The right of return is alive and well
By Salman Abu Sitta

TWO COMPLEMENTARY words have become an integral part of the Palestinian narrative for the last 53 years: Al Nakba and the right of return. They represent two sides of the same coin: one is the original sin and the other is the atonement for it.

Al Nakba is the largest, most carefully planned and longest ethnic cleansing operation in modern history. The population of 530 towns and villages have been expelled in 1948, removing 85 per cent of the Palestinians in the land that became Israel. Those who did not suffer this fate in the remaining part of Palestine are now in the grip of the most brutal, longest and only occupation in the world.

The Palestinians' determination to hold on to their right of return during many years of unparalleled adversity is unique. Hence, the Israeli indefatigable efforts to undermine it. Their arguments have remained the same since the Provisional Government of Israel, buoyed by the conquest of vast territory, decided in June 1948 to declare publicly its intention to deny the return of the refugees by all means. The first victim of this policy, apart from the refugees themselves, was the assassinated Count Volke Bernadotte, whose political "will" became the famous Resolution 194 (III), para 11 of Dec. 11, 1948, significantly one day after the promulgation of the Universal Declaration of Human Rights (UDHR).

On the ground, Israel expelled the refugees, committed massacres, shot the returnees ("infiltrators"), destroyed the villages, burned the crops, imported immigrants and confiscated refugee property (92 per cent of Israel).

In the propaganda arena, Israel created new myths ("Palestine is a land without people"), such as: the return is not possible, the boundaries are lost, the country is full and the return will pollute "the Jewish character" of the state. None of these myths stand serious scrutiny or can be accepted as legitimate reasons for the denial of human rights.

In the legal interpretation of Resolution 194, attempts are made to undermine it by calling it a "recommendation" or casting doubts on the meaning of "country" and "home". Without serious examination of these claims, or under the guise of "pragmatism", some Palestinian officials and academics adopted these Israeli views. Free exchange of ideas is highly recommended. But undermining inalienable rights is not.

The much-publicised views of Sari Nusseibeh, first presented with an Israeli Likud co-author, Mark Heller, ten years ago, can be summed up as follows: The "recognised" right of return can be fulfilled by the "return" of the refugees to the new state of Palestine (definition unknown). The Palestinians should be citizens of their own (ethnic) state and the Israelis of their own (Jewish) state.

This confuses the concept of sovereignty over a territory, which is political and negotiable, and the right of return, which is an inalienable right and has nothing to do with the territory in question. The two are entirely unrelated. Further, there is no meaning in international law of a "Jewish" state or a Jewish people. The Partition Plan of 1947 (Resolution 181), on whose basis the state of Israel was declared, clearly rejects this concept and stipulates, in chapters 2 and 3, the protection of the full political and civil rights of the Arab "minority" in the Jewish state and vice versa. The state should protect all its citizens, whoever they may be. But Israel declares itself to be the state of those who are not its citizens (the Jews abroad) and not the state of its citizens (Palestinians in Israel). This racist concept is contrary to international law and cannot be accepted.

Doubts cast on the validity of Resolution 194 are a waste of time. The predominant legal opinion supports it. UN General Assembly Resolution 194 is not an invention; it is an application of international law. That is why it has been confirmed by the UN 135 times, a unique case in UN history. It is also derived from the UDHR and the European, American and African similar conventions. It is also derived from the sanctity of private ownership which cannot be extinguished by passage of time, occupation or sovereignty.

Contrary to an erstwhile misconception, the resolution, in line with the Compensation Law, calls for the return and (not or) compensation; the latter depends on the loss and damage with or without return.

Resolution 242 never eliminated Resolution 194. Evidence is clear from continuous reference to it up to the last General Assembly in November-December 2001. The reference in 242, which is dedicated only to the 1967 war effects, to "a just resolution of the refugee question", simply refers the matter to existing resolutions on the issue and to international law.

A Jordan Times contributor raised, on Dec. 30, 2001, the point, also raised by the Israelis, that the Arabs voted against Resolution 194. One needs to know why and how.

The Arab (Egypt, Iraq, Lebanon, Saudi Arabia, Syria, Yemen - Jordan is not mentioned) and the Soviet block voted against the whole resolution (not paragraph 11 - the right of return) because the package contains many ambiguous and unacceptable terms.

Resolution 194 contains 15 paragraphs, of which paragraph 11 refers to the refugees' return in a comprehensive plan of 3 elements: 1) to allow them to return and be compensated; 2) to provide welfare to refugees, later provided by UNRWA; and 3) to facilitate their repatriation and rehabilitation.

Other clauses refer to the internationalisation of Jerusalem, "economic development of the area" with vague and ill-defined terms of reference for CCP. Nothing was said about the then recent (October-November 1948) Israeli new conquest which increased the occupied land from 25 per cent to 60 per cent of Israel's area. The general context of the resolution appeared to support the partition resolution (already rejected by the Arabs because it allocates 54 percent of the country to the Jewish minority which controlled only 6 per cent of Palestine), but, worse still, without any specific boundaries for Israel, which implied condoning Israeli unlimited expansion.

The Arabs never rejected paragraph 11, as evidenced by the proceeding at Lausanne in 1949. In fact, the Arabs accepted Israel as a state at the time, a major and rarely emphasised concession, provided that, first, refugees must return to their homes. The Lausanne Protocol, signed on May 12, 1949, stated this clearly and had an annex of the Partition Plan of 1947 as the basis of discussion. As American diplomatic despatches and the Record of the Meeting of May 12, 1949, indicate, the Arabs' prerequisite for recognising Israel is the return of the refugees. The only exception, according to these despatches (see Burdett, Feb. 12, 1949, FRUS 1949, pp. 744-746), was Jordan, which accepted to settle the refugees on its territory, but asked Israel to withdraw from a bigger territory in Palestine to be able to settle more refugees.

However, the whole question of Arab voting on Resolution 194 is moot. One can ask: So what? The right of return is an individual right which can only be surrendered by the individual himself. Through extension to self-determination, it is a collective right.

As to the international humanitarian law about the treatment of civilians in time of war, it is applicable to Al Nakba and to the present-day occupation of the West Bank and Gaza. The threat of applying the Rome Statute of 1998, which treats Jewish settlers, Israeli army officers and officials of the government of Israel as war criminals, should, when applied, be a serious deterrent to Israeli atrocities.

In the final analysis, the right of return remains the guiding light of the refugees with or without UN resolutions.

The writer is researcher on the refugees and president of Palestine Land Society, London. He contributed this article to The Jordan Times.