The Mythical "Palestinian Right Of Return" (Updated)

The phrase "Right of Return" is thrown around a lot in connection with the assumed legal right of Arabs, who fled then-Palestine in 1948 during the war that was declared by the Arab world against Israel, to return.

Arlene Kushner explains that there is no legal right of Arab return in accordance with international law:

As the Palestinian Arabs are screaming about "right of return" as a priority in negotiations, and as they base this right on UN General Assembly Resolution 194, it becomes important to have a clear understanding of what this is all about:

There is no such thing as the "right of return" as an internationally recognized legal right.


When the term is used, it refers to the alleged right of Arabs who fled Israel during the course of the war in 1947-48 to come back to Israel ("to their homes and villages").

UNRWA, the UN agency charged with care of the Palestinian Arab refugees, would have you believe that there is a right in this regard. There is a reference in its mandate specifically to United Nations General Assembly Resolution 194, paragraph 11, which says, in its lead sentence, "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..."

However, resolutions of the General Assembly of the UN are only recommendations -- they have no status in international law.

What is more, while the resolution states as a condition of return the desire of the refugees to live at peace with their neighbors, it is inarguably clear that the intent of the refugees with regard to Israel is not peaceful.

The full UN Resolution 194 included a call for the formation of a Conciliation Commission and attempted to seek an end to the Arab-Israeli conflict in its entirety. While it was passed by the General Assembly before the 1948 war was over, all of the Arab states voted against it because of its implicit recognition of Israel. It was only later that they returned to it, exclusively for the purpose of drawing on paragraph 11.

Note that what UNRWA refers to is just one sentence in one paragraph of the resolution. A careful reading of the full paragraph 11 makes it clear that it does not mandate an unconditional right of return..after the allusion to return, there is an instruction to the Conciliation Commission to facilitate a number of remedies, including resettlement. That the General Assembly saw resettlement as an option is made even clearer when other GA resolutions of the same time period are examined.

All other refugees in the world other than the Palestinian Arab refugees are the responsibility of the UN High Commission for Refugees, which maintains a policy of settling refugees elsewhere when repatriation is not possible. No principle has been established that requires repatriation.

Similarly, looking at the issue of the Palestinian refugees itself raises a number of questions.

In a report on UNRWA, written in March 2003 for the Israel Resource News Agency, Arlene Kushner noted the problems with the accounting of Palestinian refugees (p. 7-9)

THE REFUGEES

As of 2002, UNRWA listed more than 3.9 million registered Palestinian refugees. The derivation of this number is a matter of considerable complexity and invites careful examination.

Definition

The original resolution that established UNRWA did not define ìrefugeeîóa definition had to evolve within the agency. The definition currently utilized by UNRWA was established in 1994. It says refugees are:

"persons whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflictî and their descendants. UNRWA's services are available to all those who meet this definition, who are registered with the Agency, and who need assistance.

This is a definition with uniquely broad criteria, applied to no other refugees:

1) The definition in the 1951 UN Convention Relating to the Status of Refugees, which is the standard that has prevailed for over fifty years, includes, "...owing to well-founded fear of being persecuted ... is outside his country of nationality...or former habitual residence..." The UNRWA definition makes no mention of persecution.

2) The 1951 UN Convention Relating to the Status of Refugees makes no mention of descendants. In a position without precedent in international law, UNRWAís definition includes descendants (through patrilineal descent), making the status of refugee one that can be applied in perpetuity.

3) The 1951 UN Convention Relating to the Status of Refugees exempts from refugee status a person who "has acquired a new nationality, and enjoys the protection of the country of his new nationality." The UNRWA definition makes no mention of newly acquired nationality. Those who have such nationality (e.g., Palestinian refugees living in Jordan and possessing full
Jordanian citizenship) are still classified as refugees.

In addition, it should be noted that all Palestinian Arabs who lived in what became Israel
for as little as two years prior to the war in 1948 and then fled are counted as refugees.

This is significant because of a prevailing PLO position that represents Israel as having been the ancestral home of the refugees: According to article 32 of the constitution proposed in 2001 by the PLO, "The right of the Palestinian refugee to return to his home and the original home of his ancestors is a natural rightÖî (emphasis added) 6

UNRWA's position is that the number of registered refugees is not intended to be exhaustive from the perspective of political status. It is considered to be an operational number, a number representing those to be assisted by UNRWA by virtue of need and residence within the specific geographic area in which the agency operates. 8

However, a 1994 change in the definition established shortly after UNRWAís founding appears to have added a political dimension. This newer definition, which is the one used today, dropped an earlier criterion of place of refuge in a country where UNRWA functions; it thus opened UNRWAís registration to Palestinians who would have been disqualified prior to 1994. The previous definition read:

"A Palestine refugee is a person whose normal residence was in Palestine for a minimum of two years preceding the conflict in 1948, and who, as a result of this conflict, lost his home and his means of livelihood and took refuge in 1948 in one of the countries where UNRWA provides relief. Refugees within this definition and the direct descendents of such refugees are eligible for Agency assistance if they are registered with UNRWA; living in the area of UNRWA operations; and in need." (emphasis added)

According to Ingrid Bassner Jaradat, Director of the Palestinian organization BADIL--Resource Center for Palestinian Residency and Refugee Rights, this change was implemented with the expectation that UNRWA's registration would one day serve as a major resource for determining refugee status.7

The terms utilized by UNRWA, when read carefully, seem to indicate that registration is
independent of need, as well.8

A central question to be asked in the course of this report, then, is whether UNRWAówhich identifies itself as a humanitarian agencyómaintains on its registry only those refugees who have need, or whether UNRWA defined a refugee population, and then proceeded to register its members and provide them with services.

It is pertinent that the Commission-General of UNRWA in 1982 acknowledged that "The refugees tend to view the relief...not as something they have to prove their eligibility for, but rather as a right..."9

Inflated Numbers

Beyond the question of definition, lies convincing evidence that numbers have been considerably inflated through misrepresentation.

UNRWA itself recognized the problem of false registrants very early, and in some instances it would seem that representatives of the agency were conscious of the fact that they were accepting such registrants.

In 1950, the UNWRA director reported, "...a large group of indigent people totaling over 100,000 could not be called refugees, butÖhave lost their means of livelihood because of
the war...The Agency felt their need was even more acute than that of the refugees..."10

In its Annual Report of the Director, July 1951-June 1952, there was an acknowledgement that it was difficult to separate ìordinarily nomadic Bedouins andÖ unemployed or indigent local residentsî from genuine refugees, and that ìit cannot be doubted that in many cases individuals who could not qualify as being bona fide refugees are in fact on the relief rolls."

The International Committee of the Red Cross, which preceded UNRWA in its work in the field, in its final report to the United Nations stated, "Finally, thousands of individuals, destitute persons and others, have tried to evade the controls by registering themselves in more than one region, or under several names, by increasing the number of family members, or by registering false births and hiding deaths."11

The factsóthat many of those originally registered were not truly refugees, that their multiplying descendants added even larger numbers to the register, and that some refugees have a predilection for falsifying data regarding births and deathsómake it eminently clear that the number of legitimate registrants is considerably smaller than the current ìoperational numberî of over 3.9 million. What is more, the liberalization of the UNRWA definition of refugee and its precise wording call into serious question whether the number is truly ìoperationalî at all.

UPDATE: Check out The Lies of Saeb Erekat which also rebuts these claims made by the Palestinians

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