Israel’s “Demographic Demon” in Court
A low-key but injudicious war of words briefly broke out between Israel’s two most senior judges in the wake of the May 2006 decision by the Supreme Court to uphold the constitutionality of the Nationality and Entry into Israel Law. A temporary measure passed by the Knesset in July 2003, the law effectively bans marriages between Palestinians in the Occupied Territories and Israeli citizens.
The two judges’ squabble was an indication of how crucial each believes the statute’s permanent addition to or removal from the books will be in determining Israel’s future in the new era of separation from the Palestinians that Prime Minister Ehud Olmert hopes will dawn as he seeks unilaterally to determine his country’s final borders. Will Israel be a state that is ruthless and unselfconscious about protecting its Jewishness, or one that maintains at least a pretense of respecting universal rights of citizenship?
Separation, Physical and Emotional
The law has been roundly condemned in Israel and abroad as racist because it amends a founding piece of legislation—the 1952 Nationality Law—in order to prevent Palestinians from gaining any residency or citizenship rights inside Israel upon marrying an Israeli citizen. In effect, Palestinians have been barred from joining their spouses and offspring in Israel.
The Israeli government has argued the need for such a sweeping ban on security grounds: It says a small number of Palestinians has used residency as a way to assist in terror attacks inside Israel. Before the Supreme Court, the government cited a figure of 25 such Palestinians who have been questioned on security-related matters, though it has not said how many of them were involved directly in attacks or convicted of an offense.
The law has mainly harmed the interests of Israel’s large Arab minority—more than one million Palestinian citizens—because they, rather than Israeli Jews, have a history of marrying Palestinians from the Occupied Territories, often neighbors or distant relatives living in towns and villages that, until Israel’s building of the fence-cum-wall, straddled the Green Line, the pre-1967 border that was effectively erased with Israel’s occupation of the West Bank and Gaza.
Compounding this injustice, the law has also made any kind of life together for such couples almost impossible because the Israeli spouse is banned under military regulations from entering Palestinian-controlled areas of the West Bank and Gaza Strip. The law has created an emotional separation between Palestinians with Israeli citizenship and Palestinians in the Occupied Territories that parallels the physical separation established by the wall.
In May 2005, the government made a small adjustment in an attempt to dampen protests from global organizations such as Amnesty International and Human Rights Watch. The interior minister was given the power to approve temporary residency permits for Palestinian male spouses over the age of 35 and female spouses over 25. However, the great majority of cases—which involve younger couples—remain unaffected. Even those spouses technically entitled to residency have limited rights to work and receive medical and welfare benefits, and their applications can be refused on security grounds without explanation or right of appeal.
A “Technical Loss”
The Supreme Court, which has been faced with a series of suits from human rights groups targeting the law, finally issued its verdict on May 14. Six judges sitting on an expanded 11-member panel rejected the petitions and upheld the statute. The closeness of the vote was a reflection of the deep divisions separating the two camps, one led by the chief justice, Aharon Barak, and the other by the deputy chief justice, Michael Cheshin, both of whom are quickly approaching retirement.
In his minority report, Barak argued that the law violated the right to a family life and the right to equality that are both implicit in Israel’s Basic Law, the nearest thing Israel has to a constitution. He also claimed that, in view of the indiscriminate nature of the ban, the damage done to family life outweighed security justifications. The chief justice concluded that the temporary law, which is due to expire at the end of July, should be extended for a further six months while the state redrafts it.
Cheshin, on the other hand, denied that Israeli citizens enjoy a constitutional right to bring a “foreign national” into Israel, contending that the state has the right to protect the “face of its society.” Furthermore, he claimed that because Israel is at war with the Palestinians, it is a proportional measure to deny entry to enemy nationals. He compared Israel’s position in trying to prevent entry of Palestinians to that of other countries facing infiltration from enemy states, citing as an example Britain’s blocking of immigration from Nazi Germany. This comparison implied that Cheshin believed the Palestinians were not only enemy nationals, but also from an enemy state (an odd formulation for referring to Palestinians, as several commentators would soon point out). He concluded: “[It] is the right—moreover, it is the duty—of the state, of any state, to protect its residents from those wishing to harm them. And it derives from this that the state is entitled to prevent the immigration of enemy nationals into it—even if they are spouses of Israeli citizens—while it is waging an armed conflict with that same enemy.”
