Palestinians Do have a Right to Return

by Yu’ad Habibi

(Following article is in response to a paper "Do Palestinian Refugees Have a Right to Return to Israel?" by Ruth Lapidoth, Published on the Web-site of the Israeli Ministry of Foreign Affairs in January 2001.)

A paper entitled “Do Palestinian Refugees Have a Right to Return to Israel?” Published on the Web-site of the Israeli Ministry of Foreign Affairs in January 2001, seems to have been adopted as an important foreign policy document, (available in at least three languages) especially since its author, Ruth Lapidoth, is referred to as a prominent Professor of International Law at the Hebrew University of Jerusalem.

The title of Professor Lapidoth’s distinguished paper sounds at first hand like a naïve question, to be tackled by a professional and academic personality, corroborating any eventual conclusions by scientific evidence, thus granting it a legitimacy it would not have had, if written by some layman.

Ruth Lapidoth starts, however, by stating in her introduction what sounds more like a biased opinion than a sophisticated academic approach characterizing an impartial, scientific and well researched study: “In the media and in interviews with Palestinian leaders, we often hear and read statements asserting that the Palestinian refugees have a right to return to Israel. As will be shown, these statements are based on an erroneous reading of the relevant texts”.

She then undertakes to expose her own scientific reading of the texts. She divides her paper into three parts: 1. General International Law. 2. Relevant UN Resolutions 3. Agreements between Israel and Her Neighbors.

In the first part of her discourse entitled ‘General international Law’, she bases her analysis on the 1966 International Covenant on Civil and Political Rights, which says: "No one shall be arbitrarily deprived of the right to enter his own country." 

She then analyses this statement by questioning “who has the right of return, or: what kind of relationship must exist between the State and the person who wishes to return?”

 Ruth Lapidoth, while seemingly naïve in her investigation of the meaning of the above quotation, has already switched the term ‘country’ for the word ‘state’, which allows her to draw a strange conclusion: “A comparison of the various texts and a look at the discussions which took place before the adoption of these texts lead to the conclusion that the right of return is probably reserved for nationals of the State”!!!…

She goes further to say “Even the right of nationals is not an absolute one, but it may be limited on condition that the reasons for the denial or limitation are not arbitrary” and that moreover the right to enter one's country in the 1966 International Covenant "is intended to apply to individuals asserting an individual right. There was no intention here to address the claims of masses of people who have been displaced as a by-product of war or by political transfers of territory or population, such as the relocation of ethnic Germans from Eastern Europe during and after the Second World War, the flight of the Palestinians from what became Israel, or the movement of Jews from the Arab countries."

An apparent confusion appears in the first part of her conclusion: Does Professor Lapidoth implies here that ‘an individual right’ loses its legitimacy if too many individuals, ‘masses of people’ claim it? Which might be therefore interpreted to mean that ‘individual rights’ should only be attributed to a chosen few? 

As for the second part of the above paragraph, Lapidoth resorts to the use of terms with different connotations in her attempted comparison between the cases of ‘different masses of people who have been displaced as a by- product of war or by political transfers of territory or population’: She uses the term ‘relocation’ for ethnic Germans, the term ‘flight’ in the case of Palestinians, and the term ‘movement’ for Jews. The use of these different terms, do not only testify to a biased approach, but also contradict the logical foundation of her choice to compare between these ‘different’ cases.

The most daring and crucial part of her paper is the second one where she undertakes to dissect Relevant United Nations Resolutions. She starts by referring to GA resolution 194 of 11 December 1948 and quotes paragraph 11 of that resolution: "The General Assembly ... resolves that the 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." 

She then gives her own interpretation of that paragraph:  “the paragraph does not recognize any "right", but recommends that the refugees "should" be "permitted" to return.”

Ruth Lapidoth has again switched the term ‘recommends’ for the term ‘resolves’, which allows her to deduce further that: “The use of the term "should" with regard to the permission to return underlines that this is only a recommendation” She carefully adds that the resolution points out that  “permission is subject to two conditions - that the refugee wishes to return, and that he wishes to live at peace with his neighbors.”

She makes use of the second condition, to prove, through a very severe twist of historical sequence, moving abruptly from the year 1948 to the year 2000, that: “The violence that erupted in September 2000 forecloses any hope for a peaceful co-existence between Israelis and masses of returning refugees"..

Does Ruth Lapidoth mean that she was willing to consider the Right of Return of Palestinian Refugees as a ‘legitimate right’ prior to the eruption of ‘violence’ in September 2000? Or is she just indulging in one more exercise of historical distortion in order to avert international legitimacy and the principles of the UN Charter, a daily Israeli exercise?

