The "right of return" relates to a larger right, "the freedom of movement," which includes: the "liberty of movement and freedom to choose residence," the "freedom to leave any country, including one's own," and the "right to enter one's own country," as the United Nations puts it. The idea is that a country may not restrict movement within its boundaries (within reason), may not prohibit one's right to leave its territory, and may not prohibit one from returning to one's country.1
Many of those this right applies to are refugees, displaced persons, and exiles. Human Rights Watch, which has long advocated this right, lists instances where it have supported it in the past: "Guatemala, El Salvador, Honduras, Malawi, Burma, Mauritania,...Bosnia, Croatia, Kosovo, East Timor, Ethiopia/Eritrea." Of course, the best known "right of return" issue revolves around the Israel-Palestinian situation.
The numbers of Arabs displaced as a result of the Arab-Israeli war (known in Israel as the Independence War) between 1947 and 1949 is large. The prewar population was around 1.3 million (figures from www.britannica.com), those displaced being between 520,000 and 1 million (the numbers tending to vary, predictably, according to the source). By 1949, close to half of the prewar population was living on the West Bank (700,000) and around 20% of the Arab Palestinians left Palestine completely, mostly going to nearby countries, Egypt, Iraq, Jordan, Lebanon, and Syria, in particular.
Israel has a "right of return" law that allows all Jews the right to immigrate there—a place considered to be the "homeland" of the Jews (an idea that we'll return to). It does not recognize a reciprocal right for those Palestinians who were forced (either directly or indirectly) to flee or leave their homeland as a result of conflict (or who have left in the years following). That this non-recognition is an infringement of what is considered to be a universal human right and a violation of international law makes this an important question.
Universal Declaration of Human Rights
In the UDHR, signed 10 December 1948, it states in its preamble that the "peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights," "Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms," and that the UDHR is "a common standard of achievement for all peoples and all nations."
The pertinent article is 13, in which it states that:
- Everyone has the right to freedom of movement and residence within the borders of each State.
- Everyone has the right to leave any country, including his own, and to return to his country
It seems fairly clear with the possible
objection to what is meant by "including his own" (see
footnote 1).
The "problem" with the UDHR is that is not legally binding, therefore, despite it being completely in the spirit of what the Member States of the UN Charter, there is no force of law involved.
Israel has been a Member State since 11 May 1949. That might bring up a further objection that the displacement occurred prior to the country's admission to the UN. According to the Charter of the UN, chapter I article 2 paragraph 2 "All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter." In chapter II article 4 paragraph 1: "Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations."
It is, of course, interesting that articles 5 and 6 provide for suspension of "rights and privileges" for having "preventive or enforcement action" taken by the Security Council and expulsion from the organization for "persistently [violating] the Principles contained in the present Charter" (repectively).2 Of particular note is that the violation is of the "Principles" of the Charter—not relegating it to merely the "letter of the law," but the spirit.3 Further, in the "Declaration of the Establishment of the State of Israel" (14 May 1948, their Declaration of Independence), Israel promises that it will be "faithful to the principles of the Charter of the United Nations."
Another objection, voiced by the Committee for Accuracy in Middle East Reporting in America (CAMERA, I'll use its criticisms as a guide to objections), is that the "return to his country" was "never intended to establish a right of return, rather it was added to underscore the right to leave" (world.std.com) and that it 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'" (quoting a UN analysis by Jose Ingles). It is noted that the study (the revised version appeared in 1963) did not mention Palestinians and that the "examples involve people who were prevented from leaving their country based on such factors as race or color, sex, language, religion, political opinion, etc."
Problems with this should be apparent. Setting aside that one could possibly argue that some of those "factors" could pertain to the Palestinians, there are obvious fallacies. Even if the intention was to "underscore the right to leave," it does not invalidate the "right of return," especially since that is what it says. Secondly, that the study did not mention Palestinians or the examples (as is contended) pertain to them specifically, really has no bearing on the issue.
Interestingly, the CAMERA "backgrounder," which is dated September 2000, seems to ignore that a reevaluation of the subject was prepared in 1997 (interestingly, I was able to find the 1997 report but not the original). In it, the Ingles study is quoted, wherein he says "The right to change one's nationality presupposes the right to leave one's country. On the other hand, the guarantee against arbitrary deprivation of nationality ensures one's right to return to one's country" (this is in reference to article 15, about to the right of nationality, to change one's nationality, and the right not to be "arbitrarily deprived" of it).
As part of the "Conclusions and Proposals," the author writes "violations of human rights and freedoms in connection with the exercise of the right to enter a foreign country are so numerous that it has become a matter of urgency to adopt an optional protocol to the International Covenant on Civil and Political Rights concerning the right of entry" (the ICCPR will be returned to). Also part of the conclusion/proposal is a call to "complete the work" by Ingles and another who made a similar study. Perhaps it was ignored because it, too, fails to mention Palestine.
