Middle East Piece - Jewish Law of Return and Apartheid

Law of Return

Moving along to the specific so-called apartheid legislation, Israel has what is called the Law of Return that automatically grants citizenship to Jewish immigrants. It was extended in 1970 to include close relatives and spouses of Jews as well. Because this is available for Jews only (with few exceptions), it is considered an example of apartheid legislation and due to the frequency with which it is described as such, it deserves its own section.

Activist site Stop the Wall cites this Law of Return in their justification for labeling Israel an apartheid state²⁷. Likewise, the blog Jews Sans Frontieres points to this law as the "centrepiece"²⁸ of what makes Israel a racist state. Ibrahim Makkawi believes it "illustrate[s] the essence of its (Israel's) apartheid structure."³⁷

This is certainly an example of racial favoritism, but a far cry from racist oppression. It is important to understand that the Law of Return was implemented to guarantee Jews citizenship in the Jewish state, not to exclude non-Jews from getting in. What the Law of Return means to non-Jews is ... nothing. They can still become Israeli citizens through a process of naturalization similar to the process that exists in most all other countries. Automatic citizenship to Jews is not preventing Italians, Swedes, Mongols, Egyptians, or Azerbaijanians from immigrating, nor are there so many Jews taking advantage of this law that Israel is unable to accomodate anyone else.

"... the Law of Return does not discriminate between citizens within the country. It does not make the citizenship of non-Jews in any way inferior. Rather it is directed entirely outward, to the Jews of the world. Therefore, implicit in the condemnation of the Law of Return is the assertion that Israel is forbidden to privilege Jews in its laws of immigration and citizenship. However, there is no basis in international law for such a criticism."²⁹

If the myopic scrutiny typically reserved for Israel were to be expanded to other countries, it would quickly become evident that ethnic favoritism is commonplace where citizenship law is concerned. The following examples are by no means exhaustive:

The Citizenship Law of Greece includes provisions for "Persons of Greek ethnical descent [to] be recognised as [a] Greek citizen by lodging an application on the Greek consular office of their place of residence ... if the foreigner is not of Greek etnical decendance he must have resided in Greece for in total eight out of the ten years before his application for naturalisation or three years after his declaration for naturalisation. ... Foreigners of Greek etnical decendance who enter in the military schools ... acquire the Greek citizenship ... without any other formality. ... Foreigners of Greek etnical decendance ... may acquire, if they want, the Greek citizenship by lodging an application to the Governor, without any other formality."

Finland's Foreigners Law allows “A permit for residency may be granted 1. if the applicant himself, one of his parents or at least two of his four grandparents are or have been registered as having Finnish origin, or 2. if there is another tie that shows the applicant’s affinity to Finland and Finnishness, but he has no documents to show that he meets the requirements mentioned in point 1.”³⁰

The Constitution of Poland takes ethnicity into account when granting citizenship when it declares that "Anyone whose Polish origin has been confirmed in accordance with statute may settle permanently in Poland."

Ireland's Nationality and Citizenship Act reserves the right to bypass standard citizenship legislation "where the applicant is of Irish descent or Irish associations ..."

The Armenian Constitution states that "Individuals of Armenian origin shall acquire citizenship ... through a simplified procedure."

The Hungarian Citizenship Act includes a provision so that a "non-Hungarian citizen declaring him/herself to be an ethnic Hungarian may be naturalized preferentially on his/her request ..."

The Slovenia Constitution states that "Slovenes not holding Slovene citizenship may enjoy special rights and privileges in Slovenia."

The Constitution of Palestine intends to grant all Palestinian Arabs automatic citizenship regardless of where in the world they reside, with the following line from its introduction: "The temporary provisions of this law do not cancel or nullify the rights of any Palestinian individual, wherever he is, to enjoy equal rights with other citizens in the land of the homeland." Article 1 of this same constitution defines "Palestinian" as specifically Arab so as to remove any doubts about who this favoritism applies to.

