Category Archives: Palestinian Right of Return (Al Awda)

من أجل فلسطين حرة غير مقسمة

Published in Filastin al-Thawra (probably in 1991)

من أجل فلسطين حرة غير مقسمة

الفكرة التي يدافع عنها الكاتب هي أقرب مما تكون إلى التالي إذا كانت ثمة علل بنيوية وإيديولوجية تحول دون إندماج إسرائيل في محيطها الشرق الأوسطي. فما الذي يمنع طلائع الجالية الناطقة بالعبرية في فلسطين من الإنخراط في الثورة الديمقراطية الفلسطينية. ويقول: هذه الرؤيا تبدو بعيدة الآن لكن الوعي يتطور(يتغير) بسرعة.

بقلم: الياس دفيدسون، فلسطين الثورة ١٩٩١

بالرغم من إنني لم أسكن فلسطين منذ كنت صغيراً ولكنني لا أُخفي عواطفي تجاه هذا البلد المُعذب النازف. ولدت سنه ١٩٤١ في فلسطين لأبوين مهاجرين نفيا من ألمانيا النازية. إنني مدين بوجودي لفلسطين. الأرض التي قدمت المأوى لأبوي, التي كان من الممكن أن أُقتل فيها . ولي من العمر أربع سنوات. حينما هاجمت مجموعه عربية غاضبة الحافلة التي كنا نسافر فيها, ولكن تم إنقاذي على يد فلاح عربي عجوز ولطيف. إنني أُفكر في فلسطين وقلبي ينزف على جروحها.

كانت سنواتي الأولى في ”باقة“ وهي ضاحية من ضواحي القدس, حيث كان اليهود والعرب يعيشون جنباً إلى جنب بسلام وكان لعائلتي علاقات جيدة مع العائلات العربية الفلسطينية في الجوار وأنا فخور في أن أقول أن والدتي تعلمت لغة البلد وبالنسبة لي فإنني لم أمسح من ذاكرتي ومن كياني الصور الأصوات الروائح والأحاسيس التي تغلغلت في هذه السن المبكرة, إني أحمل كل هذا الأحدث لنفسي لأجد فيه مصدر إلهام وطاقة حيوية.

لقد أبعدني مسار حياتي عن فلسطين. ولكن وبرغم المسافه البعيدة. فإن ولعي بمسقط رأسي لم يخفت. وإهتماماتي لم تخف في أن أراه يعيش بخير.

مثل معظم الأطفال ”الإسرائيليين“ خضعت في شبابي لجهاز حزبي صهيوني وقضيت سنوات المراهقة في فرنسا حيث إنضممت إلى حركة الشباب الإشتراكي الصهيوني هي ”هاشومير هاتسعير“ وأعجبتني النشاطات في هذه الحركة وسياستها وتأكيدها على الإشتراكية والإجتماعية. وعلى العدالة وعلى الشجاعة المدنية لكن علمونا مبادئ الصهيونية وكانت مهمة المرشدين المبعوثين خصيصاً من إسرائيل تتمثل في أن يجعلوا منا صهاينة صالحين وشددوا على أننا شعب خاص لأننا يهود ولا مكان آخر لنا تحت الشمس سوى فلسطين (كان المبعوثين يسمونها إسرائيل) وكانت الحجة الرئيسية المقدمة هي أن كل اللذين ليسوا يهوداً …. من الصين إلى البيرو ومن فنلندا إلى الكاميرون , يكرهون اليهود. عن قصد او بدون قصد… وعلى ذلك فإنه كان من الساذج خوض نضال ضد العنصرية أو التمييز العادي لليهود. وكان الدعاة هؤلاء لايرون أن مشاعر العداء لليهود او لليهودية متأصلة في شخصية (غير اليهود) وقد إنتقلت, إنتقلت بمعنى ما,بالوراثة من الأب إلى الولد. وفي سعيهم لرفع هذه الأسطورة القذرة إلى حالة القانون الطبيعي. كانوا يقولون لنا : أن الدولة القومية اليهودية وحدها قد تحفظ الأمن الشخصي ”لليهود“ .

من جانبي فإنني عارضت هذه المحاججة. فأنا لا أستطيع قبول هكذا أحكام مسبقة ضد الإنسانية. وتمثلت فلسفتي الخاصة في أن كل شخص لايمكن أن يصدّق ما لم يثبت العكس فيما أن تجربتي الشخصية. خاصة علاقاتي مع غير اليهود تناقضت تماماً مع هذه الأحكام المسبقة.

في ذلك الوقت لم أكن أعرف المرامي العملية للصهيونية  كما هي حقيقة. لكن هذه الرؤيا كانت تٌستقبل برعب من الصهاينة والقادة الدينيين اليهود. الذين يرون في أن الزواج المختلط كارثة على العرق اليهودي, يمكن مقارنتها بقوة مع ـ الهولوكوست ـ ولأنهم يرون في الإختلاط عملية إستيعاب لليهود وكتهديد لوجود الشعب اليهودي فإنه من المنطقي أن يحاولو مجابهة هذا (التهديد) بكل الوسائل المتاحة بما فيها الإرهاب الفكري والجسدي.

إن لازدراء الزعماء الصهاينة التقليدي للثقافات الشرق أوسطية جذوره في الآراء الإستعمارية ـ العنصرية الأوروبية لغير البيض . إذ أن إنخراط إسرائيل في مختلف النشاطات الأوروبية والإستفزازات المدروسة ضد الدول المجاورة والقمع المتطرف ضد الوطنية الفلسطينية ومايبدو لي أنه مرض مرعب يجعل النظام الصهيوني يأبى الدخول في حوار مع م ت ف . ماهي إلا علامات لتصرف غير عقلاني. إنها إشارة واضحة إلى الدول المجاورة والأمة العربية في أن إسرائيل لا ترغب أن تنخرط كعضو عامل. في حياة الشرق الاوسط  وسبق لفلاديمير جابوتنسكي المعلم الإيديولوجي للزعيمين الإرهابيين شمير وبيغن أن رأى في العشرينيات الحاجة في أن يبني المستوطنون الصهاينة حائطاً حديدياً بينهم وبين الفلسطينين سكان البلد الاصليين.

يتوجب عل كل أولئك الذين يصرّون على الحاجة إلى ضمان دولة إسرائيل المبنية على العقيدة والممارسة الصهيونية ان تصبح دولة مسالمة وملتزمة بالقانون بحيث تستطيع أن تنخرط في حياة الشرق الاوسط؟

من جانبي فإنني أعتبر أن النضال من أجل تحرير الجالية الناطقة بالعبرية في فلسطين (أي الإسرائيلين) بمثابة الحل المتطور للمسألة الفلسطينية الممثلة في م ت ف   هي التي تمسك هذا المفتاح وسبق ل م ت ف أن إتخذت إجراءات حذرة في ضم مناضلين ناطقين بالعبرية (إسرائيلين) في صفوفها إن هكذا إجراءات هي هامة لكنها حالات معزولة جداً لاتصنع حالة سياسية.

وينبغي أن نأخذ في حسابنا أن المجلس الوطني الفلسطيني يعتبر نفسه يمثل أولئك الفلسطينيين الذين يعرفون أنفسهم بأنهم عرباً . هكذا فإن الغالبية الساحقة من اليهود الإسرائيلين (الذين أٌفضل أن أسميهم الفلسطينين الناطقين بالعبرية) لا يرون في أنفسهم شركاء مؤثرين في الحركة الفلسطينية لأنهم لم يكونوا فيها مطلقاً. أو لم يدعوا للمشاركة فيها كأعضاء متساوين وهنا فإنني أتحدث أساساً عن أولئك التقدميين الإسرائيلين الذين قد يرغبون في الإنضمام إلى الصفوف إذا أُعطي لهم خيار مشرف لعمل ذلك.

اليوم تمسك الثورة الفلسطينية مفتاح الحل السياسي للقضية الفلسطينية. بينما تعتري الصهيونية حالة من التآكل (الإهتراء) السياسي . إنه من الواجب أن تستخدم الحركة الوطنية الفلسطينية مصداقيتها وسلطتها لبناء مستقبل يسوده السلام والرخاء لإولئك الذين يحبون بلدهم الاصلي فلسطين…. وذلك بدعوة شعب فلسطين بغض النظر عن الدين مكان الإقامة الحالي أو الإنتماء العرقي للمشاركة في الثورة الديمقراطية الفلسطينية وفي رسم أهدافها ووسائل نضالها ويمكن أن تتمكن الثورة الفلسطينية من إيجاد منهج يسهل خوض نضال مشترك لتفكيك الدولة الصهيونية واستبدالها بدولة فلسطينية ديمقراطية موحدة لكل السكان هذه الرؤية تبدو بعيدة الآن لكن الوعي يتطور بسرعة ومن المحتمل أن يستقبل العديد من الإسرائيلين بارتياح الإطار الإسرائيلي الفلسطيني المشترك للكفاح ضد البنيان الصهيوني.

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The Taste of Mulberries

The following beautiful texts are taken from the book “Israel, an Apartheid State” by Uri Davis, Zed Books Ltd, 1987.

Prolegomena: The Taste of Mulberries

by Havah ha- Levi

(a) The Female Snake

Someone said something about Tantura…1

Soft hills rolled silently into each other’s embrace [towards the beach] and right on the edge of the hills there was a dense plantation of low palm trees clustered on the beach. A scenery of soft and misty dream. Only the feeling of nausea returns to trouble me.

At a short distance from the cluster of palms there was a group of empty houses.

Some of them were slightly damaged, but generally, the houses were intact and beautiful. Everything [about the houses] was very neglected, empty and filthy. A few ancient shoes exposed their seams along the footpath. There in the deserted village of Tantura the kibbutz set up the summer camp for its children.

The houses were cleaned up. A large long tent was erected to serve as a dining hall. The place was a paradise for children.

I remember the heat of the scorching sun over my tanned skin. The salt taste of the sea water. The swimming competitions. The beautiful and quiet beach. And thirty or forty happy children. Really happy.

And yet I listen to my memories. I try to redraw the lines that chart my memory.

There are things that already had their beginning in another place.

There were these half scornful sentences, such as: if the Arabs come, they will steal you first. You are blonde and the Arabs like blonde girls; if the Arabs come, they will see your golden head in the dark and will steal you first. They will think perhaps that it is a ball of gold; here is an Arab shoe. Such sentences …

Towards the end, two days before the conclusion of the summer camp, they asked who wanted to go on a tour and listen to Motke telling stories about the conquest of Tantura. I went, too.

We went into the cluster of palms, and the leader of the summer camp, a nice jovial kibbutznik who evidently loved children, was already there telling something. I lagged behind as usual. I walked along daydreaming and slightly bored. When I eventually caught up with the group, they were all standing near a large house which had perhaps originally been situated at the edge of the village, and I remember the words: ‘We attacked at both ends. Most of them had already run away. Suddenly a huge Arab came out behind this house and began to run. I shot him, and he jumped in the air like a rabbit, turned a somersault and fell’.

