INTERNATIONAL RESPONSIBILITY FOR THE RIGHTS OF THE PALESTINIAN REFUGEES: GEOPOLITICS OVER INTERNATIONAL LAW

Naseer Aruri[*]

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International responsibility for the rights of the Palestinian refugees has proven to be no match to the tenacity of Zionism as an ideology based on ethnic cleansing and land conquest, on the one hand, and to the United States determination to defy the international will and the global consensus on behalf of this colonial settler movement, on the other.  This was the major reason behind the failure of all peace initiatives and international labors made for over five decades.  The Zionist strategy has been based on the need to buy time in order to expand Israel’s territorial boundaries and to avoid any return of the Palestinian refugees who were ethnically cleansed from Palestine.

  In a speech to the Israeli Knesset on 15 June 1948, Israeli Foreign Minister, Moshe Sharett, rejected repatriation of the Palestinian refugees outright on the assumption that “a wave of returning refugees might explode the state from inside…”[2]    Sharett ruled out any form of repatriation unequivocally: “They will not return.  This is our policy, they shall not return.”[3] Fifty seven years later, this policy stands firm, with even more resolve.

Geo-Politics over International Law:

  The question of the Palestinian refugees has been dealt with invariably under what came to be known during the past thirty seven years as the Middle East Peace process, largely under the auspices of the United States.  A peace process can be driven either by the factor of geo-politics or the forces of international law. If international law, in this case represented by countless United Nations resolutions and other instruments, is allowed to become relevant to the peace process, it could neutralize one of the major stumbling blocs (the imbalance of power) which have retarded the pursuit of a political settlement in Israel/Palestine. Not only is there no military solution to the Arab-Israeli conflict, but a political solution, which is rather remote at present, will not be lasting if it emanated from a calculus of pure geo-politics.

  The present impasse in the Palestine/Israel question is due in large part to the fact that the key players among the global and regional powers have favored geo-politics over international law. Since the inception of this problem in 1948 when Israel was established on 78 percent of what used to be Palestine, the question of refugee rights, among other components of the Palestine question (borders, sovereignty, water, Jewish settlements, and mutual recognition) continued to bedevil the international community and particularly the permanent members of the United Nations Security Council. A quick review of United States policy towards refuge rights since the establishment of Israel will shed some light on how the international will has been thwarted, rendering provisions of humanitarian international law, international instruments and U,N, resolutions inoperable.

  This paper will trace the developments which led to the present situation, where the fulfillment of the right of return seems more remote than ever, and where civil society assumes a more active role in the struggle for refugee rights.

A Synopsis of U.S. Policy and the Refugee Question

U.S Palestine policy in the 1940s can be described as inconsistent, if not altogether incoherent, vacillating between acknowledging self-determination for the Palestinians and, alternatively, justifying its denial by colonial-settler Jews and a Palestinian Jewish minority. At the same time, the United States took an active part in drafting General Assembly Resolution 194 of December 11, 1948.

Israel’s response was predictably negative. Despite that Israel’s admission into the UN membership was contingent on its implementation of resolution 194, Israel simply created its own condition: a comprehensive settlement in the region must precede any discussion of the refugee question. The United States accommodated that position. There were disagreements along the road, and at certain times it seemed as if the U.S. was threatening Israel with a major reassessment of its policy, but at the end of the day Israel was able to get away with making its own rules.

The defeat of Arab armies in only six days elevated the role of Palestinian resistance to new heights, and shifted the focus away from the refugee issue, now deemed a charitable, humanitarian matter. After the 1967 War, any proposals emanating from Washington, D.C., would address the refugee question in a mere ritualistic manner. The impact of that approach was to relegate the whole Palestine issue to the sidelines, while trying to find an acceptable Arab-Israeli formula based on land for peace. Consequently, the Palestinian right of return was subordinated to resolving issues that divided states in order to minimize the chances of a wider conflict with global ramifications.

