Legal Background to the
"Palestinian Right of Return"

President Clinton said in his speech January 8, 2001 that the creation of a Palestinian State and the Palestinian right of return [to Israel] are mutually exclusive. 
 

...you cannot expect Israel to acknowledge an unlimited right of return to present day Israel, and at the same time, to give up Gaza and the West Bank and have the settlement blocks as compact as possible, because of where a lot of these refugees came from [and the resulting perceived "right of return"]. We cannot expect Israel to make a decision that would threaten the very foundations of the state of Israel, and would undermine the whole logic of peace. And it shouldn't be done. "

-- President Clinton, Israel Policy Forum, January 8, 2001

 Richard Holbrooke warned both the Security Council and the General Assembly not to add fuel to the fire "by unnecessarily intervening in the crisis in the Middle East".  He cautioned against "using the UN and its institutions as platforms for propaganda" and added that "the world body must be seen as a forum where disputes can be settled".

-- US Ambassador to the United Nations Richard Holbrooke

The Palestinian Claim to a “Right of Return”
By: Alexander Safian, PhD, Associate Director, CAMERA

Do Palestinians who fled Israel in 1948, and their descendants, have a legal or moral right to return to their former homes in Israel? Is it true that most other refugees around the world have already exercised such rights of repatriation? Palestinian spokesmen, and groups including Amnesty International, have repeatedly asserted that Palestinians do have a legal and moral right to return to Israel. Most legal authorities, however, contend that the relevant legal instruments, including UN General Assembly Resolution 194, and the Universal Declaration of Human Rights, offer no support for these claims. Moreover, many analysts have pointed out that because an Arab and Palestinian-initiated war against Israel created a similar number of Jewish and Palestinian refugees, and because Israel settled the Jewish refugees, the Arab side should settle the Palestinian refugees.
 

A Sampling of the Palestinian Claims

· A press release for a September 16th Right of Return rally in Washington, DC demands:

... implementation of the right of Palestinian refugees to return to the homes and lands from which they were expelled. ... The right of refugees to return to their homes is enshrined in the Universal Declaration of Human Rights, International law, and in UN Resolution 194. (Palestine Right to Return Coalition, August 24, 2000)

· A similar press release by the American-Arab Anti-Discrimination Committee asserts:

... Palestinian refugees have an absolute, inalienable and individual human right to return to their original homes and country. This right is enshrined not only in the Universal Declaration of Human Rights and the Fourth Geneva Convention, but more specifically in UN Resolution 194, for which the United States voted. (September 14, 2000)

· A letter from Amnesty International USA signed by its Executive Director, William Schultz, explains that Amnesty’s official sponsorship of the Right of Return rally:

... is based on the fact that our mandate opposes forcible exile. ... The right of refugees to return is guaranteed in the Universal Declaration of Human Rights Article 13(2) which states: “Everyone has the right to leave any country, including his own, and to return to his country.”

Amnesty thus bases its stand on discredited claims that Israel expelled the Palestinians and on a misinterpretation of the Universal Declaration. Amnesty staffer Marty Rosenbluth, who has repeatedly signed extremist ads declaring that “the Zionist structure of the state of Israel is at the heart of the racism and oppression against the Palestinian people and should be dismantled,” was the Amnesty International speaker at the rally. 
 

UN General Assembly Resolution 194 (December 11, 1948)

The key document cited by supporters of a Palestinian right of return is Resolution 194, passed in the wake of the first Arab-initiated war against Israel. The supporters cite the resolution despite the fact that the Arab states continually violated its central provision, which called for the creation of a Conciliation Commission and:

... establishment of contact between the parties themselves and the Commission at the earliest possible date ... to seek agreement by negotiations [and thereby reach] a final settlement of all questions between them. (paragraphs 4 and 5)

Through many years and multiple wars, the Arab states refused even to meet with Israel, much less try to reach a peaceful settlement. The only clause the Arab side ever acknowledged was paragraph 11, which suggested (it could not “require,” since it was a General Assembly rather than a Security Council resolution) that:

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 ... [R]epatriation, resettlement and economic and social rehabilitation of refugees and payment of compensation [should be facilitated]. (emphasis added)

Because this only recommends that refugees be permitted to return, it can hardly be characterized as creating a “right.” Moreover, the requirement that returnees first accept living “at peace with their neighbors” meant that Palestinian returnees would have to accept Israel's right to exist, something that very few of them, even today, seem truly willing to do. Further, it did not even hint at any return rights for descendants of refugees.