Even today I do not know whether this was a factual description of what had happened. But at our place, they used to say that if you kill a snake, you should throw it away or hide it, because if it is left exposed, all the snakes (the family? the tribe?) will come to the place to look for it and this could be very dangerous. And that if you kill a bee that has stung you, it is likewise necessary to throw it away or hide it, since otherwise all the bees will come there after its smell. And that if you kill a lion, the lioness will always come to search for it.

And then, suddenly, together with the Arab, shot in the air with his white kufiyya and black agal, all the Arabs who had lived there in these houses, who had worn those shoes now discarded on the footpaths, the children who had run about naked on the beach, the fat, erect women who had carried the jars on top of their heads… they all came out suddenly in my imagination to look for him. I recalled the warning not to leave the corpse of the snake in the place where it had been killed because the female snake will come to look for it and I turned to look behind me, terrified. There was nothing there. Only the beautiful houses and the sea. A bit angry and a bit curious, I thought about this bad Arab who had come to attack our soldiers. I thought he had deserved to die like that, yet he did not seem to have been dangerous when he was shot there in the air, like a rabbit. I wanted to know if he was from this village, or from another place.

We returned to the beach and ate a water melon. I wanted to have the ‘heart’ of the water melon, but I never got it because I always arrived late. Everything lost its taste. I told my friend: Mira, I am already fed up with this summer camp. I want to go back home.

She looked at me surprised, beautiful, suntanned: ‘Why?’

(b) The Taste of Mulberries

The name of the villages was Sarkas, which probably refers to the former origin of its inhabitants, Circassians, who came, I would not know how, to the Middle East and settled here.2Anyway, when I came to know the village, all of its inhabitants were Palestinian Arabs. In fact, I never came to know the village properly; I was never there, though this is only half the truth, and I shall return to that later.

In our eyes, the eyes of children four or five years old, the village was represented by two women: Khadija and Hanifa. Maybe they were more courageous than the rest, or maybe they served as something like the ‘Foreign Office’ of the village. They often walked about in the kibbutz, and as far as I can remember they were mainly preoccupied with the picking of khubeiza (mallow) leaves which grew in wild abundance along the roadside. When we asked why they pick the khubeiza, we were told that the Arabs cook the leaves and eat them. And so, the first thing lever knew about Arabs was that they eat khubeiza. I also knew, of course, that they ride on camels, since the camels used to pass through the kibbutz and occasionally camp there; I knew that they ride on donkeys along the white road which probably stretches up to the very end of the world. But at that time there were also in the area British soldiers (the Mandate) and Australian soldiers (World War II), and thus it was imbedded in my consciousness that Eretz Israel3 consists of us, as well as passers by: Arabs, British, Australians …

About that time they all disappeared, and I really did not notice their disappearance all that much. Of course, the departure of the British was accompanied by much talk on the radio and in the yard of the kibbutz. But as to the fact that Khadija and Hanifa ceased to show up – well, there are many events that pass through the universe of any child, and he or she accepts their appearance os well as their disappearance as a matter of fact. Later, I came to know that the village had been destroyed by bulldozers, and I was a little scared. And then I forgot, und many years passed be fore Sarkas again emerged before my eyes as a place where people lived.

The destroyed village was made into the kibbutz garbage dump. I do not know who was the first to discover that in the midst of the ruins and the dust und the stench there remained a mulberry tree. A huge mulberry tree, which, In summer, produced huge mulberries: black and deliciously sweet. The mulberry trees in the kibbutz were grown on much water and their fruit was therefore somewhat watery, and anyway they were much too high to climb. But this mulberry tree was low, spreading wide, and heavily laden with fruit, to the deep delight of a little girl who was rather quiet and clumsy and who loved mulberries. And thus, every Saturday we would go on pilgrimage to the mulberry tree, stand around it for hours and eat of its fruit and return home with hands and faces blackened by the dark dye of mulberry sap. Never, not once, while standing there among the ruins and the dust under the scathing sun did we talk or think of the inhabitants of Sarkas who lived here: where are they? Where did they go? Why?

From the distance of fifteen years of difficult political development, I watch this group of children devouring mulberries in the midst of a destroyed village, and I just cannot comprehend: how? Wherefrom this utter blindness?

For many years I would walk on Saturdays to Sarkas. At times with company. At times alone. Now Sarkas was no longer embodied in Khadija and Hanifa. Now Sarkas was reduced to the stench of the kibbutz garbage dump and the mulberries In summer. On either side of the road to Sarkas there were sabr cacti hedgerows along all roads, but today they have all disappeared, except in books and in Arab villages, where they still remain. In summer the sabr would bring forth their fruit, and raise masses of tiny red and orange flags glued to their rounded green flagpoles in a summer festival. And when the sabr fruit was ripe, the Arab women would appear out of nowhere, fill their big tin containers with the red and orange fruit and walk away. Today I remember these Arab women and I ask myself: where did they come from? Who were they? Were they exiled inhabitants of the of the village? And in the evening, when they eat the fruit that they had gathered or when they sell it at the roadside, do they feel the taste of their lost homes?

But at that time I did not think of them in the least. The Arabs were something whose temporary provisional existence was eternal. They pass along the white mild on a donkey-cart, emerging out of somewhere and going on to somewhere else, Only once, for some reason … There was a big scout night game, a sort of test of courage. I hid behind the sabr hedgerows and waited for my pursuers to pass by. I sat there in the dark for a long time, quietly. I was not afraid. And all of a sudden they were with me. The women of Sarkas. The women who pick khubeiza along the roadside. The women with the long knives who steal wheat from the fields of the kibbutz. The women with the water cans and the bundles of dry wood on their heads. Slowly, slowly, they slipped by on their bare feet, black and silent. Their round outline, like the sabr cacti leaves, merged with the darkness around, silent.

Today there stands on the site a huge plant for the processing of agricultural products. An exemplary cooperative venture. And the hill? The hill of the village of Sarkas, where is it? The entire area was levelled down, and around the huge factory orange groves were planted, and there is not one single cut stone left as testimony. Yet, I remember. I testify.

In 1961, a very young woman from kibbutz Giv’at ha-Sheloshah married an Arab youth who was employed in her kibbutz. The kibbutz refused to allow them to remain there, and they applied to join ‘my’ kibbutz. The debate on whether they are to be admitted or whether they are not to be admitted extended over one and a half years and shook the kibbutz in a way that no other subject ever did, either before or since. The debate cut across families, and brought sons to rebel against their parents, brothers against brothers and husbands against wives. The leadership of the Ha-Shomer ha-Tza’ir kibbutz federation was called to present its position (opposed), and threats of leaving the kibbutz on this matter were voiced in both camps. In the end, the ‘mixed couple’ was not admitted to the kibbutz. Both camps were already tired of endless debates and rows. In a bitter discussion which I (who supported their admission) had with one of the leading opponents he told me: ‘Do you know that Rashid is a son of the village of Sarkas? Do you think he can live here, raise his children here and always see across the street the hill which was his village, and not think anything?’

At that moment, together with the scorching sun and the dust, I felt in my mouth the taste of the mulberries, and I understood what homeland means, and also, for the first time, vaguely and at a distance and a little bit afraid, I understood that this homeland, the homeland of the songs and of school textbooks, is simply just the taste of mulberries, and the smell of dust, and the moist earth in winter, and the colour of the sky, and that it is a homeland not only for me, but also for Rashid Masarwa. At that very moment, in the midst of the heated discussion, the taste of mulberries and the shock, I remembered one fearful memory.

It was towards the end of the 1948 war, after we had won the war and defeated the Arab armies and had a state of our own. We were lying in bed. Eight children in the children’s house. It was night. From the distance we heard the heavy and rumbling noise. It was not very far away, but one could clearly hear that the noise did not come from inside the kibbutz. And the noise went on and on and on. I asked what this protracted and continuous noise was, and one of the children told me that two kibbutz members had gone with bulldozers to Sarkas to destroy the houses of the Arabs. In real fear of Arab revenge I asked: ‘But what will the Arabs do when they come back and see that we have destroyed their homes?’ And he then answered: ‘That is why we destroy their homes, so that they do not come back’.

I then knew that the matter was lost. The home of Rashid was destroyed then so that he would not return. So that he, his mother in the long black robe who walks erect with the bundle of wood magnificently balanced on her head, and all his brothers and sisters who run barefoot on the stones would not return. And also now they will not let him come back.

In December 1972, the entire country was shaken with what was dubbed in the press as the ‘affair of the espionage and sabotage network’. Some thirty Arab youths and six Jewish youths, Israelis, were arrested on charges of forming a ‘sabotage organization’, operated by Syrian intelligence, whose object was ‘to damage the security of the state’. One of the Jewish detainees, a youth aged 26, was a son of my kibbutz. Another detainee from the Arab village of Jatt, was a youth named Mahmud Masarwa. In his defence speech he stated as follows:

The Honourable Court, Your Honourable Judges,

My father was born in the village of Sarkas, near kibbutz .. , in the vicinity of Haderah. My father was the son of a peasant. In 1948, he was removed from his land, expelled by force. Their lands were confiscated. Their homes were destroyed. On the site a factory for the kibbutz was built. My father was compelled to go out and seek work as a labourer in order to feed … [his family]. We went to live in such a tiny house: twelve people in the space of metres times 3 metres. In 1957, I remember this quite well, one year after the Sinai war, my father told me and my brother who sits here [in the court room]: ‘Go out to work in order that you at least help me to finance your studies .. .’ (Quoted from the official Protocol of the court proceedings.)

‘My brother who sits here in the court room!’

His brother who sat there was Rashid Masarwa who, in 1961, applied to be admitted to the kibbutz together with his Jewish wife. It was Rashid Masarwa who told the members of the kibbutz:

I want to live here as a loyal kibbutz member like everyone else, but I want my children to know that their father is an Arab, and I want my children to know the Quran, and I want them to celebrate all the Jewish holidays, but also know what Ramadan is, and that their grandfather and grandmother will come to visit them here in the kibbutz, and that my children will also go to the village to be with their grandfather and grandmother in the holidays.

Now he is sitting here, Rashid Masarwa, and watches his brother being sentenced for wanting to take by the force of arms what he himself had hoped to gain by application and consent, and all the brotherhood among the nations in the world could not be of any avail to them.

In the Ramleh central prison the son of the dispossessing kibbutz und the son of the dispossessed village met again. Only one youth, one Udi Adiv, from that kibbutz. resolved in his mind to cross the road. But the world has no space to accommodate the naive.

And if prisoners in jail do dream – both prisoners, no doubt, see in their dreams the colour of the sky, and perhaps they also savour the taste of mulberries.

