Tuesday, July 12, 2011

Position Paper: Return of Palestinian Refugees to the State of Israel

The following is the summary of a position paper by Yaffa Zilbershats and Nimra Goren-Amitai that was translated from the Hebrew. It is published by The Metzilah Center for Zionist, Jewish, Liberal and Humanist Thought

The complete text of Return of Palestinian Refugees to the State of Israel can be found online.

Executive Summary

Introduction

The return of the Palestinian refugees and their descendants to the State of Israel is one of the most difficult issues facing the parties as they seek to resolve the Israeli-Palestinian dispute. According to the Palestinians, the refugees and their descandents have a right to return to the homes which they left between the years 1947-1949. In contrast, the State of Israel vehemently opposes recognizing the right of return and extensive entry of Palestinian refugees into its territory as part of the solution to the dispute. The State of Israel sees this as an existential danger to the national home in which the Jewish people seek to implement their right to self-determination.


This document presents the historical and legal background of this issue. It rests on the argument that the sources of international law do not support the legal right of the Palestinian refugees to return to the State of Israel. A review of the cases of other refugees in regions around the world where ethnic disputes are underway shows that the return of refugees who are members of one national ethnic group to territory which is controlled by another group is generally not the appropriate solution for ending a prolonged ethnic dispute. A discussion of this loaded issue within the framework of a discourse of rights is likely to make it difficult for the parties to resolve the dispute. Accordingly, Israel must insist that the issue of the Palestinian refugees will be dealt with in the framework of political negotiations. Israel must refrain from discussing this issue within the framework of the discourse of rights.

Chapter One: The problem of the Palestinian refugees: basic facts

The purpose of this chapter is to present the factual and historical background that lies behind the claim to return made by the Palestinian refugees and their descendants. Many of the country’s Arab inhabitants fled or were deported in consequence of hostilities which erupted in Mandatory Palestine following the UN General Assembly decision on the partition of the territory into two states—Jewish and Arab—and following the War of Independence of the State of Israel. Many became refugees in the neighboring Arab states. These refugees were excluded from the application of the Convention Relating to the Status of Refugees of 1951 and from the protection of the UN High Commission for Refugees. As of 1950 they have been protected, by virtue of a UN resolution, within a special framework, namely, the UN Relief and Works Agency for Palestine Refugees in the Near East—UNRWA. Over the course of time UNRWA has become an organization which functions as a huge relief agency. It handles approximately 4.7 million people yet refrains from rehabilitating the refugees. This figure stems from the organization’s broad definition of a Palestinian refugee. The UNRWA definition, unlike the definition given in the Refugees Convention, includes the descendants of the refugees who left Mandatory Palestine as well as those who have received citizenship in the countries in which they have since settled. In addition, many Palestinians who live outside UNRWA’s area of operation see themselves as Palestinian refugees who are entitled to return to the territory of the State of Israel.

Chapter Two: The right of return viewed through the prism of international law

The Palestinians base the refugees’ right of return on international law. The discourse of rights in this area largely developed following the Second World War. The UN adopted many conventions on human rights and the signatory states undertook to safeguard these rights within their territory. Concurrently, monitoring and supervising mechanisms were established to implement the conventions. This step led to limitations on the sovereignty of states. Against this background, Chapter Two considers the various sources of international law concerning related issues with the purpose of examining whether they vest the Palestinian refugees and their descendants with a right to return.

UN resolutions relating to Palestinians do not vest the Palestinian refugees with a right to return to the State of Israel. The primary resolution upon which the Palestinians base their claim to a right to return is UN General Assembly Resolution 194(III) of 1948. This resolution sought to set out a general strategy for resolving the dispute through the establishment of a Conciliation Commission. Indeed, the return of the refugees is mentioned in Article 11 of the resolution, but this must be seen as part of the general strategy and not as an independent right vested in the Palestinians, particularly in light of the fact that the resolution does not refer to the term “right.” Subsequent resolutions of the UN General Assembly recognize the right of the Palestinian people to self-determination and the right of the Palestinians to return to their homes. In contrast, the Security Council resolutions 237 and 242 of 1967 and 338 of 1973 call for a “just” solution to the Palestinian problem but make no reference whatsoever to their “right to return.” It is these decisions of the Security Council which are binding in the relations between the Israelis and the Palestinians, as the Oslo agreements signed by the two parties vest them with binding force following their adoption by the parties.