 She then happily reminds us: “One should also remember that under the UN Charter the General Assembly is not authorized to adopt binding resolutions, except in budgetary matters and with regard to its own internal rules and regulations.” Luckily, for Ruth Lapidoth, only the Security Council should have the capacity to adopt  ‘binding resolutions’.

A distinction is then made in her remarks between the possible legality of  ‘compensation’ and of ‘the permission to return’: “Finally, the reference to principles of international law or equity applies only to compensation and does not seem to refer to the permission to return.” She thus gives the impression that she might be willing to make concessions on the question of “compensation”.

(One dare not imagine, however, how highly manipulated facts and figures might be, and how far truth might be mixed with fiction, not to mention pecuniary interests, if the huge task of calculating the amount of “compensations” due to Palestinian refugees was allotted to Professor Lapidoth.) 

After brushing aside General Assembly Resolutions as luckily ‘non binding’, Ruth Lapidoth finds herself compelled to move on to an analysis of Security Council Resolutions.

She starts by quoting parts of Security Council Resolution 237 adopted on the 4th of June 1967, relating to persons displaced as a result of the Six Day War in 1967, and which called upon the government of Israel “to facilitate the return of those inhabitants [of the areas where military operations have taken place] who have fled the areas since the outbreak of hostilities". 

But again, like a compulsive serial killer of all UN resolutions, whether adopted by the General Assembly or by the Security Council, and without any impunity, Ruth Lapidoth subjects SC resolution 237 to the same treatment inflicted upon GA Resolution 194: “The Resolution does not speak of a "right" of return and, like most Security Council resolutions, it is in the nature of a recommendation.”

She adds as a note of consolation in her tackling of displaced persons in 1967: “Nevertheless, Israel has agreed to their return in various agreements, to be studied later.”

By an undefined “ later”, she probably means promises made by Israel as part of the ‘Oslo’ accords, that were never kept, since none of the displaced persons in 1967, have been allowed to return years after the promises were made.

Reaching the climax of her interpretation, she finds herself in direct confrontation, with Security Council Resolution 242 adopted on 22nd of November 1967, which she refers to as being of “great importance in the Arab-Israel peace process”

However, in her rigorous style, she jumps immediately to section (b) of its second paragraph, where the Council "Affirms further the necessity ... (b) for achieving a just settlement of the refugee problem." 

Luckily, for Professor Lapidoth, the title of her paper does not compel her to deal with the essence of resolution 242, which allows her, to ignore the essential terminology related to International Law, contained in this resolution, such as its emphasis on “the inadmissibility of the acquisition of territory by war”, as well as its affirmation in its first paragraph “that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles(i) Withdrawal of Israel armed forces from territories occupied in the recent conflict, (ii) Termination of all claims or states of belligerency …..”

Referring therefore, only to the question of the “refugee problem” in this resolution, she still manages to brush off the Palestinian Refugee problem by claiming that this clause is ambiguous since it does not specifically refer ‘only’ to Arab refugees: “The Council did not propose a specific solution, nor did it limit the provision to Arab refugees, probably because the right to compensation of Jewish refugees from Arab lands also deserves a "just settlement". There is no basis for the Arab claim that Resolution 242 incorporates the solution recommended by General Assembly Resolution 194 of 1948 analyzed above.”

Instead of interpreting the ‘ambiguity’ in the clause, to mean that a ‘just settlement’ should be reached for all refugees in the area, she simply makes use of this ‘ambiguity’ to avoid tackling the whole concept of ‘just’ settlement.

 Lapidoth, moreover, forgets all about General Assembly resolution 3236 of the 22nd of November 1976, which calls for “the exercise by Palestinians of their inalienable right to return to their homes and property from which they have been displaced and uprooted”.

Finally in the third part of her paper, she dissects all the peace agreements reached by Israel with her ‘neighbors’ and concludes, “None of the agreements between Israel and Egypt, the Palestinians and Jordan grants the refugees a right of return into Israel”.

If UN resolutions were so easily emptied of their content, despite their claim to be within the realm of international conventions, breaking down all partial agreements between Israel and her neighbors, which are ‘not binding’ according to International Law, turned out to be a very simple exercise for Professor Lapidoth.. 

After a seemingly ‘systematic’ reading of the texts, Lapidoth hastily concludes on the fifth page that: “This short survey has shown that neither under the international conventions, nor under the major UN resolutions, nor under the relevant agreements between the parties, do the Palestinian refugees have a right to return to Israel”, since “None of the agreements between Israel and Egypt, the Palestinians and Jordan grants the refugees a right of return into Israel”. 

