The ravages of two world wars in the twentieth century laid the foundation to a new world order in intent, if not in fact. It has been realized that war will only bring destruction and suffering to the victor and vanquished alike. The motivation to create a new order based on law and justice came from the major European powers which have been embroiled in wars on their own territories. Force alone, even if still effective, it is now acknowledged, is not sufficient to build peace and stability, hence prosperity, for the strong warring nations. Force must be accompanied by laws arrived at by consensus. To be generally attained, that consensus must be based on justice. For justice is the ultimate equalizer.
It is no accident that the European and nascent American powers chose to take this route, for it is they, after World War II, who stand to avoid future loss of life and property and who hope to gain from the prosperity coming with peace.
The upgrading of the League of Nations to a more forceful United Nations in 1945 is a step in this direction. The inclusion of more nations from Asia and Africa in the UN was aimed to gain universality of the sought-after consensus. For fear that numbers of the numerous weak nations may outweigh the few strong nations, the Security Council, with its veto powers for the few, was created to ensure the dominance of the powerful and the acquiescence of the weak.
The mid-twentieth century was a watershed. Nazi and Fascist governments have been crushed. Great strides have been made in eliminating slavery, racial discrimination and segregation of the races.
Millions of people broke free of the evils imposed by man on man. By the end of the twentieth century, South Africa, the bastion of Apartheid, shed its discriminating principles.
Again, by the mid-twentieth century, international organisations in health, education, science, labour and other fields have been formed under the banner of the UN to serve all humanity.
It was a great promise for the future of the world, all the world that is, except Palestine. While the enslaved people in the world are enjoying their freedom, the opposite was happening in Palestine. The national majority of the inhabitants of Palestine, who lived there from time immemorial and have never left it en masse, suddenly found themselves in 1948 the victims of the largest planned ethnic cleansing operation in modern history. The Palestinian society has been destroyed in its homeland; the inhabitants of 530 towns and villages, representing 85% of the population of the occupied land in 1948 found themselves dispersed by expulsion, massacres and military assaults; their physical landscape destroyed, their culture and history erased, their identity and mere existence on their homeland denied.
Who did this? The latent settler European colonial movement which came from the very same European countries which now proclaimed the rule of law and justice. Soldiers, money, ideology and political clout have been extracted by Jewish Europeans from the old colonial powers and thrust themselves on a new part of Asia, while other European soldiers and colonial officers were leaving it.
It was an aberration of history. It was an anomaly in colonial history itself and a challenge to the very same elementary principles of justice for which the UN was created, not to speak of the geopolitical odds it had to overcome.
No wonder, therefore, that since Israel was created in 1948 on the soil of Palestine, wars never ceased, hundreds of thousands were killed, many more wounded and many millions in Palestine and neighbouring Arab countries became destitute. This is likely to continue unless and until the principles of justice, envisaged by the UN in 1945, are effectively applied.
Al Nakba (catastrophe, Palestinian holocaust) is a word, which entered the dictionary, like intifida (the uprising) and became ingrained in the Palestinian collective memory. Unlike other colonial settler movements, the Zionist colonial movement sought to eliminate the natives from their homeland, not by a gradual process of expansion, but by a predetermined and carefully executed plan.
As Nur Masalha explained, the plan for ethnic cleansing of the national majority of Palestine has always been an integral part of the Zionist settler movement. It has been discussed, debated, presented to European powers in one form or another, forcefully advocated by many Zionist leaders, rejected by few others, but it has always been on the Zionist agenda.
Herzl, the spiritual father of a state for the Jews, suggested plainly “spiriting the natives across the borders”.
The extremist Zionist leader, Vladimir Jabotinsky, who founded Revisionist Zionism, the forerunner of today’s Likud, advocated expelling the Arabs and building an ‘Iron Wall’ around the new Jewish state.
In November 1939, Jabotinsky wrote, There is no choice: the Arabs must make room for the Jews in Eretz Israel [Palestine]. If it was possible to transfer the Baltic peoples, it is also possible to move the Palestinian Arabs.
In the same spirit, Jabotinsky wrote:
We Jews, thank God, have nothing to do with the East…The Islamic soul must be broomed out of Eretz-Yisrael.
The racism and hatred for the Arabs pervades the writings of Weizmann, Ben Gurion, Katznelson, Tabenkin and Jabotinsky.
The Zionist leaders are fully aware of the consequences of their actions and have no illusions about the myth that Palestine was a land without people. A Zionist leader, Moshe Shertok, generally considered a moderate, told the Zionist Actions Committee in 1937 about the Arab reaction to creating a Jewish state on their land.
The Arab reaction would be negative because they would lose everything and gain almost nothing. In contrast to us they lose totally that part of Palestine which they consider to be an Arab country and are fighting to keep it as such. They would lose the richest part of Palestine; they would lose major Arab assets, the orange plantations, the commercial and industrial centres and the most important sources of revenue for their government. It would mean that they would be driven to the desert.
These candid words are not merely prophetic. They are the element of the plan that was carried out almost 10 years later. For, in the Nakba of 1948, this is precisely what the Zionist forces achieved.
Ben Gurion, with an eye to history, never willingly got himself on record advocating or ordering ethnic cleansing. He always gave orders through others or through implied instructions.
He wrote privately to his son in 1937,
We must expel the Arabs and take their places and if we have to use force–not to dispossess the Arabs (!) of the Negev and Transjordan, but to guarantee our own right to settle in these places–then we have force at our disposal. [Exclamation added]
Israeli historians have admitted in one way or another the basic tenet of ethnic cleansing which was carried out by implied consensus. Meron Benvenisti wrote four decades after the state was established by fire and blood and felt confident it is strong enough to say this, though couched in cautious language,
The expulsions carried out after the founding of the state, and without a doubt those effected after the middle of June , came dangerously close to fitting the definition of ethnic cleansing. Although not as severe as in the case of Bosnia, atrocities that could be defined as war crimes did occur. Not only was “an undesirable population expelled from a given territory due to religious or ethnic discrimination, political, strategic or ideological considerations or a combination of these”, but some of the Arabs were expelled not on military grounds but with the objective of taking over their homes and land expressly for the settlement of Jews. [Quotation marks in the original, emphasis added].
