Thursday, February 16, 2006

Radical Refugees: Hijacking Human Rights
What International Law Really Says About the Palestinian “Right of Refugee Return”

Gidon D. Remba
Among the final status issues explored at the Camp David II summit in July 2000, and at the Taba talks in January 2001—including settlements, territory, Palestinian statehood, Israeli security, water, and Jerusalem—the problem of the Palestinian refugees remains the most nettlesome. The refugee problem cuts to the heart of the national conflict. Palestinians who demand a right of return for as many as four million refugees and their descendants to former villages and homes in Israel subvert the Palestinian claim to accept a two-state solution. The exercise of that right by an appreciable number of refugees would soon sabotage Israel’s Jewish majority, and its character as a Jewish state. Palestinian radicals call for an unfettered right of return under the guise of human rights or international law, which do not sanction these claims. Hussein Ibish, then Communications Director of the American-Arab Anti-Discrimination Committee, wrote in the New York Times that “the right of return for refugees is guaranteed by all basic human rights treaties;” those who believe otherwise “would have Palestinians renounce their basic human rights to accommodate Jewish ethno-nationalism.” Ibish’s polemic should be seen for what it is: a new attempt to delegitimize the right of Israel to exist by cynical misuse of the idea of human rights. Ibish charges that maintaining Israel as a Jewish state would be to tolerate a pernicious ideology. In fact, it is to recognize that Israeli Jews insist on the same right to national self-determination in their own political space that Palestinians themselves claim in their bid for independence in the West Bank and Gaza. (Note: Ibish’s position on this has radically changed—he had an epiphany and was politically reborn— and he is now affiliated with ATFP, an ally of ours. I need to check with Rafi Dajani and Ibish on his current view of this to insure we respesent his current views accurately while also criticism his previous more radical incarnation, of which he is himself very critical now.)

Ali Abunimah, Vice President of the Arab American Action Network and Electronic Intifada editor, denounces Palestinian moderates like Sari Nusseibeh who believe that the only practicable and just solution to the refugee problem is to realize the right of return in a new state of Palestine in the West Bank and Gaza. Those choosing not to return to Palestine would be provided options of rehabilitation, citizenship and compensation in the states where they reside, resettlement in third countries, or family reunification in Israel on humanitarian grounds for a limited number. Abunimah dubs such solutions “the shredding of fundamental [Palestinian] human rights.” He claims that “the right of return is enshrined in the Universal Declaration of Human Rights which states that ‘Everyone has the right to leave any country, including his own and return to his country.’ Decades of international jurisprudence support this principle.”

But Lex Takkenberg, who heads the United Nations Relief and Works Agency for Palestine Refugees in the Near East in Gaza, sums up his comprehensive study of The Status of Palestinian Refugees in International Law, published by Oxford University Press, by concluding: “The refugees do have the legal right to return to their ‘own country,’ Palestine. As long as there is no Palestinian state, this right applies in principle to the entire territory of the former British Mandate. However, now that the PLO, as the representative of the Palestinian people, has recognized the right of Israel to exist, it is obvious that the Palestinian refugees will only be able to exercise their right to return in conjunction with their right to self-determination” in a Palestinian state living at peace with Israel. Many scholars of human rights law cited by Takkenberg agree that the right to return referred to in the Universal Declaration of Human Rights is a “right of nationals to return to the their own country,’ and as the Palestinian refugees are not Israeli nationals, accordingly this does not apply to them.” Most Western and non-Western scholars agree with a UN study of the right to leave and return that the problem of the Palestinian refugees should be solved within the framework of the right to national self-determination in their own state, not through irredentist claims about historic Palestine masked in the lofty rhetoric of human rights.

Renewed political assaults on the legitimacy of Israel, attempts to turn Jews into a minority in a single Palestinian Arab majority-ruled state only move us farther from an end to the national struggle, prolonging the war, and the affliction of both peoples, including Palestinian refugees. No interpretation of human rights law which promised the perpetuation of a national conflict and the destruction of a people’s right to national independence—in this case that of Israeli Jews—could faithfully reflect the tenor of international law, whose overriding goal is peace and justice. Such tactics sabotage the forces of reconciliation in both societies. Israelis refuse to commit national suicide and relinquish their right to a Jewish state, just as Palestinians insist on creating a Muslim, Arab state in the West Bank and Gaza, as reflected in the proposed new Palestinian constitution. The only viable road to peace in our lifetime requires mutual acceptance of Israel as the state of the Jewish people and Palestine as the state of the Palestinian people, as Palestinian and Israeli moderates have recognized. The problem of the Palestinian refugees must be solved in a way that is consistent with the national rights of both peoples.

