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The Meaning and Liberal Justifications of Israel's Law of Return
Published online by Cambridge University Press: 19 March 2012
Abstract
The Article argues for a new assessment of the significance of Israel's Law of Return—that the Law of Return reflects not the sovereign prerogative of a state to control immigration, but the right of every Jew to settle in the Land of Israel. This understanding of the Law of Return explains why Section 4 proclaims that as far as the Law is concerned, the status of Jews born within the State of Israel is the same as those arriving to Israel from abroad. Resolving the anomaly of Section 4 dispels several misinterpretations of the Law of Return and the critiques of the Law which grow out of these misinterpretations. The Article also surveys and answers several liberal objections to Israel's policy of granting preference in immigration and naturalization based on ethno-national identity and presents an argument, for giving priority to Jewish immigration and naturalization based on the extra benefits (religious, political, and communal) that Jews receive from such immigration and naturalization. Finally, it is submitted that the State of Israel has an obligation of justice to admit Jews into the state as full citizens upon their demand, since this was a reasonable expectation of those in past generations who had contributed to the existence and maintenance of the state.
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References
1 Law of Return, 1950, S.H. 159; Bill and an Explanatory Note (no. 48), 1950, H.H. 189.
2 The question “Who is a Jew?” has been the source of much debate. Amendment 2 (1970) to The Law of Return, 1950, S.H. 51, stipulates that:
(4B) “Jew” refers to a person born of a Jewish mother or has become converted to Judaism and who is not a member of another religion; and (4A) the family of a Jew is similarly entitled to immigrate and settle in the state, except for a person who has been a Jew and has voluntarily changed his religion.
The family members explicitly listed as so entitled are: a Jew's spouse, children, grandchildren, and their spouses. This amendment was a compromise agreed to after twenty years of court cases and political wrangling between the Orthodox and the non-Orthodox Jewish community. The Orthodox insisted on a halacha (orthodox interpretation of the scriptures) definition of a Jew, and this is codified in (4B)—with the significant addition (which is not with accordance to the halacha) that those who voluntarily convert to other religions are no longer considered Jews. See CA 72/62 Rufeisen v. The Minister of Interior [1962] IsrSC 16(4) 2428Google Scholar. The non-Orthodox community—in which intermarriage between Jews and non-Jews is more common—was granted a concession in amendment (4A) which explicitly entitles members of a Jew's family to make Aliyah (literally meaning to ascend, figuratively meaning to ascend and immigrate to Israel), regardless of whether they qualify as Jews. This compromise is problematic since it is over-inclusive with respect to the original intention of the Law of Return (and contrary to my argument in this Article). The Amendment is over-inclusive with respect to the intention of the Law of Return since it permits immigration and settlement of people who clearly do not identify with the Jewish people, and hence do not see their immigration as “an ascent,” i.e., making aliyah.
3 Of course, Israel has no single document explicating its essential constitution. Nevertheless, the Law of Return has achieved a status of law that is higher than common laws. See HCJ 265/87 Brasford v. The Minister of Interior [1989] IsrSC 43(4) 793Google Scholar. See my translation of the Israeli Parliament (Knesset) Statements (Dvrei HaKnesset) (DK) 6 DK (1950) 2041-42 (statement of Israel Bar Yehuda, Member of Knesset (MK)):
To Jews the state does not need to give a charter. It is a natural law; it is their natural right that no man can give them or take from them. When we win and the Knesset approves a constitution, I hope it will be decided that the first section of the Law of Return will not be able to be held up for revision in the State of Israel and that no majority will be able to cancel it.
See Kretzmer, David, The Legal Status of the Arabs in Israel 89 (1990)Google Scholar: “This special privilege granted to all Jews is regarded as the fundamental principle of Israel as a Jewish State.” See id. 17-22: The statutory manifestations of Israel's Jewishness boil down to a few provisions: (1) the Law of Return (2) Status of Jewish National Institutions: World Zionist Organization and the Jewish Agency (3) Status of Chief Rabbinate (4) State Symbols: Flag, Emblem, Anthem, Calendar (5) Elementary School Education (6) Several Cultural and Memorial Museums.
