Legal Background to the
"Palestinian Right of Return"
President Clinton said in his speech January
8, 2001 that the creation of a Palestinian State and the Palestinian right
of return [to Israel] are mutually exclusive.
...you cannot expect Israel
to acknowledge an unlimited right of return to present day Israel, and
at the same time, to give up Gaza and the West Bank and have the settlement
blocks as compact as possible, because of where a lot of these refugees
came from [and the resulting perceived "right of return"]. We cannot expect
Israel to make a decision that would threaten the very foundations of the
state of Israel, and would undermine the whole logic of peace. And it shouldn't
be done. "
-- President Clinton, Israel
Policy Forum, January 8, 2001
Richard Holbrooke warned
both the Security Council and the General Assembly not to add fuel to the
fire "by unnecessarily intervening in the crisis in the Middle East".
He cautioned against "using the UN and its institutions as platforms for
propaganda" and added that "the world body must be seen as a forum where
disputes can be settled".
-- US Ambassador to the United
Nations Richard Holbrooke
The Palestinian Claim to a “Right
of Return”
By: Alexander Safian, PhD, Associate Director,
CAMERA
Do Palestinians who fled Israel in 1948,
and their descendants, have a legal or moral right to return to their former
homes in Israel? Is it true that most other refugees around the world have
already exercised such rights of repatriation? Palestinian spokesmen, and
groups including Amnesty International, have repeatedly asserted that Palestinians
do have a legal and moral right to return to Israel. Most legal authorities,
however, contend that the relevant legal instruments, including UN General
Assembly Resolution 194, and the Universal Declaration of Human Rights,
offer no support for these claims. Moreover, many analysts have pointed
out that because an Arab and Palestinian-initiated war against Israel created
a similar number of Jewish and Palestinian refugees, and because Israel
settled the Jewish refugees, the Arab side should settle the Palestinian
refugees.
A Sampling of the Palestinian Claims
· A press release for a September
16th Right of Return rally in Washington, DC demands:
... implementation
of the right of Palestinian refugees to return to the homes and lands from
which they were expelled. ... The right of refugees to return to their
homes is enshrined in the Universal Declaration of Human Rights, International
law, and in UN Resolution 194. (Palestine Right to Return Coalition, August
24, 2000)
· A similar press release by the American-Arab
Anti-Discrimination Committee asserts:
... Palestinian
refugees have an absolute, inalienable and individual human right to return
to their original homes and country. This right is enshrined not only in
the Universal Declaration of Human Rights and the Fourth Geneva Convention,
but more specifically in UN Resolution 194, for which the United States
voted. (September 14, 2000)
· A letter from Amnesty International
USA signed by its Executive Director, William Schultz, explains that Amnesty’s
official sponsorship of the Right of Return rally:
... is based on
the fact that our mandate opposes forcible exile. ... The right of refugees
to return is guaranteed in the Universal Declaration of Human Rights Article
13(2) which states: “Everyone has the right to leave any country, including
his own, and to return to his country.”
Amnesty thus bases its stand on discredited
claims that Israel expelled the Palestinians and on a misinterpretation
of the Universal Declaration. Amnesty staffer Marty Rosenbluth, who has
repeatedly signed extremist ads declaring that “the Zionist structure of
the state of Israel is at the heart of the racism and oppression against
the Palestinian people and should be dismantled,” was the Amnesty International
speaker at the rally.
UN General Assembly Resolution 194 (December
11, 1948)
The key document cited by supporters of
a Palestinian right of return is Resolution 194, passed in the wake of
the first Arab-initiated war against Israel. The supporters cite the resolution
despite the fact that the Arab states continually violated its central
provision, which called for the creation of a Conciliation Commission and:
... establishment
of contact between the parties themselves and the Commission at the earliest
possible date ... to seek agreement by negotiations [and thereby reach]
a final settlement of all questions between them. (paragraphs 4 and 5)
Through many years and multiple wars, the
Arab states refused even to meet with Israel, much less try to reach a
peaceful settlement. The only clause the Arab side ever acknowledged was
paragraph 11, which suggested (it could not “require,” since it was a General
Assembly rather than a Security Council resolution) that:
refugees wishing
to return to their homes and live at peace with their neighbors should
be permitted to do so at the earliest practicable date ... [R]epatriation,
resettlement and economic and social rehabilitation of refugees and payment
of compensation [should be facilitated]. (emphasis added)
Because this only recommends that refugees
be permitted to return, it can hardly be characterized as creating a “right.”