While firing broadsides against the peace plan devised by Palestinian leader Sari Nusseibeh and former Israeli Shin Bet security service chief Ami Ayalon, Abunimah too objects to Israel’s right to exist as a Jewish state, again claiming that both law and justice make such a state illicit: “While virtually all Israelis deny the right of Palestinians to return to their homes, Israel now demands that the Palestinians recognize that Israel has a 'right to exist as a Jewish state.' This has absolutely no basis whatsoever in any law or principle of justice. Even if Palestinians recognize Israel as a Jewish state, no one can grant it a right to maintain a specific demographic composition—a Jewish majority—for eternity. To do so would mean that if the natural processes of population growth, immigration and emigration were to change the demographic composition in a way that interfered with Israel's ‘right’ to have a Jewish majority then Israel would be allowed to alter its own demographic composition.”

Abunimah insists that if

a) Israel has a right to exist as a Jewish state, then this is tantamount to
b) a timeless claim to maintain a Jewish majority; moreover, he argues that this implies that
c) Israel would have the right to engage in “transfer,” or ethnic cleansing and forced sterilization. “After all,” he concludes, “if Israel has a ‘right’ to maintain a Jewish majority, then this right must be enforceable or it is simply meaningless.”

But affirming Israel’s right to exist as a Jewish state does not imply acceptance of (b) and (c). Abunimah has simply begged the question by rigging a loaded definition of “Jewish state” which is designed arbitrarily to lead to just the conclusions he seeks to confute. Supporters of Israel as a Jewish state can deny both (b) and (c) and accept that so long as Israel does in fact have a Jewish majority, and as long as this demographic mix is a result of morally defensible policies—which obviously exclude “transfer,” ethnic cleansing or forced sterilization—then it is legitimate, as a matter of both morality and law, for Israel to remain a Jewish state in important respects.

Speaking of the Law of Return, Israel’s ties with the Jewish Diaspora, and the maintenance of a Jewish majority, political scientist Alan Dowty notes that “None of these features is inherently inconsistent with liberal democracy, and none of them are in fact unique to Israel. There are at least two dozen ethnic democracies in the world (among several dozen ethnic states), and a large number of states grant citizenship on the basis of ethnic identity or descent.” Observes Israeli constitutional law scholar Ruth Gavison: “The Jewishness of Israel is, first and foremost, the recognition of the fact that Israel is the state in which the Jewish people exercises its right to national self-determination. Many of the world’s democracies, old and new, have a distinct culture analogous to Israel’s Jewish culture. The constitutions of most European countries reveal that they are nation-states in this sense. These states celebrate their distinct histories, languages, identities, and emblems. Many of their citizens do not share this nationality. But so long as the rights of these citizens are not denied, and so long as they can participate fully in the political and civil life of their societies, we do not deny the democratic nature of the state.” “There is no contradiction between striving to grant the Arabs equality as required by law and decency and the fulfillment of Zionism,” explains Israel’s Attorney General Elyakim Rubinstein. “Whoever wants to preserve Israel as a democratic and Jewish state must strive to grant equality to the Arabs.”

There is no clash between Israel's remaining a haven for persecuted Jews, or inviting free Jewish immigration under the Law of Return, and its becoming fully a state of all its citizens, a principle which guides the jurisprudence of Israel’s Supreme Court Chief Justice Aharon Barak. Just as Israel gives preference to Jews wishing to emigrate to it under the Law of Return, so Palestine will have a Palestinian Law of Return, which gives preference to Palestinians, especially Palestinian refugees, to emigrate into the new polity. Israel is both a Jewish and a liberal democratic state, and liberal democracy requires equality among all citizens, Jewish or Palestinian, in the domestic public sphere where government acts—when it provides education, allocates budget and land, regulates employment, assesses taxes, and imposes the duty on citizens to serve the state through national service. Peace between Israel and Palestine will help remove the main obstacle to equal civic benefits and duties for Israeli Jews and Israeli Palestinians—the ongoing national conflict. Shawki Hatib, a Palestinian Israeli who serves as chairman of the Higher Arab Monitoring Committee, told an Israeli audience in Tel Aviv marking the seventh anniversary of Yitzhak Rabin’s murder that “Rabin was the only Israeli leader who gave hope to Israeli Arabs, the first prime minister to give them equal rights and to promote their civil status.” In the Jewish republic, Israel, living at peace with a Palestinian state, Palestinian citizens will be more apt to enjoy equal citizenship. Equal civic duties means national service for all citizens, including eventually, when conditions permit, service for all Israeli citizens in the Israel Defense Forces which will, with the evolution of peace between Israel and its neighbors, no longer face an Arab army with which it is likely to be at war.

