Do Israeli Rights Conflict With the Palestinian Right of Return? Identifying the Possible Legal Arguments
By: Michael Kagan
07/2005

Excerpt:

Recent historical and legal research have strengthened longstanding arguments that Palestinian refugees are morally and legally entitled to choose whether to return to homes inside Israel and to claim restitution and compensation for lost property. Historical research has generally backed up Palestinian claims that they were expelled from their homes by violence and fear, and likely by a systematic campaign of ethnic cleansing. Legal research has illustrated that the right of return has broad roots in international law.

While the right of return remains highly contentious among Jewish Israelis, some Israeli intellectuals have sought to acknowledge the justice of Palestinian claims while finding alternative reasons for opposing the full implementation of the right of return. Such arguments have centered on the effect Palestinian return would have on Jews and on the State of Israel. Much of this new literature presupposes that the Palestinian and Israeli rights are in conflict.

This paper attempts to develop the idea of conflicting rights as a means of addressing Israeli objections to Palestinian refugee return. Rather than explore Palestinian arguments for the right of return, this paper starts from the assumption that the right of return exists and must be accepted by Israel in order to reach a just peace that complies with international law. Instead, this paper aims to identify and assess separate claims by Jews or Israelis that cannot coexist with refugee return. Without this separation, any assertion of Palestinian rights may be misunderstood as a denial of Israeli interests, and vice versa. Because Palestinians base their right to return in international law, many Israelis may assume that international law leaves no room for their concerns. By looking at separate, conflicting rights, the interests of both sides can at least be acknowledged in the discussion, and both assessed through the lens of international law. This offers a channel of dialogue for Israelis and Palestinians who want a just solution to the conflict.

Broadly speaking, we can identify three types of possible Jewish/Israeli rights that could conflict with Palestinian return. The first is the basic Zionist claim that Jews have a collective right to selfdetermination to form and maintain a specifically Jewish state, in which Jews must hold a dominant demographic majority. The second are individual Israeli property-related rights, such as the right to a home, that would conflict with property restitution for refugees. The third possible conflicting right addresses Israel’s prerogative as a state to use security and fear of socio-political disruption as a justification to avoid full or partial implementation of the right of return.

Each of these claims has, at least in the abstract, a plausible legal basis. However, it is not enough for Jews or Israelis to simply assert a right in a vacuum. In order to function as a conflicting right, they must show that their rights are actually irreconcilable with refugee return, and carry more weight than the right of return. Only some of the possible conflicting rights can plausibly pass this test.

The most frequently asserted Israeli conflicting right is the claim that Israel has a right to exist as a Jewish-dominated state and to resist Palestinian refugee return in order to maintain a Jewish majority. In the abstract, this claim draws support from the fact the League of Nations recognized Jews as a “people” in 1922, and modern human rights law entitles all “peoples” to selfdetermination. The problem is that self-determination is normally meant as a right of all of the people of a given territory to self-government. It is not a license to artificially change the demographic character of a country by either ethnic cleansing or prohibition of refugee return. The UN’s non-binding partition recommendation for Palestine in 1947 specifically prohibited such measures. In international law, self-determination is inclusive, not exclusive; so long as Jewish Israelis retain their equal citizenship in Israel, their right to self-determination cannot be threatened by non-Jews returning to homes in the same country. Self-determination in law is a foundation upon which to base other human rights; it cannot be used to negate other human rights.

A much stronger conflicting rights claim can be made by Israelis concerning property restitution for returning refugees. Since the end of the Cold War, there have been a number of cases of conflict resolution that involved property restitution for displaced and dispossessed people. In Guatemala, South Africa, and in the Balkans, one of the major challenges was to balance the rights of returning refugees against secondary occupants of their property, especially their rights to maintain legally acquired homes. International law mandates that restitution be the primary remedy for refugees who unjustly had their property confiscated by Israel. Yet, one of the chief challenges in negotiating a settlement to the Israeli-Palestinian conflict will be to safeguard the rights of Israeli secondary occupants. This conflicting right cannot negate the entire right or return for Palestinians; recent research indicates that most of the confiscated Palestinian refugee property in Israel remains sparsely populated today. However, the right of return does not necessarily mean the automatic displacement of all Israelis who today live on former refugee property.

Concerns about stability and security in the context of mass refugee return have a sound basis in law. Every state has a right to safeguard security and stability, and rights are sometimes legitimately compromised in the public interest. Yet, such concerns arise in nearly all refugee repatriations in post-conflict situations; they are not unique to Israel/Palestine. Stability and security concerns require carefully planning about how refugee repatriation is implemented, but they do not justify avoiding refugee return. Much of the disruption that could result would be the result of Israeli policies that illegally confiscated refugee property, and of communal tensions that have long fed the Israeli-Palestinian conflict. Such problems are very real, but it would be illogical to use them as justifications to continue the displacement of refugees and hence continue the conflict. Rather, as in other conflict resolution situations, these problems call for refugee return to be carefully planned and staged, and to go hand-in-hand with a broader program of reconciliation.

The general conclusion of the paper is that Israelis and Jews have a range of important interests that should be assessed and considered in deciding how to implement the right of return. International law does not support Zionist claims that Israel has a right to exclude Palestinian refugees simply because they are not Jewish. But international law does protect other important rights, especially the right of Israelis to remain in their homes. A dialogue about conflicting rights is therefore important for framing a rights-based case for Palestinian refugee return, and should be attractive for Israelis who want to remedy the injustice inflicting upon Palestinians without infringing on their own legitimate interests.

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