political as well as economic. Te public culture o the state is

Jewish-Hebrew. Te state language is Hebrew. Te national holidays andthe public discourse are inseparably linked to Jewish history and destiny. Itis only in the State o Israel that Judaism is not “privatized” and can be parto persons’ identity in their home as well as outside it; and only in Israel do

Jews as Jews need to deal with the problems o war and peace and the useo political power to bene t all the members o the community (both Jewsand non-Jews). Te Jewish community in Israel has become the central andmost prominent Jewish community in the world. Te political, social andeconomic rameworks which the State o Israel has created are importantmostly with respect to non-religious Jewish identity. Secular Jewish identity,

which until only one hundred years ago was seen by some as a short-termand “hollow” alternative to a rich religious heritage, has gained a sphereo action or a Hebrew-Jewish existence which has continued to developand prosper or several generations. Te resurrection o the Hebrew lan-guage and a vibrant existence o Hebrew and Jewish creativity, which is not

limited to the observance o religious commandments, are real accomplish-ments. In Israel young people are growing up with an unmistakable Jewishidentity even though they are not ritually observant and do not maintaina direct or continual connection with the Jewish religious establishment.

While secular Jews living in other countries are subject to a real danger o assimilation, secular Jews living in Israel experience a ourishing o culture,literature, art, thinking and secular Hebrew creativity.

It is important to emphasize that the right to sel -determination, onthe basis o which the ounding o a Jewish nation-state and even the Law

o Return are justi ed,is not a particularistic matter. Tere is no essentialcon ict between Zionism, as the national movement o the Jewish people,and human rights. Quite the opposite is the case. “Te right to sel -deter-mination,” the right to national belonging, to the expression o particular-istic eatures o a society and the demand that others recognize and respectit—this is a universal right, recognizing the importance to all individualso membership in their particular group. Tis is a universal right applicableto all human beings in the context o their national groups, and it is evena undamental and central part o the very idea o human rights. Both theInternational Covenant on Civil and Political Rights (ICCPR) and the In-ternational Covenant on Economic, Social and Cultural Rights (ICESC)open with ormal declarations o the rights o nations to sel -determination.

Article . o both documents reads:

All peoples have the right o sel -determination. By virtue o that rightthey reely determine their political status and reely pursue their econom-

ic, social and cultural development.

We have seen, there ore, that the right o the Jewish people to sel -de-termination is the right o Jews to live a ull Jewish existence in nation-al-cultural terms. Tese two rights—the collective right and the right o individuals—are likely to lead to the ormulation o an immigration pol-icy which gives pre erence to Jews and to permit a state to institute suchpre erences despite the presumption that even immigration policy should



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maintain the principle o non-discrimination. Tis is the case both becauseo the need o the Jewish collective in Israel to continue to be a majority inits own country, and because Jewish individuals have a distinct interest inthe reedom to live in their national home and to contribute to its establish-ment. Te state is permitted to respect this interest by giving pre erenceto Jews who seek to join its ranks. Both o these arguments were cited inBen-Gurion’s comments on the Law o Return.

In contemporary political philosophy there is a debate over the questiono pre erence or the immigration o members o the state’s majority com-

munity not only with regard to “ethnic nation-states,” in which a people de-ned as a unique ethnic community realizes its right to sel -determination,

but also with regard to “civic nation states”—countries such as the UnitedStates. According to this argument every country, and every country’spopulation, has a legitimate interest in preserving its cultural cohesiveness,and in enabling its citizens to bring to their country their relatives and peo-ple who share a common culture with them. Tus, an immigration policy,according to this argument, is a legitimate mechanism to protect such in-terests.

2. A rmative action A more narrow justi cation or the principle o return is based on the princi-ple o afrmative action toward Jews who in the past su ered rom condi tionsthat denied them a place where they could realize national independence orde end themselves against the pressures o assimilation or rom persecution,deportation or extermination. Te advantage o this principle as a justi ca-tion is that it is broadly recognized as a justi able or even required exception,in certain circumstances, rom the demand or equality. Hence the State o Israel, with its special connection to the Jewish people, is permitted to em-ploy a policy which ensures a avorable attitude toward Jews living in distressor subject to persecution on account o their Jewish identity.

Tis kind o justi cation is relevant rst and oremost with regard to Jewish re ugees, who in the past knocked at the gates o di erent countries

and were not admitted. As such, it does not apply to the situation o Jewsa ter the ounding o the state. It is possible to expand this justi cation andto say that there is also an aspect o repairing past injustice in the act thata Jewish state enables Jews, even i they are not re ugees, to make amends

or the past situation in which Jews were not permitted to choose to live ina place where the public culture was their own. Asa Kasher has limited thisextension to the situation o establishing a nation-state. Kasher re erred tothis particular instance as “the case o Founding Fathers”—that is, the righto an individual who belongs to a minority group to be a “ ounding ather”

in the creation o egalitarian, political independence or his group. Accord-ing to this argument the history o persecution o the Jews and the act thatthey were a minority in several countries prove the necessity or creating anindependent political entity or the Jewish people. Tis justi cation doesnot have to be based exclusively on the rationale o responding to past injus-tice in the lack o recognition o the individual’s rights or o his/her ability to realize an equal opportunity. It can also be based on the more generalutility o the inclusive social value o true equality o opportunities. Tat is,i populations which have been the targets o discrimination in the past aregiven a practical opportunity to realize their right to sel -determination, notonly will the inequality rom which they su ered be corrected, but the gen-eral good will increase as well. One question regarding this argument is:

When does the period o “establishment” come to an end and the argumento afrmative action cease to be valid? Even i we say—as Kasher does—that

we have not yet arrived at this point, the idea o the time-bound charactero such a justi ying argument is an essential part o it.

It would seem that with regard to the Zionist ideal o kibbutz galuyot and with respect to the principle o return, it is important to distinguishbetween the di erent stages o the Zionist enterprise on the one hand andthe period a ter the state was ounded on the other. In the ounding stageo a nation-state or a people which did not previously have such a state,there is indeed a special justi cation or signi cant pre erence or the mem-bers o the ethnic group, which is intended to assist at the point o creating



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the unique conditions or the generation and stabilization o the nation-state. Tis is the case both in regular circumstances in which a signi cantportion o the relevant ethnic group resides in the territory in which itintends to establish the basis or its state, and also in the situation in whichthe ethnic group was dispersed in exile and there was a need to commencethe national enterprise with the gathering o the group in the given terri-tory. At this stage the basis is one o “remedial justice.” Tis is also the stageat which to discuss the question o the location o the sel -determination

or the Jews, and to justi y not only their demand or autonomy in their

place o residence but also their e orts to bring large numbers o Jews tothe Land o Israel in order to create precisely there the basis or politicalindependence or the Jews. As we have said, this e ort requires a special

justi cation on account o the potential harm to the native population, which may become a minority in its own country. Part o the justi cation

or this is the necessity Jews had or one place in which they can avoid therisks o persecutions and the pressures o assimilation which they experi-enced as minorities.

Once a nation-state has been ounded, the needs which stemmed romstatelessness already nd an answer in it. From that stage onward, only theprotection o the wish o the community to maintain its cultural identi-ty and allow members to join it can support the principle o return. Tispre erence or members o the majority community is required in order tomaintain its ability to conduct a ull li e o sel -determination. Tis justi ca-tion, even though its extent is likely to be narrower, is not limited in time,both with respect to the state itsel and with respect to the rights o themembers o the majority ethnic group.

Te argument o “remedial justice” is essential in the rst stage o cre-ating the conditions or the realization o the right to sel -determination,including the creation o a stable concentration o Jews in the Land o Israel.Nonetheless it can play a role also in the stages a ter the ounding the state,so long as the realization o the right to sel -determination is not otherwiseensured. Tere ore I will return to discuss it again in the ollowing pages.

3. International law Te claim that the Law o Return is not justi ed rests not only on ethicalobjections to illegitimate discrimination. Tere are also those who claimthat it is in con ict with explicit provisions o international law. I this isin act the case, then the demand that Israel abolish the principle o returngains additional orce because, even though the norms o international law do not admit o direct en orcement, they enjoy a stronger status than “sim-ply” ethical norms. However, an examination o international law on thisissue does not substantiate criticism o the principle o return.

International law is generally understood to recognize in principle thesovereignty o nations. Control over immigration policy is one o the maincharacteristics o that sovereignty. Te rule is that a nation is sovereign todecide when and how to grant its citizenship, and international law is notsupposed to inter ere with these decisions.

Against this basic understanding, there are those who argue that astate’s control over immigration contradicts the principles o humanrights, especially reedom o movement. According to this argument, i

we take the right to reedom o movement seriously, then a state is notpermitted to prevent an individual or group o individuals rom crossingits borders and settling in it. It would seem that this claim does not holdin terms o ethics, but it is clear that it is not valid in terms o inter-national law. A common interpretation o the provisions or reedom o movement in international human rights treaties limits the right o entry to the citizens o a state. Tus, or instance, the Universal Declara-tion o Human Rights, Article . reads: “Everyone has the right to leaveany country, including their own, and to return to their country.” Te

International Covenant on Civil and Political Rights states in Article. : “No one shall be arbitrarily deprived o the right to enter his own

country.” Tere is, however, a debate about whether an individual’s con-nection to “his country” re ers only to citizens or to permanent residentsas well. Tis ambiguity certainly also permits a broader interpretation o an individual’s connection to a country and not to the state in control o



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it. In any event it is clear that the norm does not permit the entry o any individual . Article . o Protocol No. to the Convention or theProtection o Human Rights, which was signed in , states explicitly that the right o entry into a country is granted only to citizens: “No oneshall be deprived o the right to enter the territory o a state o which heis a national.” At the point at which the individual’s right to enter ends,the state’s right to determine who is permitted to enter comes into e ect.It would seem, there ore, that the universal right to reedom o movementdoes not limit the state’s reedom to control the identity o oreigners

entering the country. A stronger argument against the principle o return can be based on the

right to equality, and especially on the prohibition against discriminationon the basis o race. Te International Convention on the Elimina-tion o All Forms o Racial Discrimination, which Israel signed in ,deals with this subject. Indeed, this document requently serves as a mainbasis or claims that the principle o return contradicts international law.Te Convention does not merely deal with racial discrimination, but ratherprohibits discrimination on the basis o ethnic origin and religion. On the

ace o it, the convention also applies to the pre erence included in the Law o Return. But there are two exceptions to this prohibition: First, the docu-ment explicitly permits afrmative action in Article . :

Special measures taken or the sole purpose o securing adequate advance-ment o certain racial or ethnic groups or individuals requiring such pro-tection as may be necessary in order to ensure such groups or individuals

equal enjoyment or exercise o human rights and undamental reedomsshall not be deemed racial discrimination, provided, however, that suchmeasures do not, as a consequence, lead to the maintenance o separaterights or di erent racial groups and that they shall not be continued a terthe objectives or which they were taken have been achieved.

We have seen that there are those who rely on this exception in order to justi y the principle o return. But or our purposes the explicit reservation

regarding immigration policy and the pre erence or immigrants rom a cer-tain group, cited in Article . o the document, is more relevant:

Nothing in this Convention may be interpreted as a ecting in any way the legal provisions o States Parties concerning nationality, citizenship ornaturalization, provided that such provisions do not discriminate againstany particular nation.

Te usual interpretation o this article says that the Convention allows thepre erence o a certain group in immigration laws, but prohibits discrimina-

tion against a particular group. Tis exception was inserted into the docu-ment precisely because its ramers were very aware o the considerationsthat underlay such pre erences and wanted to exclude them rom the broad

wording o the document. Not only is the principle o return not in con ict with international law, but the latter actually contains an explicit provisionpermitting it.

It is not surprising that this is the position o internationallaw , since wehave seen that positions such as these may ollow rom themoral analysiso implications o the right to sel -determination. While it is possible thatinternational law would not recognize rights or the implications o rights

or which a solid ethical basis can be suggested, it is difcult to imaginethat international law would grant individuals rights o entry beyond thoserecognized in the accepted ethical analysis.

Moreover, the International Covenant on Civil and Political Rightsdoes not grant individuals the right to receive citizenship. Tis is despite the

act that it contains a general prohibition against discrimination, especially on grounds “such as race, color, sex, language, religion, political or otheropinion, national or social origin, property, birth or other status.” Teright to citizenship is only included in the Universal Declaration o HumanRights, which is not a legally binding document, and it is not even clear to

whom it is addressed, since it does not mention a speci c country which isobligated to grant citizenship.



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It would seem there ore that international law is consistent in grant-ing broad discretion to states in shaping their own immigration policy. O course this act does not con er legitimacy on any immigration policy what-soever. But the Law o Return, according to this analysis, is the kind o policy decision that belongs to the realm o decisions which a sovereignstate may make. A state is entitled to balance a variety o considerations

or the public bene t, and has the sovereign right to determine the groupo individuals eligible or immigration on the basis o its own national in-terests. While the Law o Return imposes a airly ar-reaching obligation on

the state, nonetheless, like all the laws passed by the Knesset, this is an acto the state in which elected institutions o the state choose to impose anobligation upon it. Tis obligation can change or be annulled in subsequentlegislation.

Tis analysis demonstrates that there is no unjusti ed discriminationamong potential immigrants to Israel in the pre erence established by theLaw o Return. Similarly, the demands that Israel must annul the Law o Return i it wishes to be considered a democracy which grantsequality to all o its residents , and especially to the Arab minority living within its borders,are un ounded. We have seen that giving pre erence to Jews in immigra-tion—and especially the policy encouraging the immigration o Jews—canin act a ect the wel are and status o the Arab minority, but this in itsel does not constitute unjusti ed discrimination. Israelmay annul the princi-ple o return, butis not required to do soon these grounds.

4. Te practices o statesOne can nd additional support or the act that ethics and internationallaw recognize immigration pre erence or the members o the majority eth-nic group in a given country in the practices o numerous nations in the

world, especially in Europe, where nation-states with a national, ethnic andcultural rather than simply civic basis are common. It is possible, o course,to claim that the very existence o such practices in and o itsel does notrepresent a justi cation, since these practices might not be justi ed. But this

is a case not only o common practices, but rather practices which interna-tional bodies, including those concerned with human rights, have upheld.Immigration policy or naturalization policy which avors the members o the national Diaspora is a common occurrence in European democracies. Immigration laws which clearly avor immigrants sharing the ethnicity o the country o destination are ound in di erent orms in Europe, in coun-tries such as: Germany, Finland, Greece, Ireland, Poland, Hungary, Bulgar-ia, Slovakia, the Czech Republic, Slovenia, urkey and Croatia. ensionsrelated to the desire to preserve an ethnic majority in one state, at least when

the second ethnicity has its own adjacent state, are not unique to Israel andto the Jewish-Arab con ict. As we have said, the idea that there wouldbe two nation-states, in which each o the nations had an ethnic majority in order to ensure it the control over immigration and de ense, was a basicconsideration in the partition resolution which was approved in the UN onthe th o November, .

C. Te historical argument against the principle o returnIt is no accident that the desire to control the make-up o the populationand to ensure a certain degree o cultural unity in it is an aspiration commonto most countries, especially those which are pre erred immigration destina-tions. In any event it is clear that it is unjust to make such complaintsonly against the Israeli principle o return, without leveling the same measure o criticism against the similar immigration arrangements o other countries. Itis somewhat outrageous that Zionism is the only national movement whichis described by so many as a kind o racism, and that racism is consequently ascribed only to the principle o return.

For this reason, those objecting to the principle o return would deservea better hearing i they would take a step back and complain, not againstIsrael’s right as a nation-state to pass a law such as the Law o Return, butrather against the very legitimacy o the Zionist enterprise and o the ound-ing o the state. In this way one can claim that even i an “ordinary”



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nation-state is justi ed in implementing a certain degree o pre erentialtreatment or the members o the majority community, this claim is notvalid or the State o Israel, since its very oundation as a nation-state isa kind o racism. Tis objection, speci c to the nation-state o the Jews,is based on the claim that the Zionist movement by its very nature is im-moral, and that the state was “born in sin.” Tis is because it violated, andcontinues to violate, the right o Palestinians to sel -determination in theirhomeland, and because o the way in which it displaced—and continues todisplace—those Palestinians who lived in the state’s territory and became

re ugees ollowing its oundation.A systematic and comprehensive treat-ment o these claims would o course go beyond the scope o this positionpaper, but I will nonetheless mention the principal arguments against thesetwo objections: the claim o the illegitimacy o the ounding o the state andthe claim o the lack o justice in the principle o return, in light o Israel’sresistance to the return o Palestinian re ugees to their homes in Israel.

1. Te status o the principle o return in light o the case or theillegitimacy o the ounding o the stateTe Palestinian and Arab claims about the illegitimacy o Zionism and o the Jewish state, due to the harm they caused to the local Arab residents

who were the majority in the country, were already raised in an eloquentand consistent way at the Paris Peace Con erence, a ter the First World War.Tese arguments were voiced repeatedly—and usually rejected—at count-less international orums up until the partition resolution and even a ter-

wards. Due to this situation, the Zionist leadership was orced to deal withthese claims or many years. Accordingly, those who claim that the Zionistleadership ignored the subject and depicted a s ituation in which there was“a land without a people” here waiting or “a people without a land” are inerror. Teir positions were varied, but the basic assumption o most o theleaders o the Zionist movement was that the realization o the Jews’ rightto re-establish political independence in their historical homeland wouldnot in ringe, or at least would not have to in ringe, on the vested rights o

the non-Jewish residents o the country. Te leaders believed that while the Arab residents o the country had lived here or a long time, it was not atall clear that they were a separate people and not part o the larger Arab na-tion, since they had never enjoyed a separate political independence. Withrespect to the detrimental change in their status that would ollow upontheir ceasing to be a majority and becoming a minority, a variety o answers

were given. It was said that the Arabs would also bene t rom the ruits o accelerated development which the Jews would bring to Palestine, and thatthe Jewish state would sa eguard their rights, including their collective and

religious rights, so that their situation in the Jewish state would not be worsethan it had been under the Ottoman Empire. On the contrary, it stood toreason that their situation would be improved.

Not surprisingly, the Palestinian Arabs did not believe that these claims were particularly strong. It was natural or them to resist becoming a minor-ity in their own country and to re use to accept the processes which wouldbring this about. In the end, the primary argument o the Zionists was thatthe Jews had no other choice. Teir need or one place where they couldcontrol their own destiny, and the act that their only historical connection

was to Zion, orced them to act in a manner which was likely to upset thesense o belonging and ownership o Arab residents o the country. Tis ac-tion was justi able i it was done with a real e ort to minimize this injury so that it would not exceed that which was necessary in order to realize theright o Jews to political independence in their homeland.

I am among those who believe that the adamant Arab resistance to theestablishment o the Jewish state, even in only a part o the Land o Israel,

was understandable and even predictable. At the same time, I do not acceptthe claims that deny in principle the justi cation o the Zionist enterprise:that the Jews are not a people, that they have no connection to the land, orthat they are a colonial or imperialist entity. In the rst period o the Zionistenterprise, when the country was under the control o the Ottoman Empire,

Jews were ree to come and settle in it. Te Arab residents o the country didnot then enjoy political independence and they did not have a vested right



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to expect that Jews would not try to re-establish their historical homeland—as long as the local residents were not disen ranchised and their rights werenot in ringed upon. A ter a critical mass o Jews had been created in theLand o Israel, it is possible to justi y their right to sel -determination in parto their historical homeland as well.

We should also mention that the right o the Jewish people to a nationalexistence in its own country and its historical connection to the land notonly ound expression in the Zionist narrative, but also received recognitionin international documents. In the Bal our Declaration o November nd,

, the British government declared that it viewed “with avor the estab-lishment in Palestine o a national home or the Jewish people, and will usetheir best endeavors to acilitate the achievement o this object.” Te word-ing o the Mandate document concerning Palestine which Britain received

rom the League o Nations stated that through the declaration, “recogni-tion has thereby been given to the historical connection o the Jewish people

with Palestine and to the grounds or reconstituting their national home inthat country.” Article o the Mandate document spoke o the establish-ment o an appropriate Jewish agency, which would represent the Jewishpeople in all the countries o the world. Tis also re ects the recognitionthat it is the entire Jewish people which is thus ul lling its right to sel -determination, and not only the Jewish community residing in the Land o Israel. Another document worth mentioning is Churchill’s White Pa-per, which recognized an “ancient historical connection” between the Jewishpeople and the Land o Israel, in virtue o which they are in Palestine “o right and not on su erance.” We should also mention that the report o the UN committee which recommended the Partition Plan in oresaw that the Jewish state would encourage the mass immigration o Jews intoits territory. Te partition into two countries seemed essential, among otherthings, because o the need or ree Jewish immigration.

While the Arabs claimed that all o these documents were based on theviolation o rights, on error, on imperialism or on some other injustice, andthat Britain and the League o Nations were not entitled to grant to the Jews

what was not “theirs,” the mass immigration o Jews to Palestine certainly was not a colonial appearance o a belligerent collective, which arrived with-out any recognized claim and expelled another people rom its land.

My purpose here is not to reiterate these claims, however. Rather, it isto state that ollowing the Partition Resolution o the UN Assembly, thedecision on the part o the Arabs to resist it by orce in order to preventthe establishment o a Jewish state was an unjusti ed act o war, and thePalestinian attempt to orce Israel to accept exclusive responsibility or theoutcome o that war lacks all moral or legal oundation. He who goes to war

undertakes a risk. He cannot complain i he then loses it, and i the resultso the loss are pain ul. Te Independence War was a war o survival or the

Jews and the Jewish state. Israel was accepted as a member o the UnitedNations, and its sovereignty as the nation-state o the Jewish people wasrecognized a ter the war, a ter the creation o the re ugee problem, and a terIsrael re used to permit them to return to its territory. In the ramework o a peace agreement between Israel and its neighbors, including the Palestin-ians, it is important to try to settle the unresolved questions. Tese includethe issue o re ugees, but they no longer include the question o Israel’s very right to exist as the nation-state o the Jewish people in recognized andsecure borders. Te claim o the illegitimacy o the oundation o the statecannot be the basis or rejecting the principle o return.

2. Te Law o Return and the Palestinian “right” o returnTe oundation o the state did in act cause much su ering or the Pales-tinians, including the uprooting o hundreds o thousands o people romtheir homes. Tis displacement, and Israel’s re usal to permit the return o most o the re ugees to its territory, orm the basis o an additional argu-ment against the principle o return: By means o this principle, so it isclaimed, Israel allows the members o the Jewish people—or according to thehard-liners: the members o an imagined collective or o a religious com-munity—to settle in a place in which they supposedly have a connectionthat is two thousand years old, while denying the right o Palestinians, who



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ed their homes or were driven out o them just sixty years ago, to returnto their homes. According to this claim, the Jewish “return”—even i it isnot just a myth—has no legal validity, while the Palestinian re ugees andtheir descendants have theright to return to their homes by virtue o inter-national law.

Te discussion o the Palestinian claim that they have a “right” o returnto Israel is o course beyond the scope o this position paper and we shalldevote a separate paper to it. But it is important to make two things clear:First , there is in act an essential similarity (and also some substantial di -

erences) between the Jewish demand or return and the Palestinian claimsor dreams. It would be a mistake on the part o the Jews in Israel to belittlethe importance o the emotional and national orce o hopes or return as apart o the ormative identity o the Palestinian collective. But the right o (Jewish) return, as recognized in the Law o Return, is a right bestowed by virtue o the sovereignty o the State o Israel (despite the “natural” rhetorico the state’s leaders at the time the law was passed). Te Palestinian State

which will be established may, i it so chooses, recognize the right o returno Palestinian re ugees and their descendants to within its borders. Lawssuch as these are distinct rom the myths and narratives pertaining to theconnection o individuals or o a people to their historical homeland.Sec-ond , the claim or the right o Palestinian re ugees to return to Israel sendsus back to the problem o the con ict between the two peoples, to the cir-cumstances o the War o Independence, and to the management or resolu-tion o the con ict. Te State o Israel arose ollowing this con ict by virtueo its victory in the war and in the context o the declared solution o “twostates or two peoples.” Tis solution was supposed to grant Israel controlover its immigration, and such control was part o the historical reasoningbehind the Partition Resolution. Te Palestinians and the Arab states soughtto thwart this solution. It is difcult to understand how those who criticizethe Law o Return or this reason expect acceptance o the idea that Israel,precisely because o its victory, should lose its control over immigrationand be orced to receive into its borders as a matter o right a population

the size o which would make Palestinians the majority in the state. Eveni their return would not make the Palestinians into the absolute majority in the State o Israel, but rather would only increase their portion o thepopulation in a signi cant way, it would be justi able and prudent or Israelto resist this return, since it would or all intents and purposes make Israelinto a bi-national country, in which the relations between the two nationalgroups would be based to a large extent on an enmity and mutual suspicionrooted in the pain ul remnants o the past.

We should reiterate the act that the Partition Resolution was based on

repeated assessments that the two populations could not live together inone country since they had not come to an agreement on key issues such asde ense and immigration. It had been clear that a bi-national situation withno oreign rule would lead to a continual state o civil war. Both the PeelCommission and the majority o UNSCOP had determined that only theprinciple o “two states or two peoples” was likely to address the compli-cated political situation. Tese basic givens have not changed. Conditioninglegitimacy or the principle o the return o Jews to Israel on an Israeli agree-ment to recognize the Palestinian “right o return” would be tantamount toexpecting Israel to relinquish the ability o the Jews to realize in it their rightto political sel -determination.

D. A time limit on the principle o return? We have seen that one o the main di erences between the argument basedon sel -determination or cultural preservation and the argument based onremedial justice or “afrmative action” is that the latter is by nature limitedin time. Equality is the accepted principle, and “afrmative action” is justi-

ed or necessary only as long as the results o the past inequality which itis supposed to redress are operative and visible. In terms o a continuing

justi cation or the principle o return, this di erence is one o the virtueso the argument based on sel -determination. rue, once a nation-state iscreated where there is a stable majority o members o one group, then the



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will o that collective to secure its continued existence does not justi y thetaking o steps which were justi able or the purpose o the initial ounda-tion o the nation-state. But this change does not diminish the legitimacy o the nation-state’s recognition o the right o individual members o thegroup to live a ull national existence in their historical homeland by meanso their being given pre erence in immigration policy.

Nonetheless, there are those who argue that the Law o Return shouldonly ll a temporary role in the history o the State, and that a date shouldbe set a ter which Jews should be permitted to settle in Israel only within

the ramework o its general immigration laws (whether or not the claim isbased on the principle o afrmative action). According to their way o thinking, the principle o return must be limited to that period in which it isstill needed in order to remedy the injustices o the past (even i this periodmight be prolonged). At least in principle, a date must be set on which theLaw o Return is supposed to expire. Such a claim can also serve to supportthe idea that there should be a dynamic development in Israel’s identity,combining the belie that the State o Israel was ounded in order to permitthe Jewish people to ul ll their right to sel -determination, and the claimthat at a certain point it must become a “state o all its citizens,” so that thecollective which will enjoy the right to sel -determination rom then on willbe the Israeli collective (adherents to this opinion di er regarding whetherthe collective should be Jewish-Israeli or perhaps Israeli-civic).