The UN World Conference Against Racism (WCAR) held in Durban, South Africa from August 28th to September 1st 2001 called for “the reinstitution of UN resolution 3379 determining the practices of Zionism as racist practices.” It termed Israel’s laws of return and citizenship discriminatory, designed to “maintain the exclusive nature of the State of Israel as a Jewish state to the exclusion of all other groups.” But the Palestinian law of return will discriminate against non-Palestinians and non-Arabs, including Jews, in just the same way that Israel’s law of return gives preference to Jews.

Yet the Durban declaration further called “upon the international community to impose a policy of complete and total isolation of Israel as an apartheid state as in the case of South Africa which means the imposition of mandatory and comprehensive sanctions and embargoes, the full cessation of all links (diplomatic, economic, social, aid, military cooperation and training) between all states and Israel.” Anti-Zionists who deny the legitimacy only of Jewish national self-determination, while tacitly affirming this right for Palestinian Arabs and other peoples, seek to impale Israel on one or another horn of a false dilemma. Only Israel’s wish to maintain a Jewish nation-state is deemed a moral toxin. If such intolerance towards Jews, and anti-Jewish bias, is not anti-Semitic, it’s hard to imagine what is.
"Original Sin," Israel and the Palestinian Refugees: A Response to the Anti-Zionists
by Gidon D. Remba

People on the left, progressives, are committed to the values of liberalism, equality and human rights. They face the dilemma of how to reconcile these commitments to their attachments to particular groups, whether their own families and friends, ethnic groups to which they belong or nation-states in which they are citizens. Progressive Zionists believe that our commitment to the universal values of liberalism and equality can be reconciled in theory and in practice with our particularist attachments to the Jewish people and to Zionism: we are committed to realizing progressive Zionism.

Those on the left who believe that it is impossible to reconcile the particular and the universal often view “ethnically pure states,” or states which privilege a particular ethnic group, as incapable of developing into true liberal democracies where all citizens are treated equally. Some progressives believe that all forms of ethno-nationalism—not only Jewish nationalism or Zionism—are inherently immoral and irreconcilable with liberal values and universalism. They view all such political movements as “blood and soil nationalism,” a form of “tribalism”.[1] They define ethno-nationalism as “the identification of a nation or people as a descent group,” and as involving “the claim that there exists a certain national territory or homeland which members of the descent group are entitled to control.”[2] They believe that ethnically defined states like Israel usually arise through “genocide or what has come to be called ethnic cleansing recently but is a far older practice: driving out the members of an ethnic group by threat (often reinforced by the reality) of violence.”[3] They cleave to their anti-Zionism as a matter of what to them is high moral principle. Such people of the left frequently make the charge that “Israel …[began] its existence with a massive exercise in ‘ethnic cleansing’ by terror.”[4]

They believe that the inner logic of the “ethnic Jewish state” was manifest in founding acts of ethnic cleansing against the Palestinian population. Historical-political complexities are reduced in their hands to a simple ideological claim, as complex events are bent to accommodate the demands of their “theory”. Hearing their accounts of Israel and the Palestinians, we scarcely appreciate not only how contested the claim of Jewish-Palestinian ethnic cleansing remains among historians, but the degree to which the revisionist findings of Israel’s “new historians” support a more nuanced assessment.

Benny Morris, the historian who has conducted the most extensive and systematic research of new archival sources on Israel’s role in the Palestinian exodus, has concluded that the “The Yishuv [the pre-state Jewish community of Palestine] did not enter the 1948 war with a master plan for expelling the Arabs, nor did its political and military leaders ever adopt such a master plan. What happened was largely haphazard and a result of the war…there was no grand design, no blanket policy of expulsion.”[5] Hostile Palestinian reviews of Morris’ major studies suggest rather that Palestinian academic opinion continues to cleave to the unsubstantiated view that “Palestine’s Arabs were expelled systematically and with premeditation.”[6] Morris responds that the critics “somehow avoid the rich world of nuance and deny multiple causation, and resist or ignore the variety and localism of which much of history, and certainly the 1948 war, is composed…[T]hey prefer their history simple; prefer a single-cause explanation of the Palestinian exodus, with the Zionists cast as systematic premeditating, expulsive devils. From the first, throughout, the Zionists were bent on transfer and expulsion; throughout the Palestinians were hapless, innocent victims…History is one large morality play, with the protagonists carefully separated into heroes and villains, good and bad.”

