Opinions of Peter Belmont
Speaking Truth to Power
| Mitchell Plitnick defines away the Palestinian Right of Return |
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by Peter A. Belmont / 2012-04-25
As most followers of the Israel/Palestine conflict know, about 750,000 Palestinian Arabs (about 85% of the Arab population) of what became Israel after the 1948 war found themselves outside Israel after the war and were all denied re-admittance by Israel—irrespective of whether they had left voluntarily, left to avoid the dangers and rigors of war, or were expelled by Israel at gun-point. Palestinian refugees are a major human tragedy. But the open-ended calls for a return of Palestinian refugees to their original towns and homes is a non-starter for any resolution of the Israel-Palestine conflict. As I have argued, international law guarantees people the right to return to their home country, but not necessarily to their original homes.He seems to mean, here, that refugees would have a right to return to somewhere inside Mandatory Palestine, but not to whatever part of it (later) becomes Israel. If Mr. Plitnick merely means that a Palestinian refugee would not necessarily be allowed to live in his own former home, but would be admitted to Israel as a resident and citizen, then I have misunderstood him and apologize: subject to ICCPR (see below) any country has a right to decide where its citizens will reside within its own borders. Well, if Israel’s political determination not to readmit the refugees/exiles from 1948 were all that mattered, then there would be no Palestinian “right of return” to Israel, at all—whatever international treaties, declarations, covenants, and UNGA resolutions may say. Politically and in terms of realpolitik, there is no “right of return” today for the Palestinian refugees/exiles of 1948. But, if we may leave politics to one side, let’s examine how UNGA-194 (1948) should be interpreted today. As to “return”, UNGA-194’s article 11 reads: Resolves that the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible. This says “return to their homes”. It does not say “return to their country.” This pretty clearly ties “return” to the home, the property. And Article 12 of the International Covenant on Civil and Political Rights (signed by Israel on 19 Dec 1966 and ratified by Israel 3 Oct 1991) reads: 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.It certainly seems that Israel, by refusing for 64 years to re-admit the refugees/exiles of 1948, violates Para. 4 by arbitrarily depriving them of their right to enter their own country, for no part of Israel is outside the territory of Mandatory Palestine—which was their country. And Mr. Plitnick in seeking to relegate them to another part of their country (e.g., West Bank and Gaza rather than pre-1967 Israel) proposes that Israel continue to violate para. 1, which grants everyone the “freedom to choose his residence”. I have always understood UNGA-194 the following way, simply because it makes sense: Refugees/exiles have a right to return to whichever country is sovereign over the territory which contains the former home of the refugee/exile. Within such country, the returnee is subject to its laws as to place of residence. If the refugee/exile declines to return, and/or if his property was damaged or destroyed, he should be compensated for such property by the sovereign (at the time of such declination by the refugee/exile) of the territory to which he had a right to return. To make all these questions more focused, let’s assume that we have arrived at a time when Mandatory Palestine has at long last been re-divided by a peace treaty, and there are now two countries there, each with a well-defined and delineated sovereign territory, Israel (perhaps its pre-1967 territory, including some of Jerusalem) and New Palestine the remainder, (West Bank, Gaza, and the remainder of Jerusalem). By assumption, every bit of Mandatory Palestine is now within either Israel or New Palestine. To which place (or places) does UNGA-194 assert that a hypothetical Palestinian refugee—whose home was in Tel Aviv when he became a refugee and who lives in Lebanon now—has a “right of return”? Let’s examine three possible “readings” of UNGA-194. And let us recall that UNGA-194 was resolved before Israel had declared any boundaries (and indeed it still has not done so!). In 1948 and looking to the future, but still during the course of the war, Israel might have ended up sovereign over all of Mandatory Palestine or might have ended up without any sovereignty whatever—or anything in between. Normally, the boundaries of “countries” do not