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Joining the Jewish People: Non-Jewish Immigrants from the Former USSR, Israeli Identity and Jewish Peoplehood

Published online by Cambridge University Press:  19 March 2012

Alexander Yakobson
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Abstract

The Law of Return grants every Jew the right to immigrate to Israel; this also applies to non-Jewish relatives of Jews. The Citizenship Law grants every such “returnee” automatic citizenship. The wave of immigration from the former Soviet Union in the 90s brought a large number of immigrants not considered Jewish under the definition accepted in Israel. Is this large group of Israeli citizens—who do not, at least formally, belong to the Jewish people—an emerging second substantial national minority in Israel? This Article argues that regardless of formal definitions based on Orthodox religious law under which a religious conversion is the only way for a non-Jew to become Jewish, these immigrants, through their successful social and cultural integration in the Hebrew-speaking Jewish society in Israel, are joining, de facto, the Jewish people. It is no longer true that religious conversion is the only way to join the Jewish people.

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Articles
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Israel Law Review , Volume 43 , Issue 1 , 2010 , pp. 218 - 239
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

1 Law of Return, 1950, S.H. 159.

2 Nationality Law, 1952, S.H. 146.

3 For a detailed discussion of the Law of Return, its legislative history and case law, as well as of the normative questions it raises from the viewpoint of liberal theory, see Joppke, Christian, Selecting by Origin: Ethnic Migration in the Liberal State 157–70; 176–81; 192–218 (2005)Google Scholar: see also Rubinstein, Amnon & Barak Medina, , The Constitutional Law of the State of Israel, 396–413 (6th ed. 2005)Google Scholar [in Hebrew]; Carmi, Na'ama, The Law of Return: Immigration Rights and their Limits (2003)Google Scholar [in Hebrew]; Gans, Chaim, A Just Zionism: On the Morality of the Jewish State 111–132 (2008)CrossRefGoogle Scholar; Gavison, Ruth, Sixty Years to the Law of Return: History, Ideology, Justification (2009)Google Scholar [in Hebrew]; Yakobson, Alexander & Rubinstein, Amnon, Israel and the Family of Nations: The Jewish Nation-State and Human Rights 125–35Google Scholar; 156-58 (2008) (examining the Law of Return in light of contemporary international and European norms—including those on ties with ‘kinminorities’ abroad—and compared with some contemporary repatriation laws). See also Venice Commission (European Commission for Democracy through Law), Report on the Preferential Treatment of National Minorities by their Kin-State, adopted by the Venice Commission at its 48th Plenary Meeting, (Venice, Oct. 19-20, 2001), available at http://venice.coe.int/docs/2001/CDLINF(2001)019-e.html.

4 Similar claims were once made by members of the ‘Bund’ and some other groups supporting a diasopric version of Jewish national identity on behalf of the secular Yiddish culture in Eastern Europe since the nineteenth century.

5 See Cohen, Asher, Non-Jewish Jews in Israel 15Google Scholar; 26–27 (2006) [in Hebrew].

6 See on this Moin, Victor, Krivosh, Ludmila, and Kenigshtein, Moshe, Ethnically Mixed Russian-Speaking Families in Israel: Problems of Adaptation in ‘Russkoye’ lizo Israilya: Cherty Sozialnogo Portreta 204–05 (Kenigshtein, Moshe ed., 2007)Google Scholar [in Russian].

7 The European Framework Convention for the Protection of National Minorities, Nov. 1, 1995, ¶12, E.T.S. 157 does not include an official definition of a “national minority,” and its Explanatory Report concedes that no generally-acceptable definition could be found. The Convention does not require an explicit official recognition of a national minority as such; see on this Heintze, Hans-Joachim, Minority Issues in Western Europe and the OSCE High Commissioner on National Minorities, 7 Int'L J. Min. & Group Rts. 381 (2000)CrossRefGoogle Scholar. However, in Israel it is highly desirable to include such recognition in the country's Basic Laws precisely because the state is officially defined as Jewish and because it is undisputed that the national identity of the Arab minority is distinct from that of the Jewish majority. Israel's Declaration of Independence in fact refers to the state's future Arab citizens as “members of the Arab people.” Arabic is recognized as the second official language (See HCJ 41 12/99 Adalah, The Legal Center for Arab Minority Rights in Israel v. The Municipality of Tel-Aviv/Jaffa [2002] IsrSC 56 (5) 393 for a major Supreme Court ruling underpinning this status) and Arab pupils attend state schools in which Arabic is the language of instruction. Cf. infra note 10.

