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Refugee Protection:Domestic Law and the Right of Return

Refugee Protection:Domestic Law and the Right of Return

Anti-Right of Return Legislation by theIsraeli Parliament (Knesset)
On 17 May 2000, the Israeli Knesset passed, in a preliminary vote, a bill that requires the support of an absolute Knesset majority (61 members of parliament) for any future government decision in favor of repatriation into the territory of the Israeli state of Palestinians displaced in 1948 and 1967.

 The bill authorizes the Minister of Defense, pending approval by the Knesset Committee for Security and Foreign Affairs, to grant entry and residency permits to refugees for humanitarian reasons, under the condition that their number does not exceed 100 cases annually. The bill was proposed by MK Israel Katz (Likud) who said the initiative was above party politics, because it was "Zionist, Jewish, Israeli, ethical and right." It received the support not only of the Israeli right-wing opposition, but also of several Labor Party parliamentarians, including Knesset Speaker Avraham Burg and Minister Haim Ramon.

  The current "anti-right-of-return bill" - as well as similar bills restricting Israeli withdrawal from occupied Jerusalem (approved on the same day) and the Golan Heights (1998) - have not yet passed beyond the first reading in the Knesset. Irrespective of whether they will eventually receive the status of Israeli laws, these law proposals aim to discourage the Palestinian and Syrian people and their leaderships engaged in political negotiations with Israel by suggesting that their legitimate demands (right of return of Palestinian refugees; Israeli withdrawal from Palestinian and Syrian lands occupied in 1967) have been "legislated away", and are thus unrealistic.

While it is true that parliamentary majorities for those types of bills are evidence of Israel's inability to engage in historic reconciliation with the Arab people in the region, they do not affect the legitimacy of Arab rights and claims. The Israeli stand that "might makes right" is voided by the Vienna Convention on the Law of Treaties (1969), which defines the principles of international law concerning potentially conflicting domestic versus international legislation. The Convention states, among others, "that a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the [country] of its international obligation or of the consequences of a violation of that obligation." Along these lines, UN High Commissioner for Refugees Sadako Ogata, speaking to an Israeli audience at Ben Gurion University in Beersheba on 23 May, emphasized the legitimacy of Palestinian refugees' demand for repatriation:

Concluding Remarks of the Organizers of the International Conference on Palestine Refugees (excerpts)
(Conf/Pal/4, 27 April 2000) 7. The Organizers reaffirmed the inalienable right of the Palestinian people to return to their land and property, abandoned as a result of the 1948 and 1967 hostilities. They considered the issue of refugee compensation to be an integral element of, but not a substitute for, their right of return.

8. The Organizers  called upon all Governments, including non-contributing Governments, to contribute to UNRWA's budget regularly in order to meet the anticipated needs of the Agency and intensify support for its activities. The Organizers were of the view that, pending a final settlement, any reduction in the level of financing of UNRWA would inevitably lead to further exacerbation of the living conditions of the refugees. The international community should continue to support the vital activities of UNRWA until the question of Palestine refugees isresolved in accordance with relevant United Nations  resolutions and international legitimacy.

"Let me […  express the hope that, as in other situations of forced displacement, the Palestinian refugee problem - although it is one of the most  complex political issues of today's world - be resolved in a humane manner which takes into account the wishes and hopes of millions of people, including of those who want to return." (Israel is the only country among 140 signatories of the 1951 Refugee Convention without any domestic legislation to define and protect refugees and has abstained from ratifying Convention paragraphs which would support Palestinian refugee rights and claims.).

Palestinian Legislative Initiatives in Support of Refugees' Right of Return
Understandably enough, the Israeli law proposals targeting basic Palestinian rights and demands caused concern and anger among the Palestinian public in the 1967 occupied West Bank and Gaza Strip and provoked a debate about the adequate response among Palestinian legislators. Several members of the Palestinian Legislative Council (PLC) demanded a strong Palestinian response, which would go be yond PLC resolutions affirming fundamental Palestinian rights. Among the ideas raised was a Palestinian "right of return law" which, if passed by the PLC, would anchor the refugees' right of return in the Palestinian legal system.

However, problems and potential pitfalls of such Palestinian legislation were discovered to outnumber its advantages - a fact which led the head of the PLC Refugee Committee, Jamal Shati, to oppose this initiative. The disadvantages include:
1. Legislation designed for a mere symbolic purpose, i.e. to respond to Israeli legislation barring Palestinian refugee return, lends legitimacy to the Israeli legislation, because it implies that the latter has force and merits a response;

2. Legislation for mere symbolic/political purpose might also diminish the credibility of PLC legislation both domestically and abroad;

3. Legislation on the refugees' right of return must be part of a comprehensive Palestinian nationality/citizenship law. The current lack of knowledge about basic parameters (e.g territory and borders of the Palestinian state) turns efforts at the formulation of such law into a futile exercise;

NGO Statement - International Conference on Palestine Refugees. (excerpts)
4. Further, we NGOs affirm that the right of return of Palestine refugees to their homes, as stipulated by the General Assembly in its resolution 194 (III) of 11 December 1948, remains a condition sine qua non for the exercise by the Palestinian people of its inalienable rights to self-determination, national independence and sovereignty. This historic relevant resolution, which has been re-affirmed every year by the UN General Assembly, confirms the right of the refugees themselves to a choice of return and restitution of property, and just compensation for those wishing or not wishing to return.

7. We call upon all Governments, including noncontributing Governments, to contribute to UNRWA's budget regularly and to consider to increase their contributions in order to meet the anticipated needs of the Agency and intensify support for its activities. We NGOs believe that, pending a final settlement, any reduction in the level of financing of UNRWA would inevitably lead to further exacerbation of the living conditions of the refugees. The international community should continue to support the vital activities of UNRWA until the question of Palestine refugees is resolved in accordance with relevant United Nations resolutions and intern ational legitimacy.

11. As NGOs we call for the Palestinian refugees to be brought back into the protection framework offered to all other refugees in the world, namely, separate additional representation, full protection and enforcement.

4. Legislation on the refugees' right of return will be detrimental to refugee rights if: i) it is not consistent with international obligations
of the PNA/Palestinian state; e.g. a bill proposing to deny the right of entry to the Palestinian state to Palestinian refugees would violate such obligations, as well as the denial of entry/citizenship based on race, sex, religion, or ethnicity; ii) it does not confine itself to issues over which the PLC/Palestinian state parliament has power to legislate; e.g. a bill stating that Palestinian refugees  are subjects of the Israeli state, or PLC legislation on Palestinian refugee property in Israel are outside the legislative jurisdiction of the PLC/Palestinian state parliament; iii) it does not accurately state the special rights and legal status of Palestinian refugees over whom the PLC/Palestinian state parliament may have jurisdiction to legislate; e.g. legislation which does not incorporate a legal distinction between refugee and non-refugee subjects of the PNA/Palestinian state would infringe against refugees' right of return to homes and properties located in Israel.

While protection of the refugees' right of return by means of Palestinian legislation is not feasible at this stage, a future Palestinian citizenship/ nationality law could include a special "Right of Return (Non-Resettlement) Clause" which specifies the legal status of Palestinian refugees originating from areas of andatory Palestine which are not part of the territory of the Palestinian state. This Clause could include a call upon the international community (United Nations) to continue to take responsibility for refugee assistance via UNRWA until their repatriation according to UN Resolution 194, and the establishment of a "Refugee Return Commission" mandated to investigate, promote, and facilitate refugee repatriation, restitution and compensation in cooperation with the refugee community, PLO and international organizations.