Moreover, the requirement that returnees first accept living “at peace
with their neighbors” meant that Palestinian returnees would have to accept
Israel's right to exist, something that very few of them, even today, seem
truly willing to do. Further, it did not even hint at any return rights
for descendants of refugees.
It should also be noted that (1) the resolution
applies equally to Palestinian refugees from Israel and to the similar
number of Jewish refugees from Arab countries who came to Israel after
1948, and (2) that it placed repatriation, resettlement, and payment of
compensation on an equal footing. This equal footing was also included
in other GA resolutions of that era, such as Resolution 393 of December
2, 1950, which stated that:
... without prejudice
to the provisions of paragraph 11 of General Assembly resolution 194 ...
the reintegration of the refugees into the economic life of the Near East,
either by repatriation or resettlement is essential ... for the realization
of conditions of peace and stability in the area.
Similarly, Resolution 394 of December 14,
1950 called upon:
... the Governments
concerned to undertake measures to ensure that refugees, whether repatriated
or resettled, will be treated without any discrimination either in law
or in fact.
And Resolution 513 of January 26, 1952, speaks
of “reintegration either by repatriation or resettlement.” It is therefore
quite clear from the plain language of these resolutions that the General
Assembly did not even try to establish a binding right of return.
All Arab States Voted Against Resolution
194
All the Arab states voted against Resolution
194, precisely because it did not establish a “right of return,” and because
it implicitly recognized Israel. It is disingenuous, at best, for those
same Arab states (and Palestinian representatives) to see today in Resolution
194 the right of return they formerly claimed did not exist.
It is the Arab States that have violated
UN Resolutions and the UN Charter
Despite present-day appeals to UN resolutions
by the Arab states, it was the Arab states which violated all of the above
resolutions, by making war against Israel, by forcing the Palestinian refugees
to live in squalid refugee camps, by refusing to offer them citizenship
(with the exception of Jordan, which did so not for humanitarian reasons,
but to absorb the West Bank, which it had conquered, occupied and annexed),
by discriminating against them (Resolution 394) “in law and in fact,” and
by forcibly preventing (Resolution 393) “the reintegration of the refugees
into the economic life of the Near East.” The Arab states did this because
they were determined to exterminate Israel, or failing that, to prevent
(Resolution 393) “the realization of conditions of peace and stability
in the area.”
So extreme was the Arab position that the
former director in Jordan of UN aid to the Palestinians, Ralph Galloway,
stated:
The Arab states
do not want to solve the refugee problem. They want to keep it as an open
sore, as an affront to the United Nations and as a weapon against Israel.
Arab leaders don’t give a damn whether the refugees live or die. (Ralph
Galloway, UNRWA, as quoted by Terence Prittie in The Palestinians: People
History, Politics, p 71)
Of course, beyond the refugee weapon the Arabs
also used military weapons to make war against Israel, violating Resolution
181 (the Partition Resolution), and the UN Charter, which calls upon members
to:
.. settle their international
disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered. (UN Charter, Article 2(3))
.. refrain in their international
relations from the threat or use of force against the territorial integrity
or political independence of any state ... (UN Charter, Article 2(4))
Finally, the Arab states have for more than
50 years violated Resolution 194 by refusing to pay compensation to Jewish
refugees whom they drove out of their countries.
The Universal Declaration of Human Rights
(December 10, 1948)
Amnesty International bases its support
of a Palestinian right of return on the Universal Declaration of Human
Rights. AI, and many pro-Palestinian groups, cite Article 13, paragraph
2 of the Declaration, which states:
Everyone has the
right to leave any country, including his own, and to return to his country.
However, most international legal authorities
concur both that the Universal Declaration is not legally binding (Nathan
Feinberg, The Arab-Israeli Conflict in International Law, p 106),
and that, even if it were, Article 13 would not establish for Palestinians
a right of return.