8 See, e.g., Smoooha, Sammy, The Regime of the State of Israel: Civil Dermocracy, Non-Democracy or Ethnic Democracy, 2 Isr. Soc. 565–630 (2000)Google Scholar [in Hebrew]. Samooha defines Israel as an “ethnic,” and thus, essentially flawed, democracy, rather than a “non-democracy” or “ethnocracy,” as do some more radical critics. The specific flaws of the Israeli democracy regarding the status of the Arab minority largely follow, in his view, from the ethnic concept of national identity on which the Jewish state is based (though he also notes the negative impact of the ongoing national conflict). For more radical criticism, see, e.g., Ghanem, As'ad, Rouhana, Nadim, & Yiftachel, Oren, Questioning ‘Ethnic Democracy’: A Response to Sammy Samooha, 3 Isr. Stud. 253–67 (1998)CrossRefGoogle Scholar; Yiftachel, Oren, Ethnocracy: the Politics of Judaizing Israel/Palestine, 6 Constellations 364–390 (1999)CrossRefGoogle Scholar. For a different view, see, e.g., Gavison, Ruth, Israel as a Jewish and Democratic State: Tensions and Chances (1999)Google Scholar [in Hebrew]; Yakobson & Rubinstein, supra note 3.

9 For a classic exposition of the traditional dichotomy between ethnic and civic nationalism, see Kohn, Hans, The Idea of Nationalism (1944)Google Scholar; see also Hobsbawm, Eric, Nations and Nationalism Since 1780 (1990)Google Scholar. This dichotomy has been subjected to repeated criticisms that question the assumption that civic nationalism is inherently more liberal and inclusive and challenge the very notion of a national identity that is purely civic, or culturally neutral. See, e.g., Brubaker, Rogers, The Manichean Myth: Rethinking the Distinction Between ‘Civic’ and ‘Ethnic’ Nationalism, in Nation and National Identity: The European Experience in Perspective 55–71 (Kriesi, H. eds., et al., 1999)Google Scholar; Kymlicka, Will, Modernity and National Identity, in Ethnic Challenges to a Modern Nation State 17 (Ben-Ami, Shlomo, Peled, Yoav, & Spektorowski, Alberto eds. 2000)Google Scholar; see also Brown, David, Contemporar Nationalism: Civic, Ethnocultural and Multicultural Politics (2000)Google Scholar. For the different legal and constitutional concepts of national identity (both congruous and not congruous with citizenship) in contemporary Europe, see Council of Europe, Parliamentary Assembly, Recommendation 1735, “The concept of a nation”, Assembly Debate Jan, 26, 2006 (7th Sitting)), available at http://assembly.coe.int/main.asp?Link=/documents/adoptedtex/ta06/erec1735.htm.

10 On the different levels of civic inclusion in Israel, see, e.g., Shafir, Gershon & Peled, Yoav, Being Israeli: The Dynamics of Multiple Citizenship (2002)CrossRefGoogle Scholar. Shafir and Peled distinguish between liberal citizenship, which the Arab minority possesses to a considerable, though imperfect, degree (including the ability to combat discrimination by activating the judicial system), and republican citizenship, which, according to them, it lacks. The latter is defined by them as sharing in the dominant concept of the common good, which, they argue, is identified with the good of the Jewish majority. It might be argued that the concept of “republican” Israeli citizenship is sufficient to describe the status of the group of people with whom we are dealing here; but in my view the level of their social and cultural integration in the Hebrew-speaking majority indicates that it should be regarded as defining their national identity; cf. Cohen, supra note 5, at 36–37. On the civic status of Israel's Arab minority in Israel, with reference to international and European norms on civil equality and the rights of national minorities, see also Yakobson & Rubinstein, supra note 3, at 104-23.

11 See, e.g., Weiss, Yifat, The Golem and its Creator, or How the Law of Return turned Israel into a Multi-Ethnic State, 19 Teoria u-vikoret 45–69 (2001)Google Scholar [in Hebrew].

