2011 will mark the 63rd year of the Palestinian refugee crisis. Driven out of their homes during the course of the 1948 Arab-Israeli war, Palestinian refugees fled to neighboring Arab countries and territories where they expected to remain for only a short period until the end of military conflict and the restoration of calm that would facilitate their collective return. However, that “short period” has become an indefinite timetable as the newly established Israeli state defined itself as a Zionist one that necessitated a Jewish majority in order to maintain its Jewish character.
In an effort to maintain its demographic majority, established initially by displacement and dispossession, Israel refuses to allow Palestinian refugees who continue to languish in 58 refugee camps throughout the Arab world and in the global diaspora for more than six decades and who now constitute an approximate 6.5 million person refugee population. However, there are at least two problems with this for Israel:
First) Israel regards itself as a democracy meaning a nation of its citizens ostensibly irrespective of race or religion. By proclaiming to be a Jewish and Democratic state, Israel is offering two bundles of rights-one based on citizenship and another based on nationality. However, when put to the test-Israel i.e., its judiciary, its industrial sector, its housing apparatus, its interior ministry, its Ministry on urban planning, its land commissions, will prioritize its Jewish character over its democratic one. Therefore its democracy becomes a multi-tiered democracy in the same way that the U.S. proclaimed itself a democracy even as its Black population was enslaved, later as its Black citiczens were institutionally relegated to the back of the bus, different counters, and separate schools, and up until 1965 when Blacks were finally afforded the right to vote.
Secondly) Consider that naturally in the region, the Palestinian population within Israel will outnumber the Jewish population. In 1948, 100,000 of the 800,000 indigenous Arab-Palestinian population did not flee and those that remained have now grown to a 1.2 million person population constituting 20% of the Israeli population. According to a study done by Salman Abu-Sitta that population will outnumber the Israeli population by 2025. What does that mean for Israel, which wants to maintain a Jewish state first and foremost?
It means that it is trying to maintain its Jewish majority by any means necessary including discriminatory laws aimed at reducing the numbers of its existing Palestinian-Israeli citizens and preventing the growth of the Palestinian population by marriage, birth, or return. This has taken on several dimensions. Consider that within the Israeli legal system, there are at least 20 discriminatory laws—17 of which are discriminatory on their face in that they only relate to the rights of Jews in Israel or alternatively abridge the rights of Palestinian-Israelis. In the West Bank, the Gaza Strip, and East Jerusalem, the tactics are much less subtle and much more violent. In both instances, it is Apartheid. There is much to say about Israel’s Apartheid character and in fact, that will constitute the subject of a forthcoming post, but I would like to use this opportunity to discuss the peace process’s treatment of the Palestinian refugee crisis.
To this end, Israel`s apartheid character is significant in that Israel uses law and public policy to prohibit the return of Palestinian refugees, while facilitating the unfettered immigration of the global Jewry, because they constitute a demographic threat, or in less pleasant terms--a demographic time bomb. Despite Israel`s xenophobic fears that undermine its attempts to tout a democratic character, refugees have a right to return pursuant to International law.
Under international law, civilians fleeing a war are entitled to return to their homes. This right is embodied in UN Resolution 194; in Article 13(2) of the Universal Declaration of Human Rights; in Article 5 (d)(ii) of the International Convention on the Elimination of all forms of Racial Discrimination; of Article 12(4) of the International Covenant on Civil and Political Rights; as well as through established international relations practice as evidenced by the comprehensive return of refugees to Bosnia, East Timor, Kosovo, and Rwanda in the aftermath of military conflict.
The problem is not the lack of law nor the lack of precedent but namely the incompatibility of Israel`s national aspirations to maintain its Jewish character, by maintaining a majority of eighty percent Jews and of the stipulations of established law, which demand a return of refugees to their original homes. In fact Israelis consider all discussion of refugees as no more than a bargaining chip on the part of the Palestinians to coerce Israelis to accept a final status solution—as a threat.
