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Posted on September 03, 2011 by Marivel Guzman

Continuing Relevance of International Law:

by Phyllis Bennis

UN Resolution 273 of 11 May 1949, welcoming Israel into the UN, established that the new state’s entry was based on Israel’s representations regarding its ability and willingness to implement 194.

International law regarding Palestinian refugees was essentially abandoned during the Camp David talks. After the 1948 war, the UN passed General Assembly Resolution (UNGA) 194, which mandated compensation for the Palestinian refugees and assured their right to return home. The UN made Israel’s own membership in the world body contingent on Israeli acceptance of 194 and the rights it granted to the Palestinians. UN Resolution 273 of 11 May 1949, welcoming Israel into the UN, established that the new state’s entry was based on Israel’s representations regarding its ability and willingness to implement 194.

The Palestinians’ right to return to their homes, despite a 52-year delay in realizing that right, is no less enforceable, no less compelling, than the same right of the Albanian Kosovars, in whose name the United States led NATO into war. It is no less than the right of Rwandans returning home from the Congo, or East Timorese going home from Indonesian refugee camps.

In fact, as law professor Susan Akram and others have noted, the Palestinian right of return has an even stronger legal basis. United Nations Resolution 194 was consciously designed to provide privileged protections for Palestinian refugees, with the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol serving as a safety net. Those special rights were not granted to other refugees, whose rights are determined solely by broader international laws.

25 August 2000—Considering that most observers of the Camp David negotiations called the contention over the Palestinian right of return “irresolvable,” it was no surprise that this issue was one of the summit’s deal breakers. Yet what most left out was the explanation of why this issue was a sticking point: Palestinian rights and international law have been overshadowed by Israel’s power.

Israel controls the land of the 530 Palestinian villages destroyed during and after the 1948 war, from which hundreds of thousands of Palestinians were expelled or fled more than 50 years ago. The Palestinians have few cards to put on the table. Instead of power, they have only their roughly five million exiles; most of them are stateless. Meanwhile, the United States accepts this vast disparity of power between Israel and the Palestinians, as if Camp David were a level playing field on which an honest broker could referee a fair game.

Continuing Relevance of International Law:

International law regarding Palestinian refugees was essentially abandoned during the Camp David talks. After the 1948 war, the UN passed General Assembly Resolution (UNGA) 194, which mandated compensation for the Palestinian refugees and assured their right to return home. The UN made Israel’s own membership in the world body contingent on Israeli acceptance of 194 and the rights it granted to the Palestinians. UN Resolution 273 of 11 May 1949, welcoming Israel into the UN, established that the new state’s entry was based on Israel’s representations regarding its ability and willingness to implement 194.

The Palestinians’ right to return to their homes, despite a 52-year delay in realizing that right, is no less enforceable, no less compelling, than the same right of the Albanian Kosovars, in whose name the United States led NATO into war. It is no less than the right of Rwandans returning home from the Congo, or East Timorese going home from Indonesian refugee camps.

In fact, as law professor Susan Akram and others have noted, the Palestinian right of return has an even stronger legal basis. United Nations Resolution 194 was consciously designed to provide privileged protections for Palestinian refugees, with the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol serving as a safety net. Those special rights were not granted to other refugees, whose rights are determined solely by broader international laws.

Demographics:

Despite the requirements of international law, Israel specifically rejects the “right” of return, maintaining that allowing the Palestinian refugees to come home would alter the demographic balance of the Jewish state. The claim is accurate: it would more than double the number of Palestinians in Israel, which now comprises about 20 percent of Israel’s population. However, concern regarding the ethnic composition of the country is not an acceptable basis for rejecting international law. The equivalent would be a post-war Rwandan government refusing—with U.S. support—to recognize the right of indigenous refugees to return home because of fears that it would somehow change the Hutu-Tutsi demographics.

