Right of return and law of return

Page last updated 26 Oct 2015

Introduction

At least 700,000 Palestinians were driven out or fled during the war of 1947-48. On 11 Dec 1948 the UN General Assembly adopted Resolution 194, which, among other things, in clause 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.”

Palestinians have always interpreted this, strengthened by the 1948 Universal Declaration of Human Rights and the 1951 Convention Relating to the Status of Refugees, as establishing their right of return. Israel dragged its feet, arguing that under 194 it was up to Israel to determine which specific refugees “wish to live at peace with their neighbors” i.e. giving it an effective veto over who could exercise the right. It also stressed the wording was “earliest practicable date” for return, rather than the “earliest possible date”. Unsurprisingly, Israel was able to ensure that it never became practicable and to ignore the Resolution.

Today the argument generally takes the form of saying that any such return would be an existential threat, destroying Israel as a Jewish state; that it would result in the injustice of Israelis being expelled from what have become their homes in the long period since 1948 (or 1967 when around 300,000 more Palestinians were displaced); that it would destroy Israel’s security and stability; and that any Palestinian loss of property and rights can in some way be set against the loss of property and rights of Jews from Arab lands who left (whether pushed out or encouraged by Zionists to leave). In other words, Israel is not interested in addressing the issue at all.

It was not always so. During the latter phases of the Oslo process negotiations in 2000 and 2001 (at Taba), some considerable progress was made at least in finding a common language in which the issues could be discussed (see some of the links below). But it was then, and remains, one of the most intractable issues to resolve, evoking as it does questions of rights, justice, morality – and fear – in equal measure.

It is exacerbated further by the fact that any Jew, anywhere in the world, has a “right of return” to Israel even if s/he has no connection whatsoever (other than an imagined one, dating from some two millenia ago and more). In 1950 the Israeli Knesset passed the Law of Return, which begins, “Every Jew has the right to come to this country as an oleh [someone who “makes aliyah” i.e. literally “rises up”, i.e. someone who immigrates]”. This is not an immigration law that confers upon Jews the right to be citizens of Israel; rather it recognizes their natural right to be citizens, inseparable from the view of Israel as the state of the Jewish people who are its actual and potential citizens. It inherently discriminates against Palestinians, even those who are citizens of Israel, as Jeremiah Haber discusses (see below).

This ideological glue, so important to the Israeli national narrative, is based on the belief that Jews were exiled from their national home, expressed forcefully in The Declaration on the Establishment of the State of Israel in 1948: “After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom”.

This “exile” justifies the notion of Jewish “return”. So it is rather shocking to find that the story that the Jews were exiled by the Romans after 70CE and/or 135CE is just that – a story, a myth, not taken seriously by historians.

Material below is organised under these headings:

A: The legal rights of the Palestinian Refugees
B: Resources and background information
C: The law of Return

A: The legal rights of the Palestinian Refugees

1. The Right of Return of Palestinian Refugees
The Global Policy Forum website, consulted 20 Jun 2015

“Today there are more than 3.7 million Palestinian refugees living in refugee camps throughout the Middle East and many more exiles worldwide. Their right of return is clearly and unambiguously guaranteed by international law under the Geneva Conventions, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights. The refugees have a claim to citizenship, financial settlement and, in some cases, return to former homes and property in what is today Israel.” It links to the following international documents in support, viz:

Convention Relating to the Status of Refugees (1951)
The landmark UN document that specifies the rights of the refugee. The Convention also established a framework of basic refugee rights – for example, the right to identity papers, access to courts and education.

Protocol Relating to the Status of Refugees (1967)
The 1967 Protocol implemented the Convention Relating to the Status of Refugees.

__________

2. The Palestinians’ Right of Return
Hussein Ibish and Ali Abunimah, Human Rights Brief, Global Policy Forum, Winter, 2001

“If we are ever to resolve this conflict, we must reject the notion that the refugees ‘are an obstacle to peace’ whom, with their stubborn demands for their rights, are spoilers at everyone else’s party. The essence of peace is minimal justice, and the essence of justice for the Palestinians is justice for the refugees. Israeli concerns and questions about the right of return are understandable and must be addressed, but Israel’s absolute rejection of the rights of refugees cannot be the final word.”

__________

3. Do Israeli Rights Conflict With the Palestinian Right of Return? Identifying the Possible Legal Arguments
Michael Kagan, Zochrot, Jul 2005

An extract from this paper is provided on the Zochrot website; the full document, prepared for the Badil Resource Center for Palestinian Residency & Refugee Rights, is downloadable from Zochrot here.

It starts from the assumption that the Palestinian right of return exists and must be accepted by Israel in order to reach a just peace that complies with international law. It aims to identify and assess separate claims by Jews or Israelis that cannot coexist with refugee return. It concludes that “international law does not support Zionist claims that Israel has a right to exclude Palestinian refugees simply because they are not Jewish. But international law does protect other important rights, especially the right of Israelis to remain in their homes. A dialogue about conflicting rights is therefore important for framing a rights-based case for Palestinian refugee return, and should be attractive for Israelis who want to remedy the injustice inflicting upon Palestinians without infringing on their own legitimate interests.”