1 Tantura is a Palestinian Arab village on the Mediterranean coast, some 13 km north of Caesaria. In 1944 its population was estimated at 1,470 Muslim and 20 Christian inhabitants. It was occupied by the Israeli army in 1948 and subsequently almost completely destroyed. All of its inhabitants were expelled and made refugees. The lands of the Palestinian Arab village of Tantura are now cultivated by the Israeli Jewish kibbutz Nahsholim (established 1948; population 350; area of cultivation 1,500 dunams). [Footnote probably by Uri Davis]

2 After the Russian conquest of Circassia from the Ottomans in 1878, many Circassian clans and families loyal to the Ottoman regime emigrated to various countries throughout the Ottoman empire. The Ottoman Sultan Abd al-Hamid extended his support to the Circassian resettlement and made lands available to them in Palestine, inter alia, where there are two Circassian villages, Kufr Qama in Lower Galilee and Rihaniyya in Upper Galilee. The attempt to settle Circassians in the Northern Sharon, in the northern coastal plain, where they established the village of Sarkas failed, and the original Circassian inhabitants were gradually replaced by native Palestinian Arabs. In 1947 the village population totalled some 400 inhabitants. [Footnote probably by Uri Davis]

3 The Hebrew designation of historical Palestine.

 

The Palestinian Right of Return precedes the right of Soviet citizens to settle in Israel

The Palestinian Right of Return precedes the right of Soviet citizens to settle in Israel

Elias Davidsson, April 1990

The decision of the State of Israel to promote the massive influx of Soviet citizens to the Middle-East has drawn critical responses by many countries, East and West, by the PLO and by the Arab League. While the condemnation of settling Soviet jews in Palestinian territories occupied in 1967 is quasi universal, there is no agreement about the right of Soviet Jews to settle in Israel proper.

A Palestinian nationalist from Jerusalem, Mr. Faisal Husseini, is quoted as saying: “Whoever wants to come to Israel, it is Israel’s problem to absorb, but not in the West Bank, Gaza or East jerusalem. That is where we want to solve the problems of our refugees, our people in the Diaspora”. Mr. Gerard Collins, President-in-Office of the Council of Ministers of the European Community, said in an official statement issued on the 2d of April 1990 that the EC “welcomes the right of Soviet Jews to emigrate to Israe1.”

Such statements are throwing doubts among Israelis, Palestinians and the world community about the relevance of UN Resolutions and the authority of international law as a base for orderly and peaceful resolutions of conflicts.

The legality of Jewish immigration into Israel is questionable for two fundamental reasons:

a. The areas to which most immigrants to Israel are assigned, are, strictly speaking, areas occupied by Israel in 1948, that is outside the boundaries allotted to the Jewish state by UN resolution 181 of 29th of November 1947. These areas – parts of the Galilee and the Negev, Jaffa, Jerusalem, etc – were to be included in the Palestinian Arab state. The only legal base for the State of Israel – and for that matter also the State of Palestine – is UN resolution 181, where the boundaries and the constitutional character of these states are defined. According to UN resolutions, which have not been challenged until today, Israel is legally the Occupying Power of the above areas and the IV. Geneva Convention applies also there. Israel has therefore no right to settle aliens in these areas.

b. When admitted to the United Nations Organization, Israel stated that it would honor and respect its obligations towards the UN Charter and UN resolutions. One of those obligations was to respect the right of return of Palestinian Arabs to their homeland, in accordance with resolution  194 (III) of 11 December 1948. Israel has not only refused to respect this right but has done everything that it could to undermine the future application of this right, by destroying most of the refugees’ villages, killing returnees and settling Jewish immigrants on refugees’ land.

At his address to the Socialist members of the European Parliament, September 13, 1988, President Arafat said: “International legitimacy is an indivisible whole and no one can choose to accept only what suits him and discard what does not.”

In its “Political Communique” issued also on 15 November 1988, the Palestinian National Council affirmed “the determination of the PLO to arrive at a comprehensive settlement of the Arab-Israeli conflict […] in such a manner that safeguards the Palestinian Arab people’s rights to return, to self-determination, and the establishment of their independent national state on national soil.”

The General Assembly of the United Nations has endorsed on Dec. 6, 1989, with an overwhelming majority of 151 states, the principles for a comprehensive peace in Palestine, including the right of Palestinian refugees to return to their homeland, in accordance with UN Resolution 194 and subsequent resolutions.

Both the Israeli government, as a Member State of the United Nations and the PLO, as the sole and legitimate representative of the Palestinian people have to respect international law and resolutions. Neither the PLO nor the international community are empowered to take away an inalienable right possessed by people. The right of return of people to their homeland is by definition an inalienable right which transcends political considerations.
Statements such as quoted above by Faisal Husseini and the European Community are not helpful, for they throw doubt and entertain illusions. The international community cannot and will certainly not accept the disposal of this right for reasons of expediency for it would undermine the respect for the Human Rights Charter and the authority of the United Nations Organization.

In the light of considerations of international law and as a contribution for justice and peace, it might be worthwhile for the international community to consider linking the right of Israel to accept foreign immigrants, Jews or others, to its implementation of UN Resolutions 181 and 194. When Israel accepts to abide by these resolutions, the world community could recognize Israel’s sovereignty in accordance with UN resolutions and the UN Charter and accept Israel’s right to accept immigrants on a non-discriminating basis into its internationally recognized boundaries.

A personal note
I, the author of the above lines, am born in Palestine in 1941 of German­ Jewish refugees. My life brought me to Iceland, where I have been living for 26 years [Since 2008 I live in Germany]. My concern for my homeland has accompanied me since I left it as a young boy.  I believe that peace in my homeland must be based on two key concepts: Justice and reconciliation.

While Palestinians are being kept in exile and in refugee camps and denied their basic right to return to their homeland, there cannot be peace. This is also recognized by the international community, as reflected in UN resolution 44/42 of Dec. 6, 1989. The Israeli Jew, who lives on stolen Palestinian land and who denies by force of arms to his Arab brother the right to return to his homeland, will have to live by the gun, for he will constantly have to be on his guard. The Palestinian Arab, who is refused this basic right, cannot be blamed for forcing his right of return by any means at his disposal. Under the conditions of utter injustice, war is preprogrammed.

For the Palestinian, return means rehabilitating his honor, not seeking revenge. It means the possibility of reconstruction of a society, not the destruction of another. Justice and reconciliation are the most important terms of the peace equation. Return means also acceptance of coexistence between Israeli Jews and Palestinian Arabs under conditions of equality and democracy and is in itself a gesture of reconciliation,

The integration of the Jewish-Israeli community into the Middle-East is predicated upon the application of these terms. Those who are supporting, tacitly or directly, Israeli violations of international law and resolutions, are unwittingly undermining the prospects of peace for the Palestinians and the Israelis.

UN committee: Israel should let Palestinians return to their land

UN committee: Israel should let Palestinians return to their land

By Yoav Stern, Haaretz Correspondent, 11 March 2007
http://news.haaretz.co.il/hasen/spages/835430.html

A United Nations committee has called on Israel to allow Palestinian refugees to return to their property and land in Israel and to ensure that the bodies responsible for distributing property, such as the Jewish National Fund, not discriminate against the Arab population.

The UN Committee on the Elimination of Racial Discrimination made the recommendation in its concluding observations released Friday, in response to a report Israel submitted on the matter. Representatives of a number of human rights groups appeared before the committee, including Adalah, the Legal Center for Arab Minority Rights in Israel, which presented objections to the official Israeli position.

The report recommends that Israel scrutinize its policy in a number of areas. Among them, it recommends that "the state party ensure that the definition of Israel as a Jewish nation state does not result in any systematic d istinction, exclusion, restriction or preference based on

race, color, descent or national or ethnic origin." The committee also said it "would welcome receiving more information on how [Israel] envisions the development of the national identity of all its citizens."

The committee's deliberations were made in the framework of overseeing the implementation by various countries of the provisions of the UN's International Convention on the Elimination of all Forms of Racial Discrimination. Israel has been a signatory to the convention since the la te 1970s, and should submit a report every two years. However, it has not done so for nine years.

The appearence before the committee of the human rights organizations, which also included B'Tselem (the Israeli Information Center for Human Rights in the Occupied Territories) and Ittijah (the Union of Arab Community Based Organizations in Israel), is part of an increasing
trend to fight Israeli policies in international forums. Adalah said some of the information provided to the committee came from its international advocacy department assigned to UN committees.

The committee also noted a number of positive developments, among them the ministerial appointment of Raleb Majadele and the High Court decision on the petition of the Ka'adans, an Israeli Arab couple, to buy land in the community of Katzir.

The Palestinian Right to Return, Israeli legal analysis

Do Palestinian Refugees Have a Right to Return to Israel?

by Ruth Lapidoth

Professor Ruth Lapidoth is a Professor of International Law at the Hebrew University of Jerusalem.

In the media and in interviews with Palestinian leaders, we often hear and read statements asserting that the Palestinian refugees have a right to return to Israel. As will be shown, these statements are based on an erroneous reading of the relevant texts. We will discuss the subject from three points of view: general international law, the most relevant UN resolutions, and various agreements between Israel and her neighbours.

1. General International Law

Several international human rights treaties deal with the freedom of movement, including the right of return.1 The most universal provision is included in the 1966 International Covenant on Civil and Political Rights, which says: "No one shall be arbitrarily deprived of the right to enter his own country."2

The question arises, who has the right of return, or: what kind of relationship must exist between the State and the person who wishes to return? A comparison of the various texts and a look at the discussions which took place before the adoption of these texts lead to the conclusion that the right of return is probably reserved for nationals of the State.3

Even the right of nationals is not an absolute one, but it may be limited on condition that the reasons for the denial or limitation are not arbitrary.

Moreover, according to Stig Jagerskiold, the right of return or the right to enter one's country in the 1966 International Covenant "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."4

2. Relevant UN Resolutions

The first major UN Resolution that refers to the refugees is Resolution 194 (III) of 11 December 1948, adopted by the General Assembly.5 This Resolution established a Conciliation Commission for Palestine and instructed it to "take steps to assist the Governments, and authorities concerned to achieve a final settlement of all questions outstanding between them." Paragraph 11 deals with the refugees: "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."

Though the Arab States originally rejected the Resolution, they later relied on it heavily and have considered it as a recognition of a wholesale right of repatriation.

This interpretation, however, does not seem warranted: the paragraph does not recognize any "right", but recommends that the refugees "should" be "permitted" to return. Moreover, that permission is subject to two conditions – that the refugee wishes to return, and that he wishes to live at peace with his neighbours. The violence that erupted in September 2000 forecloses any hope for a peaceful co-existence between Israelis and masses of returning refugees. The return should take place only "at the earliest practicable date". The use of the term "should" with regard to the permission to return underlines that this is only a recommendation.

One should also remember that under the UN Charter the General Assembly is not authorized to adopt binding resolutions, except in budgetary matters and with regard to its own internal rules and regulations.

Finally, the reference to principles of international law or equity applies only to compensation and does not seem to refer to the permission to return.

It should also be borne in mind that the provision concerning the refugees is but one element of the Resolution that foresaw "a final settlement of all questions outstanding between" the parties, whereas the Arab States have always insisted on its implementation (in accordance with the interpretation favourable to them) independently of all other matters.

