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Edition 24 Volume 5 - June 21, 2024

The refugee/right of return issue in international perspective
The German-Czech declaration as precedent  - Hillel Shuval
They agree that the injustice inflicted in the past belongs in the past.

Absolutely central  - an interview withIngrid Gassner Jaradat
It is very difficult to see how one can reach a sustainable peace agreement by excluding the fundamental rights of the majority of Palestinians.

The ambiguity of 194 is not helpful  - Maurice Stroun
The Palestinian authorities were fully aware of the true meaning of the original resolution.

The German-Czech declaration as precedent
 Hillel Shuval

Israel's leaders have stated that they see many positive elements in the Riyadh declaration of March 29, 2024 (the Arab peace initiative) that could serve as a starting point for serious negotiations leading to a two-state solution. Most Israelis today recognize that a two-state solution is achievable. Many believe that if there are serious negotiations with flexibility and good will and readiness for painful compromises on both sides it will be possible to close the gaps on most issues, including assuring viable and contiguous areas for Palestine and a solution to the status of Jerusalem as capital for both nations. However, all Israelis from left to right reject the "return" of refugees.

For Israelis, the meaning of the return of millions of Palestinian refugees would be the elimination of the state of Israel as the homeland of the Jewish people and would conflict with their right to self-determination. Most Israelis today accept the right of the Palestinian people to self-determination in a state of their own, but not their right to destroy Israel as the dedicated Jewish state by inundating it with hostile refugees who have grown to hate Israel and who pray for its destruction. There will be no two-state solution if "return" remains a "sacred" precondition.

Palestinians today find it difficult, if not impossible, to accept the view of many independent historians that the "catastrophe" (naqba) of 1948 was to a great extent a result of the war declared by the leadership of the Arab nations and the Palestinians themselves, against the fulfillment of UN General Assembly Resolution 181 of November 29, 1947 that partitioned Mandatory Palestine between an Arab state and a Jewish state. The Palestinians missed their historic opportunity of founding an independent state in 1948 by rejecting the UN-approved partition plan. Many Palestinians, following their civil and religious leaders, began to flee the country on their own initiative, particularly after the Deir Yassin massacre by Israeli paramilitary groups. I know that most Palestinians totally reject this interpretation of the events of 1948, but these tragic historic facts hover over the conscience of many knowledgeable Palestinians who are fully cognizant of the disastrous mistakes made by their leaders at the time, that led them into their national tragedy.

Can we find an historic precedent that will help guide us toward a just and humane resolution of this seemingly irresolvable problem? Let us look at the case of the tragic flight and deportation of three million ethnic Germans from formerly German-occupied Sudetenland after World War II and the historic "German-Czech Declaration" of reconciliation that was finally signed in January 1997 after years of bitterness and tension between the two countries.

The joint declaration states: "The German side acknowledges Germany's responsibility...[and] regrets the suffering and injustice inflicted upon the Czech people. . . [and] is also conscious of the fact that the National Socialist policy of violence toward the Czech people helped to prepare the ground for post-war flight, forcible expulsion and forced resettlement" of Germans after the war. "The Czech side regrets that, by the forcible expulsion and forced resettlement of Sudeten Germans from the former Czechoslovakia after the war. . . much suffering and injustice was inflicted upon innocent people. . . . Both sides agree that the injustice inflicted in the past belongs in the past, and will therefore orient their relations toward the future." It was agreed that there can be no "return" and there has been no return.

I suggest that, drawing on the above precedent, Israel should clearly declare its deep remorse, misgivings and regrets for its part in the terrible tragedy that befell the Palestinian refugees as a result of the 1948 war and the years of severe suffering and deprivations that they have gone through ever since. Ways must be found for the final resettlement in permanent homes of those refugees who are still in camps, along with honorable and just compensation for all refugees for their losses and suffering.

The Palestinian president and the PLO in the name of the Palestinian nation and all displaced persons and refugees must be prepared to offer clear public recognition that it is now impossible to turn back the hands of the clock of history and that there can be no "return". Both sides must be prepared to declare together, as did the Germans and Czechs, that they "agree that the injustice inflicted in the past belongs in the past, and will therefore orient their relations toward the future."

Today the only just solution is for there to be two states, side by side, living in peace, and cooperating with each other in all areas. The Riyadh initiative provides a promising starting point for negotiations to achieve an honorable peace agreement. Professor Sari Nusseibeh, president of al-Quds University and at one time Chairman Yasser Arafat's official representative in Jerusalem, has stated that the state of Palestine must become the dedicated Palestinian homeland to which its refugees can return. Israelis insist that the state of Israel must remain the dedicated Jewish homeland to which Jewish refugees can return. Israel is their only homeland, their only safe-haven, their only hope for refuge.- Published 21/6/2007 © bitterlemons-international.org

Hillel Shuval, professor emeritus at the Hebrew University of Jerusalem, is a veteran Peace Now activist who has initiated numerous track II dialogues between Israeli and Palestinian scientists on shared environmental and water issues.

