Answering BDS: The “Right of Return”… to Judea and Samaria.

  • “The Arab armies entered Palestine to protect the Palestinians … but, instead, they abandoned them, forced them to emigrate and to leave their homeland”. Mahmoud Abbas in Falastin a-Thaura (official PLO Journal), MARCH 1976.
  • “This will be a war of extermination and momentous massacre which will be spoken of like the Tartar massacre or the Crusader wars.”– Arab League Secretary-General Azzam Pasha, October 11, 1947 in Akhbar al-Yom interview. 

The “return” to Israel of Palestinian “refugees” is a central demand of Palestinians and their supporters. This demand is based on a misrepresentation of international law and of the causes of Palestinian displacement in 1947-48. But it should not scare Israel. If applied fairly to Jews and Palestinians alike, Palestinians’ definition of “refugees” would benefit Israel. And if the “Right of Return” as advanced by pro-Palestinian activists were law — which it is not — it would represent Israel’s strongest claim yet to critical parts of Jerusalem and Judea & Samaria.

Same Old Lies, Shiny New Package.

For decades, pro-Palestinian propaganda has worked to substitute anti-Israel revisionism for historical fact, and to equate the destruction of Israel with basic justice in the public’s mind. It has done so by distorting legal concepts beyond recognition and by falsely accusing Israelis of committing exactly those crimes that Israelis frequently suffer at the hands of Palestinians.

As part of this effort, the Boycott, Divestment and Sanctions (BDS) movement lead by Qatari Tel Aviv University student and arch-hypocrite Omar Barghouti has made the “return” of Palestinian “refugees” to Israel (but not to a future Palestinian state) one of its core demands. The goal of this opportunistic concern for “refugees” is the destruction of Jewish self-determination: if millions of Arabs who have been taught to hate Israel were to flood it, there would be no more state for the Jewish people. There would possibly be no more Jewish people. There would instead, to quote Barghouti, be “a Palestine next to a Palestine.” And there is every reason to believe those ‘Palestines’ would be just as inhospitable to Jews as the 22 other Arab states.

BDS shamelessly cloaks this extremism in the language of justice. But if BDS’ pretense to fairness is to be believed, if BDS is made to abide by its professed concern for justice and equity — and if its legal “interpretations” are thus applied without discrimination — Israel comes out the winner.

Not a good omen for the "One State (Final) Solution."
Not a good omen for the “One State (Final) Solution.”

According to BDS’ Definition, Every Single Israeli Jew is Also a “Refugee”:

The Palestinian “refugees” whose “return” is demanded are not refugees at all. They are the descendants of those who fled a war that their own leaders chose to wage. And (with arguably justified exceptions, around 30 to 70 000 who were expelled) those who left did so prompted by their own leaders, not Israel. No other people but the Palestinians benefit from such a forgiving and inheritable definition of “refugee”.

Holocaust refugees en rout to Mandatory Palestine, 1946 (courtesy of US Holocaust Museum)
Holocaust refugees en rout to Mandatory Palestine, 1946 (courtesy of US Holocaust Museum)

Were this inheritable definition of “refugee” to apply irrespective of ethnicity, however, every single Israeli Jew would also qualify as a “refugee” and enjoy the legal protections that status confers. Virtually every Israeli Jew descends from refugees — be it victims of foreign occupations of Israel, pogroms in the Pale, the Holocaust or Arab ethnic cleansing. In fact, applying the Palestinian definition of “refugee” equitably would render the State of Israel the largest “refugee” camp in human history.

To the 5 million Palestinian “refugees”, then, Israel could oppose 6 million Israeli “refugees” — and their rights. And there is no conceivable moral or legal reason why Arab “refugees” (who reside in Arab states and may even have their own state soon) ought to rob Jewish “refugees” of their self-determination and subject them to the rabid antiSemitism that made them refugees in the first place. To focus on the past at the expense of the present is a losing game that both sides can play.

Pretending that the “Right of Return” is Real — The Positive Implications for Israel:

Let there be no doubt: the supposed “right of return” of 5 million Palestinian “refugees” to Israel is a legal fiction. UNGA Res. 194 of 1948, the text most often cited in support of that “right,” is non-binding and was unanimously rejected by the Arabs in 1948.  It is not a law. Moreover, 194 was never meant to confer an open-ended or inheritable right for Palestinians to collectively flood Israel at any time of their choosing, as detractors of Israel today suggest. Res. 194 calls, rather, for individual refugees displaced in the lead up to 1948 to be allowed to return to their homes. To the chagrin of BDS, no international law under the sun grants an entire, hostile nation a collective right of entry to another state. International law is not a call to national suicide:

  • Resolves that the refugees wishing to return to their homes and live at peace with their neighbours 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 …              — UNGA Res. 194(11).