There are at least three independent reasons
for Article 13's limitations:
1. The clause “return to his country” was
never intended to establish a right of return, rather it was added to underscore
the right to leave. According to its legislative history Article 13 was
aimed at governments that, in effect, imprisoned certain subgroups of their
nationals by preventing them from leaving – Jews in Eastern Europe or the
Soviet Union, for example. The clause “and to return to his country” was
added at the last minute, according to its sponsor, in order to assure
that “the right to leave a country, already sanctioned in the article,
would be strengthened by the assurance of the right to return.” (Jose
Ingles, Study of Discrimination in Respect of the Right of Everyone
to Leave Any Country, Including His Own, and to Return to His Country,
UN Doc E/CN.4/Sub.2/220/Rev.1, 1963)
Indeed, in the above-mentioned UN study
of the Universal Declaration by Ingles, nowhere are the Palestinian refugees,
or any other refugees, mentioned as coming under the purview of Article
13. All of the study’s examples involve people who were prevented from
leaving their country based on such factors as race or color, sex, language,
religion, political opinion, etc.
2.Article 13 speaks of the right to “return
to his country,” but the Palestinians who were displaced by the war were
never citizens or even legal residents of Israel. (Kurt René
Radley, The Palestinian Refugees: The Right to Return in International
Law, The American Journal of International Law, V72, 1978, p614)
For this reason alone Article 13 would not apply to them.
3. Finally, other clauses of the Declaration
argue
against a Palestinian right to return. For example, Article
29 states:
In the exercise
of his rights and freedoms, everyone shall be subject only to such limitations
as are determined by law solely for the purpose of securing due recognition
and respect for the rights of others and of meeting the just requirements
of morality, public order and the general welfare in a democratic society.
(Article 29, paragraph 2)
Clearly, the “rights” and “general welfare”
of the great majority of Israel’s citizens would not long survive the admission
of some 4 to 5 million Palestinian refugees (for this is the number of
refugees that the Palestinians now claim) who neither owe the country allegiance
nor identify themselves as Israelis.
Also relevant, for this reason, is paragraph
3, which states:
These rights and
freedoms may in no case be exercised contrary to the purposes and principles
of the United Nations.
But destroying Israeli sovereignty via the
right of return would clearly violate the principles of the UN Charter,
specifically Article 2, paragraph 1, which states:
The organization
is based on the principle of the sovereign equality of all its members.
(Article 2, paragraph 1)
In the same manner, a mass Palestinian right
of return would also violate Article 30 of the Universal Declaration of
Human Rights, which states:
Nothing in this
declaration may be interpreted as implying for any State, group or person
any right to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms set forth herein.
That destruction of Israel – and the rights
and freedoms of Israelis – would be the goal of repatriated Palestinian
refugees was, in the past, explicitly admitted by Arab leaders. For example,
the post-war Egyptian Foreign Minister, Muhammad Salah al-Din, declared:
... in demanding
the return of the Palestinian refugees, the Arabs mean their return as
masters, not slaves; or to put it quite clearly – the intention is the
extermination of Israel. (Al-Misri, 11 October 1949, as quoted by N. Feinberg,
p109)
Similarly, Egypt’s President Nasser stated:
If the refugees
return to Israel, Israel will cease to exist. (Neue Zuercher Zeitung,
September 1, 1960, as quoted by Prittie)
UN Security Council Resolution 242
(November 27, 1967)
With regard to refugees, Resolution 242
calls only for “achieving a just settlement of the refugee problem,” without
defining just what such a settlement might entail, and without referring
to any earlier UN resolutions. Resolution 242 therefore offers no support
for a Palestinian “right of return.”
The Fourth Geneva Convention (October
21, 1950)
The other international instrument cited
by supporters of a Palestinian right of return is the Fourth Geneva Convention,
specifically its Article 49, which allows a “belligerent occupant” to temporarily
evacuate occupied areas but requires that the evacuees:
... be transferred
back to their homes as soon as hostilities in the area in question have
ceased.
Again, this instrument does not create for
Palestinian refugees a right of return, first for the technical reason
that it came into effect only on October 21, 1950, well after the end of
the first Arab-Israeli War. But there are also weightier reasons for the
Convention’s inapplicability to the Palestinian refugee problem:
The Palestinian-Israeli struggle was a
civil conflict, while the Convention dealt almost exclusively with international
conflicts. (Radley, p 597)
In accord with its international focus,
the Convention delineated the rights and obligations of “belligerent occupants.”
However, again because of the civil nature of the struggle between Palestinian
Jews and Palestinian Arabs within the territory of the Palestine Mandate,
Israel was not and is not a “belligerent occupant.”