  A new chapter in the marginalization of the Palestinian’s right of return came under President Jimmy Carter. Although he inaugurated a Middle East policy with a specific reference to the Palestinian people who “suffered so much and who were in need of a home[4]” his Camp David peace plan redefined the refugees’ right of return as a “selective privilege of readmission.[5]” Carter’s proposed “self-governing authority,” together with Egypt, Israel, and Jordan, was empowered to decide on the modalities for admission of persons displaced from the West Bank and Gaza in 1967.[6] As for the 1948 refugees, the Camp David plan merely called for a “just solution,” with no mention of what that might entail.[7]

Ronald Reagan considered Palestine as a problem of mere refugees. He also considered the PLO as a terrorist organization, enrolled in the service of the “evil empire.”[8]

Clinton continued Bush’s policy of maligned neglect of the refugee issue, but he went further than any other previous president in embracing Israel’s conditions overall on the question of Palestine. Not a single word was heard from Clinton after Israeli Prime Minister Benjamin Netanyahu made his outrageous rejection of a peaceful settlement in a statement released on 17 June 1996, less than one month since he assumed power. The statement said no to withdrawal from the Occupied Territories, no to a Palestinian State, no to an official Palestinian presence in Jerusalem, and no to the refugees’ right of return “to any part of the Land of Israel [sic] west of the Jordan River”. [9]Netanyahu’s successor, Ehud Barak had almost duplicated the formers statement on the day of his departure to the Camp David Summit on 17 July 2000.[10]

When Clinton presided at the Oslo signing on September 13, 1993, it became clear the refugee issue was in fact relegated to a “final status” issue, not to be considered until after five years of a “transition” period.[11] By the summit meeting at Camp David in July 2000, the most that refugees could realistically hope for was limited and regulated repatriation to the Palestinian entity, but not to their homes and certainly not to property in present-day Israel.[12] The latter, if available at all, would have only been open to token numbers and strictly in accord with what Israel would be willing to designate as “family reunification.”[13] Barak’s “generosity” on the refugee issue at Camp David 2000 extended to allowing 4,000 refugees to enter what is now Israel each year within the framework of what he called family reunions, not the “right of return:”[14] “We cannot allow even one refugee back on the basis of the ‘right of return’… and we cannot accept historical responsibility for the creation of the problem.”[15]

Not only were the refugees a principal casualty of the unprecedented policies of George W. Bush, but the entire Palestine question has experienced another Balfour Declaration. What was really novel about the Bush Administration was the extent to which the so-called peace process became devoid of any meaning, as made explicit by Dov Weisglass, Sharon’s senior adviser and one of the initiators of his disengagement plan of 2004. According to Weisglass, “The significance of the disengagement plan is the freezing of the peace process.  And when you freeze that process, you prevent the establishment of a Palestinian state, and you prevent a discussion on the refugees, the borders and Jerusalem. Effectively, this whole package called the Palestinian state, with all that it entails, has been removed indefinitely from our agenda”. [16]

In his speech at the annual 2004 Herzliya Conference, Sharon put it unequivocal -lay thus: “The understandings between the U.S. President and me protect Israel’s most essential interests: first and foremost, not demanding a return to the ’67 borders; allowing Israel to permanently keep large settlement blocs which have high Israeli populations; and the total refusal of allowing Palestinian refugees to return to Israel.” What is truly significant is that what Sharon and Weisglass admitted in 2004 was also admitted by Zionist leaders well over a half a century ago. Such continuity underscores the unalterable nature of Zionism as a movement which thrives on ethnic cleansing and a political impasse. Thus, Ben-Gurion recorded in his war diary, in 1949 that Abba Eban, Israel's ambassador to the UN, “sees no need to run after peace.  The armistice is sufficient for us; if we run after peace, the Arabs will demand a price of us – borders [that is, in terms of territory] or refugees [that is, repatriation] or both.  Let us wait a few years.”[17] 

The Peace Process:

Numerous proposals for a settlement have emanated primarily from Washington since the June 1967 Arab-Israeli war, but almost all of them, from the Rogers plan of 1969 all the way up to the Oslo accords of September 1993 have ended in total failure.[18] The refugee component of the Palestine question was particularly rendered to the sidelines during the past half century, and the Oslo Accords signed at the White House on September 13, 1993, designated it as a “final status” issue to be left until the very end of the negotiations.[19]

This paper will try to demonstrate that the primacy assigned to geo-politics as well as the efforts of various governments in the region and outside have not only resulted in the marginalization of Palestinian rights, particularly refugee rights, but also eroded the earlier consensus built around General Assembly resolution 194(III) adopted on  11  December 1948.[20] Moreover, the so-called peace process has undermined the concept of the two-state solution sustained by an international consensus.

