Denial of Refugee Return: The Core Dimension of Israel’s Apartheid

On May 15, 2011, and for the first time since their expulsion in 1948, tens of thousands of Palestinians in Lebanon, Syria, Jordan and the occupied West Bank and Gaza marched toward the borders of the part of Palestine occupied by Zionist forces in 1948. Logistical organizers of each of these return marches had planned for symbolic actions in which participants were to stand near the borders, listen to flowery speeches about the right of return and the sanctity of the homeland, and then get back on their buses and return to their refugee camp residences. Many of these organizers remained near the platforms erected for the speeches, congratulated themselves on an impressive turnout, and delivered their speeches to empty chairs.

What the organizers had not considered was that, even four generations after the 1948 Nakba, Palestinian refugees could not idly picnic and gaze at their homeland if there was the slightest chance that the aspiration for return might materialize as reality. In the tens of thousands, young and old men and women rushed to the border in the hope that this could be the long awaited day when they could experience the feeling of finally being home. Round after round of Israeli sniper bullets were fired into the crowds standing meters away from their country, but the crowds only got bigger, each person narrowly sidestepping countless land mines and bullets at some of the most militarized borders in the world. Many were killed and hundreds were injured by the Israeli soldiers stationed at the barbed-wire borders, and whose orders dictated that not one Palestinian refugee’s foot was to touch the ground of Palestine. Nevertheless, the fact that Palestine’s refugees are willing to make the ultimate sacrifice for the chance to go home was once again made incontrovertibly clear.

This was not the first instance in which the Israeli regime had issued orders to shed blood to stop the return of Palestinian refugees. Indeed this was central to the very establishment of the state that imposed a regime of apartheid over those Palestinians who managed to remain in their country. While there has been increasing discussion among activists, much of this discussion ignores the centrality of the refugee issue to Israel’s commission of the crime. One reason for this “oversight” (if we are to call it that), is that there is a common misunderstanding of the crime of apartheid at the popular level—partly a function of the whitewashing of South Africa’s anti-colonial struggle—which detaches the commission of the crime from the colonial context of apartheid in both South Africa and Palestine. Looked at in this ahistorical fashion, apartheid becomes synonymous with racism and discrimination. The remolding of the Palestinian liberation movement into an anti-apartheid movement thus appears to many Palestinian activists, the ones for whom refugee return and liberation are the litmus tests for the validity of any analysis, as part of a ploy to water down the demands of an anti-colonial movement by characterizing it as one where, if the Israelis treated us a little better, everything would be fine.

If return and liberation activists feel a sense of alienation from the anti-apartheid discourse, it is because much of the writing that offers an examination of Israel’s perpetration of the crime of apartheid relegates Palestinian refugees’ rights to a secondary position. Much of this effort is guided by the impulse to compare Palestine with South Africa under apartheid and/or is driven by the logic of partition. As elaborated below, refugee return was not central to the South African struggle against apartheid, and so those seeking comparisons will not consider the cause of return as one central to such a struggle. More dangerous is the partition logic, which takes the division of Palestine into two states as the given solution. The fact that the PLO leadership has itself adopted this position and transformed itself from a liberation movement to a Bantustan administration has only served to fuel this partition logic. Under this logic, the purpose of an examination of Israeli apartheid is to isolate and expose those Israeli apartheid practices operating in the West Bank and Gaza Strip, at best extending them to the part of Palestine occupied in 1948. What this analysis fails to grasp is that as a crime, apartheid applies to a regime in its totality, and not one or other of its particular manifestations and, more importantly, that the place of the struggle for refugee return is at the core of Israel’s brand of apartheid. In what follows, I examine the place of Palestinian refugees under Israeli apartheid and the role of refugee return in ending the commission of this crime against humanity.

Denial of Return and the Crime of Apartheid

On November 30, 1973 the UN General Assembly ratified its resolution 3068. This resolution entered into force on July 18, 1976 as the International Convention on the Suppression and Punishment of the Crime of Apartheid, offering for the first time a legal and universally applicable definition of this crime against humanity, as well as an enforcement mechanism to be adopted against states found to be committing it. Article II of the Convention states that any state that commits “inhuman acts… for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them” is guilty of committing the crime of apartheid. It then goes on to list these inhuman acts, including among them—in Article II(c)—“any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including… the right to leave and to return to their country.”  This article lists other rights—such as the rights to nationality, freedom of movement and residence—that also directly affect refugees but that will not be dealt with here.

