The lyrics of Chris Daughtry’s song “Home,” can surely speak to the millions of Jews who have immigrated to Israel from all four corners of the globe.
“Well I’m going home, Back to the place where I belong,” Daughtry crooned in his hit song. It’s a sentiment to which all of Israel’s Olim Chadashim can certainly relate, after acquiring citizenship under the Law of Return.
Yet, this law has been attacked as racist and contrary to international law, despite the fact that nothing could be further from the truth.
International law does impose numerous requirements on the behavior of states. However, every state, based on the principle of sovereignty, retains virtually unfettered authority to decide who will be considered its national or citizen. As the nation state of the Jewish people, Israel has the right, indeed the obligation, to define the boundaries of its membership or citizenship.
Israel’s nationality law provides for multiple ways of acquiring citizenship, including through naturalization and birth to an Israeli citizen. These provisions apply equally to Jews and non-Jews. In addition, just as other countries express preferences through various fast-tracks for returning nationals, Israel has a Law of Return that enables any Jew to acquire automatic citizenship unless his presence in the state poses a threat to public health or security.
The basic legal instrument advancing the principle of nondiscrimination is the 1965 International Convention on the Elimination of all Forms of Racial Discrimination. Racial discrimination is defined as any distinction… or preference based on race, color, descent, or national or ethnic origin.” Essentially, this is an admonition to states that they are not permitted to enact legislation that discriminates among their citizens on the basis of these defined categories. At the same time, the Convention departs from the general principle by providing that state laws dealing with “nationality, citizenship, or naturalization” are not to be affected as long as they do not discriminate against any particular nationality. By giving preferred status to Jews alone, there is no discrimination against Palestinians or anyone else because no particular group is being singled out for exclusion. In short, preferential treatment — or affirmative action — does not equal discrimination.
In the U.S. context — a relatively young country made up of immigrants seeking to forge new identities — the idea of extending citizenship preference to former Americans seems out of place, although American immigration law does favor certain political refugees as well as some categories of wealthy immigrants. But the U.S. is not the only model. Israel is hardly alone among democracies in Europe and elsewhere in offering preferential treatment in this arena. For example, the German constitution, Greece’s citizenship law, the Irish nationality law, and the Armenian constitution all offer expedited citizenship acquisition tracks for immigrants with an ethnic attachment to those countries.
In addition, since Jews are a people that anyone can join through conversion — irrespective of their race, previous religion or nationality — it cannot be argued reasonably that the Law of Return is racist.
Explaining the Law’s background to the Knesset, David Ben-Gurion declared “the State does not grant the right of return to the Jews of the Diaspora. This right preceded the State; this right built the State; its source is to be found in the historic and never-broken connection between the Jewish people and the homeland.”
In other words, a potential “genuine link” — a concept beginning to be incorporated into international law as it relates to citizenship — exists within every Jew. It becomes manifested in the acquisition of Israeli citizenship under the Law of Return. This in no way diminishes the connection between Jews who have not chosen to become Israeli nationals and the countries of their citizenship. Indeed, many Jews who have taken Israeli citizenship choose also to retain citizenship in their countries of origin if such an arrangement is permitted.
Palestinian leadership long has asserted a “Right of Return” of Palestinian refugees and their descendants to Israeli towns and villages from which they fled in the 1948 and 1967 conflicts. This similar language sometimes creates confusion. They are totally different. The Palestinians ground their claims to refugee return in UN General Assembly Resolution 194, which was adopted at the end of 1948. According to the Resolution (non-binding because it was passed in the General Assembly, not the UN Security Council), the refugees “should [not shall] be permitted” to return to their homes at the “earliest practicable date” and this applies only to those “wishing to… live at peace with their neighbors.” This is a UN recommendation from 65 years ago for Israel to admit refugees from that period willing to live in peace, certainly not their descendants.
A humanitarian resolution of the Palestinian refugee issue must be addressed in the context of the two-state solution, Israel and a future Palestine within the context of direct negotiations between the parties.
Do you feel a genuine link to Israel? Have you ever considered immigrating to Israel? Should Jews be given preferential treatment in acquiring citizenship?
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This post is one in a series of responses to common challenges to Israel’s legitimacy as a Jewish and democratic state.