- Palestinian right of return
The Palestinian right of return (Arabic: حق العودة "Ḥaqq al-ʿawda"; Hebrew: זכות השיבה "zkhut hashivah") is a political position or principle asserting that
Palestinian refugees, both first-generation refugees and their descendants, have a right to return to the homes and villages they left or which they were forced to leave in Palestine (currently Israeland Palestinian territories) as result of the 1948 Palestine warand the 1967 Six-Day war.
Proponents of the
right of returnhold that it is an inalienable and basic human right, whose applicability both generally and specific to the Palestinians is protected under international law [http://www.presstv.ir/detail.aspx?id=6946§ionid=351020202] [http://www.imemc.org/article/20936] [http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2002/04/28/MN222422.DTL] This view holds that those who opt not to return or for whom return is not feasible, should receive compensation in lieu.
Israel's government does not view the admission of Palestinian refugees to Israel as a right, but rather as a political claim to be resolved as part of a final peace deal. [http://www.mfa.gov.il/mfa/peace%20process/guide%20to%20the%20peace%20process/do%20palestinian%20refugees%20have%20a%20right%20to%20return%20to] [http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArticle%2FShowFull&cid=1192380561934] Jewish Israelis from the mainstream political parties often view the acceptance of a "right of return" as "national suicide," because if every Palestinian refugee were admitted to Israel, the total population would be nearly 40% Arab and likely to become majority Palestinian. [http://www.jewishvirtuallibrary.org/jsource/talking/2_return.html] The Israeli government believes that the right of return applies, if at all, only to those areas in the West Bank and Gaza Strip that become a Palestinian state. [ [http://www.nytimes.com/2007/07/08/magazine/08livni-t.html?pagewanted=2 Tzipi Livni - Israel - Jews - Palestinians - Gaza - West Bank - Ehud Olmert - Kadima - Likud - New York Times ] ] Those who opt not to live in the Palestinian state could instead receive compensation (possibly while compensating the Jewish refugees from the Arab countries as well).
Other disputed aspects include the issue of the territorial unit to which Palestinian
self-determinationwould attach, the context (whether primarily humanitarianor political) within which the right is being advanced, and the generalizability of the principles advocated or established to other current and former refugee situations. [Pomerance, 1982, p. 22.]
The number of displaced Palestinians from the 1948 war is approximated at 700,000 and most sources tend to agree that 280,000 to 350,000 became refugees during the Six-Day War (1967).Fact|date=August 2008 Approximately 120,000-170,000 among the 1967 refugees are believed to have also been refugees from the 1948 war, fleeing a second time. [ [http://books.google.com/books?id=fGDPWvyPcDMC&pg=PA17&dq=donna+arzt+280000&sig=gyiHlwhDz7z8D4nFiQWRuXVvUoY 'Refugees Into Citizens: Palestinians and the End of the Arab-Israeli Conflict' pg.17] By Donna E. Arzt, ISBN 087609194X] Today, the estimated number of Palestinian refugees, including both first-generation refugees and their descendants, exceeds four million. [http://www.usatoday.com/news/world/2003-05-07-mideast_x.htm 'Palestinian premier rejects Israel's condition for talks.'] ,
USA Today May 7 2003.]
The issue of the right of return has been of great importance to Palestinians since 1948, when the refugee problem was created.cite web|title=The Palestinian Diaspora|publisher=
Le Monde Diplomatique|accessdate=2007-09-05|url=http://mondediplo.com/focus/mideast/a2335]
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. [ [http://domino.un.org/pdfs/AAC25IS33.pdf UN Doc. IS/33 2 August 1948] Text of a statement made by Moshe Sharett on 1 August 1948]
The first formal move towards the recognition of a right of return was in UN General Assembly Resolution 194 passed on
11 December 1948which 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.
UN General Assembly Resolution 3236, passed on
22 November 1974declared the right of return to be an " inalienable right".
However, General Assembly resolutions are not binding in international law, and the
Oslo Agreementsdeliberately omit any mention of these resolutions. [cite news
title= Right of return: Palestinian dream
The right of return was defined as the "foremost of Palestinian rights" at the 12th
Palestine National Councilmeeting 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. [Schulz, 2003, p. 141.]