No Zionist leader has done more, in planning and carrying out systematic and sustained ethnic cleansing, than Joseph Weitz, director of the Jewish National Fund.
Weitz addressed the first Transfer (i.e. ethnic cleansing) Committee in November 1937 outlining the plan,
The Transfer of Arab population from the area of the Jewish state does not serve only one aim–to diminish the Arab population. It also serves a second, less important, aim which is to evacuate land presently held and cultivated by the Arabs.
He then went on to describe the steps required to do that region by region. The ultimate aim is to make Palestine conform to the myth, ‘Palestine is a land without people’–or to make Palestine Arabrein.
Weitz got his full chance to do that in 1948/1949. As early as Jan 1948, Weitz embarked on a plan to plant 1,500,000 Jewish settlers on the land soon to be evacuated by the Arabs. He stated openly, ‘No Arab village, Arab tribe shall remain’.
The highly trained Haganah soldiers outnumbering the Palestinians (65,000 to 2,500) swept through Palestine early April 1948 in accordance with Plan Dalet designed to destroy the Palestinian society and seize its land and property. Ben Gurion, by now in no need for diplomacy or double-talk, plainly stated when asked how Jews would get more land,
The war will give us the land. The concept of ours and not ours are peace concepts only and in war they lose their whole meaning.
Weitz got to work. He directed Haganah to follow an attack plan which gives priority to Arab lands coveted by the JNF. He started a campaign to destroy the depopulated villages. He established committees to record the plundered property and assets. New immigrants, not used to agriculture, were huddled in Arab villages, not destroyed yet, to establish their possession of property. The Palestinian farmers who ventured to return to their villages after their expulsion, in order to rescue an elderly relative who remained behind, water the remaining cattle and plants or to retrieve some valuables or papers from their homes, were shot on the spot as infiltrators who endangered the security of the nascent state.
By the middle of 1949, the part of Palestine that became Israel (78%) has been practically emptied of its population, its landscape destroyed and its name erased. All that was in fulfillment of the largest planned ethnic cleansing operation in modern history. Human Rights lay dead among the ruins
The Anatomy of Dispossession
Balfour Declaration was the last manifestation of European imperialism. In an unholy alliance between the British colonial power and the Zionist movement, Palestine was promised by Britain which does not own the country, to the Jews who do not have the title to it, without the knowledge or consent of the rightful owners, the national majority of the country.
The British Mandate government facilitated the establishment of the Jewish state within the first decade of its tenure. In this early period, the Jewish immigrants had a quasi-government (the Jewish Agency), a military-type army (the Haganah), a separate education system, recognized Hebrew language, a water resources company, a power generation company and a separate labour syndicate (Histadrut), a set of land laws partial to the Jewish settlement on the land and many other manifestation of a separate state. All Ben Gurion had to do was to announce the state in 1948.
The British bias in favour of the Jews resulted in an increase of the Jewish population from 56,000 in 1920 (9% of the population) to 600,000 in 1948 (30%). With natural increase, the Jews would not have increased to more than 85,000 by 1948, thus over 500,000 entered the country legally and illegally under the auspices of the British Mandate policy.
The Jews did not fare so well in land possession. In spite of favourable laws for close [Jewish] settlement of the land and purchases of large tracts of land from absent landowners paid generously by Jewish funds, the total land in recognized Jewish possession did not exceed 1,500,000 donum (donum = 1,000 m2) or 6% of Palestine.
Thus, there were over half million mobilized Jewish immigrants camped in 6% of Palestine ready to bounce on the national majority, three times as much, who were living in the rest of the country. That was the setting of the scene preceding the UN Partition Plan, designed to give legality both to Jewish state and the transfer of Arab land to Jewish sovereignty.
The Partition Plan, rammed through the UN by the threats and promises of the US, when Britain abandoned its obligation under the Mandate, paints the last picture of European imperialism. Here is a country divided without the consent of its people by the newly-formed UN, through the still pervasive influence of colonial powers.
The Partition Plan was a mockery of justice. Here is a country as Arab as Syria or Egypt finds itself under the gaze of a foreign delegation sent to partition their country between the inhabitants of the country and the new Jewish immigrants imported under the umbrella of the British imperial power.
To its dismay, the delegation found the country had 1,111 Palestinian villages and 172 small Jewish settlements, more like farms. The delegation returned to the United Nations and proposed the partition of the country to Jewish and Palestinian states. After little modification and lots of threats and coercion, Resolution-181 of 29 November 1947 was barely passed. It dismembered the country instead of creating new life in it.
The Jewish state was allocated 55.6% of Palestine, although the Jewish settlements never possessed, not to say owned, more than 5.5% of the country. Half of the inhabitants in the would-be Jewish state were Palestinians who suddenly found themselves under foreign domination. They lived in 470 towns and villages while the new Jewish masters lived in 159 small Jewish settlements.
The Palestinians were allocated 43.7% of Palestine for their state. They lived in 622 towns and villages. There was a tiny majority of Jews (about 9,000) living in 12 settlements within the boundaries of the state.
This leaves 0.7% of Palestine for greater Jerusalem, in addition to 18 Palestinian villages and one Jewish settlement, which was to be corpus separatum.
