Palestinian right of return
The Palestinian right of return (Arabic: حق العودة, Ḥaqq al-ʿawda; Hebrew: זכות השיבה, zkhut hashivah) is the political position or principle that Palestinian refugees, both first-generation refugees (c. 30,000 to 50,000 people as of 2012) and their descendants (c. 5 million people as of 2012), have a right to return, and a right to the property they themselves or their forebears left behind or were forced to leave in what is now Israel and the Palestinian territories (both formerly part of the British Mandate of Palestine), as part of the 1948 Palestinian exodus, a result of the 1948 Palestine war, and due to the 1967 Six-Day War.
Proponents of the right of return hold that it is a "sacred" right, as well as a human right, whose applicability both generally and specifically to the Palestinians is protected under international law. This view holds that those who opt not to return or for whom return is not feasible, should receive compensation in lieu. Opponents of the right of return hold that there is no basis for it in international law, and that it is an unrealistic demand.
The government of Israel regards the claim as a Palestinian ambit claim, and does not view the admission of Palestinian refugees to their former homes in Israel as a right, but rather as a political claim to be resolved as part of a final peace settlement. Other disputed aspects include the issue of the territorial unit to which Palestinian self-determination would attach, the context (whether primarily humanitarian or political) by which the right is being advanced, and the universality of the principles advocated or established to other (current and former) refugee situations.
The number of Palestinian refugees of the 1948 war is estimated at between 700,000 and 800,000, and another 280,000 to 350,000 people were refugees of the 1967 war. Approximately 120,000–170,000 among the 1967 refugees are believed to have also been refugees from the 1948 war, fleeing the second time. Today, the estimated number of Palestinian refugees exceeds four million.
The issue of the right of return has been of great importance to Palestinians since 1948, when the refugee problem was created.
In June 1948, the Israeli government stated its position, which was reiterated in a letter to the United Nations on 2 August 1949, that in its view a solution to the Palestinian refugee problem must be sought, not through the return of the refugees to Israel, but through the resettlement of the Palestinian Arab refugee population in other states.
The first formal move towards the recognition of a right of return was in UN General Assembly Resolution 194 passed on 11 December 1948 which provided (Article 11):
- Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.
The right of return was defined as the "foremost of Palestinian rights" at the 12th Palestine National Council meeting in 1974 when it became the first component of the Palestine Liberation Organization's trinity of inalienable rights, the others being the right of self determination and the right to an independent state.
1948 Palestinian exodus
The Palestinian refugee problem started during the 1948 Palestine War, when between 700,000 and 800,000 Arabs left, fled, or were expelled from their homes in the area that would become Israel. They settled in refugee camps in Transjordan, Lebanon, Syria, Egypt, and in the West Bank and the Gaza strip that were occupied by Transjordan and Egypt during the war.
From December 1947 to March 1948, around 100,000 Palestinians left. Among them were many from the upper and middle classes from the cities, who left voluntarily, expecting to return when the situation had calmed down. From April to July, between 250,000 and 300,000 fled in front of Haganah offensives, mainly from the towns of Haifa, Tiberias, Beit-Shean, Safed, Jaffa and Acre, that lost more than 90% of their Arab inhabitants. Some expulsions arose, particularly along the Tel-Aviv – Jerusalem road and in Eastern Galilee. After the truce of June, about 100,000 Palestinians became refugees. About 50,000 inhabitants of Lydda and Ramle were expelled towards Ramallah by Israeli forces during Operation Danny, and most others during clearing operations performed by the IDF on its rear areas. During Operation Dekel, the Arabs of Nazareth and South Galilee could remain in their homes. They later formed the core of the Arab Israelis. From October to November 1948, the IDF launched Operation Yoav to chase Egyptian forces from the Negev and Operation Hiram to chase the Arab Liberation Army from North Galilee. This generated an exodus of 200,000 to 220,000 Palestinians. Here, Arabs fled fearing atrocities or were expelled if they had not fled. During Operation Hiram, at least nine massacres of Arabs were performed by IDF soldiers. After the war, from 1948 to 1950, the IDF cleared its borders, which resulted in the expulsion of around 30,000 to 40,000 Arabs. The UN estimated the number of refugees outside Israel at 711,000.
No Arab country except Jordan has to date assimilated a significant population of Palestinian refugees, nor given them full citizenship, and many rely on economic aid from the UN or persons in other countries. It is the position of most Arab governments not to grant citizenship to the Palestinian refugees born within their borders; this policy is in part due to the wishes of these Arab states for Palestinians to be allowed to return to their homes within Israel, in part due to these states wishing to relieve themselves of the refugees.
Causes and responsibilities
The causes and responsibilities of the exodus are a matter of controversy among historians and commentators of the conflict. Although historians now agree on most of the events of that period, there is still disagreement on whether the exodus was due to a plan designed before or during the war by Zionist leaders, or whether it was an unintended result of the war.