The joint Arab-Palestinian pursuit of the two-state solution during the 70s, 80s, and 90s, was never taken seriously either by the United States or by Israel. So despite the concessions there was no reciprocation. As far back as the Rogers Plan of 1969, there is a legacy of rejectionism on the part of Israel and the self-designated peacemaker. Israel has managed to reject a number of US proposals even when some of these proposals did not include full withdrawal from Occupied Territories and/or Palestinian sovereignty.

On the other hand, the PLO and the Arab states had associated themselves with the basic elements of the global consensus based on ending the occupation and the recognition of a two-state solution. That consensus was expressed in countless documents, including the 1971 Sadat offer, the Security Council Resolution of 1976 calling for implementation of Resolution 242 and a two-state solution, the European Council's Venice Declaration (12-13 June 1980), which recognized Palestinian self-determination, the 1981 Fahd Plan, the 1988 PLO recognition of Israel, the 1998 European Union Declaration, all the way up to the Saudi Crown Prince Abdullah plan, adopted by the Arab League in Beirut in March 2002, offering full recognition of Israel in exchange for ending the occupation.

International Responsibility Redefined: Statehood over Right of return:

  Since the 1948 Palestinian Catastrophe (“Nakba”)[21] and its concomitant creation of the Palestinian refugee crisis, the issues of return, compensation, and restitution have taken a back seat to the discussions surrounding the overall question of Palestinian statehood. During the better part of the past five decades, the issue of refugees has been marginalized, despite the fact that Israel’s admission to the United Nations was made contingent on its compliance with United Nations General Assembly Resolution 194 of December 1948.[22] General Assembly Resolution 273 of May 11, 1949, made the admission conditional on Israel’s unambiguous commitment to “unreservedly” respect UN resolutions pertaining to the Arab-Israeli conflict, including Resolution 194.[23]

Israel was admitted to the United Nations without complying with its obligations to Palestinian refugees, thus keeping alive and exacerbating the refugee crisis we face today. General Assembly Resolution 194 has been ritualistically reaffirmed numerous times.[24] Israel’s non-compliance had impelled the General Assembly to adopt other resolutions calling on Israel to meet its obligations to the refugees. For example, Resolution 3236 of November 22, 1974, upheld the “inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted.”[25] And in 1997, Resolution 52/62 reaffirmed that the “Palestine Arab refugees are entitled to their property and to the income derived there from, in conformity with the principles of justice and equity.”[26]

With the emergence of the Palestine Liberation Organization (PLO) and the resumption of armed struggle during the 1960s, the issue of the refugees, rather than becoming the central human dimension of the revolutionaries’ struggle to reverse the Nakba, was relegated to a humanitarian, charitable issue better left to organizations such as UNRWA. The Palestinian national movement declared its objective in 1968 as the creation of a single democratic secular state in all of Palestine in which Muslims, Christians and Jews would live on the basis of equality before the law. In that setting, it was presumed that the refugees would exercise their right of return and be naturally accommodated in the future unitary state.

The 1967 war exacerbated the refugee crisis by creating a new generation of refugees. At the same time, the refugee crisis completely disappeared from the PLO agenda. The overarching objective of the PLO became global recognition of its status as sole legitimate representative of the Palestine people.[27] The PLO, however, perceived the plight of the refugees as a distraction from the “important” issues. True, the refugees remained a humanitarian concern, but only to showcase the “social” institutions, which the PLO built in Lebanon during the 1970s, an infrastructure of a state-in-waiting.[28] Yet from the perspective of political rights, the refugee question continued to lack any political content and force.[29]

After 1972, as the armed struggle further gave way to a new form of diplomatic work, the refugee question became dormant. The arrangements formulated in Arab summit conferences in Algiers, Rabat, and Cairo during the mid-seventies, encouraged the PLO to promote itself with a program of “self-determination” in a mini-Palestinian state in the West Bank and Gaza, which constituted less than 22 percent of pre-1948 Palestine.  In return for supporting the “new” PLO, with such watered-down objectives, the Arab governments demanded an unwritten quid pro quo. The PLO would drastically scale down its guerilla operations and cease its rhetoric about a democratic secular state in all of historic Palestine. In return, not only would the PLO be “rewarded” with Arab diplomatic support in far-flung countries, the Arab governments would also increase economic assistance to the organization.

For the next two decades, this unwritten agreement, and the search for a “two-state solution,” would consume the combined energies of Palestinians and Arabs. The PLO quest for international recognition, both as the sole legitimate representative of the Palestinian people and as a solid bargaining partner for the creation of a mini-state, claimed the largest portion of Arab and Palestinian resources. This came at the expense of refugee rights and interests.