"The comparison of Asian states to those in Europe shows ... that co-ethnic preferences are found in both regions. Despite the ostensibly strong world norm of nondiscrimination, an inclusive, preferential kind of discrimination in immigration policy is common, especially so in Asia and Eastern Europe."⁴³

Japan's "1990 'Revised Immigration Law' stated that anyone with Japanese ancestry, with no geographical distinctions ... had unrestricted access to the Japanese labor market. ... The Justice Ministry began to issue 3-year visas that are renewable ... and employers began replacing other migrant workers with these ethnic Japanese. ... Policymakers desired ... to alleviate the labor shortage without disrupting Japan's cherished ethnic homogeneity. ... the policy continued ... to prefer those with Japanese blood, regardless of origins, over other foreigners."³⁸

"Korea's ethnic preference policy ... recognizes blood bonds and gives preferences to ethnic Koreans unavailable to other foreigners. ... The Korean government has always treated Joseonjok differently from other foreigners. ... Another policy giving preference to foreign coethnics is 1999's 'Law of Entry and Status of Chaeoe dongpo' (or co-ethnic or overseas brethren), or the 'Overseas Koreans Act'. The law entitles Chaeoe dongpo to register as 'domestic residents' when they want to stay longer than 30 days. This status gives rights almost equal to Korean Citizens in areas such as banking, owning real estate, mesical insurance, and pensions. ... South Korea officials preferred Joseonjok trainees because they would 'pose less of a threat to South Korea's tight-knit, homogenous society'.³⁹ "China has a long history ... of ethnic preference laws than other states in this study. Chinese leaders have long considered Chinese abroad to be sojourners and to retain ties and loyalty to China, part of a belief that 'once a Chinese always a Chinese'. In 1990, China passed the 'Law of the People's Republic of China on the Protection of the Rights and Interests of the Returned Overseas Chinese and the Relatives of Overseas Chinese Who Remain in the Homeland', its first major law aimed at enticing those abroad to return. ... internal documents reveal increasing attention to noncitizen-ethnic Chinese, and noncitizens have been able to take advantage. ... Policymakers, especially in provinces and other subnational units, have increasingly appealed to both Chinese nationals and ethnic Chinese noncitizens since the 1980s. Preferences for co-ethnic foreign Chinese are most apparent in policies regarding regional economic development. ... In 1984, the 'Provisional Measures of Guangzhou Municipality on Preferntial Treatment for Overseas Chinese and Hong Kong and Macao Investors' stated that, among other benefits, 'land use fees for enterprises invested in by an Overseas Chinese, Hong Kong and Macao compatriot ... shall be levied at the discounted rate of 80%' and a maximum of two investor's friends or relatives could change their household registration status ... from rural to urban or township status. ... The encouragement of overseas Chinese to return - or to invest - is so entrenched at the local level that nearly every level of government, down to the township level, now has an Overseas Chinese Affairs Office."⁴⁰ "... Taiwan has ethnic policy preferences for high-skilled immigrant Chinese. ... Unlike the other Asian states ... its policy to do this is a nationality law that allows dual citizenship. ... It practices preferences for coethnics aborad, even if noncitizens, and does so for economic gain."⁴¹ "The Marcos regime in the Philippines established what became the Balikbayan policy ... It targets persons of Filipino ancestry regardless of citizenship to share in the building of the Philippines."⁴²