In spite of her genuine efforts to disguise her paper under the garb of an objective academic exercise aiming at a study of the ‘texts’ on the basis ‘of international law’, her version cannot help revealing a deeply ingrained ‘phobia’ and the use of an arithmetical rather than a legal approach to the refugee problem: “According to Palestinian sources, there are about 3.5 million Palestinian refugees nowadays registered with UNRWA.13 If Israel were to allow all of them to return to her territory, this would be an act of suicide on her part, and no state can be expected to destroy itself.”

Whether the psychological dilemma emanates from an excessive fear of extinction and suicide, or simply from a selfish and ruthless approach to the sufferings of refugees whose homes are occupied, is a question to be debated, but Ruth Lapidoth’s fear is clearly based more on a grossly quantitative approach, than on one which takes human rights and international law as a basis for deduction. 

Fearing the inflow of such a great number of refugees, Professor Lapidoth finds that the simplest solution is to interpret all UN resolutions in a lopsided manner, to be selective in dealing with international laws, and to negate the existence of the concept of ‘inalienable rights’ and therefore step over the ‘ inalienable right’ of the Palestinian people to return to ‘their homes and property from which they have been displaced and uprooted’, instead of trying to resolve the problem in a more rational and academic manner.

Realizing however, the shortcomings of her conclusions, Ruth Lapidoth then tries to kindly tone them down by saying  “Great efforts should be made by all those involved, and with the help of friendly outside powers, to find a reasonable, viable and fair solution to the refugee problem.”

Lapidoth, therefore finally confesses that there is a ‘problem’, but what is implied consciously or unconsciously in her paper is that the Israeli ‘state’, had nothing to do with it in the past, nor does it want to have anything to do with it in the future (thus shrugging off any responsibility in the creation or the solution of the refugee problem). Still, Ruth Lapidoth pretends to hope that some magnanimous  “friendly outside powers” should help find a  “reasonable, viable and fair solution” to the problem.

The solution should obviously be ‘viable’, in her logic, for the  “State of Israel”, which otherwise will be destroyed, and it should be “reasonable” for the refugees, since they will probably be coerced by “friendly outside powers” into accepting it. “Fair” is the word that she adds to give a facelift to her ruthless version and to make it sound ‘nice’ after all.  

Professor Lapidoth does not point to any connection between the roots of the refugee problem and the establishment of her ‘state’. If Ruth Lapidoth wants to obliterate the historical roots of the refugee problem, perhaps she should at least apply an international legal approach to study the roots of Jewish immigration to Palestine, that is start by analyzing the legality of the Israeli Law of Return, which is based on archaic religious precepts, and receives immigrants despite the fact that most of them are citizens of ‘states’ other than the one they established and acquired by force. As for the ‘friendly outside powers’ whom she hopes will by a magic wand rid Israel of its  ‘phobia’, it is difficult to guess who they might be.   

Ruth Lapidoth’s paper expresses a desperate fear of the inflow of a huge population of three million and a half poor refugees, so she distorts laws, resolutions, basics of international law and scars her own profession by an erroneous logarithm based on numbers and not on law. Her words, sadly, seem to ring bells of a pure anti-Semitic approach to the problem of refugees. Anti-Semitism as we know after all is born in the West, hates Semites, especially if they are poor, come from the slums, and invades the big cities. Wealthy Affluent Jews who hold dual citizenship’s are more than welcome in Lapidoth’s ‘state’, even if their number exceeds millions. 

The actual minister of Foreign Affairs of Israel, Shimon Peres, has himself admitted when he was prime minister in a speech before the Knesset on the 16th of January 1985 that: “For the raison d’être of Israel is the ingathering of all the tribes of Israel in the Promised Land. The State of Israel was established by some Jews to solve the problem of all Jews, both religious and secular. And for this reason, it was also decided that it is a fundamental right of every Jew, however religious however Zionist to immigrate to Israel and settle here” adding that “For this reason and this reason alone was the Law of Return passed. A law which, more than being religious in nature, is fundamentally Zionist. This law has no real effect on religious affairs or personal status. This is a law which deals with a transition period, with the right of return, with the issue of immigration from the Diaspora to Israel”.

Given Lapidoth’s capacity to mix figures and facts, fiction and truth, her paper appears more like common propaganda, rather than a serious document. However, for Ruth Lapidoth’s peace of mind and to alleviate her excessive fears, she should perhaps actually try to face the sour truth: restart her reading of history and International Law, and try to resolve her dilemma by either choosing to drop her erroneous interpretation and distortion of  ‘texts’ and ‘facts’, or simply by dropping her claim to be a serious Professor of International Law.

(Yu’ad Habibi is a Palestinian researcher.)

by courtesy & © 2001 AMIN & Yu’ad Habibi