The right of return

By Abdul-Ilah As-Saadi
Tuesday 09 December 2003
aljazeera.net

The question of Palestinian refugees has been one of the core issues facing negotiators in the Middle East peace process.

Back in 1948 the UN passed a now famous resolution, Resolution 194, which stated:

“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.”

It went on in detail to confirm the basic rights of these refugees – to receive

compensation for the loss of their property and assistance in resettling in a host country should they choose to do so.

The first UN mediator, Count Folke Bernadotte of Sweden, said in one of his reports that homes and villages had been destroyed “without apparent military necessity”. He went on to add: “No settlement can be just and complete if recognition is not accorded to the right of the Arab refugee to return to the home from which he has been dislodged.”

But it was Bernadotte's account that led largely to the UN adopting resolution 194. Bernadotte was assassinated by the Haganah in 1948 in revenge for his work.

The rights of those Palestinians seeking refuge from later conflicts have also been enshrined in further UN resolutions (Security Council resolution 237, in 1967, and in UNGA resolution 3236, in 1974).

Palestinians can find their right of return enshrined in international law, too (the Universal Declaration of Human Rights, the Fourth Geneva Convention). Refugees have the right to return to their homes, receive property restitution and compensation for losses and damage.

It has become traditional and symbolic as a powerful message to Israel that every year the UN reaffirms Resolution 194.

Broken promises

As far back as 1948 Israel made a promise to repatriate 100,000 Palestinians - but it was a broken promise. Though admitted into the UN on the condition that it implemented the resolution, Israel continues to refuse to allow refugees back. Even in the face of compelling historical evidence from Arab and Israeli historians, Tel Aviv still denies its responsibility for them.

All refugees have just three options: to be repatriated, to be absorbed into the host country or to be invited to a third country.

All the parties to the peace process acknowledge that finding a just solution for the refugees is fundamental to achieving a durable peace for the region.

This repeated reference to the right of return means that, under article 38 of the Statute of the International Court of Justice, it becomes an “international custom” or a " general principle of law recognised by civilised nations".

Ambiguous resolution?

It has been argued that Resolution 194 is ambiguous, but subsequent resolutions affirm that Palestinian repatriation is a matter of right. Resolution 3236 refers to the: "Inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted."

On the other hand, the Israelis demand that the refugee issue be resolved on the basis of external resettlement and the annulment of the right of return.

The passage of time, rather than reducing the importance of the refugee situation, has made it all the more urgent due to the growth of the diaspora and decades of inaction. Neither time nor space constitutes genuine obstacles to their return – but both have been used as arguments against repatriating them.

However, research shows that 77% of Israel's Jews live in only 15% of Israel's area. And, as any Palestinian will tell you, the time spent away from home only makes the yearning to return stronger.

Refugees marginalised

In 1992 a number of working groups were set up to tackle the broader issues affecting the Middle East region. Among them was the refugee working group.

Canada acted as chair to this group, which started raising funds for the UN Relief and Works Agency (UNRWA), as well as providing medical supplies and equipment and supporting education in vital fields – health, construction and administration.

Up to 100 delegates from key players such as Israel, Jordan, Palestine and Egypt, the US, Russia, the European Union and Japan as well as the Gulf states attended the meetings.

But in 1997, the Arab League called for a boycott of the so-called multilateral groups in protest over Israeli policies. With the start of the second Intifada in 2000 the working group was suspended.

It was agreed that resolving the situation of those people displaced from the occupied territories due to the 1967 war would be simpler than those displaced in 1948 and should be tackled first. It was a decision that left many refugees feeling marginalised.

Hold-ups

Negotiations have been regularly held up because the Israelis differ with the Palestinians and the Arab states on both the definition and number of displaced persons.

After three years of stalled negotiations and bitter recriminations between Palestinians and Israel’s Likud-led government of Benjamin Netanyahu, the election of Labor’s Ehud Barak as prime minister of Israel in May 1999 appeared to offer hope for reviving the deadlocked peace process.

In early September 1999, Israel’s new government and the Palestinian Authority (PA) signed the Sharm al-Shaikh Memorandum, committing both sides to fulfilling the obligations under the September 1995 Interim Agreement (called Oslo II), and subsequent agreements that Israel only partially implemented, including the October Wye River Memorandum of 1998.

Including the refugees in finding a mechanism to implement their basic rights, as part of the peace process, is crucial yet has been avoided in the countless round tables on the Middle East. An imposed settlement that does not deal with the right of return will not end the conflict or lead to a durable peace.

Refugee representatives maintain that their community accepts the right of Israel to exist and its desire to live in peace with its neighbours and does not wish to destroy them.

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