During the Palestinian exodus, Israeli leaders decided against the return of the refugees. During her visit at Haïfa on May 1, 1948, Golda Meir declared: "The Jews should treat the remaining Arabs 'with civil and human equality', but 'it is not our job to worry about the return [of those who have fled]". A group consisting of "local authorities, the kibbutz movements, the settlement departments of the National institutions, Haganah commanders and influential figures such as Yosef Weitz and Ezra Danin started lobbying against repatriation. A Transfer Committee and a policy of faits accomplis were set up to prevent a refugee return. In July, it had become an official policy: "Absentees' property" was managed by Israeli government and numerous Palestinian villages were leveled.
A parallel has been drawn by some commentators between the state and private restitutions made from Germany to Israel over Holocaust thefts and the compensation due to Palestinians evicted in the formation of Israel. Others have compared Palestinians' claims for compensation to the claims of ethnic Germans who were expelled from eastern Europe in the aftermath of the Holocaust and World War II.
In 1945, of 26.4 million dunams of land in Mandate Palestine, 12.8 million was owned by Arabs, 1.5 million by Jews, 1.5 million was public land and 10.6 millions constituted the desertic Beersheba district (Negev). By 1949, Israel controlled 20.5 million dunams (approx. 20,500 km²) or 78% of lands in what had been Mandate Palestine: 8% (approx. 1,650 km²) were privately controlled by Jews, 6% (approx. 1,300 km²) by Arabs, with the remaining 86% was public land.
1967 Palestinian exodus
During the Six-Day War another Palestinian exodus occurred. An estimated 280,000 to 350,000 Palestinians fled or were expelled from the West Bank, the Gaza Strip and the Golan Heights as a result of the Six-Day War; approximately 120,000-170,000 among them were believed to also be refugees from the first war, fleeing a second time.
Relationship to Jewish exodus from Arab countries
A comparison is often made between the situation of Palestinian refugees and the exodus of Jews from Arab countries who are now in Israel (or elsewhere).
It is estimated that 800,000 to 1,000,000 Jews were either forced from their homes or left the Arab countries from 1948 until the early 1970s; 260,000 reached Israel between 1948 and 1951, and 600,000 by 1972.
In 2000, Bobby Brown, advisor to prime minister Benjamin Netanyahu on Diaspora affairs and delegates from the World Jewish Congress and the Conference of Presidents of Major American Jewish Organizations began an intensive campaign to secure official political and legal recognition of Jews from Arab lands as refugees. The campaign's proponents hoped their efforts would prevent acceptance of the "right of return" to Palestinians, and reduce the amount of compensation that would be paid by Israel for appropriated Palestinian property. Then-President of the US Bill Clinton gave an interview in July 2000 to Israel's Channel One and disclosed an agreement to recognize Jews from Arab lands as refugees, while Ehud Barak hailed it as an achievement in an interview with Dan Margalit.
In 2002, the organization "Justice for Jews from Arab Countries" (JJAC) was created and its Founding Congress (Election of a Board of Directors, Finalized By-Laws for the organization, etc.) met in London in June 2008. Beginning in November 2008, they planned to undertake major initiatives and that in 2009, they would hold a national conference in Israel. Their achievement to date is described as "having returned the issue of Jews from Arab countries to the agenda of the Middle East."
In November 2012, Palestinian Authority President Mahmud Abbas repeated his stance that the claim of return was not to his original hometown, but to a Palestinian state that would be established at the 1967 border line. Hamas denounced this adjustment. Abbas later clarified (for the Arab media) that this was his own personal opinion and not a policy of giving up the right of return. Israeli politicians denounced the clarification.
UN General Assembly Resolution 194
The issue of the right of return of Palestinian refugees has been a very sensitive issue for Palestinians (and Arab countries in the region) since the creation of the refugee problem as a result of the 1948 Arab–Israeli War. The United Nations UN General Assembly Resolution 194  which was passed on December 11, 1948 recognized the right of return for the first time. Unlike Security Council Resolutions under Chapter VII of the United Nations Charter, General Assembly resolutions have only a recommendatory character and are not binding under international law.
Resolution 194 also deals with the situation in the region of Palestine at that time, establishing and defining the role of the United Nations Conciliation Commission as an organization to facilitate peace in the region.
Article 11 – Palestinian Refugees
The main Article of Resolution 1948, for the purpose of this article, is Article 11 which deals with the return of refugees.
Article 11 of the resolution reads:
- (The General Assembly) Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.
The exact meaning and timing of enforcement of the resolution were disputed from the beginning.
Since the late 1960s, Article 11 has increasingly been quoted by those who interpret it as a basis for the "right of return" of Palestinian refugees, even though the resolution was rejected at the time by Arab League members of the United Nations.