Israel apparently offered a “humanitarian compromise” at Camp David which would allow a small percentage of Palestinians to return home based on Israeli-regulated family reunification. Yet Israel continued to reject UN 194, the Palestinian right of return, and any Israeli legal or moral responsibility for the plight of the refugees. At most, one rumor held that Israeli Prime Minister Ehud Barak’s team offered a passive-voice recognition that “pain was caused” to the Palestinians.

Third Generation Refugee Movement:

After the 1948 war, the families who lost their homes—many still holding their house keys in the expectation of a quick return—clung tightly to their memories. Their children grew up on the romantic vision of Palestine as a paradise where everyone was rich, everything was beautiful, everyone was happy. That second refugee generation created the intifada 40 years later, fighting for a new state in the West Bank, Gaza, and East Jerusalem; the unlikely possibility of actually returning to their parents’ idealized vision of Palestine inside the Green Line was not at the top of their agenda.

Now, the third generation is growing up in the fetid refugee camps of the still-occupied territories and in surrounding Arab countries. This Oslo generation, these young refugees now in their teens and early twenties, are bringing a new passion and a new realism to their right of return.

On a recent visit inside Israel, teenagers from the Ibda’ Cultural Center of the Dheisha refugee camp traveled to the villages their families had left behind in 1947 or 1948. At that time, Israeli forces ransacked many Palestinian villages, leaving most completely destroyed, with fast-growing pine trees planted over the ruined foundations. Only the rows of cactus that once marked property lines are still visible. A few walls and minarets were damaged but left standing. In most, only the ancient olive trees remain.

As part of an extraordinary oral history project, the Dheisha children have interviewed their grandparents who were expelled in 1948, and then studied the culture, architecture, and history of the villages, as well as where their residents ended up. Now, traveling to the destroyed villages, the children themselves proudly explain to visitors where the school was, where the mosque stood, how the residents made their living, where their own grandparents’ houses were located.

This third generation of children is preparing for a real, not romantic or idealized, return. They discuss what kind of houses they will build, how they will get water, from where their homes might get electricity. They debate whether and how they can live with the Israeli families who have built new houses on and around some of their land.

Compromise:

Is compromise possible? Absolutely. But only if it is based on a recognition of return as a real, fundamental right. The kind of compromise that will not work includes Israel’s proposal for a “humanitarian” family reunification program that would benefit only a few tens of thousands of the millions of stateless Palestinians. Another sure-to-fail “compromise” is the proposal being quietly banded about in the corridors of U.S. and Middle Eastern capitals. This plan envisions a quid pro quo in which Baghdad would settle most of the Palestinian refugees now living in Lebanon—with or without their consent—in Kurdish areas of Iraq from which equally unwilling Kurds are already being expelled, in exchange for a lifting of the crippling economic sanctions against Iraq.

Real compromise might be possible in determining how, not whether, the right of return will be implemented. The Palestinians’ return could be organized to minimize the effects on existing Israeli lives in the area. Palestinian refugees might agree to return to their lands and villages but leave negotiable which plots of land will be reclaimed. Returning refugees may work with Israeli officials to insure an orderly repossession. Certainly not all Palestinian refugees will ultimately opt to return at all. But the right to return is absolute, and cannot be compromised away.

Refugee Involvement in Decision-Making:

The question of who decides is fundamental. Palestinian refugees must be allowed to make their own decisions, accept or reject their own compromises. Current camp dwellers must themselves be represented on the negotiating teams. The starting point of any agreement must be Israeli acknowledgement of the binding legal commitment their government made in 1949 to implement Resolution 194, and to recognize the absolute right of Palestinian return.

In the destroyed village of Zakhariya, as Ibda’ children picked lemons from the prolific trees scattered across what was once their families’ land, one of the adult coordinators who was himself born in Dheisha camp said quietly, “I can close my eyes and see it, see the people coming to the mosque, to the market. They cannot play with this history.”

Phyllis Bennis is a fellow at the Institute for Policy Studies. The above text may be used without permission but with proper attribution to the author and to the Palestine Center. This Information Brief does not necessarily reflect the views of the Palestine Center or The Jerusalem Fund.

This information first appeared in Information Brief No. 45, 25 August 2000.

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