Issues In The Palestinian—Israeli Conflict
__ Refugees Forever __
The Loopholes in 194
When Claiming the right of return, the Arabs consistently wave
UN General Assembly Resolution 194 of December 1948 as their banner.
The major issues: "Who is a refugee? What are refugees entitled to? Where may they return to and under what conditions?" require clarification before the true meaning of 194 is defined.
Let's hear what international jurists have to say
Ruth Lapidoth is Professor of International Law at the Hebrew University of Jerusalem, and a member of the Permanent Court of Arbitration in The Hague. She was also a fellow at the US Institute of Peace in 1990-1991. "Certainly many of those who fled their homes during the 1948 war are refugees. But the greater Palestinian refugee problem must be viewed from the perspective of international law. "The 1951-1967 Convention Relating to the Status of Refugees makes no mention of descendants - so the status is not inherited. Moreover, the convention ceases to apply to a person who, inter alia, has acquired a new nationality, and enjoys the protection of the country of his new nationality."
By this definition, the number of Palestinians who qualify for refugee
status would be well below 500,000 - considerably diminishing the
dimensions of the issue.
Moreover, the right of return in the 1966 International Covenant "is intended to apply to individuals asserting an individual right. There was no intention here to address the claims of masses of people who have been displaced as a byproduct of war or by political transfers of territory or population..." One also has to observe that humanitarian law conventions (such as the 1949 Geneva Conventions for the protection of Victims of War) do not recognize the right of return.
First rejected, later reclaimed
It should be noted that at the UN General Assembly of 11 December 1948 - Egypt, Iraq, Lebanon, Saudi Arabia, Syria, and Yemen - voted against 194, but later decided to embrace the resolution as recognition of a wholesale inalienable right of repatriation. But there is no recognition of any "right," rather a suggestion that refugees "should" be "permitted" to return.
Moreover, that permission is subject to two conditions: that the refugee wishes to return; and that he/she wishes to live in peace with his neighbors. The Palestinians have linked their demand for return to a claim for self-determination. A situation where returning Palestinian refugees have the right to external self-determination would mean the end of the very existence of the State of Israel. It should also be noted that the UN General Assembly has suggested resettlement as an alternative to repatriation.
Prof. Efraim Karsh, head of Mediterranean Studies at King's College, University of London, maintains that:
"It was in the late 1960s that the Arabs began to transform it  into the cornerstone of a
spurious legal claim to a 'right of return.' But 194 in no way establishes any such right. Additionally,
the very notion of such a 'right' contradicts the essence of international law and behavior."
242, 338, 194: confusing numbers
Since these often-quoted numbers confuse the layman we see fit to briefly dwell on them. "The foremost document used by the Palestinians to substantiate their call for Israel's complete withdrawal from the West Bank and the Gaza Strip is [UN] Security Council Resolution 242 of 22 November 1967 (echoed six years later by Resolution 338). This resolution does not demand Israel's complete evacuation of these territories but rather its
withdrawal 'from territories occupied in the recent conflict.' "The absence of the definite article 'the' from the text is anything but accidental. Issued a mere six months after Israel's astounding triumph over the concerted pan- Arab attempt to obliterate it, the resolution reflected the keen international awareness of the existential threat posed by the pre-1967 borders, memorably described by the then-Israeli foreign minister, Abba Eban, as 'Auschwitz borders.'
"Nor does the resolution make any mention of the creation of a Palestinian state. To the contrary, since the Palestinians were widely viewed at the time as refugees rather than a cohesive nation deserving its own state, it was assumed that those territories that would be evacuated by Israel would return to their pre-1967 Arab occupiers; Gaza to Egypt, and the West Bank to Jordan. All the resolution had to say about the Palestinians was to affirm the necessity 'for achieving a just settlement of the refugee problem.' "All this, of course, is water under the bridge. Egypt and Jordan have long washed their hands of these territories." These territories are generally termed "occupied" by harsh Israeli rule. They are, in fact, "disputed" territories - the final say and borders of which will be drawn following peaceful negotiations. This unorthodox view has been recently voiced by US Secretary of Defence Donald Rumsfeld and others.
No right, no return
Major-General (ret.) Shlomo Gazit, former head of IDF Intelligence, and member of the Jaffee Center for Strategic Studies at Tel Aviv University. explains:
"Regardless of the conditions that led Palestinians to uproot or flee their homes in 1948 and 1967, and regardless of the parties who were responsible for the creation of that tragedy, one cannot help but feel deep empathy for their suffering. "Moreover, there is no choice - the only way to guarantee calm and stability in our region is to resolve the refugee problem and do so as soon as possible. However, that empathy, which most citizens of Israel share, is not enough to warrant the return of the refugees to Israeli "Israel's position on that matter has to be clear: It does not recognize a 'right,' it does not recognize 'responsibility' and it will not allow the return of refugees into its territory. "Even more importantly, it does not establish a 'right' at all, let alone an
eternal and unconditional one. As opposed to UN Security Council resolutions, General Assembly resolutions have no binding international standing. They are merely recommendations. "Placing the blame for creating the problem on Israel has no international basis and the mere Palestinian request that Israel recognize such responsibility is Palestinian insolence. The 1948 war was a result of a clear Palestinian initiative to prevent the establishment of a sovereign Jewish state with the goal of annihilating the Jewish community. That thrust was joined in May 1948 by Arab armies who invaded Palestine.
"All the Jewish settlements occupied by Arabs, without exception, were destroyed,
and their residents - including women, elderly people, and children - were murdered or taken prisoner.
What is Israel requested to take responsibility for - defending itself, winning the battle?"
David Ben-Gurion, who agreed to the 1947 Partition Plan despite the significant territorial loss involved, declared "We won't accept the refugees. Not one refugee - just as our men who were killed in the Arab war against us will not rise up from the dead."
What Resolution 194 really means
Resolution 194 was originally destined to be the cornerstone of a peace process. It consists of 15 paragraphs, the first of which calls for the establishment of a reconciliation committee composed of representatives from the US, Britain and Turkey. The Jews accepted it, the Arabs rejected it. Years later the Arabs drew out paragraph 11 of Resolution 194, the one dealing with the subject of refugees. This was a ploy of diplomacy, picking the cherry from the cake, as it were.
Tragically, even Palestinian infants suckle, together with their mothers' milk, a poisonous hatred against Israel. Thus, the stipulation in 194 that the right of return is confined only to refugees "wishing to live in peace with their neighbors" appears far-fetched when the abyss of hatred and suspicion between the two peoples is widening. When Sari Nusseiba and other moderates, as a gesture, agree to "relinquish the right of return," while naturally they expect compensation, what needs to be absolutely clear is that in fact they relinquish nothing because there is no right of return.
This article appeared in the Jerusalem Post 1-15-2003 approximately,
and is reproduced solely for educational purposes.
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