change much. A right of return to your own country is not ordinarily puzzling as to which territory it applies to, although Mr. Plitnick seems to want it to be puzzling in this case. So, assuming that our refugee lived in Tel Aviv when he became a refugee and that Israel is sovereign over Tel Aviv at the time of proposed “return” of the refugee, what “right of return” should UNGA-194 be deemed to provide to our hypothetical refugee? The Three Readings of UNGA-194 First reading: the right of return is a right to return to the country which—at the time of such return—is sovereign over the place where the refugee lived, where his home was located, at the time the refugee became a refugee. Second, the right of return is a right to return to ANY sovereign country which—at the time of such return—is sovereign over any part of the territory which was a sovereign country at the time when the refugee became a refugee and in which he lived, where his property was, at the moment he became a refugee. Third, the right of return is a right to return to ANY sovereign country which—at the time of such return—is sovereign over any part of the territory which was a sovereign country at the time when the refugee became a refugee and in which he lived, where his property was, at the moment he became a refugee—but only if such country agrees to receive him. Analysis of the Three Readings The text of UNGA-194 makes it clear that it assumes the first reading, for by its terms it ties “return” to the place of the home, the property. The third reading does not define a “right”, because if the country of origin is divided into one or more countries, and none will admit the refugee, then he has no right of return. The second reading expands the “right” offered in the first reading. It not only allows the refugee to return to his pre-refugee home but also allows him to return to any country which at the time of “return” is sovereign over any part of his original (entire) country. If Mr.Plitnick means to interpret UNGA-194 (and the other sources of the so-called “right of return”) to allow Israel (in whatever its territory ultimately turns out to be) (and also today!) to refuse to re-admit the refugees/exiles of 1948, then where does he suppose that the “right” would allow them to go? Suppose, for example, that a peace treaty were signed that gives Israel 99% of Mandatory Palestine and gives (New) Palestine 1%—does he mean that the refugees would have a “right” to descend into that 1% but not into the 99%? Considering that the Jewish population of Israel and the non-Jewish population of Palestine (including all refugees/exiles who would wish to return to “Palestine”) are about equal, does he propose that (using the dividing line of 1967) 6 million Israeli Jews should live in 78% of Palestine and 6 million Palestinians live in 22%? Or, using the crazy divisions now being suggested by Israel, that 6 million Israeli Jews should live on 90% of Mandatory Palestine, and 6 million Palestinians live on 10%? Let me close this philosophical investigation by asking Mr. Plitnick one question: Does he think that all in all it would have been better had Israel either not expelled any Palestinians and/or had allowed all Palestinian refugees to return to their homes when the UNGA asserted the “right of return” in 1948? AMENDMENT 4-27-2012 RESPONDING TO COMMENT FROM talknic See UN materials—provided by a commenter TALKNIC, for which many thanks!. This document does not set forth Israel’s boundaries but merely states the area over which Israel’s armed forces had control at the time the answer was made. |
Comments:
| talknic 2012-04-27 | |
| A few points ...
"And let us recall that UNGA-194 was resolved before Israel had declared any boundaries (and indeed it still has not done so!)"
http://unispal.un.org/UNISPAL.NSF/0/B4085A930E0529C98025649D00410973 May 22nd 1948 statement by the Provisional Govt of Israel to the UNSC confirmed Israels boundaries. http://unispal.un.org/UNISPAL.NSF/0/418E7BC6931616B485256CAF00647CC7 DEFINITION OF A “REFUGEE” UNDER PARAGRAPH 11 OF THE GENERAL ASSEMBLY RESOLUTION OF 11 DECEMBER 1948 (UNGA res 194) In essence all civilians have a right to flee violence and return, no matter who starts a war or for what reason or who tells them to flee or who wins or loses. Because they are A) Civilians, who… B) …might not have voted for or even have been able to vote for, the regime in power when hostilities began. http://wp.me/pDB7k-jS Israels reasons for refusing RoR is based on faulty maths, illogical statements and ignoring the UN Charter and International Law |
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