1948 Palestinian exodus
Palestinian refugeeproblem started during the 1948 Palestine War, when between 700,000 and 750,000 Arab Palestinians fled or were expelled from their homes and the area that became Israel. They settled in refugee camps in the West Bank, Transjordan, Lebanon, Syria and in the Gaza Strip.
September 16, 1948, the United Nations Mediator in Palestineprepared a progress report for the General Assembly on the state of the war. It estimated the number of Palestinian refugees at that time at around 360,000.cite web | title = Background Paper No. 47 | url = http://domino.un.org/UNISPAL.NSF/1ce874ab1832a53e852570bb006dfaf6/2248af9a92b498718525694b007239c6!OpenDocument | accessdate = 2007-03-17 | date = April 20 1949| publisher = The United Nations] After the war the UN estimated the number of refugees outside Israel at 711,000.cite web | title = General Progress Report and Supplementary Report of the United Nations Conciliation Commission for Palestine] , Covering the Period from 11 December 1949to 23 October 1950| url = http://domino.un.org/unispal.nsf/9a798adbf322aff38525617b006d88d7/93037e3b939746de8525610200567883!OpenDocument | date = October 23 1950| accessdate = 2007-06-14 | publisher = The United Nations] 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.cite web | title = Final Report of the United Nations Economic Survey Mission for the Middle East | url = http://domino.un.org/pdfs/AAC256Part1.pdf | date = December 28 1949| accessdate = 2007-03-16 | publisher = The United Nations|format=PDF] It is the position of most Arab governments not to grant citizenship to the descendants of Palestinian refugees born within their borders, even though many have known no other home.
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 the result of a plan designed before or during the war by Zionist leaders, or whether it was an unintended result of the war.
Benny Morris claims there were four waves. From December 1947 to March 1948, around 100,000 Palestinians left. Among them were many from the higher and middle classes from the cities, who left voluntarily, expecting to return when the situation had calmed down. [Benny Morris (2003), pp.138-139.] 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 percent of their Arab inhabitants. [Benny Morris (2003), p.262] Some expulsions arose, particularly along the Tel-Aviv - Jerusalem road [Benny Morris (2003), pp.233-240.] and in Eastern Galilea. [Benny Morris (2003), pp.248-252.] After the truce of June, about 100,000 Palestinians became refugees. [Benny Morris (2003), p.448.] About 50,000 inhabitants of Lydda and Ramle were expelled towards Ramallah by Israeli forces during
Operation Danny, [Benny Morris (2003), pp.423-436.] and most others during clearing operations performed by the IDF on its rear areas. [Benny Morris (2003), p.438.] During Operation Dekel, the Arabs of Nazareth and South Galilee could remain in their homes. [Benny Morris (2003), pp.415-423.] They later formed the core of the Arab Israelis. From October to November 1948, the IDF launched Operation Yoavto chase Egyptian forces from the Negev and Operation Hiramto chase the Arab Liberation Armyfrom 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. [Benny Morris (2003), p.492.] During Operation Hiram, at least nine massacres of Arabs were performed by IDF soldiers. [ Benny Morris, "Righteous Victims" - First Arab-Israeli War - Operation Yoav.] 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. [Benny Morris (2003), p.538]
While the specifics of Morris' interpretations have been contested from both sides, many of his arguments, and those of the other Israeli "New Historians," have become widely accepted within Israeli academic and public circles. [Shlaim, Avi. (1995) The Debate about 1948. "International Journal of Middle East Studies", 27:3, 287-304.]