It should also be noted that (1) the resolution applies equally to Palestinian refugees from Israel and to the similar number of Jewish refugees from Arab countries who came to Israel after 1948, and (2) that it placed repatriation, resettlement, and payment of compensation on an equal footing. This equal footing was also included in other GA resolutions of that era, such as Resolution 393 of December 2, 1950, which stated that:

... without prejudice to the provisions of paragraph 11 of General Assembly resolution 194 ... the reintegration of the refugees into the economic life of the Near East, either by repatriation or resettlement is essential ... for the realization of conditions of peace and stability in the area.

Similarly, Resolution 394 of December 14, 1950 called upon:

... the Governments concerned to undertake measures to ensure that refugees, whether repatriated or resettled, will be treated without any discrimination either in law or in fact.

And Resolution 513 of January 26, 1952, speaks of “reintegration either by repatriation or resettlement.” It is therefore quite clear from the plain language of these resolutions that the General Assembly did not even try to establish a binding right of return. 
 

All Arab States Voted Against Resolution 194

All the Arab states voted against Resolution 194, precisely because it did not establish a “right of return,” and because it implicitly recognized Israel. It is disingenuous, at best, for those same Arab states (and Palestinian representatives) to see today in Resolution 194 the right of return they formerly claimed did not exist.
 

It is the Arab States that have violated UN Resolutions and the UN Charter

Despite present-day appeals to UN resolutions by the Arab states, it was the Arab states which violated all of the above resolutions, by making war against Israel, by forcing the Palestinian refugees to live in squalid refugee camps, by refusing to offer them citizenship (with the exception of Jordan, which did so not for humanitarian reasons, but to absorb the West Bank, which it had conquered, occupied and annexed), by discriminating against them (Resolution 394) “in law and in fact,” and by forcibly preventing (Resolution 393) “the reintegration of the refugees into the economic life of the Near East.” The Arab states did this because they were determined to exterminate Israel, or failing that, to prevent (Resolution 393) “the realization of conditions of peace and stability in the area.”

So extreme was the Arab position that the former director in Jordan of UN aid to the Palestinians, Ralph Galloway, stated:

The Arab states do not want to solve the refugee problem. They want to keep it as an open sore, as an affront to the United Nations and as a weapon against Israel. Arab leaders don’t give a damn whether the refugees live or die. (Ralph Galloway, UNRWA, as quoted by Terence Prittie inThe Palestinians: People History, Politics, p 71)

Of course, beyond the refugee weapon the Arabs also used military weapons to make war against Israel, violating Resolution 181 (the Partition Resolution), and the UN Charter, which calls upon members to:

.. settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. (UN Charter, Article 2(3)).. refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state ... (UN Charter, Article 2(4))

Finally, the Arab states have for more than 50 years violated Resolution 194 by refusing to pay compensation to Jewish refugees whom they drove out of their countries. 
 

The Universal Declaration of Human Rights (December 10, 1948)

Amnesty International bases its support of a Palestinian right of return on the Universal Declaration of Human Rights. AI, and many pro-Palestinian groups, cite Article 13, paragraph 2 of the Declaration, which states:

Everyone has the right to leave any country, including his own, and to return to his country.

However, most international legal authorities concur both that the Universal Declaration is not legally binding (Nathan Feinberg, The Arab-Israeli Conflict in International Law, p 106), and that, even if it were, Article 13 would not establish for Palestinians a right of return.

