54th Anniversary of the Palestinian Nakba (15 May 2002): The New Transfer? - Shifting the Borders Cannot Replace the Right of Return

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As Israel continues to further dissect the West Bank by shifting the internal 'borders' - created under the Oslo process (i.e., so-called areas A, B, and C) - by issuing new land confiscation orders in Areas A, encircling Palestinian population centers with military forces, building 'security fences' and imposing new 'buffer zones', the idea of shifting the borders between the future Palestinian state and Israel as a potential solution to the right of return of 1948 Palestinian refugees continues to be circulated among politicians, analysts and academics.

According to this idea, Palestinian refugees would be relocated in territorial pockets inside Israel but adjacent to the West Bank and Gaza Strip. These territorial pockets or 'refugee reservations' would then be transferred, by agreement between the PLO and Israel, to a Palestinian state established in the West Bank and Gaza Strip. During final status talks in 2000, for example, some Israeli politicians argued that Palestinian refugees could return to an area inside Israel known as the Halutza sands, which would then be annexed to the Gaza Strip. Several recent proposals for a comprehensive solution to the Israeli-Palestinian conflict ("A Time to Lead: The International Community and the Israeli-Palestinian conflict, International Crisis Group, April 2002; and, "The Last Negotiation: How to End the Middle East Peace Process", Foreign Affairs, May 2002) also incorporate this idea - focused on territorial pockets along the "Green Line" separating Israel and the occupied West Bank - as a central component to a solution to the refugee issue.

The Illegality of Transfer and a Durable Solution for Palestinian Refugees

Relocating Palestinian refugees in territorial pockets inside Israel's current borders and then shifting the borders to transfer these territorial pockets to a Palestinian state cannot replace the right of refugees to return to their homes of origin. The idea is problematic on many levels, not least of which are legal.

1) The idea violates the basic framework set forth in UN General Resolution 194 outlining a durable solution for Palestinian refugees - i.e., specifically return and real property restitution. The Resolution specifically states that refugees should be permitted to return to their homes. The General Assembly rejected amendments that referred in more general terms to the return of refugees to "the areas from which they have come." The language in Resolution 194 affirming the return of refugees to their homes is consistent with developments in international refugee law and practice, recognizing that refugees not only have a right to return to their countries of origin but also to recover the homes from which they were previously evicted. Many peace agreements, including those in Guatemala, Mozambique, Rwanda, Bosnia and Kosovo affirm the right of refugees and displaced persons to return to their homes or places of origin. In other words, the right of return is linked to the right to adequate housing (including the right not to be arbitrarily deprived of housing and property in the first place and concomitant remedies including restitution) and the right to freedom of movement. While the relocation of refugees to territorial pockets along border areas may correlate with a right of return to homes of origin for some refugees, for the vast majority it would constitute of violation of the individual right of return and right to real property restitution.

2) The idea represents a form of population transfer, which must be fully voluntary for it to be legal under international law. None of the proposals mentioned above include recognition of the principle of voluntariness and therefore do not provide for mechanisms to implement this principle. The idea of transferring heavily populated Palestinian areas inside Israel to a Palestinian state in exchange for the annexation of West Bank settlements to Israel in order to strengthen the Jewish demographic majority in Israel and preserve the legacy of Jewish colonization (i.e., land confiscation and settlement construction) in the occupied territories has become a topic of regular discussion among the political and academic Jewish elite inside Israel. Palestinian citizens of Israel, including internally displaced Palestinians, residing in areas designated for potential transfer to a Palestinian state have repeatedly stated their opposition to such a transfer on the basis of international law and because it would divide families and break up friendships between Palestinians and Jews inside Israel (e.g., Rafik Jabarin, "Transfer is Transfer", Ha'aretz, 5 May 2002).