As a result of the Six-Day War in 1967, there were a great number of Palestinian displaced persons (i.e. persons who had to leave their home and move to another place in the same State). These were deal with by the Security Council Resolution 237 of 4 June 1967,6 which called upon the government of Israel "to facilitate the return of those inhabitants [of the areas where military operations have taken place] who have fled the areas since the outbreak of hostilities". The Resolution does not speak of a "right" of return and, like most Security Council resolutions, it is in the nature of a recommendation. Nevertheless, Israel has agreed to their return in various agreements, to be studied later.

Of great importance in the Arab-Israel peace process is Security Council Resolution 242 of 22 November 1967.7 In its second paragraph, The Council "Affirms further the necessity … (b) for achieving a just settlement of the refugee problem." The Council did not propose a specific solution, nor did it limit the provision to Arab refugees, probably because the right to compensation of Jewish refugees from Arab lands also deserves a "just settlement". There is no basis for the Arab claim that Resolution 242 incorporates the solution recommended by General Assembly Resolution 194 of 1948 analyzed above.

3. Agreements between Israel and Her Neighbours

Already in the Framework for Peace in the Middle East agreed at Camp David in 1978 by Egypt and Israel8 the refugee problem was tackled: it was agreed that a "continuing committee" including representatives of Egypt, Israel, Jordan and the Palestinians should "decide by agreement on the modalities of admission of persons displaced from the West Bank and Gaza in 1967" (Article A,3). Similarly, it was agreed that "Egypt and Israel will work with each other and with other interested parties to establish agreed procedures for a prompt, just and permanent implementation of the resolution of the refugee problem" (Article A,4).

In the Declaration of Principles on Interim Self-Government Arrangements of 1993 between Israel and the Palestinians,9 again it was agreed that the modalities of admission of persons displaced in 1967 should be decided by agreement in a "continuing committee" (Article XII). The issue of refugees should be negotiated in the framework of the permanent status negotiations (Article V,3). The 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip10 adopted similar provisions (Articles XXXVII,2 and XXXI,5).

Somewhat more detailed is the relevant provision (Article 8) in the Treaty of Peace between Israel and Jordan of 1994.11 As to the displaced persons, they are the object of a text similar to the above ones. As to the refugees, the Peace Treaty mentions the need to solve their problem both in the framework of the Multilateral Working Group on Refugees established after the 1991 Madrid Peace Conference, and in conjunction with the permanent status negotiations. The Treaty also mentions "United Nations programmes and other agreed international economic programmes concerning refugees and displaced persons, including assistance to their settlement".12

None of the agreements between Israel and Egypt, the Palestinians and Jordan grants the refugees a right of return into Israel.

Conclusions

This short survey has shown that neither under the international conventions, nor under the major UN resolutions, nor under the relevant agreements between the parties, do the Palestinian refugees have a right to return to Israel. According to Palestinian sources, there are about 3.5 million Palestinian refugees nowadays registered with UNRWA.13 If Israel were to allow all of them to return to her territory, this would be an act of suicide on her part, and no state can be expected to destroy itself.

Great efforts should be made by all those involved, and with the help of friendly outside powers, to find a reasonable, viable and fair solution to the refugee problem.14

Footnotes

1) The 1948 Universal Declaration of Human Rights, Article 13(2); The 1966 International Covenant on Civil and Political Rights, Article 12(4); The 1963 Protocol IV to the European Convention on Human Rights, Article 3(2); The 1969 American Convention on Human Rights, Article 22(5); The 1981 Banjul Charter on Human and Peoples' Rights, Article 12(2) – see Sir Ian Brownlie, ed., Basic Documents on Human Rights, 3rd edition, Oxford 1992, pp. 21, 125, 347, 495, 551. For additional examples, see Paul Sieghart, The International Law of Human Rights, 1985, pp. 174-78.

2) Article 12(4).

3) Some experts are of the opinion that the right of return applies also to "permanent legal residents" – see e.g. the discussion that took place in the sub-commission on Prevention of Discrimination and Protection of Minorities, as reported in the Report by Chairman Rapporteur Mr. Asbjorn Eide, UN Doc. E/CN.4/Sub.2/1991/45, of 28 August 1991, at p.5. The Human Rights Committee established under the International Covenant on Civil and Political Rights has adopted an interpretation according to which the right of return belongs also to a person who has "close and enduring connections" to a certain country – UN Doc. CCPR/C/21/Rev.I/Add.9, 2 November 1999, at pp. 5-6.

4) Stig Jagerskiold, "The Freedom of Movement", in Louis Henkin, ed., The International Bill of Rights, New York, 1981, pp. 166-184 at p. 180.

5) General Assembly Official Records, 3rd session, part 1, 1948, Resolutions, pp. 21-24.

6) Security Council Official Records, 22nd year, Resolutions and Decisions, 1967, p. 5.

7) Ibid., pp. 8-9.

8) UN Treaty Series, vol. 1138, (1987), no. 17853, pp. 39-45.

9) International Legal Materials, vol. 32, 1993, pp. 1525-44.

10) The full text was published by the Ministry of Foreign Affairs of Israel, and in Kitvei Amana, vol. 33, No. 1071, pp. 1-400 (Israel's publication of treaties). For excerpts, see International Legal Materials, vol. 36, 1997, pp. 551-647.

11) International Legal Materials, vol. 34, 1995, pp. 43-66.

12) Article 8, para. 2(c), at 49-50.

13) According to various estimates, the number of refugees in 1948 was between 538,000 (Israeli sources), 720,000 (UN estimates) and 850,000 (Palestinian sources). The enormous growth in the number for UNRWA purposes is the result of the fact that UNRWA has adopted a very broad definition of Palestinian refugees, which is much broader than the one adopted in the generally recognized 1951-1967 Convention Relating to the Status of Refugees. For the UNRWA definition, see Don Peretz, Palestinians, Refugees, and the Middle East Peace Process, Washington, 1993, pp. 11-12. For the definition adopted by the international conventions, see UN Treaty Series, vol. 189, (1954, No. 2545, pp. 137-221, at pp. 152-156.

14) See e.g. Donna E. Arzt, Refugees Into Citizens: Palestinians and the end of the Arab-Israeli Conflict, New York, 1997; Joseph Alpher and Khalil Shikaki, The Palestinian Refugee Problem and the Right of Return, Harvard University, 1998.

Palestinian Right of Return: International Law Analysis

BADIL – Information & Discussion Brief

Issue No.8 , January 2001

Palestinian Refugees and the Right of Return: An International Law Analysis

Gail J. Boling

BADIL-Briefs aim to support the Palestinian-Arab and international debate about strategies for promotion of Palestinian refugees’ right of return, restitution, and compensation in the framework of a just and durable solution of the Palestinian/Arab – Israeli conflict.


Background

Brief No. 8 is the first of three Briefs (covering the right of return, restitution, and compensation), that examine the basis in international law for a framework for durable solutions for Palestinian refugees. This Brief examines the individual right of return of Palestinian refugees displaced in 1948 as set forth in UN General Assembly Resolution194 (III) of 11 December 1948 as grounded in international law. It is important to note that the individual right of return is completely separate from any collective right of return. However, individual and collective rights are not mutually exclusive under international law but rather supplementary and complementary; the exercise of one right can never cancel out the exercise of another and should never be viewed as doing so.

In this Brief, the author argues that the right of refugees to return to their homes and properties had already achieved customary status (binding international law) by1948 . UN Resolution194 , therefore, simply reaffirms international legal principles that were already binding and which required states to allow refugees to return to their places of origin, and prohibited mass expulsion of persons – particularly on discriminatory grounds. UN Resolution194 ‘s consistency with international law and practice over the past five decades further strengthens its value as a normative framework for a durable solution for Palestinian refugees today.

NOTE: Brief No. 8 is based on a longer legal analysis prepared by Gail J. Boling, Coordinator of BADIL?s Legal Unit. To make the subject of this Brief accessible to the widest possible audience, we have chosen a summarized format with minimal legal citations. The full legal analysis with a complete set of legal citations is available from BADIL upon request.  

Introduction

For more than fifty years, Israel has based its refusal to allow Palestinian refugees to exercise their right of return on a number of key arguments. These include: the lack of physical space, the desire to maintain a demographic Jewish majority, state security, and international law. This Brief addresses the right of return in international law. While supporters of the Israeli position try to attack the right of return as articulated in General Assembly Resolution 194 (III) – for example, by attempting to argue that the right of return is not mandatory, that it does not apply to mass groups and that it is only reserved for “nationals” of Israel – these claims, in fact, have no basis in international law.

The right of refugees to return to their homes and properties – sometimes referred to as their place of last habitual residence – is anchored in four separate bodies of international law: the law of nationality, as applied upon state succession; humanitarian law; human rights law; and refugee law (a subset of human rights law which also incorporates humanitarian law). The right of return applies in cases where persons have been deliberately barred from returning after a temporary departure and in cases of forcible expulsion (on a mass scale, or otherwise). In the latter case, the obligation of the state of origin under international law to receive back illegally expelled persons is even stronger. Any type of governmental policy designed to block the voluntary return of displaced persons is strictly prohibited.

Historically speaking, the right of return had achieved customary status in international law by 1948. Customary norms are legally binding upon all states, and states are, therefore, legally obligated to follow the rules codified by these norms. The United Nations reaffirmed the status of the right of return as a customary norm applicable to Palestinian refugees in General Assembly Resolution 194. The obligation of the United Nations to uphold the rule of law and to ensure the immediate and full implementation of the right of return is even greater due to the role that the UN played (for example, through General Assembly Resolution 181 proposing “partition” of Palestine) in the chain of events that led to the creation of the Palestinian refugee situation in the first place. Israel, however, as the sole “state of origin,” is the only state with the binding obligation under international law to receive back the 1948 Palestinian refugees.

This Brief examines the right of return of Palestinian refugees as grounded in the four relevant bodies of international law. The first section of the Brief examines the right of return as set forth in UN Resolution 194. After reviewing each relevant body of international law, the Brief reviews Resolution 194 once more, in light of international law principles and state practice. The conclusion demonstrates that the responsibility of the international community to ensure that Israel immediately and fully implements the Palestinian refugees’ right of return has not diminished but has, on the contrary, gained even greater weight with the intervening passage of more than fifty years since the period of initial displacement.

UN General Assembly Resolution 194 (III) and the Right of Return

In December 1948, the UN General Assembly established a mechanism, the United Nations Conciliation Commission (UNCCP), to facilitate implementation of durable solutions for refugees in Palestine, based on recommendations of the UN Mediator Count Folke Bernadotte. UN General Assembly Resolution 194, paragraph 11, sets forth the framework for a solution to the plight of Palestinian refugees. Resolution 194, paragraph 11, sub-paragraph 1, by its express terms, identifies three distinct rights that Palestinian refugees are entitled to exercise under international law – return, restitution, and compensation. Resolution 194 further affirms that those refugees choosing not to exercise their right of return are entitled to be resettled and receive compensation for their losses. Paragraph 11, sub-paragraph 2, then instructs the UNCCP to facilitate implementation of the complete set of solutions to the plight of the refugees. These include, in order of reference, repatriation, resettlement, compensation, and economic and social rehabilitation.