Israel has always contested this reading, pointing out that the text merely states that the refugees "should be permitted" to return to their homes at the "earliest practicable date" and this recommendation applies only to those "wishing to... live at peace with their neighbors".  In particular, David Ben-Gurion, the first Prime Minister of Israel, insisted in an interview with the members of the Conciliations Commission that as long as Israel could not count on the dedication of any Arab refugees to remain "at peace with their neighbors" - a consequence, he contended, of the Arab states' unwillingness to remain at peace with the state of Israel – resettlement was not an obligation for his country.
Scope of the issue
Supporters of the right of return assert it partly based on the following sources:
- Everyone has the right to leave any country, including his own, and to return to his country. -Article 13(2), Universal Declaration of Human Rights (10 December 1948).
- The Geneva Conventions of 1949.
- The General Assembly, Having considered further the situation in Palestine … Resolves that the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible." -UN General Assembly Resolution 194 (11 December 1948)
- United Nations General Assembly Resolution 3236 which "reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return".
- Resolution 242 from the UN affirms the necessity for "achieving a just settlement of the refugee problem."
- Supporters of the Palestinian right of return maintain that "the right of return for the 1948 Palestinian refugees still exists according to international law. It exists despite the language of the Oslo agreements, insufficient as they are in this regard, and despite the position of the current Israeli government. Palestinian refugees should be free to seek their right to repatriation, regardless of what the PLO acquiesces to, so long as UN Resolution 194 remains in force".
- No one shall be arbitrarily deprived of the right to enter his own country. -Article 12, International Covenant on Civil and Political Rights (23 March 1976).
According to Akram although the status of Palestinian nationals/citizens after the creation of the State of Israel has been much debated, established principles of state succession and human rights law confirm that the denationalization of Palestinians was illegal and that they retain the right to return to their places of origin.
The author states that denationalization of Palestinians was illegal, because when denationalization is based on race or ethnic origin, it is a violation of the general principles of nondiscrimination in customary international law, as well as of Articles 1 and 16 of the ICCPR, 999 UNTS 173, 19 December 1966, and Article 5.d.ii of the CERD, 660 UNTS 221, 7 March 1966. According to Akram, humanitarian law is breached because its principles prohibit transferring civilian populations under the control of an occupier and require return of those expelled. The four Geneva Conventions of 1949, particularly the Fourth Geneva Convention, have explicit provisions affirming the right of return to persons forced from their homes by hostilities. For example the "Geneva Convention for the Protection of Civilian Persons in Time of War (Geneva IV) of 1949," 75 UNTS 31, 12 August 1949.
Akram states that since 1948, the principles of the internationally binding right of return have been strengthened by their inclusion in numerous treaties, many of which bind Israel as a signatory. The right of return is expressly recognized in most international human rights instruments, including, Article 13.2 of the Universal Declaration of Human Rights (1948); Article 12.4 of the ICCPR; Article 5.d.ii of the CERD, 7 March 1966; Article VIII of the American Declaration of the Rights of Man, Organization of American States (OAS), Res. XXX, OAS Official Records, OEA ser. L/w/I.4 (1965), Article 22.5 of the American Convention on Human Rights, 1144 UNTS 123, 22 November 1969; Article 12.2 of the African Charter on Human and Peoples' Rights, 1981, 21 ILM 59, 1982; and Article 3.2 of Protocol 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221, 1950.
Akram claims that after 1969, the UN General Assembly, partly in response to new Arab and PLO priorities, shifted its perspective to acknowledge the Palestinians as a people having rights under the UN charter (see, for example, the first paragraph of UNGA Res. 2535B of 10 December 1969, UN GAOR, 24th Sess., Supp. No. 30 at 25, UN Doc. A/8730 (1970). The author considers that recognition of the Palestinians' juridical status has been affirmed by all subsequent UN resolutions on the subject (see, for example, UNGA Res. 2672C, UN GAOR, 25th Sess., Supp. No. 28 at 36, UN Doc. A/8028; UNGA Res. 3210, UN GAOR, 24th Sess., Supp. No. 30 at 25, UN Doc. A/8730, 1970; UNGA Res. 3236, UN GAOR, 29th Sess., Supp. No. 31 at 4, UN Doc. A/9631).
Many Palestinians argue that they have an inherent right of return to land which they or their ancestors had owned or resided in previous to the establishment of the state of Israel, and that they must therefore be given full Israeli citizenship under the terms of any future peace agreement. They question the legality of Israeli control over these lands, and point out the necessity of said lands for their proper livelihood. UN General Assembly Resolution 194 supports this argument, and resolved that Israel should permit "refugees wishing to return to their homes and live at peace with their neighbors" to do so. Therefore, some have made the case that Israel is bound under international law to accept a full Palestinian right of return.
