R. GAVISON, Y. ZILBERSHATS, N. GORE
07/05/2011
International law and UN resolutions regarding the Palestinian question do not confer on refugees and their descendants a right to return within the borders of Israel.
In August 2010, the position paper, “The Return of Palestinian Refugees to the State of Israel,” was published by the Metzilah Center for Zionist, Jewish, Liberal and Humanist Thought and presented to Prime Minister Binyamin Netanyahu, and to other decision-makers and academic experts. The paper examined all sources in international law dealing with questions of refugee return. It also reviewed the methods recognized throughout the world for dealing with refugee problems. nternational law does not obligate/recognize the legal right of Palestinian refugees to settle in Israeli territory. Such large-scale return was not standard at the time the problem emerged, and it is not used effectively today. While the issue of the refugees needs to be dealt with seriously, Israel should be careful not to recognize a right of return for refugees under international law, since this may be the basis for new legal obligations.
Arrangements and declarations must not include the recognition of a right of return, which may be later invoked as a right of individual refugees and their descendants, which may not be waived by their leaders.
While there should be an end to the suffering of the Palestinian refugees, large-scale return to Israel of a population so different from the Jewish population culturally and socially, and harboring memories of the “disaster” and claims that justice requires a full return, is not the right solution. It might not be best for the refugees, and it certainly is not the way to achieve regional stability.
Discussing this question within the human-rights discourse may well limit the ability to reach a viable agreement. Close examination of sources of international law supports the conclusion that it does not confer upon them a right to return to Israel, and that Israel is under no obligation to let them return.
THE PRIMARY resolution on which the Palestinians base their claim to a ‘right of return’ is General Assembly Resolution 194 (III) from 1948. A close examination of that resolution, as well as later ones, reveals that these resolutions do not grant Palestinian refugees the right of return to Israeli territory. This was true at the time the resolutions were adopted, and is certainly true now, more than 60 years later, when the number of refugees, together with their descendants, has increased approximately tenfold.
Another important international document on human rights on which the Palestinians rely, is the freedom-of-movement clause in the International Covenant on Civil and Political Rights from 1966. This document did not exist when the Palestinian refugee problem came into being, but in any event, a careful examination of it indicates that it also does not obligate Israel to allow the entrance of Palestinian refugees who were never Israeli citizens or residents.
International citizenship law, refugee law (as defined in the various refugee covenants), humanitarian law and international criminal law do not place any obligation on Israel to admit Palestinian refugees, or grant them citizenship.
In the absence of such an obligation, Israel may well refuse to admit a large number of refugees and their descendants, who may weaken the Jewish majority in Israel and its stable existence as a Jewish and democratic state (next to a Palestinian one). The same reasons might support a reluctance by Israel to open up massive immigration of Palestinians through family reunification. Implementing the “right” of return may well undermine any solution to the conflict that would permit the two peoples to live in two separate states in independence, peace and dignity. Experience indicates that it is extremely difficult to reintegrate populations divided by violent and extended conflict.
The same conclusion is reached by historic and comparative analysis. In reviewing a series of historic ethnic conflicts, we find that after an ethnic separation has actually taken place, an arrangement preserving the separation is frequently preferable to the reintegration of populations divided by violence. Thus, for instance, the Dayton Agreement, signed at the end of the Bosnian War – a war that led to a flood of refugees – stated that they had a right to return to their homeland. In practice, however, the actual return is hindered to this day by numerous obstacles, including ethnic animosity and severe incidents of violence.
International recognition that political resolution or management of conflicts is more effective than recognition of refugee return rights has been reinforced in a new ruling by the European Court of Human Rights. The court rejected claims of Greek refugees exiled from northern Cyprus in 1974 that they should be allowed to settle in their homes as a matter of human rights.
The fact that Palestinian refugees are treated the way they are stems solely from political considerations. There is complete legal justification for the Israeli position on this subject.
Ruth Gavison is an Israel Prize winner, a law professor and president of the Metzilah Center.
Yaffa Zilbershats is an authority on international and constitutional law and deputy president of Bar-Ilan University.
Nimra Goren-Amitai is a research scholar at Bar- ilan University.
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