4 Letter from Lord Arthur Balfour, Foreign Secretary of UK, to Lord Rothschild (Nov. 2, 1917).
5 Evidence of this prioritization and its prevailing over every opposing consideration within the Zionist organizations of that time can be found in the debates concerning the Peel Commission's 1937 partition plan. The desperation over the need to open immigration to Jewish refugees drove the leaders of the Jewish Yishuv in the land of Israel and the World Zionist Organization to accept the offer of sovereignty over a small fraction of what had been promised less than 20 years earlier. On the Peel Partition Plan, Chaim Weitzmam noted: “The Jews would be fools not to accept it, even if [the territory allotted them] were the size of a table cloth.” Quoted in Shlaim, Avi, Collusion Across the Jordan 58 (1988)Google Scholar. After the rejection of the partition plan by the Arab leaders, and the expressed intent of the British to severely limit Jewish immigration, Weitzmam declaims, “We shall resist these proposals before the eyes of the world, openly and honestly … This is a breach of the promise made to us in a solemn hour … and the blow is the more cruel because it falls upon us in the hour of our own supreme crisis.” Weitzmam, Chaim, On the Report of the Palestine Commission (1937), in The Zionist Idea 583–588 (Hertzberg, Arthur ed., 1997)Google Scholar. See Statement to the Elected Assembly of Palestine Jewry (Oct. 2, 1947) (Statement of David Ben Gurion):
So, too, let all of Jewry demand that an interim Jewish Government be set up to execute an interim policy under United Nations supervision and with aid thence, and primarily an interim policy of large-scale immigration and rescindment of the White Paper. … between acquiescing in the White Paper, with its locked gates and racial discrimination, and the assumption of sovereign power, there can, in truth, only be one choice.
6 Shuval, Judith, Immigrants on the Threshold 5–6 (1963)Google Scholar.
7 My translation of 6 DK (1950) 2035-37. See Peled, Yoav, Ethnic Democracy and the Legal Construction of Citizenship: Arab Citizens of the Jewish State, 86 Am. Pol. Sci. Rev. 435 (1992)CrossRefGoogle Scholar:
When Ben Gurion submitted the Law of Return to the Knesset for its approval, he argued … the rights granted to Jews—and only to Jews—in the Law of Return were not given to them by the state. These rights predated the state, and Jews had possessed them by virtue of being Jews. Moreover, the State of Israel itself came into being through the right Jews had always had to the Land of Israel and in order to enable them to fulfill that right. Therefore, Israel could neither grant nor deny Diaspora Jews the right to settle in the country.”
See Major Knesset Debates (1948–1981) 613 (Lorch, Nathaniel ed., 1993)Google Scholar: “Upon presenting the proposed Law of Return to the Knesset (Israeli Parliament) in 1950, David Ben-Gurion, Israel's first prime minister, observed that the right of return ‘existed before the state did, and it is that which built the state.”’
8 An English translation of the Law of Return, supra note 1, available at http://www.mfa.gov.il/MFA/MFAArchive/1950_1959/Law%20of%20Return%205710-1950 (last visited Nov. 4, 2009). The same translation is published in Fundamental Laws of the State of Israel 156 (Badi, Joseph ed., 1961)Google Scholar.
9 Amendment to Law of Return (1970), S.H. 5710 159, available at http://www.mfa.gov.il/MFA/MFAArchive/1950_1959/Law%20of%20Return%205710-1950. It is important to note that in 1980, the Law of Return was amended again.
10 Yishuv′ refers to the politically organized Jewish community in the region before the establishment of the State of Israel.
11 Rubinstein, Amnon, Israel Nationality, 2 Iyunei Mishpat 159 (1976) [in Hebrew]Google Scholar.
12 Id.
13 See Lustick, Ian, Israel as a Non-Arab State: The Political Implications of Mass Immigration of Non-Jews, 53 Mid. E. J. 417–33 (1999)Google Scholar. Lustick claims that Section 4, together with the (1970) Amendment, is best understood as a means of numerically overwhelming the Arab population with “non-Arab” citizens. The injustice of such a policy lies in its undermining the political power of Arab citizens vis-à-vis the ever-increasing non-Arab majority. For a discussion of this argument see section III.B.