Article 3 of the Convention, the only one
explicitly applicable to “conflicts not of an international character,”
makes no mention of refugees or expelled persons, and requires only, as
Radley puts it, “a minimum standard of treatment for noncombatants.” (Radley,
p 599)
How have other refugee problems
been resolved?
The 20th century witnessed numerous large-scale
and persistent refugee problems, all of which were eventually resolved
through integration rather than repatriation. Thus according to Dr. Elfan
Rees, Advisor on Refugees to the World Council of Churches:
No large scale refugee
problem has ever been solved by repatriation, and there are certainly no
grounds for believing that this particular problem [the Palestinian refugee
problem] can be so solved... The facts we must face force us to the conclusion
that for most of the world’s refugees the only solution is integration
where they are. (Dr. Elfan Rees, Century of the Homeless Man, as
quoted in Radley, p 611-612)
Examples of refugee problems settled via integration
or resettlement include:
At the conclusion in 1923 of the Greek-Turkish
War, harsh treatment of Greek communities in Turkey caused large numbers
of these Turkish Greeks to flee their homes. Because of this, the peace
treaty between the two sides provided for a mutual exchange of populations
– about 2 million Greeks who had been Turkish citizens were relocated to
Greece, while about 500,000 Turks who had been Greek citizens were relocated
to Turkey. The immoveable property left behind was seized by the respective
Governments and was used, in part, to resettle the incoming refugees. (Eyal
Benvenisti and Eyal Zamir, Private Claims to Property Rights in the Future
Israeli-Palestinian Settlement, The American Journal of International Law,
April 1995, p 322)
The Potsdam Declaration imposed by the
Allies following World War 2 provided for the transfer to Germany of approximately
15 million Germans, particularly from those parts of eastern Germany which
after the war were allotted to Poland. Under the Declaration the German
populations in Poland, Czechoslovakia, Hungary and Austria were relocated
to Germany, these German refugees lost title to the property they left
behind, and no arrangements were made to compensate them for their losses.
(Benvenisti and Zamir, p 322)
Settlement of the conflict between Hindus
and Muslims in British India via division of the region into India and
Pakistan required relocation of millions of people. Once again, immoveable
property left behind by these refugees was seized by the respective governments
to help settle the incoming refugees.(Benvenisti and Zamir,
p 323)
Other Relevant Issues Commonly Ignored
or Distorted
The cause of the Palestinian refugee
problem
Many reporters have uncritically accepted
Palestinian claims that there are today roughly 4 or even 5 million Palestinian
refugees, and that these people were somehow expelled from Israel. Recent
research by Israeli scholars (Efraim Karsh, Fabricating
Israeli History: The New Historians; Shabtai Teveth, The Palestine
Arab Refugee Problem and its Origins, Middle Eastern Studies, April
1990; Anita Shapira, The Past is not a Foreign Country, New Republic,
November 29, 1999) have thoroughly discredited authors such as Benny
Morris and Ilan Pappe who had charged Israel with mass expulsion of Palestinians
during the 1948-49 Arab-Israeli war.
Consider the case of Haifa, whose Arab
population numbered 62,500 in 1947, but by May 1948 had dwindled to almost
nothing, accounting for one-tenth of the Palestinian refugees. The question,
of course, is “Were the Palestinians Expelled?” As it happens, this is
the title of Professor Karsh’s latest work, wherein he concludes:
in Haifa, one of
the largest and most dramatic locales of the Palestinian exodus, not only
had half the Arab community fled the city before the final battle was joined,
but another 5,000 - 15,000 apparently left voluntarily during the fighting
while the rest, some 15,000 - 25,000 souls, were ordered or bullied into
leaving against their wishes, almost certainly on the instructions of the
Arab Higher Committee. The crime was exclusively of Arab making. There
was no Jewish grand design to force this departure, nor was there a psychological
“blitz.” To the contrary, both the Haifa Jewish leadership and the Hagana
went to great lengths to convince the Arabs to stay.( Commentary,
July-August, 2000)
What happened in Haifa was typical; the vast
majority of Palestinian refugees were not forced out, but fled, at times
despite the counsel of their Jewish neighbors to stay. The Palestinian
refugee problem was caused by a war that was initiated by the Palestinians
themselves and by the five Arab states whose armies invaded Israel the
day it declared independence. Had the Palestinians and the Arab states
not attacked Israel and attempted to destroy it, there would not have been
a single Palestinian refugee.