From early on in the hearings, Cheshin demonstrated little sympathy for the families affected by the law. In February, he observed to lawyers that an Israeli who married a Palestinian “should live in Jenin,” a Palestinian city in the West Bank besieged by the Israeli army and which Israeli civilians are banned from entering.
The majority view was termed “shameful” by the liberal daily Haaretz newspaper, and several columnists elegantly picked Cheshin’s arguments apart. Yitzhak Laor, for example, noted: “Palestinians who live in the occupied territories are not ‘inhabitants of an enemy state.’ They are not inhabitants of any state. They have been subjects of the Israeli occupation for over a generation.”
Outgoing Chief Justice Barak, possibly unhappy to end his term with the stain of such a ruling, e-mailed a law professor at Yale University trying to play down the significance of the decision and to distance himself from it. In his missive, leaked to the press, he described the verdict as only a “technical loss,” adding: “I devoted much time and energy to writing my opinion and to the attempt to persuade my colleagues.”
Explaining his more liberal position, he stated: “In my opinion, I decided that the right to family life is a constitutional right of the Israeli partner or his/her child. This right includes not just the right to marry, but also the right to live in Israel. I also decided that the statute discriminates against Arabs, since all those who seek family unification from the West Bank are Arabs.” Barak characterized the majority’s backing of Cheshin’s countervailing security position in the following terms: “One judge supported his reasoning. Three judges concurred with me on the violation of the rights, but agreed with Cheshin on the proportionality issue.”
This belittling of the majority verdict prompted a settling of scores by Cheshin, who indiscreetly gloated to a reporter: “Justice Aharon Barak is ready for 30, 50 people to be blown up, but we will have human rights. I am not ready for that. He thinks that; I think differently. To my great happiness, I am in the majority.” Cheshin later apologized for these remarks, saying they were made in the heat of the moment.
A recently retired Supreme Court justice, Dalia Dorner, castigated Cheshin for his comments, noting that risk taking is in the nature of judicial work, because a judge cannot know for sure the effects of her judgments. Pointedly, she observed: “Who says that a terrorist will emerge precisely from among Palestinians who marry Israelis? Why does the identity card they [Palestinian spouses] would have endanger state security and not the blue card of the 231,000 Palestinians we annexed in East Jerusalem? Why is the one who married an Israeli more dangerous? In my opinion, when I discriminate en masse against Israel’s one million Arabs, thereby alienating them, I do more actual damage to our future security than the theoretical damage under family unification.”
While Barak and Cheshin expounded their differing assessments of the legality of the government’s security argument, the subtext of the Nationality and Entry into Israel Law went unaddressed. Cheshin made an elliptical reference to the “face” of Israeli society, while another judge, Ayala Procaccia, alluded to the fact that there was probably an additional logic driving the measure. That unspoken motive was demography.
The “demographic demon”—the fear that Israel’s Jewish majority is being slowly eroded by higher Palestinian birth rates and threatened by continuing Palestinian demands for a right of return—has been lurking quietly in the shadows ever since Israel was established. But the demography debate has become cacophonous in recent years, as Israel has faced, for the first time since its founding, an imminent Palestinian majority in the region.
From the earliest days of the Nationality Law’s amendment, observers suspected that security was being used as cover for a deeper concern: that, by giving citizenship to Palestinian spouses, Israel would only be adding to its demographic headache. Given the disengagement from Gaza and the “consolidation” implicit in the West Bank wall (both measures essentially inspired by demography), officials were said to be terrified that, as they closed the “borders” to the Palestinians, they would be leaving the back door open via the unification procedure.