Moreover, as a preliminary report on the human rights aspects of population transfer prepared for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities notes: "The policies of forced segregation and assimilation may pose serious human rights problems for the subjects of ethnic engineering programmes, and some forms of separation may be violative in ways that are not immediately apparent. For example, an insidious apartheid policy may extend "independence" to newly established demographic units resulting from transfer, sometimes under puppet regimes. This separation does not reflect self-determination of the subject population and proposes a separate "legal" status, recognized under the law of the transferring State, which has the function of negating the transferees' right of return to their original homes and lands." (UN Document E/CN.4/Sub.2/1993/17, 6 July 1993)

3) The territorial pockets along the 'Green Line' identified for potential transfer in the above mentioned plans already face severe shortages of land due to Israel's expropriation of land from Palestinian communities for Jewish use. Palestinian towns and villages inside Israel along the 'Green Line' including Umm al-Fahm, Ar'ara, Baqa al-Gharbiyya, Jatt, Taybeh, Tira and Kafr Qassem, a.o., have already lost from 50 percent to upwards of 80 percent of their traditional lands due to expropriation since the state of Israel was established in 1948. Generally, while Palestinians inside Israel comprise around 20 percent of the population, land access is restricted to some 3.5 percent with even less area available for building. These areas lack sufficient space to accommodate the relocation of significant numbers of refugees. The transfer of these areas to a Palestinian state would further complicate restitution claims for expropriated property remaining inside Israel (i.e. claims would have to be filed by individuals against a state of which they are not citizens). Even if Israel were to transfer additional adjacent lands previously expropriated from Palestinians, the additional land would be also subject to real property restitution claims. In addition to outstanding legal issues, the relocation of refugees to these already crowded areas does not make sense in light of the fact that the land owned by the refugees inside Israel has remained largely vacant; Jewish settlement is concentrated in a number of urban centers, while some 160,000 rural Jewish Israelis live on more than 17,000 sq. km of refugee land.

International Law and a Durable Solution

The starting point in crafting durable solutions for refugees is international law and the wishes of the refugees themselves. Relocating Palestinian refugees to territorial pockets inside Israel along border areas with the West Bank and Gaza Strip and then transferring these areas to a Palestinian state as a way to 'resolve' the refugee issue, however, violates basic principles of international law, including the universal norm of non-discrimination. According to this idea, the starting point in crafting a solution to the refugee issue is Israel's desire to maintain a Jewish demographic majority and Jewish control of land expropriated from Palestinian refugees.

Writing in the May issue of Foreign Affairs ("The Last Negotiation: How to End the Middle East Peace Process"), Hussein Agha, a Senior Associate Member of St. Antony's College, Oxford University, and Robert Malley, Director of the Middle East Program at the International Crisis Group and former special assistant to President Clinton for Arab-Israeli Affairs, argue that the shifting of borders and transfer of people and land would allow Palestinian refugees "to live among people who share their habits, language, religion, and culture -- that is, among the current Arab citizens of Israel." The authors then ask: "But do the refugees actually want to live in Jewish areas that have become part of an alien country?" If the authors had bothered to consult the refugees themselves, they would have discovered that, in fact, many refugees still hold to a vision of a pluralist society in Palestine/Israel unlike the ethnically exclusive and potentially racist model described by the authors.

Speaking before the British Joint Parliamentary Middle East Councils Commission of Enquiry on Palestinian Refugees in September 2000, and echoing statements by other refugees, for example, Taysir Nasrallah, a refugee in the West Bank originally from the village of Qaqun, stated: "We, the Palestinian refugees, do not want to destroy the Israeli state, we only want to live in it as citizens, and we want to return to our villages and to live under Israeli law. This contradicts the fear of Israelis who say that we want to destroy Israel. We see Israel bringing Ethiopians and other people who are not Jews into Israel and settling them on our land. This is happening under the pretext that they have a pure Jewish state. In the past we witnessed how they brought Jews from all over the world to live on Palestinian land. This is what the Palestinians who live in camps, those who did not live in their villages such as myself, saw and heard about. I did not live in the village of Qaqun, which was destroyed, but my father and grandfather lived there and felt humiliated when they witnessed those people coming from Russia or other countries, living on our land and on our properties. This is in contradiction to all the values of the international community."

On the occasion of the 54th anniversary of the Palestinian Nakba, BADIL Resource Center calls upon the international solidarity movement to:

*Educate and inform about the history and the scope of Palestinian displacement and dispossession;
*Educate and inform about Palestinian refugees' right of return, real property restitution and compensation in accordance with international law and UN Resolution 194.

Resources are available on the websites of BADIL and the Palestine Right to Return Coalition (http://al-awda.org)

To obtain a copy of the report of the Joint Parliamentary Middle East Councils Commission of Enquiry - Palestinian Refugees, contact: This email address is being protected from spambots. You need JavaScript enabled to view it.. The report is also archived in pdf format on the BADIL website: Joint Parliamentary Middle East Councils Commission of Enquiry - Palestinian Refugees.