Palestinian Refugees: Reclaiming the Right of Return

The establishment and maintenance of a pure Jewish state through the eviction of most of the country’s indigenous Arab population has remained widely unchallenged. The success of this policy is proof of both superb Israeli diplomacy and the moral and political bias of the west.

Between 1989 and 1997, Israel absorbed some 800,000 Jewish immigrants from the former Soviet Union and Ethiopia, while claiming – at the same time – that Palestinian refugee repatriation was impossible due to the lack of available space in the country. Those who refuse to consider repatriation as a solution should take note that, unlimited Jewish immigration according to the Israeli “Law of Return” and the denial of the Palestinians’ right of return is a sure recipe for continued conflict, instability and war in the Middle East. The fact that, according to Israeli press reports, over 27 percent of Russian immigrants to Israel are not Jewish, makes the continued exclusion of Palestinians even more indefensible.

Israel’s absolute refusal to repatriate the Palestinian refugees now taken as the starting point for all so-called realistic discussion, needs to be questioned and challenged. Israel has justified this refusal by means of the following arguments: i) the historic persecution of the Jewish people and their need for a refuge; ii) Palestinian and Arab responsibility for the flight of Palestinians in 1948; iii) unfeasibility and lack of living space in the territory of the Israeli state; and, iv) Israel’s security. These arguments are either demonstrably false (ii, iii), or they are cases of special pleading that need to be weighed in the balance against the possibility of real peace in the Middle East.

Many people concede the justice of the Palestinian refugee claims, but describe them as “unrealistic”. It is time to challenge the notion that what is rejected by Israel is “not practical”. It is time to raise the fact that politics aimed at the maintenance of an ethnically pure Jewish state does not override international law nor the aims of social and political justice and peace. International support is vital in order to add weight, in all international fora, to the popular Palestinian demand for the right of refugees to return to their homes and prevent erosion of support for UN Resolution 194.

The right of return expresses the will and the determination of the Palestinian refugees and is the only option for a solution accepted by them: Despite their dismemberment and dispersal in the region and the world, Palestinians have maintained social and cultural structures based on the family and the village. Unions and societies organized on national basis, as well as the PLO, are the political expression of Palestinian determination to return to their homes. In this context, international efforts over the past 50 years, to find a solution to the refugee question via the settlement of Palestinian refugees in the countries of exile have failed. Even today, when - as a result of the Oslo Accords and international pressure – the Palestinian leadership is more divided than ever before, Palestinian refugees continue to demand their right of return. This is a fact established by the results of all public opinion polls conducted in Palestine and Lebanon since 1994.

[For examples of such opinion polls, see BADIL-Document 3/Country Reports; also: Preliminary Results of Statistical Survey Among West Bank Refugees, Refugees Study Themselves: A Survey of Refugee Living Conditions and Expectations, in: ARTICLE 74, Issue No. 23 (March 1998); Palestinian Refugees in Lebanon, Political and Social Effects of the Oslo Accords, in: ARTICLE 74, Issue No. 26 (December 1998); Elia Zureik, Palestinian Refugees and the Peace Process, Washington DC, Institute of Palestine Studies, 1996.]

The Right of Refugees to Return to their Homes is the Guiding Principle of International Law and UN Resolutions: Repatriation is the favored solution for refugees exiled in the course of military conflict. The 1949 Fourth Geneva Convention (Article 49) prohibits “individual or mass forcible transfers … regardless of motive.” The Universal Declaration of Human Rights, and other international legal instruments concerning human rights affirm the right of every individual to leave and return to his country. [See also International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171; International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969; The Practice of Forced Evictions; Comprehensive Human Rights Guidelines on Development-Based Displacement, adopted by the Expert Seminar on the Practice of Forced Evictions, Geneva, 11-13 June 1997; African [Banjul] Charter on Human and Peoples’, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5,21 I.L.M. 58 (1982); American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V./II.82 doc.6 rev.1 at 25 (1992); Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 262, entered into force May 18, 1954] Conventions relating to the rights of indigenous peoples confirm the right to return to land from which they have been displaced by force [See Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO no. 169), 72 ILO Official Bull. 59; Draft Declaration on the Rights of Indigenous Peoples, E/CN.4/SUB.2/1994/2/Add.12 (1994)]

In the case of Palestinian refugees, their right of return and compensation is supported explicitly by UN Resolution 194 (December 1948) which was adopted one day after the Universal Declaration of Human Rights. This resolution has since been reaffirmed one hundred and ten times by the United Nations. The right of Palestinian refugees to regain ownership of their property is established by numerous international legal instruments concerning the rights of civilians in times of war, human rights and indigenous rights. [See note above] Ordinary property law, which Europeans and Americans claim to hold sacred, supports the Palestinian right to their properties. As recently as November 1998, the UN General Assembly reaffirmed in Resolution 52/644 the principle, based on the Universal Declaration of Human Rights and international law, that Palestinians are entitled to all revenue from their property.