At least some o the arguments which I have presented here connect theprinciple o return to the right o the Jews to sel -determination withouta time-limit. Tis is the case certainly, and perpetually, with regard to theinterest o the Jews to choose to live in the only place in the world wherethe public culture is Jewish and Hebrew and in which their national andcultural group enjoys sel -determination and the ability to control its ownsecurity. Tere ore those who claim that this right should be limited in timeare mistaken, or three reasons:First , even with respect to an individual whomight have pre erred to live in Israel, but chose at rst not to do so, it wouldbe justi ed to permit him the realization o this possibility.Second , Jews are

continually being born and become adults in the Diaspora, and their rightto decide that they wish to live in their nation-state needs to be preserved.Te act that their parents did not make use o their right to live in Israelshould not prevent them rom choosing this or themselves. Tis is true or

Jews who never were citizens or residents o Israel, but now it is also trueor children whose parents were Israelis but who themselves never received

Israeli citizenship. For them the connection to Israel can be not only to thenation-state o their people, but also to the “landscape o the homeland” o their parents and grandparents. Tird , many Jews have extended amily in

Israel who are not closely enough related to justi y “ordinary” pre erence inimmigration, yet this is a consideration supporting the general pre erence

or Jews in the immigration to the nation-state o their people without atime-limit. Te aspiration to allow Jews to live alongside their extended

amilies in their nation-state is a part o the wish to enable them to realizea ull national and cultural existence. But beyond this, the collective itsel has a continuing right to act in order to rein orce and preserve the condi-tions which will make sel -determination in its homeland possible. All suchgoals should o course be pursued within the ramework o the limitationsimposed by international law and human rights. As we have seen, the rstcondition or Jewish sel -determination is holding on to a stable Jewish ma-

jority in the State o Israel. Tis is not, in and o itsel , a claim based oncorrective justice: the State o Israel exists, it has a Jewish majority, and the

Jewish people realize their right to sel -determination within it. But thepreservation o the Law o Return is also required in order to prevent proc-esses which may lead to the actual danger o the recreation o a situationin which Jews will not enjoy e ective sel -determination even where they currently do so.

In other words, the arguments on behal o the principle o return asounded on the principle o sel -determination can there ore apply even a -

ter the strength o the argument based on corrective justice or o “afrmativeaction” is diminished. We have seen that this is true not only with respectto Israel, where a revolution was needed in order to establish a nation-state



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or the Jewish people, but even in ethnic or civil nation-states that wishto preserve their cultural character without such a revolutionary historicaltransition period.

E. ConclusionIt is worth emphasizing that this continuing justi cation or the Law o Return is based on the act that the relevant collective which de nes itsel in Israel is not the Israeli collective but rather the entire Jewish people. It

is not or nothing that the Law o Return is continually cited as one o themost important elements o the “Jewishness” o the state. Nonetheless, theLaw o Return in and o itsel does not grant rights in Israel to Jews who arenot Israeli citizens. It only grants them the right to choose to live in Israeland to acquire Israeli citizenship. Israel is a democratic country, and every democracy is, in an important way, “a state o all its citizens” and only a stateo all its citizens. Te Israeli “demos ” is indeed that o the group o all its citi-zens, Jews and non-Jews alike. But as we have seen, continuing relationshipsbetween ethnic nation-states and their cultural Diasporas are an importantaspect o modern li e. Tere is no contradiction between the act that in Is-rael there is on the one hand a “civic nation” made up o the entire group o Israeli citizens, and the act that members o several separate ethno-culturalnations live here, and that the only people that enjoys political state-levelsel -determination in Israel is the Jewish people.

In either case, the question o whether the Law o Return or the dec-laration o the principle o return should be abolished has an additionalimportant dimension: the symbolic. Tis dimension does not depend onthe question o whether a law is necessary in order to justi y the policy o pre erence or Jews in immigration to the State o Israel. As we shall see, thishas ar-reaching consequences in the overall approach to the Law o Return.Te demand that Israel abolish the Law o Return is not only, or even most-ly, a matter o a demand to change immigration policy or the speci c legalarrangements or return. We have seen that Israel could maintain a policy o

“openness to Jewish Aliyah” without such a law, and this is what it did evenbe ore the law was passed. Tere ore it is possible that abolishing the Law o Return would not lead to a signi cant change in Israel’s immigration policy

or Jews. But on account o the enormous symbolic importance o the law,the act o its abolishment or even the act o a declaration in principle thatthe principle o return is subject to a time-limit would be highly signi cantstatements. Teir signi cance would be that the State o Israel no longer seesas one o its primary purposes the creation o a place where Jews can chooseto live a ull Jewish existence, in which there is no need to “be a Jew in one’s

home and a citizen in public,” and in which the “de ault culture” is Jewishand Hebrew; a place which will serve as a re uge or Jews who are persecuted

or their Judaism; a state in which Jews can be certain that they have a rightto enter and live there as ull members o the community. Te State o Israelmay decide that this is what it wants to do. I there will be a majority thatso chooses—so be it. But I do not believe that such a step is desirable orrequired by any norms o equality, human rights or the laws o nations.



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Chapter Tree: Speci c Arrangements Pertaining to Return

Chapter hree

Speci c ArrangementsPertaining to Return

A. Introduction We have seen that the principle o return, in and o itsel , does not providea complete description o Israel’s immigration policy with respect to Jewsand their amily members, or o existing realities in this area. Moreover, the

justi cation or the principle o return does not necessarily justi y the detailso the existing arrangements as well. In this chapter these arrangements willbe reviewed with respect to three main points: rst , the identi cation o individuals eligible or Aliyahaccording to the law and current practices;second , the di erent aspects o the right to make Aliyah; third , the policy and practices o encouraging Aliyah.

In the state’s rst years, the debate about Aliyahpolicy did not even ad-dress the question o the religious or ethnic makeup o the waves o Aliyah,since they consisted almost entirely o Jews and members o their amilies.Te debate in Israel about “who is a Jew” began mostly with regard to reg-istration, identity and integration in the country. Te main reason or thisis that those who wished to come to Israel and to t in were mostly people

with a real connection to the Jewish people, who wanted to nd their placein the Jewish state. Te situation has completely changed in recent years,and has led to a variety o phenomena in which individuals or groups who

want to come to Israel and cannot do so according to the ordinary immigra-tion laws try to circumvent them through the easier and more immediateroute o the Law o Return and its corollaries.At the same time the Israelipolicy o encouraging Aliyahhas begun to look at times as i its goal is to

encourage the Aliyaho individuals eligible or return even i they are not Jews by any standard. In this chapter I will review both the legal arrange-ments pertaining to return and the developments that have taken place inthe practices o immigration to Israel by virtue o the Law o Return and itscorollaries.

B. Who is a Jew? We have seen that kibbutz galuyot , Jewish sel -determination and revival o

political independence or the Jewish people in their historical homelandare all part o the primary justi cations or the principle o return: ethically,legally and rom the rhetorical perspective o the Zionist leadership. Accord-ingly, the questions, “Who is a Jew?” and “Who is a member o the Jewish people?” are o decisive importance. When this question becomes extremely controversial, especially i this is a truly pro ound ideological debate, thequestion “Who decides who belongs to the Jewish people?” becomes criti-cal. Moreover, these questions involve the undamental issues o the natureo Judaism, and o the essence o Jewish identities in the modern era a terthe widespread phenomena o “enlightenment” and secularization. Eventhough it was known at the time o the ounding o the country that there

were deep divisions on these subjects, we have seen that the original text o the Law o Return does not de ne who is a Jew or the purposes o return.In the deliberations on the Law o Return there were already those whodemanded that “Jewish” be de ned according to halachah, but the im-migration policy was that members o mixed amilies could enter, and there

was a clear policy to encourage them to immigrate and to be completely integrated into the li e o the Jewish community in Israel. At the end o the

s a governmental crisis developed and a erce debate arose surround-ing the “Who is a Jew?” question pertaining to the issue o registration.For the purposes o registration, two separate entries were established in

which applicants or Aliyahwere listed as “Jews”: religion and nationality.Te practice was to ll in the two entries in an identical way, despite the



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act that part o the debate over the essence o Judaism revolved around therelationship between religious and ethnic/national elements in modern Jew-ish identity. At the beginning o the s the subject came up again bothin the context o the Law o Return (theRu eisenA air) and in the contexto registration (theBenjamin Shalit A air). Te court rulings led to the1970 Amendment to the Law o Return.It is impossible to understand thedebates about the law today without understanding the development o thelegal arrangements on this question.

1. Te rst yearsIn the period be ore the ounding o the State and in the rst years ollow-ing it, the authorities did not de ne the term “Jewish” but rather madedo with a declaration rom the Aliyahapplicant that he or she was Jewish.Tus Moshe Sharett, in his presentation or the Jewish Agency be ore theUnited Nations Special Committee on Palestine (UNSCOP), declared ina meeting on June th, : “Usually we [the Jewish Agency] accept as

Jews those who say o themselves that they are Jews. Anyone who comes andsays that he views himsel as a Jew, is accepted by us as such.”Te lack o a clear and explicit de nition gave the Ministers o the Interior and registra-tion ofcials considerable discretion. Tere were cases where non-Jews werelisted as Jews, mostly in mixed marriages. Tere was a eeling o a commondestiny with such mixed amilies, which enabled their complete integrationinto the li e o the Jewish community in Israel, regardless o whether or notthe non-Jewish amily members chose to convert to Judaism. Te assump-tion was that people who did not eel a true belonging to the Jewish people

would not present themselves as such in order to immigrate to a youngstate, struggling with difculties and hurdles.

On March th, , Israel Bar-Yehudah ( Ahdut ha-Avodah), who was at the time the Minister o the Interior, issued a directive which s tatedthat: “An individual who in good aith declares that he is a Jew, will beregistered as a Jew, and no additional proo will be required.” Tese direc-tives were based, in part, on the opinion o Haim Cohn, who was at that

time the Attorney General and wrote, on February th, : “It is inevi-table that at times the religious determination will be di erent in contentand nature rom the secular determination. Te act that an individual isconsidered by the Jewish law to be a non-Jew, does not prevent or pre-clude the same individual rom being considered a Jew or the purposes o implementation o the law, and vice versa.” Te NRP ministers, Chaim-Moshe Shapira and Yose Burg, raised the topic or discussion in meetingso the government. But the government agreed to only one amendment,and decided—contrary to the position o the Minister o the Interior—to

include a special quali cation so that an individual will be registered as a Jew on the basis o his good aith declaration only i “he is not a membero another religion.” Following this decision, the two NRP ministers le tthe government in July . Later the same month the governmentappointed a committee o ministers to examine the matter o registrationand to compose new directives or the registration o children rom mixedmarriages. On October th, , the Prime Minister turned to ty

Jewish scholars and requested that they issue ormal opinions on the ques-tion, “How should children born to a mixed marriage be registered in thecategories o ‘religion’ and ‘nationality’, when the ather is Jewish and themother is not Jewish and has not converted, but they both agree that thechild should be registered as a Jew.” With regard to an adult, the PrimeMinister stated that he should be registered as a Jew, in accordance with hisgood aith declaration that he was a Jew and not a member o another re-ligion. Forty-six opinions were received (including one which was signedby ve Jewish law judges (dayanim) rom London). O these, thirty-eightstated that the registration should be according to halachah, that is, accord-ing to the mother’s religion, three stated that the registration o children

rom mixed marriages should be according to the desires o the parents,and ve recommended a special listing or the children o mixed marriages

whose mother was not Jewish. And so, in accordance with the opinions received, the committee re-

versed the earlier directives. On January th, , the new Minister o



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the Interior, Chaim-Moshe Shapira (NRP), established new guidelines orregistration as a Jew in the “religion” and “nationality” entries: a) one who

was born to a Jewish mother and did not belong to another religion; b) or who has converted according to halachah.

2. Judicial ruling and legislation in the 1960sIn the s there was almost no disagreement on the subject o the ortho-dox monopoly regarding the identi cation o the religion o an individualas Jewish. Te pro ound debate ocused on the question: Can an individual

who is not recognized as Jewish according tohalachahbe a Jew by national-ity or membership in the Jewish people? As we have said, the use o the word“Jewish” in both o the contexts precluded a “semantic space” which wouldhave made it possible to answer the question “Who is a Jew?” in di erent

ways according to the context o the determination. Be ore long the theo-retical and political debates produced practical and legal repercussions.

. . Te Ru eisenA air: “Brother Daniel” ( )Oswald (Daniel) Ru eisen was born in Poland to Jewish parents and grew up as a Jew. During the Second World War he disguised himsel as a Ger-man-Christian and served as a secretary in the German police station in thetown Mir. In the context o this work he in ormed the Jews in the ghettothat the Germans were planning to wipe out the ghetto, and based on thisin ormation many escaped and some o them survived. In , a ter hisidentity was exposed, Ru eisen ran away to a Catholic monastery and con-verted. A ter the war, in , Ru eisen joined the Carmelite monastery and became a priest. Ru eisen requested to join the Carmelite monastery inIsrael. And so, he came to Israel in and served as a priest in a Catholicmonastery in Hai a. Ru eisen turned to the Minister o the Interior andasked to receive anolehcerti cation as a Jew. His request was denied. It wasimportant or Ru eisen to emphasize his eeling o belonging to the Jewish people (despite having become a Christian), and he petitioned the SupremeCourt with the claim that he was a Jew and that despite his conversion to

Christianity he had not stopped seeing himsel as an ethnic Jew who wasafliated with the Jewish people.

Te court rejected his petition and ruled (in a majority o our againstone) that the criterion or belonging to the Jewish people according to theLaw o Return was neither subjective (depending only on the eeling o belonging o the petitioner), norhalachic (since according to the halachah a converted Jew remains a Jew or certain purposes), but rather objectiveby convention. Tat is, the general public believed that an individual whohas converted ceased to be a Jew, and since the Law o Return is a secular

law, one has to interpret its terms in their usual, conventional sense. JusticeHaim Cohn contended, in a minority opinion, that any individual whodeclares himsel to be a Jew in good aith should be registered as such, eveni he belongs to another religion.

. . Te Benjamin Shalit A air ( )In the Shalit Supreme Court case, the petitioner requested that his childrenbe listed in the population registry as “Jews” in the nationality entry (andas “having no religion” in the religion entry), even though their mother wasnot Jewish. Te court accepted the petition in a majority o ve against our,and directed the registration ofcial to list Shalit’s children as Jews in theirnationality, and having no religion.

Among the judges there were di erent approaches. Some o the judgesrom the majority—Zussman, Cohn, and Vitkon— ocused on the powers

o the registration ofcial, and determined that according to the Law o the Population Registry (and against the directives o the Minister o theInterior), the registration ofcial should make the listing in accordance withthe in ormation provided, seeing this as a matter o the subjective sel -de -nition o the individual being listed. Tey stated that the registration ofcialdid not have the power to interpret the terms in the secular law accordingto the halachahand in contradiction o the individual making a declaration.Berinson J. was the only judge rom the majority who ruled on the meritso the question, and stated that the term “nationality” should be construed



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by its ordinary meaning, which con ormed to the spirit o the times and which re ected the views prevailing among the enlightened portion o theresidents o the country, and that the concept o nationality should not besubjected to the standards o the Jewishhalachah. In his opinion, MajorShalit’s children were in this sense Jews.

Silberg J. argued, dissenting, that the only interpretation that could begiven to the term “Jewish nationality” was a religious-halachic interpreta-tion. Tere ore the relevant criterion was the objective-halachic standard,and not the subjective de nition o the individual himsel , based on eel-

ings o belonging to the people and the state. Kister J., who also acceptedthe objective-halachic interpretation, disagreed with the majority about thediscretion o the registration ofcial. In his opinion it was unreasonableto direct the ofcial to act in accordance with the good aith declarationo the citizen, and to list him on the basis o his statement, even i otherdocuments contradicted what he said. President o the Court Agranat andLandau J. joined the minority opinion or second-order reasons: In theiropinion the matter was not justiciable, and there ore it was inappropriate

or the court to undertake to rule against the position adopted by the gov-ernment and rati ed by the Knesset .

. . Te Amendment to the Law o ReturnIn response to the ruling in the Shalit case, and even though the Shalit case dealt with registration, the Law o Return was amended and or the

rst time a de nition or the term “a Jew” was establishedin law : “a person who was born o a Jewish mother or has become converted to Judaism and who is not a member o another religion.” Additionally, the amendmentextended eligibility or Aliyahso as also to include the child or grandchildo a Jew, the spouse o a Jew, and the spouse o the child or grandchild o a Jew. All o these categories o individuals were granted independent andequal Aliyahrights (with one exception: a person who had been Jewish andthen will ully converted to another religion.) It should be noted that thenew amendment did not include the phrase “according to halachah” a ter

the words “or has become converted to Judaism,” as did the directives o the Minister o the Interior in . Te combined result was that the law narrowly de nes, in almosthalachic terms, “a Jew,” but grants eligibility to

Aliyahto many who are not Jews by this de nition and who may not evenhave any connection to the aspirations o the Jewish people to realize theirright to sel -determination in Israel. Furthermore, the law rejects the ap-proach adopted by the court in the Ru eisencase and in the Shalit case,both o which treated the determination o Jewishness according to religionas distinct rom the determination o membership in the Jewish people, or

Jewishness by nationality.Te debates that have raged in the public and in the Knesset regard-

ing this amendment demonstrate that the legislators were well aware o theissues and problems that might be raised as a result o the adoption o aquasi-halachic de nition o “a Jew” and o the extension o eligibility toinclude numerous non-Jews who could then make Aliyah. Te assumptionimplied in the statements o some o the Knesset members was that it wasappropriate and correct to enable mixed amilies to make Aliyah, but that it

went without saying that a ter making Aliyahthe non-Jewish members o the amilies would choose to convert to Judaism. Even at that time, there

were already those who proposed that the law be interpreted in a way that would recognize the conversion processes o the Conservative and Re ormmovements, in order not to alienate the Diaspora communities and not “tocause a public uproar.” Others believed that there was no need or con-version, since there was no longer any danger here o assimilation. On thecontrary: a gentile who makes Aliyahwould be assimilated into the Jewishpopulation.

3. Te conversion debateTe change in the law ollowing the Shalit case le t open the question: What

would be considered a recognized conversion or the purposes o registra-tion or return? Te basic question o the relationship between the elementso religion and nationality in Jewish identity was not decided, o course, by



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the de nition in the law. Nonetheless, or purposes o registration the law made clear that one who is judged not to be Jewish by religion is not per-mitted to register as a Jew in his nationality. Tis “clari cation” remainsin the law today, despite the act that the ideological debate in the publicsphere has not aded away, but rather has intensi ed and deepened. Telack o legal clarity in the de nition o “a Jew” re ected then, and sustainstoday, the tensions rising between the di erent denominations o Judaismand the demands o the non-Orthodox denominations or recognition andinclusion. Te legitimacy o non-Orthodox conversions (as well as marriage

ceremonies and burials) is a pain ul question that stirs controversy in theIsraeli public. Tese issues have at times reached courts, where they havebeen subjected to judicial ruling, but these decisions have not “resolved”the controversies—they have merely shi ted them to other places. Tus,regarding conversion, in the Miller case the Supreme Court ruled that, orthe purposes o registration, non-Orthodox conversions rom outside thecountry would be recognized. Te question o the Orthodox monopoly on conversion in Israel and that o recognition or “pop-over conversions”(non-Orthodox conversion processes where the study and preparation takeplace in Israel, and the candidate makes the actual conversion in a suit-able community abroad) have also landed on the court’s doorstep. In theGoldsteincase, the Supreme Court issued a majority ruling that there is nobasis in Israeli law or the Orthodox monopoly on conversion and re erredthe task o legal regulation o the conversion issue to the legislature.Whileobjections in Israel and abroad have prevented legislation that would grantan explicit monopoly to the Orthodox establishment, the objections o thereligious parties have also prevented explicit legislation that would recognizereligious pluralism on this subject. Te difculties in completing a legisla-tive move have led to the ormation o the Ne’eman Commission, whichconsidered the subject or quite some time. Tey arrived at an agreementthat enjoyed wide support in the Knesset, but has not been rati ed by theChie Rabbinate. Te commission suggested preserving the Orthodoxmonopoly on conversion, while ounding a joint school or conversion, in

which representatives rom the Conservative and Re orm movements wouldtake part.

An additional important development in this issue began when RabbiSherman, o the High Rabbinical Court in Israel, annulled retroactively allo the conversions which had been processed by Rabbi Druckman’s Court

or Conversions, which had been ormed in accordance with the recommen-dations o the Ne’eman Commission, because they did not veri y the com-mitment o the individuals undergoing conversion ully to observe Jewishritual commandments. An additional aspect o the debate has emerged

in the struggle over state unding . Recently the Supreme Court has ruledthat the practice o the state to und only private Orthodox institutions orconversion is illegal.

Te debate over conversion deals with the possibility o joining the Jew-ish people and with the essential question o who determines the conditions

or joining. Tis question is the subject o a deep controversy today, bothin religious contexts as well as in the context o recognizing Jewish identity

or the purposes o implementing the laws o the state, including the Law o Return. Te disagreement is not only between those who identi y them-selves as Jews nationally and culturally and those who see themselves as

Jews by religion, and not only between Orthodox denominations and non-Orthodox denominations in Judaism, but rather is in the heart o Orthodox

Judaism itsel . Tis is not only an argument about the position o Jewish law on these matters, but also about what the well-being o the Jewish people re-quires at this moment in terms o its ability to integrate the non-Jews livingin Israel. Te questions persist: Should the act that we are speaking aboutli e in Israel, which is a Jewish state, in uence the process o joining the Jew-ish people in this era? Should there be di erent principles o conversion orthe Jewish community in the Diaspora and or the Jewish community livingin political independence in Israel?



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C. Aliyahsince the 1990sSince the beginning o the s Aliyah rom standard Jewish communitieshas decreased. Te large waves o Aliyahcame mostly rom the countries inthe ormer Soviet Union, rom which a substantial number o olimwho werenot Jews according tohalachahhad arrived, and rom the Jewish communitiesin Ethiopia or “Bnei Menasheh.” Te initial argument about “Who is a Jew?”as well as the amendment were part o the intra-Jewish debate about thecomplex relationship between religion and nationality in Judaism. Tey werenot considered to be directly relevant to the general question o immigration

to Israel, its extent and nature. As we have said, the assumption was that any-one who chooses to come to Israel and to identi y as a Jew does so out o a

eeling o connection to the Jewish people and to its aspiration to achieve po-litical independence in its homeland. But recently, especially a ter the s,it began to be clear that the provisions o the Law o Return as they wereinterpreted, including the policy o encouraging Aliyahamong those who areeligible, has undamentally changed the composition o the Aliyah. First, thishas come about through the widespread use o the provisions in Article A o the Law o Return in order to bring a large number o eligible non-Jews,especially rom the FSU. Secondly, there are growing pressures, internal andexternal, to bring to Israel members o communities whose Judaism is debat-able, and Israel is expected to take them in, despite the questions surroundingtheir identity and despite the act that some o them have undoubtedly con-verted to another religion. Tis situation creates a double problem. First o all ,it leads to a discrepancy between the scope o the justi cation o the principleo return on the one hand and the speci c legal arrangements or return beingused in Israel on the other. Second , it raises a difculty in the integration o these immigrants, because their di erent cultural identity and the absence o distinctly Jewish cultural elements common to them and the Jewish public inIsrael requently impede their complete integration in Israel. An awareness o this complexity, both with respect to the size o the immigration to Israel and

with respect to the practices or dealing with this question, is important as abackground or the normative discussion in the next Chapter.

1. Individuals who are eligible or Aliyahand are not Jews As we have said, the legal ramework was established in Article A(a) o theLaw o Return. It reads as ollows:

Te rights o a Jew under this Law and the rights o anolehunder the[Citizenship] Law, - , as well as the rights o anolehunder any other enactment, are also vested in a child and a grandchild o a Jew, thespouse o a Jew, the spouse o a child o a Jew and the spouse o a grand-child o a Jew, except or a person who has been a Jew and has voluntarily changed his religion.

All o these amily members are eligible or return in their own right, eveni they are not Jews. Te meaning o the extension o eligibility to the thirdgeneration (grandchildren and their spouses) is that one grandparent is su -

cient, whether rom the ather’s side or the mother’s, in order to impartthe rights o anolehto a grandchild (and to his or her spouse). Tis is trueeven i one’s grand ather married a gentile woman, so that all o his descend-ants are gentiles according tohalachah, and not one o them lives as a Jew or views himsel as a Jew. Furthermore, it is stated in Article A(b) that thispatrilineal right is not conditioned on the act that the “Jew by whose righta right under subsection (a) is claimed is still alive and whether or not hehas immigrated to Israel.”

In addition to the actual individuals eligible or Aliyahby virtue o re-turn, who are the amily members o Jews according to a airly broad de ni-tion, an immigration policy is developing with respect totheir relatives, whoseek to immigrate to Israel by virtue o the special privileges granted to acili-tate immigration o close amily members. Te result, there ore, is that airly large groups o non-Jews, including people who may be members o anotherreligion, are entitled to make Aliyahbecause o their own eligibility or thato their relatives. Te immigration policy with respect to all o these cases, as

we have seen, is not dictated by the actual provisions o the law. It nds ex-pression in government decisions, in published practices, in unpublishedinternal practices, and even in the decisions based on the discretion o the



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speci c decision makers. Tis abundance o directives in such sensitive andcharged subjects creates a situation o ignorance, con usion, and even arbi-trariness and discrimination in the treatment o applications.

Te dynamic relationship between the provisions o the law and a policy that changes according to social developments is well evidenced in the ques-tion o the right o a convert to Judaism to grant the right o return to his

amily members: It is clear that the law applies to amily members whobecame such because they were married or born a ter the individual eligibleto make Aliyahconverted and became “Jewish.” But does this arrangement

also apply to his amily members rom be ore his conversion? Te law doesnot provide an explicit answer on this issue. In , Meir Shamgar, who

was then the Attorney General, gave a broad interpretation, and stated thatany relative o a Jew, even rom the period prior to his conversion, is eligible

or return. Tis broad interpretation was perhaps well suited or its time,but has since become a channel through which individuals who are eligible

or Aliyahand are not Jews have extended their right to pass on rights o return to their relatives through conversion, sometimes even a ter their own

Aliyah. Against this background Attorney General E. Rubinstein changedthe interpretation o the law and stated:

Rights o return are imparted to the children o a Jew, who is de ned assuch at the time o the child’s birth. Accordingly, one who is born to a Jew—whether his mother was Jewish, or i he converted—is entitled tomake Aliyahby virtue o the law, but i his mother or ather converteda ter he was born, then he is not entitled to the rights o the Law o Returnunless he himsel has converted.

Other amily members may o course apply to immigrate to Israel in theramework o amily uni cation, by virtue o the Law o Entry into

Israel.

2. Beta Yisrael and the debate over the Falashmura Te Aliyah rom the countries in the FSU re ects the difculties o a Euro-pean Jewish community which had undergone long processes o seculariza-tion and assimilation, characterized to a large extent by mixed marriages.Te Aliyahand immigration rom Ethiopia (and rom similar communitiesin Latin America, India and other places) re ect a di erent set o issues. Tediscussion o the Jewishness o such di erent communities began with the

oundation o the country, because o the desire o some o the members o these communities to make Aliyahor to immigrate to Israel. I will brie y

address the immigration to Israel rom Ethiopia, since this is the largestgroup about which the question has arisen.

It is necessary to distinguish between “Beta Yisrael ”—the Ethiopiancommunity which maintain distinctness and Jewish customs, and the“ alashmura”—people who emerged rom “Beta Yisrael ” and convertedover the course o the nineteenth and twentieth centuries. In January the Ministry o Absorption prepared a report onBeta Yisrael , which deniedtheir Jewish identity and stated that actions should not be taken to bringthem to Israel since the Law o Return did not apply to them. A monthlater, Ovadya Yose , who was then the Chie Sephardi Rabbi, determinedthat the members o the community were Jews who needed to be saved romassimilation, and that they should be brought to Israel more quickly. Asa result o Rabbi Yose ’s opinion, the policy regarding Ethiopian Jews waschanged, and a new inter-ministerial team determined that Beta Yisrael were

Jews and eligible to make Aliyahby virtue o the Law o Return. Neverthe-less, the decisions were not implemented at this stage, and the memberso the community were not brought to Israel. At the end o newsbegan to arrive about the harsh situation o the members o the community,thousands o whom had ed toward Sudan in order to escape a civil warbetween the central government and the rebels. In a series o secret mis-sions, the height o which was “Operation Moses” (November -Janu-ary ), , Ethiopian Jews were brought to Israel. In the summer o

an Aliyahchannel was opened through Addis Ababa and thousands o



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Jews poured out o their villages toward the Ethiopian capital. In the waveso Aliyah, the height o which was “Operation Solomon” (in May ),more than , additionalolimarrived.