Of primary relevance to this Brief is the right of return. Paragraph 11, sub-paragraph 1 of Resolution 194 states the right of return clearly, declaring that 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 emphasis on repatriation as the preferred solution for Palestinian refugees reflects several principles, including the right of displaced persons to return to their homes, as well as the prohibitions against arbitrary denationalization and mass expulsion (explained in the sections below), that were customary norms of international law by 1948. This is reflected in the language of the UN Mediator’s recommendation for a solution to the plight of the refugees, which acknowledges the fact that no new rights were being created. “The right of the Arab refugees to return to their homes in Jewish controlled territory at the earliest possible date should be affirmed by the United Nations”.” (emphasis added).

The UN Mediator’s recommendation was subsequently incorporated into Resolution 194. Commenting on the original draft of paragraph 11, the representative of the United States acknowledged that the General Assembly was creating no new rights, stating that paragraph 11 “endorsed a generally recognized principle and provides a means for implementing that principle”. By contrast, it is important to note that sub-paragraph 1, which delineates the rights of the refugees, does not include resettlement. Resettlement is only included in sub-paragraph 2, which instructs the UNCCP to facilitate implementation of the rights affirmed in sub-paragraph 1 according to the choice of each individual refugee. The emphasis on repatriation was consistent with the mandates of several international agencies established to facilitate solutions for other groups of refugees predating the events of 1948.

The UN Mediator clearly regarded the right of return as the most appropriate remedy to correct the mass expulsion of Palestinians and the massive violation of their fundamental human rights. “The exodus of Palestinian Arabs resulted from panic created by fighting in their communities, by rumors concerning real or alleged acts of terrorism, or expulsion,” wrote Count Bernadotte in his September 1948 report. “There have been numerous reports from reliable sources of large-scale pillaging and plundering, and of instances of destruction of villages without apparent necessity”. It would be an offence against the principles of elemental justice,” Bernadotte concluded, “if these innocent victims of the conflict were denied the right to return to their homes”.”

Several principles are relevant to the implementation of the right of return as delineated in Resolution 194 . First, the Resolution clearly identifies the exact place to which refugees are entitled to return – i.e., to their homes. The drafting history of this provision is instructive. In choosing the term “to their homes,” the UN Secretariat stated that the General Assembly clearly meant the return of each refugee specifically to “his house or lodging and not [just generally to] his homeland.”The General Assembly rejected amendments that referred generally to “the areas from which they [i.e. the refugees] have come.”

Second, the Resolution affirms that return must be guided by the individual choice of each refugee. According to the UN Mediator’s report, it was an “unconditional right” of the refugees “to make a free choice [which] should be fully respected.” Reviewing the drafting history of Resolution 194, the UN Secretariat stated that paragraph 11 “intended to confer upon the refugees as individuals the right of exercising a free choice as to their future.” The legal advisor to the UN Economic Survey Mission reached the same conclusion: “The verb ‘choose’ indicates that the General Assembly assumed that the principle [i.e., the right of return] would be fully implemented, and that all the refugees would be given a free choice as to whether or not they wished to return home.” The principle of refugee choice had also recently been incorporated into the mandate of the International Refugee Organization, established in 1947 to facilitate solutions for WWII refugees in Europe, and would subsequently become a key principle governing durable solutions to refugee flows.

Third, Resolution 194 identifies the time frame for the return of refugees – i.e., “at the earliest practicable date.”  That the General Assembly intended for Israel to repatriate the Palestinian refugees immediately, and without waiting for any final peace agreement with the other parties to the conflict, is indicated by the chosen phrasing of paragraph 11. Based on the drafting history and debate, the UN Secretariat concluded that “the Assembly agreed that the refugees should be allowed to return when stable conditions had been established. It would appear indisputable that such conditions were established by the signing of the four Armistice Agreements in 1949.

Fourth, Resolution 194 imposes an obligation on Israel to re-admit the refugees. The UN Secretariat held the view that Israel was obligated under the provisions of Resolution 194 to create the conditions that would facilitate the return of the refugees. Reviewing the meaning of the phrase that refugees wishing to return to their homes “should be permitted to do so,” the UN Secretariat noted that the injunction imposed an obligation “to ensure the peace of the returning refugees and protect them from any elements seeking to disturb that peace.”

Finally, Resolution 194 was drafted to apply to all refugees in Palestine. While the first two drafts of paragraph 11 used the term “Arab refugees” the final draft approved by the General Assembly on 11 December only used the term “refugees.” The discussion in the General Assembly concerning the draft resolutions indicates that the term “Arab refugees” was initially used simply because most of the refugees were in fact Palestinian Arabs. By using the broader term “refugees,” however, the General Assembly indicated that the rights reaffirmed in paragraph 11 were to be applied on a non-discriminatory basis.

The fact that the General Assembly made Israel’s admission as a member to the United Nations conditional upon implementation of Resolution 194 clearly indicates that the Assembly considered Israel to be fully bound to ensure full implementation of the Palestinian refugees’ right of return. The UN General Assembly has reaffirmed Resolution 194 annually without diminution since its original promulgation in 1948. The right of return, as set forth in Resolution 194, continues to conform with binding norms of international law as explained below, strengthening its relevance as a durable solution for Palestinian refugees.

The Right of Return in the Law of Nationality

The law of nationality is a subset of the larger “law of nations,” which regulates state-to-state obligations. The first major principle of relevance to the right of return is that while states do have some domestic discretion in regulating their nationality status (i.e., determining who is a national of their country) such discretion has clear limits under international law. The domestic discretion of states to regulate their nationality status will only be recognized at the international level to the extent that it complies with international law.

This principle is universally recognized and has been reaffirmed by a 1923 advisory opinion rendered by the Permanent Court of International Justice, in the authoritative 1930 Hague Convention on Certain Questions relating to Conflict of Nationality Laws, and by the International Court of Justice in 1955. It has also been clearly formulated by various United Nations bodies, including the General Assemblx’s Sixth (Legal) Committee and the UN High Commissioner for Refugees. Under the law of nationality, states are limited in their domestic discretion to regulate their own nationality status by several additional binding obligations under international law, as described in the following section.

The Law of State Succession

The law of state succession applies whenever one state (a predecessor state) is followed in the international administration of a geographical territory by another state (the successor state). In the case of Palestinian refugees, the predecessor state was the embryonic state of Palestine for which, under international law, the British Mandate for Palestine constituted a “stand-in,” “custodian” or “guarantor,” and was succeeded, in part, by the state of Israel. When territory undergoes a change of sovereignty, the law of state succession requires that habitual inhabitants of the geographical territory coming under new sovereignty be offered nationality by the new state. Furthermore, this rule applies regardless of whether the habitual residents of the territory so affected are actually physically present in the territory undergoing the change of sovereignty on the actual date of the change or not. This rule represents a customary norm of international law and is binding upon all states.

Article14 (2) of the Articles on Nationality of Natural Persons in Relation to the Succession of States drafted by the International Law Commission and adopted verbatim by the General Assembly, specifically enumerate a right of return in the law of state succession for all habitual residents of a territory undergoing a change in sovereignty. Three aspects of Article 14 are significant in clarifying the rules the mandatory obligation of the successor state (Israel) to implement the right of return of Palestinian refugees in this specific context of state succession. First, irrelevant to (in other words is not a required element for) for habitual residents of a territory undergoing a change of sovereignty to have a right to return to that geographical area. Second, Article 14(2)’s right of return applies by its express terms to all habitual residents of a given territory undergoing a change of sovereignty even if they were actually outside the geographical territory concerned on the actual date of succession. Third,mandatory for all successor states, as is indicated by use of the word “shall” in Article14 (2). Article 5 reiterates the rule of Article 14(2).

Under these rules, the presumption that habitual residents of a territory undergoing a change of sovereignty will acquire the nationality status of the successor state can only be rebutted by nationality procedures, which are themselves in conformity with international law. This rule was recognized by the legal advisor to the UN Economic Survey Mission in 1949 and by a Tel Aviv district court in a 1951 case, in which the judge’s opinion expressly stated that international law and the rules of the law of state succession, in particular, were specifically relied upon. The judge came to the conclusion that in the absence of any law to the contrary (and since the opinion was rendered in 1951, Israel had not yet enacted its 1952 Nationality Law), all Palestinians who remained inside the 1949 armistice lines should automatically be considered nationals of the state of Israel, through the automatic operation of international law. The law of state succession requires the same result as well for all Palestinian refugees who were temporarily outside the territory on the date of succession.

There are two more provisions of the Articles on Nationality, which are extremely relevant to the case of the Palestinian refugees: Article 15, which prohibits governments from practicing discrimination in the conferral of nationality status; and Article 16, which requires that adequate due process safeguards be provided in the determination of nationality status.  Israel has violated Article 15 by drafting its 1952 Nationality Law for “non-Jews” (explained in the section on the prohibition against denationalization below) in such a way as to effectively denationalize Palestinian refugees, while allowing Jews from anywhere in the world to acquire “nationality” status through the much more generous terms of Israel’s Law of Return for Jews (also explained below).  Israel has violated Article  16 by failing to allow Palestinian refugees to re-enter Israel, thereby denying them the basic opportunity to be heard in a court of law to challenge the legality – particularly under international law – of Israel’s 1952 Nationality Law.

Implementing the Right of Return Is an Obligation Owed by a State to All Other States

Under the law of nationality, the duty to implement the individual’s right of return is an obligation owed by a state to all other states. The rule is that states are required to readmit (i.e., allow to exercise their right of return) their own nationals – including temporarily displaced persons in cases of state succession – because to refuse to do so would impose on some other state a resulting obligation to receive, or to host, the rejected individual. This principle is known as the “rule of readmission.”  The rule rests upon the premise that a state may not choose to reject, or leave stranded, a national outside its borders by refusing readmission because such an action would impose an unacceptable corresponding burden upon another (receiving) state to accept the stranded individual. Under international law, states may not burden each other in this way.

The Prohibition against (Mass) Denationalization

There exists another customary (binding) rule under the law of nationality known as the  “prohibition against denationalization.”  This rule follows as a natural corollary to the rule of readmission, already discussed above.  The prohibition against denationalization prevents a state from using revocation of nationality status (i.e., denationalization) as a means of avoiding its obligation to admit its own nationals. This rule – like the rule of readmission, which is its “sister” rule in the law of nationality – had attained customary status well before the events of 1948. The prohibition against denationalization exists in an authoritative draft international convention dating from 1930, various regional declarations (such as the 1986 Strasbourg Declaration on the Right to Leave and Return), in resolutions by UN organs, and numerous respected commentators have written of the prohibition against denationalization as a binding norm of customary law since as early as 1927. The entry for “Population, Expulsion and Transfer” in the authoritative Encyclopedia of Public International Law puts the rule categorically, stating that nationals may not be denied re-admission on the rationale that they are no longer nationals.