14 Weiss, Yfaat, The Golem and Its Creator, or How the Jewish Nation-State Became Multi-Ethnic, in Challenging Ethnic Citizenship: German and Israeli Perspectives on Immigration 82–83 (Levy, Daniel & Weiss, Yfaat eds., 2002)Google Scholar. See id. 89:
one section of the law, Section 5 [sic], does explicitly discriminate against Israel's Arab residents. This section creates equality under the Law of Return between [Jews] … what this section meant to avoid was discrimination between immigrants and long-established Jewish inhabitants, but in doing so it introduced clear discrimination between the new nation-state's Jewish and Arab citizens.
15 See Nationality Law, sect. 2(a), 1952, S.H. 95: “Every ‘oleh’ under the Law of Return … shall become an Israel national.” This was amended in 1980 to: “Every ‘oleh’ under the Law of Return shall become an Israel national, unless he acquired Israeli citizenship through birth under section 4 [of Nationality Law].”
16 Nationality Law, supra note 15, sect. 4: “A person born while his father or mother is an Israel national shall be an Israel national from birth; where a person is born after his father's death, it shall be sufficient that his father was an Israel national at the time of his death.”
17 See Carmi, Na'ama, ‘Shall be Deemed to be a Person Who Has Come to this Country as an Oleh under this Law’: The Stamka Dilemma, the Purpose of the Law of Return and the Connection between Return and Citizenship, 10 Mishpat U'Mimshal 151 (2006)Google Scholar [in Hebrew].
18 S.H. 984, 222, translation in Kretzmer, supra note 3, at 39 (emphasis added D.E.) See Shachar, Ayelet, Citizenship and Membership in the Israeli Polity, in From Migrants to Citizens 408 (Aleinikoff, T.A. & Klusmeyer, D., eds. 2000)Google Scholar:
Returning to the discussion of the different ways of acquiring Israeli citizenship, it is important to note that any person born in Israel whose father or mother is an Israeli citizen is automatically granted Israeli citizenship at birth. … the manner in which the parent acquired Israeli citizenship is irrelevant. Hence, children of Jews and Arab citizen have a similar entitlement to birthright citizenship. The 1980 amendment to the Citizenship Law resolves the anomaly present in the 1950 Law of Return, that children born in Israel to at least one Israeli Jewish parent are regarded as if they themselves were immigrants, or citizens by way of return (rather than by way of birth to an Israeli parent). In other words, the Citizenship Law now gives precedent to the principle of citizenship by birthright over the legal fiction of granting citizenship to children born in Israel based on the right to return.
19 HCJ 3648/97 Stamka v. The Minister of Interior [1999] IsrSC 53(2) 728Google Scholar.
20 Id. (translation D.E.); Carmi, supra note 17, at 168 (translation D.E.).
21 United Nations Convention Relating to the Status of Refugees, Aug. 1, 1951, 189 U.N.T.S. 150 [hereinafter the Refugee Convention].
22 See Deuteronomy 16:16. Although there is no explicit mention of Jerusalem in the verse, “Three times in a year all your males shall appear before the LORD your God in the place which He chooses, at the Feast of Unleavened Bread and at the Feast of Weeks and at the Feast of Booths, and they shall not appear before the LORD empty-handed” (New American Standard Bible 1995), Jewish tradition considers the phrase “the place which He chooses” to be a reference to Jerusalem.
23 Nachmanides, Commentaries on Vayikra, chapter 18: line 25.
24 See Theodore Hertzl's reaction to French society's abuse of Colonel Dreyfus as a public scapegoat. Hertzl, Theodore, The Jewish State (1896), in The Zionist Idea 208–09 (Hertzberg, Arthur ed., 1997)Google Scholar:
The Jewish question still exists. It would be foolish to deny it. It is a misplaced piece of medievalism which civilized nations do not even yet seem able to shake off, try as they will … We have sincerely tried everywhere to merge with the national communities in which we live, seeking only to preserve the faith of our fathers. It is not permitted us. In vain are we loyal patriots, sometimes superloyal; in vain do we make the same sacrifices of life and property as our fellow citizens…In our native lands where we have lived for centuries we are still decried as aliens.
