There’s no right of return

By R. GAVISON, Y. ZILBERSHATS, N. GORE, JPOST

International law and UN resolutions regarding the Palestinian question do not confer on refugees and their descendants a right to return within the borders of Israel.

In August 2010, the position paper, “The Return of Palestinian Refugees to the State of Israel,” was published by the Metzilah Center for Zionist, Jewish, Liberal and Humanist Thought and presented to Prime Minister Binyamin Netanyahu, and to other decision-makers and academic experts. The paper examined all sources in international law dealing with questions of refugee return. It also reviewed the methods recognized throughout the world for dealing with refugee problems.

International law does not obligate/recognize the legal right of Palestinian refugees to settle in Israeli territory. Such large-scale return was not standard at the time the problem emerged, and it is not used effectively today. While the issue of the refugees needs to be dealt with seriously, Israel should be careful not to recognize a right of return for refugees under international law, since this may be the basis for new legal obligations.

Arrangements and declarations must not include the recognition of a right of return, which may be later invoked as a right of individual refugees and their descendants, which may not be waived by their leaders.

While there should be an end to the suffering of the Palestinian refugees, large-scale return to Israel of a population so different from the Jewish population culturally and socially, and harboring memories of the “disaster” and claims that justice requires a full return, is not the right solution. It might not be best for the refugees, and it certainly is not the way to achieve regional stability.

Discussing this question within the human-rights discourse may well limit the ability to reach a viable agreement. Close examination of sources of international law supports the conclusion that it does not confer upon them a right to return to Israel, and that Israel is under no obligation to let them return.

THE PRIMARY resolution on which the Palestinians base their claim to a ‘right of return’ is General Assembly Resolution 194 (III) from 1948. A close examination of that resolution, as well as later ones, reveals that these resolutions do not grant Palestinian refugees the right of return to Israeli territory. This was true at the time the resolutions were adopted, and is certainly true now, more than 60 years later, when the number of refugees, together with their descendants, has increased approximately tenfold.

Another important international document on human rights on which the Palestinians rely, is the freedom-of-movement clause in the International Covenant on Civil and Political Rights from 1966. This document did not exist when the Palestinian refugee problem came into being, but in any event, a careful examination of it indicates that it also does not obligate Israel to allow the entrance of Palestinian refugees who were never Israeli citizens or residents.

International citizenship law, refugee law (as defined in the various refugee covenants), humanitarian law and international criminal law do not place any obligation on Israel to admit Palestinian refugees, or grant them citizenship.

In the absence of such an obligation, Israel may well refuse to admit a large number of refugees and their descendants, who may weaken the Jewish majority in Israel and its stable existence as a Jewish and democratic state (next to a Palestinian one). The same reasons might support a reluctance by Israel to open up massive immigration of Palestinians through family reunification. Implementing the “right” of return may well undermine any solution to the conflict that would permit the two peoples to live in two separate states in independence, peace and dignity. Experience indicates that it is extremely difficult to reintegrate populations divided by violent and extended conflict.

The same conclusion is reached by historic and comparative analysis. In reviewing a series of historic ethnic conflicts, we find that after an ethnic separation has actually taken place, an arrangement preserving the separation is frequently preferable to the reintegration of populations divided by violence. Thus, for instance, the Dayton Agreement, signed at the end of the Bosnian War – a war that led to a flood of refugees – stated that they had a right to return to their homeland. In practice, however, the actual return is hindered to this day by numerous obstacles, including ethnic animosity and severe incidents of violence.

International recognition that political resolution or management of conflicts is more effective than recognition of refugee return rights has been reinforced in a new ruling by the European Court of Human Rights. The court rejected claims of Greek refugees exiled from northern Cyprus in 1974 that they should be allowed to settle in their homes as a matter of human rights.

The fact that Palestinian refugees are treated the way they are stems solely from political considerations. There is complete legal justification for the Israeli position on this subject.

Ruth Gavison is an Israel Prize winner, a law professor and president of the Metzilah Center.

Yaffa Zilbershats is an authority on international and constitutional law and deputy president of Bar-Ilan University.