It is a different story for the Palestinian negotiators who do not sincerely incorporate the rights and aspirations of refugees. Ever since Oslo and the shift of the center of Palestinian decision-making from outside of Palestine (i.e., Jordan, Lebanon, and Tunis) to within the Occupied Territories (Jericho and Gaza)--refugees no longer constitute a cornerstone of Palestinian demands. Instead, the shift signified at least two things:
First, a shift from a liberation movement to a state-building enterprise. The former equated self-determination with return, the latter equates self-determination with the development of state institutions, police forces, a central bank, paved roads, and a sewage system. The problem of course is the futility of such functions in a non-contiguous network of cities and villages each with a different governance regime as mandated by the notions of Areas A, B, and C. More important absent sovereignty and the right to determine trade, political alliances, diplomatic relations, control over resources, and the economy among other vital factors, renders statehood meaningless.
The second related shift is one of representation of the diaspora, namely refugee and exiles. In the first two decades of the PLO`s existence, it was comprised of a vast network of Palestinians globally and not just those living in the occupied territories. They were a part of the decision-making process and therefore structurally, notions of return were always central. Today Palestinian leadership represents no more than those Palestinians living in the West Bank, the Gaza Strip, and East Jerusalem whose interests are much more narrow in scope than those of a diasporic body. Their concerns are immediate and short-term, they seek freedom of want, of checkpoints, of the insecurity of military incursions, a right to education, a right to a livelihood, and unfettered freedom of movement. And while those Palestinians in exile may share some or all of those same concerns, the core right from which flow all other rights and privileges is the right of return, which is tantamount to self-determination. How then does this translate into the negotiations process?
How does Israel`s concern with demographic dominance and Palestinian leadership`s concern with maintaining their power and achieving statehood at all costs impact refugees who have absolutely no role in the peace process?
Here peace process refers to all bilateral and multilateral negotiations efforts, namely: Oslo, Camp David, Taba, Beirut Arab Summit, the Road Map, and Annapolis. There are five major issues relevant to negotiating refugees:
1. Legal framework.While UN Resolution 194 has long outlined the scope of applicable law on the matter, it has become a controversial point during the negotiations process because of UN Security Council Resolutions 242 and 338. Whereas, Resolution 194, passed on December 11, 1948 and reaffirmed every year since then, mandates that “…the [Palestinian] 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 and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible,” UN Security Council Resolutions 242 and 338, drafted in the aftermath of the 1967 6-Day War subjects the solution of the Palestinian refugee crisis to political expedience. Resolution 242 calls for “achieving a just settlement to the refugees problem” thereby treating return as a collective right, rather than both a collective and individual right. Additionally, the Security Council Resolution mandates that the matter be settled by political means, as suggested by the language of a “just settlement,” removing the role and prerogative of refugees all together and placing this in the hands of Israeli and Palestinian negotiators only. Finally, this continues to be a controversial legal matter not just as a matter of interpretation but also as a matter of applicable law since a General Assembly Resolution represents the will of States whereas a Security Council resolution is binding international law.
2. Moral responsibility. Palestinians have suggested that they are willing to compromise on the scope of the right of return so long as Israel accepts moral responsibility for the creation of a refugee crisis. This is a red line for Israel, which is unwilling to accept return either as a right or a principle. Moreover, Israel has attempted to thwart calls for its acceptance of moral responsibility by introducing new dimensions to the peace process including its demand at the Camp David Summit in 2000 that Arab countries recognize, and accept responsibility for, the creation of a Jewish refugee population from Arab countries in the aftermath of Israel’s establishment. Most recently in December 2010, Israeli Deputy Foreign Minister, Danny Ayalon brought up this issue again stating that “The demands from the two sides are asymmetrical, the Palestinians talk of rights and justice [for Palestinian refugees], yet the rights and justice of the Jewish refugees from Arab lands have been ignored and suppressed for too long. " Ayalon’s remarks seem to be a response to Palestinian negotiator Saeb Erekat’s commentary on the matter published in The Guardian only a few days earlier demonstrating its political utility among state officials. Avi Dichter, MK member and alleged war criminal, responded with much less subtlety to Erekat’s article by saying, “The `right of return` will not be included in the peace process... Talk about the `right of return` is meaningless. Everyone understands that there will not be a solution that includes `return,` no matter who says what.”
