The Palestinian Right of Return: a mirage of misunderstanding.

The other day, the question was put to me that if the Palestinian “right of return” was taken out of the current Palestinian – Israeli conflict, could one list other major obstacles to a peaceful solution to the conflict

In writing the article below, I relied on the intellectual property of works by Ruth Lapidot, Avinoam Sharon, Dore Gold, Jonathan Halevi, Daniel Taub, Dianne Morrison and Justus Weiner.

Interesting (and timely) as the question was, I considered the two parts of the question and answered the second part first. The bulk of the article, however, deals with the Palestinian (sic) “right of return” (sic). And, as I progressed with the writing of the article, the question required a range of increasingly involved, though legally unequivocal answers. The easy answers to major obstacles to peace first:

  1. Dissolve the Arab-Muslim voting bloc and its automatic majority status in the UN.

The reason is that this voting bloc has expanded its circle of influence in the General Assembly to the humanitarian and human rights institutions of the international community in order to establish legal principles that can be used as tools against Israel and in the effort to harness international institutions as part of that campaign and thus present obstacles rather than solutions to a prospective peaceful outcome.

  1. Withhold all payment/grants to the PA until it can show its school curriculum does not espouse anti- Jew hatred.
  2. Grant incremental monetary aid to the PA for each year it can DEMONSTRATE its re-vamped curriculum is working according to established criteria…
  3. Mandate that the 1967 cease fire lines were never “borders” and thus Israel can never return to what was never there in the first place.

The theoretical effect of the above would be the beginning of education for life and not martyrdom, a vision of economic and social prosperity demonstrated by fiscal and social reform and a letting go of the myths that 1967 or even 1948 are borders to which an additional prospective Arab Muslim state or confederation could aspire.

Defining the Meaning of the Right of Return

Now we can deal with the so-called “right” of return.

Mahmoud Abbas and the Palestinian Authority that derives its authority from the terrorist-entwined PLO, demands Israeli adherence to UNGA Resolution 194 (December 1948) and UNSC Resolution 242 (November 1967): “…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, and that compensation should be paid for the property of those choosing not to return…”

  1. Immediately, we run into a problem, namely that the generational “refugees” have demonstrated time and again, over 72 years, that they have no intention of living in peace with their neighbours. There is little point in cataloguing the sad history of Arab-on-Jew violence 1948 to 2020 and Israeli responses to that ongoing violence.
  2. Ironically, and this escapes Abbas and his supporters, all the Arab states originally rejected this resolution because it assumed recognition of Israel, and only later did they come to come to rely on it heavily and conveniently interpreted it to be recognition of a wholesale right to repatriation.

Additionally, Abbas, in the tradition of his PLO mentor Arafat, has demanded that UN Security Council Resolution 242 remain the pivotal point of reference in all Arab-Israeli diplomacy, and particularly since 1967. Thus, he adheres to the principle that any major Arab-Israeli agreement refer to Resolution 242 as a binding requirement on the Israelis.

Commentary:

  1. Nowhere in either Resolution 194 OR 242 is the word “Palestinian” mentioned. I have quoted verbatim UNGA Resolution 194 above. For its part, Resolution 242 Paragraph 2 (b) states that the parties should “affirm the necessity” for “…achieving a just settlement of the refugee problem.”
  2. Unquestionably, words and meaning are of paramount importance when legislating laws for the international community.

UNGA Resolution 194 (1948) Paragraph 2 states: “…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…”

This is a very careful recommendation using the operative word “should” (not shall), and subjecting the recommended return to several conditions.