Neither the UN Partition Resolution, nor any principle of international law, which affirms the principle of self-determination, gives the UN, any colonial power or state, the mandate to grant a territory to a foreign party without the consent of the natural inhabitants of the country. That consent was not given. On the contrary, the self-imposed undertaking of the colonial powers have been violated. In 1919, Palestine was placed under Mandate A, which recognizes the people’s right to independence. The Mandate government function was to build institutions and prepare the people for self-government. Instead, the British government allowed foreign immigrants to build their institutions while stifling the people’s right to do the same. When the immigrant community became strong enough, Britain abandoned the whole enterprise. Hence the Partition Plan.
The Zionists seized the opportunity upon the imminent departure of the British and invaded the rest of Palestine in April 1948. Their forces over-ran and depopulated 213 villages and expelled half the refugees in 1948 War while Palestine was under the protection of the British Mandate government and before any Arab soldier could set foot on Palestine soil to rescue the remaining population.
In the following 6 months after the end of the Mandate and the declaration of the state of Israel, the Zionist forces swept over Palestine and depopulated a total of 531 primary towns and villages and 662 hamlets. About 900,000 Palestinians became refugees. They and their descendants are still refugees today. Instead of the allocated 55.6% of Palestine, the Zionists, now called Israelis, occupied by force of arms 78% of Palestine.
Contrary to the Israeli myths, the refugee did not leave voluntarily. By examination of the exodus of each village, studies have shown that 89% of villages were depopulated because of a variety of Israeli military actions: expulsion, assault or village occupation, 10% due to psychological warfare (the whispering campaign). Only 1% of villages left on their own volition.
The part of Palestine that became Israel has been emptied of its population, save for 15% who remained under brutal military rule for 16 years, effectively as war prisoners. The state of Israel was declared on a land of which it possessed only 8% during the British Mandate, the remaining 92% is Palestinian. The movable and immovable property of the Palestinians was confiscated under a series of pseudo-legal regulations and laws. This huge conquered real estate was made available to imported Jewish immigrants while the lawful owners of the land are denied the right to return. It was indeed the largest planned and fully executed ethnic cleansing operation in modern history. Neither the victor enjoyed his pillage, nor the vanquished resigned to his loss.
No hostile action taken against the native population of Palestine in the twentieth century is legal or conforming to the generally accepted norms of international law. The preceding historical narrative was intended to illustrate this unique state of affairs.
The Balfour Declaration has no legal validity; it was simply a plan between two conniving parties to deliver a territory they do not own to one of them.The implementation of the Mandate, on its face value, caused a great deal of harm to the interest of the Palestinians and laid the foundations for creating the state of Israel. The continuation of the British policy and the brutal oppression of their resistance to illegal immigration in the years 1936-1939 contributed a great deal to the rapid destruction of the Palestinian society in 1948.
But it was in 1948/1949 that the human rights in Palestine have been widely violated by the Israelis. It was also in this period, that the UN, 3 years after its formation, built up both the legal formulation and public awareness of human rights.
While most human rights violations in Palestine are a matter of history, restituted only by recognition and material and immaterial compensation, the Right of Return remains the most important human right yet to be implemented.
The expulsion of the Palestinians from their homes in 1948 was the root cause of the instability in the area. Hardly any event in the Palestinian/Israeli conflict in the last half a century, from toppling regimes, assassination of leaders to wars, land, sea and air Israeli raids, was not influenced one way or another by the plight of the refugees. Hence, their return to their homes remains the only solution to the conflict.
The first public figure to make this observation was Count Folke Bernadotte, the United Nations Mediator for Palestine. He noted in his Progress Report of 16 September 1948, under the heading: the Right of Repatriation, that:
The right of innocent people, uprooted from their homes by the present terror and ravages of war, to return to their homes, should be affirmed and made effective, with assurance of adequate compensation for the property of those who may choose not to return.
He went on to say in the same Report,
It would be an offence against the principles of elemental justice if these innocent victims of the conflict were denied the right of return to their homes, while Jewish immigrants flow into Palestine, and, indeed, at least offer the threat of permanent replacement of the Arab refugees who had been rooted in the land for centuries.
On the next day, on 17 September 1948, Bernadotte was shot dead in Jerusalem by Jewish terrorists. One of the killers, Itzhak Shamir, rose to the position of the Prime Minister of Israel.
Bernadotte asked the UN to affirm the Right of Return, not to invent it. His last Report embodied a recommendation, his last political will, that became the core of the famous UN Resolution-194, passed on the General Assembly on 11 December 1948. Paragraph 11 states,
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 for the property of those choosing not to return and for the loss of or damage to property, which under principles of international law or in equity, shall be made good by the Governments or authorities responsible.
Several observations may be made on the text of the resolution. First, it gave the refugees the option to exercise their Right of Return. It is not up to Israel to allow them to return, or to Arab countries to stop them, if ever that was their wish. The Right of Return is taken for granted and the holders of the Right may exercise it all will and with no hindrance.
Second, the return is to the homes and lands from which they were expelled, not to any other part of Palestine which may be called a homeland. The return to the original homes is clearly emphasised in the Explanatory Memorandum of Resolution-194. It was also stated beyond doubt in Bernadotte’s last Report as follows:
The right of the Arab refugees to return to their homes in Jewish-controlled territory at the earliest possible date should be affirmed by the United Nations... [emphasis added]
Naturally, it is assumed that, to return to their homes in Jewish-controlled territory, the refugees are expected ‘to live at peace with their [Jewish] neighbours’. This is to eliminate Israel’s contention that the return would initiate a civil war within Israel itself.