On March 15, 2000, a group of 100 prominent Palestinians from around the world expressed their opinion that the right of return is individual, rather than collective, and that it cannot therefore be reduced or forfeited by any representation on behalf of the Palestinians in any agreement or treaty. They argued that the right to property "cannot be extinguished by new sovereignty or occupation and does not have a statute of limitation," and asserted that "it is according to this principle that the European Jews claimed successfully the restitution of their lost property in World War II." Their declaration partly rested on the assertion that, on certain occasions, Palestinians were expelled from their homes in Israel. The declaration placed the number of towns and villages in which this occurred at 531.
Some also regard as a massive injustice the fact that Jews are allowed to immigrate to Israel under Israel's Law of Return, even if their immediate ancestors have not lived in the area in recent years, while people who grew up in the area and whose immediate ancestors had lived there for generations are forbidden from returning.
- The Israeli Law of Return grants citizenship to any Jew from anywhere in the world and is viewed by some as discrimination towards non-Jews and especially to Palestinians that cannot apply for such citizenship nor return to the territory from which they were displaced or left.
The Global Policy Forum asserts its support for a Palestinian Right of Return on the grounds of international customs and law:
It is a generally recognized principle of international law that when sovereignty … over an area changes hands, there is a concurrent transfer of responsibility for the population of that territory. Therefore it cannot be argued that Palestinians … no longer had any rights with regard to the country in which they had lived simply because of a change in the nature of the … government in that territory. Moreover, where expulsion or prevention from return results in … statelessness, Article 15 of the Declaration, which stipulates that "[e]veryone has the right to a nationality," becomes a further relevant protection of the right of return.
Some libertarians have argued for the Palestinian right of return largely from a private property rights perspective. In "Property Rights and the 'Right of Return'" professor Richard Ebeling writes: "If a settlement is reached between the Israelis and the Palestinians, justice would suggest that all legitimate property should be returned to their rightful owners and that residence by those owners on their property should be once again permitted." Attorney Stephen Halbrook in "The Alienation of a Homeland: How Palestine Became Israel" writes: "Palestinian Arabs have the rights to return to their homes and estates taken over by Israelis, to receive just compensation for loss of life and property, and to exercise national self-determination." In "War Guilt in the Middle East" Murray Rothbard details Israel's "aggression against Middle East Arabs," confiscatory policies and its "refusal to let these refugees return and reclaim the property taken from them."
- Several authors included in the broader New Historians assert that the Palestinian refugees were chased out or expelled by the actions of the Jewish militant groups Haganah, Lehi and Irgun.
A report from the military intelligence SHAI of the Haganah entitled "The emigration of Palestinian Arabs in the period 1/12/1947 – 1/6/1948", dated 30 June 1948 affirms that up to 1 June 1948:
"At least 55% of the total of the exodus was caused by our (Haganah/IDF) operations." To this figure, the report's compilers add the operations of the Irgun and Lehi, which "directly (caused) some 15%... of the emigration". A further 2% was attributed to explicit expulsion orders issued by Israeli troops, and 1% to their psychological warfare. This leads to a figure of 73% for departures caused directly by the Israelis. In addition, the report attributes 22% of the departures to "fears" and "a crisis of confidence" affecting the Palestinian population. As for Arab calls for flight, these were reckoned to be significant in only 5% of cases...
- The traditional Israeli point of view arguing that Arab leaders encouraged Palestinian Arabs to flee has also been disputed by the New Historians, which instead have shown evidence indicating Arab leaders' will for the Palestinian Arab population to stay put. Historians such as Benny Morris, Erskine Childers, and Walid Khalidi state that no evidence of widespread evacuation orders exists, and that Arab leaders in fact instructed the Palestinian Arabs to stay put. According to Morris, whatever the reasons driving many into flight, temporary evacuation under local orders, contagious panic, fear of Jewish arms, or direct expulsion manu militari, the 700,000 odd Palestinians who did become refugees acquired that status as a result of compulsory displacement or expulsion, since they were not permitted by Israel to return. In any case, even if the 1948 exodus had not been caused by Israel, the claimed right of return is not contingent on Israeli responsibility for the displacement of refugees.
Opponents of the right of return reject it partly based on the following sources:
- There is no formal mechanism in international law to demand repatriation of refugees and their descendants in general, or Palestinians specifically. No international legislation, binding UN resolutions or agreements between Israel and the Palestinians require this.
- That the phrase "his own country" in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights has been interpreted by Judge Jose Ingles in his report to the UN to apply only to citizens or nationals of the relevant country.
- Yaffa Zilbershats agrees and further argues against those who say that on May 15, 1948 Arabs living in Israel (who would later flee as refugees) must be considered Israeli citizens. She notes that most international treaties do not obligate a state to give citizenship to its inhabitants, and that the state (Israel) can decide to whom citizenship shall be given. She notes that while Article 15 of the UDHR does say "Everyone has the right to a nationality", that right is "ambiguous" and "weakly drafted".
- That the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights were adopted solely by the United Nations General Assembly, and are legally non-binding.
