Tuesday, February 14, 2017

On The Palestinian "Option" -- Not The Right -- Of Return

There are many aspects to the issue of Palestinian Arab refugees, a problem that persists nearly 70 years after the 1948 War that created the current situation. One question is whether Israel is actually obligated to allow those Arabs back in.

In other words, do the Palestinian Arabs have a legal "Right of Return"?

That is the argument made by pro-Arab advocate Hussein Ibish and Electronic Intifada founder Ali Abunimah in The Palestinian Right of Return, an article they wrote together in 2001, using many of the basic arguments still being used to make the case.

They start with establishing a right according to international law -- and immediately run into a problem.

The first source is a quote by "prominent legal scholars" Mallison and Mallison that
"[h]istorically, the right of return was so universally accepted and practiced that it was not deemed necessary to prescribe or codify it in a formal manner.
Putting aside the possibility that the absence of such a codification could be because no such absolute right exists, the quote itself is problematic.

Tracing the origins of the quote -- the authors' paper provides no links or footnotes -- we find the full quote is a claim that the Palestinian Right of Return can be based on the Magna Carta:
Historically, the right of return was so universally accepted and practi­ced that it was not deemed necessary to prescribe or codify it in a formal manner. In 1215, at a time when rights were being questioned in England, the Magna Carta was agreed to by King John. It provided that: "It shall be lawful in the future for anyone... to leave our kingdom and to return, safe and secure by land and water..."
Mallison and Mallison then go on to connect the Magna Carta's guarantee of return "in armed conflict and belligerent occupation situations" with the Geneva Convention's protection of war victims and repatriation.

Noting that Now, Arabs claim the Magna Carta provides the "right to return" Elder of Ziyon gives the full quote to fill in the gap created by the ellipses:
In the future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm. People that have been imprisoned or outlawed in accordance with the law of the land, people from a country that is at war with us, and merchants - who shall be dealt with as stated above - are excepted from this provision.
So contrary to Ibish and Abunimah, Mallison and Mallison have found a source for international law for a "universally accepted and practiced" right of return that
  • only applies to people who are citizens of the country they left
  • does not apply to members of an entity that is hostile to the country
  • does not apply to descendants (contrary to UNRWA policy).
John sealing the Magna Carta by Frank Wood, 1925
Photo: www.bridgemanimages.com. Source: The Telegraph

Another source they quote is The Universal Declaration of Human Rights, specifically Article 13(2), "Everyone has the right to leave any country, including his own, and to return to his country" and 15(2) "No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."

CAMERA, in a backgrounder on The Palestinian Claim to a “Right of Return”, notes the limitations on using the declaration as a source for the rights of refugees in international law.

Firstly, while granting its importance, The Universal Declaration of Human Rights is not legally binding -- see, for example, here. More to the point, while UDHR is the basis for
International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, not one of these 3 documents actually mentions refugees.

Secondly, the reference to  a "return to his country" would not include the Arabs who left then-Palestine, seeking entrance to Israel.

Ibish and Abunimah anticipate this argument and counter "It is a generally recognized principle of international law that when sovereignty or political control over an area changes hands, there is a concurrent transfer of responsibility for the population of that territory." -- but bring no source for their claim.

Thirdly, Article 29 of UDHR notes the rights of the citizens of the country itself, namely:
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
Obviously the influx of millions of Palestinian Arabs would raise concerns about the "rights" and "general welfare" of the citizens of Israel.

Ibish and Abunimah claim that Israel particularly has a responsibility for Arab refugees because they were expelled from the land. That is a whole topic unto itself, but the fact remains that
  • the Jewish state was involved in a war of survival not of its own choosing. It was inevitable that some of the population would be forced out because of security issues
  • it is documented that many of the Arabs who left did so not only to get out of harms way but also at the encouragement of the surrounding Arab countries.
A key part of the argument for a right of return is of course UN General Assembly Resolution 194, which directly addresses the issue of Palestinian Arab refugees. According to paragraph 11, the resolution:
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;
Key points to keep in mind:

First, General Assembly resolutions are not binding -- thus the UN is not establishing a right of return.

Second, the language of the resolution, "should" instead of "shall" again points to the lack of an actual right or legal obligation.

Lastly, left unmentioned by Ibish and Abunimah is the second paragraph of Article 11, indicating that the UN:
Instructs the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations;
The UN is not establishing an absolute right of return. Instead it is establishing the options of either return (repatriation) or resettlement in another country.

CAMERA points out that is why the same language reflecting 2 options occurs in
  • UN Resolution 393: "either by repatriation or resettlement"
  • UN Resolution 394: "whether repatriated or resettled"
  • UN Resolution 513: “reintegration either by repatriation or resettlement”
Could it be that the lack of a guaranteed right of return in Resolution 194 would explain why the Arab countries at the time voted against the resolution?

Ibish and Abunimah finish off with an argument for rights based on a comparison between the Palestinian Arabs and the situation in Kosovo -- and with the Jewish rights following Holocaust.

Without going into a discussion of their examples, one can come up with another example -- quoting Benjamin Franklin. Mitchell Bard points out that during the American Revolution, many colonists loyal to England fled to Canada. After the war, the British wanted the loyalists to be allowed to return to claim their property. Benjamin Franklin rejected this suggestion, writing:
Your ministers require that we should receive again into our bosom those who have been our bitterest enemies and restore their properties who have destroyed ours: and this while the wounds they have given us are still bleeding!
Portrait of Benjamin Franklin by Michael J. Dean

Based on continued Palestinian terrorism to this day, the comparison still holds.

Similarly, Bard notes that after WWII, 12.5, million Germans in Poland and then-Czechoslovakia were expelled, allowed to take only the possessions they could carry. World War II’s effects on Poland’s boundaries and population were considered a fait accompli that could not be undone after the war. Those expelled did not receive compensation for confiscated property and no one in Germany petitions for the right of the millions of deportees, and their children, to return to the countries from which they were expelled. This is in spite of the fact that they and their ancestors had lived in those countries for hundreds of years.

The bottom line is that while refugees in general, and Palestinian Arab refugees in particular, retain an option to return -- this is not considered an absolute right. Instead it is one option to measured against existing circumstances and the consequences of repatriation. This is established based on the resolutions of the UN itself, something that perhaps should be pointed out to UNRWA.

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