25 See Morris, Benny, Righteous Victims 9–10 (2001)Google Scholar:
The dhimmi were forbidden to strike a Muslim, cany arms, ride horses, build new houses of worship or repair old ones, and they had to wear distinctive clothing. “Contemptuous tolerance,” in the phrase of historian Elie Kedourie, came to be the attitude adopted by Muslim states toward their Jewish communities. This stance was generally mixed with a measure of hostility especially in times of political crisis. Tolerance was then superseded by intolerance, which occasionally erupted into violence. Throughout, Muslims treated the dhimmi, and perhaps especially the Jews, as impure.
See Id. at 11:
One measure and symbol of Jewish degradation was the common phenomenon…of stone-throwing at Jews by Muslim children. A nineteenth century Western traveler wrote: ‘I have seen a little fellow of six years old, with a troop of fat toddlers of only three and four, teaching [them] to throw stones at a Jew, and one little urchin would, with the greatest coolness, waddle up to the man and literally spit upon his Jewish gabardine. To all this the Jew is obliged to submit; it would be more than his life was worth to offer to strike a Mahommedan.’
Id. Western traveler's quote is from Lewis, Bernard, The Jews of Islam 164–65 (1984)Google Scholar.
26 See Hertzl, supra note 24, n.20.
27 The phrase “aliyah artza” (ascent to The Land) is used to characterize the immigration of Jews to Israel throughout the Hebrew Bible: See Genesis 50:14, Numbers 32:1, Ezra 2:1, and Nehemia 5:6.
28 In addition to the liberal critics, there are those who argue that by limiting the widely-accepted prerogative of states to select their immigrants, the Law of Return places a heavy and unnecessary burden on the Israeli taxpayer. There are also those who criticize the 1970 Amendment for being over-inclusive. Ruth Gavison also criticizes it for its under-inclusiveness; she argues that the Amendment is under-inclusive in that there are those who are neither converts nor spouses of Jews who nevertheless see themselves as members of the Jewish people, and also people who are persecuted as Jews, who do not qualify for immigration permits under the Amendment. See note 1. Artsieli, Yoav, Main Points of Ruth Gavison's Explanation, in The Gavison-Medan Covenant: Main Points and Principles 30–31 (Yarden, Rachel trans., 2004)Google Scholar.
29 Peled, supra note 7.
30 International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, 660 U.N.T.S. 195 [hereinafter CERD]. Israel ratified the Convention in 1991.
31 Shachar, Ayelet, Citizenship and Membership in the Israeli Polity, in From Migrants to Citizen 389–90 (Aleinikoff, T.A. & Klusmeyer, D. eds., 2000)Google Scholar. See id. at 410: “These prerequisites for naturalization are in many respects no harsher than those of many other countries in the world, however, they are extremely restrictive in comparison with the automatic granting of citizenship by way of return to Jews and their non-Jewish family members.”
The prerequisites for naturalization in Israeli citizenship law are: (1) be in Israel; (2) have resided in Israel for 3 of the last 5 years (3) been entitled to that residence (4) have basic knowledge of Hebrew (5) be willing to renounce citizenship in other states (6) make an oath of loyalty to the State of Israel.