- That United Nations General Assembly resolutions such as 194 and 3236 are recommendations only and thus non-binding.
- That Resolution 194 resolved that that refugees willing to live in peace with their neighbors should be allowed to return, and that many Palestinians who fled were unwilling to live in peace and were responsible for attacks against Jews. Furthermore, the resolution does not specifically apply to only Arab refugees, but also Jewish refugees.
- That the phrase "his own country" in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights has been interpreted by Judge Jose Ingles in his report to the UN to apply only to citizens or nationals of the relevant country.
- That United Nations Security Council Resolution 242 does not mention a right of return or any other arrangement as a mandatory solution, and only calls for a "just settlement" to the refugee issue. According to Ruth Lapidoth, this also includes the issue of Jewish refugees from Arab and Muslim nations.
- Objectors assert that historical legal precedent supports this contention.
- In the Middle East, none of the 900,000 Jewish refugees who fled anti-Semitic violence in the Arab world were ever compensated or repatriated by their former countries of residence. It is argued a precedent has been set whereby it is the responsibility of the nation which accepts the refugees to assimilate them.
- No right of return or compensation is available for the estimated 13 million people who moved between the newly created states during the partition of India in 1947. Similarly, the millions of Sudeten Germans expelled from Czechoslovakia after World War II were never compensated.
- That the descendants of refugees do not automatically inherit refugee status.
- Some opponents argue that if all or a large majority of Palestinian refugees and their descendants were to implement a "right of return", it would make Arabs the majority within Israel and Jews an ethnic minority. They contend that this would "mean eradicating Israel." Israeli novelist Amos Oz is among those who have argued that the enactment of the Palestinian "right of return" would make Arabs the majority in Israel. In Oz's view, such a step would amount to "abolishing the Jewish people's right to self determination." Oz further claims that Palestinian leaders claim a right of return "while cynically ignoring the fate of hundreds of thousands of Israeli Jews who fled and were driven out of their homes in Arab countries, during the same war."
- Israeli official sources, foreign press, and officials present at the time, and historians such as Joseph Schechtman have long claimed that the 1948 refugee crisis was instigated by the invading Arab armies, who ordered Palestinian civilians to evacuate the battle zone, in order to allow the Arab armies freedom to operate. Opponents of the right of return, such as Efraim Karsh say that Israel is therefore not obligated to compensate Palestinians or allow them to return. Israel officially denies any responsibility for the Palestinian exodus, stating that their flight was caused by the Arab invasion. According to some sources, including Arab ones[who?], Palestinian flight from Israel was not compelled but was predominantly voluntary, as a result of seven Arab nations declaring war on Israel in 1948. Many Arab leaders encouraged and even ordered Palestinians to evacuate the battle zone in order to make it easier for the Arab armies and fedayeen to demolish the newly found Jewish state and Israel officially denies any responsibility for the Palestinian exodus, stating that their flight was caused by the Arab invasion. Karsh states that most Palestinians chose their status as refugees themselves, and therefore Israel is therefore absolved of responsibility.
Some critics of the Palestinian right of return also argue that it is not supported by international precedent, drawing attention to the 758,000–866,000 Jews were expelled, fled or emigrated from the Arab Middle East and North Africa between 1945 and 1956, with property losses of $1 billion. These critics argue that since these refugees were neither compensated nor allowed return—to no objection on the part of Arab leaders or international legal authorities—the international community had accepted this migration of Jews as fait accompli, and thereby set legal precedent in the region against a right of return. Former Israeli Foreign Minister Moshe Sharett asserted that the migration of refugees between Israel and the Arab World essentially constituted a population exchange. He argued that precedent, such as the exchange of 2.5 million people between Poland and the Soviet Union, as well as the 13 million Hindus and Muslims who crossed the India–Pakistan border, showed that international law neither requires nor expects the reversal of population exchanges. He further argued that precedent does not require reversal even of one-directional refugee migrations, such as the expulsion of 900,000 Germans from Czechoslovakia following World War II. In Sharett's view, Israel was singled out as the exception to international law.
Critics of the right of return argue that it is the failure of Arab states to fulfill this promise (with the exception of Jordan) which keeps the Palestinian refugees in their current limbo, not Israeli policy. Efraim Karsh asserts that "whatever the strengths and weaknesses of the Palestinians' legal case, their foremost argument for a 'right of return' has always rested on a claim of unprovoked victimhood." In Karsh's view, because Palestinians were not the victims of a "Zionist grand design to dispossess them" but "the aggressors in the 1948–49 war" they are responsible for the refugee problem. Karsh does not deny that some Palestinians were forcibly expelled, but places the blame for the bulk of the exodus on Palestinian and Arab elites and leaders.