That argument, however, did not emerge into the light until May of 2005, when the former prime minister, Ariel Sharon, called a press conference aboard his private jet. He was on his way to Washington to plead with the Bush administration for money to help ease the withdrawal of the 7,000 settlers then living in the Gaza Strip.
Although the coming trauma of the disengagement should have been uppermost in his mind, Sharon took the opportunity instead to defend the Knesset’s latest renewal of the temporary amendment to the Nationality Law. He said: “The Jews have one small country, Israel, and must do everything so that this state remains a Jewish state in the future as well. There is no intention of hurting anyone here; there’s merely a correct and important intention of Israel being a Jewish state with a massive Jewish majority. That’s what needs to be done, and that’s exactly what we’re doing. This is considered normal everywhere.”
Few observers were surprised by Sharon’s comment. Trepidation associated with a Palestinian “right of return by the back door” had been brewing for the better part of a decade.
“Threatened with Annihilation”
Until its amendment, the Nationality Law afforded the only, if uncertain, route for Palestinians in the Occupied Territories to gain Israeli citizenship—through the family unification procedure that follows marriage to an Israeli. But until the beginning of the Oslo process in the mid-1990s, few Palestinians had bothered to stake such a claim.
The reason was simple: a mixed Palestinian and Israeli couple could move freely back and forth across the Green Line. But as the idea of national separation implicit in the Oslo accords took hold (and especially as Israel started to limit Palestinian movement using a system of permits, checkpoints and curfews), couples began applying to the Israeli Interior Ministry for unification.
Israel has two separate tracks for naturalization. Under the Law of Return, all Jews (defined as anyone with one Jewish grandparent) are entitled to immigrate to Israel and receive automatic and immediate citizenship. They can also bring with them family members—a spouse, children and grandchildren—even if these people are not classified as Jews by the Orthodox rabbinate (who require that a Jew have a Jewish mother).
Non-Jewish naturalization is governed by the Nationality Law, sometimes translated from Hebrew as the Citizenship Law. It sets up a lengthy procedure that involves candidates applying for a series of temporary permits for five years before being issued with permanent residency. Israeli citizenship can only be acquired if the applicant renounces his or her existing citizenship. During this wait, the security services usually run detailed checks on the applicant.
Although Palestinians were entitled to citizenship under these rules, few in practice ever received it and many struggled even to get residency permits. But it looked like that would change in 1999, when the government promised to equalize the treatment of all family unification applicants rather than face a ruling against its discriminatory practices from the Supreme Court. As a result, the first bundle of applications for citizenship from Palestinians was due to drop on the interior minister’s desk in 2003. But in the spring of 2002, the minister, Eli Yishai, announced a sudden administrative hold on all applications from Palestinians for family unification. The freeze continued until July 2003, when the amendment to the law was passed.
At the time, Avi Dichter, then head of Israel’s internal security service, the Shinbet, argued that the amendment was “vital for Israel’s security.” He said a number of Palestinians had used their citizenship or residency to launch terror attacks inside Israel, although the government refused to provide numbers or cite examples to human rights groups. It had been widely reported in the Hebrew media that, even before Yishai implemented his freeze, he had been disturbed by figures his officials were compiling of Palestinian applications for citizenship. According to the Population Administration, at least 22,000 Palestinians had received citizenship since Oslo. When the couple’s children were included, according to officials, the figure rose to more than 100,000 Palestinians.
In fact, this number was a gross distortion, as a much later investigation by Haaretz showed. The head of the Population Administration, Herzl Gedj, a Likud activist and an intimate friend of Sharon, had ordered his department to include repeat applications in the total as well as claims from other foreign nationals, not just Palestinians. The true figure was 6,000 Palestinians.
Fear of the “demographic demon,” however, has kept the Israeli public, media and legislators—and now apparently the courts—receptive to government claims that severe restrictions on Palestinian residency and citizenship are needed. Commenting on the Supreme Court’s decision, the Jerusalem Post noted that the security argument for the law was “weak,” but observed: “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’.” The immigration absorption minister, Zeev Boim, took a similar view: “We have to maintain the state’s democratic nature, but also its Jewish nature. The extent of entry of [Palestinian spouses] into Israel’s territories is intolerable.