When the large wave o Aliyah started, the resistance to the giyur le-humra (conversion to remove doubt) processes which had initially beenintroduced also began. When the matter came to the Supreme Court, theMinister o the Interior altered the practice, and the members o the com-munity began to register as Jews. Te Chie Rabbinate, while initially ac-cepting as valid the Jewish identity o Ethiopianolim, nonetheless contin-

ued to require giur le-humra, or ear o intermixing with gentiles, and thennally agreed to special registration arrangements or marriage.

I theBeta Yisrael community posed a challenge or the State o Israel,the alashmuracreated a challenge that was ar more complex. Te actthat these were people whose conversion dated back several generations,in addition to the wide cultural gap between the olimand the Israeli pub-lic, led to a huge controversy in Israel about whether or not to continuebringing the members o this group into the country. On the one hand,the alashmura ound themselves in an intolerable situation, where they

were not accepted as equals in the Christian community, and also hadnot completely severed their ties with the Jewish community. Some o them continued to preserve traces o the Jewish tradition in secret andsome o them even maintained amily connections with the people o BetaYisrael . oday they also demonstrated a strong desire to return to their

Jewish roots. On the other hand, some o the policy makers in Israel haveexpressed the concern that some o the alashmurawill pre er to revert tothe rituals o Christian worship when they come to Israel. In any eventthe absorption o these groups in Israel is difcult and requires extensivee ort and resources.

Jewish law is unclear on the question o how to treat converts, orcedconverts, and their descendants. Most o the members o the community are not eligible to make Aliyahby the di erent articles o the Law o Return.Both because o the exception that the law makes or one who “has volun-

tarily changed his religion,” and because the amilial eligibility granted in Article A is only valid or three generations, and most o thealashmura have been converted or many more generations. In the rameworks o both“Operation Moses” and the ollowing “Operation Solomon,” the govern-ment re rained rom bringing the alashmurato Israel. In a commit-tee on behal o the Chie Rabbinate determined that the alashmurale tin Addis Ababa were to be considered Jews and should be brought to Israel,but that they should go through ull- edged conversions. Over the years,despite the many decisions to bring them to Israel, the implementation o

these decisions was noticeably clumsy and slow.Te legal status o the olim rom this community also changed over the

years. At rst the state did not grantolehvisas to alashmurawho convertedin Israel, on the basis o the claim thatolehrights are intended or Jews whomake Aliyah, and not or residents who entered the country according tothe Law o Entry into Israel and converted a terwards. Tis approach wasdiscredited in the Inchobedink Supreme Court case, in which it was deter-mined that because this was an Aliyahorganized by the state or people o

Jewish origin returning to Judaism, they should be treated asolim rom themoment o their conversion.

3. Te Stamka afair: Te right o a citizen to convey status to a oreignspouseIn principle, the question o a citizen’s right to pass on his status to his

oreign spouse was never supposed to be part o the debate over Aliyahac-cording to the Law o Return. Tis is because i the oreigner is a Jew or iseligible or Aliyah, (s)he has an independent right to make Aliyahaccordingto the law, while i (s)he is neither Jewish nor eligible, the naturalizationprocedures or relatives according to Article o the Citizenship Law aresupposed to apply. But until the policy had been to permit Jewishcitizens to pass on citizenship by virtue o return to their non-Jewish oreignspouses even i they had not made Aliyahor entirely apart rom their Aliyah.Tis result was based on a combination o Article (which, as we have said,



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states that a Jew born in Israel is like anolehaccording to the Law o Return)and Article A o the Law o Return.

Tis policy illustrates and highlights the pro ound difculty in Article o the Law o Return, which we have mentioned above, which chose to ap-ply a common standard on a national-religious basis or all Jews, includingthose born in the State o Israel a ter its oundation, and to see all o themas olim, as opposed to the non-Jewish residents o the country, who legally received their citizenship based on the neutral act that they are the childreno an Israeli citizen (who resides in Israel). Here we are not dealing at length

with this provision or its premises, because its practical implications weregreatly curtailed by the Amendment to the Citizenship Law whichgranted anyone born to an Israeli citizen—whether Jewish or non-Jewish—automatic citizenship by virtue o birth. But this problematic ction was ine ect or thirty years, and it had a pro ound practical and ideological impacton the connection o Jews and non-Jews to their country.

In time, the state changed its policy and today it does not recognize theapplication o the Law o Return to such cases. Te change did not stem

rom an understanding o the aws which Article re ected, as seen romthe act that the Amendment to the Citizenship Law was not accom-panied by abolition o Article o the Law o Return or even by explicitre erence to it. Te change resulted rom two combined reasons:First , theearlier interpretation enabled Jewish citizens o Israel to orce the state toadmit non-Jews who became their relatives by marriage, even outside thecontext o their making Aliyah. Te state did not wish to lose its control overthe granting o status to oreigners in this way.Second , this situation led todiscrimination between Jewish citizens o Israel—who could pass on a sta-tus to their oreign amily members outside the context o a joint Aliyah—and the non-Jewish citizens o Israel who did not have this right.

Te new policy determined that passing on rights to amily members by virtue o the Law o Return applied only to one making Aliyah,as a part o that Aliyahitsel , and was not available to one who was already an Israeli citi-zen. Tis change in policy was challenged in court in the case o Stamka .

Te court (Mishael Cheshin J.) determined that the new interpretationo the Ministry o the Interior was the correct one. Tat is, that Article A grants rights o return to a (non-Jewish) spouseat the time that the (Jewish)spousemakes Aliyah. Tis interpretation o the law excludes a non-Jew whobecame the spouse o a Jew who was a citizen o the country at the timeo their marriage. Tis Jew is not making Aliyahand thus the non-Jewishspouse does not have anyone rom whom to derive his right. Te courtbased this interpretation on a reading o Article A in light o the purpose o the Law o Return as a whole. Te purpose o the law iskibbutz galuyot and

the return o the Jews to Israel, while at the same time seeking to preservethe integrity o mixed amilies o Jews and to encourage them to make Ali-

yahwithout risking the need o physical s eparation or o di erences o legalstatus in Israel. Tis purpose does not pertain in any way to the spouse o an Israeli citizen, and there ore the Law o Return does not apply in such acase. Te court urther based its interpretation on the principle o equality,and held that it was unjust to pre er a Jewish Israeli to a non-Jewish Israeli,so that the ormer will be permitted to pass on rights o return to his non-

Jewish spouse, while the latter would not be able to do so.

4. Methods o encouraging Aliyahand the stringent veri cation o eligibility and Jewishness o AliyahcandidatesTe extension o eligibility or Aliyahso that it would include numerousindividuals who are not Jews by any standard, and the Aliyahpolicy whichled to bringing large groups o individuals whose Jewish identities were dis-puted, were the subjects o public and political debate. Aliyahpolicy and thetreatment o individuals eligible or Aliyahwere in uenced by the particu-lar ministers holding the relevant ofces in the government coalition andby the positions o senior civil servants. Te legal ramework and even theprinciples which were established in judicial rulings did not always ensure inpractice consistency and airness in the treatment o olimand o individualsseeking to make Aliyah, both be ore making Aliyahand during the absorp-tion process in Israel.



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. . Veri ying the Jewishness o olimand Aliyahcandidates As we have said, the rst stage in realizing one’s right to make Aliyahac-cording to the Law o Return is to obtain anolehvisa. At this stage aninvestigation is made, usually in the country o origin, to determine theeligibility o the Aliyahcandidate. Te di erences between the relevantcommunities necessitated di erent sets o protocols, tailored to the prob-lems characterizing the given community. Tus the “consular practice ordealing with Aliyahcandidates” rom countries in the ormer Soviet Un-ion or the purpose o granting anolehvisa re ers rst to an inspection

o the nationality registration in the ofcial Soviet documentation, eventhough Soviet documents are known not to be always credible. Neverthe-less, even an entry in the Soviet documentation concerning the Jewishnesso the ather is relevant evidence or the purposes o the Law o Return,since the child o a gentile mother and o a Jewish ather is also eligible

or return. Tere ore, according to the protocol, in those cases where theconsul was in doubt about the Jewishness o the candidate’s mother, butthere was no doubt about the eligibility o the candidate or anolehvisaby virtue o a amily relation o the degree xed by law, the eligibility or

Aliyahwas granted by Article A. Te examination o such a case wouldthen be completed in Israel. Tis practice highlights one o the prob-lems with the Amendment. Te extension o Aliyaheligibility, inaddition to implementing an Aliyahpolicy which permits bringingolim

rom societies with a high level o assimilation, also signi cantly increasedthe number o individuals eligible or Aliyahwho were not recognizedas Jews. Recognition as a Jew has legal, social and symbolic implications

which extend beyond the eligibility itsel . Tis protocol created a situationin which the determination o candidates’ Jewish identity (as di stinct romtheir eligibility oraliyah) was postponed until a ter their arrival in Israel,even though they requently were unaware o the act that a struggle overtheir Jewish identity was still awaiting them.

Te protocol o the Ministry o the Interior regarding the Aliyah romEthiopia in states the manner in which the Jewish identity o the

Aliyahcandidate will be veri ed, personally and a ter individual scrutiny, by the kesimo the community.

. . Policy o encouraging Aliyah While encouraging and absorbing Aliyahwere always primary goals orthe State (and or the Jewish Agency), it would seem that today the Stateo Israel and even the Jewish Agency no longer view the encouragemento Aliyahas a primary task. Te growing trend is or the “privatization” o

Aliyahencouragement through the unding o organizations dealing with

this project. Accordingly, the roles o the State o Israel and the Jewish Agency in the eld have gradually been limited. Israeli governments inrecent years have nancially assisted various private initiatives workingaround the world or the purposes o encouraging Aliyahand in orderto prepare the Aliyahcandidates be ore their arrival in Israel. ogether

with the privatization o the initiatives or encouraging Aliyahand withthe distribution o this activity to many small projects, one can also dis-cern a change in the State o Israel’s ofcial attitude toward ties with theDiaspora. Successive Israeli governments as well as the Jewish Agency havein recent years emphasized educational activities and the rein orcemento ties with Diaspora Jewry, while neglecting the direct encouragemento Aliyah. While the intention is or the State and the Jewish Agency to preserve their monopoly on establishing Aliyaheligibility and on thesupervision o the implementation o its conditions, it is precisely herethat a undamental change has taken place in the state’s approach, whichhas not received visibility in public debate. From being at the center o adiscourse which placedkibbutz galuyot and the encouragement o Aliyah as a primary goal or the State o Israel, Aliyahhas become a political ques-tion dictated by power struggles and con icts o interest between Israelipolitical leaders, the Jewish Agency institutions, and the leaders o Jewishcommunities in the Diaspora.

An outstanding example o the changes that occur now and then inthe State o Israel’s mindset and in its activity in countries o origin or the



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purposes o encouraging Aliyah, and o their dependence on Israel internalpolitics, can be ound in the processes which the organization known as “Na-tiv: Te Connection Ofce” is undergoing. At its inception this was a se-cret organization which worked to ‘liberate’ Jews rom behind the “Iron Cur-tain.” Since the dissolution o the Soviet Union, and especially in recent years,doubts have been raised about the necessity or this organization’s continuedexistence. Over the course o the past two decades several committees havebeen established to address this issue. Tese criticisms have come to theattention o successive Israeli governments in the past decade, which proved

to be irresolute in their decisions regardingNativ . In the governmentdecided to reduce the organization’s activity, while in the governmentactually decided to expand it. Similar winds were blowing in deliberationson this matter conducted by the Absorption, Aliyah, and Diaspora Commit-tee in July . Most o the participants supported the expansion o theorganization’s activities. It was argued that the organization’s existence was

justi ed because o the special circumstances o the communities in question. Within the population eligible or Aliyahin the countries o the ormer SovietUnion there are , people, o whom % are assimilated and less than

% are active in Jewish organizations. It seems reasonable to assume, there-ore, that in another generation there will no longer be any large Jewish com-

munities in the FSU countries. However, the consequences o the policy o encouraging Aliyah rom these locations are unclear, and the subject has notreceived an open and comprehensive discussion.

As we have said, a similar indecision has marked attitudes toward theremoval to Israel o the alashmurasitting in camps in Ethiopia. Te Israeligovernment occasionally discusses the issue, and a decision to halt their

Aliyah was included in the dra t version o the law o arrangements or. But even here there are gaps between the e orts made in the camps

to solidi y the Jewish identity o the residents and the position o the Israeligovernment. Israeli governments, subject to pressures at home and abroadon this matter, implement a policy which is requently marked by hesitationand resistance to the continued Aliyaho the residents o the camps (among

other reasons, because amily connections repeatedly mean that the numbero claimants or Aliyaheligibility increases).

A similar vagueness shows up in the guidelines given to Jewish Agency representatives in the Jewish communities o the Diaspora. I in the past it

was clear that these envoys were, perhaps primarily, “ Aliyahrepresentatives,”today the element o encouraging Aliyahhas been reduced to the vanish-ing point. Attention is diverted instead to quite di erent causes which areimportant in and o themselves: rein orcement o Jewish identity in theDiaspora and encouraging ties between the Diaspora communities and the

State o Israel.

. . Te Israeli public administration’s treatment o the question o the Jew-ish identity o olimEven a ter Aliyah, the concern with the Jewish identity o theolehdoes notcome to an end. Te Ministry o the Interior, as the body responsible orregistration, sometimes implements ade actopolicy o creating difculties

orolim who are not Jewish, or whose Jewish identity is disputed. Te de-bate about “Who is a Jew?” resur aces, since some o the authorities dem-onstrate hostility toward individuals who are eligible or Aliyah, who view themselves as Jews, but are not Jews according tohalachah( or instancethe child o a Jewish ather and a gentile mother). Di erent coalitions,changing ministers and changing policies all in uence attitudes toward thissubject. Ofcials in the Ministry o the Interior sometimes make use o their authority to annul the citizenship o a person who obtained it on thebasis o alse in ormation in order to act against individuals eligible or

Aliyahwho are not Jews according tohalachahbut have been nonethelessregistered as Jews.

It is important to emphasize that, irrespective o the substance o thelegal arrangements or Aliyah and immigration to Israel—a state has theobligation not to harass and abuse those within its jurisdiction. Te statemay be stringent with regard to entrance policy according to the Law o Return or concerning general immigration policy—but such policies must



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be carried out properly, with state agencies dealing airly with the individu-als concerned.

We should also point out that the Aliyaho large numbers o non-Jewsraises a variety o concerns extending beyond the subjects o Aliyahand reg-istration. In light o the complex relationship between religion and state inthe Israeli legal system, the Jewish identity o olim is relevant at numerouscrossroads throughout their li e in Israel in matters relating to personal status,such as marriage, divorce, burial and child adoption. Te existing legal ar-rangement, which acilitates the Aliyaho numerousolim to Israel who are

not Jews according tohalachah, together with the Orthodox monopoly overthe subjects related to personal status, places a variety o hurdles be ore many citizens throughout their lives. Te subject o marriage, or instance, is very important both or those who are not Jews and wish to marry Jews and also—and perhaps especially— or those who view themselves as Jews and discoverto their chagrin that the religious establishment does not consider them assuch. Tese phenomena cause alienation and social tensions, even i in many cases it is possible to nd practical ways to bypass the legal difculties. o thisshould be added the numerous barriers standing in the way o non-Jewisholim, which may prevent them rom beginning or completing a conversionprocess— or instance, the negative image o the special court or conversions,the stringent demands o the courts with respect to the adoption o a religiousli estyle and the education o children in religious programs, and the longhours o study required o them in the schools or conversion andulpans. Tese topics are beyond the scope o this position paper.

5. StatisticsOn the subject o immigration and on questions o demographics, a dis-cussion o principles does not sufce. Tere is no similarity between thesigni cance on the one hand o a discussion on “Who is a Jew?” when thenumber o those whose Jewish identity is a matter o debate is relatively small and they are completely assimilated into the Jewish community, andon the other hand a situation in which large sub-communities are created

o individuals eligible or Aliyahbut who are not Jewish or whose Jewishidentity is disputed. Certainly the discussion is very di erent when every individual eligible or Aliyahis in act well integrated into the Jewish ma-

jority than it is when individuals eligible or Aliyahare practising Muslimor Christian by religion, and i they t in at all they tend to do so in therelevant communities o their religion in Israel.

In the past two decades, many thousands o olimhave arrived in Israel who are not Jews, or whose Jewish identity is disputed. According to thestatistics given by the Ministry o Absorption, analyzing the population o

olim who arrived rom the FSU between and , it appears that, olimdid not register as Jews at the Ministry o the Interior during

those years. Tis group o non-Jews represents . % o the total numbero olim rom the FSU during this period. oday this group is estimated tonumber , persons!

Within the ramework o bringing the amilies ormed by mixed mar-riages to Israel, according to the ofcial statistics, in more than % o the olim were non-Jewish amily members ( rom all the countries o origin,including the FSU and Ethiopia). A report rom the Administration o Society and Youth in the Ministry o Education in June , which dealt

with youth making Aliyah rom the FSU, provides the ollowing statistics:. % o the amilies o marriedolimare not recognized by Jewishhalachah,

and cannot prove their Jewish identity. Among % o them, one spouse isnot Jewish, and in % o them both spouses are not Jewish. In accordance

with the publications o the Central Bureau o Statistics (CBS) ( ), %o theolim rom the FSU are not registered as Jews at the Ministry o theInterior. It is important to note that out o the total number o olim romthe FSU, , have le t the country. An indication o the broad extento this phenomenon is the act that the Central Bureau o Statistics has begunto categorize as a distinct group within the Israeli population, those who are“religion-less individuals” or “others,” meaning people who are not identi edas active members o a religious community but are not registered as Jews.Tis group today constitutes around % o the population o Israel.



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Up until , olimarrived rom Ethiopia. Te statistics re er-ring to the Aliyah rom Ethiopia demonstrate the difculties o absorptionand integration in Israel. For instance, the number o criminal investiga-tions in which Ethiopian youth are involved has steadily increased ( rom

. % o the cases in to . % in ). In - the propor-tion o Ethiopian matriculation certi cate recipients was %, compared to

% in the total population o Jewish students. In , % o Ethiopian-year-olds le t school (compared to % in the total population o Jewish-year-olds). Te causes or difculty in absorption are varied and include

cultural di erence, damage to the traditional structure o the community and amily, lack o education, and lack o experience in modern employ-ment among the adult olim.

An additional aspect worth mentioning in this context is the conversionprocess undergone by a small portion o the population o non-Jewisholim.It is estimated that the total population o potential conversion candidatesin Israel today numbers between , and , people, the vast ma-

jority o whom areolim rom the FSU. Between - only , olim rom the FSU converted to Judaism. A survey conducted in among

olim rom the FSU indicates that % o the total number o non-Jewisholim have no intention o converting to Judaism. wo main reasons weregiven or this: ) % replied “I have no need or a conversion”—that is,they believe that the conversion gives them no practical advantage; ) %replied that “the process is difcult” (about one quarter o this group isnot interested in converting). Te leading response to the question “What,in your opinion, is the motivation o olim who are interested in convert-ing?” was “ tting in socially” ( % o the respondents). Only much smallernumbers answered that the reason was religious ( %), nationalistic ( %)or or the purposes o marriage ( %).

It should be noted that despite these acts, the absorption o the large waves o Aliyah in the past two decades has been success ul, or the mostpart. Tis success is mainly due to the mechanisms o absorption and inte-

gration which were implemented or the individuals eligible or Aliyah, withan attempt to deal with the special characteristics o each group. It is also

worthy o note that in recent years the extent o the Aliyah, o all types, is notvery large and it is not expected that this situation will change signi cantly in the near uture. Tere ore the questions o bringing individuals eligible

or Aliyahto Israel and their initial absorption do not receive much immedi-ate political exposure (as opposed to questions such as the in uence o thelegal and social situation in Israel, with regard to the subjects o religion andstate, on the continued absorption and integration o non-Jews eligible or

Aliyah). As we have said, the question o encouraging the Aliyaho Jews ona large scale also receives relatively little attention. Te main challenge today is the success ul absorption o such communities already in Israel.

Tese acts do not diminish the undamental importance o discussingthe questions o the boundaries o the Jewish collective; the cultural identity o the State o Israel; the connection between these acts and the justi ca-tion or the state and its perception as the place in which the Jewish peoplerealizes its right to sel -determination; and the manner in which all o thesethings are re ected in the Law o Return and its speci c arrangements. Tesigni cance o the limited size o aliyah lies only in the act that today lesspolitical attention is devoted to them in a society which is usually preoccu-pied with putting out res and not with the systematic examination o the

undamental issues o its existence.Tere ore these re ections are a good point o transition to a normative

discussion o the speci c legal arrangements o return. Tis discussion, whoseideological importance is vast, deals with questions connected to the roots o the establishment and justi cation o the Zionist enterprise, even though itspractical and immediate importance is presently limited. Although the nor-mative discussion does not yield immediate recommendations—it is essen-tial that we remember the close connection between this discussion and these

undamental questions and the need to deal with them and to recognize thecontroversies connected with them.



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Chapter Four: A Critical Discussion o the Speci c Arrangements or Return

Chapter Four

A Critical Discussion o the Speci c Arrangements or Return

A. Introduction We have seen that it is impossible to examine the subject o Aliyahor o Jewish immigration to Israel exclusively on the basis o the Law o Return.One has to look at the Law o Return together with an examination o theprovisions or naturalization in the Citizenship Law and o the practicesconnected to the Aliyaho Jews and other individuals who are eligible or

Aliyah. Even i the principle o avoring Jews in immigration is justi able, itis appropriate to re-examine—according to all o the justi cations suggestedin Chapter wo—not only the principle o return, but also the manner in

which it is implemented in Israel today.Tis critical examination is also necessary in light o the many devel-

opments in Israel and in the world—and in the speci c arrangements orimmigration themselves over the years. Te main stages o developmentin the arrangements or Aliyahwere examined in the previous chapter: a)the Amendment to the Law o Return, which de ned “a Jew” or thepurposes o return according to an almost religious de nition, but expandedthe extent o Aliyaheligibility to include the relatives o a Jew up to the thirdgeneration, even i the eligible individuals do not eel a connection to Juda-ism or to the Jewish people and are not even making Aliyahtogether withthe person by virtue o whom they are eligible; b) the Amendment tothe Citizenship Law, which annulled some o the practical implications o

Article o the Law o Return regarding the acquisition o citizenship, andto a certain extent made it easier or Arabs to acquire citizenship. Supreme

Court rulings have also in uenced this situation, or instance in theStamka case and with regard to conversion practices. All o these developments havebeen accompanied by political battles over immigration policy as it has beenapplied to Jews, to those who joined the Jewish people through conversion,to those who are eligible or Aliyah by the Law o Return, and to those

whose eligibility by the Law o Return is open to debate. Struggles such asthese were waged within the government itsel and were also in uenced by the ideological orientations o successive interior ministers. Tese dynamicstrans ormed the Ministry o the Interior into an extremely important minis-

try and, not surprisingly, it became the object o political rivalries. Tus theslogan coined by “ Ascending Yisrael” under the leadership o Natan Sharan-sky in the election campaign was “Shas in control o the Interior? No!Te Interior is Ours!” (and Sharansky was indeed appointed Minister o theInterior); prime ministers are no longer always willing to place this centralministry in the hands o religious ministers.

No less important are changes in the global situation. When the Law o Return was passed, and even at the time o its amendment in , Is-rael was not a pre erred destination or immigration, and the assumption

was that individuals willing to de ne themselves as Jews in order to comehere certainly elt a real connection to Judaism and the State o Israel. Tisassumption is no longer valid. Israel is part o the developed world and isconsidered by many to be a desirable destination or immigration. Notsurprisingly, people are willing to make use o Aliyah rights according tothe Law o Return through di erent avenues (through a amily connectionor through di erent kinds o conversion) or to take di erent steps (such asmarrying citizens o the country)—the primary i not sole purpose o whichis to achieve some ofcial status or Israeli citizenship.

Tus Israel has gone rom being an Aliyahstate to being an immigra-tion state, and a large proportion o those who enter the country’s ports and

who receive an ofcial status—some o them by virtue o the Law o Returnitsel —are not Jews and do not eel any connection to Judaism or to theproject o building a national home or Jews in Israel.



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Te eatures o Aliyahaccording to the Law o Return also raise difcul-ties. Individuals who make Aliyahby the Law o Return—Jews and non-Jewsalike—become Israeli citizens rom the moment they make Aliyah, accord-ing to the Citizenship Law. As such they have all the civil and political rightso an Israeli citizen, including the right to participate in elections. Many believe that when an individual un amiliar with the country, its language, its

orm o government, its history or its leaders is permitted to participate inthe determination o its ate upon arrival, this creates an impoverishment o the civic tie between a person and his country. Tis problem is exacerbated

when other individuals, who have been living in the country or a longperiod o time and are well in ormed about it, are not permitted the sameparticipation because they are not citizens o the state.

In light o these considerations, I subject some o the main speci c ar-rangements pertaining to the Law o Return and to the contemporary Aliyah and immigration practices to a critical examination. I addressed this topicat length in the rst chapter o the Gavison-Medan Covenant. Te analy-sis which we suggested there served as the basis or the recommendations

which we made in that document. I stand behind what I said there andbehind the recommendations which we made. Te purpose o this PositionPaper is di erent, however. Moreover, it relates to important developments

which have taken place since that discussion up to today. Accordingly, inthis chapter the way I discuss issues and my recommendations will be di -

erent. Instead o advocating, I will discuss questions while examining thepros and cons o di erent positions, while pointing out the primary sourceso tension between the legal arrangements pertaining to return (and Citi-zenship) today and the justi cations or the principle o return which werepresented in Chapter wo.

B. Te principle o return: a right to make Aliyahor a considerationo pre erence?

We have said that the principle o return is a principle o pre erence or Jew-ish immigration, and that such a pre erence is morally justi able, permitted

by international law, and recognized as legitimate when implemented by other countries. We also saw that the Law o Return establishes aright (eveni this is subsequently quali ed) and not just a pre erence. Te di erence be-tween these two arrangements is enormous, since the granting o a right toan individual who is eligible or Aliyahimposesa corresponding obligation on the state, and thus denies it (at least on the ace o it) any discretion onquestions such as how many immigrants to take in, when, and according to

what criteria. Tere ore there are those who claim that the state must indeedretain its discretion regarding immigration and make decisions that are in

its best interests, and that such a reedom to decide entails the reduction,as much as possible, or even the elimination, o the state’s obligations withrespect to the entry and settlement o groups o potential immigrants.In other words, according to this argument, the state must restore to itsel basic discretion even with regard to the Aliyaho Jews. While this conclu-sion can be consistent with di erent orms o the continued pre erence or

Jews, it will not be through the bestowal o acategorical right or Jews andtheir amilies to be brought to Israel. Tis argument is o special orce whenthe bestowal o such a right on Jews and members o their amilies coincides

with an increased and systematic stringency regarding the immigration o others. Te di erence between the granting o the right in the Law o Return and other legal arrangements or immigration is especially conspicu-ous when one compares it to the broad discretion given to the Minister o the Interior according to Article o the Citizenship Law, which deals withthe naturalization o individuals who do not acquire citizenship through theLaw o Return. Moreover, the provisions o the law or the practices whichpre er members o a certain ethnic group in the legal arrangements o othercountries do not usually grant them an inherent or unlimited right to settlein their nation-state. Consequently, even i Israel has explicitly chosen topre er Jewisholim, this pre erence need not take the orm o a right.