Ruth Lapidoth from the Jerusalem Center for Public Affairs has argued that U.N. General Assembly Resolution 194 does not specify a "right", but rather says refugees "should" be allowed to return. She has also noted that General Assembly resolutions are not binding to member states, and that this particular resolution based its recommendations on two conditions: that refugees wish to return, and that they be willing to "live at peace with their neighbors." She argues that the latter condition is unfulfilled, citing the actions of Palestinian militant groups. She concludes that Palestinian refugees have right to seek a negotiated compensation, but not a "right of return".
Lapidoth's essay also references a statement made by Stig Jägerskiöld in 1966, in which he argues that the right of return was intended as an individual and not a collective right:
... [it] is intended to apply to individuals asserting an individual right. There was no intention here to address the claims of masses of people who have been displaced as a by-product of war or by political transfers of territory or population, such as the relocation of ethnic Germans from Eastern Europe during and after the Second World War, the flight of the Palestinians from what became Israel, or the movement of Jews from the Arab countries.
The pro-Israel advocacy group StandWithUs rebuffed the argument that Israel's admission to the UN was conditional upon acceptance of relevant UN Resolutions, including Resolution 194, claiming that "like every other nation admitted to the UN, Israel was admitted on the basis of Article 4 of the Charter". Article 4 of the United Nations Charter states that no state was entitled to make its acceptance of the admission of an applicant dependent on conditions not provided for in Paragraph 1 of Article 4. Furthermore, the UN Resolution that admitted Israel explicitly stated that it was admitted because of its adherence to the principles and obligations of the UN Charter, not specific Resolutions. Even the Arab spokesman opposed to Israel's admission admitted that all member states were admitted solely on the basis of Article 4. He tried to make an exception in the case of Israel, but his claims were rejected. Likewise, Law Professor Ruth Lapidoth wrote that "a careful scrutiny of the text of Israel's application for membership and the discussions that took place in the Ad Hoc Political Committee and in the plenary session of the General Assembly show that no such commitment was made; nor did the General Assembly's Resolution on the admission of Israel impose upon her an obligation to implement that Resolution".
- That the clause: "everyone has the right to leave any country, including his own, and to return to his country" was meant to guarantee the right to leave. According to its legislative history, Article 13 was aimed at governments which imprisoned certain subgroups of their own nationals by preventing them from leaving. According to its sponsor, the mention of a "right to return" was included to assure that "the right to leave a country, already sanctioned in the article, would be strengthened by the assurance of the right to return".
- The Article guarantees a right to return "to his own country", but the Palestinians who were displaced were never citizens or legal residents of Israel.
- Other clauses in the Universal Declaration of Human Rights argue against a Palestinian right of return. Article 29 provides that rights can be limited by law solely for securing "due recognition and respect for the rights of others and of meeting the just requirements of morality, public order, and general welfare in a democratic society". Article 30 states that nothing in the declaration may be interpreted as implying for any state, group, or person to engage in activity aimed at the destruction of any rights or freedoms guaranteed. The "rights" and "general welfare" of Israel's Jewish citizens would be endangered if millions of Palestinians who were openly hostile to Israel's existence became a majority. Article 3 of the declaration further states that "these rights and freedoms may in no case be exercised contrary to the purpose and principles of the United Nations". The Palestinian right of return would result in the loss of Israeli sovereignty and its replacement with an Arab-majority state, and the dismantling of Israeli society in favor of an Arab-Muslim dominated society, resulting in the destruction of a UN member state: a violation of the United Nations Charter.
Safian also argues that the Fourth Geneva Convention does not apply to Palestinian refugees. Article 49 of this convention allows a "belligerent occupant" to temporarily remove a civilian population from occupied territory, but requires that the evacuees "be transferred back to their homes as soon as hostilities in the area in question cease". However, this convention was adopted two years after the 1948 Palestinian exodus, and thus not international law at the time the exodus took place. All but one of the articles deal with "international conflicts", but the 1948 Arab-Israeli war was largely a civil struggle between Jews and Arabs in the territory of the British Mandate, and thus Israel was not a "belligerent occupant" in an "international conflict". Article 3, the only article that deals with "conflicts not of an international character", makes no mention of a right of return for displaced persons.
Professor Andrew Kent of Fordham University School of Law Law School argued that Israel is not obligated to accept a Palestinian right of return, as international law at the time the 1948 Palestinian exodus occurred did not render Israeli actions illegal:
Palestinians have sought to retroactively judge Israeli actions in the 1940s under new norms developing in the late twentieth and early twenty-first centuries. But international law does not work like that. Though it is no doubt deeply unsatisfying to Palestinians and their many supporters, the correct legal answer to the question of whether the 1947–49 refugees have a right of return under international law goes something like this: even if (or assuming that) the Israelis did intentionally expel every Palestinian refugee, it was not illegal when it occurred, though it almost certainly would be if done today under the same circumstances; and the law at the time did not require repatriation of the refugees to Israel, though it most likely would if the expulsion were to occur today.