There are at least three independent reasons for Article 13's limitations:

1. The clause “return to his country” was never intended to establish a right of return, rather it was added to underscore the right to leave. According to its legislative history Article 13 was aimed at governments that, in effect, imprisoned certain subgroups of their nationals by preventing them from leaving – Jews in Eastern Europe or the Soviet Union, for example. The clause “and to return to his country” was added at the last minute, according to its sponsor, in order to assure that “the right to leave a country, already sanctioned in the article, would be strengthened by the assurance of the right to return.” (Jose Ingles, Study of Discrimination in Respect of the Right of Everyone to Leave Any Country, Including His Own, and to Return to His Country, UN Doc E/CN.4/Sub.2/220/Rev.1, 1963)

Indeed, in the above-mentioned UN study of the Universal Declaration by Ingles, nowhere are the Palestinian refugees, or any other refugees, mentioned as coming under the purview of Article 13. All of the study’s examples involve people who were prevented from leaving their country based on such factors as race or color, sex, language, religion, political opinion, etc.

2.Article 13 speaks of the right to “return to his country,” but the Palestinians who were displaced by the war were never citizens or even legal residents of Israel. (Kurt René Radley, The Palestinian Refugees: The Right to Return in International Law, The American Journal of International Law, V72, 1978, p614) For this reason alone Article 13 would not apply to them.

3. Finally, other clauses of the Declaration argue against a Palestinian right to return. For example, Article 29 states:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (Article 29, paragraph 2)

Clearly, the “rights” and “general welfare” of the great majority of Israel’s citizens would not long survive the admission of some 4 to 5 million Palestinian refugees (for this is the number of refugees that the Palestinians now claim) who neither owe the country allegiance nor identify themselves as Israelis.

Also relevant, for this reason, is paragraph 3, which states:

These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

But destroying Israeli sovereignty via the right of return would clearly violate the principles of the UN Charter, specifically Article 2, paragraph 1, which states:

The organization is based on the principle of the sovereign equality of all its members. (Article 2, paragraph 1)

In the same manner, a mass Palestinian right of return would also violate Article 30 of the Universal Declaration of Human Rights, which states:

Nothing in this declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

That destruction of Israel – and the rights and freedoms of Israelis – would be the goal of repatriated Palestinian refugees was, in the past, explicitly admitted by Arab leaders. For example, the post-war Egyptian Foreign Minister, Muhammad Salah al-Din, declared:

... in demanding the return of the Palestinian refugees, the Arabs mean their return as masters, not slaves; or to put it quite clearly – the intention is the extermination of Israel. (Al-Misri, 11 October 1949, as quoted by N. Feinberg, p109)

Similarly, Egypt’s President Nasser stated:

If the refugees return to Israel, Israel will cease to exist. (Neue Zuercher Zeitung, September 1, 1960, as quoted by Prittie)

UN Security Council Resolution 242 (November 27, 1967)

With regard to refugees, Resolution 242 calls only for “achieving a just settlement of the refugee problem,” without defining just what such a settlement might entail, and without referring to any earlier UN resolutions. Resolution 242 therefore offers no support for a Palestinian “right of return.”
 

The Fourth Geneva Convention (October 21, 1950)

The other international instrument cited by supporters of a Palestinian right of return is the Fourth Geneva Convention, specifically its Article 49, which allows a “belligerent occupant” to temporarily evacuate occupied areas but requires that the evacuees:

... be transferred back to their homes as soon as hostilities in the area in question have ceased.

Again, this instrument does not create for Palestinian refugees a right of return, first for the technical reason that it came into effect only on October 21, 1950, well after the end of the first Arab-Israeli War. But there are also weightier reasons for the Convention’s inapplicability to the Palestinian refugee problem:

The Palestinian-Israeli struggle was a civil conflict, while the Convention dealt almost exclusively with international conflicts. (Radley, p 597)In accord with its international focus, the Convention delineated the rights and obligations of “belligerent occupants.” However, again because of the civil nature of the struggle between Palestinian Jews and Palestinian Arabs within the territory of the Palestine Mandate, Israel was not and is not a “belligerent occupant.”
Article 3 of the Convention, the only one explicitly applicable to “conflicts not of an international character,” makes no mention of refugees or expelled persons, and requires only, as Radley puts it, “a minimum standard of treatment for noncombatants.” (Radley, p 599)

How have other refugee problems been resolved?