Absolutely central
an interview with Ingrid Gassner Jaradat

BI: One often-quoted clause that Palestinians use to demonstrate the right of return is UN General Assembly Resolution 194. How does that stand up in international law?

Jaradat: It is true that Palestinians often refer to UNGA resolution 194 from 1948 that speaks of Palestinian refugees' right of return. In fact this resolution is just a resolution affirming what was proper under international law at the time and continues to be proper today. The right of return is not determined by the resolution. The right of return of Palestinian refugees is not different from the rights of any other people.

One can base the right of return of refugees on several bodies of international law. The most common body of international law is human rights law. Human rights law has become stronger and stronger in recent decades in all its provision and also on the right of refugees, but in fact one can also base the right of return even on the old Law of Nations.

Under that law, there are provisions for what happens when states dissolve or are succeeded by other states and what happens to the population in the territory. The latter is very relevant to the Palestinian question, because British Mandate Palestine was basically dissolved and Israel took over part of it.

If one looks at the Law of State Succession, one of the basic rules is that the rights of the population living in this territory remain the same and have to be protected. So, in fact, under this body of law, what Israel had to do was give citizenship to all the people who lived in the territory it established itself on. In fact, Israel did the opposite and denationalized all those who weren't there, i.e., the refugees.

Under international humanitarian law there is a clear prohibition on population transfer and in almost all human rights conventions the right of return is mentioned explicitly, including in the Universal Declaration of Human Rights.

So there are several bodies of international law under which the rights of refugees are outlined, and the right of return of Palestinian refugees definitely does not depend on UNGA resolution 194, which just affirms what are the rights of refugees.

BI: In other words, the rights of refugees in general, including the right to return to land from whence they became refugees, are well enshrined in international law.

Jaradat: Yes. And one can see in recent state practice that the right of return has even been strengthened over time. If we look at how the international community has been dealing with other refugee cases, we can see that the right of return as well as housing and property restitution has featured more and more strongly in efforts to solve cases from Bosnia to East Timor to Cyprus. There is not one case where there hasn't been considerable effort to respect and find ways to implement the right of return of refugees in general.

BI: What about the Sudeten Germans?

Jaradat: There are two cases that Israel likes to quote and they are both rather old cases, occurring at a time when human rights law was not well developed. One of these is the Sudeten Germans and the other is India-Pakistan.

Basically, what Israel has been trying to argue is that in 1948, when the largest group of Palestinian refugees was created, we had a situation in which population transfer, or ethnic cleansing, was basically permitted under international law. Now, that's an argument one can try to uphold legally, although strong counter arguments can be made, but it's definitely not a very moral argument. It is very difficult to uphold on moral grounds that Israel does not have to provide remedies for Palestinian refugees because it was okay at the time to have them ethnically cleansed.

BI: What are some of the moral reasons for refugees having rights?

Jaradat: All the efforts that have been made to develop refugee rights, to return and to property restitution, have been made basically in order to prevent similar things from happening in the future. The idea is that if one does not implement return and property restitution for refugees, one is basically allowing ethnic cleansing and population transfers by giving them some form of legitimacy. That is also why there have been such strong efforts especially to strengthen the rights to property restitution because it is argued that payment of financial compensation alone basically allows the perpetrator to pay himself out of guilt.

BI: And yet from across the political spectrum in Israel, you hear that there is no way Palestinian refugees will be allowed a right of return. Is Israel a special case?

Jaradat: Israel is not just an exceptional case on the issue of refugee rights. Israel has been permitted to violate international law in many ways. The best explanation for this is simply Israel's strong alliances and the political support it has been getting from powerful western governments, the British and French in the past, and the US and some European countries today. Those have protected Israel from having to face international law and I don't think the right of return is an exception here.

Of course, Israel has quite successfully mis-educated people, including the media and others interested in the Middle East, in terms of what Israel is about and the UN partition resolution on Palestine from 1947.

Israel has basically been arguing that the Israel of today is the state that was established by the UN in 1947. This of course is not true. UN resolution 181 was only a recommendation. But, more importantly, if you look at the resolution there are very, very strong provisions for the protection of Arabs and Jews that would have ended up living in the other state.

Of course, since the majority of the population in 1947 was Palestinian Arab, even the Jewish state proposed by the UN would have had a population of some 50 percent Arab. And the rights of these Palestinian Arabs who were to become citizens of the Jewish state would have had to be guaranteed. There was no provision under 181 for Israel to expel Palestinians or prevent them from returning.