It is clear in this, and in subsequent legal definitions of apartheid, that the commission of “any”of the inhuman acts listed (for example denial of return) in the context of “establishing and maintaining domination” by one group over another (such as “the Jewish people” as defined by Israeli law over “non-Jews” as defined by their exclusion from the same body of law and policy) could suffice to find that the state is committing this crime against humanity. As such, even in the hypothetical scenario in which the Israeli regime were to end its apartheid policies and practices toward the Palestinians living within the mandate territory of Palestine, it would still be committing the crime of apartheid vis-à-vis Palestinian refugees if it continued to deny their rightful return.

Denial of Return and Israeli Law and Policy

“Are [we justified] in opening fire on the [Palestinian] Arabs who cross [the border] to reap the crops they planted in our territory; they, their women, and their children? Will this stand up to moral scrutiny?… We shoot at those from among the 200,000 hungry [Palestinian] Arabs who cross the line [to graze their flocks]—will this stand up to moral review? Arabs cross to collect the grain that they left in the abandoned villages and we set mines for them and they go back without an arm or a leg... [It may be that this] cannot pass review, but I know of no other method of guarding the borders.” These are the words of Moshe Dayan, one of Israel’s most notorious military generals and its defense minister in the 1960s and 1970s. From the moment of its establishment, the main task of the state of Israel was to continue along the path set by the Zionist movement, to take control over the maximum amount of Palestinian land for exclusive Jewish settlement while using any and all means to ensure that the smallest number of Palestinians could stay on that land.

The legal mechanism through which Israel has denied the return of the Palestinian refugees of 1948 has been through its 1952 Citizenship Law. Article 3 of this law states that to be entitled to citizenship, a person would have had to be present “in Israel, or in an area which became Israeli territory after the establishment of the State, from the day of the establishment of the State [May 1948] to the day of the coming into force of this Law [April 1952].”¹ Two years earlier, the Israeli parliament had passed the Law of Return entitling all Jews, and only Jews, the right to enter and become nationals and citizens of the new state.

After the displacement and forced exile of over half a million Palestinians in the 1967 war, Israeli military authorities carried out a census of Palestinians in the 1967 occupied territory; Palestinians not registered in that census were not allowed residency status and their right to enter Palestine was thereby denied. The 90,000 Palestinians who were abroad at the time of the occupation were also stripped of their residency status.² Furthermore, Palestinians who were included in the census lost this residency status if they remained abroad beyond a specified period of time and were thus added to the ranks of displaced Palestinians abroad. Denationalized in this way, the issue of preventing refugee return became a routine administrative matter for Israeli soldiers staffing ports of entry into the country, and for whom the denial of a Palestinian’s entry was as simple as applying an “entry denied” stamp upon a travel document. Moshe Dayan, as quoted above, makes clear how Palestinians trying to enter their country elsewhere along the border (referred to officially as “infiltrators”) have been dealt with. If a Palestinian refugee is able to obtain a foreign passport from a country with friendly relations with Israel, and even if they did manage to obtain a visa to enter their homeland, they could only do so as temporary tourists on a visitor’s permit; one that entitles its bearer to no more rights or privileges than those allotted to a pilgrim coming to see the sites of the Holy Land for a few days.

The only other option available to displaced Palestinians was to engage Israel’s complicated family reunification process, whereby spouses or other family members would apply to obtain residency status for a relative in exile. There existed two processes for family reunification; one for Palestinian citizens of Israel seeking reunification with spouses residing in the occupied territory and another for the Palestinians in the 1967 occupied territory seeking reunification with foreign spouses. The former process was stopped in 2002, and subsequently banned by the 2003 Temporary Amendment to the Citizenship and Entry into Israel Law which has been renewed every year since than. As for the process that applied to Palestinians in the West Bank and Gaza Strip, in addition to the hundreds of thousands “non-residents” who were denied family reunification in the 1970s and 1980s, Israel abruptly suspended the family reunification process altogether in 2000, forcing approximately 120,000 Palestinians in the West Bank and Gaza Strip to choose between breaking up their family or going into exile.³ In 2007, the Israelis issued around four thousand of such visas as a good will gesture to bolster the position of Palestinian Authority President Mahmoud Abbas, and since then it has used these permits as one of the many tools at its disposal to reward or punish the Palestinian Authority.