And while the PLO achieved its goal of becoming the focal point of the Palestine question, ironically, in 1993 it became the first Arab party to sign an agreement that effectively deferred internationally recognized rights. More drastically, it agreed in the meetings in 2000 at Camp David not to insist on the right of return.

The joint Arab-Palestinian pursuit of the two-state solution was never taken seriously by the United States and Israel, yet it was exploited by them repeatedly in their own attempts to marginalize the refugee issue and remove it from the active diplomatic agenda. The United States assumed the role of chief arbiter, if not sole peace-maker in the Middle East since 1972.[30] All other would-be conciliators, including the United Nations, were held at bay. Indeed, the Arab-Israeli conflict was one of the very few that was effectively removed from the international arena of conflict resolution. International responsibility for the Palestine question in general and the right of return in particular was undermined by a misguided US policy whose geo-political orientation made the requirements of international law totally irrelevant.

International Civil Society and the Refugees

Despite the exceedingly numerous meetings held between Palestinian and Israeli negotiators during the seven years since the signing of the Oslo accords, the input of the community of five million Palestinian refugees has never been sought. When the right of return began to resurface as a top item on the Palestinian people’s agenda around 1999–2000, the role of the Palestine Authority (PA) was minimal. In fact, the issue was placed on the public agenda not by the PA or by the PLO, but by various segments of Palestinian and global civil society.[31]

 In particular, grassroots organizations – new and old alike – seized the initiative by restoring the right of return to a central place in the discourse about Palestine.[32] For example, on September 16, 2000, two demonstrations attended by several thousand activists were held simultaneously in Washington, D.C., and London to promote the right of return.

During the same period, similar demonstrations, most of which coincided with the eighteenth anniversary of the 1982 massacres at the Sabra and Shatila camps in Lebanon, were also staged in the Lebanese refugee camps and in Palestine. Numerous conferences, workshops, and rallies were held in and outside the region since 2000 and 2004, bringing together community leaders, activists, and scholars to discuss various strategies for reviving the right of return.

Such gatherings, mass rallies, symposia, and public protests have been repeated numerous times in various cities and refugee camps in the region and around the world. Their leaders have vowed to continue such non-governmental actions until the right of return is dealt with in a fair and legal manner in any future settlement. The whole endeavor seems like a public reminder that the failure of the governments, the so-called peace process, and the United Nations to produce any justice for the refugees made it incumbent on international civil society to step in on behalf of the Palestinian refugees.

  The right of return, as defined in resolution 194, became a rallying cry for grassroots organizing throughout the 1990s and especially after the failure of the Camp David meeting, which was in effect, a failure of Oslo in July 2000.[33] An international solidarity movement, which had been working on behalf of the Palestinian cause since the early 1970s, and which had to step aside after the “historic hand-shake” of Arafat and Rabin in September 1993, came back after the failure of Oslo in 2000, hoping to succeed where governments failed in ameliorating the plight of the Palestinians, particularly the refugees.

The Distortion of International Law:

In addition to PLO emphasis on the issue of sovereignty during the 70s and 80s and in addition to Israeli rejectionism, the peace process has also distorted the meaning of International Law and diluted whatever effect it could have had, in the interest of geo-politics. For example, the term sovereignty would appear with adjectives such as “dual” sovereignty, “shared” sovereignty, and a “sense of sovereignty.” The term withdrawal from occupied territories was rendered as “redeployment,” which is not the same thing as withdrawal. In more than a thousand pages of Oslo documents, one never encounters the term occupation or sees any reference to refugees except in the context of final status issues. These terms are governed by international humanitarian law and the law of war.

This watering down of UN resolutions and international law by the self-designated honest broker was aggravated by Israeli domestication of international law. Rather than rejecting it outright, Israel has been utilizing International Humanitarian law and legal discourse in such a way as to justify its own policies and actions in the occupied territories, and now the US is employing some of that discourse in matters relating to the “war on terror.” While Israel agrees that the Fourth Geneva Convention’s rules apply to “occupied” territories, it holds that the West Bank and Gaza are not occupied, but “administered” and “disputed.” Consequently, it argues that the Conventions are not applicable to Israel’s rule on de jure basis, and that Israel abides by them on de facto basis, namely to respect its “humanitarian provisions.” Such claims have been put to rest in the recent ICJ ruling, as we will see a bit later on.