Nevertheless, I do not believe that it would be right to recommend achange in the principle “every Jew has the right to come to this country asan oleh.” One o the rationales o the explicit statement o this principle



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in law was the desire to include in the laws o the country an unequivocaldeclaration that because o the establishment o the state there would neveragain be a situation in which the government would block the entrance intothe country o Jews who had arrived at the border o their homeland. Tisassertion was a repetition o explicit statements made in the Proclamationo Statehood. In this sense, this declaration o the principle was part o the

ormative content o the ounding o the state, and it meant that Israel would be open to Jewish Aliyah, especially o those individuals whom noother country wanted to accept. Tis ormative content is still part o the

rationale or the continued existence o Israel and the continued justi ca-tion or the principle o return. Te explicit abolition now o this ceremo-nial declaration would have a symbolic and political meaning that wouldbe signi cantly di erent rom a decision not to embrace it at the outset (adecision which, as we have seen, was considered by the legislators at the

ounding o the state). I do not see a justi cation or recommending such astep, unless Israel does decide that it is ready and willing to stand behind itssymbolic meaning. It does not appear that such a position has any supportamong the country’s political elites. Even the judicial system has justi edthis exceptionalism in the Jewishness o the state, as it is expressed in the

wording o the principle o return in the law today.Tis conclusion is rein orced by the act that even the ar-reaching

phrasing o the Law o Return is not understood—and should not be un-derstood—by policy makers as requiring the state tobring every single Jew to Israel (or to put at his disposal an absorption bene ts package or other in-centives). According to the narrow interpretation o the principle o return,there will not be a situation in which a Jew will arrive on Israel’s shores and

will knock at its gates without being permitted entry (quali ed only by thenarrow limits o the law). I we add this interpretation to the act that today a signi cant portion o the Jewish Aliyahand even part o the immigrationo individuals with disputed eligibility or Aliyah such as the alashmura,

who are not making Aliyahaccording to the Law o Return, are the resulto government initiative or government policy —then the practical results

stemming rom the principle o return in and o itsel are not ar-reaching.It would seem to be pre erable to ocus on other aspects o the present legalarrangements, and not to undermine this simple, ceremonial, and power-

ul declaration according to which “every Jew has the right to come to thiscountry as an oleh.”

C. Who should be “eligible or Aliyah”? A more difcult question is: Who should be eligible or Aliyahaccording to

the law? According to the Law o Return as it was amended in , thisquestion has two components. Te rst pertains to the question, who is the“Jew” who is eligible to make Aliyahaccording to Article o the law, whichis the heart o the original law. Te second pertains to the extension o theright to bring amily members o that “Jew” to Israel according to Article A o the law, which was added in .

In my opinion the Amendment impaired the original rationale o thelaw and the principle o return. Te existing legal arrangement, in terms o the wide range o non-Jews who areeligible or Aliyah, is difcult to justi y in accordance with the principles that I presented in Chapter wo. Teideal situation is that which existed in the past, and in which most o theindividuals who were directly eligible or Aliyahwere “Jews”, as stated in

Article o the law, while building on the vagueness o the word “Jew” sothat its application in act would better suit the rationale behind the princi-ple o return. Individuals who are eligible or Aliyah or the purposes o theLaw o Return are not supposed to be “Jewish” according to thehalachah,but rather to share an interest with the state in their participation as ullmembers in the undertaking o Jewish political independence in Israel, as astate which is both Jewish and democratic, due to their membership in the

Jewish people.Te justi cations or the principle o return which I presented in Chap-

ter wo pertained both to the right o the Jewish collective to ound a state



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in which it will realize its right to sel -determination and encourage Jewish Aliyahto this state, and to the right o the individual Jew to live a ull li e asa Jew in one’s own nation-state. However, the widespread phenomenon o intermarriage indeed required a response to the question o mixed amilies.Up until the practical response to this question was a combination o turning a blind eye and the registration o all the amily members as Jews,or the absorption o all the amily members via di erent avenues: the Jew made Aliyah by virtue o the Law o Return, and the non-Jewish amily members were naturalized by virtue o the Citizenship Law, without any

particular problems or mishaps. No mixed amily was banned rom making Aliyahor being absorbed in the country just because it was mixed. Te

Amendment, which was deemed necessary because o the SupremeCourt ruling in the Shalit case, included in the law an ideological answer tothe question “Who is a Jew?,” which conveyed an exclusionary message tonon-Jewish amily members o Jews. Te communication o such an exclu-sionary message—and perhaps also the ideological concession implied in iton the part o those who rejected thehalachic concept o Jewishness—madeit necessary to raise to the level o legislation the complementary messageas well: the avorable and welcoming reception o the non-Jewish amily members o Jews. Te decision o the legislature to limit the de nition o the “Jew” in accordance with the halachah and to grant amily membersindependent rights, identical to those o Jews, up until the third generation,caused ideological and practical difculties already at the time o the law’sadoption. Tese problems have greatly intensi ed since the s.

I will not address here the ascinating question o who is eligible or Aliyahaccording to the Law o Return. Te undamental question whichcomes up is this: Is it justi able or the principle o return to be applied only to a person who is de ned as Jewish by thehalachah? Te originators o the

Amendment re rained rom dealing with this question or reasons which were political, substantive or both. Te pragmatic compromise which was achieved was to extend the eligibility or Aliyahaccording to Article A.But this attempt was not completely success ul or a number o reasons:

First , one who ascribes importance to membership in the Jewish people willnot be satis ed by receiving permission to live in the country as citizen o the state by virtue o the Law o Return, but rather will want the recognitiono one’s Jewish identity by the state and society. For such a person, this is notmerely a question o a civic connection but also an ethnic and cultural one.Second , in the State o Israelhalachic or quasi-halachic characterizations o “Jewishness” have orce in other practical and administrative areas such asregistration and burial. Tird , as we have said, the extension o independ-ent Aliyahrights to individuals who are not de ned as Jews by thehalachah,

takes in not only those who see themselves as Jews but even people who haveno real connection to Jewish existence.Fourth, while the number o those

who eel themselves to be Jewish but are not Jews according tohalachahandare not covered by Article A may not be large, it also is not negligible.

It is also worth mentioning the category o Nidhei Yisrael (“the ar-re-moved o Israel”), communities which may express a connection to Jewishtradition or Jewish customs, but whose members’ status as Jews accordingto halachahis a matter o debate. Communities such as these also raise com-plicated questions, such as whether they are able to integrate into the Stateo Israel as a modern country. On such issues, it is better that decisions con-cerning the policy about their immigration to Israel, balancing the strengtho their Jewish identity and the di erent implications o their absorption,should be made by elected political decision makers applying general policy considerations o the state, and not on the basis o the rulings, whateverthey may be, o rabbinic authorities.

What makes the intra-Jewish debate on these subjects unique is that itis not con ned to religious circles. Many religions have intra-con essionaldebates pertaining to the rules o membership in the religious community or o becoming a member. In some religions this results in the creation o di erent, and even hostile, denominations o the same religion (as in Chris-tianity or Islam). In Judaism as well there are di erent denominations whichconduct a erce debate among themselves on the question o whether all o these approaches constitute authentic expressions o Judaism, or perhaps



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only one o them (the “Orthodox”). In such a situation, even the relatively simple principle that reedom o religion requires that membership in areligious community be determined by the religion itsel , does not sup-ply the state with an easy solution, as long as the religious identity o anindividual has legal rami cations according to the laws o the state. Teabsence o a natural monopoly within the religion that re ects a religiousconsensus regarding the essence o Jewish identity or the ways in which onebecomes a part o it creates a problem. As we have said, the debate remainsunresolved rom both the legal perspective and rom the perspective o the

government agencies, because the legislature did not state that a Jew is only one who “converted according tohalachah.” Furthermore, we have also seenthat within Orthodoxy itsel there is a undamental debate over what shouldbe considered “conversion according tohalachah.”

In addition to this intra-religious debate, we have also seen that thereis disagreement about whether Judaism today is a religion, a people, or acombination o the two. Tere are those who believe that the Jewish com-munity o aith and the Jewish people are one collective, and there ore therules or entering it and becoming a part o it need to be consistent andhalachic . Tere are those who believe that Judaism is only a religion andthere ore the other components o Jewish existence are not even relevantto the Jewish identity o an individual (or to the rights o Jews). Othersbelieve that while the Jewish people was characterized, and even preserved,in the past through its being de ned by the Jewish religion and by the

ways o li e which the religion required, in recent years Judaism is goingthrough complex processes o identity change. Accordingly, by their way o thinking a Jewish-national identity is being ormed today which does notinvolve religious characteristics—or, obviously, o ritual observance—and

whose connection to Jewish religion is only historical and cultural. Tese kinds o debates are ound within many modern identity

groups, and usually there is no need to decide these questions one way oranother. When need to decide does arise, the decision is context-sensitive.Tus it goes without saying that rabbinic courts which see themselves as

subject to halachahwill rule on the Jewish identity o an individual in thecontexts o conversion and marriage in accordance withhalachahas they understand it.

Regarding the Law o Return, on the one hand there is a distinct needto make a decision on who is eligible or Aliyah, because the question has

ar-reaching impact both or individuals and or the state and its identity,and on the other hand it is difcult to separate the legal answer rom theideological and religious controversies between the di erent parts o theIsraeli and world-Jewish communities.

Te Law o Return in its original wording and the practices which werein e ect in the state’s rst years re ected an interesting approach to thisdilemma. Te declaration in Article o the law granted the right to “every

Jew,” without de ning the term, and the de nitions were provided in or-mal arrangements on a lower level, with low visibility, and in an attempt tobypass the ideological controversies. Te majority ruling in the Shalit casegave the legislature the (unjusti ed) eeling that it had to intervene. Te re-sult was a change in attitude which was expressed in the Amendment.It was precisely the high visibility and statutory level o the new arrange-ment which made it difcult to adjust the legal arrangements to a changingreality.

I we return to rst principles, it would seem that the rationale behindthe principle o return and behind its justi cation is based on two reasons:the rst, the desire to allow persons, who see themselves as part o the Jew-ish people, to become part o the nation-state o the Jewish people; thesecond, to enable the nation-state to promote processes that will acilitatekibbutz galuyot and the preservation o a stable Jewish majority in the coun-try. Te legal de nition o Aliyaheligibility and the rights it entails shouldbe optimal in meeting these goals while making as minimal an intrusion aspossible into issues which are so raught with ideological controversy amongdi erent sectors o the Jewish public. Te state, or its courts, should not o -

er “essentialist” answers to controversial questions such as “Who is a Jew?”In any event, proposed resolutions to such questions by the state will not



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resolve the actual controversies. At the same time, the state must providea mechanism that will enable it to give transparent and air answers to thequestion, Who is eligible to settle in the country and become a citizen ac-cording to its laws and rationale. Te difcult question is, o course, how to respond to the question o Aliyaheligibility without taking a stand onideological controversies.

Te current characterization o the Law o Return, o who is eligibleor Aliyah, is—or is likely to be, too broad—while the characterization o a

“Jew” is too narrow. Te identi cation o the eligible group starts with the

halachic de nition: Jews according to thehalachahare eligible to make Ali- yah. Tis de nition leaves out people who see themselves as members o the Jewish people, who live a Jewish li e-style, and might wish to make Aliyah and to tie their ates with that o the State o Israel. Tus, or instance, thechildren o Jewish athers, who live in the Diaspora in a Jewish community o whatever denomination, live a Jewish existence and even bequeath it totheir children, will not be included in this de nition. According to therationale o the Law o Return and the approach seeing Judaism as a na-tion, the law should include them as eligible or Aliyah. Te law in act doespermit this to a certain—although insufcient—extent, when it expandseligibility to include relatives up to the third generation.

But in many respects, and particularly on the symbolic level, the solu-tion o a narrow halachic de nition o “a Jew,” combined with an exten-sion o Aliyaheligibility, is not a good one. Tis solution undermines theinclusive concept o the Jewish people and o mutual responsibility withinit, because it exclusively adopts ahalachic de nition o the boundaries o the Jewish people, in a social and political situation in which a large por-tion o the population—both Jewish and non-Jewish—does not view thoseboundaries in the same way. Such a solution has caused in the past, and isalso likely to cause in the uture, an abundance o bad results. As we havesaid, even rom the perspective o state institutions, this is an extremely problematic solution. Attaching legal consequences to an individual’s “Jew-ishness” by the laws o the state obligates the state institutions, which are

not halachic , to interpret this term and to give it a practical meaning. Sucha situation is likely to lead to a direct con rontation between thehalachic establishment on the one hand and the state political institutions and thecourts on the other.

Te current arrangement also covers a large group o individuals whoare eligible or Aliyah, by virtue o their being the amily members o Jews,but are not themselves Jews according to any de nition or any denomi-nation and do not necessarily have any sense o belonging, or wishing tobelong, to the Jewish people. Some o the people in this group may use the

right o return just in order to pass through Israel on the way to anotherdestination. Nonetheless, the Aliyaho a large non-Jewish population which

will remain in Israel may hinder the goal o maintaining in Israel a Jewishmajority, which supports a Hebrew public-cultural space. Te inclusion o three generations and their spouses within Aliyaheligibility, together withtheir de nition as eligible or Aliyaheven i their Jewish relative is not com-ing to Israel himsel , is likely to lead to a large-scale immigration o non-

Jews who do not have an interest in connecting their ate with that o the Jewish people in its country.

Tere ore it would seem that preserving the original text o the law would have been pre erable to the existing legal situation, since it wouldhave permitted greater exibility in adjusting the legal arrangements in or-der to promote the desirable situation. Tis desirable situation is one inwhich only someone with a demonstrated connection to the Jewish people will be able to make Aliyah , together with their immediate amilies whomake Aliyah with them. Te legal arrangements should seek to diminishthe concern that people who do not t this description will make Aliyah.Tis is the right thing to do, both in terms o the rationale o the princi-ple o return, and in terms o the wish to limit the costs that Aliyahmay impose on the wel are o the country’s residents, Jewish and non-Jewishalike. Tat being said, the characterization o who has a connection to the

Jewish people needs to be inclusive. Te intention is to exclude people whodo not view themselves as Jews, but not to reject those who see themselves



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as Jews, even i their conceptions o Judaism are di erent rom thehalachic determination according to the Orthodox interpretation. Tis is the case i such people appear to be Jewish not only in their own eyes but also in theeyes o their Jewish and non-Jewish environment.

According to this rationale, the operative characterization o “a Jew”according to Article o the Law o Return needs to be more inclusivethan the existing de nition in Article B o the law, but less inclusive thanthe subjective de nition according to which a Jew is anyone who de neshimsel as a Jew. Against the background o the conditions noted above, it

would certainly be impossible today to rely on such a “sel -de nition” as adecisive and nal demonstration o a person’s Jewishness. Te rejection o the principle o a “subjective sel -de nition” is extremely important withrespect to the very presumption that there is something objectively distinc-tive about the boundaries o the Jewish public, which is not just a matter o the sincere statements o someone who views himsel as belonging to it or

wishes to belong to it. But even i it is easy in principle to establish what the optimal bounda-

ries o Jewish identity should be or the purposes o return,legal arrange-ments need also to be clear and easy to apply.

In the Gavison-Medan Covenant we proposed an approach composedo several elements:First , there is no need to distinguish between someoneborn to a Jewish ather and someone born to a Jewishmother . Anyone bornto a Jewish parent should be eligible or Aliyahby virtue o their connectionto the Jewish people. Tis extension is appropriate according to the halach-ah’s principles o solidarity, and it is certainly appropriate or those who donot accept the halachic de nition itsel . For the determination o identity in

act, there is no signi cance to the question o which o a person’s parents was Jewish. On the contrary, it is actually possible that the child o a Jewish

ather grew up as a Jew while the child o a Jewish mother grew up agnosticor as an active believer in a di erent religion. Second , “a son o the Jew-ish people,” should include anyone who joined the Jewish people, whetherby Orthodox conversion or by some other recognized conversion, or even

by some other method o becoming a member which is not conversion but will be recognized by the state. In order to avoid conversion or the sakeo immigration, every convert, or every person who has joined the Jewishpeople in a di erent way, irrespective o the nature o the process o joiningundertaken, will be required to demonstrate signi cant aspects o his/her

way o li e that testi y to the act that his/her acquired membership in the Jewish people is sincere and steady. Moreover, such joining processes en-title individuals to make Aliyahaccording to the Law o Return only i they reside abroad prior to their joining the Jewish people. One who is already in

Israel and chooses to join the Jewish people will o course be accepted withopen arms, but this will not entitle one to rights o return. Tese rights aregranted only to one who does not live in Israel and wishes to make Aliyah. Tird , individuals who are persecuted or their Judaism will be eligible tomake Aliyah, even i thehalachahdoes not recognize them as Jews.

Te advantage o this proposal is that it both exempts the state romhalachic quandaries and also allows the state to ul ll its designated rolevis-à-vis the Jews and their communities in the Diaspora. Te proposedde nition o eligibility or Aliyahis in no sense an attempt to answer thehalachic question, “Who is a Jew?” Tere ore, on the one hand, such an ar-rangement will preserve reedom o religion and the reedom o the Ortho-dox to de ne Jewish identity according to their belie . On the other hand,the state is permitted to expand the ramework o Aliyahabsorption and totake in as citizens whomever it considers to be part o the Jewish people.

An arrangement such as this recognizes the problem o mixed marriages which is so common among Diaspora Jews and permits the law better to

ul ll one o its important purposes: to allow Jews who wish to make Aliyah to their nation-state to con er legal status in Israel on the members o theirnuclear amily who are making Aliyahtogether with them. Te law willlikewise recognize conversions by all the main denominations o Judaismand even non-religious ways o joining, as long as the conversion proc-ess is appropriate, recognized and reliable, and as long as the act o join-ing is accompanied by additional signs indicating the real intention o the



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persons joining to tie their ate with that o the Jewish people. We shouldclari y that this expanded concept o “a member o the Jewish people” orthe purposes o return does not automatically determine the recognition o the individual, living in Israel, as a Jew, or all purposes. Regarding someo aspects o li e, especially matters o personal status, there is at present inIsrael a religious-Orthodox monopoly. Tere ore, i Israel wishes not only to admit those who have a connection to the Jewish people but also desirestheir success ul and complete absorption in the Jewish public in Israel—itis important to change these exclusionary laws or at least to create a socio-

cultural space in which there will be a strong connection between Jew-ish “cultural” and “ethnic” identity and complete integration into JewishIsraeli society.

I should repeat that the arrangement suggested in the Gavison-Medancovenant re rained rom accepting a subjective de nition o “a Jew” as one

who views himsel as a Jew. Such a de nition would be too broad and islikely to include various groups which present themselves as in some sense

Jewish (such as Messianic Jews, the Black Hebrews rom the United States,and A rican tribes). Nonetheless the proposed arrangement recognizesthe importance o the subjective element expressed through the investmento practical e orts on the part o one who seeks to join the ranks o the Jew-ish people (and is not satis ed with merely a ormal “conversion”). Tus,the Jewish tradition remains a primary element in an individual’s eeling o membership in the Jewish people. Nonetheless, it is important to expandthe de nition so as to grant eligibility to make Aliyaheven to someone whois not Jewish by halachah, by virtue o their serious connection to the Jewishpeople.

It goes without saying that separating the halachic requirements romeligibility to make Aliyahby virtue o the Law o Return is not intended tocast doubt on the pro ound historical connection between the Jewish peopleand the Jewish religion and tradition.

Another matter o importance is the attitude toward people persecutedor their Judaism. One o the most important rationales o the law was to

provide a sa e haven or those Jews throughout the world, who were per-secuted because o their Jewish identity. Tis matter deserves to be treatedseparately, apart rom the description o individuals who are eligible or

Aliyah, because it is possible that there will be people who are persecuted ortheir Judaism even i they do not meet even one o the criteria that we haveproposed (that is, they are not Jews according to thehalachah, they are notthe children o Jewish athers, and they have not gone through any kind o conversion or in any way joined the Jewish people). Tus or instance thegrandchild o a Jew, who will not be considered eligible or Aliyahby right

o ancestry according to the proposal, may well be persecuted or his Jewishorigins in di erent places in the world. Indeed, this sort o claim is some-times made regarding the members o the alashmuracommunity who haveconverted to Christianity and there ore are not eligible or return (neitherby the existing law nor by the proposals outlined above). Nevertheless, oneo the reasons why they wish to make Aliyahis because they are persecutedas “Jews” by their neighbors. It would seem that including those who arepersecuted or their Judaism even i they do not quali y as ‘members o the Jewish people’ is justi ed, and that it is not likely to bring about ar-reaching practical consequences or mass Aliyah.

Te Gavison-Medan covenant met with a mixed reaction, as one mightexpect. Some thought that it represented an interesting and importantbreakthrough. Others– both religious and non-religious—believed, just likethe overwhelming majority o the sages (even the non-Orthodox ones) whoresponded at the time to Ben-Gurion’s letter—that it was a very bad ideato expand the criteria or membership in the Jewish people beyond thoseestablished inhalachah. In evaluating these responses it is important to dis-tinguish between ideological implications and practical implications o theproposal. Te extension o the de nition o “Who is a Jew” in a manner thatalso includes the son o a Jewish ather alters the narrow halachic basis o thede nition that was provided in the amendment. It does not extendat all the category o those eligible or Aliyah, since the son o a Jew is inany case eligible or Aliyahaccording to the present law. On the contrary,



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when the proposed characterization o “son o the Jewish people” is readtogether with the proposal in the Gavison-Medan covenant to restrict theeligibility or Aliyaho those who are not Jews, the proposal overallreduces the number o those eligible or Aliyah, because it does not cover the thirdgeneration o grandchildren.

Reservations were also voiced regarding the “burdensome” proposal ac-cording to which individuals who converted according tohalachah wouldbe required to demonstrate that the conversion was sincere by leading a li econtaining elements o Jewish identity (although, as we have said, there are

those who claim that there is no such thing as ahalachic conversion withoutthe actual observance o ritual commandments), and especially regardingthe suggestion to recognize non-Orthodox conversions.

Interestingly, even those who wish to expand the recognition o non-Orthodox conversions were altogether opposed to expanding the recognized

ways o joining the Jewish people to include ways that involved no religiousconversion at all. Apparently, this opposition is based on a combinationo pro ound and signi cant perceived tenets o Judaism together with theclaim that recognition o a non-religious process o joining the Jewish peo-ple does not meet the standard which we ourselves had suggested: a criterion

which is relatively easy to apply without recourse to ideological questions. A great deal o skepticism was expressed regarding the possibility o establish-ing criteria or identi ying when an individual has joined the Jewish people

without a conversion. I agree that a great deal o thought should be devotedto this subject. I also concede that the inclusion o this track was indeedimportant to me precisely because o principled and ideological reasons—inorder to support the claim that membership in the Jewish people should notbe exclusively a religious matter, and there ore does not have to be achievedonly through birth or conversion. In all probability, there will not be many people who will seek to join the Jewish people in this “innovative” way.Tus, I expect that criteria or determining the acceptability o this processcan be ormulated without any real danger that the gates will be ooded.But it would seem that we’re dealing here with an objection which is itsel

ideological. I grant that this proposal raises ascinating questions o princi-ple, with enormous ideological and theological importance or the concepto Jewish identity and membership in the Jewish people in our time.

Tere is no practical need to resolve these very important questionsor the purposes o this position paper, since the paper does not recom-

mend a legislative change in the Law o Return itsel , and this on the basiso second-order considerations. As we have said, i the Law o Return hadnot been amended in , it would have been possible to make the saidchanges with relative ease and without legislation (assuming that a politi-

cal consensus would be ormed that they were in act desirable). Te Amendment means that implementing these proposals requires a changein the Law o Return itsel . But in our political reality even those whobelieve that such changes (in whole or in part) are called or, might resistattempts to change the law. Tere is no need to go into an evaluation o these claims. Te purpose o this position paper is to point to undamentalquestions and to give ocused recommendations. Te ear o tampering withthe Law o Return appears to be well ounded. As we have said, the practicalaspects o the size and nature o Aliyahaccording to the Law o Return areat present not very signi cant, and the issues do not call or an urgent re-sponse. It would certainly be possible to nd a reasonable practical solution

or most o them in the ramework o Aliyahpolicy.Nonetheless, thinking about these issues and the candid assessment o

undamental claims are important or several reasons:First o all , as we havesaid, these issues touch on the essence o the existential questions o identity and the meaning o the Jewish people and o the State o Israel as the state o the Jewish people.Second , these issues go well beyond the scope o the nar-row question o eligibility or Aliyahaccording to the Law o Return. Tedisagreements and also areas o consensus should be examined and clari ed.Tird , and most importantly, the awareness on the part o policy makers o the importance o the required changes can yield, even without a changein the law, changes in policy which will diminish the practical problemsstemming rom the text o the existing law. Tere ore, a candid and clear



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discussion, about both the elements o eligibility or Aliyahand the norma-tive premises underlying them, is inestimably important even to someone

who is not suggesting immediate changes in legislation.

D. What should be the rights o a “member o the Jewish people”?1. Immediate and automatic citizenship or naturalization withconditions?Te claim that the principle o return is justi ed and there ore opening

the gates o the country to Jewish immigrationis warranted, does not ne-cessitate a bestowal o citizenship which is automatic (with no additionalconditions apart rom making Aliyah) and immediate (immediately uponmaking Aliyah), such as is granted today to olimby virtue o the Citizen-ship Law. We should mention that or most o the non-Jewish immigrants,naturalization in Israel (as in most o the countries in the world) requiresboth a relatively long prior period o living in the country and not a ew conditions demonstrating the integration o the persons being naturalizedinto their new country as well as their loyalty and their attachment to it. Interms o kibbutz galuyot , it is sufcient to grant Jews the right to enter thecountry and settle in it, and perhaps to be granted permanent residence. Isit really justi ed also to create such a vast di erence between them and otherimmigrants regarding the timing and conditions o naturalization?

For the purposes o this discussion, we can introduce a theoretical dis-tinction between basing citizenship on a past-based afnity and basing iton a uture-based afnity. Past-based afnity is based on the totality o anindividual’s connection to the state, or to one o the groups living in it, onthe basis o a common history, language, culture, religion, or other innate,non-voluntary eatures. Te Law o Return rests partly on such a past-basedafnity, when Jewish origin or Jewish identi cation are the touchstones ora potential immigrant. Future-based afnity is based on the principles o a shared existence, which the immigrants are prepared to undertake andthus to link their uture with that o the nation which they are joining. Te

United States is the best example o such an afnity, since it is a civic nation-state, based on immigration, in which the primary connection o peopleto the country is their citizenship. American immigration law establishes autilitarian immigration regime, based in part on the pro essions needed inthe economy. But immigrants receive citizenship only a ter ve years, a terthey have become involved in American society and culture, learned thelanguage, become amiliar with American history and the American Consti-tution, and sworn allegiance to the country. Care ul re ection on the twokinds o afnity shows that the di erence between them is not sharp and

clear. Even in countries which emphasize elements connected to past-basedafliations, the arrangements include requirements such as the loyalty o theimmigrant to the state and integration in society, and such requirements areindeed justi ed. On the other hand, even in civic states, which emphasizethe uture-based afnities, the immigration policies are not devoid o anaspiration or social homogeneity. In many cases an important point o contact between the past-based and the uture-based afnities is the distinc-tion between entry into the country and naturalization, the latter requiringadditional conditions such as residency and integration in the country.

We saw there was a long discussion o the (limited) reasons or preclud-ing a Jew romentry into Israel and romsettling in the country by virtueo the Law o Return. Interestingly, I have ound no in ormed and system-atic discussion o the question o the conditions or receiving citizenship

or a person who has made Aliyahby the Law o Return. Citizenship isacquired immediately and automatically by anyone who has made Aliyah by the Law o Return, as i they were entitled to it rom birth. It is possiblethat in the state’s rst years a great deal o importance was placed on thisbecause there was a need not only to create a Jewish majority among thecountry’s residents but also among its citizens, and there was also a symbolicsigni cance to the act that any Jew, by his choice, is not only a resident o the country but also a citizen like any o its citizens. It would seem that therationale in this was that Jews “acquire” citizenship by making Aliyah, andthere ore they resemble one who receives citizenship by birth. We have seen



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that not only is one who makes Aliyahby the Law o Return regarded as one who acquired citizenship by birth, but a Jew who is born in Israel was con-sidered like one who received his citizenship by virtue o the Law o Return!

oday, however, this issue deserves a renewed and in ormed discussion. Tisis certainly true since the rationale o an identity in terms o the basis o citizenship between those who make Aliyahand Jews born in Israel has beenabolished by the state itsel , in legislation and in judicial ruling.