The 20th century witnessed numerous large-scale and persistent refugee problems, all of which were eventually resolved through integration rather than repatriation. Thus according to Dr. Elfan Rees, Advisor on Refugees to the World Council of Churches:

No large scale refugee problem has ever been solved by repatriation, and there are certainly no grounds for believing that this particular problem [the Palestinian refugee problem] can be so solved... The facts we must face force us to the conclusion that for most of the world’s refugees the only solution is integration where they are. (Dr. Elfan Rees,Century of the Homeless Man, as quoted in Radley, p 611-612)

Examples of refugee problems settled via integration or resettlement include:

At the conclusion in 1923 of the Greek-Turkish War, harsh treatment of Greek communities in Turkey caused large numbers of these Turkish Greeks to flee their homes. Because of this, the peace treaty between the two sides provided for a mutual exchange of populations – about 2 million Greeks who had been Turkish citizens were relocated to Greece, while about 500,000 Turks who had been Greek citizens were relocated to Turkey. The immoveable property left behind was seized by the respective Governments and was used, in part, to resettle the incoming refugees. (Eyal Benvenisti and Eyal Zamir, Private Claims to Property Rights in the Future Israeli-Palestinian Settlement, The American Journal of International Law, April 1995, p 322)The Potsdam Declaration imposed by the Allies following World War 2 provided for the transfer to Germany of approximately 15 million Germans, particularly from those parts of eastern Germany which after the war were allotted to Poland. Under the Declaration the German populations in Poland, Czechoslovakia, Hungary and Austria were relocated to Germany, these German refugees lost title to the property they left behind, and no arrangements were made to compensate them for their losses. (Benvenisti and Zamir, p 322)
Settlement of the conflict between Hindus and Muslims in British India via division of the region into India and Pakistan required relocation of millions of people. Once again, immoveable property left behind by these refugees was seized by the respective governments to help settle the incoming refugees.(Benvenisti and Zamir, p 323)

Other Relevant Issues Commonly Ignored or Distorted

The cause of the Palestinian refugee problem

Many reporters have uncritically accepted Palestinian claims that there are today roughly 4 or even 5 million Palestinian refugees, and that these people were somehow expelled from Israel. Recent research by Israeli scholars (Efraim Karsh,Fabricating Israeli History: The New Historians; Shabtai Teveth, The Palestine Arab Refugee Problem and its Origins, Middle Eastern Studies, April 1990; Anita Shapira, The Past is not a Foreign Country,New Republic, November 29, 1999) have thoroughly discredited authors such as Benny Morris and Ilan Pappe who had charged Israel with mass expulsion of Palestinians during the 1948-49 Arab-Israeli war.

Consider the case of Haifa, whose Arab population numbered 62,500 in 1947, but by May 1948 had dwindled to almost nothing, accounting for one-tenth of the Palestinian refugees. The question, of course, is “Were the Palestinians Expelled?” As it happens, this is the title of Professor Karsh’s latest work, wherein he concludes:

in Haifa, one of the largest and most dramatic locales of the Palestinian exodus, not only had half the Arab community fled the city before the final battle was joined, but another 5,000 - 15,000 apparently left voluntarily during the fighting while the rest, some 15,000 - 25,000 souls, were ordered or bullied into leaving against their wishes, almost certainly on the instructions of the Arab Higher Committee. The crime was exclusively of Arab making. There was no Jewish grand design to force this departure, nor was there a psychological “blitz.” To the contrary, both the Haifa Jewish leadership and the Hagana went to great lengths to convince the Arabs to stay.( Commentary, July-August, 2000)

What happened in Haifa was typical; the vast majority of Palestinian refugees were not forced out, but fled, at times despite the counsel of their Jewish neighbors to stay. The Palestinian refugee problem was caused by a war that was initiated by the Palestinians themselves and by the five Arab states whose armies invaded Israel the day it declared independence. Had the Palestinians and the Arab states not attacked Israel and attempted to destroy it, there would not have been a single Palestinian refugee.