Third, the return is to be effected ‘at the earliest possible date’ in Bernadotte words, changed by the UN to ‘the earliest practicable date’. As the resolution was passed in December 1948, when the Israeli attacks and the Arab counter-attacks were in progress, it was considered advisable to effect the return when the hostilities ceased. Armistice Agreements were signed between Israel and Egypt, then Lebanon, Jordan, and last Syria in the period from February to July 1949. After the latter date there is no reason to obstruct the return. Thus Israel is obligated to allow the refugees repatriation from at least July 1949. Failing this, Israel shall be responsible for the consequential losses and damages from that date till today.
The resolution calls on the Governments or authorities responsible to make good damages, i.e. to restore property to its original condition or if not possible to pay the cost of replacement value. The parties responsible include the Provisional Government of Israel at the time and the consecutive successor governments, the Jewish Agency, the Haganah, the Irgun and Stern gangs, renamed Israel’s Defence Army, the Jewish National Fund and other parties in Israel and abroad which contributed to the losses and damages, or benefited from the occupation, use or exploitation of property.
It is clear that refugees are entitled to both the return and compensation. Compensation for those returning is for their losses and damages since July 1948. Those not returning should be compensated for the same in addition to a fair value of the forfeited property.
Resolution-194 also created the mechanism for implementing it; that is the Conciliation Commission for Palestine (CCP) which is required to facilitate the repatriation of the refugees wishing to return and resettlement of those who do not, and for both the economic and social rehabilitation of [all] the refugees. In addition, CCP is entrusted with the process of the payment of compensation. Until the refugees settle down in their homes, and elsewhere for the minority who do not wish to return, Resolution-194 calls for providing assistance to refugees–food, education and health until they are fully rehabilitated.
It is a comprehensive and fully constructed resolution. It has all the elements for a fully integrated solution. It is a cornerstone in the Palestine/Israeli conflict. No wonder that the UN affirmed Resolution-194 about 130 times since it was passed on 11 December 1948. Thus many jurists maintain that this affirmation, which represents the sustained and universal will of the international community, elevates this resolution from a mere recommendation to an obligation.
Universal Declaration of Human Rights (UDHR)
On the day before Resolution-194 was passed, the UN witnessed a day which summed up the experience and lessons learnt after the devastation of two world wars. On 10 December 1948, the UN embraced the Universal Declaration of Human Rights. Thus Resolution-194 is affirmed as an application of international law whose main rules are laid out in UDHR.
The Right of Return was provided for in Article-13 paragraph-2 which states Everyone has the right to leave any country, including his own and to return to his country. It is a simple and basic statement, affirmed by ordinary norms of justice and accepted in writing by some nations as long ago as the year 1215 when the Magna Carta in its article 42 was signed and sealed in the meadows of Windsor.
Some Israeli scholars throw doubt on the applicability of UDHR’s Article-13 to the Palestinian refugees, as to the meaning of everyone and country. In the words of the noted UN jurist, Mallison, on the Palestinian Question:
Unless the right of return is interpreted with appropriate breadth, it would require no more than a legalistic trick to expel certain inhabitants and then to deny them return on the false grounds that they are not nationals of the expelling state.
All the subsequent international and regional conventions echoed the same emphasis of the right of return. For example, the International Covenant on Civil and Political Rights, approved by the UN General Assembly on 16 December 1966, has this to say in Article-21 paragraph-4:
No one shall be arbitrarily deprived of the right to enter his own country.
The complications or traps which may be created by the words national and state have been removed. As Lawand eloquently explained, one’s country means the country which is one’s natural abode and to which one has demonstrable connections through family, physical means or extended and accepted presence. If an invading power expel the population, denationalize them, import its own people and grant them its newly defined nationality, this action does not sever the natural inhabitants’ connection with their country or diminish their rights in it.
No international law, UN resolution or Treaty-Based Convention or Committee negates the right of return. In its application to the Palestinian refugees, the UN has been consistent. Its most clear manifestation appear in resolution 3236 of 22 November 1974. In its operative paragraph 1, it refers to the national inalienable rights of the Palestinian people. Operative paragraph 2 states that the General Assembly reaffirms also the inalienable rights of the Palestinians to return to their homes and property from which they have been displaced and uprooted and calls for their return.
As Mallison noted, this resolution identifies the Right of Return for the Palestinians as inalienable, meaning it cannot be surrendered or terminated and it has unusual strength and permanence as compared with other rights. Mallison also notes that this has no geographical limitation except to the homes and property from where the refugees were displaced, whether the return is to Israel as defined by the Partition Plan or as it existed de facto prior to June 1967.
Two meanings are derived from the word displaced. First, it does not specify why the refugees left, whether by expulsion, coercion or for any other reason. Second, it does not specify when they left. Thus, the refugees displaced from their original and natural homes in 1948 or, after 1967, in the West Bank and Gaza are also entitled to their Right of Return.
The right of return of an individual to his home rests on a bedrock of international law. It is protected both in times of peace and war. In the latter case, the four Geneva Conventions of 1949 protect war victims. Article-49(1) of the Geneva Civilians Conventions of 1949 prohibits the displacement of people. It states:
Individual or mass forcible transfers as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.
This is what Israel did in 1948, 1967 and after. This is how 92% of Israel’s area was emptied of the natural inhabitants of the land. The prohibition of mass displacement implies that this illegal act should be reversed by the implementation of the right of return.
The previous discussion focussed on the individual Right of Return. The unique position of the Palestinians recognized by the UN make this right different from other cases. For one, the UN Partition Plan was the basis of Israel’s Declaration of Independence. Israel’s membership in the UN is unique in the history of the UN in that its membership is conditional upon accepting the Partition Plan (Resolution-181) which calls for a Palestinian state as well and the return of the refugees according to Resolution-194. Palestinians became unique wardens of the UN. The big powers accepted this responsibility, not for the sake of the Palestinians but to relieve Israel from the burdens of its guilt which created the refugee problem and to provide it with the support it needs to stay planted in the area.