Instead, Morris concludes his monumental study, The Birth of the Palestinian Refugee Problem, 1947-1949 with this summation: “[T]he Palestinian refugee problem was born of war, not by design, Jewish or Arab. It was largely a by-product of Arab and Jewish fears and of the protracted, bitter fighting that characterized the first Israeli-Arab war.”[7] While some Palestinians, particularly the middle and upper classes, fled of their own initiative in response to the fighting, it is undeniable that some Palestinians were expelled by Israeli forces; but intent is critical to accurately characterizing such acts and to rendering moral judgment: “The destruction of Palestinian communities and the departure of their inhabitants during this phase of the conflict [Spring 1948] were also a consequence of Zionist military offensives. The first goal of these operations was to block the advance of armies from neighboring Arab states.”[8] Expulsion was decidedly not Israeli policy, as Morris and others have shown, though in some cases orders to remove the population from a battleground originated at the highest levels, and in other cases, particularly in major cities like Haifa and Nazareth, Jewish officials made extensive and successful efforts to persuade Arabs to remain in their homes.[9]

Morris, however, has more recently described some of the Israeli expulsions as “a variety of ethnic cleansing of Arab areas by Jews.”[10] That there were cases in which Israeli forces expelled Palestinians is not contested; what is open to argument is how we should describe and morally assess these acts. Those who view them as morally unjustifiable will deem them instances of “ethnic cleansing.” Those who hold that they admit of some justification will describe these tragic events in different vocabulary. While the Fourth Geneva Convention of August 12, 1949 had not yet been adopted at the time of the Palestinian deportations, it is widely agreed that the forcible transfers of population which Article 49 prohibits “regardless of their motive,” were forbidden as a matter of natural law. The question remains whether in light of the circumstances which obtained in Palestine of 1948 the prohibition admits of any exceptions. Morris has noted that “Arab irregulars were based and quartered in the villages, and as the militias of many villages were participating in the anti-Yishuv [anti-Jewish community] hostilities, the Haganah regarded most of the villages as actively or potentially hostile.”[11] In his memoirs, Yitzhak Rabin describes the dilemma of Jewish forces near the villages of Lod and Ramle facing approaching Egyptian divisions during the war: “Clearly, we could not leave Lod’s hostile and armed populace in our rear, where it could endanger the supply route to the Yiftach (another brigade), which was advancing eastward.”[12]

Baruch Kimmerling and Joel S. Migdal sum up their study of Palestinian history as follows: “The tragedy [of Palestinian refugees] resulted from a convergence of emotions: the Jewish fear, in the aftermath of the Holocaust and with the mounting attacks in Arab countries against Jews, of what the Arabs would do if they prevailed…the anxiety of Jewish commanders having a hostile population behind their advancing lines during the fighting; … and, not least, the Palestinians own image of what the Jews would do to them if Israel prevailed and they were left in its territory.”[13] The war during which such expulsions occurred, and the motives for their commission, would likely have obtained even if mainstream Zionism had been a movement of civic nationalism proposing a binational Jewish-Arab state in Palestine. For as long as Jewish refugees and other persecuted persons emigrated to Palestine when no other countries would have them, the social and demographic bases for power sharing in a civic state in Palestine would have continued to shift toward the Jewish side, arousing Arab fears. This of course is what happened between Muslims and Christians in Lebanon during the 1970’s and 80’s, and what is happening now between Sunni and Shia Muslims in Iraq.

It is thus naïve and dogmatic to suppose that the first Arab-Israeli war was the exclusive product of the Jewish community’s realization of an ethnic Jewish state under the aegis of the United Nations 1947 partition resolution affirming the creation of separate Jewish and Arab states in Palestine. Palestinian Arab nationalists, and the UN itself, at the time also advocated an ethnic Arab nation-state, not a civic state, and the same holds for Palestinian nationalists today. A Jewish-Arab civil war had been raging in Palestine, and it is most likely that such a war would have ensued even if the Jewish leadership had favored a binational state (as proposed then by Martin Buber and Hannah Arendt, and today by some “post-Zionist” cosmopolitans, and Palestinians like Edward Said). The Arab leadership of Palestine at the time generally opposed even a sharing of power with the Jewish community. Might ethnic war and the creation of refugees have been obviated had both sides embraced the kind of cosmopolitan civic nationalism advocated by anti-Zionist progressives? Perhaps under the most favorable conditions, but in practice all too many non-ethnic states have collapsed into civil war as well, as noted above.