Similar to the second objection (the date), there is the claim that since the Palestinians who were displaced were not citizens or (legal) residents of Israel it cannot apply to them. That it happened before Israel became a country makes this argument absurd. Further, the question of what it means by country was covered by the UN in 1999 (see footnote 1) in its "general comments" on the ICCPR.
It also takes the stand that Israel's identity is of a Jewish State so much that an influx of refugees would destroy Israeli sovereignty (thus Israel, itself). To back this, it cites the UDHR: "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." At once claiming that the UDHR invalidates itself if article 13 says/means what it clearly does and trying to use a document that is being ignored in the first place, since it isn't legally binding (and ignoring what the implication is for those who ignore article 13). The selective use of the document sheds light on the nature of the objection.
But, admittedly, the UDHR cannot be used as a legal force on the issue, despite it being clearly the intention of the UN that it should be considered so by its Member States. Which is why we turn to other things.
United Nations General Assembly Resolution 194
The day after the UDHR was adopted by the UN General Assembly, the GA passed Resolution 194. Under article 11, it states:
Resolves that 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, 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;
Instructs the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations;
(And as Human Rights Watch so astutely adds, "compensation is not a substitute for the right to return to the vicinity of a former home should that be one's choice.")
The CAMERA objections are again lacking. Its first charge is that the Arabs have violated other provisions of the resolution—this is a dodge and irrelevant as to whether Israel has fulfilled its part of the resolution. It says that the resolution only suggests, since "it could not 'require,' since it was a General Assembly rather than a Security Council resolution"4 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" (bold emphasis was CAMERA's). It is then claimed this means (apparently "should be permitted" is not strong enough wording or that "should" has some new meaning) it is only a "recommendation" and that it cannot be "characterized as creating a 'right.'" This ignores the UDHR, stipulating quite clearly that the UN has designated it as a right (that the UDHR is not legally binding is irrelevant here).
It further states that the "live at peace" phrase is important, since it would require Palestinians to "accept Israel's right to exist, something that very few of them, even today, seem truly willing to do." That this is not necessarily true is unimportant, apparently. Whatever the veracity of "very few of them," there is no requirement of acknowledgment of one's right to exist needed to live peaceably. Admittedly, without that acknowledgment the potential for conflict is increased (and the conflict from both sides has made any "relations" issue thorny, at best), but the criticism is really more distraction from the issue.
It does correctly note that there is no mention of return rights for descendants. And while this is a matter that would need to be addressed in future resolutions, it glosses over the fact that the resolution was made when that would not be much of an issue.
Then it argues that the Article puts "repatriation, resettlement, and payment of compensation on an equal footing" and 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." The resolutions offered as "evidence" do not agree and it does not seem "quite clear" that it is not meant to be "binding"—particularly in light of its insistence of the right in the UDHR. That it allows for compensation for those "choosing not to return," does not mean (as Human Rights Watch noted) it is a substitute or that any of the three options are not meant to be "binding." In fact, the "plain language" suggests the opposite (which will be reiterated below). Also, that compensation is called for in cases of "loss of or damage to property" regardless of return or not and that "economic and social rehabilitation of the refugees" are part of the resolution go without comment.
The CAMERA piece claims that "all the Arab states voted against Resolution 194, precisely because it did not establish a 'right of return,' and because it implicitly recognized Israel." Even if this is true, it still cannot change what the resolution states in "plain language." It also resorts (again) to the argument that because there have been Arab violations of the resolution and other related ones, it is invalid. The fallacy holds, of course. It also ignores similar violations on the part of Israel which should be telling. If one side wishes to make the other's actions an issue, one cannot expect one's own dirty laundry not to be aired. Of course, those actions still do not have any bearing on the words or intention of either the UDHR or the resolution.
Again, the resolution (like the UDHR) does not carry legal force (footnote 4) but it clearly outlines the intentions of the UN and later resolutions and statements (including one that is legally binding) build upon both it and the UDHR.
International Covenant on Civil and Political Rights
Unlike both the UDHR and Resolution 194, the ICCPR does have force of law. According to this Convention (article 12), adopted in 1966 with its "entry into force" in 1976 after the required number of ratifications/accessions:
- 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.
- Everyone shall be free to leave any country, including his own.
- The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
- No one shall be arbitrarily deprived of the right to enter his own country.
Again, the same thing is repeated quite clearly, showing intent and meaning in "plain language." Interestingly, the CAMERA backgrounder does not address this Convention (one might surmise because it cannot be so easily dismissed, but that may be assuming too much). Even more interesting is that Israel did not criticize it either. It was ratified in October 1991. Under the "Declarations and Reservations" for the Convention, Israel only had a reservation concerning article 23 which pertains to marriage.
