The Palestinian “Right of Return” Issue

There are many barriers to Israeli-Palestinian peace. Some barriers are theological and can probably only be resolved theologically, e.g., the difficulty faced by Muslims and Jews in compromising over control of holy land granted to each of them by G-d. Other barriers are security-oriented, such as the Israeli need to control the Jordan valley and to maintain a demilitarized Palestine.

The issue of “solving” the Palestinian refugee issue probably lies somewhere in between. Arafat and Abbas have described it as the most emotionally charged issue for them to resolve, upon which any compromise would be impossible without the consent of the Palestinian people. Israel, of course, is unwilling to commit national suicide by admitting millions of Palestinian Arabs, arguing that Palestine is for the Palestinians, Israel for the Jews and its existing citizens. Purportedly, Olmert offered to take into Israel 5,000 Palestinian refugees per year for five years, as part of his ill-fated negotiations with Mahmoud Abbas in 2008, who was (also, purportedly) open to a deal that would accept 40-60,000 Palestinian refugees into Israel. Abbas ultimately backed away from further negotiations in this “doable” deal.

In the coming months, it is distinctly possible that Obama’s extreme animus towards Netanyahu and disregard for Israel’s fate, coupled with his own brand of Messianism, will lead to a renewed round of monumental pressure on Israel to agree to some sort of “peace” deal with the Palestinians, and the refugee issue will be squarely on the table. Isn’t this an illogical allocation of resources, given the Sunni-Shiite schism in the Middle East, Iranian aggression, ISIS? Not to European diplomats and the Obama Administration, who are obsessed with Israel.

So what is the history of this Palestinian refugee issue, the law, the equities of the situation? That is a book in itself, but let’s outline it.

Firstly, for some context, the bloody twentieth century experienced numerous refugee population transfers and exchanges, all of which have been accepted by the international community. These incidents included the Greek-Turkish population swap following WWI, in which over 1.3 million Greeks either fled for their lives or were “exchanged” for 350,000 Muslims (and hundreds of thousands more Greeks were slaughtered), mass expulsion of twelve million Germans from Poland, Czechoslovakia and other Eastern European countries following WWII (to the victor go the spoils? So says the Potsdam Agreement), the fourteen million Muslim, Hindu and Sikh population exchange (and genocide of half a million more) that came about out of the partition of India and Pakistan in 1947 (a solution occurring just a year before Israeli independence), the 1975 UN –sponsored Cyprus “negotiated” population exchange of 140,000 Greek Cypriots for 60,000 Turkish Cypriots, and the rationalization of the multi-ethnic populations of the states that comprised the former Yugoslavia. The latest examples of such transfers include the migration at gunpoint of entire ancient Christian communities in the Middle East, and the homogenization under duress of regions of Iraq.

Such transfers and exchanges aren’t pretty or just, and often constitute “ethnic cleansing”, but they ultimately reduce violence and civil war, allowing people to get beyond the ethnic conflicts of the past and move towards a relatively peaceful future. Accordingly, these population transfers and exchanges, usually against the wishes of those dispossessed, have been sanctioned by the League of Nations, the United Nations or pursuant to various international agreements, in spite of international law designed to protect the rights of individuals against “mass forcible population transfers” (pursuant to Article 49 of the Fourth Geneva Convention, adopted in 1949).

The population exchange that occurred with the birth of the State of Israel in 1948 was no less traumatizing to so many people, but there is no rational reason that it should not have ended in a similar manner to the ones described above. According to the United Nations, approximately 711,000 Palestinian Arabs became refugees as a result of the 1948 War of Independence, and 800,000-850,000 Jewish residents from Arab countries fled as refugees, amidst pogroms that slaughtered hundreds and destroyed their property as part of an organized program of expulsion (in contrast, there is general agreement that most Palestinian refugees fled Israel voluntarily, often at the behest of the invading Arab armies or their leaders, and except in a handful of circumstances, not under impending violent Zionist threat). Most of the Jewish refugees from Arab lands were resettled in the newly-founded State of Israel at great cost to that nation’s fragile and impoverished economy, and today their descendants represent the majority of Israel’s population. The Arab Palestinians, despite the reservation for them of a country as part of the 1948 UN Partition Plan for Palestine, were not so lucky, due to the actions of their Arab brothers.