During the Palestinian exodus, Israeli leaders decided against the return of the refugees. During her visit at Haïfa on
May 1 1948, Golda Meirdeclared: "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] ". [Benny Morris (2003), p.311] A group consisting of "local authorities, the kibbutz movements, the settlement departments of the National institutions, Haganah commanders and influential figures such as Yosef Weitzand Ezra Daninstarted lobbying against repatriation. [Benny Morris (2003), p.311.] A "Transfer Committee" and a policy of "faits accomplis" were set up to prevent a refugee return. [Benny Morris (2003), p.312.] In July, it had become an official policy: [Benny Morris (2003), p.334.] "Absentees' property" was managed by Israeli government and numerous Palestinian villages were levelled.
1967 Palestinian exodus
Six-Day Waranother Palestinian exodus occurred. An estimated 280,000 to 350,000 [UN figures, see Bowker, p. 81.] Palestinians fled or were expelled ["Altogether some 200,000-300,000 Arabs fled or were driven from the West Bank and Gaza Strip...during the war and in the weeks immediately thereafter. Another eighty to ninety thousand fled or were driven from the Golan Heights." - Morris, Benny (2001): "Righteous Victims", Vintage Books, ISBN 0679744754, page 327.] from the West Bank, the Gaza Stripand the Golan Heightsas 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. [ [http://books.google.com/books?pg=PA81&dq=Robert+Bowker+Palestinian+Refugees+280,000&sig=ZYGy67XfbUwaur4OOR6ebBDaMa8&id=LOYtfyJFBIQC&output=html&hl=en 'Palestinian Refugees: Mythology, Identity, and the Search for Peace' pg.81] By Robert Bowker ISBN 1588262022]
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.cite web|title=The Palestinian Diaspora|publisher= Le Monde Diplomatique|accessdate=2007-09-05|url=http://mondediplo.com/focus/mideast/a2335] It is said that United Nations UN General Assembly Resolution 194[http://domino.un.org/unispal.nsf/0/c758572b78d1cd0085256bcf0077e51a?OpenDocument] which was passed on December 11 1948recognized the right for the first time.
Resolution 194 deals with the situation in the region of
Palestineat the time, establishing and defining the role of the United Nations Conciliation Commissionas an organization to facilitate peace in the region. Unlike Security Council Resolutions under Chapter VII of the United Nations Charter, UN General Assembly Resolutions have only a recommendatory character.
Article 11 - Palestinian Refugees
The main Article of Resolution 194, 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.
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". [http://web.israelinsider.com/Views/2654.htm] 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. [ [http://domino.un.org/unispal.nsf/9a798adbf322aff38525617b006d88d7/93037e3b939746de8525610200567883!OpenDocument/ Progress Report of the Conciliations Commission, 23 October 1950, III:9] ]
Another issue is the definition of who is a refugee to which the resolution applies. The term is undefined. If one were to apply the
UNHCRdefinition, established by the 1951 Convention Relating to the Status of Refugees, the descendents of a refugee would not have the rights of the original refugee. (see Palestinian refugee.)
Interestingly, one may compare the present positions of the opposing sides today to those at the time Resolution 194 was being voted on: Israel voted in favour of the resolution, while all
Arab Leaguemembers Egypt, Iraq, Lebanon, Saudi Arabia, Syria, and Yemenvoted against the resolution [http://domino.un.org/UNISPAL.NSF/9a798adbf322aff38525617b006d88d7/2dac0ed54bcd6af68525629f00718b98!OpenDocument] .
cope of the issue
The number of Palestinians who fled or were expelled from Israel following its creation, along with their descendants, now stands at around four million. [“ Palestinian premier rejects Israel's condition for talks.” USA Today.