"The fact is that privileged access to rights of residence and immigration for ethnic-cultural kin groups exists in varying ways and through various legal mechanisms, in many long-standing Western European democracies — Ireland, Finland, and Greece — as well as in a number of new European democracies, such as Poland, Hungary, Bulgaria, Slovakia, the Czech Republic, Slovenia, and Croatia. Among the republics of the former USSR, repatriation laws were enacted in Russia, Ukraine, and Armenia. In all of these countries, the legal arrangements are seen as an expression of the natural and legitimate connection between the nation-state and its diaspora, whether far away or living in neighboring countries ..."³¹ And not content with ethnic favoritism domestically, a number of countries have drafted legislation into their constitutions that projects special treatment onto ethnic kin groups in foreign countries: The Constitution of Hungary expresses "a sense of responsibility for the fate of Hungarians living outside its borders and shall promote and foster their relations with Hungary." The Constitution of Romania declares "The State shall support the strengthening of links with the Romanians living abroad and shall act accordingly for the preservation, development and expression of their ethnic, cultural, linguistic and religious identity ..." The Constitution of Slovenia states "It shall maintain concern for autochthonous Slovene national minorities in neighbouring countries and for Slovene emigrants and workers abroad and shall foster their contacts with the homeland." The Constitution of Macedonia "cares for the status and the rights of those persons belonging to the Macedonian people in the neighbouring countries, as well as Macedonian ex-patriates, assists their cultural development and promotes links with them." The Constitution of Croatia ensures that "Parts of the Croatian nation in other states shall be guaranteed special concern and protection by the Republic of Croatia." The Constitution of Ukraine "provides for the satisfaction of national and cultural, and linguistic needs of Ukrainians residing beyond the borders of the State." The Constitution of Poland "shall provide assistance to Poles living abroad to maintain their links with the national cultural heritage." "In addition to the bilateral agreements and to the domestic legislation and regulations implementing them, a number of European States have enacted specific pieces of legislation or regulations, conferring special benefits, thus a preferential treatment, to the persons belonging to their kin-minorities."³³ Among the special benefits and preferential treatment bestowed upon members of the "right" ethnic group are items related to education and culture, social security and health coverage, travelling benefits, work permits, exemption from visas, exemption from permits of stay and reimbursement of costs incurred for the stay, acquisition of property, and as we have seen at length, acquisition of citizenship.³⁴ More examples could be presented, but these make the point. While this Law of Return has racial implications, the question still remains whether it constitutes, or contributes to, the charge of apartheid that this law is so often referenced to illustrate. Afterall, isn't ethnic favoritism simply sugar-coated racism, and racism the driving force behind apartheid? Not according to the Venice Commission. Their Report on the Preferential Treatment of National Minorities by their Kin-State was published with the question of whether "preferential treatment by a State of its kin-minorities abroad" was compatible with international law. It is interesting that throughout this report, the main question is not whether racial favoritism is legal, but whether the existing, widespread favoritism conforms to acceptable guidelines. For example, "A State can legitimately issue laws or regulations concerning foreign citizens without seeking the prior consent of the relevant States of citizenship, as long as the effects of these laws or regulations are to take place within its borders only. ... Further, when a kin-State takes unilateral measures on the preferential treatment of its kin-minorities in a particular home-State, the latter may presume the consent of the said kin-State to similar measures concerning its citizens."