What International Law Really Says About the Palestinian “Right of Refugee Return”
Gidon D. Remba
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.