Fresh Air

On June 6, the Israeli Government led by Prime Minister Naftali Bennett failed to pass a compromise that would have extended Israel’s Citizenship and Entry into Israel Law  (Temporary Order) (“CEIL”), commonly known as the “family unification law”, a piece of legislation that, among other things, effectively places curbs on the automatic granting of Israeli citizenship or Israeli residency to citizens of enemy states or the West Bank and Gaza.

Before the vote, a compromise was reached to make the extension more acceptable to the coalition partners, left-wing party Meretz and the Islamist Arab Ra’am party. According to Ha’aretz, the law would have been extended for only six months, instead of a year as had been the situation in the past. In addition, several hundred Palestinians married to Israelis and who have already been living in Israel without legal status would have been offered non-citizen residency status. In addition, A5 visas, which grant residency rights, would have been offered to 1,600 Palestinians.

The Government also considered the matter a confidence vote, and renegade MK Amichai Chikli from Prime Minister Naftali Bennett’s Yamina faction, who has never supported the unity Government while supporting the extension of the law in principle, wavered and ultimately voted “no”, preventing the extension from passing.

The original legislation was passed in 2003, during the height of the Second Intifada, as a security measure that requires annual extensions. The requirement to renew the law’s mandate each year itself reflected the seriousness with which the Knesset viewed the hardship that it may cause Israeli citizens who would be impacted by the rule.

And there is no denying that Israeli Arabs and Palestinians are overwhelmingly against the restrictions, seeing them as unfair, as countless media reports attest. Such opposition, however, doesn’t make the legislation necessarily unjust, and certainly not racist – since it affects a Jewish person who marries a Palestinian equally to an Arab person.

Media reports incorrectly implied that Israel’s laws on this matter are uniquely draconian. But as former Meretz MK Professor Amnon Rubinstein observed correctly in 2006, in support of the Supreme Court decision upholding the law in the face of a challenge that year, “In no country is there a constitutional right automatically enabling a foreign citizen who marries a local resident to become a resident of that country.”

Moreover, Israel is engaged in a dangerous conflict with the Palestinians. As commentator and former legal affairs reporter Evelyn Gordon wrote in the Jerusalem Post in 2006:

Virtually no other country allows enemy nationals to immigrate freely during times of active warfare. Yet Israel did precisely that during the first three years of the [second] intifada, accepting thousands of Palestinians who applied for family unification with Israelis, because existing law provided no means of refusing them. Only in 2003, after some of these Palestinian immigrants had exploited their new status to commit deadly terror attacks, did the government pass temporary legislation barring all Palestinian immigrants below a certain age, which was meant to give it time to enact a permanent reform of the immigration laws.

The law was controversial, politically and legally, though it was acknowledged by the overwhelming majority of Israeli legislators that the threats to Israel’s security and demographic stability that the law was intended to address were genuine, even if all sides could not agree on how to deal with the problem.

The threats

The law served two primary functions. First and foremost, it was aimed at preventing Palestinian terror groups from using marriage to Israeli Arabs as a means of obtaining Israeli identity documents that would help facilitate terror attacks inside Israel. According to an article in the Times of Israel from July 6, Israel’s internal security service Shin Bet recently stated that 48 of the Palestinians who had obtained Israeli residency or citizenship during the years following the Oslo Accords of 1993 went on to perpetrate terror attacks inside Israel between the years of 2001 to 2021.

Secondly, the law prevented Palestinians from using marriage as a political tool to target Israel’s demographic balance. According to the Times of Israel, between 1993 and 2003, around 130,000 Palestinians were given Israeli citizenship or residency, taking advantage of a good-will gesture Israel had made as part of the Oslo negotiations. Ha’aretz put that number at 140,000 [Article in Hebrew].

The transparent politicised aspect of this migration is exposed by the fact that the flow of unifications almost entirely went only in one direction, from the West Bank and Gaza to Israel, and not in both directions, as one would expect to see in marriages elsewhere in the world. Israeli officials began to interpret this trend as an attempt by Palestinians to overwhelm Israel gradually through demographic means by settling within its borders at every opportunity, or at the very least seek to gradually undermine Israel’s existence as a Jewish and democratic state.

A law twice upheld by Israel’s High Court

The CEIL survived two challenges in Israel’s High Court – in 2006 and 2012 – each by a narrow 6-5 ruling.

In February 2006, The Israeli business newspaper Globes quoted then-Deputy President of the Supreme Court, Justice Mishael Cheshin addressing lawyers for The Association for Civil Rights in Israel (ACRI) who were making their case against the law during a hearing.

