Israel, which had already recognized some members of a family from northern Peru as entitled to Israeli citizenship under the Law of Return, changed its position following a new historical research on the Jews of Iquitos, a Peruvian port city and gateway to the jungle lodges and tribal villages of the northern Amazon.
The case revolved around several families who wanted to immigrate to Israel from Iquitos, Psak Din reported. The families were the scions of a Jewish great-grandfather who came to Peru at the end of the 19th century and married a woman named Hortensia. The key question was whether Hortensia was Jewish — a critical factor in deciding whether her offspring several generations down the line are entitled to immigrate to Israel under the Law of Return.
Israel’s Law of Return of 1950 gives Jews wherever they are the right of return and the right to live in Israel and to gain Israeli citizenship. In 1970, the right of entry and settlement was extended to people with one Jewish grandparent or people married to a Jew, although they were not considered Jewish under Jewish law.
Before 2009, several family members from Iquitos arrived in Israel and were recognized as eligible for citizenship according to the Law of Return. Then, when six other family members were planning to immigrate to Israel, the state decided to reject their request to immigrate. In 2012 the family members appealed to the Supreme Court.
The petitioners argued that great grandmother Hortensia was Jewish, and questioned the sudden change in the Interior Ministry’s position, having already acknowledged that she was Jewish. They showed, among other things, a photo of her tombstone bearing a Star of David, and said that she was buried in the local Jewish cemetery.
The state for its part pointed to a recent study of the history of the Jews of Iquitos. According to the study, the state argued, Jewish men from Morocco who came to the city at the end of the 19th century married non-Jewish local women and had children with them who, according to Jewish law, were not Jewish. Hence, the state argued, the petitioners are the great-grandchildren of a Jewish man but not of a Jewish woman, and thus are not eligible for citizenship under the Law of return.
It was also argued that an examination conducted in 2008 revealed that the community’s cemetery permitted the burial of non-Jewish members of Jewish families. Therefore, according to the state, the star of David on her grave is no evidence of Hortensia’s being Jewish. The state went on to say that it was not asking for a retroactive denial of rights to family members who had already been admitted, but argued that past mistakes do not justify additional errors.
The three judge panel accepted the Peruvians’ petition. Judge Daphne Barak-Erez suggested that once a decision was made specifically about the Jewishness of Hortensia, general research on the history of the community is not sufficient to refute it in retrospect, but required concrete information on Hortensia. Once she was recognized as Jewish, it was the state’s duty to prove that she wasn’t.
The judge rejected the state’s second argument about burial in the Jewish cemetery for the same reason. The State did not present specific information about Hortensia, only provided a general claim about the protocol at the cemetery, so that at most it showed there was a possibility she was not Jewish, but did not prove it.
“The purpose of the Law of Return was to enable the absorption of Jews from around the world in Israel, not only when they live within the framework of an organized Jewish community, in a country where there were records of the Jewish faith of its citizens,” the judge wrote, adding: “Let us not replace the question of ‘Who is a Jew’ with the question of ‘What is a Jewish community.'”