It should also be remembered that the roughly
550,000 Palestinian refugees created by the war were not alone – there
were a similar number of Jewish refugees from Arab countries. At great
expense and effort the newly born state of Israel settled these Jewish
refugees. Unfortunately, the Arab states, many of them flush with oil wealth,
made no such effort, often acting to keep the Palestinian refugees in festering
poverty, all the better to use them as a weapon against Israel.
The Palestinian refugees today
As of June 30, 1998 there were 3,521,130
Palestinian refugees, according to the "Report of the Commissioner-General
of the United Nations Relief and Works Agency for Palestine Refugees in
the Near East – 1 July 1997 - 30 June 1998," (Table 1). However, the report
(available at www.unrwa.org) also states
that:
UNRWA registration
figures are based on information voluntarily supplied by refugees primarily
for the purpose of obtaining access to Agency services, and hence cannot
be considered statistically valid demographic data; the number of registered
refugees present in the Agency's area of operations is almost certainly
less that the population recorded.
Moreover, not only does the UN admit the figures
are of doubtful accuracy, there being obvious reason for families to claim
more members and thereby receive more aid, the UN also admits that the
total includes 1,463,064 Jordanian citizens, who cannot by any stretch
be considered refugees. Indeed, if they are refugees, then the more than
500,000 Jewish refugees from Arab countries who came to Israel after 1948
were nonetheless still refugees even after receiving Israeli citizenship,
as are their descendants (since, in these claims, descendants of Palestinian
refugees are themselves considered refugees). That is, there would be in
Israel today at least 2 million Jewish refugees from Arab countries. Whether
or not one accepts that the descendants of refugees are themselves refugees,
if the claims of the Palestinian refugees are now being discussed, so should
the claims of these Jewish refugees.
Arabs refused Israel's 1949 offer to
unconditionally admit 100,000 Palestinians
As a goodwill gesture during the Lausanne
negotiations in 1949, Israel offered to take back 100,000 Palestinian refugees
prior to any discussion of the refugee question. The Arab states, who had
refused even to negotiate face-to-face with the Israelis, turned down the
offer because it implicitly recognized Israel's existence. (Nadav
Safran, Israel: The Embattled Ally, Harvard University Press, p
336)
Despite this, on humanitarian grounds Israel
has since the 1950's allowed more than 50,000 refugees to return to Israel
under a family reunification program, and between 1967 and 1993 allowed
a further 75,000 to return to the West Bank or Gaza. Since the beginning
of the Oslo process Israel has allowed another 90,000 Palestinians to gain
residence in PA-controlled territory.
Israeli compensation to Arabs who lost
property; no Arab compensation to Jews
Arabs who lost property in Israel are eligible
to file for compensation from Israel's Custodian of Absentee Property.
As of the end of 1993, a total of 14,692 claims had been filed, claims
had been settled with respect to more than 200,000 dunums of land, more
than 10,000,000 NIS (New Israeli Sheckels) had been paid in compensation,
and more than 54,000 dunums of replacement land had been given in compensation.
Israel has followed this generous policy despite the fact that not a single
penny of compensation has ever been paid to any of the more than 500,000
Jewish refugees from Arab countries, who were forced by the Arab governments
to abandon their homes, businesses and savings.
American Bar Association Journal, January
issue
PERSPECTIVE
No Palestinian 'Return' to Israel
By Joel Singer
The ABA Journal's December cover story,
"Where Will They Go?" essentially alleges that the only way to resolve
the Palestinian refugee problem pursuant to international law is
by allowing the refugees to exercise their purported "right of return"
into Israel. This article portrays a distorted, one-sided picture
that is fundamentally flawed both legally and factually. International
law is not on the Palestinians' side.
The Palestinian refugee problem is rooted
in the 1948-49 Arab-Israeli War. In 1947, realizing that the Jewish
and Arab communities of Palestine could not live together in one
state, the U.N. General Assembly adopted Resolution 181(II), which
recommended partitioning Palestine into two states - one Jewish and
one Arab.
While the Jews accepted this plan, the
Arabs rejected it, claiming that all of Palestine belonged to them.
When Israel declared its independence in 1948, all Arab states attacked
it in an attempt to prevent its creation. In the wake of this war,
hundreds of thousands of Jewish refugees fled from Arab countries
to Israel, and, at about the same time, between 600,000 and 750,000
Palestinians fled to Arab states from the portion of Palestine that is
now Israel.