This is one reason why the Palestinian refugees were excluded from the mandate of the UN High Commission for Refugees (UNHCR). According to article 1D, Palestinian refugees are excluded to distinguish them from the normal victims of civil war or natural disasters who only seek assistance to settle elsewhere.
Thus, the UN has always treated the Palestinians as a people, the rights of the individual not withstanding. This is not only consistent with the League of Nations Mandate for Palestine, but with the unique consideration granted by the UN to the Palestinians, culminating in the explicit application of the right of Self-Determination to the people of Palestine, according to resolutions 2649 (XXV), 2672 (XXV), 3089D (XXVIII) and 3236 (XXIX) and subsequent ones.
Mallison illuminated this concept by noting that Resolution-3089D of 7 December 1973, for example, combined the right of return with the right of self-determination. The third operative paragraph states,
Declares that full respect for and realization of the inalienable rights of the people of Palestine, particularly its right to self-determination, are indispensable for the establishment of a just and lasting peace in the Middle East and that the enjoyment by the Palestine Arab refugees of their right to return to their homes and property…is indispensable…for the exercise by the people of Palestine of its right to self-determination.
Restitution of Property
The Right of Return for the Palestinians is also derived from the sanctity of private ownership which cannot be diminished by the passage of time, occupation, change of sovereignty or a treaty.
The Jewish immigrants during the British Mandate gained possession of 1,491,699 dunum (dunum = 1,000 m2), 6% out of 26,323,000 d., the area of Palestine, or 7% out of 20,255,000 d., Israel’s area. The rest is Palestinian land, ethnically cleansed. The UN CCP has 453,000 individual owners’ property records. Although not complete (parts of Jerusalem, Ramleh and all of Beer Sheba districts are missing), they present a concrete proof of the Palestinians’ right of restitution of their property. Al Nakba severed the geography of Palestine taken over by the Israeli invasion, from its history carried with the refugees in their exile. The Right of Return unites both the geography and history of Palestine.
The return to and restitution of property has a solid basis in international law. Moreover, the mechanism for restituting the property lost or confiscated in conflicts is now sufficiently established and successfully tried in some cases.
The best example so far has been in Bosnia. With the enforcement of UN resolutions by major powers, it was possible to put international law into effect. The UN carried out its mandate by repealing the discriminatory laws against the returning refugees, creating the machinery for locating and identifying the owners of the property, firing of old-guard local officials who are reluctant to enforce restitution and finding creative ways to deal with second (current) occupants. Obviously there were many hurdles in logistics but the principle of restitution was upheld.
The force of law enforcement was embedded in Annex-7 of the Dayton Peace Agreement, which was, in the words of Paul Prettitore, Legal Advisor in the Organization for Security and Cooperation in Europe (OSCE), ‘perhaps the most comprehensive plan for the return of the refugees and displaced persons and restitution of property’.
Another case worthy of consideration is Cyprus. The UN has created ‘the most detailed and, many believe, most fair, balanced and realistic peace plan ever produced for Cyprus’. The purpose is to allow the departing ethnic groups: Greek-Cypriot and Turkish-Cypriots to return to their homes in the opposite side following the partition of the island. The UN plan, put by the General Secretary of the UN in February 2003, calls for the restitution of property, setting up a Claim Board and a scheme for reinstatement, long term leases and compensation.
The key international instrument here is the European Convention of Human Rights, to which both Cyprus and Turkey are signatories. Article-1 of Protocol-1 states,
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
Here, the celebrated case of the Greek-Cypriot lady, Loizidou, who won her case before the European Human Rights court of returning to, and receiving compensation for not enjoying, her (second) home in Turkish-Cyprus comes as a shining example of applying international law.
Then, there is the case of South Africa, after being freed from the clutches of Apartheid. A system has been created to return property to (black) communities which have been deprived of their collective property for over 100 years. Because of the imprecise individual ownership over such a long time, a system was created based on: time of occupation, birthright ownership, investment made and dispossession loss.
The cases of Rwanda, Afghanistan and East Timor have also been treated on the basis of the right of restitution to original owners.
What distinguishes Palestine case, the only unresolved case, of all other cases in the world?
First, it has the most solid international support in the UN history. No other case has received more sustained and continuous support.
Second, it is the most documented case. There are thousands of maps and property documents kept at the UN and at Israel Land Administration (ILA). Cyprus has fewer records, Bosnia even more so, South Africa has very general records and only communal claims.
Third, it is the easiest to apply. In all other cases, there are thousands of individual claimants competing against each other which would keep courts busy for years. In Palestine, there is not a single Jewish holder of the title to a Palestinian property. A single Israeli authority (ILA) administers all Palestinian property and leases it to Jewish groups. With a single contract between ILA and an equivalent Palestinian authority, the confiscated property can be returned to its owners.
Fourth, in all other cases, the political will has been vital to enforce international law. The weight of the major powers has been made to bear in favour of enforcement. In the case of Palestine, Israel defies international law and the US supports it unconditionally in all ways possible including casting a veto vote against implementation of UN resolutions.
The Position of the Civil Society
The last decade witnessed greater awareness in the world of the importance of upholding human rights in every aspect of life and in every country of the world. Thousands of non-governmental organizations (NGOs) mushroomed everywhere. Upholding justice, abolishing racist policies and improving the quality of life became no longer the sole domain of states and governments. The people of the world has a say in it as well. Durban Conference in September 2001 was a perfect demonstration of the power of ordinary people. Such force has been greatly augmented by efficient communications, particularly through the internet. News travel fast, censorship on news becomes less effective, meetings and demonstrations can be arranged through the internet, thousands of petitions and letters could be sent in a matter of hours supporting a cause or opposing an action.