Nimra Goren-Amitai is a research scholar at Bar- ilan University.

July 5, 2011 | 14 Comments »

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14 Comments / 14 Comments

  1. The US State Dept. and others must have been instrumental in perpetuating this problem (US contributes at least 25% of the funding to UNRWA for the exclusive benefit of the Arabs of “Palestine”). Without the US $ support the problem might have been solved long time ago, the same way as for any other refugee population.

    Question: WHY

    The answers are obvious.

  2. NormanF says:
    July 6, 2011 at 12:13 am

    Jews who work for Islam should be shipped to Syria with a one-way ticket!

    Throw them over the wall into Gaza and save on shipping costs!

  3. “International law and UN resolutions regarding the Palestinian question do not confer on refugees and their descendants a right to return within the borders of Israel.”

    “Israel should not cite international law or UN resolutions, because this suggests the UN has legitimate authority over Israel.”

    Very few UN resolutions are legally binding.

    NONE of the General Assembly ones [like 181, 194, etc] are binding.

    And even among Security Council resolutions, the only self-enforcing ones are those issued under explicit invocation of UN Charter, Chapter VII [“Threats to the Peace, Breaches of the Peace, Acts of Aggression” — Art. 39-51], as was the case with those attendant to the 1991 Gulf War. Accordingly, Sec. Council Resolution 242 [after the Six-Day War], for example, is NOT obligatory.

    However, Israel does have to cite (among other things) the genuinely applicable international treaties: They are the only basis on which the Jewish State can illustrate the world community’s unlawfulness, infidelity and illegitimacy whenever it seeks to deny her her patrimony, as recognized by the Principal Powers at San Remo [1920] & by the League of Nations in the unanimously ratified, Mandate Charter [1922].

    These are trump cards, and it’s the height of stupidity for G.O.I. to keep kicking them to the curb.

  4. Shy Guy says:
    July 5, 2011 at 6:54 pm

    ArnoldHarris says:
    July 5, 2011 at 4:29 pm

    Here we go again, on and on endlessly about international law and UNO resolutions.

    Zogt der Rebbe

    Judges 11 (with text – press on more info. of video on the side)

    23 “Now since the LORD, the God of Israel, has driven the Amorites out before his people Israel, what right have you to take it over? 24 Will you not take what your god Chemosh gives you? Likewise, whatever the LORD our God has given us, we will possess. 25 Are you better than Balak son of Zippor, king of Moab? Did he ever quarrel with Israel or fight with them? 26 For three hundred years Israel occupied Heshbon, Aroer, the surrounding settlements and all the towns along the Arnon. Why didn’t you retake them during that time? 27 I have not wronged you, but you are doing me wrong by waging war against me. Let the LORD, the Judge, [c] decide the dispute this day between the Israelites and the Ammonites.

    A nation that dwells alone

  5. A study of history awards Jerusalem and environs to the Jews not Arabs, period, you can call me Jane.
    Arabs have millions of square miles of terrritory to resettle in, if only the horrible ideology of ISLAM didn’t command them to never give up one square inch of land conquered in Allah’s name. It is ISLAM alone that stands in the way of peace in the Middle East, and the rest is b.s.

    Scope Jerusalem’s history back 3,000 years free with the Historyscope and prepare your mind for coming events:

    http://tinyurl.com/jerusalemhistory

  6. Buried in Gavison’s analysis of why the Palestinians have no right of return at International law are her following two points:

    1.

    “While there should be an end to the suffering of the Palestinian refugees, large-scale return to Israel ……….is not the right solution…..and it certainly is not the way to achieve regional stability.”

    Gavison has not finished her thought.

    Saying Palestinian suffering should end is one thing, but it begs the question, who is responsible for that suffering? Surely the party responsible for Palestinian suffering has the obligation to end it.

    It is beyond dispute that the Arabs since 1948 in an astute political/propaganda move, to augment their oil leverage on the West, chose to play on the sensitivities and sensibilities of the West, by keeping the Arabs that came to be known as Palestinians in a state of suffering in refugee camps in Egypt, Lebanon, Syria and Jordan. All this they blamed on Israel.