12 In 2005, 27,000 of the newcomers had declared their religious affiliation to be Christian, see Cohen, supra note 5, at 28-29. Though it is undoubtedly true that the cultural gap between them and the majority society is significantly wider than in the case of secular immigrants of non-Jewish origin, it seems to me far from obvious that, as Cohen holds, the notion of sociological conversion is ‘irrelevant at this stage’ in the case of such people (Id. at 71). At any rate, it is highly relevant as far as the adoption of Hebrew is concerned (all the more so in the next generation). The fact that the children of today's Christian immigrants will be native Hebrew-speakers looks more certain than that all of them will be Christians, but it is also quite possible that a substantial Christian Hebrew speaking community will emerge. Cf: Infra note 37 and text.

13 Cultural pluralism within the Jewish-Israeli society can, arguably, be defined as multiculturalism in a non-radical sense of the term that assumes, alongside diversity, strong common ground between the different groups (including the centrality of Hebrew as the national language). See Mautner, Menachem, Sagi, Avi, & Shamir, Ronen, Multiculturalism in a Democratic and Jewish State (1998)Google Scholar [in Hebrew]. On Russian-speaking immigrants and multiculturalism, see Cohen, supra note 5, at 29-31; Horowitz, Tamar, Four Scenarios for the Integration of Former USSR Citizens in Israel, in Israel and Modernity: In Honor of Moshe Lissak 488–490 (Cohen, Uri, Ben-Refael, Eliezer, Bareli, Avi, & Yaar, Ephraim eds., 2006)Google Scholar [in Hebrew]. According to Shafir & Peled (supra note 10, at 309, 320), the incorporation of the Russian-speaking immigrants, accompanied by an acceptance of a considerable degree of cultural distinctiveness on their part, points (among other factors) “in the direction of greater pluralism, even multiculturalism” (id. at 309). They mention, in this context, the fact that “the demand for recognizing Russian as a third official language, alongside Hebrew and Arabic, has already been voiced” (id. at 320). This, however, is a wholly marginal phenomenon. On multiculturalism and the Arab minority, see infra note 14.

14 Al-Haj, Majid, Immigration and Ethnic Formation in a Deeply Divided Society: The Case of the 1990s Immigrants from the Former Soviet Union in Israel 105, 108, 216 (2004)Google Scholar. The “ethnocratic multiculturalism,” according to Majid Al-Haj, applies only to the Jewish-Israeli society and excludes the country's Arab citizens; cf. Kimmerling, Baruch, The New Israelis: Multiple Cultures without Multiculturalism, 16 Alpayim 263–308 (1998)Google Scholar [in Hebrew]. According to Kimmerling, a Jewish state is essentially incompatible with genuine multiculturalism, chiefly as regards the status of the Arab minority (but also because of the ties between Jewish religion and state). However, the cultural and language rights of the Arab minority in Israel are in fact very considerable, supra note 7; Samooha, supra note 8, at 593-94; Yakobson & Rubinstein, supra note 3, at 188–121. Full civic integration, rather than the right to preserve the community's cultural distinctiveness, is clearly the main problem.

15 Al Haj, supra note 14, at 210-11. Most studies of the Russian immigration put, in varying degrees, greater emphasis on successful integration. See, e.g., Lissak, Moshe & Leshem, Eliezer, From Russia to Israel: Identity and Culture in Transition (2001)Google Scholar [in Hebrew]; Khanin, Vladimir, Russian-Jewish Ethnicity: Israel and Russia Compared, in Contemporary Jewries: Convergence and Divergence 216–34 (Ben-Rafael, Eliezer, Gorny, Yosef & Ro'i, Yaacov eds., 2003)Google Scholar; (Ze'ev) Khanin, Vladimir and Epstein, Alek, Cultural Continuity, Renewal and Immigration: Consciousness and Identity Conformations of Russian-speaking Jews, in Israel and Modernity: In Honor of Moshe Lissak 505–520 (Cohen, Uri, Ben-Refael, Eliezer, Bareli, Avi, & Yaar, Ephraim eds., 2006)Google Scholar [in Hebrew]; Kenigshtein, Moshe, ‘Russkoye’ lizo Israilya: cherty sozialnogo portreta (2007)Google Scholar [in Russian]; Samooha, Sammy, The Mass Immigration to Israel: A Comparison of the Failure of the Mizrzchi Immigrants of the 1950s with the Success of the Russian Immigrants of the 1990s, 27 J. Isr. Hist. 1 (2008)CrossRefGoogle Scholar.