Denationalization is prohibited under international law in the case of a single instance affecting a single person. The prohibition against denationalization is therefore much stronger when denationalization is implemented on a mass scale and is intended by the government so acting, to cast out a whole large class of nationals from the body politic of the state. Israel’s 1952 Nationality Law (for “non-Jews”) completely violates the rule of the law of nationality prohibiting denationalization. While the 1952 Nationality Law carefully avoids the use of the term “non-Jew” in describing the narrowly defined categories of persons who might be eligible for Israeli citizenship thereunder, it was clearly intended to apply to non-Jews only because Jews would obviously avail themselves of the easier terms and procedures under the Law of Return (for Jews). The vast majority of Palestinian refugees are factually incapable of meeting the strict requirements of Israel’s 1952 Nationality Law and have therefore been effectively denationalized.

The Right of Return in Humanitarian Law

The right of return is also anchored in humanitarian law, the body of law regulating what states are permitted to do during war. Both the Hague Regulations annexed to the 1907 Hague Convention Respecting the Laws and Customs of War on Land (which are universally recognized, including by Israel, to have achieved customary status by 1939) and the 1949 Geneva Civilians Convention (to which Israel is a signatory) provide for the right of return of displaced persons to their homes following the cessation of hostilities.  The provisional government of Israel (through responsibility for its army and the Zionist paramilitary forces which preceded it) was fully bound by the rules of humanitarian law when Zionist forces unilaterally embarked upon the enterprise of trying to establish a state through military means. Palestinian communities were progressively displaced in 1948 as Zionist/Israeli forces established successive “zones of military occupation” as they gained control over specific geographical areas. 

The “general” Right of Return in Humanitarian Law

Under humanitarian law, there is a general right of return, which applies to all displaced persons, irrespective of how they came to be displaced during the period of conflict. This rule was first codified in Article 43 of the Hague Regulations (and incorporated into all subsequent customary humanitarian law, including the Geneva Conventions and their related Protocols). According to this rule, a belligerent occupant must preserve the legal and social status quo in the occupied territory to the maximum extent possible, pending the final legal resolution of the conflict (i.e., a peace agreement). The content of the rule of Article 43, which is broader in the official (French) version than in the unofficial English translation, means, in practical terms, that a belligerent occupant must let the population continue its normal existence with a minimum of interference. This would logically include a requirement that the local population be permitted to remain in, or return to, their place of origin following the cessation of hostilities.

While the Hague Regulations do not specifically articulate the obligation of a state to repatriate (i.e., allow to exercise their right of return) civilian residents of the territory who may have become temporarily displaced during the conflict, the entire purpose of the Hague Regulations – as is clearly stated in the Preamble to the Hague Convention – and indeed of all humanitarian law generally is to mitigate the severity of war as much as possible and to spare the local inhabitants to the maximum extent possible. Accordingly, it must be logically obvious that the rule of humanitarian law requiring the repatriation of prisoners of war following the cessation of hostilities (which is stated in Article 20 of the Hague Regulations) must necessarily include a rule requiring the repatriation of civilian residents to their place of origin following the cessation of hostilities. 

The sources of the right of return in the Fourth Geneva Convention are Article 4, Article 6(4) and Article 158(3). Article 4 defines protected persons who are covered by the Convention. The definition of protected persons covers all habitual residents of a territory who may have become temporarily displaced from their place of origin during the conflict (for whatever reason), and provision for their repatriation has been made in two separate articles of the Convention. The first repatriation provision appears in Article 6(4), which covers the end dates of the applicability of the Convention.  Specifically, Article 6(4) states that the Convention shall remain in effect, even after the cessation of hostilities, for those protected persons in need of repatriation. The second repatriation provision appears in Article 158, which covers the procedures whereby a state may “denounce” the Convention.  Specifically, Article 158(3) states that a denunciation may not take effect until after the repatriation of protected persons has occurred.

The Right of Return in Cases of Forcible (Mass) Expulsion

There is a second type of right of return provided for in humanitarian law. This applies when persons have been displaced through a forcible expulsion (for example, at gunpoint, under threat of fire or through the deliberate military “stampeding” of a population out of its place of habitual residence). The involuntary transfer of even a single individual – e.g., through deportation – is conclusively prohibited under humanitarian law. Deliberate, forcible expulsion – when carried out on a mass scale – is therefore even more strongly prohibited under humanitarian law. The only appropriate corrective remedy for forcible expulsion, under international law, is implementation of the right of return.

The prohibition against forcible expulsion has its basis in Article 46(1) of the Hague Regulations. Pierre Mounier, an assistant prosecutor for the Allies in the criminal prosecution of the Nazi leaders in the International Military Tribunal (IMT) at Nuremberg, stated in his opening arguments on November 20, 1945 that deportation violated Article 46 of the Hague Regulations, as well as customary international law in general. For that reason, the Charter of the International Military Tribunal included deportation in the definition of both “war crimes” (in Article 6(b) of the IMT Charter) and “crimes against humanity” (in Article 6(c) of the IMT Charter). Barring the return of forcibly expelled persons was similarly condemned as illegal.

The prohibition against forcible expulsion – and the related remedy of repatriation (the right of return) – appear in three articles of the Fourth Geneva Convention. Article 45 strictly limits the circumstances under which protected persons may be temporarily transferred (i.e., only to the care of another state party to the Fourth Geneva Convention) and categorically requires repatriation of protected persons to their (habitual) residence following the cessation of hostilities. Article 49 prohibits forcible expulsion in quite express terms: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”  Like Article 45, Article 49 also requires immediate repatriation “to their homes” of all persons (including those temporarily evacuated during extreme necessity) following the cessation of hostilities.

Article 147 of the Fourth Geneva Convention defines “grave breaches” of the Convention, which are violations of humanitarian law of such egregious severity that they are required to be made subject to penal (criminal) sanctions by all other “Contracting Parties” to the Convention (i.e., states which have signed the Convention).  Deportation and forcible population transfer are classified as grave breaches. Under the theory developed by the prosecutors at the IMT in Nuremberg, deliberately blocking the right of return of persons forcibly expelled also falls well within the scope of a grave breach of the Fourth Geneva Convention. Yet another prohibition against forcible expulsion appears in Article 17 of Protocol II to the Fourth Geneva Convention, which applies in cases of non-international armed conflict.

The Right of Return in Human Rights Law

Human rights law – which confers rights directly upon individuals and not through states – also contains the right of return. Every individually-held right recognized under human rights law imposes a corresponding duty upon states to recognize that enumerated right. The right of return is a customary norm of international human rights law and is found in a vast array of international and regional human rights treaties. The Universal Declaration of Human Rights (UDHR), which the General Assembly adopted in 1948 one day prior to Resolution 194, is the foundation for the right of return in human rights law. Article 13(2) of the UDHR phrases the right of return broadly and simply, as follows: “Everyone has the right to leave any country, including his own, and to return to his country.” Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) phrases the right of return fairly similarly: “No one shall be arbitrarily deprived of the right to enter his own country.” Israel has signed and ratified the ICCPR and has not made any reservations to Article 12(4), containing the right of return.

The phrasing of the right of return under Article 12(4) of the – which uses the term “enter” rather than “return” – is broader than the phrasing of the right under the UDHR.  Thus, the ICCPR phrasing of the right of return would accommodate the situation of second-, third- or fourth-generation Palestinian refugees. Article 12(4) of the ICCPR uses the phrase “his own country” to specify the destination or location where the right of return is to be exercised. [According to] General Comment No. 27 […] Article12(4) establishes that the phrase “his own country” applies to a much broader group of persons than merely “nationals” of a state. The language is intended to include: “nationals of a country who have been stripped of their nationality in violation of international law, […] individuals whose country of nationality has been incorporated in or transferred to another entity, whose nationality is being denied them [and] stateless persons arbitrarily deprived of the right to acquire the nationality of the country of [their long-term] residence.”

Understanding the precise intent of the ICCPR drafters in incorporating the word “arbitrarily” into the formulation of the ICCPR Article 12(4) is critical to understanding the scope of right guaranteed because “arbitrarily” is the only […] Analysis of the drafting history is useful, and the commentators are in uniform agreement that the word arbitrarily refers to only one specific factual instance, that of the use of exile as a penal sanction (i.e., sentencing a person charged with a criminal offense to exile or banishment). Otherwise, the right of return as articulated in Article 12(4) is absolute, subject only to the general qualification provisions of Article 4(1) of the ICCPR (which themselves only permit derogations which are “not inconsistent with other obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion or social origin?). qualification on the right of return listed in Article 12(4).

Some commentators have tried to argue that Article 12(4) only applies to individuals, and not to large groups of people seeking to claim the right simultaneously. This argument does not make sense logically, since all rights enumerated in the ICCPR are granted to individuals personally, regardless of how many other people might be seeking to exercise the same enumerated right, and at what point in time.  Respected commentators have rejected the concept that the Article 12(4) cannot apply to large groups of people. Additionally, various UN organs, including the UN High Commissioner for Refugees, have expressly found that large groups of people do have a right of return that is explicitly grounded in both Article 12(4) of the ICCPR and its “mother” article, Article 13(2) of the UDHR. As one commentator has noted, “[T]he right to return in both the UDHR and the ICCPR was the basis for guaranteeing this right in recently signed peace agreements in order to resolve conflicts in Rwanda and Georgia, both of which produced hundreds of thousands of refugees and displaced persons.”

Finally, it must be noted that the ICCPR contains a general non-discrimination provision in Article 2(1), which categorically prohibits governmental interference with ICCPR-guaranteed rights based on “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Returning to Israel’s two nationality laws – the 1950 Law of Return (for Jews) and the 1952 Nationality Law (for “non-Jews”) – it becomes immediately obvious that the intended result of these two laws working together in tandem is precisely to use “race, colour, language, religion, political or other opinion, national or social origin, birth or other status” as filters for administering the conferral of Israeli nationality status.  Such a blatant use of ICCPR-prohibited criteria to screen in and screen out prospective nationals – particularly when the millions of persons thus screened out already should have been considered nationals of Israel (the successor state) by automatic operation of international law as detailed above – constitutes prima facie discrimination expressly prohibited by the ICCPR and a violation of Israel’s treaty obligations under the ICCPR.

Another major international human rights convention, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), similarly incorporates the right of return in its Article 5 (d)(ii), phrasing it as “[t]he right to leave any country, including one’s own, and to return to one’s country.” Israel has signed and ratified CERD and has made no reservation to this Article. CERD also lists the right of return as an enumerated right subject to the categorical non-discrimination rule of the opening paragraph of Article 5: “States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights.” Israel’s use of prohibited criteria to confer its nationality status therefore also violates its treaty obligations under CERD.