This population exchange mirrored far larger
population movements following the end of World War II, which involved
millions of Hindus and Muslims in India and Pakistan, as well as
Poles, Germans and other nationalities in Central and East Europe.
These population exchanges were resolved through the integration
of all refugees into the host states. While Israel absorbed the Jewish
refugees, the Arab states refused to allow such resettlement and
integration of their Palestinian brethren, preferring instead to exploit
the Palestinian refugees to serve their own political agendas.
As reflected in the Journal article, Palestinians
often refer to the U.N. General Assembly's 1948 Resolution 194(III),
which called for permitting refugees to return to their "homes,"
as legal support for an alleged "right of return" to the Jewish state.
Contrary to this assertion, however, Resolution 194(III), like all
other U.N. General Assembly resolutions, is nonbinding and not part
of international law. Moreover, it was specifically rejected not
only by Israel but also by all Arab states, which voted against it
(because they found it insufficiently anti-Israeli).
Additionally, Resolution 194(III) emphasized
that refugees should be permitted back only if they wished to "live at
peace with their neighbors." In fact, the Palestinian insistence
on a "right of return" to the Jewish state has always been intertwined
with the rejection of Palestine's partition into two states and the continued
Palestinian aspiration to destroy Israel. Thus, the infamous PLO's Palestinian
Covenant of 1968, which adopted the destruction of the state of Israel
and the liquidation of the "Zionist presence" in Palestine as its main
goals, stated in its Article 9:
Armed struggle is the only way to liberate
Palestine. Thus it is the overall strategy, not merely a tactical phase.
The Palestinian Arab people assert their absolute determination and firm
resolution to continue their armed struggle and to work for an armed popular
revolution for the liberation of their country and their return to it.
This fundamental point should be understood
clearly and without illusion: When supporters of the Palestinians speak
of implementing their "right of return" to Israel, they are not speaking
of peaceful accommodation with Israel; rather, they are using a well-understood
code phrase for the destruction of Israel. Indeed, the several hundred
thousand Palestinian refugees who actually left the area that is now Israel
have multiplied into more than 3.5 million people, most of whom are not
refugees, but second-and third-generation descendants of the original refugees.
The fact is that there are currently 23
Arab states and only one Jewish state, which now consists of 5 million
Jews and 1 million Israeli Arabs. If Israel opened its gates to an additional
3.5 million Palestinians, who account for more than half of the Palestinian
people, it would quickly disappear and be transformed into the 24th Arab
state.
During the decades that followed the adoption
of the Covenant, the Palestinians continued to insist that any solution
of the Palestinian problem must involve the destruction of Israel, validating
former Israeli Foreign Minister Abba Eban's observation that the "Palestinians
have never missed an opportunity to miss an opportunity." In 1993, however,
the Palestine Liberation Organization, acting as the representative of
the Palestinian people, agreed in Oslo, in the context of the Israeli-Palestinian
Mutual Recognition Agreement, to provide several commitments to Israel.
They include:
-
A PLO recognition of "the right of the State
of Israel to exist in peace and security."
-
A PLO acceptance of U.N. Security Council
Resolution 242 and its companion resolution 338.
-
A PLO undertaking to annul the Palestinian
Covenant's provisions quoted above, together with all other similar provisions
calling for Israel's destruction.
Accordingly, a continued Palestinian insistence
on a "right of return" to Israel, apart from being built on originally
questionable legal foundations, also is inconsistent with these very fundamental
premises of the Oslo Agreements.
First, the PLO agreed to relinquish its
assertion that the Palestinians have the exclusive right to the historic
Palestine and agreed to divide Palestine into two states -- one Jewish
and one Palestinian. For the Palestinians to now revive the demand that
more than half of the Palestinian people have the right to immigrate to
the Jewish state repudiates the spirit, if not the letter, of the Oslo
Agreements.
Second, U.N. Resolutions 242 and 338, which
the PLO accepted, are the only U.N. resolutions referenced in the
Oslo Agreements. As such, these resolutions --- but not U.N. General
Assembly Resolution 194(III) --- are the single existing, agreed-upon
basis for the Israeli-Palestinian permanent status negotiations (which
cover, among other issues, the refugee problem). U.N. Resolution
242 affirms the necessity for "achieving a just settlement of the
refugee problem," but, importantly, does not mention a "right of return"
or any other specific solution as the mandated or preferred way to settle
that problem.