May 7 2003. http://www.usatoday.com/news/world/2003-05-07-mideast_x.htm] ]
Israeli peace campis generally open to compromise on the issue, by means such as the monetary reparationsand family reunification initiatives offered by Ehud Barakat the Camp David 2000 summit. [ [http://www.arts.mcgill.ca/mepp/new_prrn/background/background_resolving.htm "Resolving the Refugee Question: Key Issues."] "McGill Facutly of Arts". 16 June 2008.] However, the majority of Israelis find a comprehensive right of return for Palestinian refugees to be unacceptable. They base their position on several arguments:
*Israeli official sources, foreign press, and officials present at the time, and historians such as
Joseph Schechtmanhave long claimed that the 1948 refugee crisis was instigated by the invading Arab armies, who ordered Palestinian civilians to evacuate the battle zone. Opponents of the right of return, such as Efraim Karshsay that Israel is therefore not obligated to compensate Palestinians or allow them to return.”Rights and Wrongs.” Efraim Karsh. Australia/Israel & Jewish Affairs Council. June 2001. http://www.aijac.org.au/review/2001/266/essay266.html.] Israel officially denies any responsibility for the Palestinian exodus, stating that their flight was caused by the Arab invasion. [ [http://www.nytimes.com/2007/03/31/world/middleeast/31mideast.html Olmert Rejects Right of Return for Palestinians] , "The New York Times", 31 March 2007] However, historians such as Benny Morris, Erskine Childers, and Walid Khalidistate 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. [Morris (2003), p.589] 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. [Quigley, John. "The Right of Displaced Palestinians to Return to Home Areas in Israel." Ed. Karmi, Ghada and Eugene Cotran. "The Palestinian Exodus, 1948-1998". London: Garnet & Ithaca, 1999. p. 151-170]
*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
fedayeento 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. [ [http://www.nytimes.com/2007/03/31/world/middleeast/31mideast.html Olmert Rejects Right of Return for Palestinians] , "The New York Times", 31 March 2007] This point, however, is a matter of some contention as several Jewish militia actions were considered to provoke and sometimes force Palestinian-Arabs to leave Israel.Tessler, Mark. A "History of the Israeli–Palestinian Conﬂict" (Indiana University Press, 1994), ISBN 0-253-20873-4] Still, such cases were relatively rare, and the vast majority of Palestinians fled of their own accord. Since most Palestinians chose their status as refugees themselves, there is also an argument that Israel is therefore absolved of responsibility.”Rights and Wrongs.” Efraim Karsh. Australia/Israel & Jewish Affairs Council. June 2001. http://www.aijac.org.au/review/2001/266/essay266.html.] A 1952 memorandum submitted to the League of Arab States by the Higher Arab Committee reveals that Arab states officially agreed to take responsibility for these refugees at the height of the Palestinian exodus. However, only until such time as Israel would be destroyed::
Arab leaders and their ministries in Arab capitals ... declared that they welcomed the immigration of Palestinian Arabs into the Arab countries until they saved Palestine.From a 1952 memorandum submitted to the League of Arab States by the Higher Arab Committee; quoted in Joseph B. Schechtman, "The Refugees in the World" (New York: Barnes, 1963), p. 197.]
*There is no formal mechanism in international law to demand repatriation of Palestinian refugees and their descendants. No international legislation, UN resolutions or agreements between Israel and the Palestinians require this.”Legal Aspects of the Palestinian Refugee Question.” Ruth Lapidoth. Jerusalem Center for Public Affairs. http://www.jcpa.org/jl/vp485.htm.]
*Historical legal precedent from the Middle East supports this contention. Since 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—to no objection on the part of Arab leaders—a precedent has been set whereby it is the responsibility of the nation which accepts the refugees to assimilate them. [http://wais.stanford.edu/Israel/israel_andthepalestinerightofreturn51603.html ISRAEL and the Palestine right of return ] ]
*If all or a large majority of Palestinian refugees exercised their right of return, it would make Arabs the majority within Israel. This would essentially end Israel's existence as a Jewish state.
Palestinian and international authors have justified the right of return of the Palestinian refugees on several grounds: [McGeown, Kate and Martin Asser. [http://news.bbc.co.uk/1/hi/in_depth/middle_east/2001/israel_and_the_palestinians/issues/1099279.stm "Right of return: Palestinian dream?"] "BBC News". 18 February 2003. 15 July 2007.] [Flapan, Simha (1987):"The Palestinian Exodus of 1948". Journal of Palestine Studies, Vol. 16, No. 4. (Summer, 1987), pp. 3-26.] [Khalidi, Rashid I.(1992): "Observations on the Right of Return". Journal of Palestine Studies, Vol. 21, No. 2. (Winter, 1992), pp. 29-40.]
