Palestinian right of return

The number of Palestinian refugees of the 1948 war is estimated at between 700,000 and 800,000, and another 280,000 to 350,000 people were refugees of the 1967 war.[12][13][14][15] Approximately 120,000–170,000 among the 1967 refugees are believed to have also been refugees from the 1948 war, fleeing a second time.[16] Today, the estimated number of Palestinian refugees exceeds four million.[17] The right of return has been of great importance to Palestinians since then.[18]

The first formal move towards the recognition of a right of return was in UN General Assembly Resolution 194 passed on 11 December 1948 which provided (Article 11):

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.

UN General Assembly Resolution 3236, passed on 22 November 1974 declared the right of return to be an "inalienable right".[18]

The right of return was defined as the "foremost of Palestinian rights" at the 12th Palestine National Council meeting in 1974 when it became the first component of the Palestine Liberation Organization's trinity of inalienable rights, the others being the right of self determination and the right to an independent state.[19]

Israel has since the birth of the refugee problem consistently rejected that the Palestinians would have any inherent "right" of return. In June 1948, the Israeli government stated its position, which was reiterated in a letter to the United Nations on 2 August 1949, that in its view a solution to the Palestinian refugee problem must be sought, not through the return of the refugees to Israel, but through the resettlement of the Palestinian Arab refugee population in other states.[20]

The Palestinian refugee problem started during the 1948 Palestine War, when between 700,000 and 800,000 Arabs left, fled, or were expelled from their homes in the area that would become Israel. They settled in refugee camps in Transjordan, Lebanon, Syria, Egypt, and in the West Bank and the Gaza strip that were occupied by Transjordan and Egypt during the war.

From December 1947 to March 1948, around 100,000 Palestinians left. Among them were many from the upper and middle classes from the cities, who left voluntarily, expecting to return when the situation had calmed down.[21] From April to July, between 250,000 and 300,000 fled in front of Haganah offensives, mainly from the towns of Haifa, Tiberias, Beit-Shean, Safed, Jaffa and Acre, that lost more than 90% of their Arab inhabitants.[22] Some expulsions arose, particularly along the Tel-Aviv – Jerusalem road[23] and in Eastern Galilee.[24] After the truce of June, about 100,000 Palestinians became refugees.[25] About 50,000 inhabitants of Lydda and Ramle were expelled towards Ramallah by Israeli forces during Operation Danny,[26] and most others during clearing operations performed by the IDF on its rear areas.[27] During Operation Dekel, the Arabs of Nazareth and South Galilee could remain in their homes.[28] They later formed the core of the Arab Israelis. From October to November 1948, the IDF launched Operation Yoav to chase Egyptian forces from the Negev and Operation Hiram to chase the Arab Liberation Army from North Galilee. This generated an exodus of 200,000 to 220,000 Palestinians. Here, Arabs fled fearing atrocities or were expelled if they had not fled.[29] During Operation Hiram, at least nine massacres of Arabs were performed by IDF soldiers.[30] After the war, from 1948 to 1950, the IDF cleared its borders, which resulted in the expulsion of around 30,000 to 40,000 Arabs.[31] The UN estimated the number of refugees outside Israel at 711,000.[32]

No Arab country except Jordan has to date assimilated a significant population of Palestinian refugees, nor given them full citizenship, and many rely on economic aid from the UN or persons in other countries. It is the position of most Arab governments not to grant citizenship to the Palestinian refugees born within their borders; this policy is in part due to the wishes of these Arab states for Palestinians to be allowed to return to their homes within Israel, in part due to these states wishing to relieve themselves of the refugees.[33]

The causes and responsibilities of the exodus are a matter of controversy among historians and commentators of the conflict.[34] Although historians now agree on most of the events of that period, there is still disagreement on whether the exodus was due to a plan designed before or during the war by Zionist leaders, or whether it was an unintended result of the war.[35]

During the Palestinian exodus, Israeli leaders decided against the return of the refugees. During her visit at Haïfa on May 1, 1948, Golda Meir declared: "The Jews should treat the remaining Arabs 'with civil and human equality', but 'it is not our job to worry about the return [of those who have fled]".[36] A group consisting of "local authorities, the kibbutz movements, the settlement departments of the National institutions, Haganah commanders and influential figures such as Yosef Weitz and Ezra Danin started lobbying against repatriation.[37] A Transfer Committee and a policy of faits accomplis were set up to prevent a refugee return.[38] In July, it had become an official policy:[39] "Absentees' property" was managed by Israeli government and numerous Palestinian villages were leveled.