There was a "notification," as required by article 4, where a state may derogate from certain obligations—but only to the "extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin." It is based on being in a state of "public emergency which threatens the life of the nation." Israel claimed that "since its establishment, the State of Israel has been the victim of continuous threats and attacks on its very existence as well as on the life and property of its citizens" and that "these have taken the form of threats of war, of actual armed attacks, and campaigns of terrorism resulting in the murder of and injury to human beings." The "state of emergency," therefore has existed since May 1948 and has "remained in force ever since."
While that sounds like license to disregard whatever articles desired (which isn't to say it won't be or that the Convention is being held as law in the first place), certain articles may not be (article 7 concern prohibiting the "[subjection] to torture or to cruel, inhuman or degrading treatment or punishment" seems notable given Israel's record). And though 12 is not on the list, that article isn't the one being notified on. It's article 9 which deals with arrest and detention (while outside of the scope of this, a subject that bears looking into). Further, any derogation by a state must be accompanied with notification and valid reasons.
Once again, the UN makes clear that the "right of return" is a genuine right and denial of that is going against the UDHR, General Assembly resolution 194, and the (legally binding—the article in question not being notified on) ICCPR. It has also been reaffirmed on numerous occasions
The question of "ownership"
Since Israel's "right" to the land is tied into the contention that it "belongs" to it, and that the Palestinians have been something akin to squatters during the time Jews were unable to reside in their homeland, it seems important to discuss this.
Much is talked about how the Jews were forcibly removed from Israel and that the land was theirs to begin with, therefore modern Israel is not land "taken" from the inhabitants but reclaimed or returned to the Jews, as it is rightfully theirs. This bears some looking into.
What is Israel's claim to the land and is it any more theirs than anyone else? One argument about the Palestinians is that since the land "belonged" to the Jews all along, their period of residence (several hundred years) has no bearing on whether the land can be considered theirs (even for the purpose of sharing). Unsurprisingly, the heart of the claim (something that isn't all that commonly voiced anymore except from evangelical Christians) is the Tanakh—or, to Christians, the Bible, specifically the Old Testament.
Though it can be put in other terms of history and culture (which will be addressed), the religious component is not to be overlooked, particularly when one equates ones religion with history. It is the asserted historicity of the "Big Three" religions (Christianity, Islam, Judaism) that makes them so appealing (among other aspects). In the Tanakh, God (or G-d, if you prefer) promises the land to the Hebrews. This first occurs (giving a location) in Genesis 15:18: "On that day the LORD made a covenant with Abram, saying, 'To your offspring I assign this land, from the river of Egypt to the great river Euphrates.'" This original (and substantially larger) promise gets repeated and reaffirmed in subsequent books.
This "promised land" is usually identified with Canaan, which encompassed (primarily) the area of Palestine-Israel in question.5 (Following the Biblical narrative) When Israel arrived, it was already inhabited, the area needing to be taken mainly by conquest (detailed in the book of Joshua; also discussed in Numbers and Judges). According to The Oxford Companion to the Bible, "the subjugation takes only five years (see Josh. 14.7, 10), and most of the indigenous population is destroyed (Josh. 11.16-20." Of course, they were not only in the right against the idolators and sinners that lived there, they were assured of victory because they were the "chosen people "and this was their promised land. In fact, they only lost the land because they sinned against their God (which they had been warned about on many occasions)—though the loss was to be temporary and the land regained.
Up until modern times (and still in many circles), the historical information of the Bible has been held to be accurate. Historians and archaeologists have found that not to always be the case (though the historical aspect of the Bible is not worthless). In general, the story is correct.
Habitation in the area can be traced back to prehistory and settled agricultural communities as far back as 8000 BC. Semitic inhabitants are thought to have moved into the area and settled (some remaining seminomadic) between 3000 BC and 2000 BC and become the dominant population. They suffered from a number of invasions, and were under Egyptian domination for a couple hundred years. It is thought that those identified as the Israelites entered the land around 1250 BC. They settled in the hills and in the south and relations between them and the Canaanites (who probably were groups of related tribes rather than a single unified people) were antagonistic.
About a century later, the Philistines invaded and consolidated power in the South. During the tenth century BC, the Israelites were able to break Philistines' hold on the land and conquer the native peoples. At that point, Canaan became, essentially, "Israel." Some scholars believe the "conquering" was a longer process, involving a certain amount of assimilation (this would be contrary to the proscriptions of intermarriage and sharing culture found in the Bible—yet would also explain the need for such proscriptions).