International human rights law also incorporates the general prohibition against forcible expulsion (mass or otherwise) from one’s home or place of origin. Forcible expulsion violates a vast host of specifically enumerated rights contained in the broad corpus of human rights law generally, and specifically violates the protection of freedom of movement. “[Any] form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation,” states a UN report to the Sub-commission on the Prevention of Discrimination and Protection of Minorities, “directly affects the enjoyment or exercise of the right of free movement and choice of residence within States and constitutes a restriction upon this right.” Similarly, the UN Sub-commission has invoked both Article 12(4) of the ICCPR and Article13 (2) of the UDHR regarding the inadmissibility of mass expulsions.Finally, General Comment No. 27 specifically states that ICCPR Article 12(4) applies in cases of “enforced population transfers or mass expulsions” and, therefore, reinforces Article 12(4)’s applicability to large groups of people as discussed above.

The Right of Return in Refugee Law and State Practice (Opinio Juris)

The right of return also exists in a special sub-set of human rights law, which is the law relating to refugees. The primary instrument governing rights of refugees and states’ obligation towards them is the 1951 Convention Relating to the Status of Refugees and its related 1967 Protocol. The juridical source of refugees’ right of return in refugee law is human rights law (see above for the foundation of the right of return in human rights law), while actual implementation of the right of return is through the Office of the UN High Commissioner for Refugees (UNHCR). Article 1 of the1950 Statute of the UNHCR delineates the mandate of the Agency as being to “facilitate the voluntary repatriation of  refugees, or their assimilation within new national communities.”

Under refugee law, the principle of refugees’ absolute right of return on a voluntary basis to their place of origin (including to their homes of origin) is central to the implementation of durable solutions designed by the international community to address refugee flows. Of the three durable solutions – voluntary repatriation (i.e., return), voluntary host country integration, and voluntary resettlement – the UNHCR considers voluntary repatriation to be the most appropriate solution to refugee problems. Only voluntary repatriation represents a right accorded to the individual (and a corresponding obligation on the part of the country of origin, from which the refugee flow was generated). The other solutions are neither rights of refugees nor obligations of receiving states. According to the former High Commissioner for Refugees, Ms. Sadako Ogata:

the ultimate objective of the international protection of refugees is not to institutionalize exile, but to achieve solutions to refugee problems.  Voluntary repatriation, whenever possible, is the ideal solution.  [This is why] “I have stressed the refugees” right to return home safely and in dignity.

State practice regarding implementation of bilateral or multilateral mechanisms for repatriation of refugees provides rich precedent for – and evidence of opinio juris (which is a sense of binding legal obligation on the part of states) regarding – the existence of a customary norm requiring countries of origin to receive back persons displaced or expelled therefrom. Returns of mass groups of displaced persons have occurred in conjunction with the express acknowledgment of the international community – as well as the explicit recognition by the parties to the underlying conflict themselves – that the persons returning are doing so as a matter of right.

Prominent examples include the 1994 Bosnia agreement, the 1995 Dayton Accord, the 1995 Croatia agreement, and the 1994 Guatemala agreement.  All four agreements describe the right of refugees and displaced persons to return to their homes of origin (just as the right was phrased in Resolution 194) as being unqualified. Looking at the Dayton Accord, in particular, one notes immediately that the primary rights accorded to displaced persons in that agreement mirror exactly the three rights articulated for Palestinian refugees in Resolution 194 – namely: (1) the right of return (repatriation); (2) the right of restitution (repossession); and (3) the right of compensation.

The sheer magnitude of the numbers of refugees whose voluntary return and reintegration into their respective places of origin UNHCR has proactively facilitated as an integral part of crafting durable solutions as part of comprehensive peace settlements is impressive. “During 1994 and 1995, some three million refugees returned to their countries, the largest numbers to Afghanistan, Mozambique, and Myanmar.  Late 1996 and early 1997 saw a massive return of over one million Rwandan refugees who fled during the more than four years of civil war.”During the 1990’s, an estimated 12 million refugees exercised their right to return to their homes and places of origin. By comparison some 1.3 million refugees and persons of concern to the UNHCR were voluntarily resettled during the same period.

Numerous UN resolutions relative to other refugee cases reaffirm the right of return for displaced persons. The UN Security Council has unambiguously declared that the right of refugees (and displaced persons) to return to their homes of origin (which is strikingly similar to the way the right of return is phrased in Resolution 194) is absolute.  In the context of the conflict in Bosnia and Croatia, for example, the Security Council has issued numerous resolutions affirming this particularly relevant formulation of the right of return. Similarly, in the case of the conflict in Georgia, the Security Council again affirmed the right of refugees to return to their homes of origin. In a further strong resemblance to another important aspect of Resolution 194, the Security Council specifically stated that in the case of Georgia, the right of the refugees to return was independent of any final political solution (and therefore could not be conditioned upon political demands made by any of the parties to the conflict).

Finally, in another important parallel to the Palestinian case, in both the Bosnia and Kosovo repatriation schemes devised by the international community, individual and collective rights were jointly protected. In both Bosnia and Kosovo, “the collective rights to an independent entity or statehood were preserved, along with a mechanism for individual refugees to assert their claims to repatriate and obtain restitution and/or compensation.  Each of these situations involved the establishment of claims commissions as part of a negotiated settlement, but the right of the individual to assert his/her claim was preserved independently of the outcome of the self-determination issue.” The General Assembly also has issued resolutions in the context of its initiative on state cooperation to avert new flows of refugees, which have reaffirmed “the right of refugees to return to their homes in their homelands.”

Conclusion

Discussion of the implementation of the right of return of Palestinian refugees raises all sorts of questions regarding the nature of the state of Israel and the legality of its actions vis-

Reinterpreting Palestinian refugee rights under intern’l law

BADIL – Information & Discussion Brief

Issue No.1 , February 2000

 
REINTERPRETING PALESTINIAN REFUGEE RIGHTS UNDER INTERNATIONAL LAW, AND A FRAMEWORK FOR DURABLE SOLUTIONS
 

Susan M. Akram, Associate Professor, Boston University  School of Law

 

BADIL-Briefs aim to support the Palestinian-Arab and international debate about strategies for promotion of Palestinian refugees’ right of return, restitution, and compensation in the framework of a just and durable solution of the Palestinian/Arab – Israeli conflict.


 

Background

 

The paper presented here is based on a much larger brief produced by two experts in international refugee law, Susan Akram and Guy Goodwin-Gill assisted by a team of law students at Boston University. Both the larger brief and the paper presented here argue for a re-interpretation of the current international refugee law which adequately expresses the principle of heightened protection for Palestinian refugees, a principle which had guided the drafting and consequent approval of international law and UN resolutions.

 

The author argues that the current lack of legal protection of Palestinian refugees derives from the misinterpretation of the existing refugee regime, especially the 1951 Refugee Convention, with regard to the Palestinian case. She proposes a legal reinterpretation which – if widely adopted – could turn international refugee law into an efficient tool for the protection of Palestinian refugee rights, including international protection in the framework of a durable solution based on the Palestinian right of return. The paper also addresses central strategic questions pertaining to legal representation and law enforcement which must be resolved in this context.

 

This paper was prepared for the international conference "The Right of Return: Palestinian Refugees and Prospects for a Durable Peace" organized by TARI in Boston on 8 April 2000. BADIL Resource Center thanks the organizers for their kind permission for its dissemination.

 

 

Introduction

 

Palestinian refugees have a status that is unique under international refugee law. Unlike any other group or category of refugees in the world, Palestinians are singled out for exceptional treatment in the major international legal instruments which govern the rights and obligations of states towards refugees: the1951 Geneva Convention Relating to the Status of Refugees (Refugee Convention) and its 1967Protocol (Refugee Protocol); the Statute of the United Nations High Commissioner for Refugees (UNHCR); and, specifically with regard to the Palestinians, the Regulations governing the mandate of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Almost all states and international entities have interpreted the relevant provisions in these instruments as severely restricting the rights of Palestinian refugees qua refugees in comparison to the rights guaranteed every other refugee group in the world. As a result, Palestinian refugees have been treated as ineligible for the most basic protection rights guaranteed under international law to refugees in general, further eroding the precarious international legal guarantees that international human rights and humanitarian law currently extends to this population.

 

There are a number of consequences flowing from this unique application of refugee law to the Palestinian refugee situation. First, it affects the question of the type of protection afforded Palestinians under international refugee law, as opposed to the assistance they receive as refugees. Second, it affects the extent to which Palestinian refugees can assert guarantees of international human rights and humanitarian law protections, and whether there are fora available for them to assert such rights. Third, it implicates the issue of what entity or agency has the authority to represent the interests of Palestinian refugees, whether in international bodies such as the United Nations, before other international or domestic legal/political fora, or in negotiations with states such as Israel. Fourth, it raises the complex issue of whether individual human rights recognized under international law can be protected and promoted in the Palestinian refugee case when such rights collide with collective rights under international law?in this case, the right to self-determination.

 

It is the contention of this author that interpreting refugee law principles and instruments as requiring a special and exceptionally weak international human rights regime for Palestinian refugees is an incorrect interpretation of the law. Palestinian refugees are entitled not to reduced protection, but to a heightened protection regime. These conclusions are based on an exhaustive review of the plain language of the relevant provisions, the intentions of the drafters of the instruments, and the purpose and scope of coverage of the instruments themselves. Reinterpreting the instruments in this way dramatically changes the conclusions one draws on each of the issues listed above. This paper addresses in summary form the four issues listed, examines their application under the reinterpreted instruments, and discusses some of their implications for establishing durable solutions for Palestinian refugees.

 

International Refugee Law Principles and Instruments Applicable to Palestinian Refugees

 

The primary international instrument governing the rights of refugees and the obligations of states towards them is the 1951 Convention relating to the Status of Refugees. This Convention and its 1967 Protocol incorporate the most widely accepted and applied definition of refugee, and establish minimum guarantees of protection towards such refugees by state parties. The Refugee Convention and Protocol define a “refugee? as a person who is outside the country of his nationality and is unwilling or unable to obtain the protection of his country due to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.  However, the Convention has a separate provision that applies solely to Palestinian refugees. Refugee Convention Article1 D states:

 

This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

 

Although Palestinian refugees are not specifically mentioned in this provision, it is evident both from the drafting history and the interrelationship of Article1 D with three other instruments that Palestinians are the only group to which the Article applies. These other instruments are the Statute of the UNHCR, the Regulations governing UNRWA, and UN Resolution 194 establishing the United Nations Conciliation Commission for Palestine (UNCCP).