Third, in 1998, after years of delays,
and in the presence of the president of the United States, the PLO
finally amended the Palestinian Covenant and formally annulled its
articulated goal of destroying Israel through armed struggle and
the implementation of a "right of return" to the Jewish state.
A revived demand to return to Israel certainly
casts doubt on the veracity of the PLO's annulment of the Palestinian
Covenant.
Alternatively, Palestinians sometimes assert
that a Palestinian "right of return" exists independently of U.N. resolutions,
pointing to a series of human rights conventions, such as the 1966 International
Covenant on Civil and Political Rights, Article 12(4), which states: "No
one shall be arbitrarily deprived of the right to enter into his own country."
The fundamental flaw of this argument is that, after Israel and the PLO
agreed to partition Palestine into two states --- one Jewish and one Palestinian
--- the Palestinians cannot continue to argue that the Jewish state
is the Palestinians' "own country" and that they therefore are entitled
to return to it.
It is doubtful whether that aspect of the
Oslo Agreements has been effectively communicated to the Palestinian people
and really accepted by all of its leadership. Regrettably, the evidence,
including that reflected in the Journal's article, strongly indicates that
this illusion of seeking to destroy Israel in stages, culminating in its
elimination by flooding it with millions of Palestinians, remains a goal
of large segments of the Palestinian people.
At this critical time in the evolving relationship
between Israel and the Palestinians, it is important that everyone understand
the commitments and tradeoffs undertaken by the two sides in Oslo.
There is one viable solution to the Palestinian
refugee problem that is consistent with the two-state approach of the Oslo
Agreements, provides a just resolution of the Palestinian refugee problem
and does so without destroying the Jewish state. This is a plan by which
Palestinian refugees who wish to resettle in Palestine would do so in the
Palestinian state to be created side-by-side with the Jewish state. This
plan would require a major international financial effort, in which Israel
will participate, to help Palestinian refugees settle permanently either
in the Palestinian state or in the countries in which they currently reside,
as well as to support such host countries in their rehabilitation efforts.
Most Israelis have already accepted the
necessity of making far-reaching concessions to conclude an agreement with
the Palestinians. When the Palestinians also come to terms with this necessity
by finally accepting the commitments undertaken by the PLO on their behalf,
and especially by abandoning their dream of destroying the Jewish state
by having it overrun by millions of Palestinians, the Palestinian-Israeli
dispute can be resolved.
J oel Singer is a partner in the Washington,
D.C., office of Sidley & Austin. In 1993, while he was legal adviser
to the Israel Ministry of Foreign Affairs and a chief negotiator
of the Oslo Agreements for the Rabin-Peres government, he authored
the Israel-PLO Mutual Recognition Agreement.
Israel Attorney General's Elyakim Rubenstein's clarification regarding
application of 242 and 338 to the Palestinians
Prime Minister Ariel Sharon's letter to the National Union-Yisrael Beiteinu
Party states that "What is said in the government guidelines regarding
UN resolutions 242 and 338 is subject, of course, to the Israeli interpretation
of these resolutions. Relating to this I would like to refer you to the
recommendation of the Attorney General's [Elyakim Rubinstein] recommendation
of 28.6.00 attached to this letter, which I accept, that summarizes the
Israeli position relating to this, as it was also presented in diplomatic
negotiations.
The following is IMRA's translation of Rubenstein's letter as forwarded
by the Attorney General's Office to Susie Dym:
Jerusalem
28 June 2000
Letter No: 2000-0004-16786
In light of various comments concerning UN Security Council Resolution
242 as it relates to the negotiations with the Palestinians, the Attorney
General would like to make clear - from a legal standpoint - as follows,
in summary:
(1) Resolution 242 was not intended to apply to a Palestinian entity,
since at the time of its adoption such an entity did not exist and its
establishment was not even on the agenda. Palestinians are not mentioned
in the Resolution (with the exception of mention of the refugee problem).