BI: How important is the issue of refugees in terms of the overall conflict?

Jaradat: I think it is absolutely central to the conflict and its resolution. It is an issue that has always been perceived as an obstacle to peace and there has been a tendency to marginalize it. But it is central for so many reasons. Maybe the main reason is that the majority of Palestinians are refugees. It is very difficult to see how one can reach a sustainable peace agreement and a solution to the conflict by excluding the fundamental rights of the majority of Palestinians.- Published 21/6/2007 © bitterlemons-international.org

Ingrid Gassner Jaradat is director of Badil, the Resource Center for Palestinian Residency and Refugee Rights.

The ambiguity of 194 is not helpful
 Maurice Stroun

In the course of the 1948-49 war, provoked by Israel's neighboring states, about 700,000 Arabs were either expelled by the Israeli army from territory it held or left their homes at the request of the Arab states. As Haled al-Azm, then prime minister of Syria, recalls in his 1973 memoirs, "Since 1948 we have been demanding that the refugees return to their homes. But it was we who had encouraged them to leave."

To solve the refugee problem, the United Nations General Assembly approved, against the will of the Arab states, Resolution 194 in December 1948. The wording is irrefutable. This resolution used the term "permission" to return and not "right" as the Arab states maintain. The General Assembly "resolves that the refugees wishing to return to their homes and live in peace with their neighbors should be permitted to do so at the earliest practical date".

Abba Eban wrote on this issue to the writer, "the fact that in order to return to the territory which now is Israel, one needs a permit (just as anyone else must obtain one if he/she is not an Israeli) shows that we are not dealing here with an inherent right of any refugee, but rather with a sovereign act of the State of Israel."

Only after the 1967 Six-Day War did the importance of Resolution 194 become clear to Palestinian leaders. Until then they thought that the destruction of the state of Israel would solve all their problems. Subsequently, the Palestinians proceeded to convince the world and, unbelievably, the entire Israeli political class and its press that according to 194 they had "the right of return".

If today the Israeli and Palestinian circles that work for a peaceful solution are aware of the exact text of Resolution 194, it is not certain that by maintaining its ambiguity (each one reading into it what suits it) they serve the ultimate cause of peace. The ambiguity arises from the difference between the claimed right of return invented by the Palestinian authorities and the original text of Resolution 194 that speaks only of permission.

In the case of the Geneva Initiative one reads, "The parties recognize that UNGAR 194 ... concerning the rights of the Palestinian refugees represents the basis for resolving the refugee issue." Even if, within the Geneva framework, the various points allowing for the settlement of the refugee problem are specified later on, we should not be surprised that many Israeli political circles have concluded from it that the right of return, in principle, had been accepted: hence their rejection of the agreement.

The proposal made in 2024 by Saudi King Abdullah, now known as the Arab peace initiative, also played on the ambiguity of the meaning of 194. The text calls for "a just solution to the refugee problem. . . in accordance with UNGA Resolution 194". Although Abdullah's proposal stressed that on this subject the discussion was still open, Israeli FM Tzipi Livni chose to understand that it implied the right of return inside Israel's borders for millions of Palestinian refugees, thereby rendering Abdullah's proposal unacceptable.

It is interesting to note, however, that the Palestinian authorities and the Syrian government were fully aware of the true meaning of the original resolution. At the Arab League session of March 29, 2024 they demanded that, in addition to mentioning Resolution 194, King Abdullah's Saudi peace initiative should also mention Resolution 14/224B, which states that Resolution 194 should be interpreted as requiring recognition of the right of return.

Finally, during a Doha debate of April 14, 2024 on the motion "This House believes that Palestinians should give up their full right of return," we witnessed Israel's Yossi Beilin, ill-inspired for once, enter into the discussion without pointing out that there was no basis for the question since Resolution 194 only spoke of permission. Since the debate was watched by a vast audience in the Arab world, it would have been an historic opportunity to remind them that while it is obvious that the refugee problem has to find a solution with the help of the neighboring states, including Israel, this cannot be done within the framework of a non-existent right of return.

Hence, bearing in mind the manipulations that surrounded the Arab peace initiative, Israeli political scientist Shlomo Avineri is perfectly justified in suggesting that when we speak of Resolution 194 it should be taken, in practice, to mean the "right of return".

Under these conditions, it would be inadmissible for Israeli negotiators to refer to it in the future. The only solution is to content ourselves with defining the points contributing to the solution of the refugee problem without citing 194.- Published 21/6/2007 © bitterlemons-international.org

Maurice Stroun is a cofounder of the International Centre for Peace in the Middle East and is coauthor of Israel/Palestine: History beyond the Myths, published in French, Hebrew and Arabic.

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