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The Loopholes in 194
When Claiming the right of return, the Arabs consistently wave UN
General Assembly Resolution 194 of December 1948 as their banner.
The major issues: "Who is a refugee? What are refugees
entitled to? Where may they return to and under what
conditions?" require clarification before the true meaning
of 194 is defined.
Let's hear what international jurists have to say
Ruth Lapidoth is Professor of International Law at the
Hebrew University of Jerusalem, and a member of the
Permanent Court of Arbitration in The Hague. She was also a
fellow at the US Institute of Peace in 1990-1991.
"Certainly many of those who fled their homes during
the 1948 war are refugees. But the greater Palestinian
refugee problem must be viewed from the perspective of
international law.
"The 1951-1967 Convention Relating to the Status of
Refugees makes no mention of descendants - so the status is
not inherited. Moreover, the convention ceases to apply to
a person who, inter alia, has acquired a new nationality,
and enjoys the protection of the country of his new
nationality."
By this definition, the number of Palestinians who qualify for refugee status would be well below 500,000 - considerably diminishing the dimensions of the issue.
Moreover, the right of return in the 1966
International Covenant "is intended to apply to individuals
asserting an individual right. There was no intention here
to address the claims of masses of people who have been
displaced as a byproduct of war or by political transfers
of territory or population..."
One also has to observe that humanitarian law
conventions (such as the 1949 Geneva Conventions for the
protection of Victims of War) do not recognize the right of
return.
First rejected, later reclaimed
It should be noted that at the UN General Assembly of
11 December 1948 - Egypt, Iraq, Lebanon, Saudi Arabia,
Syria, and Yemen - voted against 194, but later decided to
embrace the resolution as recognition of a wholesale
inalienable right of repatriation. But there is no
recognition of any "right," rather a suggestion that
refugees "should" be "permitted" to return.
Moreover, that permission is subject to two
conditions: that the refugee wishes to return; and that
he/she wishes to live in peace with his neighbors.
The Palestinians have linked their demand for return
to a claim for self-determination. A situation where
returning Palestinian refugees have the right to external
self-determination would mean the end of the very existence
of the State of Israel. It should also be noted that the UN
General Assembly has suggested resettlement as an
alternative to repatriation.
Prof. Efraim Karsh, head of Mediterranean Studies at King's College, University of London, maintains that:
"It was in the late 1960s that the Arabs began to
transform it [194] into the cornerstone of a spurious legal
claim to a 'right of return.' But 194 in no way establishes
any such right.
Additionally, the very notion of such a 'right'
contradicts the essence of international law and behavior."
242, 338, 194: confusing numbers
Since these often-quoted numbers confuse the layman we
see fit to briefly dwell on them.
"The foremost document used by the Palestinians to
substantiate their call for Israel's complete withdrawal
from the West Bank and the Gaza Strip is [UN] Security
Council Resolution 242 of 22 November 1967 (echoed six
years later by Resolution 338). This resolution does not
demand Israel's complete evacuation of these territories
but rather its withdrawal 'from territories occupied in the
recent conflict.'
"The absence of the definite article 'the' from the
text is anything but accidental. Issued a mere six months
after Israel's astounding triumph over the concerted pan-
Arab attempt to obliterate it, the resolution reflected the
keen international awareness of the existential threat
posed by the pre-1967 borders, memorably described by the
then-Israeli foreign minister, Abba Eban, as 'Auschwitz
borders.'
"Nor does the resolution make any mention of the
creation of a Palestinian state. To the contrary, since the
Palestinians were widely viewed at the time as refugees
rather than a cohesive nation deserving its own state, it
was assumed that those territories that would be evacuated
by Israel would return to their pre-1967 Arab occupiers;
Gaza to Egypt, and the West Bank to Jordan. All the
resolution had to say about the Palestinians was to affirm
the necessity 'for achieving a just settlement of the
refugee problem.'
"All this, of course, is water under the bridge. Egypt
and Jordan have long washed their hands of these
territories."
These territories are generally termed "occupied" by
harsh Israeli rule. They are, in fact, "disputed"
territories - the final say and borders of which will be
drawn following peaceful negotiations. This unorthodox view
has been recently voiced by US Secretary of Defence Donald
Rumsfeld and others.
No right, no return
Major-General (ret.) Shlomo Gazit, former head of IDF Intelligence, and member of the Jaffee Center for Strategic Studies at Tel Aviv University. explains:
"Regardless of the conditions that led Palestinians to
uproot or flee their homes in 1948 and 1967, and regardless
of the parties who were responsible for the creation of
that tragedy, one cannot help but feel deep empathy for
their suffering.
"Moreover, there is no choice - the only way to
guarantee calm and stability in our region is to resolve
the refugee problem and do so as soon as possible. However,
that empathy, which most citizens of Israel share, is not
enough to warrant the return of the refugees to Israeli
territory.
"Israel's position on that matter has to be clear: It
does not recognize a 'right,' it does not recognize
'responsibility' and it will not allow the return of
refugees into its territory.
"Even more importantly, it does not establish a
'right' at all, let alone an eternal and unconditional one.
As opposed to UN Security Council resolutions, General
Assembly resolutions have no binding international
standing. They are merely recommendations.
"Placing the blame for creating the problem on Israel
has no international basis and the mere Palestinian request
that Israel recognize such responsibility is Palestinian
insolence. The 1948 war was a result of a clear Palestinian
initiative to prevent the establishment of a sovereign
Jewish state with the goal of annihilating the Jewish
community. That thrust was joined in May 1948 by Arab
armies who invaded Palestine.
"All the Jewish settlements occupied by Arabs, without
exception, were destroyed, and their residents - including
women, elderly people, and children - were murdered or
taken prisoner. What is Israel requested to take
responsibility for - defending itself, winning the battle?"
David Ben-Gurion, who agreed to the 1947 Partition Plan despite the sigificant territorial loss involved, declared "We won't accept the refugees. Not one refugee - just as our men who were killed in the Arab war against us will not rise up from the dead."
What Resolution 194 really means
Resolution 194 was originally destined to be the
cornerstone of a peace process. It consists of 15
paragraphs, the first of which calls for the establishment
of a reconciliation committee composed of representatives
from the US, Britain and Turkey. The Jews accepted it, the
Arabs rejected it.
Years later the Arabs drew out paragraph 11 of
Resolution 194, the one dealing with the subject of
refugees. This was a ploy of diplomacy, picking the cherry
from the cake, as it were.
Tragically, even Palestinian infants suckle, together
with their mothers's milk, a poisonous hatred against
Israel. Thus, the stipulation in 194 that the right of
return is confined only to refugees "wishing to live in
peace with their neighbors" appears far-fetched when the
abyss of hatred and suspicion between the two peoples is
widening.
When Sari Nusseiba and other moderates, as a gesture, agree to "relinquish the right of return," while naturally they expect compensation, what needs to be absolutely clear is that in fact they relinquish nothing because there is no right of return.
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