Does the Palestinian Right-of-Return mean the End of Israel?
By Prof. Mohamed Elmasry, an Egyptian-born Canadian, is professor of electrical and computer engineering at the University of Waterloo. He is national president of the Canadian Islamic Congress
Israel is only "Jewish" in the sense that Canada is "Christian," says Elmasry.

Most Israeli and Canadian Jews object to any consideration of a Palestinian right-of-return, arguing that a sudden influx of "Diaspora" Palestinians would cause major demographic upheaval, and irrevocably alter the Jewish character of the state. Those holding the most extreme view believe that such an event would mean the end of Israel as they know it.

If this argument were espoused by any other group, media  everywhere would, media everywhere would denounce it as contrary to the EuroAmerican tradition of separating church and state, politics and religion.

The popular reasons given for rejecting the Palestinian right-of-return are not only against international norms and law, they are also falsely based on the myth that Israel is a *Jewish* state. Here, it is essential to distinguish between rhetoric and serious argument.

Israel is only "Jewish" in the sense that Canada is "Christian." While Israel's population is predominantly Jewish, its legal system is basically a secular creation, inherited from the British Mandate period prior to its creation in 1948. Israel, in fact, is a state under construction. It has no constitution, and relations between government and organized religion are based on a status quo formula which has four main components:

(1) The Jewish Sabbath and traditional religious festivals are national public holidays.


(2) Kosher food is the standard for all public institutions.


(3) Personal status -- marriage, divorce and some aspects of inheritance - is subject to the jurisdiction of rabbinical courts (for non-Jews, personal status is governed by their own religious courts, or tribunals).


(4) State schools belong either to the national secular system, or the national religious system. (Again, other religious communities within Israel are allowed to maintain their own institutions.)

In the Israeli legal system, if a court finds that a decision cannot be made by referring to a previous enactment, judicial precedent, or analogy, the case is decided according to principles of freedom, justice, equity, peace and national heritage. This stops well short of using halakhah law (the Jewish equivalent of Islamic Shari'a law), let alone adopting any traditional Jewish laws as laws of the state.

Under Hoq Hayesod -- the Fundamentals of Law Bill -- Jewish religious ethics may be considered in an appeal, but the ultimate appeal is to the secular authorities, not the religious courts. Even where a specific element of traditional Jewish law has been incorporated into state legislation, it would be wrong to refer to modern Israel as being governed by Jewish law; the ultimate authority is the secular state, not the rabbis.

In principal, then, all Israeli citizens are free to practice their own religion and have equal access to justice before the law. If in practice there were, and still are, discriminatory treatments of non-Jewish Israelis, these have for the most part arisen from the Israeli-Palestinian conflict, and not for purely religious or ethnic reasons.

Moreover, the denial of refugees' or diaspora Palestinians' right to return violates the spirit of Israel's Declaration of Independence, which affirms that: "The State of Israel will be open for Jewish immigration and for the ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants, irrespective of religion, race, or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the Charter of the United Nations."

In what ways, then, can Israel be regarded as a Jewish state? If its values are influenced by traditional Jewish teaching as contained in the sacred Torah, the Palestinian right of return must be respected; based on Torah alone, Palestinians should be entitled to their own independent state, in the interests of preserving peace and justice.

If Israel's general way of life enables Jewish practices - such as Sabbath observance, or Kosher food - to be followed without great difficulty or inconvenience, then it will be equally easy to accommodate the traditions of other Israelis, notably Muslims and Christians.

And if issues such as social justice, health care, the environment, abortion, religious pluralism, treatment of minorities, and international relations in peace and war, could not effectively be addressed under "Diaspora" conditions from a Jewish perspective by the Jewish leadership (as in Canada), they could easily be studied in Israel without undermining the rights of any other religious or cultural group.

When Diaspora Palestinians return to Israel, many religious and secular Israeli Jews will find allies among dedicated Palestinian Muslims and Christians. And the difficult question of how far religious law - not just religious values - may become the law of the state, will be debated by all who live in the state of Israel.

But what about the Jewish religious claim that Israel is the exclusive Promised Homeland given by God (and human politics) to the Jews?

Since 1973, a major debate in Israel has centered on the question of whether Israel should ever withdraw from the Occupied Territories that are historically Palestinian.

In 1980, Shilo Refael, a dayan (judge) of the rabbinical court in Jerusalem, published some research papers on this topic, as well as on the treatment of minorities according to halakhah, for a religious peace movement called Oz Veshalom. Listed at the front of the booklet is a summary of the halakhic rulings (in Islamic terminology this would be called a "fatwa") as agreed on by Refael and the then-Sefardic Chief Rabbi of Israel, Ovadiah Yosef.

The summary reads in part as follows: "According to the majority of early authorities, 'they shall not dwell in your land' [Exodus 23:33] does not refer to Muslims, since they are not idolaters. All authorities agree that nowadays, when Israel does not have power to drive out nations from the land, the prohibition 'they shall not dwell in your land' has no application. According to many of the greatest authorities, both early and late, the prohibition '1o tehanem' [Deuteronomy 7:27] applies only to idolaters."

Finally, it should be stressed here that Jewish intelligentsia abroad, including those in Canada, no longer have the luxury of rejecting from the sidelines the Palestinian Right-of-Return, nor the full Israeli withdrawal of the Occupied Territories captured in 1967, including Arab East Jerusalem.

As a Canadian Muslim, I sincerely long and pray for peace and justice in the region. This is based on my own personal experience as an eyewitness of the 1956 Israeli invasion of Egypt, the 1967 Israeli attack on Egypt, the Egyptian-Israeli war of attrition of 1968-70, and as an active observer of the Israeli-Arab conflict since my immigration to Canada more than 30 years ago.
 

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