It should also be remembered that the roughly 550,000 Palestinian refugees created by the war were not alone – there were a similar number of Jewish refugees from Arab countries. At great expense and effort the newly born state of Israel settled these Jewish refugees. Unfortunately, the Arab states, many of them flush with oil wealth, made no such effort, often acting to keep the Palestinian refugees in festering poverty, all the better to use them as a weapon against Israel.
 

The Palestinian refugees today

As of June 30, 1998 there were 3,521,130 Palestinian refugees, according to the "Report of the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East – 1 July 1997 - 30 June 1998," (Table 1). However, the report (available atwww.unrwa.org) also states that:

UNRWA registration figures are based on information voluntarily supplied by refugees primarily for the purpose of obtaining access to Agency services, and hence cannot be considered statistically valid demographic data; the number of registered refugees present in the Agency's area of operations is almost certainly less that the population recorded.

Moreover, not only does the UN admit the figures are of doubtful accuracy, there being obvious reason for families to claim more members and thereby receive more aid, the UN also admits that the total includes 1,463,064 Jordanian citizens, who cannot by any stretch be considered refugees. Indeed, if they are refugees, then the more than 500,000 Jewish refugees from Arab countries who came to Israel after 1948 were nonetheless still refugees even after receiving Israeli citizenship, as are their descendants (since, in these claims, descendants of Palestinian refugees are themselves considered refugees). That is, there would be in Israel today at least 2 million Jewish refugees from Arab countries. Whether or not one accepts that the descendants of refugees are themselves refugees, if the claims of the Palestinian refugees are now being discussed, so should the claims of these Jewish refugees. 
 

Arabs refused Israel's 1949 offer to unconditionally admit 100,000 Palestinians

As a goodwill gesture during the Lausanne negotiations in 1949, Israel offered to take back 100,000 Palestinian refugees prior to any discussion of the refugee question. The Arab states, who had refused even to negotiate face-to-face with the Israelis, turned down the offer because it implicitly recognized Israel's existence. (Nadav Safran, Israel: The Embattled Ally, Harvard University Press, p 336)

Despite this, on humanitarian grounds Israel has since the 1950's allowed more than 50,000 refugees to return to Israel under a family reunification program, and between 1967 and 1993 allowed a further 75,000 to return to the West Bank or Gaza. Since the beginning of the Oslo process Israel has allowed another 90,000 Palestinians to gain residence in PA-controlled territory.
 

Israeli compensation to Arabs who lost property; no Arab compensation to Jews

Arabs who lost property in Israel are eligible to file for compensation from Israel's Custodian of Absentee Property. As of the end of 1993, a total of 14,692 claims had been filed, claims had been settled with respect to more than 200,000 dunums of land, more than 10,000,000 NIS (New Israeli Sheckels) had been paid in compensation, and more than 54,000 dunums of replacement land had been given in compensation. Israel has followed this generous policy despite the fact that not a single penny of compensation has ever been paid to any of the more than 500,000 Jewish refugees from Arab countries, who were forced by the Arab governments to abandon their homes, businesses and savings.
 

American Bar Association Journal, January issue

PERSPECTIVE 
No Palestinian 'Return' to Israel

By Joel Singer

The ABA Journal's December cover story, "Where Will They Go?" essentially  alleges that the only way to resolve the Palestinian refugee problem pursuant  to international law is by allowing the refugees to exercise their purported  "right of return" into Israel. This article portrays a distorted, one-sided  picture that is fundamentally flawed both legally and factually.  International law is not on the Palestinians' side.

The Palestinian refugee problem is rooted in the 1948-49 Arab-Israeli War. In  1947, realizing that the Jewish and Arab communities of Palestine could not  live together in one state, the U.N. General Assembly adopted Resolution  181(II), which recommended partitioning Palestine into two states - one  Jewish and one Arab.

While the Jews accepted this plan, the Arabs rejected it, claiming that all  of Palestine belonged to them. When Israel declared its independence in 1948,  all Arab states attacked it in an attempt to prevent its creation. In the  wake of this war, hundreds of thousands of Jewish refugees fled from Arab  countries to Israel, and, at about the same time, between 600,000 and 750,000  Palestinians fled to Arab states from the portion of Palestine that is now  Israel.