32 Lustick, Ian S. & Lesch, Ann M., Exile and Return 6 (2005)Google Scholar.
33 Gans, Chaim, The Limits of Nationalism 141 (2003)CrossRefGoogle Scholar.
34 A stricter analogy compares the situation of people who are citizens in states in which they don't share the national identity of the state and that state prioritizes members of the national community in their distribution of immigration permits and citizenship. Examples of such states include: Armenia: Article 14 of the Armenian Constitution provides that, “individuals of Armenian origin shall acquire citizenship of the Republic of Armenia through a simplified procedure.” Bulgaria: Article 25 of the 1991 Bulgarian Constitution specifies that, “person[s] of Bulgarian origin shall acquire Bulgarian citizenship through a facilitated procedure.” As specified in Article 15 of the Law on Bulgarian Citizenship, this means that an individual “of Bulgarian origin” may be naturalized without any waiting period and without having to show a source of income, knowledge of the Bulgarian language or renunciation of his former citizenship. Croatia: Article 11 of the Law on Croatian Citizenship allows emigrants and their descendants to acquire Croatian nationality upon return, without passing a language examination or renouncing former citizenship. In addition, Article 16 permits “a member of the Croatian people who does not have a place of residence in the Republic of Croatia [to] acquire Croatian citizenship” by making a written declaration and submitting proof of attachment to Croatian culture. Germany: Article 116(1) of the Grundgesetz für die Bundesrepublik Deutschland confers a right to citizenship upon any person who is admitted to Germany as “refugee or expellee of German ethnic origin or as the spouse or descendant of such a person.” At one time, ethnic Germans living abroad (Aussiedler) could obtain citizenship through a virtually automatic procedure, but since 1990 the law has been steadily tightened to limit the number of immigrants who can come each year and require proof of language skills and cultural affiliation. Greece: Ethnic Greeks can obtain Greek citizenship by two methods under the Code of Greek Nationality. Pursuant to Article 5, ethnic Greeks who are stateless (which, in practice, includes those who voluntarily renounce their nationality) and who “really behave as Greeks” may obtain citizenship upon application to a Greek consular official. In addition, ethnic Greeks who join the armed forces acquire automatic citizenship by operation of Article 10, with the military oath taking the place of the citizenship oath. Hungary: Section 4(3) of the Act on Nationality permits ethnic Hungarians (defined as persons “at least one of whose relatives in ascendant line was a Hungarian citizen”) to obtain citizenship on preferential terms after one year of residence. Italy: Persons of Italian descent may claim citizenship through a maternal grandparent if neither the grandparent nor their mother has ever renounced Italian nationality. Japan: A special visa category exists exclusively for foreign descendants of Japanese emigrates (Nikkeijin) up to the third generation, which provides for long-term residence, unrestricted by occupation, but most Nikkeijin cannot acquire Japanese citizenship. Poland: The Statute on Polish Citizenship, as amended in 2000, permits the descendants of Poles who lost their nationality involuntarily between 1920 and 1989 to take up Polish citizenship without regard to ordinary naturalization criteria. Romania: Romanian expatriates who lost their citizenship prior to December 22, 1989. as well as their children and grandchildren, may reclaim their nationality upon presentation of a declaration and supporting documents. Turkey: Turkish law allows persons of Turkish origin, and their spouses and children, to apply for naturalization without the five-year waiting period applicable to other immigrants. Ukraine: Article 8 of the Law on Citizenship of Ukraine permits any person with at least one Ukrainian grandparent to become a citizen upon renunciation of his former nationality.
35 Gans, supra note 33, at 125.
36 State of Israel, Central Bureau of Statistics, Press Release, Apr. 27, 2009, available at http://www.cbs.gov.il/www/hodaot2009n/11_09_084e.pdf.
37 Artsieli, supra note 28, at 28.
38 Gans, supra note 33, at 124.
39 Rubinstein makes a similar response in Rubinstein, Amnon, Israel Nationality, 2 Iyunei Mishpat 160 (1976) [in Hebrew]Google Scholar.
40 CERD, supra note 30, art. 1(3) (emphasis added D.E.)
41 See supra notes 2 & 6 for comments by Ben Gurion and Bar Yehuda at the presentation of the Law of Return before the Knesset in 1950.
42 Joppke, Christian, Selecting by Origin 158–9 (2005)Google Scholar:
While clearly less pernicious than negative discrimination, the range of positive discrimination is still limited in a liberal state. As in the prototype of U.S. “affirmative action,” positive discrimination is usually to improve the situation of a disadvantaged group, and it is to stop once the disadvantage has been removed … This is why the notion of persecution becomes central to the legitimation of ethnic diaspora migration: it justifies the underlying positive discrimination on the part of the receiving state …. In Israel, this takes the extreme form of the entire Jewish collectivity conceiving of itself as entitled to an act of restitution, for which the Law of Return stands.