The Right of Return for the Palestinians was a primary beneficiary of these developments. The black-out on the news of the Palestinians suffering, for fear of anti-Semitism accusation or because of writers’ racial prejudices or ignorance, has been penetrated successfully, albeit by interested special groups.
For the Palestinian refugees themselves, scattered in exile, the improved communications brought them together. The children of the survivors of Sabra and Shatila massacres in Beirut could now communicate with the children of Deir Yassin or Dawayima survivors in Deheisha and Aida camps near Bethlehem. Palestinian societies advocating the Right of Return sprang up in about 200 localities from Rafah to San Francisco.
No less important are human rights organizations which regularly assail Israel’s racist policies. Organizations like Amnesty International, Human Rights Watch, Red Cross, Centre for Economic and Social Rights and others defending the rights of children, women and prisoners, protecting civilians from collective punishment, house demolition, starvation and closures, or upholding the principles of law, all have the moral power to speak on and to expose violations of human rights and to defend the victims of these violations.
Almost all the major NGOs have been on the side of the Right of Return for the Palestinian refugees. That was indeed a sign of courage and the strength of their conviction, taking into consideration the attacks, loss of funds and vilification these NGOs are subject to, when they speak their mind.
Here are a few examples. Human Rights Watch (HRW) has long defended the right of refugees and exiles to return to their homes. It has upheld this right both when international borders were settled–Guatemala, El Salvador, Honduras, Malawi, Burma, Mauritania–and when they were in dispute–Bosnia, Croatia, Kosovo, East Timor, Ethiopia/Eritrea. Human Rights Watch similarly urges that this right be recognized for all displaced people in the Middle East, regardless of religion or nationality. HRW takes the position that, in the case of the Middle East peace agreement being negotiated, the agreement should recognize this right for Palestinian refugees and exiles from territory located in what is now Israel.
Amnesty International has a clear position on Israel’s racist policies which, among many evils committed against the Palestinian, has led to Israel’s denial of the right of refugees to return to their homes. Amnesty states that,
In Israel for example, several laws are explicitly discriminatory. These can be traced back to Israel’s foundation in 1948 which, driven primarily by the racist genocide suffered by Jews in Europe during the Second World War, was based on the notion of a Jewish state for Jewish people. Some of Israel’s laws reflect this principle and as a result discriminate against non-Jews, particularly Palestinians who had lived on the lands for generations. Various areas of Israeli law discriminate against Palestinians. The Law of Return for instance provides automatic Israeli citizenship for Jewish immigrants, whereas Palestinian refugees who were born and raised in what is now Israel are denied even the right to return home. Other statutes explicitly grant preferential treatment to Jewish citizens in areas such as education, public housing, health and employment.
The Apartheid regime in Israel against the Palestinians is also criticized by some Israelis.
Amnesty adopts the position of the Treaty-Based UN Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights (ICCPR) on the meaning of the phrase own country, which clarifies who is entitled to exercise the right of return. This position agrees with the interpretation of Mallison and Lawand and contradicts that of Lapidoth. The Committee asserts that the right applies even in relation to disputed territories, or territories that have changed hands. In General Comment 27 (1999, paragraph 20), The Human Rights Committee determined:
The scope of his own country is broader than the concept country of his nationality. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them.
There is no doubt that the majority of the civil society in the world, represented by thousands of NGOs, who speak for the conscience of the world, support the Palestinian rights, including the Right of Return.
The Obstacles to the Right of Return
With such massive legal, historical and world-wide body of support for the Right of Return, how come it has not been implemented yet? Why has it taken place in Bosnia, Kosova, East Timor, Guatemala, Rwanda but not in Palestine?
First and foremost, the US Administration gives Israel all possible support to enable it to defy international law and remain outside the reach of justice. The US supplies Israel with the latest, most fatal modern war machinery equipped with the most advanced high technology (hardly necessary in the face of refugees in camps). The US provided Israel with over $130 billion since its creation on the soil of Palestine, part of which was used to finance the occupation of the West Bank and Gaza. The US granted Israel many trade and science concessions, including joint programs in Weapons of Mass Destruction. The US protected Israel from international condemnation for its continued violation of Human Rights, by casting 3 dozen vetoes against the Security Council decisions. The US appears to lack independent will when it comes to Israel. The US decisions are neither dictated by international law, nor necessarily by the national interest of the American people, but by the strong Jewish lobby which has an immeasurable hold on the Congress.
Second, what is the Israeli declared excuse for not allowing the rightful owners to return to their homes?
It is often claimed that there is no room in Israel for the refugees’ return. Even if this were true, it would not diminish the fundamental right of return. In fact, this contention is false. Previous studies on the subject can be summarized as follows:
It is possible to divide Israel’s forty-six natural regions into 3 groups:
Group-A, with an area of 1,628 square kilometres, has a Jewish population of just over 3 million (67 percent of Israel’s total Jewish population). This area is, roughly, the land acquired by Jews during the period of the British Mandate. Most Jewish settlement after the creation of the state centred around this earlier domicile.
Group-B, 1,508 square kilometres in area, which is almost the same size but not the same location of the land owned by the Palestinians who remained in Israel after the 1948 war. (Since 1948, Israel has confiscated two-thirds of the property of its Palestinian citizens). In group B, there are 436,000 Jews, or 9.6 percent of all the Jews in Israel, along with 92,000 of Israel’s Palestinian citizens.
Thus, 77 percent of Jews live in 15 percent of Israel’s area. That leaves group C, which amounts to 17,381 square kilometres in area, located in two large blocks, corresponding roughly to the Northern and Southern Districts as per Palestine and Israel’s administrative divisions. This is the land and heritage of about 5 million refugees who were expelled from their homes in 1948 and their descendants.