*Several authors included in the broader
New Historiansassert that the Palestinian refugees were chased out or expelled by the actions of the Haganah, Lehiand Irgun. [Interview to Avi Shlaim in Haaretz's [http://www.editriceilponte.org/_files/HaaretzInterviewEnglish.pdf supplement] ] 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:
"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... [Kapeliouk, Amnon (1987): New Light on the Israeli-Arab Conflict and the Refugee Problem and Its Origins, p.21. Journal of Palestine Studies, Vol. 16, No. 3. (Spring, 1987), pp. 16-24.] [Review by Dominique Vidal in [http://mondediplo.com/1997/12/palestine Le Monde Diplomatique] ] [Morris, Benny (1986): "What Happened in History". Journal of Palestine Studies, Vol. 15, No. 4. (Summer, 1986), pp. 181-182.]
*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. [See for example, Masalha, Nur-eldeen (1988):On Recent Hebrew and Israeli Sources for the Palestinian Exodus, 1947-49. Journal of Palestine Studies, Vol. 18, No. 1, Special Issue: Palestine 1948. (Autumn, 1988), pp. 121-137. and Childers, Irskine (1961): "The Other Exodus". The Spectator (London), May 12 1961.]
Law of Returnthat grants citizenship to any Jew from anywhere in the world 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. [Al-Awda web site on [http://www.al-awda.org/pou.html points of unity] ] [ [http://www.samsonblinded.org/said_end_peace_process/66palestinians_claim_special_rights.htm Edward Said] cited on the issue of the Palestinian right of return and Israeli Law of Return in www.samsonblinded.org] [The Arab Association of Human Rights criticises the Israeli Law of Return as being [http://www.arabhra.org/factsheets/factsheet1.htm discriminatory towards arabs] in www.arabhra.org] [ [http://www.antiwar.com/cook/?articleid=10029 Jonathan Cook] considers the support for the Israeli Law of Return together with the opposition towards Palestinian Right of Return as a way that "maintains the act of ethnic cleansing that dispossessed the Palestinian refugees more than half a century ago."]
*The strongest legal basis on the issue is [http://domino.un.org/unispal.nsf/361eea1cc08301c485256cf600606959/c758572b78d1cd0085256bcf0077e51a!OpenDocument UN Resolution 194] , adopted in 1948. It states 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." [http://domino.un.org/UNISPAL.NSF/a06f2943c226015c85256c40005d359c/025974039acfb171852560de00548bbe!OpenDocument UN Resolution 3236] "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," however, Resolution 242 does not specify that the "just settlement" must or should be in the form of a literal Palestinian right of return. [Global Policy Forum on [http://www.globalpolicy.org/security/issues/israel-palestine/returnindex.htm Palestinians' right of return] ] [Radley, K.René (1978): "The Palestinian Refugees: The Right to Return in International Law". The American Journal of International Law, Vol. 72, No. 3 (Jul., 1978), pp. 586-614.]
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). [ [http://en.wikisource.org/wiki/Universal_Declaration_of_Human_Rights#Article_13 Text at WikiSource] .] Bowker, 2003, p. 98.]
Geneva Conventionsof 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 ..." -
UN General Assembly Resolution 194(11 December 1948) United Nations General Assembly Resolution 194. United Nations General Assembly. December 11, 1948. [http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/043/65/IMG/NR004365.pdf?OpenElement] .]
* [http://domino.un.org/UNISPAL.NSF/a06f2943c226015c85256c40005d359c/025974039acfb171852560de00548bbe!OpenDocument UN 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". [>Radley, K.René (1978): "The Palestinian Refugees: The Right to Return in International Law". The American Journal of International Law, Vol. 72, No. 3 (Jul., 1978), pp. 586-614.]