43 Kasher, Asa, Justice and Affirmative Action: Naturalization and the Law of Return, 15 Isr. Y.B. Hum. Rts. 101–12 (1985)Google Scholar. Kasher uses the concept of “affirmative action” to refer to policies of favoring persecuted Jews over refugees of other national identities. This is a problematic conception of the Law of Return, as explained earlier, since the Law of Return grants immigration permits to each individual Jew for the sake of his expressed interest in immigrating, not merely for persecuted Jews, and not for the sake of the state's interest in maintaining a viable majority of Jews so as to ensure the right of the Jewish people to national-self determination.
44 Benhabib, Seyla, The Rights of Others (2004)CrossRefGoogle Scholar.
45 Id. at 138.
46 Id. at 138-39 n2.
47 Supra note 11, Lustick, supra note 13, Kretzmer, supra note 3, at 35-48. Kretzmer gives a history of the early years of court battles by Arab residents against Israeli government administrators' implementation of the Nationality Law, and how subsequent court cases and legislation loosened the restriction that Arab residents had to have returned to residence within Israel before 1952.
48 Benhabib, supra note 44, at 138.
49 Id. at 137-38.
50 Id. at 138 n.2.
51 In any case, the fact that people have an interest in living within a state of their nation does not mean that they have a right to live in a state that bears the identity of their nation wherever they happen to reside. Otherwise, I would be correct to demand that Korea be recognized as a Jewish state since that is where I reside. Clearly that would be absurd.
52 The case of allowing immigration for family unification is more complicated in Israel since the balancing must also consider security risks involved in granting admission. See Dan Ernst, Balancing Demographic, Security and Family Interests in Israeli Immigration Policy (work in progress on file with the author).
53 When thinking about the Law of Return, Yfaat Weiss advises us to “consider returning to the original intention … entitlement to asylum.” Weiss, supra note 14, at 101. See Shachar, supra note 18, at 394:
The right of return is encoded in section 1 of the Law of Return and is grounded in the Zionist perception of the State of Israel as a safe haven for the Jewish people of the Diaspora, who historically endured centuries of persecution and were considered less-than-full-members in almost every country in which they lived.
54 Shachar, supra note 18, at 389 quoting from Peretz, Don & Doron, Gideon, The Government and Politics of Israel 62 (3d ed. 1997)Google Scholar.
55 Efforts to generate anti-Semitism seem to have proceeded in the Arab world unabated since the 1930s (See Lewis, Bernard, From Babel to Dragomans (2004)Google Scholar). Following the attack on the U.S. of September 11, 2001, the extent of the concerted efforts by states in the Arab world to generate anti-Semitism through state schools and state controlled mass-media came to light in the American mass-media. Internet websites dedicated to translation of Arabic and Farsi materials (available at MEMRI.org and palestinianmediawatch.org)have also helped bring this to light. See translations of Saudi schoolbooks compiled in Groiss, Arnon, The West, Christians, and Jews in Saudi Arabian Schoolbooks (2003)Google Scholar.
56 Dan Ernst, Liberal Justifications of Ethnic Nationalism (work in progress on file with the author).
57 Kymlicka, Will, Multicultural Citizenship (1995)Google Scholar.
58 Raz, Joseph & Margalit, Avishai, National Self-Determination, 87 J. Phil. 448 (1990)Google Scholar.
59 Gans, supra note 33, at 135.
60 Id. at 103. Gans claims that a nation's holding sovereignty over a territorial state provides important benefits to members of that national group, however the world's current geo-demographic conditions make it impossible for every national group to have its own state. Therefore, to prevent the inequity of some nations having states while others have “much less,” no nation should have its own state.