“I am talking about an enemy government, a government that wants to destroy the country. After that, now we have to approve their entry?…

Justice Cheshin mentioned that the Palestinian people chose Hamas in the last election and added:

“It is true that [Palestinians are] not a hostile people. But when the State of Israel wants to defend itself against terrorist attacks, [even if only] one person [is prevented from] being harmed, it is not enough to ban entry? This is not enough reason? We should take risks?”

Cheshin added that Britain and the United States did not take risks during World War II against Germany. “I ask myself: this is a de facto enemy state, do I have to continue to bring them into [this] state? After all, the attacks continue!”, he emphasized.

According to an article in the Hebrew language business website The Marker, in May 2006, when the decision was handed down, Justice Cheshin spoke for the majority:

“The State of Israel is in a state of war or a kind of war with the Palestinian Authority and the terrorist organizations operating in it, and in time of war a state may prevent the entry of enemy nationals into its territory even if they marry citizens of Israel and [want to] live with them in Israel,” Cheshin wrote, “and as human beings we can only sympathize with the pain of those sincere people who have the right to have family life in Israel. However, as long as the armed conflict continues and as long as the security services have difficulty distinguishing between those who help us and those who do not help, the right of the few to raise their family in Israel should be rejected.”

The Marker also recorded High Court Justice Aharon Barak’s dissenting opinion:

The ruling of Justice Barak, who was in the minority opinion, dealt with the rights of the Israeli spouse. “Even in time of war, there is room for judicial review of laws,” he said. Barak states that the right to family life and the right to equality are both included in the constitutional right to human dignity in the Basic Law. “The Israeli spouse’s right to family life,” Barak wrote, “means his right to raise a family with his spouse in Israel, in the name of his home, the name of his community, the name of his historical, cultural and social roots. It is also the Israeli parent’s right that his minor children will live with them in Israel. The law violates these constitutional rights.”

In 2012, According to a report in Ha’aretz on the High Court upholding the law a second time:

“The [majority opinion] recognized the existence of couples’ constitutional right to live together but added that this does not necessarily require that they make their home in Israel. The majority ruled that even if the law did harm constitutional rights such as the right to equality, the infringement was proportional and not in conflict with Israel’s Basic Laws, the set of legislation with constitutional standing.”

A stalled judicial effort to guide permanent policy legislation

The CEIL, it should be acknowledged, was not intended to be a permanent law, and in fact, in 2006, the government led by the Kadima party commissioned a report by a committee comprised of some of Israel’s best legal and political minds to advise government policy on developing permanent legislation on the issue of non-Jewish immigration generally.

The committee, led by former [left-wing party] Meretz minister Rubinstein and including Yaffa Zilbershats, Ariel Bendor, Ruth Lapidot and Shlomo Avineri, produced a report that, according to Rubinstein in an interview with Ha’aretz in 2007 [in Hebrew], seems to have been met with some internal opposition within the Justice Ministry and was quietly shelved for reasons that remain unclear.

The findings of the report – by no means written by right-wingers – were very conservative and would not have significantly eased Palestinian immigration into Israel via marriage. In the article on Rubinstein, Ha’aretz summarised some of the key points of the report:

  The committee proposed dividing the countries and regions hostile to Israel into three classifications, which would determine the attitude toward family reunification with their residents:

* Countries and risk areas – Any immigrant from an Arab state or the Palestinian territories will be required to prove his loyalty, i.e. the burden of proof will be on him. Countries and areas in which “there is systematic incitement against Israel” will be defined as risk areas.

* Enemy countries and conflict zones (such as Syria or Iran) – The government will be empowered to set annual migration quotas from these countries as well as priorities within the quota.

* Combat zones – The government will be authorized to impose a total ban on entering Israel from an area from which fighting against Israel is taking place. Rubinstein explained: “Gaza is certainly a war zone.”

The committee proposed that the following restrictions be imposed on all migrant immigrants (spouses of Israeli citizens):

* The citizen will swear allegiance to Israel upon entering the country. He will be required to recognize the legitimacy of the state and pledge not to act against it.

* Obtaining citizenship for marriage reasons will only be possible from the age of 23 and up, in order to make it difficult to use fictitious marriage for immigration purposes.

* Economic conditions for immigration (minimum income) will be determined.

* Annual migration quotas would be considered.

The full report of the Rubinstein Committee, in Hebrew, may be found on Amnon Rubinstein’s personal website.

What happens now?

With the lapse of the law, Israel’s Interior Ministry will evaluate such citizenship requests on a case-by-case basis, as it did before the law. Interior Minister Ayelet Shaked has vowed to pass a form of the legislation in the future and carry on the spirit of the law through her Ministry’s powers, while opponents have promised to appeal to the courts to prevent her from doing so.

What can be assured is that the threats that the law was intended to address are not going to fade away just because the law was not extended.

Photo credit: Wikipedia