About one million Jews live in Group-C, but 80 percent of them live either in cities that were originally Palestinian and are now mixed, or in a number of small new development towns. These development towns, heavily populated by Sephardic Jews, or Mizrahi, (and more recently Russians) are generally impoverished, with the highest unemployment rates and the lowest annual incomes in Israel; they are living proof of the country’s ethnic segregation and discriminatory policies.
This leaves 200,000 rural Jews who exploit vast areas of refugee land (with the remainder of the land used for military purposes and afforestation). Most of these rural Jews (160,000) are residents of the moshavim (cooperative farms) and kibbutzim (collective farms). The kibbutz, which used to be the flagship of Zionism, is now dying out. Today only 8,600 kibbutzniks live on agriculture, assisted by tens of thousands of hired labourers from Thailand, an ironic subversion of Zionist doctrine, which prohibits the employment of non-Jewish (especially Palestinian) labour.
Thus, the rights of 5 million refugees are pitted against the prejudices of 8,600 kibbutzniks.
To illustrate the point further, consider this scenario: When the registered refugees in Lebanon (362,000) return to their homes in Galilee (still largely Arab) and the registered refugees in Gaza (759,000) return to their homes in the Southern District (now largely empty; rural Jewish density is 6 persons per square kilometre, compared with 5,500 persons per square kilometre in Gaza), there will be negligible effect on Jewish density in group A, and Jews will retain numerical majority in A, B, and C.
The number of Russian immigrants brought to Israel in the nineties is equal to the number of refugees from Lebanon and Gaza combined. If the Russians had not immigrated and these one million refugees had been allowed to return home, they would be accommodated easily and Israel would maintain its present density. Instead, foreign immigrants were admitted to Israel while the rightful owners of the land have not been allowed to return to their homes.
Thus the myth of lack of space could be laid to rest.
There is ample proof that the inheritor of the refugees’ land, the kibbutz, is dying out. The refugees’ land, it will be recalled, have been illegally confiscated in the largest real estate robbery in the twentieth century. Until recently this land was officially held by Israel Land Administration (ILA) and leased to the kibbutzim and moshavim. In the early 1990s Ariel Sharon, as Minister of Infrastructure, and Raphael Eitan, as Minister of Agriculture, introduced regulations permitting the rezoning of this agricultural land to residential construction to accommodate Russian immigrants and to build commercial outlets, shopping malls and private apartments. The kibbutzniks would then be compensated for this transaction at 51 percent of its value, later reduced to 20-25%. This made the bankrupt farmers very rich overnight by allowing them to pocket the value of (Palestinian) land they never owned in the first place.
In 1997, ILA started to sell refugees’ land. The proceeds for such sales added to the coffers of the treasury about $1 billion a year, excluding compensation to the kibbutzniks.
Sharon, who expropriated for himself a farm of several thousand dunums near Iraq Al Manshiya (Qiryat Gat), said:
The only way to absorb the immigrants was by taking land from the kibbutz... I knew the (economic) hardship they are experiencing… it is better they build on the land and sell houses.
No Israeli voice was raised to stop this looting of the refugees’ land except the impoverished Sephardic community, who did not share in the extravagant benefits showered on the kibbutzim. The Sephardim formed a group, Hakeshet Hamizrahit, which petitioned the High Court against sale of kibbutz land, stating that
The land in question was largely expropriated from Palestinians and thus transferring property rights to the inhabitants of the rural communities means negating forever the Palestinian refugees’ right of return.
Thus, the end of the historical conflict by the return of the refugees is sacrificed for the sake of a dying elite and a bankrupt movement, abandoned by the Israelis themselves.
A claim often tooted by Israel’s supporters, that the return of the refugees to their homes would tarnish the purity of the Jewish character of the state. But what is the meaning of Jewish character? Does it mean legal character, demographic, social or religious? If this means policies that deny the return of refugees and allow unlimited number of Jewish immigrants in their place, these policies are best described by the noted jurists Thomas and Sally Mallison, who pointed out:
The term, the Jewish character, is really a euphemism for the Zionist discriminatory statutes of the State of Israel which violate the human rights provisions of the Partition Resolution… The United Nations is under no more of a legal obligation to maintain Zionism in Israel than it is to maintain apartheid in the Republic of South Africa.
The US State Department rejected any special meaning for the Jewish citizens of Israel by stating that:
It does not recognize the legal-political relationship based on the religious identification of American citizens… Accordingly it should be clear that the Department of State does not regard the ‘Jewish people’ concept as a concept of international law.
This is not an isolated view. In 1998 the UN Treaty-based Committee on Economic, Social and Cultural Rights said that Israel’s
excessive emphasis upon the State as a ‘Jewish State’ encourages discrimination and accords a second-class status to its non-Jewish citizens… The Committee notes with grave concern that the Status Law of 1952 authorizes the World Zionist Organization/Jewish Agency and its subsidiaries including the Jewish National Fund to control most of the land in Israel, since these institutions are chartered to benefit Jews exclusively… The Committee takes the view that large-scale and systematic confiscation of Palestinian land and property by the State and transfer of that property to these agencies constitute an institutionalized form of discrimination because these agencies by definition would deny the use of these properties by non-Jews.
Israelis may understand the Jewish character as a society in which Jews are a numerical majority. But in what territory? In the whole of British Mandatory Palestine? Today, 47 percent of the population of Palestine are (non-Jewish) Arabs and 53 percent Jews. In fact, the percentage would be reversed if we take account of the fact that 62 percent of the Russian immigrants are not really Jews.
Israel depends on Jewish immigration to complete its cycle of ethnic cleansing and getting rid of all Palestinians in historic Palestine. Luckily, this evil scheme is doomed to failure. Jewish immigration is bound to dry up soon.