My undamental claim (also expressed in the agreements in the Gavi-son-Medan Covenant) is that the bestowal o a right on Jews to make Ali-

yah, on account o their ethnic/religious identity, is justi ed. But there is nota similar justi cation or the automatic and immediate citizenship whicholimreceive. A number o years o residency in the country, while becomingintegrated in the culture, economy and society, will provide a stronger andmore credible basis or the Israeli citizenship ultimately granted to theoleh.Te automatic and immediate bestowal o citizenship upon a certain kindo immigrant, whatever the de ning criterion, makes it very difcult or thestate to control the identity o those who receive its citizenship. Immedi-ate citizenship also enablesolim to participate in elections be ore they haveintegrated themselves into the li e o the state and come to understand itscharacter and its special problems. Simplicity, elegance and considerationso airness indicate that one who makes Aliyahby the Law o Return shouldreceive citizenship only a ter meeting conditions similar to the naturaliza-tion conditions o others, rather than receive citizenship as i one had beenborn in the country.

Te point o departure should be the general conditions or naturaliza-tion established in Article o the Citizenship Law. O course those whomake Aliyahby the Law o Return will also be exempt rom the condi-tions or naturalization required by Article in appropriate cases. A ew di erences between those who make Aliyahby the Law o Return and“standard” immigrants may be pointed out: First o all , their naturaliza-tion will not depend on the discretion o the minister. Every oleh whomeets the requirements established in the law will receive citizenship.

Second , the legislature o the Law o Return sought to enable Jews to ac-quire Israeli citizenship without or eiting their other citizenship. Tis ar-rangement should be preserved also or those who make Aliyahby meanso the Law o Return in the uture. At the same time, there is no reasonnot to impose requirements o being in the country, a certain period o residency, eligibility or permanent residence, a certain knowledge o theHebrew language, and also the requirement or a declaration o loyalty tothe state according to Article (c), on those who make Aliyahby means o the Law o Return as well.

Tis proposal was also challenged. Some o the doubts stemmed rom areluctance to alter the existing legal arrangements or return. But precisely here, because o the historical separation between the Law o Return and theCitizenship Law, the alteration o the law—which is in act necessary—isnot a change in the Law o Return itsel . Moreover, it is quite likely that achange in the Citizenship Law with respect to the acquisition o citizenshipby virtue o the Law o Return can and should be added to a long series o important changes which are intended to adapt the Israeli Citizenship Law to new realities.

But some o the opposition was based on principle and sought to con-tinue to grant individuals eligible or Aliyahimmediate and automatic citi-zenship. According to this position, the connection between the Jews andthe Land o Israel and the State o Israel is one o sovereignty, and such sov-ereignty is meaningless i persons do not immediately become ull citizensin their own country.

Tis claim could be ounded on the justi cation o the principle o return or Jews based on the principle o sel -determination, according to

which they have the right to live in a place in which their people ul llsits right to sel -determination. Only citizenship creates a ull partnershipin the ul llment o this right. On the other hand, the claim o the sa ehaven, which also stood at the basis o the principle o return, can be real-ized in merely making Aliyahand in the right to enter and settle in Israel.



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Nonetheless, I pre er the distinction—even orolim—between the right toenter the country and the right to acquire citizenship. From most o thepeople who enter the country, including those who immigrate because o

amily uni cation, we—and all the countries in the world –demand priorstages o integration in society and requirements such as a declaration o loyalty, rom which only those born in the country are exempt. Tis claimpoints, once again, at the close connection between the principles o theLaw o Return and the premises on which it is based and the most unda-mental arguments regarding the identity o the Jewish people and its right

to political state-level sel -determination in (part o ) its historical home-land. o be sure, the claim to sel -determination is that which justi es theprinciple o return both with respect to individual Jews and to the Jewishpeople as a whole. Nevertheless, this statement is certainly consistent withthe demand that citizenshipin the State o Israel—as opposed to living init—must be equal and shared by all o its citizens, irrespective o di erencesin origin, religion or ethnicity. A Jewish citizen is not di erent rom a non-

Jewish citizen and is not superior to him. Tere is a considerable di erencebetween one who is born in Israel to an Israel citizen, and who is a citizeno the state by virtue o being born in it, and a Jew or someone eligible or

Aliyahwho chooses to tie his uture to the nation-state o the Jewish peoplein Israel. I applaud such a choice and am happy that the existence o thestate, including the Law o Return, allows Jews to make that choice reely,but I do not see a reason to grant individuals eligible or Aliyahautomaticand immediate citizenship. Such ctions—just like that o Article o theLaw o Return—are not desirable and may add con usion to the question o the relations between belonging to the Jewish people and citizenship in theState o Israel. Tese must be kept distinct, even i Israel is the state in whichthe Jewish People realizes its right to sel -determination.

2. Te right to pass on status to amily membersBe ore the Amendment, the problem o registering mixed amilies wassolved in one o two ways: all the amily members were registered as Jews

and brought to Israel by the Law o Return, or the naturalization process o the amily members was made easier by Article o the Citizenship Law, by virtue o the Jewish amily member who acquired citizenship under the Law o Return. Either way, Jews who made Aliyahwith their non-Jewish amily members did not encounter a practical difculty. Tis practice did not raisea problem in terms o justi cation either, since these arrangements appliedto the mixed amilies o non-Jews who made Aliyahbecause they wantedto connect their destiny with that o a Jewish amily member in the Stateo Israel.

As stated above, Article A o the Law o Return was supposed to sup-ply an explicit statutory response to this issue ollowing the limitation o the de nition o “a Jew” in Article B, but its applicability is in act muchbroader than such an amended response to the problem o mixed amilies.It grants non-Jewish amily members eligibility to acquire status not only

when they are accompanying a Jewisholeh; rather, it grants the amily mem-bers o Jews or three generations an independent right to be consideredeligible or Aliyah. Tis is regardless o whether the amily member in virtueo whom they are making Aliyah is alive or arrives with them, and regard-less o what is their own connection to the Jewish people or to the vision o political independence in the Jewish homeland.

In my opinion there is no justi cation or this sweeping inclusivenessunder current conditions. Te correct principle is that distant relativeso Jews—even i they are not Jews according tohalachahor according tothe wider de nition suggested here—will receive pre erential treatmentonly i they meet additional conditions which attach them personally tothe Jewish people and to the vision o its restoration. Additionally, thesepeople need to meet the requirements o naturalization established inlaw (although in appropriate cases these requirements may be relaxed).Likewise the existing condition in the Law o Return—that an individual

working against the interests o the Jewish people will not be allowed tomake Aliyah—needs to be considered in these cases. An examinationo the discussions in the Knesset which took place at the time that the



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amendment to the Law o Return was passed reveals that the legislatorsdid not consider, at the time o legislation, a s ituation in which the artic le

would make it possible or large numbers o non-Jewisholim to arrive,some o whom actively practice another religion and have no cultural orethnic connection to the Jewish people, and are not interested in such aconnection.

I will begin with a consideration o the legal arrangement or mixedamilies making Aliyah. In this case, the reason and the justi cation or

deviating rom general immigration laws is the interest in allowing Jewish

olim to come to Israel and to live a ull Jewish existence here, without re-quiring them to give up amily connections which they ormed be ore they made Aliyah. Tis interest is legitimate and justi able, and it complementsthe desire to permit Jews themselves to live a ull Jewish existence in theirnation-state. Tis rationale clearly applies to the immediate members o the oleh’s amily, who make Aliyah together . It may be appropriate to grantsuch amily members even the right to be eligible or Aliyahby virtue o the Law o Return. Te act that conditions o naturalization will also ap-ply to Jewisholim, as suggested above, will make it easier to apply the sameconditions, in a manner which is neither exclusionary nor discriminatory, tonon-Jewish amily members. In my opinion, the immigration o other am-ily members o theoleh(or o an Israeli citizen, Jewish or non-Jewish), suchas his children rom a previous marriage, or a new spouse subsequent to his

Aliyah, or that spouse’s children, should be dealt with in the ramework o the general amily immigration laws o the State o Israel.

But here is a di erent question: What is theappropriate policy regard-ing the other amily members o Jews, such as those mentioned in Article

A o the Law o Return? It is certainly possible that the State o Israel would be interested in encouraging immigration o this kind, or a variety o reasons. A state is entitled to maintain an immigration policy which suitsits needs, as long as it does not violate rights and does not discriminate. Itend to agree with the assessment that despite the act that some o theolim

rom the countries o the FSU—and recently the majority o them—are not

Jews (neither according tohalachah nor according to any other standard),nonetheless the economic contribution o this wave o Aliyahto the state ispositive and very great. However, discussion o the optimal state o a airsis called or because we should not only think about what has happened inthe past, but also about assessments o the uture and about uture-orientedpolicy. Such policy should examine the justi cations at the basis o thoselegal arrangements which avor Jews and their amilies. It is advisable thatthe examination o such a policy should not be linked to the examinationo the Aliyahpolicy or Jews, since it is likely to be more controversial than

the policy avoring Jews and those o their immediate amilies who make Aliyahwith them.

Such an examination should take into account, in addition to consid-erations relating to the justi cation or the pre erence in immigration o individuals with no actual connection to the Jewish people, considerationsrelating to the identity and purposes o the State o Israel as the nation-stateo the Jewish people. One o the advantages o the Jewish nation-state isthat it has unique conditions which reverse the direction o the pressures o assimilation. In every place in which Jews are a minority there are pressures

or them to assimilate into the society around them, including through in-termarriage. Te Jewish majority in Israel—and the considerable separa-tion practically and culturally speaking between the Jewish majority and the

Arab minority—have led to a situation in which such “natural” pressures were minimal. As the numbers o non-Jews continue to grow in comparisonto the Jewish population, so too will grow the ears o intermarriage and o a cultural existence which will weaken the Jewish identity o the residents o the country, especially o the non-religious ones.

On the ace o it, this could be seen as a great opportunity. Israel isthe only place in the world in which the Jewish people can absorb oth-ers. Foreigners will not weaken the Jewish identity, but rather will join the

Jewish society, will enrich it and rein orce it. In many ways this is exactly what has happened. But one can react to this in three di erent ways:First ,the Aliyaho non-Jews who are eligible or Aliyahincludes individuals and



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groups who are not interested in being absorbed, and even creates islandso oreign culture.Second , there is in this extension o Aliyaheligibility acertain injustice with respect to other potential immigrants who would alsobe happy to be absorbed into Israeli society.Tird , even in the opinions o those who reject—as I do—the complete identity o religion with ethnicity,and do not believe that the only way to join the Jewish people is throughan Orthodox conversion requiring a li estyle o observing ritual command-ments, seeing this absorption into “Israeliness” as a kind o absorption into“Judaism” is likely to be a trend which may endanger, to a great extent, the

Jewish character o the country. Te ear o increased assimilation among Jews or the weakening o their Jewish identity and their desire to preserve itand pass it on are not a reason to violate the rights o other people, but they may certainly justi y a policy that does not expand pre erences in immigra-tion or those who are not afliated with the nation who exercise their rightto sel determination in this state.

A contrary argument which is raised in this context is that absorptioninto Israeliness is in act like absorption into Jewishness. Tis will certainly be true i there is a relaxation o the laws o conversion, coupled with realand e ective encouragement o those non-Jews who seek to become ully integrated to join the Jewish people also by way o conversion. Te Jewishpeople, which is quite small, cannot a ord to give up the opportunity togrow by way o absorption, just as it has done in other periods o ourishingor political independence. Re ection on this question o the uture o the

Jewish people and the manner o joining it is indeed a matter o decisiveimportance, but it is beyond the scope o this position paper. A detailedexamination o the question o the in uence o the mass immigration o non-Jews to Israel on li e within the state and its cultural identity is alsobeyond the purview o this discussion. Sufce it to say that a decision onthis subject will depend to a large extent on a series o premises, argumentsand belie s, both actual and normative, which are all subject to pro oundand ineluctable controversy.

Te principle is generally accepted: Eligibility or Aliyahshould begranted only to someone who has a real connection to the Jewish peopleand who wishes to participate in the enterprise o Jewish national renewalin Israel. But we have seen that “a meaning ul connection” and “a desireto participate in an enterprise” are not unambiguous criteria and there orethey are likely to be improperly applied. In light o this, it is possible thatthe criterion o amilial relation is indeed the best standard or attainingthe desired goal. But today the law establishes Aliyaheligibility as a sub-stantive act without requiring any evidential basis, and thus does not leave

an opening or re uting the presumption o a connection to the Jewishpeople on account o amilial relation. In any event, even in the absenceo changes in the law itsel , it is possible to limit the policy o encouraging

Aliyahin the uture so that it will attach greater importance to the sincereand proven connection o the Aliyahcandidate to the Jewish people andto Jewish li e.

I, or my part, as we recommended in the Gavison-Medan Covenant, would limit the right to make Aliyah o the amily members o Jews accord-ing to Article A. In my opinion, the goals and rationale o the law requirethat the circle o Aliyaheligibility be narrow and relevant to the basic situa-tion which we are trying to encourage: allowing an individual directly eligible

or Aliyahdue to being a member o the Jewish people, who desires to make Aliyahand is married to someone who is not a Jew, to bring along spouse andminor children. Further expansion o amily immigration should be under-taken within the ramework o the Law o Entry to Israel and the CitizenshipLaw. Te son o a Jew will in any event be eligible or Aliyah. Te grandsono a Jew, under the proposal, will not be permitted to make Aliyahunless s/he

alls in the category o those who “joined the Jewish people.”However, as mentioned above, there are reasons against changing the

law, and some o these proposals may be implemented without changingthe law, through decisions related to Aliyahand immigration policy . I willnow turn to this subject.



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E. Legal principles and immigration policy As we have seen, it is not possible to analyze the actual practices governingthe immigration o Jews and their relatives to Israel, on the basis o the pro-visions o the law alone. Te reality has been determined to a great extentnot by means o the law but by means o policy. As no recommendationto alter the provisions o the Law o Return themselves is made, the ocuson issues o policy, and the range o questions which it may address, is o particular importance.

Te rst question is, what must the country do, or what is permissible

or it to do, within the ramework o encouraging Aliyahamong Jews orthose who are considered eligible or Aliyah, or in the ramework o encour-aging the immigration to Israel o those whom the state wishes to privilege.Tis is in addition to its legal obligation not to close its doors in the ace o individuals eligible or Aliyahwho wish to enter the country. It is importantto emphasize that on this subject a state is entitled to a airly wide discre-tion. Nonetheless this discretion is limited by the legal principle prohibitingdiscrimination. Tat is, the distinctions at the basis o the policy must berelevant and to be applicable to everyone under consideration. Te discretionis also limited by social and political actors, which can diminish the politicalability o the government to orm or to en orce the policy which it chooses.

Te questions pertain both to giving economic incentives or Aliyah or pre erred immigration (an absorption bene ts package? o what kind?

what will it include? what processes o assistance are o ered toolim? how long should absorption bene ts last?), and to the initiatives o the state oro agencies acting in cooperation with it with regard to deliberate encour-agement o Aliyah through the activities o envoys or bodies such as theNativ organization. We have seen that in the rst years o the state there

were signi cant discussions o the question o selective prioritization o Ali- yah according to a variety o criteria, including the ability o the country to absorb immigrants, and the relevant economic and social constraints,although such selective prioritization was quite controversial. In recentyears we have witnessed political in uences both on the extent o deliberate

Aliyahactivity or the encouragement o the immigration o individuals eli-gible or Aliyahand other groups ( or instance, the alashmura, who do notmake Aliyahby the Law o Return but rather by the Law o Entry into Is-rael), and on the extent o control over the Jewish identity o olimand overthe method o conversion which they have chosen. Nevertheless we haveseen that there is a tendency to privatize Aliyahand to lower the pro le o the ideal o encouraging Aliyahin the work plans o Israeli governments andthe Jewish Agency.

In this paper it is not my intention to o er policy guidelines on these

subjects. Te crux o the discussion, in the nal analysis, is the Law o Re-turn itsel . I want to emphasize that there are many important questions o policy involved here, and that answers to them are not determined clearly by the wording o the law , even in its existing orm. Neither the existinglaw nor the general principle o return and the justi cations or it require asingle and solitary policy. On the contrary, governments may choose roma plethora o policy guidelines that are in harmony with the law and areconsistent with the national goal o kibbutz galuyot . In this sense, there is—and there should continue to be— exibility in responding to the challenges

which the di erent groups applying or Aliyah can pose or the State o Israel. It is not the role o the law to oresee such uture contingencies or todescend to such a detailed level o regulation. It should be emphasized thatin reality, even though these questions are controversial and very sensitive,many o the decisions are made and implemented by the Minister o theInterior, or even by civil servants in his ministry, without appropriate super-vision on the part o the entire government. Tis situation, which Warha tig

warned o in the initial debate over the Law o Return, does in act raiseconcerns that the attempt to deal with so sensitive a subject will not admito transparency or consistency.

A special challenge arises regarding groups o people eligible or Ali- yahaccording to Article A, or o the distant relatives o olim, whose Jew-ish culture is questionable, weak, or very di erent rom the kinds o Jew-ish culture common in Israel. Cultural, social and economic di erences



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between such individuals and other residents o the country greatly impairtheir ability to integrate well into the country and society. Such groups arevery di erent rom one another. It is not advisable to treat them in thesame way. Tere are ongoing debates as to whether each o these groups hasa history o distinctly Jewish characteristics or perhaps went through con-version processes (like theSubbotniki ). Te question o numbers is also rel-evant here. Tere is a great di erence between relatively small communities,

which have distinctly Jewish characteristics and are persecuted on accounto them, and airly large communities—or communities the s ize o which

is not clear—and which did not have any real connection with the main-stream o Judaism or hundreds and thousands o years. It is commendableto view positively the continued realization o the ideal o “kibbutz galuyot ”also with respect to communities such as these, i they have distinctly Jewishcharacteristics and i there is a real need on the part o their members to lenda ull sign cance to their Judaism in the ramework o a Jewish nation-state.Nonetheless cultural di erences constitute a real obstacle to their success ulabsorption in a modern and developed society, one that is likely to rustratethe realization o these advantages or them and or the state and society. A state dealing with residents and citizens who are themselves having difculty integrating into a modern and developed society, needs to think care ully be ore it “volunteers” to take on itsel additional immigrants who will havedifculty integrating into Israeli society and whose Jewish characteristics arenot such so as to acilitate this integration.

Te conclusion is that policy decisions in this sensitive area should bemade in an in ormed and transparent way, ollowing an open and well-

ounded public discussion, by the government as a whole. Tey cannot bethe hal -accidental results o the inclinations o ministers or ofcials, how-ever worthy or high-ranking they may be.

Chapter Five

Summary, Conclusions andRecommendations

In this nal chapter I will discuss several topics:First , I will summarize the justi cation or the Principle o Return.Second , I will review the practiceso return in light o how well the State o Israel has ul lled the promisesregarding Jewish Aliyahcontained in its Proclamation o Statehood.Tird ,I will assemble the conclusions and recommendations resulting rom thecritical discussion o the arrangements or implementing the Law o Return.Fourth, I will address the question, which has been alluded to occasion-ally in the text, regarding the optimal level o regulation o the proposedpolicy.

I repeat that this paper does not include recommendations or legisla-tive changes, but it does contain an invitation to review the basic issues ina manner that is likely to have immediate impact on Aliyahpolicy, and tobring about a reconsideration o the legal arrangements when an appropri-ate opportunity arises ( or instance, at the time o the raming o a constitu-tion or o the enactment o basic laws on these issues).

A. Te Principle o ReturnTis position paper has presented a justi cation or the Principle o Returnbased on the right o the Jewish People to sel -determination in a state whichis the expression o that right. Te right o political sel -determination restson the act that there exists in Israel today a large Jewish community whosemembers have a right to political sel -determination. Tis right cannot berealized in a sub-state manner since this would not ensure the rights o these



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Chapter Five:Summary, Conclusions and Recommendations

individuals to protect their own security and identity and would not ensurethe right o Jewish individuals to immigrate to this community. Only a state

with a Jewish majority, in which there is a Jewish-Hebrew public culture,and which controls security and immigration policy, can ensure the realiza-tion o these rights.

Te Principle o Return will be justi ed as long as these conditions ex-ist and as long as there is a need or a state whose immigration policy willenable interested Jews to become part o it and to live in it ull Jewish lives,including an aspect o controlling their ate, or to nd shelter in it rom be-

ing persecuted as Jews.Te Principle o Return is there ore justi ed morally, and is consistent

with the provisions o international law and the practices o other nation-states. Tat being said, the validity o the principle o return does not ex-empt us rom the critical examination o the speci carrangements or re-turn in light o its justi cations.

B. o what extent has Israel ul lled the promises included in theProclamation o Statehood?In principle Israel has ul lled its promise to be open to Jewish Aliyah. Kib-butz galuyot has been accomplished not only in the sense that it has put anend to the reality imposed by the British Mandate be ore the establishmento the state, which limited Jewish immigration to the Land o Israel, butalso through large-scale operations which encouraged individuals and even

whole communities to make Aliyah to Israel. Tis policy was also gener-ous in its treatment o the immediate amilies o Jews who wished to make

Aliyah. Tus the concerns o the opposition parties that the governments which came to power would exploit their discretion and re rain rom bring-ing individuals and groups not associated with them to Israel did not proveto be warranted. It would seem that this was not due to the law or to thelevel o the legal arrangement, but was rather the result o internal and ex-ternal political pressures on Israel’s governments.

o this general conclusion, as we have seen, there are two main quali -cations to be made. First , there are individuals who view themselves as Jewsbut which the State o Israel does not recognize as Jewish or the purposeso return. Even i most o them are eligible to make Aliyah according tothe law, this situation raises complex problems regarding the contemporary concept o Jewish identity and the legitimate role o the state and its lawsin taking a position in the debate on identity. Second , Israel has a policy o encouraging Aliyah among eligible individuals (and even among non-eligible individuals), even i their connection to Judaism, by any standard,

is either weak or non-existent. Tis situation stems in part rom the amendment, ollowing theShalit case, and more importantly rom policy decisions o the Israeli government or even o particular Ministers o theInterior. A large portion o the resulting Aliyahhas been assimilated intoIsraeli-Jewish society.

Promoting the immigration o Jews to Israel andkibbutz galuyot weremajor objectives or Israel in the initial years o its existence. Te struggle

or these goals was the basis o the “national institutions” policy be ore theounding o the state. Tese acts ound clear expression in Israel’s Procla-

mation o Statehood. Even during the rst years o the state, however, andtoday as well, there rage passionate debates within the di erent Jewish com-munities about the importance and centrality o Zionism in general, and o the aspiration or Aliyahin particular, within Jewish li e. Te “negation o exile” as a way o thinking and the concept that there is something unda-mentally de ective in Jewish existence outside Israel were gradually replacedover the years by a di erent approach according to which a vibrant Jewishli e is critical to the wel are and prospects o the Jewish people whether it is

ound in Israel or in the Diaspora. Tis development has also led to a changein emphasis regarding Aliyah, both in government institutions and in the

Jewish Agency. A thorough discussion o these subjects is beyond the scope o this posi-

tion paper, but I would nonetheless say that it is regrettable that the treat-ment o these issues—and o their practical rami cations—is not the ocus



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o public debate in Israel, in national institutions, or in Jewish communitiesabroad, but rather is determined by politically motivated decisions o thegovernment or the Jewish Agency, or even o the di erent ministries, whichtend to receive minimal exposure and are not subject to extensive publicdebate. I believe that this provides a rather shallow basis o thought and ac-tion on these undamental issues and it would be worthwhile to attempt tobring about a undamental change in this situation.

We should note that currently there is not a great deal o Aliyah, andthere are no pressing disputes that require urgent action without due delib-

eration. From the predicament o limited Aliyahit is possible to derive someadvantage. Even i in these circumstances it is unreasonable to expect thatthis subject will be dealt with by an overburdened Israeli government, it

would certainly be possible to nd orums which could give priority to theseissues and conduct in ormed debate with experts and the representatives o di erent communities.

C. Speci c arrangements pertaining to return and immigrationpolicy Te basic declaration o the Law o Return, that “every Jew has the right tocome to this country as an oleh” is a constitutional expression o the princi-ple o return, and as such it is justi able. Tis principle, as well as the provi-sions o the Law o Return, should not prevent the in ormed considerationo the principles o immigration policy and the timing o their implementa-tion with respect to initiating the Aliyaho those eligible or Aliyah, Jewsand non-Jews alike, in light o the valid justi cations or the Law o Return,in light o immigration arrangements or non-Jews in Israel, and in light o the political, social and economic circumstances o the time.

As we have said, the rationale o pre erence or Jews in Aliyahto Israelis based on the interest o the Jewish people in ounding a nation-state andin national li e, and on the interests o Jews who wish to live a ull Jewishexistence in their own homeland and to nd in it a sa e haven rom being

persecuted as Jews. Tis rationale should serve as the basis or immigrationpolicy and the varieties o pre erence or Jews and their amilies within the

ramework o that policy. One should remember that the pre erence or onegroup in immigration is suspect, even i it is justi ed, and there ore it is ap-propriate to examine thoroughly the extent o this pre erence so that it willremain directly and rmly connected to its justi cation.

Within the ramework o the existing provisions o the law, Israel needs toexamine the policy o encouraging and initiating Aliyahwhich it practices

in an in ormed manner, on the basis o its goals and needs and on the basiso the needs o its inhabitants. Te Law o Return currently includes a dec-laration o the undamental principle alongside o particular arrangements.Other arrangements related to the immigration o Jews and their amilies toIsrael are ound in other laws (such as the Citizenship Law) and in the regu-lations and practices o many bodies. Te undamental and symbolically signi cant questions which the Law o Return raises are numerous, pro-

ound and deeply controversial or the di erent parts o the Jewish people. A great many o the practical concerns connected with the law stem romissues pertaining to the absorption o non-Jews, individuals whose Jewishidentity is disputed, and their amilies. Tus, or example, there are theproblems o integration into Israeli society and conversion.

Te rationale behind the Principle o Return and its justi cation isbased on the desire to enable those who view themselves as part o the Jew-ish people to join the nation-state o the Jewish people, and to allow thenation-state to promote measures which will acilitatekibbutz galuyot andthe preservation o a stable Jewish majority in the country. Te policy o encouraging Aliyahneeds to re ect these goals in the best way possible, andto require the minimal possible attempted resolution o issues which arecontroversial or di erent parts o the public. Te state, or its courts, shouldnot aspire to provide “essentialist” answers to controversial questions suchas “Who is a Jew?” Decisions such as these, i made by the state, would inany event not resolve the actual controversies. Nevertheless the state must



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develop a mechanism that will enable it to give transparent and air answersto the question o who is eligible to settle in the country and become acitizen.

In the ramework o this policy it is possible to permit, and even toencourage, the immigration o individuals whose connection to the Jew-ish people is insufcient to grant them actual eligibility or Aliyah. As withany policy, this one may re ect the exercise o discretion by the proper au-thorities, but it must never be contaminated by discrimination or ulteriorreasons. Te distinctions at the basis o the policy need to be relevant and

to be equally applicable to everyone under consideration. Likewise, it isimportant to emphasize that, independent o the content o arrangements

or Aliyahand immigration to Israel, the state has a responsibility not toabuse and harass those living under its jurisdiction. It may be permissibleto create a policy regarding entry into Israel under the Law o Return or inthe ramework o general immigration arrangements, but it is essential thatthis be done with due process and while treating the individuals concerned

airly and with dignity.