16 Arian, Asher, Philippov, Michael & Knafelman, Anna, Auditing Israeli Democracy 65, 74–75 (2009)Google Scholar [in Hebrew]. The numbers of Israeli Arabs giving positive answers to questions on Israeli patriotism, while much lower than in the case of the Jewish majority or the immigrants, are far from negligible. Another 2009 survey has 45% of Arab citizens aver pride in being Israeli; in 2008 the figure was 53%, see Nano Geva and Eppie Ya'ar, Patriotism Survey 2009, Herzliya Conference (2009), available at http://www.herzliyaconference.org/_Uploads/2997ManoGeva.ppt.

17 Moin, Krivosh, & Kenigshtein, supra note 6, at 206, 213. The survey conducted by Arian, Philippov and Knafelman, (supra note 14, at 60-61 by age groups), gives, in response to a slightly differently formulated question on the immigrants' wish to remain in Israel, a significantly lower percentage of positive answers, though it is still close, overall, to the general Jewish-Israeli figure of 78%.

18 Moin, Krivosh, & Kenigshtein, supra note 6, at 205.

19 See Cohen, supra note 5, at 21; a survey of the scholarly and public debate on this issue (id. at 24, 43). Cohen's firm conclusion that the “sociological conversion” is the predominant tendency seems to me to be the correct one. However, even if this is doubted, it is not really disputed that a substantial part of the people in question (even if not necessarily a large majority, as argued by Cohen) are integrating in the Jewish-Israeli society, and this seems to be sufficient for the main argument presented in this Article: i.e., the ability to join the Jewish people without religious conversion; cf. Al-Haj, Majid & Leshem, Elazar, Immigrants from the Former Soviet Union in Israel: Ten Years Later 25-27, 126–30 (2000)Google Scholar and Cohen, supra note 3.

20 Al-Haj, supra note 14, at 216 (“At the same time, such character is clearly ‘non-Arab’ in the sense that it places Arabs outside of its legitimate borders, while other groups, even the non-Jewish immigrants, are included in its borders.”). Unlike Ian Lustick, (infra note 27), whose term “non-Arab state” he adopts, Al-Haj believes that the integration of non-Jewish immigrants doesn't make Israel any less of a Jewish state, though it does redefine the meaning of this term.

21 Cf. Remennick, Larissa, From Russian to Hebrew via HebRush: Intergenerational Patterns of Language Use among Former Soviet Immigrants in Israel, 24 J. Multilingual & Multicultural Development 431 (2003)CrossRefGoogle Scholar.

22 In the case of immigration to Western countries, what is debated is the extent to which naturalisation should be conditional on adopting various aspects of the host culture; the prevailing tendency in recent years is to make cultural conditions for naturalisation (and in some cases, for immigration) more demanding. See, e.g., Joppke, supra note 3; Joppke, Christian, The Retreat of Multiculturalism in the Liberal State: Theory and Policy, 55 Brit. J. Soc. 237 (2004)CrossRefGoogle ScholarPubMed; Orgad, Liav, Illiberal Liberalism: Cultural Restrictions on Migration and Access to Citizenship in Europe. 58 Am. J. Com. L. 53 (2010)CrossRefGoogle Scholar.

23 According to Cohen, supra note 5, at 40 ff, the people in question have joined the Jewish leom (a Hebrew word used to denote a “nationality,” in the sense of national community) in Israel.

24 See supra note 16.

25 It is clear that the Arabs in Israel, as a community, do not wish to assimilate into the Jewish majority (as opposed to civic integration, which, naturally, includes cultural elements, including the use of Hebrew). This is entirely to be expected in the case of a large native minority; in this respect, Israeli Arabs should be compared to the German-speakers of South Tyrol in Italy, or to the Hungarian minorities in Slovakia and Romania—rather than to immigrant communities in Western countries and the dilemmas of their integration, as is sometimes mistakenly done. Nevertheless, belonging to a national minority or assimilating into the majority people should be a matter of free choice expressed by cultural and social affiliation. (See Europe Framework Convention, supra note 7, art. 3). The application of this principle to Israel's realities raises important and complicated questions (doubly so, of course, because of the national conflict) that cannot be treated here at length; see Yakobson & Rubinstein, supra note 3, at 187-88.

