Illegal Immigration

Introduction

The issue of those who have entered the country from Africa seeking economic benefits has been debated by the politicians and media for a while now. I thought it would make sense to try to clarify the Torah perspective on this.[1]

I already wrote in “Torah versus international law” that it is perfectly reasonable to prevent entry of those who do not accept the seven Noachide laws into Eretz Yisrael (and to encourage the exit of those who already are citizens), even under the terms that we are forced to keep to in order to allow the existence of our state. For the moment, let’s pretend that all of these immigrants are willing to accept them.[2]

Although the Supreme Court may not agree, the government certainly is the body that has the authority to make decisions like this.[3] Furthermore, the main debate is not even about removing the illegal immigrants by force (due to impracticality). The disputed law that the government is attempting to reinforce merely takes away the incentives of these immigrants to live here by negating the financial benefits of this.[4]

The question that I am going to address is how we would expect the government to act ideally, from a Torah perspective (although even if they do not act ideally, their decision is binding[5]). The main point that needs to be clarified is how to view sovereign territory, and those who enter it without permission.

Who ‘owns’ the country?

The intuitive view for many of us was presented to me recently by a good friend. He compared the situation to that of a poor man who breaks in to the home of a wealthy man, and starts living in his spare room. Would left-wing activists protest his eviction?

Let’s examine whether this is really a good comparison. First lets assume that the spare room of the wealthy man corresponds to the public areas of a country. Who exactly owns these public areas?

The Rambam writes that anything found in a desert is ownerless (hefker), and whoever gets there first can take possession of it.[6] The clear implication is that the desert itself has no owner. The Tur writes this explicitly, stating that deserts and everything in them are examples of things that never had an owner.[7] As those who infiltrate the country illegally tend to enter through uninhabited areas, this original ‘break-in’ seems to be into an ownerless space.

It is also hard to classify the entry of infiltrators into cities as trespassing, as no law forbids this. And when they buy or rent property and live in it, it certainly cannot be called stealing. If they were to obtain services that they are not entitled to (e.g. subsidised healthcare or free education), that would be stealing. But as far as I am aware, in this country the likelihood of this happening is not great.

Is it racism?

In fact, there is another group of people with an identical legal status as the African immigrants. Foreign yeshiva students often stay in the country well over the limit of their student (or tourist) visa. Some even live here permanently (well over twenty years), not wanting to make official aliyah so that their children will not have to serve in the army. Some are meticulous about arranging the relevant legal documentation, but even those who don’t rarely face any problems.

The reason for this distinction is clear. Generally speaking, yeshiva students and chareidim from abroad blend in to the society they live in, without causing too much disturbance. This is not the case with African immigrants, especially in areas like south Tel-Aviv where they have unquestionably changed the community drastically.

However, this too is not unique in Israel. In the early years of the State, the country struggled to come to terms with absorption of Jews from vastly different cultures. The leaders, almost exclusively from European origins, had to accommodate Jews from Yemen, Iraq and Morocco with varying degrees of success.

More recently, immigration of Jews, non-Jews and those of questionable Jewish status from Russia and Ethiopia has also taken place without any significant protest. Thus to me it is clear that the steps taken to encourage the departure of infiltrators from Eritrea and Sudan are motivated at least partially by factors other than racism.

Crime and national identity

The main claim made by those in favour of deportation is the level of crime in areas with large number of infiltrators. People are understandably upset about their neighbourhood becoming unsafe at night, evident from the huge increase of numbers of policemen on patrol.

However, it is also clear that if this increase in crime had been caused by movement of Israeli citizens from one part of the country to another, deportation would not be an option. This solution is only proposed because we are dealing with foreigners, both legally and inherently.

I believe that at least subconsciously, the heart of this debate is about national identity. Almost everyone agrees that immigration cannot be open to anyone, but there is strong disagreement over who exactly belongs.

The Torah view of this is reasonably clear. Eretz Yisrael is the Jewish homeland, and any Jew has the right to live here.[8] Non-Jews also can live here, as long as they formally accept the basic minimum moral standards expected of them. These are the seven Noachide laws. If we continue pretending that this is the case with the African infiltrators, it is hard to justify their deportation. Theoretically, we should give every one of them the choice between this acceptance and departure.

Obviously, at this point in time this is unrealistic. The law of the land does not even include most of the seven Noachide laws.[9] The absence of Torah as an official national constitution leaves a void which is proving impossible to fill.

In the long term, this void could also threaten our entire hold on Eretz Yisrael. Without the Torah and Hashem’s promises to us, there is no great justification for our control of the country. If we try to substitute the Holocaust and other persecution as our basis,[10] it becomes harder to defend the exclusion of those fleeing persecution elsewhere.[11]

I hope that the questions raised by this issue can help us clarify our fundamentals, and reinforce our awareness of true national identity.

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[1] Personally this has caused me to view the issue in a new light, and my conclusion is not the one I expected to arrive at when I started writing.

[2] And that we can get round the problem of accepting gerei toshav nowadays, mentioned in footnote 16 there.

[3] See Who has to serve in the army?, footnote 16.

[4] See this explanation (in Hebrew).

[5] We discussed the limits of this in The right to resist the abuse of power.

[6] Hilchos Z’chiya u’Matana 1:1. Although the Ra’avad adds a stipulation to the words of the Rambam, that only members of the tribe whose territory the desert is located in may take possession of its contents, this is not relevant nowadays when the tribes are undefined (see the various commentaries).

[7] Choshen Mishpat 273

[8] In fact, even a non-Jewish slave who undergoes the partial conversion his Jewish master must have him do is included in this. If he flees from his Jewish master to Eretz Yisrael, the Torah forbids returning him to his master. See Gitin 45a.

[9] They are the six prohibitions of idolatry, blasphemy, murder, forbidden marital relationships, theft and eating a limb detached from a live animal, together with the obligation to enforce monetary law. See Sanhedrin 56b.

[10] For example by using Hitler’s definition of who is a Jew for the purposes of the Law of Return.

[11] Sometimes we may be able to dispute whether there is real danger in the origin country, as the government has done in this case (I do not know the exact details, and for the purposes of this post have assumed that the government is correct). However, the reality is that we would not want to grant permanent residency even to those fleeing real persecution. My understanding is that in this case international law would only require us to provide temporary asylum until the persecution is over.