3. Return to Israel. Palestinian and Israeli negotiators have at least agreed on the scope of Palestinian return to their original homes in what is Israel today. The accepted framework is the return of 15,000-125,000 refugees, if extended to 15 years as one bridging proposal suggested, at most. Alternatively, Israel has proposed that the right of return be offered to 1948 refugees only -as opposed to the descendants of refugee—who, well beyond their healthy reproductive age, pose no demographic threat to the Jewish character of Israel.
4. Return to the Occupied Palestinian Territories. Both parties are in agreement that return to the West Bank and Gaza, but not necessarily East Jerusalem, will be unhindered and subject to the ultimate discretion of the Palestinian Authority.
5. Compensation. Both parties agree that Palestinian refugees must be compensated for their material losses, as well as their emotional costs borne by decades of dispossession and exile. The controversy is whether Israel will bear this responsibility as mandated by Resolution 194 and has been demanded by Palestinian negotiators, or whether compensation will be provided by an international fund as Israel has insisted. Israel’s insistence underpins its disavowal of any moral responsibility for the creation of the refugee problem.
In the final analysis Palestinians and Israelis were largely in agreement as the Palestinian negotiators never insisted on full implementation of 194, but instead were willing to limit Palestinian presence to Israel so long as Israel recognized 194 and accepted primary responsibility for the refugee problem. While Israel rejected this possibility in all forms, both sides agreed that there were be unhindered return to the OPTs; that a limited number of Palestinians would return to Israel through a framework of family reunification; and compensation for all refugees either by Israel or an international fund.
Nothing has become of these broad based outlines since the peace process has completely collapsed, notwithstanding the Obama Adminstration’s most recent efforts to revive them. The problem is one that is best summarized by former Prime Minister Yitzhak Rabin who was murdered by an extremist settler "If you are weak, you cannot afford to compromise and if you are strong, there is no need for compromise." Sadly the weak party has sought to compromise in many ways without any particular gains to them. This is another issues of the detrimental impact of negotiations in general which I will not get into. Suffice it to say that this process, wherein political leaders have failed to achieve a solution has compelled the Palestinian diaspora and civil society to produce its own alternatives.
Among the most prominent of those efforts is the 2005 civil society call (170 civil society organizations) which calls upon international communities to demonstrate their solidarity by imposing boycott, divestment, & sanctions upon Israel until Israel meets its obligation to recognize the Palestinian people‘s inalienable right to self-determination and fully complies with the precepts of international law by:
1. Ending its occupation and colonization of all Arab lands and dismantling the Wall; 2. Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality; and 3. Respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN resolution 194.
There is reason to be optimistic that Palestinian officials have taken heed of civil society’s calls. In a Communique marking its 46th Anniversary, Fatah vowed to continue fighting for the right of return of refugees to their original homes. This underscores Erekat’s recent article where he affirms the political establishment’s commitment to the right of return. In light of its legacy in the negotiations process, there is no reason to believe that these gestures amount to more than lip service. Either Palestinian leadership is indeed using this as a bargaining chip as the Israelis intransigently oppose the establishment of a Palestinian state or believing that the U.S.-brokered negotiations have run their course, the political establishment is clamoring to reclaim the support and loyalty of its disenchanted Palestinian base. The test of its commitment will be whether the political establishment reaches out to its diaspora and exiled national body in an effort to empower, rather than co-opt them, as the Fatah-dominated leadership has attempted to do in the recent past.