26 See lately Sand, Shlomo, When and How was the Jewish People Invented (2008)Google Scholar [in Hebrew]; Berent, Moshe, A Nation Like All Other Nations: Towards the Establishment of an Israeli Republic (2009)Google Scholar [in Hebrew].

27 53 Mid. E. J. 417 (1999).

28 Of course, Hebrew in not confined to the Jewish majority, though its role within the Jewish majority is very different from its role outside of it. The Arab minority in Israel, while preserving Arabic as its mother tongue and as an important badge of its distinct identity, has become—as is usual with minorities—bilingual to a considerable extent.

29 “Republican,” in the sense suggested by Shafir and Peled (supra note 10). Culture and politics cannot, of course, be neatly separated. Among other things, the Druze in Israel undergo a three-year compulsory military service from which Muslim and Christian Arabs are exempt (though there is a relatively small number of volunteers); this means that on the average, the kind of Hebrew they speak makes them culturally, and not just politically, closer to the majority. Their Hebrew (as well as that of many Arab Muslims and Christians) is, naturally, better than that of the average new-comer (whether Jewish or not). But it is the latter group for which, in the next generation, Hebrew becomes its native tongue.

30 Shafir & Peled, supra note 8, at 333-34. It should be noted that in 1970, the struggle for the right of Soviet Jews to emigrate was only beginning; nobody in Israel could have known at the time that a large wave of Russian-speaking immigrants would arrive in the 1970s, and a much larger one, with a much higher percentage of mixed families, in the 90s.

31 Cf. Cohen, supra note 5, at 40–41.

32 Moreover, they insist this should be only according to the Orthodox religious law—the Halacha. This controversy is beyond the scope of this paper, but it should be noted that the Orthodox establishment has failed to have its way on this issue—non-Orthodox conversions by people immigrating to Israel are recognized by the state.

33 See, e.g., supra note 26.

34 Cf. Kymlicka, Will, Multicultural Citizenship: A Liberal Theory of Minority Rights 23–24 (1996)CrossRefGoogle Scholar.

35 As I write (in August 2009), the status of another large group of foreign workers' children born in Israel and educated in Hebrew schools is being considered. The government called off plans for their deportation as “illegal aliens” following a public outcry, supported by prominent members of the establishment, during which it was repeatedly asserted—with emphasis on the fact that they are native Hebrew-speakers—that they are, regardless of their legal status, de facto Israelis. Their future in Israel—eventually, as Israelis also de jure, and as part of the Hebrew-speaking majority—seems at this point to be assured despite obstinate opposition of the Orthodox establishment, which, unfortunately, is likely to cause considerable hardship. The adoption of a comprehensive immigration law (not instead but alongside the Law of Return), setting out, inter alia, clear criteria for naturalization, has been repeatedly suggested in recent years; sooner or later this seems bound to happen.

36 In fact, when wishing to marry they encounter a problem in any case, since the great majority among them do not belong to any religious community. The assumption of the laws on personal status is that all Israeli citizens belong—at least formally—to one of the country's recognized religious communities. This assumption is factually wrong, and a modern state has no right to assume such a thing—which is one of the reasons why the law needs to be changed.

37 HCJ 72/62 Rufaizen v. The Minister of Interior [1962] IsrSC 16 2428; see also Rubinstein & Medina, supra note 3, at 398–99 (discussing this issue); Joppke, supra note 3, at 177–78. This decision was later incorporated in the 1970 amendment to the Law of Return, which added to the definition of a Jew the proviso of “not belonging to another religion.”

38 Armenia provides another parallel. For a comparison between Jewish, Greek, and Armenian cases of “diaspora nationalism,” including the role of religion, see Smith, Anthony, Myths and Memories of the Nation 211–13 (1999)Google Scholar. On church and state in Greece and Armenia as well as some other countries (compared with Israel), see Yakobson, Alexander, Jewish Peoplehood and the Jewish State, How Unique?—A Comparative Survey 13 Isr. Stud. 1 (2008)CrossRefGoogle Scholar. On nationalism and religion in Zionism and in other national movements, see Ben-Israel, Hedva, In the Name of the Nation: Studies in Nationalism and Zionism 151–95 (2004)Google Scholar [in Hebrew]; see also Ben-Israel, Hedva, Zionism and European Nationalisms: Comparative Perspectives, 8 Isr. Stud. 91 (2003)CrossRefGoogle Scholar.