The Law of Return, Part II -- What Israelis Can Learn From Germans

In “Democratic Norms, Diasporas, and Israel’s Law of Return,” Alexander Yacobson and Amnon Rubenstein defend Israel’s Law of Return by pointing to other states, especially Germany, that accord preference in immigration to "co-ethnics" of the majority ethnic group:

Germany, indeed, provides a well-known example. In the 1950s the Germans expanded the right to automatic citizenship to include not just refugees and displaced persons, as provided in their constitution, but also any person of German extraction from the USSR and the nations of Eastern Europe. This applied to a large population of ethnic Germans living in those areas for hundreds of years, without any civic or geographic connection with the modern German state.

Following the collapse of the Soviet Union, the law was revised so that the eligibility for citizenship was limited to emigrants of German extraction from the former Soviet Union. Germany’s current policy toward ethnic Germans in other Eastern European states is to encourage them to remain where they are and to assist them in preserving their German culture.…in all the decades since its enactment, a half century in which Germany’s laws of repatriation granted citizenship to millions of immigrants of ethnic German extraction (along with considerable financial benefits), the laws of repatriation have never been challenged in the European Court of Human Rights (p. 7).

The authors suggest that there is (or was) a close analogy between the immigration practices of Germany and that of Israel. Both Israel and Germany recognize a right of return of its “co-ethnics,” some of whom never actually lived in the homeland, because of a sense of common nationhood. Germany was never criticized for it; why should Israel be?

There is some merit in the analogy, provided that one does not look too closely. If one does, then not only do significant differences emerge, but Germany’s policy turns out to be more liberal than Israel’s – more liberal, indeed, than the policy advocated by Israeli liberals. Once again, I draw your attention to the exhaustive article by Christian Joppke and Zeev Roshenekin, “Ethnic-Priority Immigration in Israel and Germany: Resilience Versus Demise,” which is the source of the following observations.

First: the most major difference. As Joppke and Roshenekin point out:

The German Law of Return was designed as a temporary remedy for the consequences of war and expulsion, covering only ethnic Germans caught in the Soviet Empire. By contrast, Israel’s Law of Return is a permanent, state-constituting provision, applying to every Jew in the world. In its expansiveness and state-defining quality the Israeli ethnic-priority immigration is unique in the world (p. 6).

The constitutional basis of the German law of return was Article 116 that states that “a German within the meaning of this Basic Law is a person who possesses German citizenship or who has been admitted to the territory of the German Reich within the boundaries of December 31, 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendant of such person.” So this indeed recognizes the category of ethnic Germans who are not citizens as represented by the German state. and accorded privileges. But even given an expansive interpretation, Article 116, together with the 1953 Federal Expellee and Refugee Law, limited its application to ethnic Germans under communist rule. Thus, ethnic Germans who were expellees from the East, but who had ended up in Western Europe, would not qualify for “repatriation.” In fact, while couched in ethno-national language, the German “right of return” was not an open invitation to ethnic Germans to help rebuild a German commonwealth, but a humanitarian gesture to rescue co-ethnics from “oppression” under Soviet rule. The rhetoric of ethnic solidarity on the part of German conservatives was also an attempt to legitimize a German ethnic nationalism after its being discredited as a result of the Nazi period.

In any event, the “right of return” was limited spatially to those ethnic German living the Soviet Union and temporally to those who suffered as a result of the expulsions and living in a hostile environment. With more liberal emigration laws, and then the demise of the Soviet Union, the “right of return” was challenged both by liberals, who were opposed to preferential treatment of co-ethnics, and by conservatives, who feared the influx of Russians of German descent. As a result of legislation in 1993, preferential treatment in immigration was almost entirely curtailed.

Yakobson and Rubinsteins ‘s comment that “Germany’s current policy toward ethnic Germans in other Eastern European states is to encourage them to remain where they are and to assist them in preserving their German culture” is misleading. In fact, Germany has declared that the prior situation, which countenanced immigration of co-ethnics who have been discriminated against, and which was always considered as temporary, is now over.

There are obvious other differences between the German and Israel experience in favoring co-ethnics in immigration policies, some of which I mentioned in my earlier post on the Law of Return here. Germany in 1950 was not building, or even rebuilding a state, on the lands of a dispossessed people that it had just expelled, and whose resentment it had to fear. It felt no demographic nor ethnic imperative to preserve a German majority. Moreover because the absorption of ethnic Germans was often at the expense of minority groups in Germany who had lived there for generations without the benefits of citizenship, such as the Turks, the practice was much criticized by German liberals. By contrast, most Israeli liberals continue to support the law of return, even though it clearly disadvantages the native, non-Jewish citizens.

Second, while Postwar Germany felt responsible for the welfare for ethnic Germans under Soviet domination, it never ideationally considered all ethnic Germans to be potential citizens of the state, or represented by the German state – certainly not in the sense that Israel defines itself as the state of the Jews, and calls for their immigration to Israel. In Israel, the notion that Israel is a state of all its citizens, rather than of all Jews everywhere, is considered to be an extreme and "leftwing". The ethnocultural nationalist idiom underlying the Israeli law of return is based on a conception of the nation-state that even German conservatives would find problematic today.

Nothing reflects the difference between Israel and Germany more sharply than the policy of the conservative German government in 1987 to have a virtually open door policy for Russian Jewish immigration, while restricting severely the immigration of ethnic Germans. When Israel protested against the liberal German practice, a government official was quoted as saying, ““In view of her historical past, Germany does not want to close her borders for Jews from the Soviet Union.”

What, then, can Israel learn from Germany’s experience with ethnic-based preference in immigration?

First, pace Yakobson and Rubinstein, an immigration policy of favoring co-ethnics is not unproblematic and calls for solid and constant justification. If the German policy was never criticized before the European Court of Human Rights, it was criticized often by the court of public opinion in Germany, with liberals arguing for the curtailment and even elimination of ethnic preference.

Second, the justification for such preference must be in terms of “asylum” and “safe haven” rather than of “national destiny,” and the discrimination should be temporary and local (i.e., as long as the persecution exists and where it exists.) There should be no automatic right of all Jews everywhere to become Israeli citizens. Rather, Jews who are actually persecuted should be given admittance to the country and then follow a route of naturalization that is similar to that of non-Jews. (Here is not the place to discuss what even Rubinstein finds problematic: the failure of Israel to provide a naturalization route for non-Jews.) Of course, Israel should also grant asylum to other victims of persecution, but can expand its criteria in the case of Jewish and Palestinian communities.

Third, following Germany’s example, Israel should recognize its special responsibility to the Palestinian homeland community that it turned into a minority in its land, and repatriate, into Israel proper, Palestinian refugees who are suffering, and compensate others who are not. No doubt this will wait until a Palestinian state arises and a peace treaty is signed; surely, some of the sting of ethnic-preference in immigration will be eliminated when there is a Palestinian state that implements a similar policy. Once again, arguments against such a policy citing historical precedents about populations transfer from the Postwar period are, frankly, not relevant in the case where a national majority was barred from returning to its homeland. That will be the subject of another post.

In short -- far from showing that Israel’s ethnic-based immigration policies are justifiable, the German experience in ethnic-preference calls into question those policies,and points to the direction in which Israel's own immigration policy should move.

In learning how to relate to the victims of our policies, we Israelis have a lot to learn from Germany.