This population exchange mirrored far larger population movements following  the end of World War II, which involved millions of Hindus and Muslims in  India and Pakistan, as well as Poles, Germans and other nationalities in  Central and East Europe. These population exchanges were resolved through the  integration of all refugees into the host states. While Israel absorbed the  Jewish refugees, the Arab states refused to allow such resettlement and  integration of their Palestinian brethren, preferring instead to exploit the  Palestinian refugees to serve their own political agendas.

As reflected in the Journal article, Palestinians often refer to the U.N.  General Assembly's 1948 Resolution 194(III), which called for permitting  refugees to return to their "homes," as legal support for an alleged "right  of return" to the Jewish state. Contrary to this assertion, however,  Resolution 194(III), like all other U.N. General Assembly resolutions, is  nonbinding and not part of international law. Moreover, it was specifically  rejected not only by Israel but also by all Arab states, which voted against  it (because they found it insufficiently anti-Israeli).

Additionally, Resolution 194(III) emphasized that refugees should be permitted back only if they wished to "live at peace with their neighbors."  In fact, the Palestinian insistence on a "right of return" to the Jewish state has always been intertwined with the rejection of Palestine's partition into two states and the continued Palestinian aspiration to destroy Israel. Thus, the infamous PLO's Palestinian Covenant of 1968, which adopted the destruction of the state of Israel and the liquidation of the "Zionist presence" in Palestine as its main goals, stated in its Article 9:

Armed struggle is the only way to liberate Palestine. Thus it is the overall strategy, not merely a tactical phase. The Palestinian Arab people assert their absolute determination and firm resolution to continue their armed struggle and to work for an armed popular revolution for the liberation of their country and their return to it.

This fundamental point should be understood clearly and without illusion: When supporters of the Palestinians speak of implementing their "right of return" to Israel, they are not speaking of peaceful accommodation with Israel; rather, they are using a well-understood code phrase for the destruction of Israel. Indeed, the several hundred thousand Palestinian refugees who actually left the area that is now Israel have multiplied into more than 3.5 million people, most of whom are not refugees, but second-and third-generation descendants of the original refugees.

The fact is that there are currently 23 Arab states and only one Jewish state, which now consists of 5 million Jews and 1 million Israeli Arabs. If Israel opened its gates to an additional 3.5 million Palestinians, who account for more than half of the Palestinian people, it would quickly disappear and be transformed into the 24th Arab state.

During the decades that followed the adoption of the Covenant, the Palestinians continued to insist that any solution of the Palestinian problem must involve the destruction of Israel, validating former Israeli Foreign Minister Abba Eban's observation that the "Palestinians have never missed an opportunity to miss an opportunity." In 1993, however, the Palestine Liberation Organization, acting as the representative of the Palestinian people, agreed in Oslo, in the context of the Israeli-Palestinian Mutual Recognition Agreement, to provide several commitments to Israel.

They include:
 

• A PLO recognition of "the right of the State of Israel to exist in peace  and security."
• A PLO acceptance of U.N. Security Council Resolution 242 and its companion resolution 338.
• A PLO undertaking to annul the Palestinian Covenant's provisions quoted above, together with all other similar provisions calling for Israel's destruction.

Accordingly, a continued Palestinian insistence on a "right of return" to Israel, apart from being built on originally questionable legal foundations, also is inconsistent with these very fundamental premises of the Oslo Agreements.

First, the PLO agreed to relinquish its assertion that the Palestinians have the exclusive right to the historic Palestine and agreed to divide Palestine into two states -- one Jewish and one Palestinian. For the Palestinians to now revive the demand that more than half of the Palestinian people have the right to immigrate to the Jewish state repudiates the spirit, if not the letter, of the Oslo Agreements.

Second, U.N. Resolutions 242 and 338, which the PLO accepted, are the only  U.N. resolutions referenced in the Oslo Agreements. As such, these resolutions  --- but not U.N. General Assembly Resolution 194(III) --- are the  single existing, agreed-upon basis for the Israeli-Palestinian permanent  status negotiations (which cover, among other issues, the refugee problem).  U.N. Resolution 242 affirms the necessity for "achieving a just settlement of  the refugee problem," but, importantly, does not mention a "right of return"  or any other specific solution as the mandated or preferred way to settle  that problem.