I would like to conclude by saying that there is now a cultural-political divide in the world at large. The Bush doctrine of preventive wars has already broadened the gulf between the United States and Israel, on the one hand, and much of the world, which clings to the rule of law and the peaceful resolution of international disputes. The July 9, 2004 release of the advisory opinion on the legal consequences of Israel’s apartheid wall by the International Court of Justice (ICJ) has underscored this divide. The Court voted 14-1 against Israel, while the General Assembly backed the Court by a vote of 150 to 6, and that stands in sharp contrast to the vote in the US Congress where 361 Representatives voted to deplore the Court’s decision against only 45 with 13 presents and 14 not voting.

The sum result of such callous obstruction of justice, however, is likely to be further international isolation for the US and Israel, which could spawn international action to compel Israeli compliance with international law in accordance with the ICJ’s ruling, similar to what happened in Namibia in the 1970s and 80s, and in East Timor in the 1990s.

The degradation of Palestinian rights by the peace process over nearly four decades would have to be remedied by international civil society action pursuant to the implementation of the world court’s verdict. Are we likely to see an inevitable clash in the discourse- between “occupied” and “contested” between ‘withdrawal” and “disengagement” between “legality” and “military necessity,” between “right of return,” “restitution,” On the one hand, and “justice for the refugees,” on the other? Can we look to the ICJ ruling for a remedy on the refugee’s question?

The ICJ’s ruling did not mention the right of return. It spoke of self-determination in the 1967 borders, calling for a two-state solution in accordance with the Road Map. But, according to Susan Akram it can shore up refugee rights. Although the ICJ Opinion on Israel’s Wall did not specifically address the refugee question, there are five points in the ICJ decision which are significant for Palestinian refugees:

·               The Court’s affirmation of the applicability of law to the conflict, i.e. it is not a political issue only.  The conflict is a legal issue, and as such the refugees are entitled to legal protection within the framework of the United Nations High Commissioner on Refugees office.

·               The Court’s affirmation of the Palestinian right to self-determination implies that the refugees are entitled to statehood within a defined territory.

·               The clear articulation by the Court of what is the appropriate remedy for illegal land confiscation, i.e. restitution and compensation. The Court argued this remedy based on the law of state responsibility. It did not refer to 194, but this ruling affirms the principles underlying 194.

·               By 14-1 vote, the Court found Israel responsible for making reparations for all damage caused by construction of the wall. In this ruling, the court for the first time gave Palestinians restitution rights clearly affirmed under international legal doctrine, that establishes that restitution is the required remedy for wrongful property expropriation, not simply compensation. This should thus be applicable to Palestinian refugee property within 1948.

·               By 13-2 vote, the court found that state parties to the 4^th Geneva Convention of 1949 have additional obligations to ensure that Israel complies with the provisions of international humanitarian law in the Occupied Territories. This may be the most important aspect of the ruling, certainly for activism and further legal strategies. For our purposes, the obligation to enforce 4^th Geneva Convention provisions applies not only to those explicitly discussed in the opinion, such as Art. 49, which prohibits individual or mass forcible transfers of the population of occupied territory and prohibits transfers of parts of its own civilian population into occupied territory. But, since it found that Israel was bound to all of the 4^th Geneva Convention, the provisions requiring a state to permit persons evacuated during hostilities to return to their homes as soon as hostilities have ceased—one of the principles underlying Palestinian right of return—are also enforceable against Israel. This means that such rights are also to be enforced by the community of states, under the meaning of the ICJ opinion.

Again, the ICJ ruling does punctuate a new reality—the clash between the US, Israel, Marshal Islands, Micronesia et al, on the one hand, and the civilized world that insist on applying international law, on the other. If that clash begins to reverberate it would send shockwaves throughout a world that has grown disillusioned by US disregard for the rule of law, for multilateralism, and for the constitutional principle of checks and balances. A renewed commitment to genuine peace based on international law and on principled compromises would have to replace the Israeli diktat shielded by US naked power. The status-quo would be challenged not only be defenseless Palestinian civilians, but also by a global movement that has grown tired of a militarized US foreign policy, driven by an outdated moral mission and medieval religious values that defy the dominant global trends of secularism, rationalism and multiculturalism. Bush’s claims of divine inspiration and Sharon’s expansionist design, shrouded in a misguided notion of self-defense, would be exposed for what they are: a reincarnation of old-fashioned imperialism and settler colonialism that have become anathema to a world in search of new directions, new diplomacy, and a reconsolidation of international law.

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