If the “civic nationalism” proposed by anti-Zionist progressives promises no guarantee of avoiding ethnic civil war, it might also be true that under favorable conditions ethnic nation states might avoid such conflicts—particularly ethnic states built around a robust liberal constitutional framework of political and social equality. This possibility, which progressive Zionists believe is both realistically possible and morally necessary, is often overlooked by progressive anti-Zionists. Sixty years later, a two-state solution has again been broached for Palestine-Israel. If it emerges gradually in the coming years, it will result in an ethnic Palestinian Arab state and an ethnic Jewish state, albeit one which has long treated all citizens equally in key spheres of public life (within Israel proper), but is striving to fulfill its founding ideal in other spheres while struggling with ongoing security threats from extremist Muslim groups like Hezbollah and Hamas, and hostile states like Iran (please see the response to Claim 6 below for a fuller discussion of this issue). Indeed, Palestinian leaders now adamantly insist on an ethnically pure state; whereas Israel has a Palestinian minority, the polity desired by Palestinians on the West Bank and Gaza will not contain a Jewish minority. The proposition that sovereign borders need not mirror the ethnic identity of communities is repudiated by the Palestinians, who are unwilling to consider an arrangement whereby some Jewish settlements would be evacuated to make way for the resettlement of Palestinian refugees, while others might remain under a Palestinian government which would guarantee the rights of Jews as citizens of the new state, at the same time insuring that water and other resources are allocated equitably between Jewish and Arab communities in the new state.

For anti-Zionist progressives, ethnic cleansing is what ethnic states are wont to do, and such acts can only be defended on illicit “historical-theological” grounds (by invoking claims like “the great evil of the Holocaust ostensibly justifies displacing the Palestinian population”). It is true that such justifications are patently immoral. The dispossession of the Palestinians was a tragic and often unintended product of war, and where intentional its purpose was often associated with defensive requirements to remove from battle areas hostile and armed populations supporting guerrillas; to the extent that such expulsions were not dictated by defensive military needs, they were and are unjustified. But they are best explained by the fears generated in the midst of a terrible war involving five armies advancing on a small territory, than by the “inner logic” of ethnic nationalism.

[1]Brian Barry, “Statism and Nationalism: A Cosmpolitan Critique,” Ian Shapiro and Lea Brilmayer, eds., Global Justice, Nomos XLI (New York: New York University Press, 1999), pp. 12-66.
[2]Ibid., pp. 16-17. There are others on the left who believe, inconsistently, that only Jewish nationalism is immoral, while having little or nothing to say about Palestinian or Arab nationalism, or other national ideologies around the globe. Such views will be addressed below in our response to Claim 5.
[3]Ibid., p. 45.
[4]Ibid., p. 37
[5]Benny Morris, 1948 and After: Israel and the Palestinians (Oxford: Clarendon Press, 1994), p. 17
[6]Ibid., p. 37
[7]Benny Morris, The Birth of the Palestinian Refugee Problem, 1947-1949 (Cambridge: Cambridge University Press, 1987, p. 286.
[8]Mark Tessler, A History of the Israeli-Palestinian Conflict (Bloomington: Indiana University Press, 1994), pp. 306-307. Chapter 5, “The Palestinian Disaster and the Basic Issues After 1948,” offers a comprehensive and objective assessment of the literature on the causes of the Palestinian refugee problem. Concludes Tessler: “Overall, it seems necessary to conclude that there is no single cause of the Palestinian refugee problem and, accordingly, that there is a mixture of fact and propaganda in both Arab and Israeli arguments. The factors that led Palestinian civilians to leave their homes varied from one location to another. Even more, they varied from one phase of the war to the next.”
[9]Tessler, pp. 306-7.
[10]See Benny Morris, “Arab-Israeli War,” in Roy Gutman and David Rieff, eds., Crimes of War: What the Public Should Know (New York: Norton, 1999), pp. 28-37, esp. p. 32.
[11]Morris, The Birth of the Palestinian Refugee Problem, p. 62.
[12]Yitzhak Rabin, The Rabin Memoirs (Berkeley: University of California Press, 1996), p. 383.
[13]Baruch Kimmerling and Joel S. Migdal, The Palestinians: The Making of a People (Cambridge: Harvard University Press, 1994), p. 153.