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Policy change needed for those born in Jerusalem, Israel

May 29, 2012 | Jewish TribunecloseAuthor: Jewish Tribune Name: Jewish Tribune
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Eliyahu Yoshua Veffer fought in court to have his birthplace noted in his passport as Jerusalem, Israel. However, he lost his case.

David Matas

Remarks made at the B’nai Brith policy conference, May 20, 2012 in Toronto.

Canadians born in Jerusalem should be able to have Jerusalem, Israel, as their place of birth in their passports if they want. That seems so simple, obvious, reasonable and straightforward a proposition that, when I told people that I was coming to Toronto to speak in favour of that, everyone I told, without exception, Jews and non-Jews alike, asked me in disbelief: Is that not possible now? Why not? What could possibly be the reason?

The answer is tied up with Middle East politics. Middle East politics is never simple. The issue of the status of Jerusalem, even by Middle East standards, is particularly fraught.

Before 1976, Passport Canada accepted as the country of birth the country shown by the person who applied for the passport. This led to a number of people asking for Croatia to be shown as their country of birth. Croatia, at the time, was a part of Yugoslavia.

Passport Canada is embedded in Foreign Affairs and International Trade Canada and the department was worried that inserting the designation Croatia in a passport of someone born in Yugoslavia would seem to be an endorsement or at least acceptance of the breakup of that country. To avoid that implication, the practice changed. The department created a list of acceptable designations of countries of birth for passports.

It is worth noting in passing here that the problem we now face started in 1976, not 1948. Until 1976, anyone born in Jerusalem who wanted Jerusalem, Israel, shown in his or her passport as the place of birth could have it. Moreover, the current problem started because of Croatia, not Jerusalem. Today, there is no Croatia problem since Croatia is now an independent country. The impact on Jerusalem is the most significant consequence today of the concerns about Croatia in 1976.

The current Passport policy is this: the inclusion of place of birth is optional. A person can choose to have the city or country of birth or both or neither in the passport.

A place of birth that is a territory, the sovereignty over which has not been finally settled under international law or which is not recognized by the Canadian government, will be inscribed as requested if the chosen country is on the list of permitted designations. The Passport policy states that the place of birth chosen by the passport holder is “neither an official recognition by the Canadian government of any country nor support by the Canadian government of either faction where the [place of birth] indicated is a territory the sovereignty over which has not been finally settled under international law.”

In theory, that policy would allow accommodation of Jerusalem, Israel, as the place of birth in the passport. However, despite this general policy, which seems to cover the Jerusalem situation, there is a special exception for Jerusalem. Insertion of Jerusalem, Israel, is simply not allowed.

Jerusalem alone is all that is permitted with one exception. If a Canadian was born in Jerusalem before May 14, 1948, when Jerusalem was part of British mandate Palestine, Palestine may be written in the passport as the place of birth. Jerusalem, Palestine, is not allowed, only Palestine. So we have this odd situation where some Canadians born in Jerusalem can have Palestine shown in their passports as their place of birth but no Canadians born in Jerusalem can have Israel shown in their passports as their place of birth.

Eliyahu Yoshua Veffer, born in Jerusalem in December 1987, a Canadian citizen living in Toronto, wanted Jerusalem, Israel, in his passport as his place of birth. Passport Canada refused. He came to B’nai Brith Canada for help, and we agreed to do what we could. He launched a lawsuit against Passport Canada asking the Federal Court to overturn the decision of the government not to issue a passport to him showing Jerusalem, Israel, as his place of birth. I acted as his lawyer and relied on the Canadian Charter of Rights and Freedoms.

The Federal Court in May 2006 rejected the Charter arguments. The court reasoned that the guarantee of freedom of religion in the charter was not violated because Veffer was free to believe what he wanted – whatever the passport said about his place of birth. The court further reasoned that the guarantee of equality in the charter was not violated because, although the Passport policy made a distinction based on place of birth, the distinction imposed only a minimal disadvantage on Veffer, since he was free to travel without restriction. The Federal Court of Appeal in June 2007 upheld the decision of the Federal Court. The Supreme Court of Canada denied leave to appeal in February 2008.

American policy has been going through similar throes. Congress in 2003 enacted a statute providing that Americans born in Jerusalem may elect to have ‘Israel’ listed as the place of birth on their passports. This legislation allows Israel alone in the passport, but not Jerusalem, Israel.

The American passport office ignored the legislation. Their policy is much the same as Canada’s that Jerusalem alone without any country designation is permitted in the passports of those Americans born in Jerusalem.

Menachem Binyamin Zivotofsky, an American born in Jerusalem, went to the United States courts to ask the courts to enforce the American legislation. The United States government contested on the basis that the question was political, non-justiciable and the courts should not intervene. That issue went from the District of Columbia District Court to the Court of Appeal Circuit Court for the District of Columbia and then to the United States Supreme Court. The Supreme Court decided the case on March 26, 2012, less than two months ago, holding that the issue was justiciable. The case was sent back to the District Court for determination on its merits.

Why in Canada, in a policy prompted by the politics of the former Yugoslavia, was Jerusalem, Israel, singled out? For the Veffer litigation, the government of Canada produced the affidavit of Michael Bell, a Canadian ambassador to Jordan, Egypt and Israel during the period 1987 to 2003. He testified that the insertion of Jerusalem, Israel, in a Canadian passport would be reasonably perceived as an acceptance by Canada of Israeli sovereignty over Jerusalem.

Of course, I see nothing wrong with that. Canada should accept Israeli sovereignty over Jerusalem. Bell had a host of reasons why he thought that this acceptance was wrong. Here, I would say only that acceptance of Israeli sovereignty over Jerusalem is a different issue from inserting Jerusalem, Israel, in passports as a place of birth on request and the two should not be equated.

I cross-examined Bell on his affidavit, and in his cross-examination, he acknowledged that he was making a distinction between a reasonable, well-informed person and a reasonable person who was not so well informed. He accepted that a reasonable, well-informed person would not see Canadian policy allowing the insertion of Jerusalem, Israel, as the place of birth in passports as Canadian recognition of Israeli sovereignty over Jerusalem, but asserted that a reasonable person who was not so well informed would see it that way.

In my view, a mistaken impression of the ignorant is not a sound basis for policy. I am pleased to see that the B’nai Brith Canada Board of Governors earlier today (May 20) passed a resolution asking the government of Canada to change its policy to allow those born in Jerusalem to have Jerusalem, Israel, in their passports on request. We should present that resolution to the government as quickly as possible.

David Matas is senior honourary counsel to B’nai Brith Canada. He is based in Winnipeg.

Tags: B'nai Brith Canada Board of Governors current Israel Jeruslaem law legal passport resolution Supreme Court Veffer