61 Mark Twain's travel journal is often quoted as evidence of the transformation brought about by the Yishuv, the organized Jewish settlement in the Land. See Twain, Mark, The Innocents Abroad (Modern Library 2003) (1867)Google Scholar:
There is not a solitary village throughout its whole extent [valley of Jezreel] -- not for 30 miles in either direction … One may ride ten miles hereabouts and not see ten human beings. … For the sort of solitude to make one dreary, come to Galilee … Nazareth is forlorn … Jericho lies a moldering ruin … Bethlehem and Bethany, in their poverty and humiliation … untenanted by any living creature … A desolate country whose soil is rich enough, but is given over wholly to weeds … a silent, mournful expanse … a desolation … We never saw a human being on the whole route … Hardly a tree or shrub anywhere. Even the olive tree and the cactus, those fast friends of a worthless soil had almost deserted the country … Of all the lands there are for dismal scenery Palestine must be the prince. The hills barren and dull, the valleys unsightly deserts [inhabited by] swarms of beggars with ghastly sores and malformations. Palestine sits in sackcloth and ashes … desolate and unlovely.
Id. 485.
62 Rubinstein, Amnon, From Herzl to Rabin: The Changing Image of Zionism 201 (2000)Google Scholar.
63 See Mansur, Kheiri, To Whom does Haifa Belong?, Al-Hayat Al-Jadida, June 9, 2000 (trans. Middle East Media Research Institute (MEMRI))Google Scholar. Mansur repeats a common accusation of the Palestinian media: Israel forges history and archeology to falsely establish the Jewish right to Israel.
64 See Lefkovits, Etgar, Temple Mount Relics Saved from Garbage, Jerusalem Post, June 14, 2005Google Scholar (discussing inter alia Gabriel Barkay's work on relics from the First and Second Temple period that were found discarded by the Islamic Wakf in a local garbage dump).
65 The names Philistine, and Palestinian (Falistini) do have an aural affinity; but considering that the original Hebrew Plishtim, for which the Philistines were named means “foreign invaders,” proving ancestral ties to this group is unlikely to make the case that Palestinians descend from first occupants.
66 See Gans, supra note 33, at 100. Gans cites a news item with the following headline: Palestinian Archeologists: We have uncovered Caanaanite buildings from 3000 B.C., which Confirms our Historical Right to Palestine, Haaretz, Aug. 4, 1998Google Scholar.
67 E.g., Yasser Arafat used to refer to the Palestinian people as “the nation of giants.” This was in reference to the Biblical story of the 12 spies who were sent to scout out the Land of Israel before the Israelites entered the Promised Land. These spies came back and reported that the land was occupied by “a nation of giants.” These were, in Arafat's mythology, the ancestors of the Palestinians.
68 See Gans, supra note 33, at 105.
69 Declaration of Independence of the State of Israel (May 15, 1948), available at http://www.science.co.il/israel-declaration-of-independence.asp.
70 There is a great deal of contemporary scholarship that emphasizes the voluntary aspect of ethnic identification. See Chandra, Kanchan, Symposium: Cumulative Findings in the Study of Ethnic Politics, Am. Pol. Science Ass.—Comp. Pol. (2001)Google Scholar. For a fascinating account of how individual ethnic identification can be affected by external circumstances, see Gorenburg, Dmitry, Identity change in Bashkortostan: Tatars into Bashkirs and back, 22 Ethnic & Racial Stud. 554–80 (1999)CrossRefGoogle Scholar. Individuals are often faced with multiple options for ethnic identification. Nonetheless, “ethnicity” is a marker indicating descent from a particular society. The same individual may have ancestors from different groups, this allows him to claim without contradiction that he is a member of ‘this’ ethnic group at one moment and ‘that’ one at another. There are also cases of conversion and excommunication. In the following sections I explain how these exceptions can be accommodated into the general rule of understanding ethnicity as indicating descent.
71 See Weber, Max, quoted in Huthchinson and Smith, Ethnicity: Oxford Readers 38 (1996)Google Scholar: “Sharp demarcations of areas wherein ethnically relevant customs predominate … usually came into existence by way of migration or expansion, when groups of people that had previously lived in complete or partial isolation from each other … came to live side by side.” See also, id. at 35: “It is primarily the political community, no matter how artificially organized, that inspires the belief in common ethnicity. This belief tends to persist even after the disintegration of the political Community.”
72 The World Zionist Organization (WZO) and Jewish Agency (Status) Law, 5713-1952, 7 L.S.I. 3 (1952-53) (Isr.).