International human rights laws do not provide uniform definitions regarding the scope of the right to freedom of movement, on which, on occasion, the right to return is allegedly based. One of the important documents pertaining to this subject relied on by the Palestinians, is the International Covenant on Civil and Political Rights of 1966. Article 12(4) of the Covenant prohibits the imposition of arbitrary restrictions on the right of a person to enter his own country. This position paper shows that the Palestinian refugees do not satisfy the terms of the article and therefore it too does not vest them with a right to return to the State of Israel. For the Palestinians, Israel is not “their country” and even if it is regarded as their country, the restriction on their entry is not arbitrary. The State of Israel is entitled to prevent the entry of the Palestinians into its territory, and a fortiori the entry of their descendants, as such a development might endanger the existence of the state and the exercise of the Jewish people’s right to self-determination within it. This reasoning is also relevant in relation to restricting the entry into Israel of a Palestinian who has married a citizen of the country and wishes to settle in the country within the framework of family unification.

Nor too, do international nationality laws impose a duty on the State of Israel to grant citizenship to Palestinian refugees. The general international conventions and those dealing specifically with the question of citizenship provide for the right of every person to citizenship, but there is no express obligation on the part of any particular state to grant such citizenship. Arrangements for the granting of citizenship to those leaving the state in cases of uti possidetis—i.e., in situations where large movements of people are generated as a result of war which has led to border changes—have not yet been formulated in binding rules, and therefore are not legally binding in the context of the issue of Palestinian refugees.

International refugee law is primarily defined by the Convention Relating to the Status of Refugees of 1951. This convention provides for the right of the refugees not to be deported to the country from which they escaped and in which their lives or freedom are in danger. Global practice over the years testifies to the fact that states have not interpreted this right as indirectly providing for the duty of the original state to permit the return of the refugees. Similarly, the Statute of the Office of the UN High Commission for Refugees of 1950 provides that return is merely one of the possible ways of resolving refugee problems. Irrespective of the above, the Refugees Convention has excluded the Palestinian refugees from its purview and in accordance with UN decisions has made them the responsibility of UNRWA. At the same time, the latter agency has not been tasked with dealing with the return of the Palestinians.

Humanitarian law and international criminal law which concern the protection of civilians and combatants in time of war and in its aftermath do not contain a provision regarding the right of return of refugees. They do prohibit forcible deportation. However, even if the problem of refugees was caused in part by the deportation of a population from the area of Mandatory Palestine, international law does not contain any norm which requires the refugees to be allowed to return to the original country as a remedy for illegal deportation.

Chapter Three: Resolution of political and ethnic disputes in mixed societies: separation versus reintegration

An examination of precedents from around the world relating to the resolution of ethnic disputes in which the fate of many refugees is involved reveals a variety of solutions for dealing with this issue as part of the attempt to resolve or stabilize national disputes.

Until the end of the Cold War, the legitimate and even preferred solution for ethnic disputes was the forced exchange of populations. The premise was that such a solution contributed to the stabilization of the states suffering from ethnic tensions. This was the case in relation to the peace agreements between Greece and Bulgaria in 1919 and between Turkey and Greece in 1923. The Peel Commission of 1937 called for the partition of Mandatory Palestine into two states and recommended the exchange of populations in reliance on the Greek-Turkish precedent. A similar solution of the forcible transfer of populations was adopted in the Potsdam Declaration of 1945 which declared that millions of Germans would be uprooted from areas in Eastern Europe and would be transferred to Germany. Similarly, at the time of the partition of India into India and Pakistan in 1947, an exchange of populations involving millions of people was carried out with the aim of separating two disputing ethnic groups.

