Fighting Anti-Israeli Bias

item 7

Human rights situation in Palestine and other occupied Arab territories

Claims

Claim 5: Palestinian refugees have a right of return

examples

Oman, 45th Session

“My delegation reaffirms that ending the misery of the Palestinian people and the violations they have been subjected to for decades can only be achieved by granting them the right to…returning refugees…”

Iraq, 45th Session

“Iraq renews its position of solidarity with the Palestinian people’s struggle to obtain their legitimate and inalienable rights, including the right to return…”

Algeria, 43rd Session

“Action needs to be carried out to guarantee return for refugees…”

Our Response

UN Watch

These statements blame Israel for the plight of Palestinians who fled their homes in Mandatory Palestine or were forced to leave as a result of the 1948 Arab-Israeli War. However, that war could have been avoided, along with the refugee problem, had the Arab side accepted territorial compromise from the outset, in the form of the 1947 UN partition plan. The Jewish side accepted this compromise, while the Arab side responded by completely rejecting it and waging war against the Jews with the goal “to eliminate the Jews of Palestine, and to completely cleanse the country of them.”[1]

At the end of the war, although many local Arabs had fled, many also remained. Those that remained became full citizens of Israel. By contrast, no Jews remained in any of the areas of Mandatory Palestine conquered by neighboring Arab countries like Jordan and Egypt. They either were expelled or killed. Moreover, the conflict also created hundreds of thousands of Jewish refugees who were forced to leave their homes in Arab countries. Unlike the Palestinians, these Jews moved on and settled in other countries and are no longer refugees.

Having lost the territorial war, Arab leaders began to view the refugees as another weapon in their war to eliminate the State of Israel, as documented in The War of Return, the authoritative new book by Dr. Einat Wilf and Adi Schwartz. In the words of Egyptian Foreign Minister Muhammad Salah al-Din in October 1949, “It is well known and understood that the Arabs, in demanding the return of the refugees to Palestine, mean their return as masters of the Homeland and not as its slaves. With greater clarity, they mean the liquidation of the State of Israel.”[2] Thus, the refugee issue has always been political rather than legal. Indeed, recognizing that this is a political issue which can only be resolved through negotiations, the Palestinians agreed in the Oslo Accords that it would be dealt with in final status negotiations.[3]

As a legal matter, there is no “right of return” under international law. The 1951 Refugee Convention contains a prohibition against forcible return of refugees against their will (known as the right of non-refoulement), but not the reverse—a right of return for refugees.[4] The United Nations High Commissioner for Refugees (UNHCR) recognizes three possible durable solutions for refugees—repatriation, local integration and resettlement—and “there is no formal hierarchy” among them, meaning that each is equally acceptable.[5]

By UNHCR standards, over 4 million of the 5.5 million refugees currently registered with UNRWA already have benefitted from a durable solution—resettlement—and no longer qualify for refugee status. UNRWA admits on its website that most of the 2 million registered Palestinian refugees in Jordan have Jordanian citizenship.[6] Likewise, the nearly 2.2 million registered Palestinian refugees in the West Bank and Gaza already reside in their homeland, i.e., territory that was once part of Mandatory Palestine and designated for a future Palestinian state—in fact, they never left this territory which begs the question of why they were classified as refugees in the first place.

The Palestinians base their claim to a legal “right of return” into the sovereign State of Israel on Paragraph 11 of General Assembly Resolution 194(III) of December 11, 1948 titled Palestine – Progress report of the United Nations Mediator. That resolution established a conciliation commission to mediate a resolution to the conflict. In that context, it included provisions concerning negotiating a final settlement (Para 6), Holy Places (Para 7), Jerusalem (Paras 8-9), facilitating economic development of the area (para 10) and refugees (para 11).

Resolution 194 does not create any legal rights. General Assembly resolutions by nature are political declarations which cannot confer legal rights. Furthermore, Paragraph 11 says nothing about an absolute “right of return.” It simply resolves that “refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so…and that compensation should be paid for the property of those choosing not to return…”[7] (Emphasis added). Use of the words “should be” and not “must be” confirms that this paragraph is not about the legal rights of the Palestinians, but about seeking a resolution to the conflict. The word “permitted” also indicates that the ultimate decision as to whether to allow the return of refugees would be left to the sovereign, i.e., Israel.[8]

In addition, the concept of “return” is presented as one option alongside the option of compensation and only for those wishing to “live at peace with their neighbors.” As explained above, at its core, the Palestinian insistence on an absolute right of return is antithetical to peace and thus to the spirit of Resolution 194, as it is intended to undermine the State of Israel’s sovereignty and ultimately bring about its demise.

Finally, consistent with international refugee law, the UN itself later adopted several resolutions presenting resettlement of Palestinian refugees in Arab states as a solution equivalent to return.[9] For example, General Assembly Resolution 393 (V), which “considers that…the reintegration of the refugees into the economic life of the Near East, either by repatriation or resettlement, is essential…”[10]

[1] Adi Schwartz and Einat Wilf, The War of Return, All Points Books (2020), p. 17 (quoting Ismail Safwat, in charge of coordination between the different Arab forces during the 1948 war).

[2] Id. at p. 37.

[3] Israeli Palestinian Interim Agreement, Article XXXI (September 28, 1995), https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/the%20israeli-palestinian%20interim%20agreement.aspx.

[4] 1951 Convention Relating to the Status of Refugees, Article 33, https://www.unhcr.org/3b66c2aa10.

[5] Solutions, UNHCR (last visited December 24, 2020), http://www.unhcr.org/solutions.html; UNHCR Resettlement Handbook, UNHCR, p. 30 (2011), http://www.unhcr.org/46f7c0ee2.pdf.

[6] Where We Work, UNRWA (last visited December 24, 2020), https://www.unrwa.org/where-we-work/jordan.

[7] Palestine – Progress Report of the United Nations Mediator, UN Doc. A/RES/ 194(III) (December 11, 1948), https://undocs.org/A/RES/194%20(III).

[8] The War of Return at p. 54.

[9] Id. at p. 35.

[10] Assistance to Palestine Refugees, UN Doc. A/RES 393(V) (December 2, 195), https://undocs.org/en/A/RES/393(V).

UN Watch