Do the Palestinians have a justifiable "Right of return?"
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This discussion misses a very important point. Return of the Palestinian refugees would eliminate the national home of the Jewish people, and therefore void the right to self-determination of the Jews. Self Determination is Jus Cogens in international law, and therefore takes precedence over the right of return.
At the same time that the Palestinians are calling for a state of their own, they also demand a "right to return" to land inside Israel's pre-1967 lines. However, no such claim exists under general international law, the relevant UN resolutions or the agreements between Israel and its Arab neighbors.
Under present demographic-geographic conditions, the influx of a large number of refugees into Israel is most certainly not practicable. Given that the present population of Israel is approximately 7 million (of whom about one-fifth are Arab Israelis), the influx of millions of Palestinians into the State of Israel would threaten the existence of Israel as a Jewish state, obliterating its basic identity as the homeland of the Jewish people and a refuge for persecuted Jews. Consequently, the demand to live in Israel is nothing more than a euphemism for the demographic destruction of the Jewish state.
Finally, the Palestinian claim of unlimited immigration to Israel is a political ploy made by those who do not want Israel to exist. It is disingenuous that the Palestinians are simultaneously appealing for a state of their own while calling for the right to freely immigrate to yet another state, Israel. By continuing to demand a right that would, in effect, negate the basic identity of Israel, the Palestinian leadership is undermining prospects for peace. The result of any peace process should be two nation states for two people, as envisioned by the United Nations in 1947, in the partition plan.
The Palestinian refugee problem has remained unsolved for approximately 60 years, causing suffering and instability throughout the Middle East. However, alongside the current social and humanitarian aspects of this issue, it is important to examine the causes of the problem and the reasons why it has been perpetuated for six decades.
The immediate source of the refugee problem was the Arabs' rejection in 1947 of UN General Assembly Resolution 181 - which would have partitioned the British Mandate area into an Arab state and a Jewish state - and the ensuing war they started in the hope of destroying Israel. Many Palestinian Arabs who lived in areas where the fighting took place abandoned their homes, either at the request of Arab leaders, or due to fear of the fighting and the uncertainty of living under Jewish rule. A refugee problem would never have been created had this war not been forced upon Israel by the Arab countries and the local Palestinian leadership.
Israel does not bear responsibility for the creation or the perpetuation of the Palestinian refugee problem. Thus it cannot declare, even as a gesture, responsibility for the problem.
Sadly, during this period there were innumerable refugees fleeing wars and conflict in many parts of the world. Almost all of these were resettled and their lives rehabilitated. The sole exception remains the Palestinians, deliberately kept as refugees for political aims.
The fate of the Palestinian refugees stands in sharp contrast to that of the many Jews who were forced to flee Arab countries in the wake of the establishment of Israel, leaving behind a great deal of property. Despite the difficulties, the hundreds of thousands Jewish refugees were absorbed as citizens of the State of Israel.
The Arab countries, with the sole exception of Jordan, have perpetuated the refugee problem in order to use it as a weapon in their struggle against Israel. The refugees continue to live in crowded camps, in poverty and despair. Few attempts have been made to integrate them into the numerous Arab countries in the region. These refugees, their children, grandchildren and great-grandchildren remain today in number of Arab countries with no political, economic or social rights. This policy was pursued in order to gain international sympathy for the Palestinian cause, at the expense of the Palestinians themselves.
The international community also has played a role in perpetuating the Palestinian refugee problem. It has averted efforts to resettle the refugees, as is the international norm. The UN High Commissioner for Refugees, responsible for finding permanent homes for all refugee groups around the world, does not do so for the Palestinians. Instead, a special agency was set up to handle Palestinian refugees. This organization, the United Nations Relief and Works Agency (UNWRA), operates solely to maintain and support the Palestinians in refugee camps.
The international community has yielded to political pressure from Arab regimes and in effect granted the Palestinians an exception from the internationally accepted definition of a refugee under the 1951 UN Convention relating to the Status of Refugees and the 1967 Protocol which make no mention of descendants. According to this exception - which has never been granted to any other population - all the generations of descendants of the original Palestinian refugees are also considered refugees. This means that the vast majority of Palestinian refugees who demand to immigrate to Israel have never actually lived within the borders of Israel. Moreover, the exceptional definition of refugees in the Palestinian case includes any Arab who lived in the area that became Israel for just two years before leaving. These exemptions have inflated the number of Palestinian refugees and allowed it to expand over the years from the hundreds of thousands to the millions.
The Palestinians falsely assert that their claim is based on UN resolutions, most specifically paragraph 11 of General Assembly Resolution 194 (December 1948). Nonetheless, the General Assembly is not a law-making body and General Assembly resolutions on political matters do not create legally binding obligations.
When referring to General Assembly Resolution 194, a number of additional points are relevant:
The Arab states originally rejected Resolution 194, and therefore cannot base current claims on that discarded Resolution.
This Resolution was an attempt by the UN in 1948 to bring the sides to negotiations by making recommendations regarding a number of key issues (Jerusalem, borders, refugees, etc.), aimed at the achievement of a "final settlement of all questions outstanding" between the sides. Only one section of 194 (paragraph 11) discusses refugees. That paragraph does not contain a single reference to any rights, but rather merely recommends that refugees should be permitted to return. It is illogical to demand implementation of a single sentence independently of the rest of the resolution.
Additionally, the resolution sets specific preconditions and limits for return, foremost amongst them that the refugees must be willing to live in peace with their neighbors. The support among the Palestinian population for the wave of terrorism that began in September 2000, as well as at other times in the past, has so far precluded this possibility.
The resolution specifically uses the general term "refugees" and not "Arab refugees", thereby indicating that the resolution is aimed at all refugees, both Jewish and Arab. It should be remembered that following the establishment of Israel in 1948, at least an equal number of Jewish residents of Arab states and Arab residents of Israel were forced to become refugees
The resolution stipulates that compensation for refugees who chose not to return, or whose property was damaged or destroyed, should be provided "by the governments or authorities responsible". The demand for compensation does not specify Israel by name, and it is clear that the use of the plural (governments) precludes any Palestinian claim that implementation of the resolution should fall exclusively on Israel.
UN Security Council Resolution 242 of 1967, supplemented 194 and reinforced Israel's position by again omitting any
reference to a "right of return," or even to General Assembly Resolution 194. Instead, 242 confines itself to affirming
the necessity "for achieving a just settlement of the refugee problem."
In summary, the Palestinians, after originally rejecting the resolution, have now selectively claimed elements of Resolution 194 that offer political and rhetorical benefits. At the same time, other material aspects of the issues involved have been ignored.
In international law, the principle of return is addressed in relevant human rights treaties. However, the principle
only deals with individuals (not an entire people) and as a rule, governments have limited the right to reenter a state
to nationals of that state.
None of the agreements between Israel and its Arab neighbors mention a claim of return. In the course of the peace process, the Israelis and Palestinians themselves have agreed that the question of refugees, along with other issues, could be considered as part of a permanent settlement between the sides. Israel stands by this commitment.
These texts are taken from material published by the Israel Ministry of Foreign affairs. with additional comments and hyperlinked materials. They were apparently published in connection with the Annapolis peace conference of 2007, but they have extensive applicability beyond it. They explain fundamentals of Israeli policy as well as the meaning of Zionism and history of the conflict.
Israel Ministry of Foreign Affairs text is at Israel, the Conflict and Peace. Original text is copyright by Ami Isseroff and Zionism-Israel Center.
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