*Resolution 242 from the UN affirms the necessity for "achieving a just settlement of the refugee problem."
*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. [“The Palestinian Refugees’ Right of Return Under International Law,” by Wadie Said in www.palestinecenter.org [http://www.palestinecenter.org/cpap/pubs/20000406ib.html] ] .
*"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). [ [http://en.wikisource.org/wiki/International_Covenant_on_Civil_and_Political_Rights#Article_12 Text at WikiSource] .]
*The right of return would not necessarily threaten Israel's Jewish identity; surveys have shown that most (90% of) Palestinians would not exercise that right even if it were offered.Fact|date=January 2008
According to Akram [Akram, Susan M. (2002): "Palestinian Refugees and Their Legal Status: Rights, Politics, and Implications fora Just Solution". Journal of Palestine Studies, Vol. 31, No. 3. (Spring, 2002), pp. 36-51.] although the status of Palestinian nationals/citizens after the creation of the State of Israel has been much debated, established principles of state succession, [See further Brownlie, Ian (1990): "Principlesof Public International Law". 4th ed. (New York Clarendon Press, 1990), p. 661] human rights and humanitarian 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 human rights have confirmed illegality of denationalization of Palestinians 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 UNTS173, 19 December 1966, and Article 5.d.ii of the CERD, 660 UNTS221, 7 March 1966. According to Akram, humanitarian law is breached because its principles prohibit transferring civilian populationsunder 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 " [http://www.unhchr.ch/html/menu3/b/92.htm Geneva Convention for the Protection of Civilian Persons in Time of War] (Geneva IV) of 1949," 75 UNTS31, 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 UNTS123, 22 November 1969; Article 12.2 of the African Charter on Human and Peoples' Rights, 1981, 21 ILM59, 1982; and Article 3.2 of Protocol 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS221, 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[http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/256/69/IMG/NR025669.pdf?OpenElement 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, [http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/349/37/IMG/NR034937.pdf?OpenElement UNGA Res. 2672C] ,UN GAOR, 25th Sess., Supp. No. 28 at 36, UN Doc. A/8028; [http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/738/12/IMG/NR073812.pdf?OpenElement UNGA Res. 3210] ,UN GAOR, 24th Sess., Supp. No. 30 at 25, UN Doc. A/8730, 1970; [http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/738/38/IMG/NR073838.pdf?OpenElement 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. Israel agreed under the terms of its admittance into the UN to abide by the terms of this resolution. Therefore, some have made the case that Israel is bound under international law to accept a full Palestinian right of return.cite web | url = http://www.globalpolicy.org/security/issues/israel-palestine/return/2001/0808hrb.htm | title = The Palestinians’ Right of Return | author1 = Hussein Ibish | author2 = Ali Abunimah | date = Winter, 2001 | accessdate = 2007-05-21 | publisher = Global Policy Forum]
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.cite web | title = Affirmation of the Palestinian Right of Return | url = http://globalpolicy.igc.org/security/issues/israel-palestine/return/2001/0808dclr.htm | source = Global Policy Forum | date = March 15, 2007| accessdate = 2007-06-15]
Some also regard as a massive injustice the fact that
Jews are allowed to emigrate 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 many generations are forbidden from returning. ["Points of Unity." Al-Awda: The Palestine Right to Return Coalition [http://www.al-awda.org/pou.html] .]