Third, in 1998, after years of delays, and in the presence of the president  of the United States, the PLO finally amended the Palestinian Covenant and  formally annulled its articulated goal of destroying Israel through armed  struggle and the implementation of a "right of return" to the Jewish state.

A revived demand to return to Israel certainly casts doubt on the veracity of  the PLO's annulment of the Palestinian Covenant.

Alternatively, Palestinians sometimes assert that a Palestinian "right of return" exists independently of U.N. resolutions, pointing to a series of human rights conventions, such as the 1966 International Covenant on Civil and Political Rights, Article 12(4), which states: "No one shall be arbitrarily deprived of the right to enter into his own country." The fundamental flaw of this argument is that, after Israel and the PLO agreed to partition Palestine into two states --- one Jewish and one Palestinian ---  the Palestinians cannot continue to argue that the Jewish state is the Palestinians' "own country" and that they therefore are entitled to return to it.

It is doubtful whether that aspect of the Oslo Agreements has been effectively communicated to the Palestinian people and really accepted by all of its leadership. Regrettably, the evidence, including that reflected in the Journal's article, strongly indicates that this illusion of seeking to destroy Israel in stages, culminating in its elimination by flooding it with millions of Palestinians, remains a goal of large segments of the Palestinian people.

At this critical time in the evolving relationship between Israel and the Palestinians, it is important that everyone understand the commitments and tradeoffs undertaken by the two sides in Oslo.

There is one viable solution to the Palestinian refugee problem that is consistent with the two-state approach of the Oslo Agreements, provides a just resolution of the Palestinian refugee problem and does so without destroying the Jewish state. This is a plan by which Palestinian refugees who wish to resettle in Palestine would do so in the Palestinian state to be created side-by-side with the Jewish state. This plan would require a major international financial effort, in which Israel will participate, to help Palestinian refugees settle permanently either in the Palestinian state or in the countries in which they currently reside, as well as to support such host countries in their rehabilitation efforts.

Most Israelis have already accepted the necessity of making far-reaching concessions to conclude an agreement with the Palestinians. When the Palestinians also come to terms with this necessity by finally accepting the commitments undertaken by the PLO on their behalf, and especially by abandoning their dream of destroying the Jewish state by having it overrun by millions of Palestinians, the Palestinian-Israeli dispute can be resolved.

J oel Singer is a partner in the Washington, D.C., office of Sidley & Austin. In 1993, while he was legal adviser to the Israel Ministry of Foreign Affairs  and a chief negotiator of the Oslo Agreements for the Rabin-Peres government,  he authored the Israel-PLO Mutual Recognition Agreement.
 

Israel Attorney General's Elyakim Rubenstein's clarification regarding application of 242 and 338 to the Palestinians

Prime Minister Ariel Sharon's letter to the National Union-Yisrael Beiteinu Party states that "What is said in the government guidelines regarding UN resolutions 242 and 338 is subject, of course, to the Israeli interpretation of these resolutions. Relating to this I would like to refer you to the recommendation of the Attorney General's [Elyakim Rubinstein] recommendation of 28.6.00 attached to this letter, which I accept, that summarizes the Israeli position relating to this, as it was also presented in diplomatic negotiations.

The following is IMRA's translation of Rubenstein's letter as forwarded by the Attorney General's Office to Susie Dym:

Jerusalem
28 June 2000
Letter No: 2000-0004-16786

In light of various comments concerning UN Security Council Resolution 242 as it relates to the negotiations with the Palestinians, the Attorney General would like to make clear - from a legal standpoint - as follows, in summary:

(1) Resolution 242 was not intended to apply to a Palestinian entity, since at the time of its adoption such an entity did not exist and its establishment was not even on the agenda.  Palestinians are not mentioned in the Resolution (with the exception of mention of the refugee problem).