This is how it is thought the land became Israel. Why is that important? When the land is claimed to be theirs by "right" and one of the main reasons given (again, the "divine gift" reason is usually left unspoken) is that the land was property of the Jews since a few decades after 1000 BC. It is interesting that few discussions mention the original inhabitants of the region as if history began about that time. But then that is precisely why it is important to note. Israel's claim to the land rests on religious belief and conquest. That is what established them and the area as Israel in the first place and the sole reason Palestine was chosen to be the Jewish homeland in the last century.
The claim that they traditionally held the land and were bound to it culturally and spiritually is not invalid in and of itself. On the other hand, it is not dissimilar to the claims of the Palestinians who had to leave their land, a land that was not sparsely populated or left unimproved (as some have suggested as a way to make the influx of Jewish immigration to the area seem less invasive). Stripped of the religious aspect and looked at within a historical context (that takes into account the time prior to the existence of biblical Israel), the question of ownership seems one more of "time" and conquest. The Jewish people controlled it for longer than any single Arab group and they took the land back in the 1940s.
"Given" to them in 1947 by the UN with the partitioning of British Palestine—of course, that would later entail certain obligations as has been noted—Israel has felt it to be a Jewish State and under threat if the refugees come back (the term "underpopulated" usually means fewer Jews than Arabs in an area). One wonders if the fear is part of the reason Palestinians are still denied that right. Of course, it wasn't like Israel didn't know there were people already living there when it decided to become a country (either time).
Refugees and numbers
There have been some attempts on the part of Israel to mitigate the situation by allowing the repatriation of Palestinians. One offer to allow 100,000 in 1949 was turned down by the Arab side. The charge (referring back to the CAMERA piece) is that it was because it "implicitly recognized Israel's existence." That may have been a part of it, but again, the Palestinians wanted a full right of return. That is why later "allowals" have been inadequate from their point of view. Fifty-thousand as part of a family reunification program in the 1950s, for example. Other repatriations—75,000 between 1967 and 1993 and 90,000 since the Oslo Accords—have been location specific: the West Bank or Gaza and Palestinian Authority controlled territory. More of a limited right of return. It seems more of an attempt to temporarily placate dissension that a real try to amend things.
According to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) has 3.8 million refugees registered. Charges that the number is too large are not without merit. While the UNRWA defines a Palestinian refugee as "persons whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict," there is no strong check in place to determine the veracity of claims.
In 1950, the number was 914,000 and has grown since. Since descendants are considered, population growth makes the number at least plausible, despite it not being a "solid" number. Many on the Israeli side refuse to count descendants.
Whether there is ever a full (or even less limited) "right of return" granted to Palestinians remains to be seen. Given history and the current climate in the region, as of this writing, it seems highly unlikely.
1The question of what defines "one's country" comes up. Neither Article 13 of the Universal Declaration of Human Rights (UDHR), nor Article 12 of the International Covenant on Civil and Political Rights (ICCPR) differentiates between "alien" or "national." The UN, in its comments on Article 12 (comments written in 1999), states that the phrase "his own country" is "broader than the concept 'country of his nationality,'" and is not limited to nationality that is "acquired at birth or by conferral." It is "at the very least"
an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them. The language...permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence.
Further, it is meant to apply
to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.
2That Israel has violated/ignored not only the "principles" but numerous Security Council resolutions (which carry force of law) should not be in dispute. This is to fend off any attempt made to chum the water with charges that the United States has also done so in many instances—something else that should not be in dispute. Further, the US has backed Israel by defeating over thirty Security Council resolutions critical of or condemning Israel since 1972. But the often appalling record of the US in upholding its "obligations" to the Charter is irrelevant to the question of Israeli's policy of denying the Palestinian "right of return" in violation of international law.
3It is unlikely Israel would face either punishment, as it requires a Security Council recommendation. The US is a "permanent member" (one of five) of the SC, which allows it to kill resolutions by a veto, regardless of the vote by other members of the council.
4It is true that General Assembly resolutions are also not legally binding, but as the UN site says, "they carry the weight of world opinion on major international issues, as well as the moral authority of the world community." That Israel continues to defy it seems notable.
5Apparently, the "boundaries" are rarely exact and variations exist among the different biblical writers. Regardless, the heart of the area coincides with territory in question.
(Sources: www.hrw.org, world.std.com/~camera/docs/backg/rret.html, www.britannica,com, The Oxford Companion to the Bible 1993 Bruce M. Metzger and Michael D. Coogan, eds., Tanakh, a new translation of the Holy Scriptures according to the traditional Hebrew text 1985 The Jewish Publication Society; most sources are from www.un.org and affiliated sites, including www.unhchr.ch/udhr/lang/eng.htm, www.un.org/Depts/dpa/qpal/docs/A_RES_194.htm, www.unhchr.ch/html/menu3/b/a_ccpr.htm, www.hri.ca/fortherecord1997/documentation/subcommission/e-cn4-sub2-1997-22.htm, www.un.org/unrwa/index.html