The Israeli Law of Return

The full debate will be found on the website of The Metzilah Center, ‘founded in 2005, to address the growing tendency among Israelis and Jews worldwide to question the legitimacy of Jewish nationalism and its compatibility with universal values’.

We reproduced here the introduction to Part which outlines the format of the debate and provides summaries of the three arguments.

PART 1 ( 1st August 2010)

This is an intensive two weeks virtual discussion that took place between three participants: Ran Greenstein, Ruth Gavison and Alexander Yacobson.

It started when Ruth’s friend, Jonathan Malino, a member of a list called ALEF (Academic Left) alerted Ruth to the fact that Greenstein was criticizing the Israeli Law of return of 1950 as discriminatory, and labeling Israeli scholars who defended it (like Gavison and Yacobson among others) as ‘psuedo-liberal’.

A very long virtual conversation – which is attached here after all participants granted their consent – ensued.

The nature of the medium allowed the kind of exchange that is hard to achieve in panel discussions etc.  The argument involved a back-and-forth exchange, with participants addressing concerns and issues raised by other discussants. At times, the responses were added within the original message, which made it easy to see what the respondent was responding to. We replicated this by simulating the layers of the responses by different fonts. We hope that this does not make the reading too difficult.

To help the reader, the three participants added a short statement describing the essence of their position.

• Summary of Ran Greenstein’s Argument:

To evaluate Israel’s immigration policy, we have to consider two interrelated aspects: (1) the inclusion of all Jews, regardless of their specific origins and concrete links to the territory, and (2) the exclusion of most Palestinians, regardless of their specific origins and concrete links to the territory. The Law of Return may not be objectionable on its own, but it cannot be seen in isolation from the denial of the Right of Return for Palestinian refugees, with which it is inextricably linked. The combination of inclusion of one group of citizens – and their relatives and ethnic kin, however remote in time and place – with the exclusion of another group of citizens – and their relatives and ethnic kin, however close in time and space – is the source of the problem. Some states in Europe or elsewhere give immigration preference to ethnic kin, but none of them pursues such a dual policy of inclusion/exclusion vis-a-vis its own citizens.

This policy is not an outcome of war and existential threat. It follows the logic of the Zionist project from its inception, especially since the labour movement became a dominant force within it: the creation of an ever-expanding zone from which the indigenous population was gradually excluded. The Palestinian nakba was a manifestation of the same logic that had dominated Zionist settlement long before it: Arab tenants were systematically removed from land acquired for Jewish settlement; Arabs were not allowed in Jewish areas, as residents and employees, even if it was not possible to bar them completely. This exclusionary logic was backed up by financial and voluntary political means before 1947-48, and by military means thereafter. Neither the war itself nor the Holocaust preceding it, were the cause of this strategy, which predated them by half a century at least.

There is no international legitimacy for these exclusionary practices. In 1947, UNGA181 called for the creation of two states, for the Jews and Arabs residing in the country at the time. It did not recognize the right of the Jewish people as a whole – only the rights of Jewish residents – nor did it allow for any policies of ethnic exclusion. No international treaty or agreement since then has recognized Israel as the state of the Jewish people. Israeli policies of ethnic preference since 1948 are backed up by force rather than by legally valid means that conform to universal rights and norms. The liberal democratic nature of Israeli society and state can be understood only against this background of exclusion of the indigenous population, which continues to haunt it and subject it to constant erosion.

• Summary of Alexander Yakobson’s Argument:

It is telling that the charge of ”ethnic exclusion” in the Arab-Israeli context is invariably laid against the only country in the Middle East where Jews and Arabs do live together, in great numbers – Israel. Arabs live under Israeli rule – both under Israeli sovereignty, where the Arab community has experienced remarkable growth rather than any ”erosion”, and under the Israeli military occupation, which, for all its sins, has also presided over a huge increase in the number of Palestinian inhabitants. Jews, however, don’t live under Arab rule. Even in Iran, under the ayatollahs, a small Jewish community survives – but not in any Arab state. It is not Zionism but Arab nationalism (in all its versions, ”reactionary” and ”progressive” alike) that has proved incompatible with Jewish-Arab coexistence. But, it is said, the Jews in the Arab world have suffered from the conflict over Palestine. Of course. When Jews are harmed by Arabs, this is because of the conflict, even if the conflict is a thousand miles away; when Arabs are harmed by Jews, in the very midst of the conflict – this is because Zionism is inherently discriminatory and exclusionary. The ‘war” and the ”existential threat’ couldn’t possibly have anything to do with it. This sort of discourse makes a mockery of the principle of equality that it pretends to defend.