Apart from not recognising, stating or implying any “right”, the paragraph stipulates that the “permission” is subject to two conditions – that the refugee wishes to return, and that he wishes to live at peace with his neighbours. The violence that erupted as late as June 2020 forecloses any hope for a peaceful co-existence between Israelis and masses of returning refugees. And if further evidence of poor intent was required, the reader is referred to Articles 2, 9, 19 and 20 of the PLO Charter, Articles 12 and 19 of the Fatah Constitution as well as the (unchanged) Hamas Charter…)

As well, conditions were quite explicitly expressed in Resolution 242 (1967) where in Paragraph 2 the Council “Affirms further the necessity… (b) for achieving a just settlement of the refugee problem”. The Council did not propose a specific solution, nor did it limit, stipulate or imply the provision specifically to Arab refugees, probably because the right to compensation of Jewish refugees from Arab lands also deserves a “just settlement”. Thus, there is no legal basis, no matter how interpreted, for the Arab claim that resolution 242 explicitly or implicitly incorporates the solution recommended by General Assembly Resolution 194 of 1948.

So, with UNGA Resolution 194 remaining a recommendation, what of the Arab insistence on Israeli adherence to, and compliance with, a “legally binding” UNSC 242 ruling?

On March 19, 1992, replying to a question, the Secretary-General, Boutros Boutros-Ghali, said that “[a] resolution not based on Chapter VII is non-binding. For your information, Security Council Resolution 242 (1967) is not based on Chapter VII of the Charter.”

In a statement of clarification it was said that “the resolution is not enforceable since it was not adopted under Chapter VII.”(“action with respect to threats to the peace, breaches of the peace and acts of aggression.”).

Thus it would seem that the resolution, because it was filed under Chapter VI of the UN Charter which deals with “pacific resolution of disputes”, (made for the Security Council to show its opinion at the time without obligating a party, and thus a legally non-binding classification under international law) was also a recommendation despite its formulation in the Security Council.

  1. To continue, in deciding who is a “refugee”, one is to be guided by the 1951–1967 Convention Relating to the Status of Refugees which states that a refugee is any person who

“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

Most readers will immediately point out that Israel today holds 2 million Arab Israeli citizens of diverse political persuasions who practice their religion and culture without fear or favour and who are protected by the Israel Defence Force of the State of Israel in the event of attacks by Israel’s Arab neighbours.

The reader will also note that there is no mention in the Convention’s definition of descendants or spouses. This is in opposition to the practice of the UNRWA which has, since 1949, registered the children, grandchildren, and great-grandchildren born to the refugees while co-consequently not systematically deleting all deceased persons from its registry.

Moreover, the convention ceases to apply to a person who, amongst other things, “has acquired a new nationality, and enjoys the protection of the country of his new nationality.” Under this definition, the number of Palestinians qualifying for refugee status would be well below half a million.

Does Resolution 242 guarantee Palestinians a right of return?

However, one has to ask whether Resolution 242 recognizes that the “Palestinian” refugees have a right to return to Israel?

According to the Arab point of view, the answer is yes; according to the Israeli opinion it is no.

The Israeli interpretation is based on a plain reading of the text, which speaks of a just settlement, without indicating what that settlement should be.

The Arab interpretation, however, claims that Resolution 242 has, by implication, endorsed General Assembly Resolution 194(III) of 1948(31) which, in their opinion, has recognized a right of return for the refugees.

This Arab interpretation is as erroneous as it is self-serving.

In international law, if there had been an intention to incorporate UNGA Resolution 194(III), it would have been expressly stated. It was not, and any attributed “implication” is self-serving (here with the express stated intention of destroying the Jewish state).

One cannot, post facto, read into a resolution something which is not mentioned nor hinted at in it.

And besides, where UNGA Resolution 194(III) does not confer a right of return and, like most General Assembly resolutions, remained a recommendation, UN Security Council Resolution 242 was, as mentioned above, also a recommendation based on Chapter VI of the UN Charter.

However, what 242 did do was to state clearly its recommendation that the parties concerned affirm the principle of the “right to live in peace within secure and recognized boundaries free from threats or acts of force”.

It also, along with Resolution 338, served as the only agreed legal basis for resolving the Arab-Israeli conflict that was acceptable to both Israel and the Arab states (Syria agreed after the 1973 Yom Kippur War to Resolution 242 when it accepted Resolution 338 which refers to a resolution of the conflict that must be based on Resolution 242).