³⁵ The report explains that "... different treatment of persons in similar situations is not always forbidden ... in the Commission’s opinion the circumstance that part of the population is given a less favourable treatment on the basis of their not belonging to a specific ethnic group is not, of itself, discriminatory, nor contrary to the principles of international law. Indeed, the ethnic targeting is commonly done, for example, in laws on citizenship." "Even today ... most people acquire their political citizenship through unchosen, often unexamined, hereditary descent ... Immigration policies in western Europe, the USA, and elsewhere generally include some sort of favoritism for those who can claim kinship with current citizens ..."³⁶ So if the favoritism that guarantees Jews citizenship in Israel is not discriminatory, not contrary to the principles of international law, and similar to legislation adopted by dozens of other countries around the world ... why are we talking about apartheid? If Israel had legislation in place, say, like Jordan that specifically prohibits Jews by name ("Any person who, not being Jewish ..."³²) or the 2005 Constitution of Iraq that twice excludes Israelis from being eligible for citizenship, or Saudi Arabia's (now hidden) ban on "Jewish people", the argument could be advanced. Algeria, Bangladesh, Brunei, Djibouti, Iran, Kuwait, Lebanon, Libya, Malaysia, Pakistan, Saudi Arabia, Sudan, Somalia, Syria, the United Arab Emirates, and Yemen won't allow those holding an Israeli passport into their countries but that doesn't seem to put anyone off. (Bahrain, Iran, Kuwait, Lebanon, Libya, Qatar, Saudi Arabia, Sudan, Syria, and Yemen won't even allow those with an Israeli stamp on their passport to enter.) A law that at its most malicious simply requires everyone else to follow standard naturalization procedures before welcoming them as a citizen does not seem worthy of mobilizing anti-apartheid campaigns. Footnotes: ¹ Farsakh, Leila. Israel: An Apartheid State? Le Monde diplomatique, November 2003. ² Ferguson, Sue. Tear Down That Wall!. This Magazine, September-October 2007. ³ www.stopthewall.org Apartheid Wall (Site accessed March 23, 2009) ⁴ Israeli Apartheid Week 2009 (Site accessed March 21, 2009) ²⁷ Apartheid Wall Fact Sheet ²⁸ Jews sans frontieres. Israel's Law of "Return" ²⁹ Yakobson, Alexander and Rubinstein, Ammon. Democratic Norms, Diasporas, and Israel's Law of Return ³⁰ Yakobson, Alexander and Rubinstein, Ammon. Democratic Norms, Diasporas, and Israel's Law of Return ³¹ Yakobson, Alexander and Rubinstein, Ammon. Democratic Norms, Diasporas, and Israel's Law of Return ³² Law No. 6 of 1954 on Nationality (last amended 1987) [Jordan], 1 January 1954, available at: http://www.unhcr.org/refworld/docid/3ae6b4ea13.html [accessed 6 July 2009] ³³ Venice Commission. Report on the Preferential Treatment of National Minorities by their Kin-State. 48th Plenary Meeting, (Venice, 19-20 October 2001) 9 ³⁴ Venice Commission. Report on the Preferential Treatment of National Minorities by their Kin-State. 48th Plenary Meeting, (Venice, 19-20 October 2001) 13-15 ³⁵ Venice Commission. Report on the Preferential Treatment of National Minorities by their Kin-State. 48th Plenary Meeting, (Venice, 19-20 October 2001) 17 ³⁶ Isin, Engin F., and Bryan S. Turner. Handbook of Citizenship Studies. London: SAGE, 2002. 110 ³⁷ Makkawi, Ibrahim. "CULTURAL HEGEMONY, RESISTANCE AND RECONSTRUCTION OF NATIONAL IDENTITY AMONG PALESTINIAN STUDENTS IN ISRAEL." Arab Studies Quarterly; Fall 2008, Vol. 30 Issue 4, 23-42. ³⁸ Skrentny, J., S. Chan, J. Fox, and D. Kim. "Defining Nations in Asia and Europe: A Comparative Analysis of Ethnic Return Migration Policy." The International Migration Review 41.4 (2007): 793-825. ³⁹ Skrentny, J., S. Chan, J. Fox, and D. Kim. "Defining Nations in Asia and Europe: A Comparative Analysis of Ethnic Return Migration Policy." The International Migration Review 41.4 (2007): 793-825. ⁴⁰ Skrentny, J., S. Chan, J. Fox, and D. Kim. "Defining Nations in Asia and Europe: A Comparative Analysis of Ethnic Return Migration Policy." The International Migration Review 41.4 (2007): 793-825. ⁴¹ Skrentny, J., S. Chan, J. Fox, and D. Kim. "Defining Nations in Asia and Europe: A Comparative Analysis of Ethnic Return Migration Policy." The International Migration Review 41.4 (2007): 793-825. ⁴² Skrentny, J., S. Chan, J. Fox, and D. Kim. "Defining Nations in Asia and Europe: A Comparative Analysis of Ethnic Return Migration Policy." The International Migration Review 41.4 (2007): 793-825. ⁴³ Skrentny, J., S. Chan, J. Fox, and D. Kim. "Defining Nations in Asia and Europe: A Comparative Analysis of Ethnic Return Migration Policy." The International Migration Review 41.4 (2007): 793-825.