A parallel has been drawn by some commentators between the state and private restitutions made from Germany to Israel over Holocaust confiscations and the compensation due to Palestinians evicted in the formation of Israel.[40] Others have compared Palestinians' claims for compensation to the claims of ethnic Germans who were expelled from eastern Europe in the aftermath of the Holocaust and World War II.[41]

In 1945, of 26.4 million dunams of land in Mandate Palestine, 12.8 million was owned by Arabs, 1.5 million by Jews, 1.5 million was public land and 10.6 million constituted the desertic Beersheba district (Negev).[42][43] By 1949, Israel controlled 20.5 million dunams (approx. 20,500 km²) or 78% of lands in what had been Mandate Palestine: 8% (approx. 1,650 km²) were privately controlled by Jews, 6% (approx. 1,300 km²) by Arabs, with the remaining 86% was public land.[44]

During the Six-Day War another Palestinian exodus occurred. An estimated 280,000 to 350,000[45] Palestinians fled or were expelled[46] from the West Bank, the Gaza Strip and the Golan Heights as a result of the Six-Day War; approximately 120,000-170,000 among them were believed to also be refugees from the first war, fleeing a second time.[47]

Yemenite Jews en route from Aden to Israel

A comparison is often made between the situation of Palestinian refugees and the exodus of Jews from Arab countries who are now in Israel (or elsewhere).

It is estimated that 800,000 to 1,000,000 Jews were either forced from their homes or left the Arab countries from 1948 until the early 1970s; 260,000 reached Israel between 1948 and 1951, and 600,000 by 1972.[48][49][50]

In 2000, Bobby Brown, advisor to prime minister Benjamin Netanyahu on Diaspora affairs and delegates from the World Jewish Congress and the Conference of Presidents of Major American Jewish Organizations began an intensive campaign to secure official political and legal recognition of Jews from Arab lands as refugees. The campaign's proponents hoped their efforts would prevent acceptance of the "right of return" to Palestinians, and reduce the amount of compensation that would be paid by Israel for appropriated Palestinian property.[51] Then-President of the US Bill Clinton gave an interview in July 2000 to Israel's Channel One and disclosed an agreement to recognize Jews from Arab lands as refugees, while Ehud Barak hailed it as an achievement in an interview with Dan Margalit.

In 2002, the organization "Justice for Jews from Arab Countries" (JJAC) was created and its Founding Congress (Election of a Board of Directors, Finalized By-Laws for the organization, etc.) met in London in June 2008. Beginning in November 2008, they planned to undertake major initiatives and that in 2009, they would hold a national conference in Israel.[52] Their achievement to date is described as "having returned the issue of Jews from Arab countries to the agenda of the Middle East."

In November 2012, Palestinian Authority President Mahmud Abbas repeated his stance that the claim of return was not to his original hometown, but to a Palestinian state that would be established at the 1967 border line. Hamas denounced this adjustment.[53][54] Abbas later clarified (for the Arab media) that this was his own personal opinion and not a policy of giving up the right of return. Israeli politicians denounced the clarification.[55]

The main Article of Resolution 1948, for the purpose of this article, is Article 11 which deals with the return of refugees.

Article 11 of the resolution reads:

[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 exact meaning and timing of enforcement of the resolution were disputed from the beginning.

Since the late 1960s, Article 11 has increasingly been quoted by those who interpret it as a basis for the "right of return" of Palestinian refugees.

