Jordan Times:The Right of Return
is Alive and well.
by Dr Salman Abu Sitta
TWO COMPLEMENTARY words have become an integral part of the
Palestinian narrative for the last 53 years:
Al Nakba and the right of return. They represent two sides of
the same coin: one is the original sin and the other is the
atonement for it. Al Nakba is the largest, most carefully
planned and longest ethnic cleansing operation in modern
history.
The population of 530 towns and villages have been expelled in
1948, removing 85 per cent of the Palestinians in the land that
became Israel. Those who did not suffer this fate in the
remaining part of Palestine are now in the grip of the most
brutal, longest and only occupation in the world.
The Palestinians' determination to hold on to their right of
return during many years of unparalleled adversity is unique.
Hence, the Israeli indefatigable efforts to undermine it. Their
arguments have remained the same since the Provisional
Government of Israel, buoyed by the conquest of vast territory,
decided in June 1948 to declare publicly its intention to deny
the return of the refugees by all means.
The first victim of this policy, apart from the refugees
themselves, was the assassinated Count Volke Bernadotte, whose
political "will" became the famous Resolution 194 (III), para 11
of Dec. 11, 1948, significantly one day after the promulgation
of the Universal Declaration of Human Rights (UDHR).
On the ground, Israel expelled the refugees, committed
massacres, shot the returnees ("infiltrators"), destroyed the
villages, burned the crops, imported immigrants and confiscated
refugee property (92 per cent of Israel). In the propaganda
arena, Israel created new myths ("Palestine is a land without
people"), such as: the return is not possible, the boundaries
are lost, the country is full and the return will pollute "the
Jewish character" of the state.
None of these myths stand serious scrutiny or can be accepted as
legitimate reasons for the denial of human rights. In the legal
interpretation of Resolution 194, attempts are made to undermine
it by calling it a "recommendation" or casting doubts on the
meaning of "country" and "home".
Without serious examination of these claims, or under the guise
of "pragmatism", some Palestinian officials and academics
adopted these Israeli views. Free exchange of ideas is highly
recommended. But undermining inalienable rights is not. The
much-publicised views of Sari Nusseibeh, first presented with an
Israeli Likud co-author, Mark Heller, ten years ago, can be
summed up as follows:
The "recognised" right of return can be fulfilled by the
"return" of the refugees to the new state of Palestine
(definition unknown).
The Palestinians should be citizens of their own (ethnic) state
and the Israelis of their own (Jewish) state. This confuses the
concept of sovereignty over a territory, which is political and
negotiable, and the right of return, which is an inalienable
right and has nothing to do with the territory in question.
The two are entirely unrelated. Further, there is no meaning in
international law of a "Jewish" state or a Jewish people.
The Partition Plan of 1947 (Resolution 181), on whose basis the
state of Israel was declared, clearly rejects this concept and
stipulates, in chapters 2 and 3, the protection of the full
political and civil rights of the Arab "minority" in the Jewish
state and vice versa.
The state should protect all its citizens, whoever they may be.
But Israel declares itself to be the state of those who are not
its citizens (the Jews abroad) and not the state of its citizens
(Palestinians in Israel). This racist concept is contrary to
international law and cannot be accepted. Doubts cast on the
validity of Resolution 194 are a waste of time.
The predominant legal opinion supports it. UN General Assembly
Resolution 194 is not an invention; it is an application of
international law. That is why it has been confirmed by the UN
135 times, a unique case in UN history. It is also derived from
the UDHR and the European, American and African similar
conventions. It is also derived from the sanctity of private
ownership which cannot be extinguished by passage of time,
occupation or sovereignty.
Contrary to an erstwhile misconception, the resolution, in line
with the Compensation Law, calls for the return and (not or)
compensation; the latter depends on the loss and damage with or
without return.
Resolution 242 never eliminated Resolution 194. Evidence is
clear from continuous reference to it up to the last General
Assembly in November-December 2001.
The reference in 242, which is dedicated only to the 1967 war
effects, to "a just resolution of the refugee question", simply
refers the matter to existing resolutions on the issue and to
international law.
A Jordan Times contributor raised, on Dec. 30, 2001, the point,
also raised by the Israelis, that the Arabs voted against
Resolution 194. One needs to know why and how.
The Arab (Egypt, Iraq, Lebanon, Saudi Arabia, Syria, Yemen -
Jordan is not mentioned) and the Soviet block voted against the
whole resolution (not paragraph 11 - the right of return)
because the package contains many ambiguous and unacceptable
terms.
Resolution 194 contains 15 paragraphs, of which paragraph 11
refers to the refugees' return in a comprehensive plan of 3
elements: 1) to allow them to return and be compensated; 2) to
provide welfare to refugees, later provided by UNRWA; and 3) to
facilitate their repatriation and rehabilitation.
Other clauses refer to the internationalisation of Jerusalem,
"economic development of the area" with vague and ill-defined
terms of reference for CCP. Nothing was said about the then
recent (October-November 1948) Israeli new conquest which
increased the occupied land from 25 per cent to 60 per cent of
Israel's area.
The general context of the resolution appeared to support the
partition resolution (already rejected by the Arabs because it
allocates 54 per cent of the country to the Jewish minority
which controlled only 6 per cent of Palestine), but, worse
still, without any specific boundaries for Israel, which implied
condoning Israeli unlimited expansion.
The Arabs never rejected paragraph 11, as evidenced by the
proceeding at Lausanne in 1949. In fact, the Arabs accepted
Israel as a state at the time, a major and rarely emphasised
concession, provided that, first, refugees must return to their
homes.
The Lausanne Protocol, signed on May 12, 1949, stated this
clearly and had an annex of the Partition Plan of 1947 as the
basis of discussion. As American diplomatic despatches and the
Record of the Meeting of May 12, 1949, indicate, the Arabs'
prerequisite for recognising Israel is the return of the
refugees.
The only exception, according to these despatches (see Burdett,
Feb. 12, 1949, FRUS 1949, pp. 744-746), was Jordan, which
accepted to settle the refugees on its territory, but asked
Israel to withdraw from a bigger territory in Palestine to be
able to settle more refugees.
However, the whole question of Arab voting on Resolution 194 is
moot. One can ask: So what?
The right of return is an individual right which can only be
surrendered by the individual himself. Through extension to
self-determination, it is a collective right. As to the
international humanitarian law about the treatment of civilians
in time of war, it is applicable to Al Nakba and to the
present-day occupation of the West Bank and Gaza.
The threat of applying the Rome Statute of 1998, which treats
Jewish settlers, Israeli army officers and officials of the
government of Israel as war criminals, should, when applied, be
a serious deterrent to Israeli atrocities. In the final
analysis, the right of return remains the guiding light of the
refugees with or without UN resolutions.
The writer is researcher on the refugees and president of
Palestine Land Society, London. He contributed this article to
The Jordan Times.
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