Taking the most and least optimistic forecasts of Jewish immigration (1,700,000 and 800,000 respectively), it becomes apparent that there is an upper limit for immigration which may be reached before 2020. The natural inhabitants of Palestine will one day overtake the number of the Jews. Will Israel then commit a genocide of the Palestinians to maintain the purity of Israel?
The fallacy of Israeli arguments, aiming to maintain Jewish majority, is abundantly clear. Either the time within which this majority can be maintained shrinks or the territory in which this be maintained shrinks. A better solution for Jews, indeed for all people, is to live with the people of the land, not instead of them.
The most incredible notion is the claim that the Jewish character means a socially homogeneous society in which Jews speak one language, dress and behave similarly, and uphold the same values, such that the presence of the original national group as the Palestinians would pollute this uniformity. It is hard to imagine that very many Israelis really believe this. There are no dominant common features between the Russians and Moroccans, the Mizrahi and Ashkenazi or the Haredim and the secular. There are eighty-two spoken languages in Israel and about two dozen political groups with an equivalent number of newspapers for a Jewish population a little larger than Los Angeles. The problem of their fractured society is a serious one, and it is already causing internal conflict in Israel, now tenuously held together by the drummed-up Arab danger. Considerable research has already been devoted to this question. The return of Palestinians to their ancestral homes would not substantially exacerbate these problems.
If the Jewish character refers to religious practice, this has rarely been a problem in the Arab and Islamic world. Historians have demonstrated that the treatment of Jewish minorities in Islamic and Arab societies has been far better than that by Christian societies.
Thus there is no ethical, geographical, or legal justification for the maintenance of a Jewish character that denies human rights or violates international law. The real reason for Israel’s racist practices is to maintain its hold on Palestinian land and keep it as a reserve for future Jewish immigration.
The twenty-first century will no doubt see positive developments in the pursuit and implementation of human rights. Effective communications around the world are a major factor in the greater visibility and effectiveness of human rights activists.
The conscience of the world has gathered momentum of its own. Although many people have their own particular grievances, most agree on common principles of elementary justice. For the basic freedom of human beings, the well-being of the earth, our common home and the clean environment in which we live, are all common objectives of mankind.
True, Apartheid, racist policies, occupation and oppression of powerless people still exist. But it is often exposed, criticized, demonstrated against and possibly condemned in some free parliaments.
In this regard, the power of the media should not be underestimated. The media is still on the side of the powerful. It joins the war of oppressors by spreading truncated facts and demonising its enemy. It uses a language of its own, which appears to the average person a factual and neutral description of events. But it in fact recruits the uninitiated to its camp. The opposite view is rarely given a chance to express itself in a similar environment. The result is a trial in absentia of the unsuspecting victim by the judge and adversary who are one. The persistent and brutal violation by Israel of human rights, and of every article in UDHR, as one NGO eloquently listed, is a case in point.
For over 55 years, Israel broke every rule in the book, defied almost every UN resolution. Yet it remains unscathed. It has not been subject to any physical sanctions. It has been protected by the US in all spheres. Israel therefore has no compelling reason to change its ways. As the previous sections describe, the UN and its committees have repeatedly condemned Israel’s violation of international law. So did most human rights NGOs around the world.
In spite of their suffering, the Palestinians remain steadfast in their struggle for their human rights. In spite of unimaginable odds, none has raised the white flag to surrender.
Here we have a stalemate. Israel and the US power on one side. The international law, the world’s conscience and the Palestinians on the other.
Where do we go from here? Conceivably, Israel backed by US can continue to occupy land, oppress people, demolish homes, uproot trees and besiege towns, probably for another ten, maybe twenty years.
Meanwhile, the Palestinians grow in number and the fourth generation of refugees will start a new kind of struggle, just as the third generation ignited the first intifada, the second formed the fedayeen and the first endured al Nakba.
The Palestinians today are about half the entire population in historic Palestine. How long can Israel continue to oppress them? Take the case of the refugees who are denied the right to return home. Half of them are within 40 km from their homes, a mere bus ride. Ninety seven percent of refugees are within 100 km of their homes, according to UN records. How could it be possible to deny them access to their homes? And for how long?
Jewish immigrants are imported from their homelands thousands of miles away to prevent the return of the refugees. Yet, as explained above, the refugees’ land is still effectively empty, save for the kibbutz population (2% of Israelis) and for a dozen repopulated Palestinian cities. Many myths have been created by Israelis. Such myths cannot stand the scrutiny of a serious study.
Very few Israelis saw the light. Meron Benvenisti and Haim Hanegbi wrote two separate but simultaneous articles in Ha’aretz recently in which they declared, in effect, the demise of the Zionist project and the notion of the Jewish character of the state.
Still much blood, mostly Palestinian, will be spilt before the majority of Israelis see this light. It could take a sudden major shock or a gradual and painful process of attrition for the Israelis to realize the errors of their ways.
In either case, the Israelis are in a great need to shake themselves of their collective amnesia in which Palestinians, their dispossession, their agony and their human rights are erased.
Jewish history from now on will not be shaped, as it did before, by the fate of Jesus Christ according to the Bible and by the atrocities in Europe by Europeans. It will be, generations from now, painted by their persistent, careful and meticulous destruction of the Palestinian society.
At the end of the day, this endeavor, of eliminating the Palestinians, will not fully succeed. There are geopolitical odds against its continuation. The unbiased free world opinion is against it, as well. What is the way out?
The only sane solution after half a century of wars and Palestinian suffering is to uphold international law. Respecting Human Rights is the only way to a life of stability and prosperity in the Middle East. As history teaches us repeatedly, those who live by the sword die by the sword. No regime however strong can maintain its hold on peoples’ lives by the sword forever. Human Rights, principles of justice and decent values of humanity must be applied. On top of all these rights comes the Right of Return of Palestinians to their homes, the most humane and basic right of any man.