If one concedes that a preferential right of immigration to ethno-cultural “kin” – not necessarily former citizens – is legitimate under the contemporary international and European norms and practices, and is not regarded as violating the principle of civic equality within the country – what are the grounds for condemning the Law of Return? If Greece accepts as ”returnees” ethnic Greeks whose ancestors had nothing to do with the territory of what now is the Greek Republic (but not descendants of ethnic Turks who once lived there), one should hardly be surprises that Israel has accepted Jews – including the half of of its Jewish population consisting of refugees from Arab countries, absorbed under the Law of Return, and their descendants.

It all boils down to whether one accepts the basic premise that there are, in this land, two peoples with different national aspirations, both entitled to national independence; hence –  two nation-states, and, logically, two laws of return. This is the language of Clinton’s parameters – Israel as a homeland of the Jewish people, Palestine as a homeland for the Palestinian people (not just for the inhabitants of the West Bank and Gaza), hence a Palestinian right of return to Palestine – not to Israel. Or should the right of peoples to national self-determination function as a club that has a liberal admission policy in general, but is closed to Jews?

• Summary of Ruth Gavison’s argument:

Israel’s immigration policy does comprise inclusion of Jews and their relatives (under the Law of Return, enacted in 1950), and a general restrictive immigration policy concerning others, including Palestinian refugees and their descendants, who were never holders of Israeli citizenship or residence because they had left the territory of the state before its citizenship was granted to anyone. 

The evaluation of this reality involves study of the history of the region and the conflict, including ideological and political positions of the parties, and the examination of norms of international political and legal norms and practices.  Not surprisingly, both the analysis of facts and the interpretation of norms are deeply contested. I do not expect that there can be a knock-out that will persuade all. I perform here as what |I hope is a fair-minded advocate. I am not from the UN and do not aspire to be. I believe the cause of Zionism and of the principles of Israel’s policy can be justified. I also believe that a part of the argument against them is based on misguided readings of the history and of the relevant norms and practices.

The history of the conflict over Palestine/eretz Israel was never one of only power or only argument; on either side.  Zionism’s main ideologues did not base the dream of Jewish independence in (part of) Eretz Israel on the hope of excluding the local population. They did base it on the hope of becoming a majority within the land so as to revive Jewish political independence in a state that will give Arabs full civil and political rights. Furthermore, the political and moral merits of the case were extensively discussed in many international fora.  The idea of a Jewish state and an Arab state living in peace and cooperation was the moral and political conclusion reached by both the Peel Commission (1937), UNSCOP (1947) and the UNGA on November 29^th 1947, after they were exposed to eloquent and persistent presentations of Arab arguments against it.  The sovereign state of Israel was the consequences of the combination of these decisions and the Jews’ victory in the war waged against the implementation of this solution by the Arabs.

This is not only a debate of historical importance. The debate over the desirable political solution of the reality between the Jordan River and the Mediterranean Sea is still waged.  The Arabs are still denying the right of Israel to exist and serve as the nation state of the Jews in part of their ancient homeland.  This is the reality that justifies Israel’s insistence that a Jewish majority is a must within Israel itself. Refusing to recognize a ‘right’ of Palestinian refugees to acquire Israeli citizenship is directly entailed by this complex reality. It has nothing to do with the ethos of Jewish work that was an aspect of early Zionist history.

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These texts are presented here, before the exchange itself, in the order in which they were written.  They at times go beyond the conversation itself, but this is almost inevitable when long threads of arguments are condensed.  We did not want to reopen the discussion itself, so we welcome comments and responses to this exchange, as well as the summaries, by the three participants themselves as well as by other readers.

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We thank Eliraz Shor and Jessica Waldman for careful editing of the discussion.

• Ran Greenstein is an associate professor of sociology at the University of the Witwatersrand in Johannesburg, South Africa. He has written Genealogies of Conflict: Class, identity and State in Palestine/Israel and South Africa (1995), and edited Comparative Perspectives on South Africa (1998), and The Role of Violence in South Africa’s Democratization (2003). Currently he is working on a manuscript titled, Roads not Taken: Alternative Voices in Israeli-Palestinian History.

• Alexander Yacobson teaches ancient history in the Hebrew University, and is the author (with Amnon Rubinstein), of Israel and the Family of nations (2008). He is an essayist and publicist on issues of nationality and Zionism, and a member of the board of Metzilah.

• Ruth Gavison is Haim H. Cohn Professor of Human Rights in the Hebrew University in Jerusalem and founding president of Metzilah: Center for Zionist, Jewish, Liberal and Humanist Thought. She is the author of: The Law of Return at 60: History, Ideology, and Justification (2010).

See the full debate