Unpacking Israel’s Law of Return

The Law of Return is an Israeli law giving any Jew the right to live in Israel and obtain Israeli citizenship. Unanimously passed into law by the Knesset in 1950, this law is based on the Zionist philosophy establishing Israel as a Jewish state.

Since Israel’s founding, Jews of all stripes have immigrated to Israel. The most common reasons include a feeling of belonging, strengthening Jewish identity, religious imperatives, joining family members already in Israel, fleeing tyranny, conflict, economic hardship or antisemitism, or a combination of those and other rationales.

Arab critics demanding a “right of return” for Palestinian refugees call the the Law of Return discriminatory. Some have even charged that Israel doesn’t want to resolve the related issue of “Who is a Jew” in order to bring more immigrants to counter-balance Palestinian demographics.

The issues require a closer look.

Defining terms

  • Aliyah: Literally means “ascending,” but also refers to  moving to Israel.
  • Oleh: An immigrant who has made aliyah (olah in feminine, and olim in plural).
  • Eretz Yisrael: The land of Israel.
  • Halacha: Jewish religious law (in Israeli context, as determined by Orthodox rabbis).
  • Kibbutz galuyot: The ingathering of the exiles.

Law of Return: Who is a Jew?

Mataroa

Buchenwald survivors arrive in Haifa in 1945 aboard the Mataroa. The Law of Return was formulated in the shadow of the Holocaust.

When the Knesset passed the Law of Return, legislators didn’t bother defining who is a Jew. David Clayman explains why:

The need for this legislation and the rationale behind it seemed simple and obvious. In the wake of the horror of the Holocaust, this law was meant to ensure the right of every Jew to find refuge and to build a new life in the Jewish homeland. Indeed, the Law of Return was the infant state’s measured response to the British White Paper of 1939, which slammed the gates of Palestine and doomed the Jews of Europe . . .

When David Ben-Gurion drafted this law in the shadow of the Holocaust, the definition of who is a Jew seemed self-evident. It meant that whomever the Nazis called a Jew and sent to the death camps was to be offered refuge in the newly established state of Israel. At that time, it seemed inconceivable that anyone but a Jew would claim to be a Jew.

In 1970, the last time the law was amended, the Knesset extended aliyah rights to people with one Jewish grandparent. It also offered the same rights to the immigrant’s spouse and children, regardless of whether those individuals would be considered Jewish according to halacha (religious law). Halacha recognizes as Jewish someone whose mother was Jewish or was converted to Judaism by Orthodox authorities. The law also withheld aliyah rights to anyone who voluntarily converted out of Judaism, regardless of whether the individual would still be considered Jewish by halacha.

That amendment touched off tremendous controversy within the Jewish world. The issue touched on many sensitive issues including:

  • Whose interpretation of halacha should determine who is a Jew (recognizing Judaism’s Reform and Conservative streams).
  • Intermarriage and non-Jewish relatives.
  • Groups whose Jewish origins are difficult or impossible to document such as Falash Mura of Ethiopia, the Bene Israel of India and the Igbo tribe of Nigeria, among others.
  • Messianic Jews.
  • Same-sex relationships.
  • Where should the state draw the line in supporting non-Jewish immigration?
  • Recognizing converts from abroad, and the rabbis involved.
  • Overhauling the conversion process in Israel.

In January, 2019, Israel’s Central Bureau of Statistics announced for the first time that non-Jewish immigrants outnumbered Jewish immigrants. Critics say this pattern has actually gone on for years.

The growing number of non-Jews with Israeli citizenship carries serious demographic issues. Israel has no civil marriage or divorce. These matters are administered by the rabbinate, and recognized sharia, ecclesiastical and Druze courts for their respective Muslim, Christian and Druze communities. Interfaith couples tend to either get married in nearby Cyprus (because Israel recognizes marriages abroad) or simply live together without the formalities of marriage.

Since 1970, the Knesset has not revisited the Law of Return.

Although it represents a fundamental aspect of Israel as a Jewish state, the Law of Return has no special constitutional status. It can be revised or revoked by a simple Knesset majority. Thus, changing the law requires the approval of no more than 61 lawmakers. MKs on all sides of the issue agree the law needs change, but there’s no consensus on how to do that. Lawmakers admit they’re reluctant to revisit the Law of Return, afraid of reopening old wounds and whose outcome will please nobody.

Knesset

The Knesset hasn’t revisited the Law of Return since 1970.