Global Policy Forumasserts 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 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 Eastand North Africabetween 1945 and 1956, with property losses of $1 billion. [ [http://www.israel-wat.com/jewishrefugees_eng.htm#a2 850,000 fled Arab states: $1-billion in property confiscated, Jewish study finds] ] 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 communityhad accepted this migration of Jews as " fait accompli", and thereby set legal precedent in the region against a right of return.Howard Sachar. "A History of Israel from the Rise of Zionism to Our Time". New York. 1976. pp. 440-1. ISBN 0-394-48564-5.] [http://wais.stanford.edu/Israel/israel_andthepalestinerightofreturn51603.html ISRAEL and the Palestine right of return ] ] Former Israeli Foreign Minister Moshe Sharettasserted that the migration of refugees between Israel and the Arab Worldessentially constituted a population exchange. He argued that precedent, such as the exchange of 2.5 million people between Polandand the Soviet Union, as well as the 13 million Hindusand 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 Czechoslovakiafollowing World War II. In Sharett's view, Israel was singled out as the exception to international law.Howard Sachar. "A History of Israel from the Rise of Zionism to Our Time". New York. 1976. pp. 440-1. ISBN 0-394-48564-5.]
Amos Ozis 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."cite web | title = Doves should re-examine their perch | url = http://www.guardian.co.uk/comment/story/0,,417958,00.html | source = The Guardian | date = 2007-01-01 | accessdate = 2007-05-21 | first = Amos | last = Oz]
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.cite web | title = Final Report of the United Nations Economic Survey Mission for the Middle East | url = http://domino.un.org/pdfs/AAC256Part1.pdf | date = 1949-12-28| accessdate = 2007-03-16 | publisher = The United Nations|format=PDF] cite web | title = Horowitz's Notepad: Why Israel Is the Victim and the Arabs Are the Indefensible Aggressors in the Middle East | url = http://web.ics.purdue.edu/~conreys/106/106fall04/assignments/Horowitz-israel.doc | last = Horowitz| first = David | date = 2002-01-11 | accessdate = 2007-03-16 | publisher = Purdue University|format=DOC]
Efraim Karshasserts 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. Efraim Karsh. [http://www.aijac.org.au/review/2001/266/essay266.html Rights and Wrongs] , Australia/Israel & Jewish Affairs Council, June 2001.]
Ruth Lapidoth from the
Jerusalem Center for Public Affairshas 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".Ruth Lapidoth. [http://www.jcpa.org/jl/vp485.htm Legal Aspects of the Palestinian Refugee Question] , Jerusalem Center for Public Affairs, September 1, 2002.]
Lapidoth's essay also references a statement made by Stig Jagerskiold 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.
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 in the
al-Nakba("the catastrophe") of 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 cleansingduring the 1948 Arab-Israeli War, and cite massacres such as Deir Yassin.
List of massacres committed during the 1948 Arab-Israeli war"
The majority of Israelis find a literal right of return for Palestinian refugees to be unacceptable, pointing out that allowing such an influx of Palestinians would eventually cause Israel's Jewish population to become a minority, thus undermining Israel's status as a
Israel's first offer of any compensation for the property which had been confiscated from the 1948 Palestinian refugees only occurred 52 years later, during the
2000 Camp David Summit, and it consisted of allowing other countries to provide nearly all of the compensation. During this time, most of the original refugees had died without any compensation.
The Palestinian right of return had been one of the issues whose solution had been deferred until the "final status agreement" in the
Oslo Accordsof 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 Intifadaand the continuing violence.
Israel demanded that Arafat forever abandon the right of return for the
Palestinian refugeesduring the 2000 Camp David Summit, and Arafat's refusal has been cited as one of the leading causes of the summit's failure.
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 by [http://www.jpost.com/servlet/Satellite?cid=1205420712985&pagename=JPost%2FJPArticle%2FShowFull] There is no evidence that this occurred.
U.S. government policy, 2007
Make clear that the
United States Governmentsupports 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 Gulfmust 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. [ [http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:sr85is.txt.pdf S. Res. 85] ]
U.S. President George W. Bush
July 16 2007, US President George W. Bushaffirmed 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." [ [http://www.whitehouse.gov/news/releases/2007/07/20070716-7.html "President Bush Discusses the Middle East."] "The White House". 16 July 2007. 21 July 2007.] This has been interpreted as "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." [Oren, Michael B. [http://online.wsj.com/article/SB118472113474569770.html "The Bush Doctrine Lives."] "WSJ.com". 18 July 2007. 21 July 2007. Subscription required.]