The Oslo Accords and the formation of the Palestinian Authority (PA), which now aims to establish a Palestinian state in part of the 1967 occupied Palestinian lands (May 4, 1999), have created widespread confusion, both locally among Palestinians and internationally, about the meaning of the right of return in this new context. It has become common for international legal and Middle East experts to present refugee settlement in the new Palestinian state-to-be as the implementation of the right of return. [See for example, Donna Arzt, Refugees Into Citizens, Palestinian Refugees and the End of the Arab-Israeli Conflict. New York: Council on Foreign Relations, 1997; Donna Arzt and Karen Zughaib, “Return to Negotiated Lands: The Likelihood and Legality of a Population Transfer Between Israel and a Future Palestinian State,” New York University Journal of International Law and Politics 24, no. 4: 1399-1513.] For those aiming to build an international campaign for Palestinian refugee rights, it is important to clarify:

 

1. Political negotiations and agreements between Israel, the PLO/PA (and the USA), do not invalidate international law and UN resolutions. The Oslo negotiations represent an effort to obtain – based on the unfavorable balance of power – a de facto solution of the refugee question outside the framework of international law and UN resolutions. An explicit renunciation of the right of return by the PLO/PA in a future political agreement with Israel cannot delegitimize the refugee claim, because – according to standards of international law - existing international law and UN Resolutions can be replaced only by a political agreement whose provisions grant rights equal to or beyond those defined by international law. Furthermore, given the strong Palestinian public demand for the right of return, its explicit renouncement by the PLO/PA would delegitimize the Palestinian leadership.  
2. UN Resolution 194 is not invalidated by a PA declaration of a Palestinian state on whatever territory on May 4 (or any other date). UN Resolution 194 provides for the refugees’ right to return to their homes. These homes are located in the territory of the Israeli state.  
3. Although UN Resolution 194 can be technically abolished by its repeal by the UN General Assembly, the right of return, solidly anchored in a wide range of international laws, will remain a right and legitimate claim, until surrendered by Palestinian refugees themselves.  

Return is a necessity for social justice and political stability in the Middle East: Palestinian refugees are accepted as temporary residents under varying legal status and special conditions – until they return to their homes based on the provisions of the UN resolutions and international law. Most of the Arab countries hosting the majority of the Palestinian refugees are reluctant - or, in the case of Lebanon, unwilling – to accept the Palestinian refugee communities living in their territory on a permanent basis and with full civil rights. Even in countries where Palestinian refugees enjoy full civil rights (e.g. Jordan), Palestinian refugees are perceived as a potentially destabilizing factor in national politics and thus kept under the special scrutiny of state intelligence. The approach of all Arab governments in the Middle East towards the Palestinian refugee communities in their territory is dominated by considerations of state security – a result of their undemocratic political structure and the leaderships’ policy of instrumentalizing the Palestinian question for their own political aims and alliances in the region and the world. Palestinian refugee communities are the victims of this approach, their lives and access to basic human and civil rights being determined almost solely by changing political circumstances which are beyond their control (The deterioration of the situation Palestinian refugees in Libya, Kuwait, and Lebanon are the most recent and outstanding examples. Syria, Egypt, and others follow a similar pattern.)  

Return is practically possible: While many Palestinian villages have been destroyed, recent research shows that – contrary to the longstanding Israeli argument - the return of Palestinian refugees is practical if examined in the light of the relative distribution of Jews and Palestinians in Israel. Such research shows that, up to now, most Jews (78%) are concentrated in 15 percent of Israeli territory, in predominantly urban areas, while 75 percent of the land, “including those areas from which the refugees originated”, has remained sparsely populated, with relatively few Jewish residents. “Surprising as it may be, Palestinian land is still largely empty. It is currently controlled by 154,000 rural Jews.” In Gaza, population density is 4,400 persons per square mile, compared with 82 per square mile in 85% of Israel. If Palestinian refugees returned to their land, the population to land ratio in Israel would be minimally raised.