    We know that the Palestinians while being so played and used by their Arab brethren, have taken up the same propaganda game to blame not their Arab brethren for their suffering, but Israel.

    We know that the majority, if not vast majority of Palestinians revel in their Jew hatred and dreams of vengeance with Israel’s ultimate destruction, but who can blame them when their leadership has indocrinated them in Jew hatred in every level of society and through the generations since 1948.

    Arabs have caused Palestinian suffering and the Palestinians have contributed to their own suffering in order to put on a show for sensitive Western eyes and hearts.

    If Gavison were to have finished her thought, what would she have suggested be done to end Palestinian suffering, who should be responsible to end it and how can that be done, either peacefully or by force.

    2.

    International citizenship law, refugee law (as defined in the various refugee covenants), humanitarian law and international criminal law do not place any obligation on Israel to admit Palestinian refugees, or grant them citizenship.

    In the absence of such an obligation, Israel may well refuse to admit a large number of refugees and their descendants, who may weaken the Jewish majority in Israel and its stable existence as a Jewish and democratic state (next to a Palestinian one).

    Gavison’s point is confusing. If she is convinced Israel has no obligation to admit even one so called Palestinian refugee, why is she implying that Israel would be prepared to admit a number of Palestinian refugees and their descendants, so long as that number was not large?

    Does she know something about what Israel is prepared to do that the general public does not know?

    Is Gavison really offering her own view that in spite of Israel not having any obligation at any level to admit even one Palestinian refugee, that she should do so?

    It certainly would be helpful if Gavison clarified her views in light of the foregoing.

  7. Shy Guy says:
    July 5, 2011 at 2:46 pm

    Related

    Stupid Jews.

    Enactments of “The King’s Law

    According to the Torah there must be a recognized court whereby one can “arise and ascend” to a just court accessible to the entire community. Only then can we achieve democracy and the democratic principles of “judging according to the majority of the court,” and “not being swayed by the majority” (if a judge has evidence contrary to the verdict). Once these principles are established, then sovereignty will gain victory over heresy. Until then, we will live under the rule of an imposter mimicking the Jewish state in the land of Israel.

    Rav Yiskhak Ginsburg cannot lapse into the luxury of caring only for his community, only for those who accept his authority. So too with Rav Dov Lior and all Rabbis in Israel. They cannot afford the luxury of a good night’s sleep until they have succeed in bringing about a transformation, a perestroika, of the court system, criminal and civil law, and the Israeli Government. Only then will Jerusalem truly be a city upon a hill.

    “Through justice the king will establish the land.” At present, there is no land because there is no justice, and there is no sovereignty to lead Israel, only the rabble’s rule of “democratatorship.” With time against us, we have no recourse but to act now. It is time to establish justice in the land.

    “Zion will be redeemed through justice, and through the righteousness of those who return to her (Isaiah 1).”

  8. Here we go again, on and on endlessly about international law and UNO resolutions.

    (And by the way. Stop referring it as the “UN”. It is merely an organization, not a government, and it has no enforcement powers other than those enforced by fools such as the successive governments of the United States since 1945. It’s proper name, at the time it was founded in San Francisco that year, was the “United Nations Organization”. The UN itself determined to drop the “organization” part of their name. But that still has not changed it from its real status, that of the most expensive international debating society in all human history. Sort of like a Holy Roman Empire on steroids.)

    As for Arabs, including those living in UNWRA refugee camps funded by the fools I described in the previous paragraph, the only right they ever will have to enter the State of Israel only if and when they conquer the State of Israel. The territorial imperative, and invasion and succession of species, cultures, states, clans, families and individuals, are all part of the immutable, relentless and implacable laws of nature. Lose your homeland, and you only get it back by force of arms, unless the successors are dumb enough to let you re-invade, such as the Mexicans now are doing to the stupid Americans who have allowed themselves to be ruled by non-nationalist liberal governments for so many years. Soon California will be taken over by its Mexican population. I hope the Jewish nation will not prove as permanently stupid as so many Americans have proven themselves.

    Remember, and never forget the real rules: The land belongs to you only for as long as you can enforce your control of it.

    Arnold Harris
    Mount Horeb WI