D. Te Level o Legal Regulation: Constitution, law, administrativedirectives and administrative discretion

o conclude, one nal question: What should be the level o the legal ar-rangements regarding the Aliyahand naturalization o individuals eligibleto make Aliyah? Tis question has recently been the subject o intense dis-cussions in the ramework o the extensive e orts made by the Constitu-tion, Law and Justice Committee in the th Knesset, led by MK MichaelEitan (Likud) and in the th Knesset, led by MK Menachem Ben-Sasson(Kadima), in order to dra t a complete constitution or Israel. Both e ortssought to include general declarations concerning Return and Citizenshipin a Chapter o General Principles. Additionally, a number o NGOs haveplaced on the table o the Knesset either proposals or a complete con-stitution, which deal with these subjects, or recommendations or special

constitutional arrangements pertaining to the subjects o citizenship andreturn.

We have seen that today these subjects are regulated in a combinationo primary laws (the Law o Return, the Law o Entry into Israel, and theCitizenship Law), and in an abundance o directives and guidelines, ando court rulings. We have also seen that court rulings have no small impacton the interpretation and application both with respect to the laws and tothe guidelines. Te main discretion today is in the orming o guidelines,in their implementation and application. In certain cases court rulings have

resulted in the “moving up” o an arrangement rom administrative guide-lines to the statutory level. An obvious case is the Amendment to theLaw o Return, which ollowed Supreme Court rulings in theRu eisenandShalit cases. With hindsight, the Supreme Court ruling in the BenjaminShalit case, and the Amendment which ollowed it, seem un ortunate.It would have been pre erable to accept the minority opinion inShalit—that o judicial restraint as stated by President Agranat and Judge Landau—and thus avoid both the need to amend the law and difculties which oc-curred ollowing the amendment. Te vagueness o the original law, whichdid not include a de nition o “a Jew,” might have extended exibility todecision-makers and acilitated the adaptation o those decisions to suit thepolitical and cultural balance o power in the general public. In the shadow o the principles o the original law, it had been quite easy to shape an

Aliyahpolicy or Jews and their relatives without sharpening the ideologi-cal divides. It would have been wise to obscure the di erences as much aspossible and thus to prevent the backlash and the counter-backlash which

would result rom them, as did indeed occur in the wake o the adoption o the amendment and ollowing the key rulings a terwards (mostly onthe subject o conversion).

But, as we have seen, the question o the level o regulation or the Aliyaho Jews arose even be ore this crisis, immediately upon the ound-ing o the state, in the period leading up to the legislation o the Law o Return. Even i the arrangement o the original law, which combined a



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dministrative discretion or internal guidelines with a vague, basic decla-ration, was pre erable to a law which included a quasi-halachic de nitiono “a Jew” and a “compensation” in the orm o the expansion o Aliyah eligibility—it is difcult to imagine that today we could turn the clock back and take matters regulated by statutory provisions o the Law o Return andrelegate them again to the realm o administrative directives. Tere is a wideconsensus that it would not be advisable to touch the Law o Return by means o legislation. Moreover, there are those who claim that even the pro-visions o the Citizenship Law which apply to individuals eligible or Aliyah

cannot and should not be changed. Te restoration o immigration arrange-ments pertaining to these subjects to the level o administrative guidelines islikely to ace criticism, not only or substantive reasons o transparency andrule o law, but also because o the scope o the judicial review.

We have seen that even during the deliberations over the Law o Returnthere were those who sought to entrench it, and that Ben-Gurion objectedto this suggestion because he did not want to create a hierarchy o laws. Atthe same time Ben-Gurion never imagined that there would be an actualdemand in the Knesset to annul, or at least to curtail, the original Law o Return. Even though the Supreme Court has hinted in an aside that theLaw o Return would pass the constitutional test on the basis o a distinc-tion between “the keys to the house” and ull equality “in the house,” the

ear that the principle o return may possibly be revoked by a court as un-constitutional is seriously troubling or many lawmakers.

It is there ore proposed that, i there is to be a constitution or new leg-islation on the subject o return, the principle expressed in Article o thelaw: “Every Jew [member o the Jewish people] has the right to come to thiscountry as an oleh” be trans ormed into a constitutional principle. Tisprinciple, in and o itsel , does not determine the extent o the right o an in-dividual who is eligible or Aliyah. Most o these issues should be regulated atthe level o a regular statute or even at the level o administrative directives.

Te elevation o the status o the principle o return by itsel to theconstitutional level would, in a certain sense, restore the legal situation to

what it was be ore the Amendment, since the constitutional principle would remain vague, while the de nition o a Jew and the expansion o Aliyaheligibility to include non-Jews would be in erred and re-examined inlight o the constitutional principle and on the basis o its justi cations.

It has been suggested that on the level o ordinary legislation (which canremain within the ramework o the Law o Return or be combined withthe Law o Entry into Israel) the arrangements covered today in Article

o the Law o Return ought to be established, as well as the principle thatpersons who are eligible or Aliyahmay con er the right to make Aliyahto

their spouse and minor children who are making Aliyahwith them as well.I any change is to be made in the Law o Return, it would be advisable toabolish the provision o Article . For today all concede that it has no practi-cal signi cance, and that its symbolic meaning is likely to be misleading, sothat it has no place in a law o the Knesset.

Principles o immigration policy such as incentives or encouraging Ali- yahor deliberate actions or encouraging Aliyah rom a particular place willbe made on the level o policy decisions. It is suggested that it be establishedin law that these decisions will be made by the entire government at theproposal o the Minister o the Interior. Te smooth and transparent appli-cation o the constitutional and statutory principles will require guidelines

which will establish what “a Jewish way o li e” is, how to determine that anindividual leads such a way o li e, and which are the “recognized denomi-nations o Judaism.” Moreover, it is possible that the criteria or answeringthese questions will change to suit the di erent Jewish communities and thedi erent denominations. Nonetheless, because o the sensitive charactero these decisions, it is possible to require that the directives be publishedand authorized by the government as a whole or by one o the Knesset com-mittees.

Te provisions pertaining to the acquisition o citizenship or individu-als eligible or Aliyahwill continue to be included in the Citizenship Law,supplemented by directives and regulations as needed. I there is a decisionto separate entry and settlement in the country according to the Law o



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Return rom the acquisition o citizenship, there will be no choice otherthan to alter Article o the Citizenship Law (which grants citizenship by virtue o return). I assume, however, that a change in the Citizenship Law isnot as highly charged as a change in the Law o Return, and that in any casethere will be a need or a airly broad change in the Citizenship Law. Re-garding the conditions or naturalization o olim, they should be adapted toprovisions which re ect the ideal immigration policy or Israel rather thanduplicating the existing requirements under Articles and .

We need to consider the level o legal regulation, and not just the con-

tent o the norms, also on the subject o immigration policy—both on thelevel o entry into Israel and on the level o naturalization—with regard tothe relatives o Jews who are not directly eligible or Aliyahby virtue o theolehhimsel . Here too there is no one right answer. It is clear that i there isno change in the Law o Return, the ormal arrangements contained in it

will remain at the level o legislation. In any event, policy decisions in theseareas o the Aliyaho Jews and their amily members and o encouragingtheir Aliyahand absorption in Israel should not be made only by the relevantminister, and certainly not only on the administrative level. Tere should bee ective supervision o the guidelines—and over their en orcement—by thegovernment and the Knesset.

Epilogue

Te principle o return is a ormative principle o the State o Israel and itis important to preserve it as such and to place it above controversy. It isimportant that Israelis and Jews in the Diaspora be amiliar with the justi-

cations or this important law, and that it be or them more than a matter

o rote learning; that they should know what answers can be given to those who oppose the law.

Te Law o Return, which re ects this principle, is one o the “bedrock laws” o the State o Israel, as Ben-Gurion declared when bringing it be orethe Knesset. Te part o the law which re ects this principle does indeedenjoy the greatest consensus among Jews in Israel. On the other hand, themore speci c arrangements o return are subject to considerable disagree-ments, both in principle and in practice. Te Law o Return brought to thesur ace the most pro ound contemporary questions about Jewish identity.

With issues such as these, the discussions o the Law o Return are only ashort chapter in a set o undamental debates, which will not be resolved,and cannot and need not be resolved, especially not by the state. But law and policy are practical matters, which the state makes and en orces, and

with regard to them decisions must be made.Te Law o Return illustrates the act that it is at times important to

distinguish between ideological issues that are intractable and are better le talone, and practical issues which it is essential to resolve. Hence practicaldecisions need to be made without aspiring to “resolve” or to “end” theideological debates. Te more general discussions will continue in multipleand varied orms; they will concern ideological matters and practical ones;they will touch on cultural subjects; and they may orm a basis or Jewishidentities and communities. Tese dialogues, which are at times penetratingand divisive, are the orm in which the Jewish People deals with the will to



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preserve its long-lived historical continuity and to preserve the continually regenerating conditions o its existence. With all o the difculties, the Law

o Return and the legal arrangements which it created have per ormed thiscomplex mission in an impressive way.

Te principle o return should be protected with the utmost care. Tespeci c arrangements can and should be examined and improved. Te pol-icy needs to be weighed in light o the needs and changes o the times.Te complex whole o principle, legal arrangements and policies togetherconstitutes a primary instrument or the oundation and preservation o therevived political independence o the Jewish people, with all o its diversity,

in (part o ) the Land o Israel.



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Notes. A preliminary clari cation o terms: Te Proclamation o Statehood re ers

to “Jewish Aliyah,” but this term contains a redundancy since “ Aliyah” is the im-migration o Jews to Israel. Tere ore in this essay I will use either “ Aliyah” or “Jew-ish immigration” according to the context. O course the selection o terms is anideologically sensitive issue. “ Aliyah” is a value-laden word with pre-Zionist Jewishreligious roots. “Jewish immigration” is a neutral term. Tis paper is written roma Zionist point o view.

. Te positions expressed on these subject are an expansion and modi cationo those ormulated in the rst chapter o the Gavison-Medan Covenant .

. wo general comments:First , we should mention that this position paper isbeing published shortly a ter the publication o an additional position paper romthe Metzilah Center, which was written by Shlomo Avineri, Liav Orgad and AmnonRubinstein and dealt with general principles o Israeli immigration policy (except

or the unique aspects pertaining to the immigration o Jews and other individualseligible or Aliyahby the Law o Return). On this subject see Avineri et al., .Tis position paper ocuses solely on the question o the entry and naturalization inIsrael o Jews and others eligible or Aliyah. Second , there is no doubt that when we

discuss Aliyahwe need to discuss the absorption o Aliyahas well: both Israel’s very impressive successes in this eld over the years o its existence, and the difcultieso absorption which preoccupied (and to some extent still preoccupy) the State o Israel. A treatment o these questions is beyond the scope o this position paper.

. “Brit Shalom” and later “Ichud ,” which both belonged to the Zionist camp,although they were a small minority within it, aimed or a level o Jewish immigra-tion that would enable a large and robust Jewish presence that would not be subjectto rule by an Arab majority, but were prepared to aim or “many, but not a major-ity” in order to assuage Arab ears o Jewish domination. Tey there ore agreed that

Jewish immigration should be permitted only up to the point where the Jews werehal o the country’s population.

. Tese disagreements disappeared almost completely during the war, andespecially a ter the extent o the Holocaust became clear. But it is important tomention that all along the need or a Jewish state (or a state or the Jews) also restedto a large extent on the eeling that the existence o the Jews o Europe was notsecure and that it was necessary to prepare a sa e haven or them. See or instanceDon-Yehiya ; Fund .

. Halamish ; see also Weitz .



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Notes

not preclude a policy which initiates the process o bringingolimto Israel. On thisquestion it seems that the discretion, which is exercised in the decision whether togrant a visa to anoleh who is still located in his co untry o origin, is wider.

. Knesset Proceedings, th Session (July , ), p. .

. Knesset Proceedings, nd Session (July , ), p. .

. MK Eri Jabotinsky (the Herut Movement) stated at the podium o theKnesset: “Te question o preventing the Aliyaho Jews to Israel or the reason thatthey are likely to endanger the public health or sa ety, is a highly problematic ques-tion. For who determines that a certain Jew is likely to endanger the public sa ety?Tere were times when there were among us people who wished to prevent the Aliyaho Revisionists to Israel. It is likely that there will come a time when there will be those who shall wish to prevent the Aliyaho communists or the Aliyaho religious anatics to Israel,” (Knesset Proceedings, th Session [July , ], p.

).

. For a rationale such as this, which sees in the ction o article a meredeclaration, see or instance Cohn , , - .

. See his statements in the Knesset Proceedings, nd Session (July ,), pp. - , and Yose Lamm’s unconvincing response in the name o

the Constitution Committee. Tis ction lost some o its practical meaning withthe Amendment to the Citizenship Law, and it was reduced to almost nothingin the interpretation given to it in the ruling o Justice Cheshin in theStamka case.See below Chapter , section C . For an exhaustive discussion see Carmi .

. Knesset Proceedings, nd Session ( July ), p. .

. Te interpretation that citizenship is immediate is supported by the state-ment in Article that citizenship by virtue o return is conveyed to theoleh romthe day that he makes Aliyah.

. oday this is the clause by which citizenship is granted to anyone who wasborn in Israel to an Israeli citizen. Up until the Amendment, this route wasavailable exclusively to non-Jews (mostly Arabs), since Jews received citizenship by

virtue o return according to a combination o Article o the Law o Return with Article o the Citizenship Law.

. See Avineri et al. .

. Bein , - .

. Hacohen , - . rade agreements were or the most part secret,since none o the parties were interested in having their part in the agreementrevealed. Te American Jews who unded the Joint were concerned about the enor-mous amounts o money which were being passed rom the West to communistregimes at the height o the Cold War. Since direct trade with communist states was

. Stein-Ashkenazy . Tis was a pro ound ideological debate, o whichthere were other expressions as well ( or instance, Jabotinsky’s position on the char-acter o the Hebrew University and its students). We should mention that duringthis entire period Jabotinsky was a thinker active in the opposition and was notrequired to reconcile his ideological positions with political, social and economicrealities.

. Tis principle was also acceptable to the Zionist leadership. It was expressed,or instance, in the di erentiation between the ree Aliyaho wealthy individuals

(Category A o the Mandate Aliyahvisas) and “the workers’ Aliyah” which was lim-ited by semi-annual quotas (Category C). See Halamish .

. Ben-Gurion’s statements in the Protocols o the Provisional State Council,

May , .. For a critical discussion o this aspect o the Proclamation o Statehood,

see Kamir .

. Bein , .

. Carmi , - .

. Warha tig , - .

. Ibid., - .

. o understand this point we need to recall the Hebrew original:י ד ו ה י ל כ

ה. צ ר א ת ו ל ע ל י א כ Te location o .ז exercising the right is the country, not the state.Tis subject is important even beyond the act that Israel’s borders have never beenestablished in law. Nonetheless it is not clear whether this was actually intendedto have a practical meaning. Te assumption is that a state does not presume tolegislate arrangements beyond its own borders. It is possible that the choice o the words “Every Jew has the right to cometo this country as an oleh” has a purely ceremonial aspect. But the wording “Every Jew has the right to come to the Stateo Israel as anoleh” could have been just as power ul as “Every Jew has the rightto come to this country as anoleh.” We should note that there are Jews who made Aliyahand settled directly in the territories that were occupied in . In general,

Israel’s stance toward the territories and in particular to their Jewish residents issimilar to its stance toward the other inhabitants o the state. For indications thateven today this distinction has practical importance, see the discussion which took place in the Constitution Committee and addressed proposals regarding return on June , .

. Te original re erred to the “Minister o Aliyah”.

. Tere is no question that with regard to someone who has already arrivedand seeks to enter the country the discretion is limited only to the ( airly narrow)considerations mentioned in the law. But, as we have said, the Law o Return does



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Notes

and in there was also an increased Aliyah rom Romania, which reached itsheight in , with , olimover the course o a year.

. Bein , - .

. Hacohen , - .

. Ibid., - .

. Halamish , - .

. For up-to-date reiterations o the support or the principle o return, seeGans , - ; a; b; Carmi . See also Yakobson and Rubin-stein, . Arguments against Jewish Aliyahand against the Law o Return ap-peared requently in political and polemical documents. For a sophisticated aca-

demic argument which is critical o the Law o Return and o the rationales o those who support it rom a liberal point o view such as that o Gans and Carmi,see Zreik .

. HCJ / Aadel Ka’adan v. Israel Lands Administration, et al.PD( ), .

. Klingho er ; or the Israel Democracy Institute’s proposal, seehttp://www.idi.org.il/PublicationsCatalog/Pages/BOOK_ A/Publications_Catalog_ A.aspx. Needless to say, the Arab resistance to the Law o Return, as well as to the de nition o Israel as a Jewish state, is expressed also in the act thatthe vision statements do not include the principle o (Jewish) return. Te Demo-cratic Constitution composed by Adalah (http://www.adalah.org/eng/democratic_constitution-e.pd ) includes an article which discusses citizenship, and it takes acompletely neutral tone (while expressing a pre erence or one who is born in thecountry to a parent born in the country—the negation o automatic citizenship or“olim” and even or their children born in the country, and including recognitiono the right o return). On the Knesset website discussions o the ConstitutionCommittee on these subjects, in the th and th Knessets, are recorded. Te

th Knesset held seven discussions on this topic: February , ; March ,; March , ; May , ; May , ; June , ; and July ,. In addition, proposals rom the Constitution Committee o the th Knes-

set, background materials, and many other proposals were laid on the table o thecommittee. See http://www.knesset.gov.il/protocols/heb/protocol_search.aspx.

. For sources emphasizing the principle o sovereignty see Oppenheim ;Brownlie . For criticisms o this approach see Chan ; Henkin .

. I do not wish to address the complicated and sensitive subject o universalmoral considerations regarding immigration policy. I am ocusing on special aspectso the justi cation or pre erence o the immigration o Jews to Israel. In a moregeneral way, I discuss the case in which a national community grants pre erence to

prohibited, Israel served as a middleman in trans erring these goods, and there ore was also care ul not to expose its actions.

. At rst this was a continuation o the waves o Aliyahwhich arrived be-tween and , in which most o theolimcame against the will o the Britishauthorities, by illegal means and with the assistance o Ha’apalahagents rom Pales-tine. Tese methods continued to be used even a ter the Proclamation o Statehood,since even though there was ree Aliyahto Israel, it nonetheless su ered rom delaysand rom difculties created by the authorities o the countries o origin or in thecountries in which the olimwere temporarily located. Some o theolim were evendelayed en route by the British who, even a ter the end o the Mandate and theirdeparture rom the country, continued to detain them in camps in Cyprus. It wasonly in March that the re ugee camps were completely emptied.

. Most o the Bulgarian Jews made Aliyah( , people), as well as mosto the Jews o Yugoslavia. In November the exit was permitted o , Jews

rom Yemen, who had been held in a camp in Aden since . In January the Aliyaho the Jews o urkey was permitted, bringing , people. In March

the legal departure o the Libyan community, numbering , Jews, be-gan with the consent o the authorities. Te same month the stream o olim romCzechoslovakia increased, a ter an agreement was reached with the authorities topermit the exit o , Jews in the space o a year. In May , Operation“Magic Carpet” began, ying the vast majority o Yemenite Jewry— , Jews.

, Jews made Aliyah rom China at the beginning o , having arrived thereto escape the Nazis. From North A rica—Morocco, unisia and Algeria—camemore than , Jews in the rst two years o the state. At the end o thegovernments o Romania and Poland permitted the Aliyaho Jews to Israel. By February , , Jews had made Aliyah rom Poland. By , , Jewsmade Aliyah rom Romania. In Operation “Ezra and Nehemiah,” , Jewsmade Aliyah rom Iraq, through eheran.

. Bein , - .

. Hacohen , - . For an updated systematic discussion, see Ha-lamish .

. Hacohen , .

. At the end o there began a decrease—to the point o an almost com-plete reeze o Aliyah. But in the Aliyah rom Morocco picked up, ollowinga wave o nationalism which arose in the country as part o the struggle to be liber-ated rom French control. Tere ore, between - , Jews made Aliyah

rom Morocco. In and a ter ( ollowing the Sinai campaign) an additional wave o Aliyahbegan, mostly rom North A rica. In almost , Jews made Aliyah rom Egypt, and the stream rom Morocco was renewed with ull orce. Dur-ing these years there was also a large wave rom Poland, which had opened its g ates,



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Notes

. Tis vagueness is relevant to the claims o the Palestinians in support o their “right” o return, because one o their claims is that the place where theirhouses were is “their country” according to this article. Even i we accept this claim,this does not in and o itsel substantiate the statement that the right o return canbe based on the right to reedom o movement, because the treaties only prohibitthe “arbitrary” denial o entry, and it is not clear that the Israeli re usal to allow theirentrance is indeed arbitrary. On this topic, see Zilbershats and Goren ( orthcom-ing).

. Yakobson and Rubinstein, .

. See International Covenant on Civil and Political Rights, , Article .

. Zilbershats , - ; Carmi , . International law regardingcitizenship is in a process o ormation and there is a tendency to include in itprovisions which limit a situation o lack o citizenship. Part o the problem is thatthe principles o acquisition o citizenship which are in e ect in di erent countriescan be di erent rom each other and thus a situation can arise in which a child isborn who is not eligible or citizenship in any country. ake or instance the caseo a child born in the territory o a country which grants citizenship on the basis o blood-ties ( jus sanguinis ), but the child’s parents are citizens o a country in whichcitizenship is acquired on the basis o birth-location ( jus soli ). Indeed, the AmericanConvention on Human Rights grants a right to citizenship corresponding to theobligation o states to grant citizenship in certain circumstances (Article o theConvention). Tere is also an interpretation o the Convention on the Rights o theChild which grants children a right o citizenship which corresponds to the obliga-tion o states to grant them citizenship in particular circumstances (especially i they do not have any other citizenship). Tis important topic extends beyond the limitso our present discussion.

. Yakobson and Rubinstein, .

. It is important to emphasize this point, since many have remarked in dis-cussions o the Law o Return that the right o a Jew to make Aliyahis a naturalright, pre-existing the state, and that the realization o this right is the purpose o the state, and not something that the state grants. Te rhetorical signi cance o these statements in terms o the Zionist narrative and the narrative o the state iseasy to understand—but rom a legal standpoint they are inaccurate. Jews did nothave a legal right to make Aliyah be ore the Law o Return (the struggle or ree Aliyahwas a political struggle, not a legal one); and they will not have such a righti the Law o Return is altered with respect to this point.

. For these arguments, see or instance the AdalahConstitution. I will notaddress the question o whether the Arabs are an “indigenous” minority in Israelor merely a “homeland” minority in it. Te question does not impact on the claimin this position paper, and the claim or the status o indigenous minority is based

immigrants who are members o the people which realizes its right to state-levelsel -determination in the immigration state.

. For a systematic discussion, see Gans , - , - . Gansclearly distinguishes between the argument or the justi cation o Jewish Aliyah orthe purposes o creating a critical mass o Jews on the one hand, and the continu-ation o the pre erence in immigration to Israel on the other. On this subject seeGans b. For a survey o the distinction see Gavison .

. Ibid. Tis matter demonstrates that even i the Law o Return is indeed amain eature o the Jewishness o the state, it does not exhaust it. On the contrary,the ability o the state to serve as a base or the realization o the right o Jews to sel -determination—that is expressed in the eatures o the lives o Jews in the country

and in its cultural charac ter—is the justi ying basis o the Law o Return.. Ibid. In order to justi y the realization o the right to sel -determination,

in order to establish what the dominant public culture is, and in order to controlthe regulation o immigration and security, a majority is needed. But considera-tions such as these can be valid even regarding the need o a certain community tomaintain a size permitting a ull existence and transmitting the culture to uturegenerations. Tis applies in contexts o sub-state sel -determination as well.

. Gans expands these points. See Gans , - . Likewise, see Gans.

. Knesset Proceedings, th Session ( July ), pp. - .

. See or instance Miller ; Walzer .

. For a discussion about pre erence on this basis, see Gans . For a criti-cism which emphasizes the di erences between the population o the country anda amily, see Carmi , .

. See the treatment o this subject in the position paper which deals withIsraeli immigration policy, Avineri, et al. .

. Gans argues against the possibility o using afrmative action as a justi ca-tion or the Law o Return; see or instance Gans b, - .

. Kasher , - .

. Carmi , . See also Gans .

. Zilbershats , , note .

. See or instance Miller . See also Gans ( orthcoming).

. Note o the Human Rights Committee’s commentary on this articlestates that this re ers not only to citizens but to other individuals who eel a realconnection to the country in question, such as permanent residents.



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Notes

good by the Governments or authorities responsible.” On the other hand, there arecommentators who beg to di er on this claim. On the status and signi cance o Resolution see Zilbershats and Goren ( orthcoming).

. See or instance Zreik .

. See Zilbershats and Goren-Amitai ( orthcoming).

. I will not address here the argument that it is sufcient or Israel to rec-ognize the existence in principle o the right o return or the Palestinian re ugees(and their descendants), but that the details o the implementation o this rightshould be settled in negotiations between the parties in such a way that there wereno demographic threat to the Jewish majority. Let it sufce to say that according toan ordinary analysis o “right,” it re ers to the act that the state has an obligation.Israel is o course permitted to decide what the ideal policy is or it with respect tothe question o absorbing Palestinian re ugees within its borders. Tus it is permit-ted to recognize their right o return, but itis not required to do so— or the reasons which I have explained at l ength above. For reasons connected to the nature o thediscourse on rights it is recommended that Israelnot recognize theright o return.

. Morris . Te continued justi cation or the act that sel -determina-tion or Jews will be on the state level is based on the persistence o the con ict andon the mani est and consistent religious and cultural di erences between the twocommunities. See also Gans .

. While Kasher ( , - ) does base the Law o Return on afrmativeaction, he nonetheless believes that the ormative stage o the state has still notcome to an end. But the idea o limiting the Law o Return has been raised, orinstance, by Hanoch Marmari (Ha’aretz Supplement, November , ). Onecould say that this idea is a prominent characteristic o “post-Zionism” which is notnecessarily anti-Zionist. See also Berent , - .

. Kasher , - . Kasher does not explicitly state that a ter a certainperiod o time, in which the right o sel -determination will be realized, the state will necessarily become a “state o all its citizens,” but he states that the claim o afrmative action as a justi cation or pre erence in immigration does not apply

a ter the members o the people whose right o sel -determination is being realizedhave become the decisive majority in the state, a nd i such a majority will ensure itsexistence as “a democracy in the strict sense o the term.”

. Gans describes this distinction clearly in his book; see Gans b. Inchapter two Gans deals with the “remedial” justi cations o establishing a nation-state. In chapter ve he discusses the pre erences or the immigration o Jews inmore general terms o distributive justice in migration between di erent nation-states.

on the concept o the new Zionist settlement as a mani estation o colonialism. Seealso Gavison ( orthcoming).

. Yakobson and Rubinstein . Tis norm is expressed in the decision which was made in October by the committee or “Democracy through Law”(“the Venice Committee”)—a committee o jurists, expert in the subject o humanrights, afliated with the European Council. Te Committee’s decision explicitly recognizes a connection between an ethno-cultural community and its kin state asa legitimate and even desirable phenomenon in terms o European norms. I willnot address here the practices o many countries which afrm the legitimacy o a continued connection between nation-states and their diasporas, which live inother countries.

. We should mention that we are dealing here only with the principle o pre erence or the members o an ethnic group, and this is indeed common in many countries. Te speci c arrangements or pre erence which are established in Israelare broader than those practiced in most o the other countries. See Gans b,chap. .

. Tus or instance the Indian constitution explicitly states that Muslims who ed to Pakistan during its partition rom India will not be permitted to returnto India. See also the complex relations between the Macedonians and the Albani-ans in Macedonia, and between the Albanians and the Serbs in Kosovo.

. For a power ul academic argument in this spirit, see Zreik .See also Azmi Bishara’s statements in an interview with Ari Shavit, “Te Citi-zen Azmi,” Haaretz Supplement http://www.haaretz.co.il/hasite/pages/ShArt. jhtml?itemNo= .