One common argument used against the Palestinian right of return is that regardless of whatever rights the original Palestinian refugees of 1948 have, the vast majority of them have since died, and the vast majority of people to whom any such return would apply to are descended from the original refugees and were not actually born in Palestine (in 2012 it was estimated that of the original refugees from 1948, between 30,000 and 50,000 were still living). They claim that the subsequent generations of Palestinians descended from the refugees who were not born in the land have even less claim for a right of return. In addition, it has been argued that a full right of return by refugees and their descendants to their original homes is unrealistic, as the land has been developed since 1948, and repatriating refugees to original properties would displace Israelis living there today. According to Anthony Oberschall, "the townhouses, villages, farms, olive groves, and pastures of 1948 do not exist anymore. They have become Israeli towns, apartment blocks, shopping centers, industrial parks, agrobusinesses, and highways."
Bearing on the peace process
The argument over the existence of such a right has perpetuated the Israeli–Palestinian conflict, and the failure of the peace process is due, in large part, to the inability of the two parties to achieve a solution with justice for both sides.
The majority of Palestinians consider that their homeland was lost during the establishment of Israel in 1948, and see the right of return as crucial to a peace agreement with Israel, even if the vast majority of surviving refugees and their descendants do not exercise that right. The Palestinians consider the vast majority of refugees as victims of Israeli ethnic cleansing during the 1948 Arab–Israeli War, and cite massacres such as Deir Yassin. All Palestinian political and militant groups, both Islamist and socialist, strongly support a right of return. The Palestinian National Authority views the right of return as a non-negotiable right.
Almost all Israeli Jews oppose a literal right of return for Palestinian refugees on the grounds that allowing such an influx of Palestinians would render Jews a minority in Israel, thus transforming Israel into an Arab-Muslim state. In addition to the right-wing and center, a majority of the Israeli left, including the far-left, opposes the right of return on these grounds. The Israeli left is generally open to compromise on the issue, and supports resolving it by means such as financial compensation, family reunification initiatives, and the admittance of a highly limited number of refugees to Israel, but is opposed to a full right of return. The vast majority of Israelis believe that all or almost all of the refugees should be resettled in a Palestinian state, their countries of residence, or third-party countries. The Israeli political leadership has consistently opposed the right of return, but it has made offers of compensation, assistance in resettlement, and return for an extremely limited number of refugees based on family reunification or humanitarian considerations during peace talks.
Israel's first offer of any limited right of return came at the 1949 Lausanne Conference, when it offered to allow 100,000 refugees to return, though not necessarily to their homes, including 25,000 who had returned surreptitiously and 10,000 family-reunion cases. The proposal was conditioned on a peace treaty that would allow Israel to retain territory it had captured which had been allocated to a proposed Palestinian state, and the Arab states absorbing the remaining 550,000–650,000 refugees. The Arabs rejected the proposal on both moral and political grounds, and Israel quickly withdrew its limited offer. At the 2000 Camp David summit 52 years later, Israel offered to set up an international fund for the compensation for the property which had lost by 1948 Palestinian refugees, to which Israel would contribute. Israel offered to allow 100,000 refugees to return on the basis of humanitarian considerations or family reunification. All other refugees would be resettled in their present places of residents, the Palestinian state, or in third-party countries, with Israel contributing $30 billion to fund their resettlement. During this time, most of the original refugees had died without any compensation. Israel demanded that in exchange, Arafat forever abandon the right of return, and Arafat's refusal has been cited as one of the leading causes of the summit's failure.
The Palestinian right of return had been one of the issues whose solution had been deferred until the "final status agreement" in the Oslo Accords of 1993. Not only was there no final status agreement, but the Oslo process itself broke down, and its failure was a major cause of the Second Intifada and the continuing violence.
In 2003, during the Road map for peace, Israeli Foreign Minister Silvan Shalom stated that the establishment of a Palestinian state was conditional upon waiving the right of return. Prime Minister Ariel Sharon said that the Palestinian Authority must also drop its demand for the right of return, calling it "a recipe for Israel's destruction".
In 2008 the Palestinian Authority issued a statement "calling on all Palestinians living abroad to converge on Israel by land, sea and air" to mark Israel's 60 anniversary.
U.S. government policy, 2007
Make clear that the United States Government supports the position that, as an integral part of any comprehensive peace, the issue of refugees and the mass violations of human rights of minorities in Arab and Muslim countries throughout the Middle East, North Africa, and the Persian Gulf must be resolved in a manner that includes (A) consideration of the legitimate rights of all refugees displaced from Arab and Muslim countries throughout the Middle East, North Africa, and the Persian Gulf; and (B) recognition of the losses incurred by Jews, Christians, and other minority groups as a result of the Arab-Israeli conflict.
