The Israel Supreme Court, in a 6-5 decision, yesterday ruled in favor of a law that, in effect, prevents Palestinian residents of the West Bank/Judea and Samaria who marry Israeli citizens from moving into Israel.

The law states that only Palestinian women over the age of 25 and men over 35 are eligible to join their families in Israel, and eventually receive citizenship.

The majority ruled in favor, while acknowledging that it is a discriminatory law, because of security considerations. Namely, they consider the PA to be hostile to Israel and that a war is ongoing between the two sides. As a result, the majority claimed that such marriages where the PA-governed spouse moves into Israel, would allow for security issues to develop.

Deputy Chief Justice Mishael Cheshin…argued that “Israel isn’t obliged to open its gates to citizens of an enemy state, with which it is engaged in armed conflict.”

The minority claimed that this was not a significant security issue and that a deep bias against one ethnic group within Israel was driving the issue.

Chief Justice Aharon Barak…stressed that legislation curtailing Arab “family reunification” inside Israel is “by nature discriminatory as it applies only to one ethnic component of Israel’s population.”

Of course, one could question whether demographics are or are not a weapon in this war between the two sides, but as of now, Israel’s government, backed by the strongly independent Supreme Court seem to feel that demographics may be a weapon. One of the justices who voted in favor had even asked why the couple in question had to move into Israel and could not live in a Palestinian city outside of Israel instead.

It wasn’t just the Supreme Court that was divided on this issue. The Jerusalem Post has an editorial on this issue where they seem to agree with the ruling.

It is striking that the narrow minority of justices did not consider that Israel has the same right to preserve its character as countries far less imperiled, like Denmark. Realizing that if present immigration trends continue unchecked, Copenhagen will become a city with a Muslim majority in two decades, the liberal Scandinavian state instituted severe limitations on the entry of foreign spouses who marry Danish citizens. Similar get-tough legislation has been enacted in other European countries such as Holland.

There is no comparing Israel’s acute vulnerability with the situation in Western Europe. Israel is openly threatened with annihilation – not just physically, by a potential Iranian nuclear capability, but demographically, by Palestinian claims of a “right of return.”

Ha’aretz object to the ruling quite strenuously.

There is no country in the Western world that does not limit immigration and set priorities in accordance with its needs at a given time. Immigration laws make it difficult for foreign partners of citizens to receive citizenship, and they combat fictitious marriages. But not one single Western country discriminates against some of its citizens by passing laws that apply only to them, and that impose limits only on their choice of a partner with whom they can live in their homeland.

It is difficult to accept the argument that the amendment to the Citizenship Law, which won the Supreme Court’s approbation yesterday, comes in response to a genuine security need. It is easier to accept the skeptical position of Justice Ayala Procaccia, who wrote that in light of the facts before her, she doubted whether the security explanation is the only one behind the law.

The Jpost article reminds us that 140,000 Palestinians entered Israeli legally during the Oslo years, an event that some called a “back-door right of return.” While the vast majority have not been involved in acts of terror, there is little doubt that demographically, this is a serious blow to a country that wishes to preserve a Jewish majority. As demographics continue to become an ever-increasing issue in this Israeli-Arab conflict, I suspect we’ll be seeing more of these difficult issues arising. They will truly test the character and nature of the state of Israel.

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  • I’m a little confused by the demographic argument. Under prior law, weren’t family reunifications dealt with officially on a case-by-case basis? Is this really a matter of opening the proverbial floodgates?

    Whatever the merits of the decision, any court-sanctioned discrimination on the basis of ethnicity or religion will leave lasting scars– if the US experience is any guide.

    “The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well-intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.” Korematsu v. United States, 323 U.S. 214 (1944) (Murphy, J., dissenting).

