American Mediators Must Reject the Palestinian Claim to a ‘Right of Return’

For a long time, American efforts to mediate the Israeli-Palestinian conflict have suffered from inertia. That includes a perennial refusal to take a decisive position on the so-called Palestinian right of return. The result has been decades of failed peace negotiations.

With the return of the self-proclaimed expert dealmaker to the Oval Office, and renewed talk of a two-state solution, it’s important to revisit this issue. A new approach is in order.

During the 1948 Israeli war of independence, approximately 700,000 Palestinians fled or were expelled from what is now the state of Israel. Those refugees were then housed in the West Bank, the Gaza Strip and various refugee camps in neighbouring Arab countries. Except for Jordan, those countries did not offer them citizenship.

Shortly after the war, the United Nations formed the United Nations Relief and Works Agency (UNRWA) to manage the welfare of the refugees. UNRWA’s original mandate was to resettle the refugees in their host countries. However, in the face of Palestinian opposition, UNRWA abandoned that goal and instead began to advocate the return of the refugees to their former homes. To complicate matters, UNRWA has taken the position that the original 1948 refugees and all their descendants are entitled to refugee status. Today, that amounts to approximately five million people who, UNRWA maintains, have a “right of return” to what is now the state of Israel. The Palestinian leadership agrees, arguing that this supposed right is non-negotiable.

But there is no such right, as Adi Schwartz and Einat Wilf have shown in their book, The War of Return. One study after another confirms this. Perhaps the best example is the exhaustive analysis by professor Andrew Kent (cited by Schwartz and Wilf) in which he concludes that it is “clear that the claimed Palestinian ‘right of return’ for refugees from the 1947–49 conflict has no substantial legal basis.” Most legal scholars who have addressed the issue (those without a political agenda) agree that five million Palestinian refugees are not entitled to take up residence in the state of Israel.

Nevertheless, American peace negotiators have failed to take a firm position on this crucial issue. And so, in the face of ambiguous Western policy, Palestinian officials have been free to claim that the conflict cannot be settled without recognition of a full right of return.

Perhaps because this issue is so contentious, the parties have largely avoided it over the history of their negotiations. Under the Oslo Accords (1993), questions regarding refugees were designated as “final status” issues, to be addressed at the end of peace negotiations. That set a pattern that continues to this day. As a result, the issue of the Palestinians’ claimed right of return has been nearly ignored by the parties and American negotiators.

When they do address the issue, the Americans have tended to view any right of return as a bargaining chip, to be used in peace negotiations. For example, they have suggested a symbolic right of return, limited to only a few thousand refugees. However, they’ve been ambiguous and noncommittal as to whether such a right actually exists.

Essentially, the American peace processors hold that the right of return is only a matter of politics, subject to negotiation and compromise. However, both sides of the conflict strongly reject that view, arguing that the issue is one of non-negotiable rights. (As Mahmoud Abbas has put it, “I can’t tell four million Palestinians that only five thousand of them can go home.”)

For decades, the Americans have made no effort to break this logjam, failing to take a clear position on what is arguably the single most important aspect of the conflict. And that’s prevented any chance of a peaceful resolution.

Some disputes cannot be resolved by compromise. One party or the other must give way. The Palestinian claim to a right of return presents just such a case. Israel cannot be expected to compromise its own sovereignty. And Palestinians have made it clear for 75 years that they have no intention of compromising what they see as a sacred right to all the land “from the river to the sea.” Accordingly, if the conflict is to be resolved, American mediators must take a clear and decisive position. They must tune out the cacophony of competing interest groups and take a firm stand, based on established international law.

As Schwartz and Wilf have argued, the so-called right of return, and the West’s willingness to indulge it, have been the biggest obstacles to resolving the conflict. Therefore, they say, “the first step that needs to be undertaken by countries and professionals dedicated to true peace is to send a clear and unequivocal message to Palestinians that they do not possess a right of return to the sovereign state of Israel.”

American policy – or lack thereof – regarding the claimed right of return has now lasted through thirty years of unsuccessful peace negotiations. It’s time for American mediators to finally speak legal truth to the Palestinian leadership.