The resolutions had been written together with lobbyist group JJAC, whose founder Stanley Urman described the resolution in 2009 as "perhaps our most significant accomplishment". The House of Representatives resolution was sponsored by Jerrold Nadler. Michael Fischbach explain the resolutions as "a tactic to help the Israeli government deflect Palestinian refugee claims in any final Israeli–Palestinian peace deal, claims that include Palestinian refugees' demand for the "right of return" to their pre-1948 homes in Israel."
U.S. President George W. Bush
On July 16, 2007, US President George W. Bush affirmed that the Israelis "should be confident that the United States will never abandon its commitment to the security of Israel as a Jewish state and homeland for the Jewish people." Israeli ambassador to the United States Michael B. Oren considered this "the rejection of the Palestinians' immutable demand for the resettlement of millions of refugees and their descendants in Israel. America is now officially dedicated to upholding Israel's Jewish majority and preventing its transformation into a de facto Palestinian state."
Historic attempts at resolution
Since the Palestinian exodus of 1948, there have been many attempts to resolve the right of return dispute. These have produced minor results at best.
In 1949, Mark Etheridge, the American representative to the United Nations Conciliation Commission (UNCC), suggested that Israel agree to grant full citizenship to the 70,000 Arab residents in the Gaza Strip, as well as its 200,000 refugees, on the condition that the Gaza Strip—then part of Egypt—be incorporated into Israel. Israel's delegation to the UNCC accepted this offer, although this plan was rejected and criticized by Arab government, the United States, and even Israel's own government.
In the Lausanne Conference, Israel announced to the UNCC on August 3, 1949, that it would allow up to 100,000 Palestinian refugees to return into Israel. But this plan was not designed as a panacea for the refugee crisis. Rather, it was to "form a part of a general plan for resettlement of refugees which would be established by a special organ to be created … by the United Nations." Israel reserved the right to permit settlement of the refugees only in areas in which settlement would not be detrimental to the security and economy of the state. The UNCC and Arab governments communicated unofficially at the matter. The Arab governments agreed to the offer, but under drastically different terms: that it apply only to the area originally allotted to Israel under the Partition Plan, that all refugees originating from areas allotted to Arabs or under international control be immediately allowed to return to their homes, and that Israel exercise no control over the location of resettlement. Since the parties failed to agree on the terms of the measure, it died in July of the following year, as Israeli Foreign Minister Moshe Sharett declared: "The context in which that offer was made has disappeared, and Israel is no longer bound by that offer."
On August 23, 1949, the United States sent Gordon R. Clapp, chairman of the board of the Tennessee Valley Authority, on the Clapp Mission. This mission was tasked with economic surveying, to estimate Arab states' capability of absorbing Palestinian refugees. This mission failed dramatically in achieving this goal. Clapp explained on February 16, 1950, in front of the American House Foreign Affairs Committee: "Resettlement was a subject that the Arab governments were not willing to discuss, with the exception of King Abdallah [sic]". The mission concluded that, although repatriation would be the best solution to the refugee question, circumstances on the ground would only allow philanthropic relief. Moreover, it recommended that this relief be limited to four small pilot projects: in Jordan, the West Bank, Lebanon, and Syria.
On December 2, 1950, the United Nations General Assembly passed resolution 393 by a vote of 46 in favor, 0 against, 6 abstaining. Its supporters included every Arab nation. This resolution allocated, for the period 1 July 1951 to 30 June 1952, "no less than the equivalent of $30,000,000" for the economic reintegration of Palestinian refugees in the Near East, their permanent re-establishment and removal from relief, "without prejudice to the provisions of paragraph 11 of General Assembly Resolution 194". Toward this goal, Israel donated the equivalent of $2.8 million, and Arab states pledged almost $600,000. The United States accounted for the greatest pledge with $25 million.
On November 29, 1951, John B. Blandford Jr., then director of UNRWA, proposed spending $50 million on relief for Palestinian refugees, and another $200 million on their integration into the communities where they resided. The New York Times reported that Blandford aspired to see 150,000 to 250,000 refugees resettled in Arab nations by building an economic infrastructure which would make their integration more plausible and sustainable for Arab societies. On January 26, 1952, the General Assembly accepted his proposal. Jordan, Syria, and Egypt all agreed to absorb a share of the refugee population, although these pledges never came to fruition. The General Assembly continually reiterated its request that Arab governments absorb Palestinian refugees, but Henry Richardson Labouisse, who had by that time become UNRWA's third director, admitted the defeat of the program in 1955, blaming "resistance to self-support programs," and host governments' "political objections to large-scale projects."
In 2002, former representative of the Palestinian Liberation Organization Sari Nusseibeh proposed a settlement between Israel and Palestine which would grant Palestinians a right of return to a Palestinian state, but not to Israel. The proposal failed.
The 2003 Geneva Accord, which was an agreement between individuals and not between official representatives of the government of Israel and the Palestinian people, completely relinquished the idea of a Right of Return. This document is extra-governmental and, therefore, unofficial and non-binding.
In 2013 Boston University hosted the Right of Return conference.
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