In 2001, and to ensure that Israeli negotiators did not sway in their commitment to the Zionist consensus, the Israeli Knesset passed the Entrenchment of the Negation of the Right to Return Law. Section 2 of this law states that “refugees will not be returned to the territory of the State of Israel save with the approval of the majority of the Knesset Members.” Section 1 of the law defines a refugee as a person who “left the borders of the State of Israel at a time of war and is not a citizen of the State of Israel, including, persons displaced in 1967 and refugees from 1948 or a family member.”⁴ As such, even if Israeli political leaders did somehow decide to cease their regime’s violation of international law as it pertained to Palestinian refugees, they would need the permission of a parliamentary majority to do so. Through the combination of these laws and policies, the Israeli regime has effectively denied displaced Palestinians their “right to leave and to return to their country.” In the process, it has also forced many additional Palestinians to leave Palestine and become displaced persons in order to keep their families together.

Return: The Only Way to End Israeli Apartheid

From the above it is clear that Israel is denying Palestinians their right to return to their country in law, policy and practice, and that it is doing so within the context of illegally maintaining both a Jewish demographic majority and Zionist control over Palestinian lands expropriated over the past century. In other words, Israel has denied Palestinians' right to return in order to establish and maintain a regime of domination by one group over another, i.e. the crime of apartheid.

The comparison with South African apartheid yields significant results. In the case of South Africa, large scale displacement was mostly carried out within the country. The apartheid regime’s Homeland policy sought to concentrate the indigenous Black South Africans, who accounted for 90 percent of the population, within the Bantustans (or Homelands) which were non-contiguous strips of land constituting 13 percent of the country’s land mass. The goal was to have these Homelands recognized as independent states. If all the Blacks were internationally recognized as being citizens of other states—even if these were non-sovereign “Mickey Mouse” states (as the South African resistance described them)—South African apartheid would appear democratic because there indeed existed formal political equality for the white colonists. Millions of Black South Africans were thus displaced into the Homelands and prohibited from returning to the white areas that were supposedly another country. South African apartheid was thus marked by internal displacement, which in the case of Palestine accounts for only a minority of displaced Palestinians (around 500,000 of a total displaced population of over 7 million). Xtrazex Spain Another central feature of South Africa’s apartheid regime was that it denied not the right of return, but the right to leave one’s country. Black South Africans were required to obtain an exit visa to leave the country, and applications for these were systematically denied as were applications for travel documents that would enable their carriers to travel.

To understand this difference we need to conceptualize apartheid as a means and not an end. The goals of South African and Israeli apartheid, although both committed in the context of settler-colonial projects, are radically different. In the case of South Africa, the apartheid regime’s main purpose was to exploit the black worker in the country’s mines, factories and households. This exploitation, which essentially manifested as a form of slave labor, enabled the white ruling class to reap immense profits, making South Africa’s economy the most lucrative in the African continent. The expulsion of a black person in this context was nonsensical as every black South African that crossed the border represented the loss of a potential exploitable worker. As such, the anti-apartheid movement in South Africa was as much about the right to form effective labor unions, protect workers and reclaim the country’s natural resources for its indigenous inhabitants as it was about the right to vote. Zionism, however, has sought to create an exclusively Jewish state on the land of Palestine. Apartheid in the Palestinian context has been driven by the colonists’ ideological need to clear the land of its indigenous inhabitants and replace them with Jewish settlers. Every Palestinian displaced beyond the borders of the mandate territory of Palestine is thus a success for the apartheid regime, and any successful return of a displaced Palestinian is a threat to the regime in its totality. The denial of refugee return is not simply one aspect of Israeli apartheid; it is the cornerstone of the Israeli colonial-apartheid project as a whole.

As the sun set on marches of return on May 15, 2011, a shared sensation swept through the crowds in Lebanon, Syria, Jordan and the occupied West Bank. They were being told that it was “time to go home.” No one could help but think that “home” is not where the buses were going to take them, but behind the soldiers who had prevented their actual homeward journey. Despite any and all efforts to deny and distort this, the knowledge that Palestine is the real and rightful home of the largest and longest standing refugee population in the world is the reason there can never be an end to Israeli apartheid, let alone a durable peace, without the implementation of the Palestinian refugees’ right to return.

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