More importantly, though, resolution 194 is not restricted to Arab refugees. 194 refers simply to “refugees”, i.e., on both sides of the conflict, Arabs and Israelis. Israelis were also displaced from 1920-48, and res.194 accordingly calls for Israeli refugees to be allowed to return to their homes, too.

On the condition, that is, that those refugees desire “to live at peace with their neighbours.” The will to live in peace is a precondition to the exercise of 194. This critical detail is omitted by BDS activists.

Consequently, even if BDS were right and resolution 194 were a law that granted collective, open-ended rights of return, that law would benefit Israel. Because while both Palestinian Arabs and Jews lost property and were displaced by 1948, it is only Israel which has officially expressed its wish to “live in peace with [the] neighbours” it had then, and with the Palestinians today.  If 194 were a law granting collective rights to return to lost property, as BDS claims, Israel would therefore have satisfied its demands. Palestinian leaders, on the other hand, openly cling to their dream of destroying Israel, still refuse to recognize its right to exist and, to prove it, have rejected repeated Israeli peace offers.

Therefore, even if as BDS suggests, 194 were a law conferring collective rights of return the Palestinians would not qualify. The Israelis, however, would have the right to return to lost properties.

And the Jews lost MUCH property at the hand of Arab militias and armies, from 1920 to 1948.

Jordanian Forces ethnically cleanse the Old City of Jerusalem of Jews in 1948 (John Phillips)
Jordanian Forces ethnically cleanse the Old City of Jerusalem of Jews in 1948 (John Phillips)
Jews fleeing Jerusalem's Old CIty after the 1929 Arab Pogroms (courtesy: Library of Congress)
Jews fleeing Jerusalem’s Old CIty after the 1929 Arab Pogroms (courtesy: Library of Congress)

What’s at Stake:

Sizable Jewish communities existed in Judea and Samaria prior to 1948. These communities were wiped out by Palestinian Arab mobs in 1920, 1929 and 1936 and during the openly genocidal war waged by Palestinian militias and Arab governments in 1947-49.  In an exhaustive and authoritative expose, Lyn Julius reminds us that:

  • Until it was wiped out by Palestinian pogroms in 1929, there was a large Jewish community in the center of Hebron.
  • The Jewish population of Jerusalem (which has had a Jewish majority since at least the second half of the 19th century) was dispossessed by the Arab riots of 1929 and 1936 (when most fled what is now called the Muslim Quarter). In 1948, the Jordanian Legion expelled all the Jews remaining in the East of the city and destroyed its holy places.  
  • “Another 16,684.421 dunams of Jewish land in the rural West Bank – including the Gush Etzion settlements, land between Nablus, Jenin and Tulkarm, and in Bethlehem and Hebron – were seized by the Jordanians after 1948.” 
  • The ‘Jewish settlements’ north of Jerusalem, Atarot and Neve Yaakov, were evacuated in 1948, under the declared threat of advancing Arab armies to massacre all the Jews in their path.  
  • Hundreds of thousands of Palestinians live on land in and around Jerusalem that is still owned by the Jewish National Fund, including the Kalandia “refugee camp” and the Deheishe “refugee camp” south of Bethlehem.
  • In Abu Dis, where Palestinians want to establish their government, 600 dunams of land are Jewish-owned. The Arab riots of 1929 and 1936 forced Jews to flee those areas.  
  • Iraqi and Iranian Jews owned 145,976 dunams on the West Bank which they had to leave due to violence.
Expulsion of Jews from Jerusalem, 1936 (Israel news photo: courtesy of Library of Congress)
Expulsion of Jews from Jerusalem, 1936 (Israel news photo: courtesy of Library of Congress)

And unlike the Palestinian Arabs, these Jewish communities were displaced or destroyed through no fault of their own.  As even Benny Morris, the eminence grise of historians who have accused Israel of expulsions in 1948 has stated,”[t]he Arabs have only themselves to blame for the (unexpected) results of the war that they launched with the aim of “ethnically cleansing” Palestine of the Jews.”

In sum, the supposed collective “right of return” of “refugees” as promoted by anti-Israel propagandists, if applied fairly to all as per the language of the clauses invoked, would provide Israel with an undeniable claim to huge, disputed areas in Jerusalem, Hebron, Gush Etzion, Bethlehem, Abu Dis, the north of Jerusalem up to Ramallah, and large swaths of the West Bank.

Perhaps it is time for the rigid orthodoxy (of calumny) of Israel’s detractors to give way to a more pragmatic, honest and fair posture; one that envisages two states at peace as an end in itself, and which respects the self determination rights of both Jews and Arabs.

About the Author
Philippe Assouline is a lawyer and PhD candidate in International Relations and Political science. His research is on the Middle East, and investigating whether positive communication can foster peace between Israelis and Arabs. Philippe believes that dehumanizing propaganda, like BDS, fuels hatred and war. Accordingly, he has written posts criticizing BDS and profiling dissidents and Arab peace activists, to break barriers between Jews and Arabs.