B: Resources and background information

1. Palestinian Refugee ResearchNet

This describes itself as “a non-partisan project devoted to the dissemination of ideas and scholarly information, in an effort to foster scholarly collaboration, policy research, and innovative thinking on the Palestinian refugee issue”. As from Jan 2013 it is no longer updated, but it still contains valuable material for anyone interested in pursuing the issue. Material is organised under these headings:

Palestinian Refugees: An Overview
Refugees in the Middle East Peace Process
Resolving the Refugee Question: Key Issues

In addition there is this paper:
Addressing the Palestinian Refugee Issue: A Brief Overview
Rex Brynen, McGill University, Palestinian Refugee ResearchNet, nd

Brynen provides an overview of the course of negotiations on the refugee question from 1991 to 2001, looking at the Refugee Working Group established in 1991-92 as one of the five multilateral working groups (refugees, water, environment, regional economic development, arms control and regional security) of the Madrid peace process; the Quadripartite Committee on displaced persons; the Camp David negotiations of July 2000; the Clinton Parameters of December 2000; and the Taba negotiations of January 2001.

__________

2. History and the Right of Return in Israel-Palestine
David Benkof, Foreign Policy in Focus, 23 Jan 2014

In light of competing historical narratives and a fraught political environment, is there any middle ground on the right of return for Palestinian refugees? Benkof suggests that “while insisting Israel maintain some form of its unique Jewish character in any refugee resolution, Israelis should accept moral and financial liability for barring Arabs who left after the Independence War. Palestinians could in turn demand compensation for their suffering and lost property, plus repatriation of a limited but not token number of refugees…”

C: The law of Return

1. On the Israeli Law of Return — An Examination of the Israeli Neocon Arguments in its Favor — Part I
2. The Law of Return, Part II — What Israelis Can Learn From Germans
Two essays by Jeremiah Haber, The Magnes Zionist,  14 & 30 Aug 2007

Hard-hitting contributions, both of them. In the first: “One cannot discuss the Law of Return independently of the law against the return of the Palestinians to their homeland – not their ancestral homeland, but their actual homeland; or independently of the glaring failure to provide for the naturalization of non-Jews.” Increasingly criticised by liberals in recent years, it has been defended by Israeli Neocons, whose arguments are examined here.

“I will examine two familiar arguments in favor of the Law of Return that are frequently posed by its defenders. The first is the ‘lots-of-countries-discriminate on-the-basis-of-ethnicity’ argument, which is taken as a sign that discriminating in favor of a particular ethnic group is not so bad and maybe even justifiable. The second is the ‘lots-of-countries-discriminate-but-only-Israel-is-criticized’ argument, which allows that there may be something illiberal with the Law of Return, but that since the phenomenon of preferring one ethnic group over other vis-à-vis immigration, is widespread, it is unfair to criticize Israel.

My examination of these arguments will show that they are both without merit…”

In the second essay, Haber looks at the comparison often made with Germany and its acceptance of the return of ethnic Germans from the former Soviet Union. It, too, does not stand up to his scrutiny.

Haber argues that the justification for any such preference must be in terms of “asylum” and “safe haven” (as it was in the German case) rather than of “national destiny”, and the discrimination should be temporary and local (i.e. as long as the persecution exists and where it exists). Quite simply, there should be no automatic right of all Jews everywhere to become Israeli citizens. And, following Germany’s example, Israel should recognise its special responsibility to the Palestinian homeland community that it turned into a minority in its land, and repatriate, into Israel proper, Palestinian refugees who are suffering, and compensate others who are not…

__________

3. Knowing and not Knowing: a review of The Invention of the Jewish People
Richard Kuper, Political Quarterly, 2010

Sand’s work is a necessary demystification of the Jewish national narrative, and treats Zionism like any other nationalism. It brought a bitter firestorm down around his head, from Ami Isseroff’s Sand “and the Final Solution to the Jewish Problem” to Anita Shapira’s “The Jewish-people deniers”.

Yet, as Sand shows, and no serious Zionist historian claims otherwise, there was no forcible expulsion of Jews from Palestine by the Romans in 70 CE or after the Bar Kochba uprising in 132 CE, despite the heavy casualties and severe repression that followed. The Romans simply did not expel whole peoples. And yet, argues Sand, a notion of deportation or forced exile occupies a central place in the historical imaginary, leading to a version of the Christian image of the wandering Jew, who establishes temporary and unstable communities in place after place, always yearning to return, for ‘next year in Jerusalem’. It remains at the core of modern Zionism and Israeli identity.

__________

4. No, Rivkele, The Jews Weren’t Driven into Exile by the Romans
Jeremiah Haber, The Magnes Zionist, 29 Jul 2007