Conclusion

With regard to the right of return, I noted that the Arab adherence to Resolution 194 was an adherence to a recommendation while its adherence to  Resolution 242 remains, per former Secretary General Butros-Ghali, unenforceable.

What remains, after 72 years of often violent intransigence, the refusal of 14 peace offers and three offers of statehood, is the last remaining option currently on the table (per Resolutions 242, 338 and the framework of Oslo): come to the party; negotiate land for peace; or even the little that remains may not be available in any meaningful way as either a state or even a confederation with Jordan.

Israel for its part does not need to bend over backwards any longer to accommodate demonstrably hostile “Palestinian” Arab interests. That mistake was already made back in 1967 with the (well-intentioned) granting of the waqf to Jordan for administering Muslim holy sites in Jerusalem.

In the Palestinian- Israeli conflict, nothing will change until the Palestinians, along with the larger Arab-Muslim world, come to terms with the fact that they are not uniquely persecuted, that Israel is not uniquely evil, and that compromise is a core pre-requisite for statehood however defined.

Israel remains a state that is dedicated to human rights, civil liberties, and democratic principles. For its part, and in order to answer the national aspiration of the Jewish diaspora, it absorbed Jewish refugees that came from all over the world with the aim of building a nation state through numerous compromises.

Contrast this with the interview with Akiva Eldar from Ha’aretz on July 19, 2007, where Palestinian Prime Minister Salam Fayyad stated that, because his loyalty was to the ideological legacy of Arafat, he believed that Israel must recognize Palestinian right of return voluntarily or by coercion. No compromise here.

Or this 2009 statement of the party of moderate Palestinian president Mahmoud Abbas at the Sixth Fatah Congress in 2009 that updated the movement’s ideological platform for the first time since its previous convening in 1989.

At the Congress, Fatah determined that one of its fundamental principles was what was defined as “a right to resistance.”:

“The Fatah Movement cleaves to the right of the Palestinian people to oppose occupation with all legitimate means including its right to realize the armed struggle.”

In 2020, much more of the world is coming to realise that the Palestinian demand of the right of return has been used more as a political playing card than a sincere expression of a resolution to the Arab- Israeli conflict.

This realisation becomes especially stark as it sinks in that Palestinians are the only group since the end of the second world war to have kept their refugee status and to have passed this status down to over four generations, creating a problem of millions of “refugees” that are kept as pawns in a political game instead of solving either their humanitarian situation or their stated political aspirations.

I have outlined above why and how both Resolution 194 and 242 are non-binding, and where 242 recommends that any settlement be agreed through compromise and negotiation.

Yet Palestinian Authority Chairman Mahmoud Abbas has never publicly deviated from the PLO’s fundamental position on this matter. Abbas’ attitude is totally identical to that of Yasser Arafat.

For example, at the September 2010 summit meeting in Washington that launched the renewed political negotiations with Israel, Abbas reiterated three times in his short address the importance of establishing a “just peace,” and said that the Palestinian people “need more than anything else, security, justice, and peace.”8

The word “compromise” was never mentioned, and it does not appear at all in his reference to a future agreement with Israel and particularly regarding the refugee problem.

If only for this reason, and for the calculated demographic and political chaos it entails for a sovereign Jewish state, the Palestinian (sic) demand for a “right of return” (sic) does not have its heart in the right place, is not legally viable and can never be the basis for any Palestinian state or confederation building.

And, with the continued thawing of Israeli – Gulf Arab states relations, Israel’s cordial and mutually beneficial relations with the Turkmenic Muslim states, the re-opening of Muslim Africa once again to Israeli diplomatic effort, the increasing scrutiny and defunding of Hezbollah and Iran in the international community and Trump’s proposed Deal of the Century, even that diminishing window of opportunity seems to be disappearing after 72 years of a Palestinian (sic) policy of non-normalisation and intransigence towards the Israelis.

Published at C.R.A.P – Countering Racist Anti-Israel Propaganda

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