. See or instance Katznelson , especially - , - ; Shimoni ,- .

. Gavison .

. Feinberg , - .

. Feinberg , .

. Yakobson and Rubinstein .

. Israel was accepted to the UN on May , . Tere are those whoclaim that Israel committed itsel to implement Resolution when it was ac-cepted as a member o the UN, and the General Assembly conditioned this ac-ceptance on it. Resolution : “[Te General Assembly] resolves that the re ugees wishing to return to their homes and live at peace with their neighbors should bepermitted to do so at the earliest pra cticable date, and that compensation should bepaid or the property or those choosing not to return, and or loss o or damage toproperty which, under principles o international l aw or in equity, should be made



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[ 139 ]

Notes

conscience and religion are protected, and as a center orkibbutz galuyot ” ( rom thePrime Minister’s statement, July ), Warha tig , .

. For Ben-Gurion’s letter see Ben Ra ael , - . Ben-Gurion didnot recommend making a distinction between the registration o religion and thato nationality, and explained that considerations o security prevented the abolitiono these entries. Ben-Gurion explained the need to establish the Jewishness o anindividual or purposes pertaining to eligibility or return and matters o personalstatus (even though there is in Israel no discrimination against residents on accounto their religion or ethnicity). Ben-Gurion noted that in Israel there is complete

reedom o religion, there is no assimilation into a oreign majority community,and that the Jewish community in Israel sees itsel as part o the worldwide Jewishpeople and not as a separate nation.

. For a collection o the responses and an analysis o their meaning see BenRa ael .

. o understand just how deep the controversy was already in , see orinstance Gershom Schocken’s letter o August , when the responses rom the Jewish sages were received. Schocken noted that in the same issue o “Ha-Boker ,” which had stated that in light o the responses “Jewish” would be de ned accordingto halachahand not in accordance with the public perception shared by many Jewsand non-Jews alike, there also appeared an item about “the Jewish hero inUlysses ,”even though it was completely clear that the hero, Leopold Blum, was the son o a Jewish ather and did not grow up as a Jew. On this matter see Gorny .

. HCJ 72/62 Ru eisen v. Minister o the Interior , PD ( ) [Hebrew].Eventually Ru eisen himsel said that Israel had not been ready at the time to deal with the challenge that he presented to it. While the dispute over the relationshipbetween religion and nationality in the Jewish people has certainly sharpened sincethose days, it is not cl ear whether the Jewish community in Israel and in the worldis better prepared or it today than it was in the past.

. HCJ 58/68 Shalit v. Minister o the Interior , PD ( ) [Hebrew].

. An amendment to the law was required because only in that way was it

possible to overcome the court ruling which interpreted the authority o the reg-istration ofcial under the Registry Law against the directives o the minister incharge. Additionally, the Registry Law applied to all o the religious and nationalidentities in Israel. An amendment to the Law o Return appeared more appropri-ate when the amendment pertained solely to the question o the de nition o “a Jew.” At the same time the Registry Law was also a mended.

. Te law did not clearly address the question whether a Jewish citizen o the country—by virtue o birth or by virtue o having made Aliyah—is entitled togrant the right o citizenship to the relatives listed in the article extending Aliyah eligibility. On this topic see below, sub-section C .

. It is not clear how the court would react to the annulment o the law,coupled with a continued policy o a similar nature.

. Concerning individuals, it is possible to see this in the rameworks whicho er conversion and sometimes even in an “industry” o documents testi ying, ap-parently, to Jewish identity. A ew such isolated cases have even made their way intocourt. See or instanceHCJ 1031/93 Alian (Hava) Pessaro (Goldstein) v. Minister o the Interior , PD ( ) . Tis act has led non-Orthodox conversion insti-tutions in Israel not to accept students who do not have a right o residency inIsrael.

. Minister Yitzhak-Meir Levin, the representative o Agudat Yisrael , re-quested that “a person’s Judaism be determined according to Jewish law,” but the

Ben-Gurion government rejected the proposal and decided that “the question o whether or not a person is Jewish should be considered a actual question, and thecorrect answer to it depends on the particular circumstances o each case” Negbi

(based on Warha tig , ).

. A survey o the historical developments in this area can be ound in theremarks o the Minister o the Interior, Chaim Moshe Shapira, when he presentedthe proposal or the Amendment or the rst reading in the Knesset: KnessetProceedings, th Session (February , ), pp. - .

. Feinberg , .

. Zerah Warha tig recounts in his book how the issue caused a bitter con-troversy in the Knesset and in the government, and even he, who was serving asthe Minister o Religions, vehemently opposed these provisions ( or instance, hisstatements in the budgetary discussion rom March , that “the People o Israel are both a nation and a religion. In this is our strength—that there should beno separation between nation and religion”). See Warha tig , .

. Part o the dispute pertained to the question o separation between nation-ality and religion. But even the new directive did not distinguish between them,and perhaps or this reason the ollowing question did not come up: Why shouldthe declaration o an individual that he is a Jew inhis ethnic/national identity be

negated, simply because he isa member o a di erent religion? I will return to thisimportant subject later on.

. Warha tig , .

. Te Committee o Tree (the Prime Minister, the Minister o the Interior,and the Minister o Justice) stated that it would “listen to opinion statements romthe sages o Israel in the country and outside it regarding this subject, and wouldcompose registration provisions which would suit both the accepted trad ition in allthe circles o Judaism, orthodox and liberal, in all o their denominations, as wellas the conditions unique to Israel as a sovereign Jewish state, in which reedom o



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Notes

. HCJ 1031/93 Alian (Hava) Pessaro (Goldstein) v. Minister o the Inte-rior , PD ( ) [Hebrew].

. Gavison and Medan , . For the recommendations o the com-mittee see http://www.knesset.gov.il/docs/heb/neeman.htm.

. Incidentally, the possibility o distinguishing between the religion entry and the nationality entry may not satis y the demands o the Re orm and Conserva-tive movements, since they seek recognition o their conversions as signi ying theacquisition o Jewish religious identity, and not just a national one.

. Te matter is beyond the scope o this paper. Sufce it to say that despitethe serious rami cations o this ruling, a satis actory way to deal with the unda-mental and practical problems that this ruling has raised has not yet been ound.SeeEretz Acheret .

. HCJ 11585/05 Te Movement or Progressive Judaism v. Ministry o Im-migration and Absorption, (not yet published—May , ). One should notethe institutional aspects o this continuing debate: It does not consist solely o thequestion about what decisions are the right ones or the State o Israel, but rathergoes beyond this to the question o who is supposed to decide them: the institutionso religion or the institutions o the state? I it is the institutions o state, shouldit be the representative legislature or the court invoking the discourse o constitu-tional rights and principles? See below.

. We should mention that Ben-Gurion himsel re erred to this subject inhis letter to “the sages o Israel.” For the intra-Orthodox debate at that time see orinstance Brandes ; Abraham .

. See or instance the arrangement regarding the great-grandchild o a Jew who wishes to make Aliyahwith his parents, one o whom is the grandchild o a Jew.“Te consular protocol or dealing with Aliyahcandidates” regulated this subject inthe ramework o the Law o Entry into Israel: “A non-Jewish minor, who isthe great-grandchild o a Jew, will receive a permanent residency visa according tothe Law o Entry into Israel on the condition that he departs with his parent or hisparent has already made Aliyah[…]” (Article ). We should note that this pro-

tocol addresses the “procedure or Aliyahcandidates rom countries in the ormerSoviet Union.” Te protocol also states that “the divorcée o a Jew who requests an Aliyahvisa in order to join her children rom her ex-husband is not eligible or an Aliyahvisa” (Article ). Tis means that the amilial right o return trans ers only

rom parents to children and not rom children to parents. Tat is to say, a gentileparent o a Jewish child is not eligible or Aliyah. O course it is possible to permitsuch people to enter and even to settle in the country according to the general laws.Te principle that the right o return o those eligible does not con er rights on theirparents was also established inHCJ 758/88 Richard Kendall, et al. v. Minister o the Interior , PD ( ), [Hebrew].

. Te law adopted the majority opinion in the Ru eisencase, that one whobelongs to another religion cannot be considered a Jew in terms o his national-ity (even though the halachahmay view him as a Jew), and rejected the majority opinion in the Shalit case, according to which the children are in act withoutreligion—but nonetheless Jews by nationality. Apart rom the problem concerningconversion to Judaism, this de nition means that according to the laws o the stateonly someone viewed as a Jew according tohalachahin the religion entry can beseen as a Jew by nationality.

. Tus, or instance, MK Yishayahu ( Ma’arach) said: “But i they wish tobe registered and considered Jews in every respect, how can they do so withoutthe consent o the Jewish people, according to tradition?” (Knesset Proceedings,

th Session (February , ), pp. - [Hebrew]). Similarly on this subjectMinister Menachem Begin said: “Te rabbinate can nd an easy and digni ed way to convert spouses in mixed marriages, i they understand that this is the publicnecessity o our time” (ibid.)

. See the statement o MK Uzi Feinerman, ibid., pp. - .

. See or instance the statement o MK Nissim Eliad (the IndependentLiberal Party), ibid., pp. - .

. And indeed, when the Shalit amily had an additional child, the SupremeCourt, in a brie ruling by a panel o three judges, rejected their petition to registerthe child in the same way as the previous children. SeeHCJ 18/72 Shalit v. Minis-ter o the Interior , PD ( ) [Hebrew]. Te amendment to the law also yieldeda new kind o appeal: petitions by Jews to remove their registration as “Jewish” intheir nationality entry and to change it to “Israeli”: CA / amarin v. State o Israel , PD ( ) [Hebrew]. While this matter is not connected to the subjecto this position paper, it is relevant to the question o the identity o the collectivethat enjoys the right to sel -determination in Israel. amarin’s petition was rejected,but the debate has not come to an end. For a comprehensive argument in avor o recognizing “Israeli” as a nationality, see Berent . Recently a similar petitionby Uzi Ornan et al. was rejected by the Jerusalem District Court; see HP (Jerusa-lem) / Ornan, et al. v. Ministry o the Interior , ak-Meh ( ),

[Hebrew].. See or instance the discussion in Berent’s book; Berent . Similarly

see Shaham ; Yehoshua .

. HCJ 230/86 Miller v. Minister o the Interior , PD ( ) [Hebrew].

. HCJ 2859/99 ais Rodriguez- ushbein, et al. v. Minister o the Interior,et al. PD ( ), [Hebrew];HCJ 2901/97 Na’amat, et al. v. Minister o the Interior, et al. akdin (Elyon) ( ) [Hebrew].



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the Ministers Committee or coordinating the activities between the Governmenton the one hand and the World Zionist Organization and the Jewish Agency on theother, met in order to discuss the matter o the alashmura. Te chairman o the Jewish Agency updated the committee that , people were involved, and thatat that time an exact list was being put together o the names o eligible individu-als or the purpose o initiating the Aliyahoperation. On November , , theMinisters Committee or Matters Regarding the Remnant o Ethiopian Jewry metand decided to bring a group o people every month.

. Corinaldi ;HCJ 6563/94 Inchobedink v. Minister or Aliyah Ab-sorption, ak-El ( ) .

. HCJ 3648/97 Stamka, et al., v. Minister o the Interior, et al . PD ( )

[Hebrew].. Ibid., especially sections - . We should add that Judge Cheshin re-

marked that Article o the Law o Return does not g rant rights and that the articleis merely declarative. For a detailed discussion see Carmi .

. Corinaldi , - , - . As stated above in note , theprocedure also established that a (minor) great-grandchild will receive a visa orpermanent residence according to the Law o Entry into Israel on the conditionthat he departs with his parent or that his parent had already made Aliyah. Regard-ing the parent o an individual who is eligible or return, the procedure states thatout o humanitarian considerations it is possible to approve permanent residence

or a [non-Jewish] parent in Israel according to the Law o Entry into Israel i theparent is elderly and solitar y.

. Corinaldi , - .Kesimare the religious leaders o Ethiopian Jews.

. See or instance Government Resolution o November ;Government Resolution o September .

. Tus or instance one o the last decisions made by the Israeli govern-ment on this issue (Resolution no. o September , ) was the ormationo a committee or coordinating activities between the Israeli government and the Jewish Agency. A breakdown o the roles o the steering committee reveals a clearpicture which emphasizes the creation o a plan or rein orcing Jewish identity inthe Diaspora communities and strengthening the connection between the Diasporacommunities and the State o Israel. Encouraging Aliyahwas not mentioned evenonce in these decisions. A ew weeks be ore this government meeting, the Jewish Agency signed an agreement with the “Ne esh B’Ne esh” organization, which assistsolim rom North America be ore and a ter their arrival in Israel. Tis agreementestablished that the organization would be responsible or encouraging Aliyah romthe United States and Canada, and that the Jewish Agency would maintain only the authority to check the eligibility o Aliyahcandidates. Te Jewish Agency, so it

. Shamgar, in his directive, stated: “According to the purpose o Article A o the law—the term ‘child […] o a Jew’ should be interpreted as i it were com-posed o these two levels: the person in question is the o spring o the individual with the rights; and in order to completely satis y the requirement o the law, it issufcient that the individual with rights be Jewish at the time that he makes Aliyah.I you would like a ormal basis or the interpretation, I would point to the di er-ence between the term ‘one who is born to a Jewish mother’ and the term ‘the childo a Jew’: while the rst expression re ers to the day o birth, the second expressiondoes not necessarily re er to the same day,” see Corinaldi , - .

. See below, chapter C , onBeta Yisrael .

. Corinaldi , .

. Ibid., - .

. Ibid., - .

. Corinaldi .

. Waldman , .

. Ibid., .

. Corinaldi , - .

. Waldman , - .

. Corinaldi .

. On September , , the Ministers Committee or Matters o Aliyah Absorption decided to approve bringing individuals o thealashmurato Israel orhumanitarian reasons, on the basis o amily reuni cation. On September thegovernment ormed a special committee o ministers to deal with the subject o the

alashmura. Te government accepted the recommendations on February , and in its decision xed an additional amount o time to enable amily reuni cation

or humanitarian reasons; it was urther emphasized that the State o Israel wouldnot be involved in conversion activities in Ethiopia. In the meeting o the commit-tee on July , , a division o labor in terms o budgeting was decided upon—the Jewish Agency would take responsibility or bringing them to Israel, and theMinistry o AliyahAbsorption would be responsible or absorbing them rom themoment they arrived in Israel. In the decision it was also determined that the treat-ment o all those coming rom Ethiopia would be equal, regardless o whether they arrived by virtue o the Law o Return or the Law o Entry into Israel. On May

, , the Ministers Committee met or an additional session and once againcharged the Minister o the Interior with executing the previous decision. On June

, , the Ministers Committee or Diaspora A airs decided once again that thecompound in Addis Ababa would be closed and that the Aliyahwould take placeaccording to law and according to the relevant decisions. On November , ,



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had signed such a document. In response the ministry re rained rom granting herservices such as the renewal o passport or identity card, but did not explain thereason or this conduct, and did not even openly reveal the existence o the proto-col. Te lawsuit was closed in an ag reement between the parties: the Ministry o theInterior abolished the protocol, and the petition was withdrawn. An additional caseinvolved a woman who made Aliyah rom Uzbekistan and produced her mother’sbirth certi cate as proo o her Jewish identity. A ter several years the woman’smother arrived in Israel and also requested Israeli citizenship by virtue o the Law o Return, on the basis o her Jewish identity. A ter investigating her request, theMinistry o the Interior determined that the mother’s documents were orged, andthere ore not only did they reject her application, but they also retroactively re-scinded the daughter’s registration as a Jew. Te mother and daughter petitioned

the Supreme Court. Te Court stated that while the Law o Return did not addressthe question o the basis on which the Jewishness o the Aliyahapplicant’s mother would be recognized, the ministry was expected to apply rules o “administrativeevidence.” Tis means that the initial burden o proo o the applicant’s Jewish iden-tity lies with the applicants. I they satis y this requirement, then a “presumptiono eligibility” holds or them. In order to disprove this presumption the ministry must produce convincing administrative evidence. In this situation o retroactivenulli cation o status, and due to the serious in ringement o the daughter’s relianceinterest, particularly strong administrative evidence is required; seeHCJ 394/99 Maximov v. Ministry o the Interior,ak-El ( ) [Hebrew].

. Te Knesset Center or Research and In ormation .

. Corinaldi , .

. Report rom the Administration o Society and Youth o June ,http://noar.education.gov.il. In the Constitution Committee’s discussion o thesubject o return held on June , it was reported that the percentage o non- Jews in the Aliyah rom the FSU countries rom - was %, and that in

it was already % and has continued to rise since then.

. Protocol rom the Aliyah, Absorption, and Diaspora Committeemeeting, Wednesday, July .

. See Rebhun and Malach .

. For a comprehensive discussion on the problems o absorbing the mem-bers o the Ethiopian population in Israel, see the special issue o Eretz Acheret devoted to the subject (Eretz Acheret ).

. Te Knesset Center or Research and In ormation .

. See the discussion o this subject in Avineri et al. .

. We have not ound statistics on the extent o this phenomenon, but theproblems o ctitious marriages or the purpose o acquiring a status have been

would seem, will ocus on educational activity and on rein orcing the Jewish iden-tity o these communities. Anshel P e er reported inHaaretz on the agreement andstated that the encouragement o Aliyahis no longer a national project; see P e er

.

. For a general description, see Hacohen . Te activity o theNativ organization began in a semi-clandestine way in the s, aiming to establishconnections with Jews in the Soviet Union and to cultivate their connection toZionism and to the State o Israel. Tis coincided with the actions o bodies andorganizations,—governmental and otherwise—throughout the world, to changethe policies o the Soviet Union, which denied Jews the right to religious, spiritualand national reedom, and to open the gates o Aliyah. Nativ was established in

and was directly accountable to the Prime Minister, based on the understand-ing o the unique difculty in maintaining a connection between Israel and themillions o Jews in the Soviet Union. In those years, because o the unconventional ways in which it operated,Nativ was considered one o the organs o the intel-ligence community.

. For instance, the Dekel Committee in ; the Hof Committee in; and the Vardi team which operated in .

. Government Resolution no. , March , .

. See Government Resolution no. , July , . Te decisioncharged Nativ to operate in Germany, where , Jews rom the ormer SovietUnion live, as well.

. Protocol , the Aliyah, Absorption, and Diaspora Committee meeting, Wednesday, July , .

. Announcement o the Secretary o the Government at the end o thegovernment meeting, July , .

. On this matter see Avraham Poraz’s article, which describes his attempts asMinister o the Interior to change the policy o the Population Administration andthe built-in difculties in the eld, http://news.walla.co.il/?w=/ / .

. See or instanceHCJ 6847/02 Zarini v. Minister o the Interior , ak-El ( ) [Hebrew]. In August an appeal was made to the SupremeCourt on the grounds that the Population Administration applies a policy (whichis expressed in protocol . . ) according to which the department re rains romgiving services to citizens suspected o acquiring their status in Israel illegally. Inthe petition it was claimed that a woman made Aliyah rom the SU and received anidentity card which stated that she was a Jew. A ter a number o years she appliedto renew the document. At that point the personnel o the Ministry o the Interiorin ormed her that they had discovered that in the past she had signed a documentin which she had declared that she was a Christian. Te woman denied that she



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Notes

Aliyahby means o assistance in realizing Aliyahand absorption. Te State o Israelin act invests substantial resources in the absorption o Aliyah. Where a supportsystem by the state operates, it must be applied equally. But beyond the general ob-ligation o the state to ensure the basic rights o all o its residents—botholimandnon-olim—it is not clear that the Law o Return imposes an obligation on the stateto assistolimin their absorption. I should note only that it is possible to answer thisquestion by way o interpretation o the legal text, but it is also possible to approachit by means o a “conceptual analysis” o the very discourse on rights. Sometimesthere is a tendency—in my opinion mistaken—to give the expression “right” astronger and wider meaning than is necessary or desirable. When the discourse onrights is an important component in the political discussion, such expansive ten-dencies are likely to raise tensions both on the substantive political level and on the

level o the institutional relations between the political system and the courts. Fora general discussion o the connection between the human rights discourse and theproblems o immigration, see Gavison ( orthcoming).

. Tis approach characterized a general tendency o the Israeli establish-ment in the rst years o the state to pre er pragmatic solutions over the directcon rontation o ideological controversies.

. Weiss , Halamish b.

. For a comprehensive discussion see Corinaldi .

. I do not address here the act that one who is not recognized as a Jew by the halachahcannot marry a Jew and as a Jew, according to Israeli law. Tis is anextremely important subject, but it will not be resolved by an extended de nitiono a “Jew” or o one who is “eligible or Aliyah” according to the Law o Return, aslong as Orthodox rabbinic courts tending toward a stringent interpretation have amonopoly on marriage and conversion in Israel. In the Gavison-Medan Covenantit was indeed suggested that the Orthodox monopoly over these subjects be abol-ished. We shall devote a separate position paper to this important topic.

. Tis situation can arise regarding the great-grandchild o a Jew, whoseconnection to Judaism is only through his ancestors, but who nonetheless main-tains a Jewish li estyle and eels himsel to be Jewish, or with regard to one whoseconnection to Judaism was ormed through a non-Orthodox conversion which wasnot a recognized conversion—his or that o his mother or his grandmother.

. Tis discussion needs to be held with regard to communities such as tribes which claim Jewishness in Asia or Latin A merica or with regard to the Subbotniki. A halachic ruling regarding their Jewish identity should be neither a necessary nora sufcient condition regarding the question o the State’s obligation to bring themto Israel. As we have said, such an obligation must stem rom the considerations o Israeli policy based on the degree o the connection that these communities have with the Jewish people and tradition and on their absorption potential in modern

discussed in courts, and the phenomena o ctitious marriages or the purpose o trafcking in women have been discussed in the Knesset committees. Aliyah or thepurpose o receiving a “passport o c onvenience,” such as the ability to travel to Eu-ropean countries without a visa, a possibility denied to holders o Russian passports

or instance, is a airly well-known phenomenon. Tis becomes possible because theapplicant or an Israeli passport only needs to demonstrate his residence in Israelover the course o the rst year a ter Aliyah. In practice, there are many who usetheir Israeli passport or travel even though they do not live in Israel. A “piquant”example o another kind is the act that the basketball player, Sue Bird, acquiredIsraeli citizenship in by virtue o the right o return (her ather is Jewish) inorder to play basketball in Russia without being an American oreigner. At the sametime, it is worth noting that guest athletes whom Israeli teams are interested in add-

ing to their ranks enjoy a pre erred, easy immigration track in Israel, without havingany connection to Judaism.

. Tis does not re er, o course, to those who have chosen to settle down inIsrael without receiving citizenship. Tis also does not re er to the residents o East Jerusalem who are not usually citizens o the country. In addition to these, thereare not a ew people living in Israel who do not have permanent residence, such asre ugees or guest workers who have been in the country or many years, as well aspermanent residents who are not citizens o the country. Indeed, the Metzilah posi-tion paper dealing with Israeli immigration policy suggests permitting individuals who legally reside in the country or an extended period o time to enter a naturali-zation track; See Avineri et al. , - .

. Gans , - .

. Carmi , .

. Tis entire paragraph raises important questions regarding the humanrights discourse and especially the applicability o this discourse to the subject o immigration. One o the important questions is: What are the obligations imposedby the Law o Return and on whom are they imposed? We have said that in a cer-tain way the answer is a matter o interpretation. Te statement: “Every Jew has theright to come to this country as anoleh,” certainly grants a Jew the reedom to make

Aliyah. I this is a constitutional provision, it may also impose an obligation on thestate not to legislate a law which will prohibit Jewish Aliyah(beyond the relatively narrow limitations which are included in the law itsel ). But this obligation, as im-portant as it is conceptually and historically, is a negative one. It is not at all clear i the Law o Return imposes on the state positive legal obligations with regard to Jews(or individuals eligible or Aliyah). Tere is no doubt that Israeli governments haveo ten seen themselves as subject to such obligations, but we have seen that there were also those who believed that the state was permitted to establish an Aliyah policy in accordance with considerations o the state’s absorption ability and theskills o potentialolim. Tis emerges very clearly when it is a matter o encouraging



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Notes

. Gavison-Medan , .

. Later on we will address the question o whether or not the State o Israelhas an interest in encouraging such Aliyah, even i these immigrants are not Jewsin any sense, in light o the success ul patterns o absorption and integration o non-Jewisholimsuch as these. Tis question emphasizes once again the importantdistinction between principles o return and immigration policy. It is possible thatit would be appropriate to maintain a welcoming immigration policy or peoplesuch as these, without basing it on the provisions o the Law o Return itsel . Tisdistinction is expressed clearly in the discussions o the Constitution Committeeon the principles o return and citizenship in the th Knesset. See or instance thediscussions that took place on June and July .

. As we have said, this “de nition” has been suggested in the past only inthose contexts in which it was reasonable to assume, practically speaking, that only one who actually deeply elt Jewish would choose to identi y as a Jew and to tiehis/her ate to that o the Jewish people. Haim Cohn, or instance, quali ed theproposal in that an individual’s declaration o his Jewishness would be consideredas evidence or his identity only i it were made “in good aith”. Te requirement o good aith injects into the process a series o ascinating problems o evidence, but

or our purposes here it implies that behind the sel -identi cation as a Jew there isnonetheless something other than mere whim or the interests o the person makingthe declaration. For Haim Cohn’s position, his rulings in the Ru eisenand Shalit cases, his response to Ben-Gurion’s question, and his explanation o the “good aith” which was needed in order to provide a basis or a person’s declaration regarding his Jewishness, see the articles in the second section o Cohn .

. Moreover, it is not entirely clear when the matrilineal descent rule was es-tablished in Jewish law. During the biblical period a child’s lineage was determinedaccording to the ather. It is customary to ascribe the change to matrilineal descentto the almudic period. Te change began, apparently, at the decree o Ezra theScribe ( th century BCE). Te reasons or this are not clear, but it is customary toascribe them to the biological certainty o the identity o the in ant’s mother. Fora discussion, see Corinaldi . For the signi cance o using matrilineal descentin our time, see the disagreement between Justices Silberg and Berinson in theShalit case. Berinson stated that it was not reasonable that Shalit’s children wouldbe viewed as Jews while the son o a Jewish mother and a Muslim ather who had joined with the enemies o Israel would be considered to be a Jew. Silberg respond-ed that the terrorist is a wicked Jew and that while theShalit children might beinnocent children, they nonetheless were not Jews.

. Gavison and Medan , .

. At the basis o this statement there is the principle which was approvedby the Supreme Court in the Stamka a air, according to which Jewish citizens o the country cannot naturalize or grant a status in Israel to their oreign spouse as

Israeli society. Either way, the act that decisions regarding such an Aliyahdo notreceive attention needs to be corrected. Tus, or instance, in the arrangements law proposal which accompanies the - budget it was proposed to stop bring-ing the alashmurato Israel—a reversal o the government’s previous decision.

. I am not addressing here the claim that Judaism today is in act merely a religion, since Diaspora Jews are counted among the nations in which they live, while Israeli Jews belong to “the Israeli people,” which does have a connection to“the historical Jewish people,” justi ying pre erences such as the Law o Return,but that today it is incorrect to speak o a “Jewish people.” For a claim such as thisin a Zionist ramework, see Berent . For a post-Zionist or perhaps even anti-Zionist claim, which denies the existence o the Jewish people, see Sand . Wehave seen the way in which these debates were re ected in the controversy, inthe judicial rulings in theRu eisenand Shalit cases and in the argument surround-ing the de nition o “Jew” in the amendment to the Law o Return.