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.
Mark Etheridge, the American representative to the United Nations Conciliation Commission(UNCC), suggested that Israel agree to grant full citizenshipto 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.Joseph B. Schechtman, "The Refugees in the World" (New York: Barnes, 1963), p. 212-3.]
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 Sharettdeclared: "The context in which that offer was made has disappeared, and Israel is no longer bound by that offer."Joseph B. Schechtman, "The Refugees in the World" (New York: Barnes, 1963), p. 212-3.]
August 23, 1949, the United States sent Gordon R. Clapp, chairmanof 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. As Clapp would explain on February 16, 1950in 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.Joseph B. Schechtman, "The Refugees in the World" (New York: Barnes, 1963), p. 214-5.]
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.Joseph B. Schechtman, "The Refugees in the World" (New York: Barnes, 1963), p. 219-22.] This resolution allocated "no less than the equivalent of $30,000,000" to the economic integration of Palestinian refugees in the Near East, "without prejudice to the provisions of paragraph 11 of General Assembly Resolution 194."PDFlink| [http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/059/91/IMG/NR005991.pdf?OpenElement United Nations General Assembly Resolution 393] , The United Nations General Assembly, December 2, 1950. Accessed May 27 2007.] 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.Joseph B. Schechtman, "The Refugees in the World" (New York: Barnes, 1963), p. 219-22.]
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, Syriaand Egyptall 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 R. 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."Joseph B. Schechtman, "The Refugees in the World" (New York: Barnes, 1963), p. 219-22.]
In 2002, former representative of the
Palestinian Liberation Organization Sari Nusseibehproposed 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.cite web | url = http://news.bbc.co.uk/2/hi/middle_east/3629923.stm | title = Right of return: Palestinian dream | last = Sharp | first = Heather | publisher = British Broadcasting Corporation | date = April 15, 2004| accessdate = 2007-05-24]
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.cite web | url = http://news.bbc.co.uk/2/hi/middle_east/3629923.stm | title = Right of return: Palestinian dream | last = Sharp | first = Heather | publisher = British Broadcasting Corporation | date = April 15, 2004| accessdate = 2007-05-24]
* Israeli Law of Return
Right of return
UN General Assembly Resolution 194
*Bowker, Robert (2003). "Palestinian Refugees: Mythology, Identity, and the Search for Peace". Lynne Rienner Publishers. ISBN 1588262022
*Gelber, Yoav (2006). "Palestine 1948". Sussex Academic Press. ISBN 1-84519-075-0.
*Khalidi, Walid (1959). Why Did the Palestinians Leave? "Middle East Forum", July 1959. Reprinted as 'Why Did the Palestinians Leave Revisited', 2005, "Journal of Palestine Studies", XXXIV, No. 2., pp. 42-54.
*Morris, Benny (2003). "The Birth of the Palestinian Refugee Problem Revisited". Cambridge: Cambridge University Press. ISBN 0521009677
*Pomerance, Michla (1982). "Self-Determination in Law and Practice: The New Doctrine in the United States". Martinus Nijhoff Publishers. ISBN 9024725941
*Schulz, Helena Lindholm (2003). "The Palestinian Diaspora". London: Routledge. ISBN 0415268206
* [http://www.al-awda.org/ Al Awda] , The Palestinian Right to Return Coalition.
* [http://news.bbc.co.uk/1/hi/in_depth/middle_east/2001/israel_and_the_palestinians/issues/1099279.stm Right of return: Palestinian dream?] , BBC News Online.
* [http://video.google.com/videoplay?docid=-4586199048283400362&hl=en VIDEO: Muhammad Jaradat and Eitan Bronstein - "Acknowledging the Past; Imagining the Future: Israelis and Palestinians on 1948 and the Right of Return"] , April 1, 2008, Portland, Oregon. Eitan Bronstein of the Jewish Israeli group, Zochrot, and Muhammad Jaradat of the Badil Resource Center for Palestinian Residency and Refugees' Rights.
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