Because Palestinians base their right to return in international law, many Israelis may assume that international law leaves no room for their concerns. By looking at separate, conflicting rights, the interests of both sides can at least be acknowledged in the discussion, and both assessed through the lens of international law. This offers a channel of dialogue for Israelis and Palestinians who want a just solution to the conflict, and responds to Israeli intellectuals who have sought to acknowledge the justice of Palestinian claims while finding alternative reasons for opposing the full implementation of the right of return.
Kagan attempts to articulate the best case arguments that can be made under international law for different Israeli claims, and then assesses the relative strength of each argument. He concludes that Israelis can make serious arguments to resist specific cases of property restitution, and perhaps certain methods of refugee return. But he concludes that the frequently asserted claim that Jews collectively have a right to separate, exclusive self-determination in a state where they are the dominant majority has little merit in law.
Observations on the restitution problem
Individual property rights are the strongest conflicting rights claim that Israel can make against the right of return under international law. Secondary occupants’ rights have been a major issue in other restitution programs. This means that Israelis can conceivably acknowledge the refugees’ right to return without necessarily conceding that any Israelis need to be displaced. In order to comply with international law, restitution should be the primary or default remedy for refugee property claims which can be compromised only when it would impose substantial hardship. Whenever a Palestinian refugee is denied restitution, he or she would be owed substantial compensation by Israel, which is ultimately responsible for having confiscatedrefugee property. Nevertheless, a rights-based resolution of the refugee issue might not actually return all Palestinians to their original properties.
Nevertheless, the rights of secondary occupants are also subject to substantial limits.
First of all, secondary occupants’ rights would not block all refugee return, and it would have little effect in areas of the country that are sparsely populated. Recent research by scholar Salman Abu Sitta has noted that the majority of Israeli Jews live in the central region of the country where much of the land was Jewish-owned before 1948. While much urban refugee property was transferred to Jews, the majority of confiscated land remains vacant or sparsely populated. Hence, even if a final settlement took a very lenient approach toward Israeli property rights, the majority of Palestinian refugees would likely be able to return to their homes.
Second, not all Israeli property rights are equal. International law is most protective of residences and the right of people not to be displaced from their homes; commercial, industrial and agricultural property will be subject
to much less protection. In such cases, there is far less harm in displacing the secondary occupants, who at most should be able to claim compensation for their investments in the land. This compensation could come from the state, which is responsible for having misallocated the land, not from the returning refugees.
Third, the means by which various Israeli individuals and institutions acquired and used land may be an important consideration limiting defenses to restitution. The purpose of protecting secondary occupants is to avoid disrupting the lives of innocent persons. But where the secondary occupants were responsible for the original confiscation or for racially discriminatory allocation of land, it may not bee quit able to protect their rights over those of return refugees. Proposed UN Principles on Housing and Property Restitution for Refugees and Displaced Persons state: ‘The egregiousness of the underlying displacement, however, may arguably give rise to constructive notice of the illegality of purchasing abandoned property, preempting the formation of bona fide property interests in such cases.’
The Jewish National Fund (JNF) in particular acquired a great deal of confiscated refugee property in the late 1940s and 1950s through land sales that were illegal even under Israeli law, and insists to the present day that its property can only be used for the benefit of Jews. A number of powerful Israeli constituencies lobbied the Israeli government to distribute particularly valuable homes to them, and to give lower standard accommodations to new Jewish immigrants. In such cases, Israeli secondary occupants may not be able to legitimately block property restitution to returning refugees.
Fourth, even where secondary occupants acquired property in good faith, some authorities state that it is the secondary occupant, not the returning refugee, who should accept compensation, at least where the original buildings are still in existence.
Finally, it remains open to Palestinians to argue that they were victims of a state-sponsored discriminatory land regime that was inseparable from a larger campaign of ethnic cleansing. Palestinians can argue that they were victims of Israel, and have a right to restitution from Israel. If this requires the state to evict other individuals, then arguably the secondary occupants should seek compensation or alternative property, rather than place the burden of compromise on people who spent decades as refugees in exile.
Since international law remains ambiguous about how refugees and secondary occupants’ rights should be balanced, this is an area where Israeli and Palestinian negotiators may have substantial flexibility to design a solution. In other conflict resolution settings, the negotiated settlement prescribed general rules governing restitution along with an individual claims mechanism to resolve specific cases over the ensuing years. However, the precise rules varied considerably, especially on the question of how to weight the rights of secondary occupants.
Michael Kagan is an Attorney, Tel Aviv University, Clinical Legal Education Programs. The entire working paper is available on the BADIL website: http://www.badil.org. A hard copy of the paper may also be purchased on the BADIL website