(2) It was agreed in the past with the Palestinians that Resolution 242 will be the basis for an arrangement with them and that the permanent agreement will lead to the implementation of the Resolution. But along with this, basing on Resolution 242 does not mean, from a legal standpoint, that arrangements along the lines of those taken with Egypt, with Jordan, or relating to Lebanon (Resolution 425), should be adopted vis-a-vis the Palestinians, and this in light of the highly significant differences that make it impossible to implement the Egyptian precedent or another precedent on Israel's borders in the Palestinian track.

A. The interpretation and implementation of the Resolution should be in light of the aforementioned fact that it was not originally intended to apply to the Palestinian entity.

B. The instructions of the Resolution, in principle, relate to states.

C. The Resolution relates to secure and recognized borders.  There are not, nor ever were, such borders with the Palestinians, in contrast to the historical situation - in various forms - regarding the states on Israel's borders.  It goes without saying that the "Green Line" of the cease fire agreement was not an international border.

D. The status of the territories of Judea, Samaria and the Gaza Strip are substantially different than the standing of the Sinai Peninsula, for example, since these areas were not under a recognized sovereignty of any state in the period of the outbreak of the Six Days War.  That is to say, there never was a recognized border between Israel and the areas of Judea, Samaria and the Gaza Strip.

E. Resolution 242 talks of withdrawal "from territories" and not "the territories", and this was set in order to allow for withdrawal from only part of the territories.

F. The negotiations should be based, among other things, on the historical and religious ties to the areas of Judea, Samaria and Gaza; on geographic data and their effect on Israel's security needs; the size of the settlements; and the tight ties to Israel and Israeli national interests.

(3) Beyond this it is proper to emphasize that the inclusion of Resolution 242 within the framework of the invitation to the Madrid Conference, that was the first table where Palestinians sat in formal negotiations with Israel, was based to a large extent on that a joint Jordanian-Palestinian delegation was set there.

(4) As mentioned, "secure borders" should be emphasized according to its simple meaning.

(5) The result is that from a legal standpoint the way that Resolution 242 was implemented in arrangements with the Egyptians has no relevance to the Palestinian track.  Resolution 242 in no way applies in the Palestinian context in a way that is the same as it applies to states in the region covered by this Resolution, that had a common international border with us. It applies only to the extent that its principles are relevant to the Israeli-Palestinian negotiations.

(6) There is no similarity between the this situation and that in Lebanon relating to Resolution 425, as there was a historic international border.

(7) The aforesaid does not exhaust Israel's legal arguments on the subject. 

(8) This is also Israel's negotiating position, and it was expressed also in the positions presented by prime ministers in the past.

Dr. Aaron Lerner, Director
IMRA (Independent Media Review & Analysis)
(mail POB 982 Kfar Sava)
Tel 972-9-7604719/Fax 972-3-5480092
INTERNET ADDRESS: imra@netvision.net.il
pager  03-6750750 subscriber 4811
Website: http://www.imra.org.il
 

Jews expelled from Arab countries left behind $900b. in assets

Jerusalem Post, January 3, 2001 
By Itim

TEL AVIV (January 3) --- Jews who emigrated from Arab countries between 1922 and 1952 left behind an estimated $30 billion in assets, according to former internal security minister Moshe Shahal, who chairs a world
organization  of Jews from Arab countries.

Shahal told a news conference in Tel Aviv that the organization was raising the issue to balance the claims of Palestinian refugees in the peace negotiations. He maintained that Jews should also be compensated for having been exiled from Arab countries, including Iraq, Syria, Lebanon, Egypt, Libya, Tunisia, Algeria and Morocco.

Shahal said that a political settlement with the Palestinians should take into account that some 850,000 Jews once lived in these countries. Many were stripped of their assets and expelled in the aftermath of Israel's establishment in 1948, or due to the rise of Arab nationalism in the 20th century.

In all, some 600,000 Jews emigrated from Arab countries, while other Jews of Middle Eastern origin emigrated from elsewhere.

Shahal said his organization planned to submit a report about public Jewish property in Arab countries, on the basis of affidavits submitted by people once involved in community affairs in those countries.

In his statements after the Camp David summit in July, US President Bill Clinton mentioned the need to resolve the issue of Jews in Israel and abroad who became refugees due to Israel's founding.