(2) It was agreed in the past with the Palestinians that Resolution
242 will be the basis for an arrangement with them and that the permanent
agreement will lead to the implementation of the Resolution. But along
with this, basing on Resolution 242 does not mean, from a legal standpoint,
that arrangements along the lines of those taken with Egypt, with Jordan,
or relating to Lebanon (Resolution 425), should be adopted vis-a-vis the
Palestinians, and this in light of the highly significant differences that
make it impossible to implement the Egyptian precedent or another precedent
on Israel's borders in the Palestinian track.
A. The interpretation and implementation of the Resolution should be
in light of the aforementioned fact that it was not originally intended
to apply to the Palestinian entity.
B. The instructions of the Resolution, in principle, relate to states.
C. The Resolution relates to secure and recognized borders. There
are not, nor ever were, such borders with the Palestinians, in contrast
to the historical situation - in various forms - regarding the states on
Israel's borders. It goes without saying that the "Green Line" of
the cease fire agreement was not an international border.
D. The status of the territories of Judea, Samaria and the Gaza Strip
are substantially different than the standing of the Sinai Peninsula, for
example, since these areas were not under a recognized sovereignty of any
state in the period of the outbreak of the Six Days War. That is
to say, there never was a recognized border between Israel and the areas
of Judea, Samaria and the Gaza Strip.
E. Resolution 242 talks of withdrawal "from territories" and not "the
territories", and this was set in order to allow for withdrawal from only
part of the territories.
F. The negotiations should be based, among other things, on the historical
and religious ties to the areas of Judea, Samaria and Gaza; on geographic
data and their effect on Israel's security needs; the size of the settlements;
and the tight ties to Israel and Israeli national interests.
(3) Beyond this it is proper to emphasize that the inclusion of Resolution
242 within the framework of the invitation to the Madrid Conference, that
was the first table where Palestinians sat in formal negotiations with
Israel, was based to a large extent on that a joint Jordanian-Palestinian
delegation was set there.
(4) As mentioned, "secure borders" should be emphasized according to
its simple meaning.
(5) The result is that from a legal standpoint the way that Resolution
242 was implemented in arrangements with the Egyptians has no relevance
to the Palestinian track. Resolution 242 in no way applies in the
Palestinian context in a way that is the same as it applies to states in
the region covered by this Resolution, that had a common international
border with us. It applies only to the extent that its principles are relevant
to the Israeli-Palestinian negotiations.
(6) There is no similarity between the this situation and that in Lebanon
relating to Resolution 425, as there was a historic international border.
(7) The aforesaid does not exhaust Israel's legal arguments on the subject.
(8) This is also Israel's negotiating position, and it was expressed
also in the positions presented by prime ministers in the past.
Dr. Aaron Lerner, Director
IMRA (Independent Media Review & Analysis)
(mail POB 982 Kfar Sava)
Tel 972-9-7604719/Fax 972-3-5480092
INTERNET ADDRESS: imra@netvision.net.il
pager 03-6750750 subscriber 4811
Website: http://www.imra.org.il
Jews expelled from Arab countries left behind
$30b. in assets
Jerusalem Post, January 3, 2001
By Itim
TEL AVIV (January 3) --- Jews who emigrated
from Arab countries between 1922 and 1952 left behind an estimated $30
billion in assets, according to former internal security minister Moshe
Shahal, who chairs a world
organization of Jews from Arab countries.
Shahal told a news conference in Tel Aviv
that the organization was raising the issue to balance the claims of Palestinian
refugees in the peace negotiations. He maintained that Jews should also
be compensated for having been exiled from Arab countries, including Iraq,
Syria, Lebanon, Egypt, Libya, Tunisia, Algeria and Morocco.
Shahal said that a political settlement
with the Palestinians should take into account that some 850,000 Jews once
lived in these countries. Many were stripped of their assets and expelled
in the aftermath of Israel's establishment in 1948, or due to the rise
of Arab nationalism in the 20th century.
In all, some 600,000 Jews emigrated from
Arab countries, while other Jews of Middle Eastern origin emigrated from
elsewhere.
Shahal said his organization planned to
submit a report about public Jewish property in Arab countries, on the
basis of affidavits submitted by people once involved in community affairs
in those countries.
In his statements after the Camp David
summit in July, US President Bill Clinton mentioned the need to resolve
the issue of Jews in Israel and abroad who became refugees due to Israel's
founding.
This page was produced by Joseph
E. Katz
Middle Eastern Political and Religious
History Analyst
Brooklyn, New York
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Source:
[1] Committee for Accuracy in Middle East
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