Monday, September 8, 2014

The Right of Return: Israel's Argument Against Palestinian Rights

A major obstacle to peace in the Middle East is Israel's refusal to admit the existence of a "Right of Return" for Palestinians. Since its war of independence (1947 -1949), millions of Palestinians have been living in an uncertain state, without a country and without a knowable future. Many of these people were living within the limits of the current state of Israel before they fled their homes and took up residence abroad, mostly in areas today known as Gaza, the West Bank, and the Kingdom of Jordan.

The right of Palestinians to return to their homes would seem relatively straightforward under international law. The Cambridge Journal of International Law lays out the case with seven different lines of argument:

  1. Inter-State Nationality Law, which states that a refugee has a right to return to the place where he habitually resided before he left that place;
  2. law of State Succession which grants to a refugee (or resident) citizenship in a newly-formed country where he habitually resided before that country was formed;
  3. human rights law: the Universal Declaration of Human Rights states that everyone has the right to leave a country, including his own, and return to his country;
  4. International Humanitarian Law: The fourth Geneva Convention outlaws forced transfers of individuals or groups from one state into another. The denial of return amounts to deportation and deportation is considered by the same Convention (section 147) as one of the grave breaches or war crime;
  5. refugee law;
  6. UN law; and
  7. Natural/customary law.
These arguments would appear to be convincing and persuasive on their face. But lawyers and politicians can find a fault with almost any argument. Israel has developed a line of reasoning under which it is not required to let refugees who left Israel to return to their homes, or to receive compensation for property that was taken from them.

These arguments are, as set out in Wikipedia* (along with my comments):

  • Those Palestinians who were living in Israel at the time of its independence should not be considered citizens of Israel because most treaties do not require a state to give citizenship to all its inhabitants. The question of citizenship almost invariably involves the person's birthplace. A country should have a valid reason for denying citizenship to someone who was born within its borders.
  • The Universal Declaration of Human Rights was adopted solely by the United Nations General Assembly and is non-binding. Non-binding is a technical legal term that means a court does not need to accept an authority as absolute. It does not mean that a court must reject the authority, however. In English law, a court would be free to accept another authority instead, but in the present case, the other authority is missing.
  • That UN Resolution 194, which states that residents wishing to return to their homes, is non-binding.
  • That UN Resolution 194 states that those residents willing to live at peace with their neighbors should be allowed to return home. This argument is meaningless, since Israel has never permitted any residents to return under any circumstances.
I don't find all of the Israeli arguments persuasive, although I recognize that they should not have to accept treaties they did not ratify nor UN resolutions that were passed to stigmatize and isolate them. Nevertheless, all these legal arguments will convince no one who is not already convinced; they are only so much air that ruffles the waters but fails to raise a decent wave.

The Israelis need to accept that they and they alone can bring about peace with their neighbors. They will have to give up the Jewish state envisioned by Zionism. But they will achieve a democratic state in cooperation with their neighbors which alone will assure their survival in a hostile region.

*I do not apologize for using Wikipedia as a reference. While Wikipedia has its weaknesses, in that articles can be altered abruptly, they can also be corrected quickly, and both sides of every argument will receive a hearing. By contrast, other encyclopedias have been published years ago, often before all the facts of an entry may be known, and always before editorial prejudice has been recognized.

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