 

Paragraph7 of the UNHCR Statute provides that “the competence of the High Commissioner’shall not extend to a person: “. who continues to receive from other organs or agencies of the United Nations protection or assistance.” The “other agencies of the United Nations? originally referred both to UNRWA and to the UNCCP. The significance of the language in these provisions lies primarily in the distinction between “protection” and “assistance”, which are dramatically different concepts in refugee law. UNRWA?s mandate is solely one of providing assistance to refugees? basic daily needs by way of food, clothing and shelter. In contrast, UNHCR?s mandate, in tandem with the provisions of the 1951Refugee Convention, establishes a far more comprehensive scheme of protection for refugees qualifying under the Refugee Convention. This regime guarantees to refugees all the rights embodied in international conventions, and mandates the UNHCR to represent refugees, including intervening with states on refugees? behalf, to ensure such protections to them. Aside from the distinction between the mandates of UNRWA and UNHCR, the refugee definition applicable to Palestinians is different and far narrower under UNRWA Regulations than the Refugee Convention definition. Consistent with its assistance mandate, UNRWA applies a refugee definition that relates solely to persons from Palestine meeting certain criteria that are “in need” of such assistance. 

 

Although UNRWA was not authorized to serve the protection function given to the UNHCR, this was not because the United Nations General Assembly believed that Palestinian refugees were any less deserving of protection. The Palestinian refugee situation was considered of such import that a separate “protection? agency was established for the sole purpose of resolving the Palestinian refugee crisis. This agency was the United Nations Conciliation Commission for Palestine (UNCCP). The General Assembly established the UNCCP by Resolution 194, setting forth its composition and terms of reference. The Resolution provided for the UNCCP to comprise three States Members of the United Nations, who were to continue the efforts of the United Nations Mediator on Palestine and begin conciliation efforts immediately. The UNCCP was further instructed to “take steps to assist the Governments and authorities concerned to achieve a final settlement of all questions outstanding between them”?specifically, according to UNGA Res.194 (III), to ensure repatriation and compensation.

 

Thus, the UNCCP was entrusted with the protection function normally assigned to the UNHCR, but with a very specific mandate concerning the requirements of a just resolution of the Palestinian refugee problem. Every recommendation to the UN, every UN Resolution concerning the Palestinians drafted when UNCCP, UNHCR and UNRWA were created, affirms that the consensus of the world body was that resolution of the Palestinian problem had to involve realizing the refugees? right of return to their homes and to appropriate compensation for their losses. The UNCCP struggled to fulfill its mandate. Its efforts were stymied by a complete stalemate: the Arab states and the Palestinians demanded full repatriation, while Israel refused to accept any repatriation of the refugees. Thus, within four years of its formation, the UNCCP devolved from an agency charged with the “protection of the rights, property and interests of the refugees? to little more than a symbol of UN concern for the unresolved aspects of the Arab-Israeli conflict.

 

A Reinterpretation of the Regime Applicable to Palestinian Refugees, and the Impact of Reinterpretation on the Search for Durable Refugee Solutions.

 

According to the widespread interpretation of these instruments and the mandate of these agencies, Palestinian refugees are entitled to nothing more than assistance for their basic quotidian needs through the offices of UNRWA; they are left outside the mandate of protection of UNHCR and the Refugee Convention; and with UNCCP?s protection mandate emasculated, they are left without any of the protection mechanisms or guarantees to which all other refugees in the world are entitled. Certain consequences flow from this standard interpretation of the Palestinian refugee regime. These include that no agency (since none has a viable protection mandate) has the authority to intervene on behalf of Palestinian refugees to represent their interests in any international fora, or to protect their human rights against infringement by states, or to negotiate on their behalf to demand a just solution to their refugee situation. In addition, since this interpretation assumes Palestinians are left outside the Refugee Convention regime as long as UNRWA continues to provide assistance, they are not eligible for the guarantees of that Convention in the Arab states, including absorption and citizenship. A corollary to this premise is that under the most prevalent interpretations of Article1 D by non-Arab states (mostly European and North America) the majority who apply are also considered ineligible for permanent resettlement as refugees or asylees in third states. A final consequence of this special Palestinian refugee regime is that there is neither a representative for the refugees with authority to take their claims to international fora, nor is there a forum with jurisdiction over their claims of repatriation, compensation or restitution.

 

There is now substantial evidence that the prevalent interpretation of these instruments and relevant agency mandates is incorrect. As this author has argued exhaustively elsewhere, the history and purpose of Article1 D in the context of the creation of the Palestinian refugee problem indicates that the ipso facto language was intended to provide Palestinian refugees with continuity of protection, albeit under various organizations and instrumentalities. Rather than interpreting Article1 D– along with Paragraph 7 of the UNHCR Statute and the UNRWA Regulations?as an exclusion clause, it is more accurate to interpret it as a contingent inclusion clause. This interpretation is far more consistent with the plain language, drafting history and applicable canons of treaty construction of the relevant provisions referred to above. Such an interpretation is grounded, as well, on two main factors.  First, the UN body has recognized through hundreds of resolutions that it bore a large part of the responsibility for creating the refugee situation in the first place by way of General Assembly Resolution 181 (II) of November1947 , recommending partition of Palestine. Second, the Palestinian refugee problem was to be resolved on the basis of a special formula, that of repatriation and compensation–on which there was complete consensus by all states but Israel– rather than the formula commonly accepted for refugees at the time, which was third-state resettlement.  The consensus of the world body, as is evident from the drafting history of the Refugee Convention and related instruments, was that the Palestinian refugee situation required special attention because of the unique responsibility of the UN in creating it, and was of such urgency that it should not be subsumed under the existing refugee regime, but required a heightened protection regime. The discussions in the drafting history of the 1951 Refugee Convention, the UNHCR Statute, and the Committee and Conference that drafted the 1954 Convention relating to the Status of Stateless Persons provides ample evidence for such a conclusion.

 

Viewing the instruments in this way completely alters the conclusions one draws to the questions raised here at the outset. As to the first question, that of what type of protection Palestinians are guaranteed under international refugee law, as opposed to the assistance they receive as refugees, Article1 D in the context of a regime of heightened protection requires that they receive at a minimum the full panoply of protection rights as all other refugees in the world. Appropriately analyzed, the heightened regime set up two agencies with immediate mandates over the Palestinian refugees: UNRWA, which was to be the assistance agency, and UNCCP, which was to be the protection agency. Article1 D?s function was to ensure that if for some reason either of these agencies failed to exercise its role before a final resolution of the refugee situation, that agencx’s function was to be transferred to the UNHCR, and the Refugee Convention would fully and immediately apply without preconditions to the Palestinian refugees. That is what the “protection or assistance” and the ipso facto language of Article 1D requires. The ramifications of this are quite clear: first, if UNCCP has failed to fulfill its protection mandate, that function must be fulfilled by UNHCR. UNHCR has for quite some time expanded its protection mandate over Palestinian refugees in some situations, in de facto if not explicit recognition of this requirement. The protective duties of UNHCR spelled out in its Statute thus applicable to Palestinian refugees include:

 

(i) Promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto?

(ii) Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities;

(iii) Promoting the admission of refugees, not excluding those in the most destitute categories, to territories of States;

(iv) Endeavoring to obtain permission to transfer their assets and especially those necessary for resettlement.

 

Thus, UNHCR is fully empowered to oversee and implement the appropriate Conventions and Resolutions relating to the rights and enforcement of solutions for the Palestinian refugees. Second, if the UNCCP ceases to function (as it has), triggering the alternative regime under Article1 D, then the Refugee Convention and all its guarantees towards refugees becomes fully applicable to the Palestinian refugees as well. These guarantees include rights to freedom of movement, access to courts, administrative assistance, regarding movable and immovable property, freedom of religion, and housing rights among many others.

 

The second question flows logically from the first, that is, what is the extent to which Palestinian refugees can assert guarantees of international human rights and humanitarian law protections?  The answers to question one begin to answer this question as well: at an absolute minimum, all international human rights and humanitarian protections available to other refugees are equally available to Palestinian refugees. In addition, refugee law principles applicable to other refugee situations are applicable to the Palestinians as well. These principles include the guarantee that the options for permanent solutions available to refugees will be guided by each refugee’s voluntary choice in determining which of the three main durable solutions s/he wishes to exercise for him/herself. In fact, in delineating durable solutions, UNHCR describes them as voluntary repatriation, voluntary host country absorption, or voluntary third-country resettlement. Refugee law principles and precedents also include the right to claim restitution of property, and/or compensation for losses caused by the refugee-producing state. In the last twenty years the principles on refugee return, restitution and compensation have been greatly strengthened through  inclusion in numerous negotiated settlements, such as the Comprehensive Plan of Action in the Indochinese refugee situation; the Bosnia-Serbia settlements in the Dayton Peace Accords; and the peace agreements on Guatemala and El Salvador.

 

But the heightened refugee regime for Palestinians requires the application of an additional body of declaratory principles, that of the numerous UN Resolutions which are to be implemented in any final resolution of the refugee problem. The legal effect of these Resolutions, which include on the refugee issue UNGA Res. 194and UNGA Res.181 , has been discussed at length elsewhere, but is relevant to the body of rights and principles applicable to the Palestinians as refugees. The Resolutions establish a body of legal authority reflecting the consensus of the world community that in addition to standard refugee law and rights, the Palestinian case is to be resolved in accordance with a particular agreed-upon solution, that of repatriation and compensation. Article 1D?s language, “without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations”? emphasizes that Palestinian refugees continue to be entitled to Refugee Convention benefits under the special scheme because their situation is not resolved unless the solution is consistent with the UN Resolutions. This also means that if Palestinian refugees obtain residence in host or resettlement states, their right to exercise the choice of repatriation or compensation is not necessarily compromised because their position has not been “definitively settled in accordance with the relevant resolutions”. The fact that UNGA Res. 194 has been reaffirmed over 100 times is strong evidence of its authority as customary international law on the Palestinian refugee question.

 

As to the third question, that of which entity or agency has the authority to represent the interests of Palestinian refugees, one must first recognize that the special regime requires that a separate agency be empowered with the capacity to stand in the shoes of the Palestinian refugees. With that premise, if the UNCCP is not capable of carrying out such a mandate, the obvious choice – effectuating Article1 D?is the UNHCR. Indeed, UNHCR has a clear mandate to represent refugees in most international fora, in negotiations over durable solutions for refugees, and in bilateral or multilateral committees or task forces. The International Court of Justice has recognized in its Advisory Opinion on Injuries Suffered in the Service of the United Nations that the UN has the capacity to bring an international claim against a state with a view to obtaining reparation for damage caused to its agent or to the “interests of which it is the guardian”. Under the theory of this Advisory Opinion, UNHCR, as a UN subsidiary body, has the right to represent the interests of refugees before that body. Although UNRWA has been present in an observer capacity in the committees established by the multilateral negotiations under the Madrid agreement and the bilateral negotiations begun at Oslo, its presence has been protested by Israel, and it currently does not have capacity to represent the refugees by the terms of its own Regulations. A final possibility for representing the refugees is creating separate bodies directly authorized by the refugees to carry out their wishes. Examples are the various Jewish groups that negotiated for restitution and compensation with the European Nazi states following World War II. Another example is the World Organization of Jews from Arab Countries, which represents the interests of those individuals in their claims for restitution and compensation against the Arab states.

 

The issue of representation of the Palestinian refugees is critical and urgent vis-

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