  • I see that my point above was made by Aharon Barak himself, in November, 2002:

  • “Furthermore, a mistake by the judiciary in times of war and terrorism is worse than a mistake of the legislature and the executive in times of war and terrorism. The reason is that the judiciary’s mistakes will remain with the democracy when the threat of terrorism passes, and will be entrenched in the case law of the court as a magnet for the development of new and problematic laws. This is not so with a mistake of the other branches, which can be erased through legislation or executive action and usually forgotten. In his dissent in Korematsu v. United States, Justice Jackson expressed this distinction well:

    ‘[A] judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty…. A military order, however unconstitutional, is not apt to last longer than the military emergency…. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. . . .’ “

  • This is without question a very challenging issue that touches on the very core of what Israel is and isn’t. As I understand it, prior to 1994 (Oslo accords) family reunification was permitted on a case by case basis. However, Oslo had a provision that made it much easier to acquire residency for the Palestinians and they took full advantage – 140,000 over about 10 years.

    I think this is a very confusing and difficult time for the Jewish Israelis as this ruling and these two editorials show.

  • Yes, J Post contents itself with the benefits- limiting Palestinian immigration- and Ha’aretz focuses on the costs- denying equal protection of the laws to a class of Israeli citizens.

    Well, the Court majority should hope the benefits will be substantial, because the costs are quite high.

  • You should note that the decision is actually 6-5 to reject this law. Edmond Levy voted against in the long run, requiring that the law be modified within 9 months before it is considered illegal. The new Israeli government is already tackling this issue.

    No matter how they tackle it, I don’t think there is a clean way to address this issue.

  • The decision touches on so many larger issues, not just security concerns (which are profound enough). Should Israel be a constitutional democracy? As I understand it, the religious right opposes a constitution as dangerously secular. How would such a document function in the context of review of this law? And what should a constitution provide to begin with?

    There’s the vexed question of the rights of Jews versus non-Jews. How do you define the privileged status of the former, while providing a panoply of individual rights (due process, freedom of speech etc.) to the latter?

    Does this decision show that, absent a governing document addressing these issues, Israel and its courts have to deal with them on a ad hoc basis? Is that satisfactory?

  • Nice example of Ha’aretz in fully erronneous hubris mode: no Western country targets specific groups in its immigration policy – except for Denmark and a slew of other EU countries (Spain and Italy have long ago tried this method of controlling North African immigration).

    Hey Tom: the Japanese story is just one bad episode in a constant – and largely positive – history of discriminatory American immigration policy by nationality/ethnicity.

    But don’t let me stop the handwringers from mutilating their Kleenexes…

    This law was formulated and passed IN RESPONSE to widespread abuse of family reunion claims to serve illegal immigration.

    So it’s no surprise to see that Tommy-boy is up in arms over this one – it’s the same selective vision that has folks decrying Israeli military RESPONSES to Pali aggression…

  • Tom, I’m not a lawyer or legal expert and therefore not qualified to respond to your questions. I would think that having the Basic Laws as well as more than a century of precedents under both Ottoman, British and now Israeli law does give the Court as well as other courts a great deal of guidance with respect to their decisions.

    The Basic Laws may cause some harm in that they are not a constitution, but I suspect the Israelis wish to have this flexibility in part because the ongoing conflict with the Arabs is unresolved and factors that influence the Israelis change at times. I also think that it may be the difficulty of the demographics that have caused a disinclination to pursue a constitution.

    Having said that, there are plenty of prominent Israelis among the judiciary and even in the present government who are pushing for reform on this issue. It may happen yet.

  • Ben-David, my point is not that Israel should open its borders and let everyone (who’s not Jewish) in. It’s the Jordan River, not the Rio Grande. Every country gets to regulate immigration.

    My comment had to do with the rights of a class of Israeli citizens, and the class-based discrimination the government’s policy involves. (Korematsu involved US citizens of Japanese descent.) As I stated with characteristic eloquence and insight, it may be necessary, but there may be long-term costs.

    ‘Tommy-boy’? Give it a correct Bawstun pronunciation: Taaawwwmmy.

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