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Right of Return

Professor Amnon RUBINSTEIN, the famous and widely respected legal authority, popular parliamentary leader of the liberal left for past decades answers the doubts about the right of return.

There is no 'right' of return
AMNON RUBINSTEIN
THE JERUSALEM POST
Mar. 15, 2005

The Supreme Court, Justice Ministry, Interior Ministry, National Security Council and the Knesset are all considering a difficult question: Is the State of Israel allowed to act to maintain its Jewish majority and, if so, what measures can it legitimately employ for that purpose?

The question is not relevant to the Greater Land of Israel; there it is clear that within a short time there will be no Jewish majority. But even in little Israel, the big discrepancy between Jewish and Arab birthrates and the drastic drop in Jewish immigration raise the demographic question.

The very discussion offends Israel's Arabs, because after all, every person is entitled to be treated as a full citizen, and it is surely offensive to be viewed as part of a "demographic threat." But responsibility for putting the subject on the table rests primarily with the Palestinian leadership, which brought up the right of the descendants of refugees to return to Israel as a main item on the agenda.

It is clear that their intention is to flood Israel so that its character (and name) disappear with the creation of an Arab majority in the country.

Declarations by Palestinians that the "Palestinian womb" should be used for political purposes fan the flames; those are blatantly fascist statements and the Israeli Left ought to be protesting against them vehemently.

Worse yet, once such demands have been raised it is clear that the Zionist Left's traditional demand of "two states for two peoples" is threatened by the Palestinian side. Drowning the Jewish state in an Arab majority means there would be two states for one people, thereby denying the Jewish people its right to self-determination.

That Palestinian demand is racist, and there is no doubt the Jewish people, inside and outside Israel, would totally resent it. Certainly it is not easy to be a member of the Arab minority in a Jewish state, but it is better to be such a minority in a state governed by the rule of law than a majority in a murderous dictatorship such as Syria, which is actually under a regime of occupation - an Arab occupation, but an occupation all the same.

The Supreme Court justices have already expressed their view about the Jewish majority and stated explicitly that the meaning of a "Jewish state" includes the existence of a Jewish majority.

The definition of Israel as a "Jewish and democratic state" was initially submitted by Peace Now. The idea is simple: The Greater Land of Israel cannot be both democratic and Jewish, because it will not have a Jewish majority, and then one of the two attributes will have to be given up: either the state's Jewish character or its democracy.

This idea became part of the Basic Law: Human Dignity and Liberty, and from there became subject to the interpretation of the Supreme Court. In a nation state, the national majority has the right to safeguard its existence and the identity of its state. Because of that natural right, special rights are granted to minorities who cannot become majorities and who have the right to defend their culture so they are not assimilated into the majority culture.

A nation's right of self-definition must include its right to maintain a democratic majority in its country - and if that is true for all peoples, it is all the truer for the Jews: The national majorities of North Ireland and Cyprus have other states (Britain, Greece) where they can realize their cultural identity and speak their language. The Jews have no other such state except for Israel.

Because of that right, international law allows states to discriminate between nationalities when it comes to immigration and acquiring citizenship. That is why the various laws of return of the European countries have not been attacked in the European Court of Human Rights.

Israel, therefore, is entitled to object to the "right of return," as opposed to family unification on a humanitarian basis. Accordingly, the compromise by the authors of the Geneva Accord, which does not categorically reject the principle of a "right" of Palestinians to move to Israel, is very damaging and hurtful.

And what about cases in which Israeli Arab citizens want to marry Arab men or women from the territories, or from Arab countries? That is a borderline case. On the one hand, they are citizens who want to establish families lawfully. On the other hand, they are suspected of using that right for nationalist purposes as a substitute for the "right of return."

This special case requires a separate discussion, but does not detract from the underlying legal principle. The law does not permit discrimination between one citizen and another because of religion or nationality, and therefore discrimination in child allowances or land allocation is forbidden in Israel.

The Supreme Court offered a fine analogy: The key for entering the Israeli home is held by the Jews, but inside the home there has to be full equality between Jews and Arabs.

The writer, founder of the Shinui movement and a former education minister, is dean of the Radzyner School of Law at the Interdisciplinary Center Herzliya.