Israel has always contested this reading, pointing out that the text merely states that the refugees "should be permitted" to return to their homes at the "earliest practicable date" and this recommendation applies only to those "wishing to ... live at peace with their neighbors". In particular, David Ben-Gurion, the first Prime Minister of Israel, insisted in an interview with the members of the Conciliations Commission that as long as Israel could not count on the dedication of any Arab refugees to remain "at peace with their neighbors" – a consequence, he contended, of the Arab states' unwillingness to remain at peace with the state of Israel – resettlement was not an obligation for his country.[57]

Protester with "Right of Return" poster, Washington, DC 2009

Supporters of the right of return assert it partly based on the following sources:

• "Everyone has the right to leave any country, including his own, and to return to his country." Article 13(2), Universal Declaration of Human Rights (10 December 1948).[7][58]
• The Geneva Conventions of 1949.[58]
• United Nations General Assembly Resolution 3236 which "reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return".[59]
• United Nations Security Council Resolution 242 affirms the necessity for "achieving a just settlement of the refugee problem".[60][59]

According to Akram[61] although the status of Palestinian nationals/citizens after the creation of the State of Israel has been much debated, established principles of state succession[62] and human rights law confirm that the denationalization of Palestinians was illegal and that they retain the right to return to their places of origin.[61]

On March 15, 2000, a group of 100 prominent Palestinians from around the world expressed their opinion that the right of return is individual, rather than collective, and that it cannot therefore be reduced or forfeited by any representation on behalf of the Palestinians in any agreement or treaty. They argued that the right to property "cannot be extinguished by new sovereignty or occupation and does not have a statute of limitation", and asserted that "it is according to this principle that the European Jews claimed successfully the restitution of their lost property in World War II". Their declaration partly rested on the assertion that, on certain occasions, Palestinians were expelled from their homes in Israel. The declaration placed the number of towns and villages in which this occurred at 531.[63]

Some libertarians have argued for the Palestinian right of return largely from a private property rights perspective. In "Property Rights and the 'Right of Return'", professor Richard Ebeling writes: "If a settlement is reached between the Israelis and the Palestinians, justice would suggest that all legitimate property should be returned to their rightful owners and that residence by those owners on their property should be once again permitted."[64] Attorney Stephen Halbrook in "The Alienation of a Homeland: How Palestine Became Israel" writes: "Palestinian Arabs have the rights to return to their homes and estates taken over by Israelis, to receive just compensation for loss of life and property, and to exercise national self-determination."[65] In "War Guilt in the Middle East" Murray Rothbard details Israel's "aggression against Middle East Arabs", confiscatory policies and its "refusal to let these refugees return and reclaim the property taken from them".[66]

Palestinian and international authors have justified the right of return of the Palestinian refugees on several grounds:[67][68][69]

• Several authors included in the broader New Historians assert that the Palestinian refugees were chased out or expelled by the actions of the Jewish militant groups Haganah, Lehi and Irgun.[70][71]

A report from the military intelligence SHAI of the Haganah entitled "The emigration of Palestinian Arabs in the period 1/12/1947 – 1/6/1948", dated 30 June 1948 affirms that up to 1 June 1948:

"At least 55% of the total of the exodus was caused by our (Haganah/IDF) operations." To this figure, the report's compilers add the operations of the Irgun and Lehi, which "directly (caused) some 15%... of the emigration". A further 2% was attributed to explicit expulsion orders issued by Israeli troops, and 1% to their psychological warfare. This leads to a figure of 73% for departures caused directly by the Israelis. In addition, the report attributes 22% of the departures to "fears" and "a crisis of confidence" affecting the Palestinian population. As for Arab calls for flight, these were reckoned to be significant in only 5% of cases...[72][73][74]

Objectors to a Palestinian right of return contend that such a right would destroy Israel as a Jewish state as it would leave Jews a minority in Israel. In a two-state solution framework, this would leave Israel as a bi-national state with a Jewish minority with an additional Palestinian state. Israelis see this demand as inherently contradicting the "two states for two peoples solution", and this has caused many Israelis to believe Israeli–Palestinian peace is not possible.[75]

Opponents of the right of return reject it partly based on the following sources:

• There is no formal mechanism in international law to demand repatriation of refugees and their descendants in general, or Palestinians specifically. No international legislation, binding UN resolutions or agreements between Israel and the Palestinians require this.[76] Including:
• That United Nations Security Council Resolution 242 does not mention a right of return or any other arrangement as a mandatory solution, and only calls for a "just settlement" to the refugee issue. According to Ruth Lapidoth, this also includes the issue of Jewish refugees from Arab and Muslim nations.[77][78]
• That the Convention Relating to the Status of Refugees makes no mention of descendants and that the convention ceases to apply to a person who, inter alia, has acquired a new nationality.[79]