Thus, when the problem of the Palestinian refugees arose, the exchange of populations, particularly in cases of ethnic disputes, was regarded as a legitimate and even appropriate solution. In retrospect, it is possible to regard the absorption of hundreds of thousands of Jewish refugees from the Arab states in Israel, which took place at the same time as the escape or deportation of Palestinian refugees to the neighboring Arab states, as such an exchange of populations. The new reality which evolved could have provided a fitting infrastructure for the settlement of the dispute. However, unlike the State of Israel, the Arab states in general did not take measures to absorb the refugees and resettle them but rather encouraged the preservation of the refugee situation and the aspiration to return to the territory of the State of Israel.

Following the end of the Cold War the process of population exchange was defined as ethnic cleansing and was absolutely prohibited by international law. Return was adopted by the states—particularly by the states absorbing refugees—as the preferred solution for the problems of refugees which had been created by ethnic disputes. However, in many cases this policy encountered difficulties and sometimes was not capable of being implemented at all. This, for example, was the situation in Bosnia and Herzegovina, which had formed part of the former Yugoslavia. The war in the region gave rise to an increased movement of refugees. The Dayton Agreement of 1995 provided for their right to return to their homes. In practice, the return of these refugees has encountered numerous obstacles to this day, including ethnic hostility which on occasion has turned into severe violence. In Ethiopia, the problem of refugees was solved by their return to Ethiopia, albeit to an area largely separated geographically and ethnically from the area from which they had fled. In Cyprus the Secretary General of the UN Kofi Annan made a proposal to the populations in the two sections of the island in an effort to resolve the refugee problem which had been created about thirty years earlier. His proposal included a minimal return of refugees, so that each ethnic community could remain a majority in its own territory. This proposal shows that the international community concurs that even at this time a legitimate solution to an ethnic dispute which had resulted in many refugees will not necessarily include the extensive return of refugees to their original place of residence. The working premise in this paper is that this is the appropriate way to act in the case of the Palestinian refugees as well.

This view is supported by a recent judgment of the European Court of Human Rights which in March 2010 decided the issue of the property rights of Greek Cypriots who had lived in northern Cyprus and moved to the south of the island following the Turkish occupation. In view of the importance and relevance of this judgment to the issue of the Palestinian refugees, its main elements are set out in Annex B to this paper.

Postscript

Discussion of the return of the Palestinian refugees to the State of Israel is essential to ensure the best possible handling of this issue by the state within the framework of the political measures and agreements which are expected to be signed by Israel and the Palestinians. In view of the fact that international law does not vest the Palestinian refugees with the right to compel Israel to permit them to settle in its territory, and in view of the practice of states regarding the return of refugees in areas of ethnic dispute, it is recommended that the discussion on return be shifted from the discourse of rights to the domain of political negotiations. The State of Israel should not be tempted to recognize the right of return of the refugees by a proposed guarantee or understanding to the effect that the recognition will not result in de facto return. Israel should not be misled into thinking that recognition of the right is only a symbolic gesture aimed at acknowledging the suffering of the refugees. The alleged right may have much more than symbolic significance. It may be the right of individual refugees, and it is not at all clear that the representatives of the Palestinians are entitled to waive such rights. Indeed, the claim that this right cannot be waived is made expressly by those asserting it. Thus, any recognition of the right of return may bring mass claims to return in its wake. The sweeping solution of return is incompatible with the interests and the rights of the State of Israel as the state of the Jewish people. Of course it is important to bring an end to the suffering of the Palestinian refugees. Yet extensive return to the State of Israel of a population with cultural and social characteristics which differ so sharply from those of the Jewish population, where there is such deep hostility between the two groups, is certainly neither the proper solution to the suffering of the refugees, nor the way to achieve stability in the region.

Prof. Yaffa Zilbershats is the Deputy President of Bar-Ilan University, where she received her LLB.

Nimra Goren-Amitai holds a Masters degree in law from Bar-Ilan University, an LLB from “Sha’arei Mishpat” College and a BA in Sociology and Geography from the Hebrew University in Jerusalem.

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