Like the British Partition of India the year before, the UN Partition Plan for Palestine, as the direct decendent of the 1937 British Peel Report calling for separation of the Arab and Jewish populations onto their respective territories, would seem to have created the solution to any refugee issue. However, the refusal of the Arab nations and Palestinian Arab leaders to accept any territorial compromise, leading to the Arab-Israeli war of 1947-48, created a problem that the international community was forced to address. Accordingly, adopted on December 11, 1948 (and reiterated in a gzillion UN resolutions since), Article 11 of UN General Assembly Resolution 194 provided that “refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so”, or for economic compensation for those choosing not to return.

General Assembly Resolution 194, cited by supporters of the Palestinians as mandating a Palestinian right of return to Israel, is more worthy as an anti-Israel propaganda tool than as providing effective legal rights. Firstly, unlike Security Council resolutions, General Assembly resolutions are merely advisory and non-binding. It is also unclear whether these Palestinian refugees, most of whom left voluntarily or at the behest of Arab leaders who had declared and prosecuted war on Israel, fit the description of people seeking to “live at peace with their neighbors”. Furthermore, in addition to the option of ‘return,’ Article 11 also mentions various alternatives for resettlement and socio-economic rehabilitation including compensation for lost property, implying the practicality with which other refugee issues were handled (as the Indians and Pakistanis did in 1947, a year earlier). This was especially relevant since territory already existed at that time and was set aside for an Arab Palestinian state alongside a Jewish one for resettlement of those refugees – Gaza and the West Bank –which would have indeed occurred if the Arabs had accepted, as Ben Gurion did, the bifurcation of Palestine by the UN in 1948 into separate Jewish and Arab nations. If Egypt and Jordan had respected the UN Partition Plan, would not the refugee camps of Jordan, Lebanon and Syria have long been emptied into Gaza and the West Bank, which Egypt and Jordan controlled from 1948 to 1967?

Finally, Resolution 194, if applied, does not discriminate between Arab Palestinians and Jewish refugees from Arab countries (as acknowledged by the UNRWA), and therefore calls for economic compensation for both, should the desire or conditions of return not be met. And in that idea lies the most practical resolution to this issue – recognizing the  population exchange that began almost seventy years ago.

Anyone in his right mind would see that if the choice is continued conflict and death and global disorder, or a population exchange, most people would opt for the population exchange, as has been the solution to numerous national, ethnic and religious conflicts in the past. Indeed, a population exchange between Jews and Palestinian Arabs could be expected to serve as a cornerstone to a lasting solution to this conflict.

If one accepts an Arab-Jewish population exchange as a worthy way to help end the Israeli-Palestinian conflict, of course, then there are a number of Arab countries, from which Jewish populations departed during the past sixty years, who  should now absorb these Palestinian refugees or contribute economically to their resettlement. The wealth that was abandoned by the Jewish Arabs while fleeing their communities and confiscated by Arab governments dwarfs that of the Arabs who left Israel and become refugees. This creates a significant financial responsibility for the Arab nations that benefited from this confiscation of huge amounts of Jewish Arab wealth. Fulfilling that responsibility for the benefit of  Palestinian refugees would help contribute to an acceptable solution in accordance with the spirit of international law.

Perhaps more palatable to Arab nations enriched by the exile of their hundreds of years old or millennia-old Jewish communities, one could look to the Clinton Peace Plan of 2000 for solutions. According to the Reut Institute, that plan offered five practical options for the resolution of the refugee issue (1) Return to the Palestinian State; (2) Return to territory formerly part of Israel that would be transferred to Palestine within the framework of land swaps; (3) Rehabilitation of refugees in host countries; (4) Resettlement in third countries (Canada, Australia); (5) Admission to Israel (most likely very limited family reunification admissions for elderly Palestinians born in Israel), subject to the sovereign and exclusive decision of the State of Israel.

Another face-saving solution for “repatriation” of some Palestinian refugees? A number of them could be admitted to Israeli territory in conjunction with the granting of such land to Palestine as part of the “land swaps” envisioned to facilitate Israel’s retention of major West Bank settlement blocks.

If one has a partner on the other side who would prefer to have a nation, rather than a grievance, anything is possible. But swamping Israel unjustly with Palestinian refugees is not.

About the Author
After earning his B.A. in International Relations at the University of Pennsylvania, Robert Blum went on to obtain his law degree at the University of Chicago, practiced law, worked on Wall Street and eventually built several successful asset management businesses. However, he never lost his first love of thinking and writing about international affairs, nor of his love of Zion, best developed during eight summers at Camp Massad in the Poconos. He is active in several Jewish charities, including as a director and officer of HonestReporting, which is not responsible for the content of this blog.