Israeli official statements and many accounts from supporters have long claimed that the 1948 refugee crisis was instigated by the invading Arab armies who ordered Palestinian civilians to evacuate the battle zone in order to allow the Arab armies freedom to operate. Israel officially denies any responsibility for the Palestinian exodus, stating that their flight was caused by the Arab invasion.[80]

Opponents of the right of return, such as Efraim Karsh say that Israel is therefore not obligated to compensate Palestinians or allow them to return.[81] Karsh writes that the Palestinians were not the victims of a "Zionist grand design to dispossess them" but rather were "the aggressors in the 1948–49 war" and as such are responsible for the refugee problem. Karsh does not deny that some Palestinians were forcibly expelled, but places the blame for the bulk of the exodus on Palestinian and Arab elites and leaders who writes fled prior to April 1948 and caused a "stampede effect". Karsh writes that Arab leaders and/or Arab military forces drove out huge numbers of Palestinians from their homes. Karsh states that most Palestinians chose their status as refugees themselves, and therefore Israel is therefore absolved of responsibility.[81] Benny Morris argues that the newly formed Israeli state viewed, and rightly so in his view, the Palestinian refugees as enemies "who had just attacked the Jewish community" and if they were allowed to return could form a fifth column. He views the refugee problem as consequence of a war that they instigated.[82]

Some critics of the Palestinian right of return also argue that it is not supported by international precedent, drawing attention to the 758,000–866,000 Jews who were expelled, fled or emigrated from the Arab Middle East and North Africa between 1945 and 1956, with property losses of $1 billion. These critics argue that since these refugees were neither compensated nor allowed return—to no objection on the part of Arab leaders or international legal authorities—the international community had accepted this migration of Jews as fait accompli, and thereby set legal precedent in the region against a right of return.[83] Former Israeli foreign minister Moshe Sharett asserted that the migration of refugees between Israel and the Arab world essentially constituted a population exchange. He argued that precedent, such as the exchange of 2.5 million people between Poland and the Soviet Union, as well as the 13 million Hindus and Muslims who crossed the India–Pakistan border, showed that international law neither requires nor expects the reversal of population exchanges. He further argued that precedent does not require reversal even of one-directional refugee migrations, such as the expulsion of 900,000 Germans from Czechoslovakia following World War II. In Sharett's view, Israel was singled out as the exception to international law.[83]

Ruth Lapidoth has argued that U.N. General Assembly Resolution 194 does not specify a "right", but rather says refugees "should" be allowed to return. She has also noted that General Assembly resolutions are not legally binding on member states, and that this particular resolution based its recommendations on two conditions: that refugees wish to return, and that they be willing to "live at peace with their neighbors". She argues that the latter condition is unfulfilled, citing the actions of Palestinian militant groups. She concludes that Palestinian refugees have right to seek a negotiated compensation, but not a "right of return".[76]

According to Lapidoth, Stig Jägerskiöld in 1966 said that the right of return was intended as an individual and not a collective right, and that "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".[76][84][85]

Andrew Kent, a Professor at Fordham University Law School, argues that Israel is not obligated to accept a Palestinian right of return, as international law at the time the 1948 Palestinian exodus occurred did not render Israeli actions illegal, with documents cited by proponents of the right of return such as the Fourth Geneva Convention and the International Covenant on Civil and Political Rights coming into force after the Palestinian exodus had taken place. Kent argues that these documents do not apply, as international law almost never applies retroactively. Kent concedes that international law almost certainly would mandate a right of return if a refugee displacement under similar circumstances were to occur today.[86]

Anthony Oberschall has argued that a full right of return by refugees and their descendants to their original homes would create chaos as the original Palestinian villages no longer exist and in their place are Israeli homes and property, writing that "the townhouses, villages, farms, olive groves, and pastures of 1948 do not exist anymore. They have become Israeli towns, apartment blocks, shopping centers, industrial parks, agribusinesses, and highways." He further argues that a settlement between two warring people would ideally have a separation between them and their respective states.[87]