Law of Return: the caveats

While Israel encourages immigration, the law allows the Ministry of Interior to deny citizenship to Jews in certain circumstances, such as individuals who:

  • Are viewed as a threat to state’s security.
  • Have a prior record of serious crimes.
  • Are fugitives of justice from another state (Israel can still extradite olim who are wanted abroad).
  • Pose a public health risk.
  • Actively campaign against the state of Israel.
  • Converted to another religion (even if halacha would still consider them Jewish).

The most notable rejection would be American mobster Meyer Lansky.

Discriminatory against Arabs?

The Arabs argue that the Law of Return is discriminatory in that it applies to one ethnic group and not to any other. They also argue that Palestinians who formerly lived in what is now the state of Israel — including Arabs who were born there — have no comparable immigration or citizenship rights.

Some Arabs have also argued that Israel has deliberately left vague the Who is a Jew question. By obfuscating the definition of a Jew, Israel can tip the demographic balance against the Palestinians, they say. This argument was especially common in the 1990s during the mass aliyah of Jews from the former Soviet Union.

The short answer to these objections is that the Law of Return is not the only avenue to acquiring Israeli citizenship.  Any non-Jew who wishes to immigrate to Israel may do so through the process of naturalization, under the Law of Entry and the Law of Citizenship — similar to procedures of other democracies. As for the Palestinian refugees, Israel’s position is that international law does not support a Palestinian “right” of return, and that the issue should be settled through the negotiating process and in the framework of a Palestinian state. With the establishment of a Palestinian state, Palestinians will be free to enact their own law of return to their own territory.

Further, criticizing the Law of Return as racist applies a double standard to Israel. Many states (France, Ireland, Germany, Greece, China, Japan, the Philippines, to name but a few) have similar repatriation laws for their respective diasporas.

Seal of IsraelOn a deeper level, however, critics of the Law of Return really want to smear the legitimacy of Israel’s very existence as a Jewish state. In this light, the Law of Return goes to the heart of Jewish self-determination and Israel as the Jewish homeland. Indeed, Israel is the nation-state — the only nation-state — of the Jewish people. The Law of Return is one manifestation of this. Other manifestations include its flag (the Star of David), seal (a menorah), national anthem (about the Jewish spirit), language (Hebrew) and calendar (Shabbat and Jewish holidays are statutory holidays).

Israeli law professor Ruth Gavison explains (emphasis added):

The main argument in favor of the principle of return is based on the principle of self-determination. This principle recognizes the right to self-determination of groups and even the notion of the “nation state”—a state in which the ethnic majority group realizes its right to self-determination. Indeed, the Zionist narrative, which was adopted by the State of Israel, and which was supported by UN decisions, views the State of Israel as the place in which the Jewish people realizes its right to self-determination . . .

[When] we discuss the Law of Return today, the argument justifying the preference for Jews stems directly from the right of Jews to self-determination. This is because the State of Israel does in fact grant the Jews living in it unique advantages which are possible only in a place where the right to full state-level political self-determination is realized. One of the most important features of such a situation is a stable Jewish majority. Thus Israel is the only place in the world where Jews can live a full Jewish existence on all levels, political as well as economic.

Gavison notes that the 1965 International Convention on the Elimination of All Forms of Racial Discrimination — which often serves as a basis for claims that the Law of Return is illegal — provides exceptions that allow for it, citing Articles 1:3 and 1:4.

3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.

4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

For brevity’s sake, readers are referred to Gavison’s fuller analysis (pages 45-48). She concludes:

This analysis demonstrates that there is no unjustified discrimination among potential immigrants to Israel in the preference established by the Law of Return. Similarly, the demands that Israel must annul the Law of Return if it wishes to be considered a democracy which grants equality to all of its residents, and especially to the Arab minority living within its borders, are unfounded. We have seen that giving preference to Jews in immigration—and especially the policy encouraging the immigration of Jews—can in fact affect the welfare and status of the Arab minority, but this in itself does not constitute unjustified discrimination. Israel may annul the principle of return, but is not required to do so on these grounds.

As a matter of sovereignty, the controversy surrounding “Who is a Jew” is merely one of the unique warts-and-all struggles of Jewish self-determination. Should the Palestinians achieve statehood and enact their own law of return, they too will have to grapple with “Who is a Palestinian.”

* * *

The Law of Return is consistent with Israel’s liberal democratic character. Through great hardship, Israel was established to provide a safe haven for Jews around the world. The Law of Return — whatever its flaws — has brought a scattered people back together in their homeland.

Images: Mataroa via Wikimedia Commons; Knesset via Wikimedia Commons;

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