The inability of the judges to consider the demographic imperatives behind the law added a surreal air to the court proceedings, as well as to the later bickering between Barak and Cheshin. Neither objects to measures designed to safeguard Israel’s Jewishness, and both probably feel equally passionately about a law of this kind being on the books. But they differ on whether it is necessary to “sell” such a law to the outside world.
Barak felt his first and most important duty after the decision’s publication was to contact his friend at Yale University to distance himself from the law in its current, overtly discriminatory form. Cheshin, on the other hand, appears comfortable referring to the need to protect the “face” of Israeli society—this euphemism his only minor concession to protecting the court’s “liberal” image. Barak neglected to mention to the Yale law professor that even he did not favor overturning the law immediately, only giving the government enough time—eight months—to alter it, presumably so that he and the court’s liberals would not be too embarrassed to endorse it.
Patting himself on the back to his Yale friend, Barak also observed that the justice minister, Haim Ramon, understood that Barak’s position had really prevailed over Cheshin’s. He wrote: “The justice minister announced this morning that if the Parliament tries to enact again the statute without any change, there is a high probability, according to the views of the court, that the statute will be unconstitutional.”
This is because six of the 11 justices took the view that law violated Israel’s Basic Laws. The vote of Justice Edmond Levy, however, tipped the balance in Cheshin’s favor, because Levy accepted that the court should not interfere in the law for the time being, as the measure is temporary and due to expire shortly. In other words, according to Barak, if the government simply keeps renewing the temporary law, the court will probably find against it. The government is therefore under pressure to redraft the law quickly, probably within the eight-month deadline recommended by Barak, as a permanent statute. The signals are that it expects to formulate the measure as a new Basic Law, so that its constitutionality cannot easily be questioned by the Supreme Court.
That is certainly the stated position of Justice Minister Ramon, who on May 25 ordered his department to prepare Israel’s first immigration bill “based on international law.” He added: “The time has come for Israel to have clear immigration legislation that will give priority to Jews returning to their homeland but will also allow the possibility to naturalize on the basis of universal principles.” All the indications are, however, that Ramon is playing fast and loose with the concept of “universal,” if only to satisfy the discomfited among Israel’s senior judiciary. Certainly, Palestinians and inhabitants of most other Arab states are not expected to be included among those entitled to residency in Israel. Ramon hinted as much when he stated: “The State of Israel, which designates itself a Jewish and democratic state, is authorized to limit entry via its borders.… The state has an absolute right to prevent citizens of hostile states from becoming citizens of the state.”
His staff is almost certain to base the new bill on the recommendations made in February by a government-appointed committee headed by Israel’s foremost constitutional law expert, Amnon Rubinstein. The committee argued that Palestinians and inhabitants of “hostile” states, meaning Arabs, who marry Israelis should be banned from rights to either citizenship or residency in Israel.
Other non-Jewish spouses, the committee argued, should face age and income requirements and be expected to affirm a loyalty oath—not to Israel, but to Israel as a Jewish and democratic state. In keeping with current policy, non-Jews are unlikely to receive citizenship, but may be eligible for residency rights.
Adalah, the legal center for the Arab minority in Israel, which petitioned the Supreme Court on behalf of families separated by the law, compares the Israeli judges’ decision unfavorably with a similar appeal heard in 1980 by the courts in apartheid South Africa. In that case, black South Africans with passes to work in white areas petitioned against a law that prevented their spouses without permits from living with them. The South African court sided with the petitioners rather than the government, arguing that the ban violated the right to a family life.
“Unlike apartheid South Africa, we have a majority in our court who refuse to provide a legal remedy against a racist law, one which deprives citizens of their basic rights based on their ethnicity,” observed Orna Kohn, a senior Adalah lawyer. “We have a racist law and our courts will give no remedy. That is a very dangerous message. It empties the idea of constitutional protection of all meaning.”