. As we have said, the subject o conversion (and a ew other key topics)can be extremely controversial even within the Orthodox community itsel . Tequestion o the state monopoly which is subject to interpretation within this de-nomination is a serious and ascinating question, and today it also has enormouspractical signi cance. But the question o conversion in Israel is mostly connectedto the question o absorption and to the shaping o Israeli society, and less so toquestions concerning return. Tere ore, even in the Gavison-Medan Covenant wetreated the subject o conversion only incidentally, since we completely ruled outconversion or a person living in Israel as a route or acquiring status or citizenshipby virtue o return. Tere are those who believe that the practical signi cance o theissue o conversion is greater than that o the debate about return, because o thein uence that widespread conversion o non-Jews living in Israel and assimilatinginto its society could have on the nation’s character. Nonetheless, both as a mattero principle and because o the reality o the continued Orthodox monopoly onmarriage and divorce (about which it is not clear i and when it will ever change),it seems as i the solution to the problem o the intergration o non-Jews must be

ound not only through conversion but rather also through the creation o a realsocial space where joining by means o a “sociological conversion” (to borrow the

apt phrase coined by Asher Cohen ) will become meaning ul in social termsand will make possible a real legal or social bypass o the Orthodox monopoly.

. Although we should mention again that such changes took place, andthat some o them even received the approval o the Supreme Court, as with theStamka case.

. Tus or instance one whose relation to the Jewish people is throughthree continuous generations o Jewish athers is not eligible or Aliyah, even i (s)he lives as a Jew and is a member o a Jewish congregation, and is considered a Jew by themselves and others.



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Notes

. Along with this, American law recognizes immigration o amily mem-bers, which is based on the connection between the immigrant and someone whois already a citizen or resident in the United States.

. Zilbershats , - .

. Although it would seem that even in the discussion o the CitizenshipLaw the hidden assumption was that individuals eligible or naturalization or am-ily reuni cation would be or the most part the amily members o Jews, and there-

ore the tendency was toward great leniency in the naturalization process relativeto the laws o immigration in other countries. For this reason the Citizenship Law itsel is airly liberal and does not contain a ramework adequate or the contempo-rary immigration needs o Israel. On this subject see Avineri et al. .

. Moreover, or the rst two years in which there was a Law o Return therestill was no Citizenship Law!

. Tis proposal received wide approval both in the advisory group whichaccompanied the composition o the Gavison-Medan Covenant and in the dis-cussions o the Constitution Committee on the subjects o return and citizenshipin the th Knesset. In these discussions it was proposed to leave the details orlegislative discretion, but at the same time to establish in the constitution itsel theclear possibility o separating the right o return rom the timing and conditions

or acquiring citizenship. Most o the participants in the discussions pre erred thisoption. See especially the discussions which took place in the nal meetings on June and July .

. In this there is a response to the claim which was voiced against the ideao separating the acquisition o citizenship rom entrance into Israel orolim, onthe grounds that many olimare dra ted into the army and even sometimes sacri cetheir lives or the country. First, in Israel the obligation to serve in the army doesnot apply to citizens but rather to residents. One who makes Aliyahand receives thestatus o permanent resident must serve in the army. Second, the Citizenship Law exempts individuals who served in recognized orms o national service rom someconditions or naturalization; Article (a).

. As opposed to Article (a) o the Citizenship Law, which states that acondition or naturalization is the or eit o previous citizenship.

. I the conditions o naturalization regarding those who are notolimac-cording to the Law o Return are altered so as to include such things as immigrationquotas or economic thresholds, these are not likely to a ect individuals making Aliyahby the Law o Return sinceolimare allowed to enter the country and be itsresidents without them. In any event, restrictions such as these will be more e ec-tive i they are applied at the stage o entry and especially at the stage o grantingpermanent residence. Tus the question is not expected to arise as a condition ornaturalization.

a matter o return, since with respect to such Jews there is no reason or grantingthem pre erence or immigration to their own country. In this sense there is no di -

erence between Jewish and non-Jewish citizens o the state—nor should there be.Tis argument also rein orces the statement that the determination o Article o the law is indeed a ction, the purpose o which is declarative, and that no rightsshould be granted on its basis. As we have mentioned, this is the way that JudgeCheshin ruled on the same subject. See Carmi , - .

. Gavison and Medan , .

. Ibid., ; see alsoHCJ 265/87 Gary Lee Beres ord, et al. v. Ministry o the Interior.

. Tere have been not a ew mixed reactions to the proposals o Gavison-Medan, and not a ew criticisms. In this position paper I address principally thereservations which were voiced in the many construc tive comments that I received

rom the participants in an internal discussion o the dra t o this paper.

. Te minimal change which is required is the abolition (or change) o Ar-ticle A (eligibility or amily members) and A rticle B (the de nition o “Jewish”). As explained above, it would be advisable to also abolish Article o the law, eventhough in light o the interpretation which it has received and in l ight o the change in the Citizenship Law, such a change will not have pr actical implications.

. Te immediacy is established explicitly in the law, since Article (b)reads: “Citizenship by virtue o return is acquired by a person having come toIsrael as an‘oleh’ a ter the establishment o the State—in e ect rom the day o his‘aliyah’.” Te act that the naturalization o a Jew is not conditioned on stipula-tions similar to those which are established in Article o the Citizenship Law isimplied in a less direct way. First o all, i citizenship is granted rom the day o Aliyah—it does not seem that there is sufcient time to examine additional condi-tions such as those required in Article (and which include a continued residencein Israel). Second, in light o the explicit discussion o the conditions which makeit permissible to prevent the entrance o a Jew into the country, it seems that thelegislators were not prepared to grant the Minister o the Interior extensive discre-tion in demanding conditions or naturalization. Nonetheless the structure which was adopted—a structure which distinguishes between entrance and settling in thecountry on the one hand and naturalization on the other—has an internal logic.Tere does not seem to be a conceptual or logical requirement that citizenship by virtue o return will be granted without additional conditions, as long as the righto the Jew to enter the country and live in it is not in ringed upon. On this subjectsee also the discussions o the Constitution Committee on the principles o returnand citizenship in .



[ 152 ]


[ 153 ]

Notes

provisions o the Law o Return, in order to ensure that they would be able to avoida change in the detailed de nition o “a Jew” under the newly enacted law. See thediscussion o July . Tis position in act renders highly doubt ul the possibil-ity that the Knesset would rame a constitution in the oreseeable uture, since itdoes not appear that a consensus on these basic questions is taking shape. Tis actrein orces the practical conclusion that it would not be appropriate at this time tobegin processes o deliberate change in the Law o Return itsel , and that it wouldbe pre erable to make progress by way o policy decisions.

. Including these provisions in theLaw o Entry into Israel has a ew ad-vantages, among them the emphasis on the act that the principle o return itsel is part o the constitutional oundation o the state, while speci c arrangementsare inserted into the legislation that apply to the subject generally. Such relocation would also acilitate avoiding the re-legislation o Article o the Law o Return, which as we have said is misleading and in any event does not grant additionalpractical advantages to Jews. Also, the abolition o the broad amily provisions o Article A and enacting the change proposed regarding the de nition o “a Jew” canbe made easier i the discussion about them takes place in the context o granting aconstitutional status to some o these norms.

. Tus, or instance, the evidence regarding the Jewish identity o an indi-vidual in the FSU is very di erent rom that which exists or the members o BetaYisrael or or the Jewish communities in Western Europe.

. See or instance the proposals in Avineri et al. .

. Tis matter is valid not only with respect to matters o Aliyahand theimmigration o Jews and their relatives, but also with regard to general immigrationissues. It seems that a large part o the judicial rulings on matters o immigration isbased on the act that judges object to the illegitimate practices o and arbitrarinesso the ofcials o the Population Administration. I should stress that while suchabuse o citizens and immigration applicants on the part o ofcials is indeed unac-ceptable, it is important not to create a judges-made immigration policy solely outo the desire to recti y abuses o such an illegitimate policy.

. Tis condition is not included in those mentioned in Articles and o the Citizenship Law. It would seem that the assumption is that i they apply, natu-ralization will be denied within the discretion o the Minister o the Interior.

. Corinaldi .

. On this subject see Rebhun and Malach , who note that the relativesize o groups such as these, Jewish as well as Arab, is on the rise in Israeli society and that Israel needs to be prepared to deal with this act.

. See the discussions o the Constitution, Law and Justice Committee inthe past two Knessets on the di erent parts o the constitution proposals. Completeconstitution proposals were placed on the table o the Knesset by the Israel Democ-racy Institute ( ) and by the Institute or Zionist Strategies ( ). Proposalsdealing with the subjects o return and citizenship were presented by the Israel Reli-gious Action Center (the Center or Jewish Pluralism). See the materials which wereappended to the discussions o the Constitution Committee o the th Knesset.

. Earlier (note above) we mentioned the re erence to the Law o Returnby President A. Barak in theKa’adan a air. Te Law o Return itsel was never subject to a direct constitutional review, and given the situation in Israel it is difcult toimagine that anyone would present such a challenge. I this were to occu r, it is hardto believe that the law would be overturned. Nonetheless, a discussion o this sortmight raise difcult questions which the court might well pre er to avoid. In any event, in the current legal situation, the Law o Return cannot be subjected to sucha constitutional review (although it is possible to seek a limited interpretation o it)on account o the “ Validity o laws” clause in Basic Law: Human Dignity and Lib-erty. Tis act is an additional reason or the reluctance to make legislative changesin the Law o Return, since even i a new law improves the protection o humanrights, the court is authorized to overturn it, constitutionally speaking, on accounto the act that the “ Validity o laws” protection no longer applies to it.

. Te original proposal preserves the exact power ul phrasing o the Law o Return. But my vaguer ormulation seeks to avoid the need to decide—or toinvolve those who implement the law or the courts in deciding—the seemingly religious question “who is a Jew?” Te rationale o our proposal expands the cat-egory o Aliyaheligibility so that it will include in it those who belong to the Jewishpeople even i they are not recognized as Jewish by thehalachah. Te alternativephrasing—“a member o the Jewish people”—emphasizes the di erence betweenthe identi cation o one who is eligible or Aliyahaccording to the Law o Returnand one who is “just Jewish.” On this issue too the proposal ollows the Gavison-Medan Covenant.

. Tere ore it is not surprising that some o the members o Knesset romthe religious actions re used to discuss the articles o the constitution which per-tained to citizenship and especially to return be ore a parallel re-legislation o the



[ 154 ] [ 155 ]

Sources

A 630/70 amarin v. State o Israel , PD ( ) [Hebrew].

H J 18/72 Shalit v. Minister o the Interior , PD ( ) [Hebrew].

H J 265/87 Gary Lee Beres ord, et al. v. Ministry o the Interior , PD ( ), [Hebrew].

H J 758/88 Richard Kendall, et al. v. Minister o the Interior , PD ( ), [Hebrew].

H J 1031/93 Alian (Hava) Pessaro (Goldstein) v. Minister o the Interior , PD( ) [Hebrew].

H J 6563/94 Inchobedink v. Minister or Aliyah Absorption, ak-El ( ) .

H J 6698/95 Aadel Ka’adan v. Israel Lands Administration, et al . PD ( ),, pp. - [Hebrew].

H J 2901/97 Na’amat, et al. v. Minister o the Interior, et al . akdin (Elyon) ( ) [Hebrew].

H J 3648/97 Stamka, et al., v. Minister o the Interior, et al . PD ( ) [Hebrew].

H J 394/99 Maximov v. Ministry o the Interior ak-El ( ) [He-brew].

H J 2859/99 ais Rodriguez- ushbein, et al. v. Minister o the Interior, et al . PD( ), [Hebrew].

H J 6847/02 Zarini v. Minister o the Interior, ak-El ( ) [Hebrew].

H J 11585/05 Te Movement or Progressive Judaism v. Ministry o Immigrationand Absorption, (not yet published – May ).

HP (Jerusalem) 6092/07 rnan, et al. v. Ministry o the Interior, ak-Meh( ), [Hebrew].

Secondary Sources Abraham, M., . “Te Gates o Conversion – On Violence and Good In-

tentions: More on the Re orm Conversion Debate ollowing the Letter rom Rabbi Yehuda Brandes,” Akdamot : [Hebrew].

Adalah, .Te Democratic onstitution.*

Avineri, S., L. Orgad, and A. Rubinstein, . Managing Global Migration: AStrategy or Immigration Policy in Israel , Jerusalem: Te Metzilah Center*.

Sources

Primary Sources

Universal Declaration o Human Rights, .

Protocols o the Provisional State Council, May , pp. - [He-brew].

Knesset Proceedings, th Session ( July ), pp. - [Hebrew].Knesset Proceedings, nd Session ( July ), pp. - [Hebrew].

Protocol No. to the Convention or the Protection o Human Rights, ,http://conventions.coe.int/ reaty/en/ reaties/html/ .htm

International Convention on the Elimination o All Forms o Racial Discrimi-nation, , http://www .ohchr.org/english/law/cerd.htm

International Covenant on Civil and Political Rights, , http://www .oh-chr.org/english/law/ccpr.htm

Knesset Proceedings, th Session ( February ), pp. - [Hebrew].

Report rom the Directorate o Society and Youth, [Hebrew]. http://noar.education.gov.il

Te Knesset Center or Research and In ormation, .Di culties in the onversion Process in Israel and Suggested Methods to Address the Problem, by N. Mi-

Ami, January [Hebrew].

Protocol rom the Aliyah, Absorption, and Diaspora Committee Session,( July ) [Hebrew].

(III). Palestine – Progress Report o the United Nations Mediator A/RES/ (III) . . .

Court Rulings

H J 72/62 Ru eisen v. Minister o the Interior , PD ( ) [Hebrew].

H J 58/68 Shalit v. Minister o the Interior , PD ( ) [Hebrew].

H J 230/86 Miller v. Minister o the Interior , PD ( ) [Hebrew].



[ 156 ]


[ 157 ]

Sources

Don-Yehiya, E., . “Religious Zionism and the Questions o Aliyahand Absorption,” in D. Hacohen, Kibbutz Galuyot , p. [Hebrew].

Eretz Acheret , October – November .

Eretz Acheret , July – August .

Feinberg, N., . “Te International Status o the Jewish People Accordingto the Bal our Declaration and the Mandate or Palestine,” inTe Land o Israel During the Mandate Period and the State o Israel , Jerusalem: Magnes, p. [He-brew].

—, . “International Law erms Which Have an Origin in the JewishQuestion,” in Essays on the Questions o the Hour , Jerusalem and el-Aviv: Dvir, pp.

- [Hebrew].

Fund, Y., . “Te Positions o the ‘Agudat Yisrael’ Leadership on the Ques-tion o Aliyahto the Land o Israel” in D. Hacohen,Kibbutz Galuyot , p. [He-brew].

Gans, C., . “Te Law o Return and Afrmative Action,” Law Studies ( ): - [Hebrew].

––, . “Nationalism and Immigration,” in M. Mautner, A. Sagi, and R.Shamir (eds.), Multi- ulturalism in a Jewish and Democratic State , el-Aviv: Ramot,p. [Hebrew].

––, .Te Limits o Nationalism, Cambridge: Cambridge University Press.

––, . rom Richard Wagner to the Right o Return, el-Aviv: Am Oved [He-brew].

—, a. “Nationalist Priorities and Restrictions in Immigration: Te Case o Israel,”Law and Ethics o Human Rights .

—, b. A Just Zionism: n the Morality o the Jewish State , New York: Ox-ord University Press.

–– , orthcoming. “Te Rights Discourse and the Obligation o States to Admit

Immigrants,”Israel Law Review .Gavison, R., . “Te Jews’ Right o Statehood: A De ense,” Azure .

––, orthcoming.Te Status o the Arab Minority In a Jewish-Democratic Israel ,Te Metzilah Center.*

––, orthcoming. “Immigration Policy and Te Human Rights Discourse: TeRelevance o States and Numbers,”Israel Law Review .

Bein, Alex, . Aliyah and Settlement in the State o Israel , Jerusalem: AmOved [Hebrew].

Ben Ra ael, E., . Jewish Identities , Leiden: Brill.*

Berent, M., . A Nation Like all Nations: n the Way to Establishment o aHebrew Republic , Jerusalem: Carmel [Hebrew].

Brandes, Y., . “Te Re orm Conversion Debate,” Akdamot :[Hebrew].

Brownlie, I., . “Te Relations o Citizenship in Public International Law,”Te British Yearbook o International Law , Ox ord: Ox ord University Press.

Carmi, N., .Te Law o Return: Te Rights o Immigration and Teir Lim-

its . Ramat Aviv: el-Aviv University [Hebrew].—, . “His Case Is Like Tat o One Who Made AliyahAccording to

Tis Law: Te Impasse in the StamkaCase, the Purpose o the Law o Return andthe Connection Between Return and Citizenship,” Law and Government : [Hebrew].

—, . “Immigration Policy: Between Demographic Considerations andPreservation o Culture,”Law and Ethics o Human Rights .

Chan, J. M. M., , “Te Right to a Nationality as a Human Right,” HumanRights Law Journal : .

Cohen, A., .Israeli Assimilation, Ramat Gan: Bar-Ilan University [He-brew].

Cohn, H.H., . Te Law (Second Edition), Jerusalem: Te Bialik Institute[Hebrew].

—, .Being Jewish, Ruth Gavison (ed.), Or Yehudah: Kinneret Zmora-Bitan [Hebrew].

onstitution by onsent: A Proposal o the Israel Democracy Institute , . TeDemocracy Library [Hebrew].

Corinaldi, M., . Jewish Identity: Te ase o Ethiopian Jewry , Jerusalem:Magnes Press.*

—, .Te Mystery o Jewish Identity , Sarigim: Nevo [Hebrew].

—, . “Regarding the Question ‘Who is a Jew?’”Daat , Parashat Emor.http://www.daat.ac.il/mishpat-ivri/skirot/ - .htm [Hebrew].

“Document: Te Law o Return – Concept and Legislation: Years A ter ( - July ),” ontemporary Jewry ( ), p. [Hebrew].



[ 158 ]


[ 159 ]

Sources

Margalit, A., and J. Raz, . “National Sel Determination,” Journal o Phi-losophy ( ): - . New York: Journal o Philosophy.

Miller, D., . “Immigration: Te Case or Limits,” in A. I. Cohen, and C.H. Wellman (eds.), ontemporary Debates in Applied Ethics , New York: Blackwell,p. .

Morris, B. , ne State, wo States , New Haven: Yale

Negbi, M., .Te Law o Return – “ Who is a Jew” 40 Years Later , Jerusalem:HEMDA .*

Oppenheim, L., . ppenheim’s International Law , R. Jennings and A. Watts (eds.), London: Longman.

P e er, A., . “Te Jewish Agency Will De er North American Aliyahtothe ‘Ne esh b’Ne esh’ Orga nization,”Haaretz , September [Hebrew].

Poraz, A., . “Victory or theHaredim,” Haaretz (English), May .*

Ratzabi, S., .“ Historic Jewish Identity and the Institution o Conver-sion” , in Ben Raphael ( ).*

Rebhun, U. and G. Malach, Demographic rends in Israel , Jerusalem: TeMetzilah Center.*

Rosenthal, R. (ed.), .Te Heart o the Matter: Redefning Social and Na-tional Issues , Jerusalem: Keter Books. [Hebrew]

Sand, S., .Te Invention o the Jewish People , London: Verso.*

Shaham, D., . “People, Nation, Ethnicity, State, and also a Religion: An Attempt to Make Order in a De ective erminology,” in R. Rosenthal,Te Heart o the Matter , p. [Hebrew].

Shavit, A., . “Te Citizen Azmi,”Haaretz Supplement, May [Hebrew].

Shele , L., . “Changing the Law o Return,”Soviet Jewry in ransition : - [Hebrew].

Shimoni, G., .Te Zionist Ideology , Hanover, N.H.: Brandeis University Press.*

Stein-Ashkenazy, E., . “Te Debate in the Revisionist Circles: Te Aliyah o theBeitarim– Option or Obligation ( - ),” in D. Hacohen,Kibbutz Galuyot , p. [Hebrew].

Waldman, M., .Beyond the Rivers o ush: Te Jews o Ethiopia and the Jewish People , el-Aviv: Department o De ense, Publishers [Hebrew].

Gavison, R., and Y. Medan, . oundation or a New Social ovenant onState-Religion Issues Among Jews in Israel , Jerusalem: Avichai Foundation and IsraeliInstitute or Democracy [Hebrew].

Gorny, J., . Pre ace to E. Ben Ra ael, Jewish Identities .*

Hacohen, D., (ed.), a.Kibbutz Galuyot, Aliyah to the Land o Israel – Mythand Reality , Jerusalem: Zalman Shazar Center or the History o Israel [Hebrew].

––, b. “ AliyahPolicy in the First Decade o the Country: Te Attempts toLimit Aliyahand Teir Fate,” in Kibbutz Galuyot , p. [Hebrew].

––, .Immigrants in urmoil: Mass Immigration to Israel and Its Repercus-sions in the 1950‘s and A ter , Syracuse, NY: Syracuse University Press.*

––, . “ lim and Aliyah,” Te Tird Decade , Jerusalem: Yad Ben Zvi, p.. [Hebrew]

Halamish, A., . “ Pain ul Absorption o the Postwar Immigrants,”Gesher ,, pp. - [D. Hacohen, lim bi’Se’ara: ha-Aliya ha-Gedola u’Klitata b’Israel

1948-1953]. [Hebrew].

––, . “Immigration o Jewish ‘Capitalists’ to Palestine between the World Wars,” in D. Hacohen (ed.), Kibbutz Galuyot: Aliyah L’Eretz-Israel – Mythos U’metzi’ut , Te Zalman Shazar Center or Jewish History, pp. - [Hebrew].

—, . “‘Selective Aliyah’ in Zionist Concept, Action, and Historiography,”in A. Shapira, Y. Reinharz, Y. Harris (eds.),Te Age o Zionism. Jerusalem: ZalmanShazar Center or the History o Israel, p. [Hebrew].

—, a. “Zionist Immigration Policy Put to the est: Historical Analy-sis o Israel’s Immigration Policy, – ,” Journal o Modern Jewish Studies

( ): .

––, b. “From ‘Te Jewish State’ to the Law o Return: Herzl’s Immigra-tion Vision in Historical Perspective,” in A. Sagi and Y. Stern (eds.),Herzl Tenand Now: ‘Te Jewish State’ in the State o the Jews , Ramat Gan: Keter, Bar-IlanUniversity, p. .

Henkin, L., .International Law: Politics and Values , Dordrecht: Nijho .Kamir, O., . “ wo Sides to the Proclamation o Statehood,”Law Studies

: [Hebrew].

Kasher, A., . “Te Law o Return, Justice, and Afrmative Action,” inSpirit o a Man, el-Aviv: Am Oved [Hebrew].

Katznelson, B., . Zionist Policy , el-Aviv: Achdut [Hebrew].

Klingho er, Y.H., . A harter or the Basic Rights o Man(proposed law)[Hebrew].



[ 160 ]


Walzer, M., .Spheres o Justice: A De ense o Pluralism and Equality , New York: Basic Books.

Warha tig, Z., . A onstitution or Israel – Religion and State . Jerusalem,Mesilot [Hebrew].

Weiss, Y., . “Te Golem and Its Creator, or How the Jewish Nation-stateBecame Multi-Ethnic,” in hallenging Ethnic itizenship: German and Israeli Per-spectives on Immigration, New York: Berghahn Books.*

Weitz, Y., . “In ormation About the Genocide in Europe and the Ques-tion o AliyahProportions,” in D. Hacohen, Kibbutz Galuyot , p. [Hebrew].

Yakobson, A., and A. Rubinstein, . Israel and the Family o Nations: Te Jewish Nation-state and Human Rights, London: Routledge.*

Yehoshua, A.B., . “Nonetheless Revolution: Zionism and the GordianKnot o Religion and Nationalism,” in R. Rosenthal,Te Heart o the Matter , p. [Hebrew].

Zilbershats, Y., . “Citizenship: What Is It and What Will It Be?”Law Research : [Hebrew].

Zilbershats, Y. and N. Goren-Amitai, ( orthcoming). “Te Question o theReturn o Palestinian Re ugees to Israel”, Jerusalem: Te Metzilah Center.*

Zreik, R., . “Notes o Te Value o Teory: Readings o the Law o Return—A Polemic,”Law and Ethics o Human Rights , Ramat-Gan: Berkeley Electronic

Press.



[ 161 ]

Appendix

Te Law o Return o 1950

Source: Lawso the State o Israel: Authorized ranslation rom the Hebrew, Government Printer, Jerusalem, Israel ( - ), Volume , p. andVolume , pp. - .

Also available on the Knesset website: http://www.knesset.gov.il/laws/special/eng/return.htm

. Every Jew has the right to come to this country as an oleh.

. (a) Aliyah shall be by oleh’s visa.(b) An oleh’s visa shall be granted to every Jew

who has expressed his desire to settle in Israel,

unless the Minister o the Interior is satis ed thatthe applicant( ) is engaged in an activity directed against the

Jewish people; or( ) is likely to endanger public health or the se-curity o the State; or

( ) is a person with a criminal past, likely to en-

danger public wel are.. (a) A Jew who has come to Israel and subsequentto his arrival has expressed his desire to settle in

Right o aliyah*

leh’s visa(Amendment No. 1)5714-1954

(Amendment No. 1)5714-1954

(Amendment No. 1)

5714-1954 leh’s certifcate

* ranslator’s Note: Aliyahmeans immigration o Jews, andoleh (plural: olim)means a Jew immigrating into Israel.



[ 162 ]


[ 163 ]

Appendix: Te Law o Return o 1950

become converted to Judaism and who is not amember o another religion.

. Te Minister o the Interior is charged with theimplementation o this Law and may make regu-lations as to any matter relating to such imple-mentation and also as to the grant o oleh’s visasand oleh’s certi cates to minors up to the age o

years.Regulations or the purposes o sections A

and B require the approval o the Constitu-tion, Legislation and Juridical Committee o theKnesset.

YOSEF SPRINZAK DAVID BEN-GURION MOSHE SHAPIRA Acting President o

the StatePrime Minister Minister o Immigration

Chairman o the Knesset

Implementation and regulations (Amendment No. 1)5714-1954

(Amendment No. 2)5730-1970

Israel may, while still in Israel, receive an oleh’scerti cate.(b) Te restrictions speci ed in section (b) shallapply also to the grant o an oleh’s certi cate, buta person shall not be regarded as endangeringpublic health on account o an illness contracteda ter his arrival in Israel.

. Every Jew who has immigrated into this country be ore the coming into orce o this Law, and

every Jew who was born in this country, whetherbe ore or a ter the coming into orce o this Law,shall be deemed to be a person who has come tothis country as an oleh under this Law.

A. (a) Te rights o a Jew under this Law and therights o an oleh under the Nationality Law,

- , as well as the rights o an oleh underany other enactment, are also vested in a childand a grandchild o a Jew, the spouse o a Jew,the spouse o a child o a Jew and the spouse o a grandchild o a Jew, except or a person whohas been a Jew and has voluntarily changed hisreligion.(b) It shall be immaterial whether or not a Jew by whose right a right under subsection (a) isclaimed is still alive and whether or not he hasimmigrated to Israel.(c) Te restrictions and conditions prescribed inrespect o a Jew or an oleh by or under this Law or by the enactments re erred to in subsection(a) shall also apply to a person who claims a rightunder subsection (a).

B. For the purposes o this Law, “Jew” means aperson who was born o a Jewish mother or has

Residents and persons born in this country

Rights o members o amily (Amendment No. 2)5730-1970

Defnition(Amendment No. 2)5730-1970



Other Publications o Te Metzilah Center

Demographic rends in Israel Uzi Rebhun and Gilad Malach ( )

Te 60th Anniversary o November 29th: Te Partition Resolutionand the ontroversy Surrounding It: Studies and Sources

Edited by Ruth Gavison ( )

Managing Global Migration: A Strategy or Immigration Policy in Israel Shlomo Avineri, Liav Orgad and Amnon Rubinstein ( )

Regional Elections in Israel Nir Atmor, Itzhak Benenson, Abraham Diskin and Vald Kharbash ( )

Te Sixtieth Anniversary o the Law o Return: History, Ideology and JustifcationRuth Gavison ( )

Return o Palestinian Re ugees to Te State o Israel Ya a Zilbershats and Nimra Goren-Amitai ( )

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