The 'Jewish State', the Right of Return and a Durable Solution to the
From the beginning of the Madrid/Oslo process in the early 1990s until its collapse at the end of the decade few political figures, analysts and journalists delved into the implication of Israel’s definition of itself as a ‘Jewish state’ for a comprehensive and durable solution to the Israeli-Palestinian conflict. After all, in the minds of those who crafted the political process that has occupied world leaders for the past ten years, Oslo was to lead to a ‘historical reconciliation’ between the Palestinians and the Jewish state. Oslo was to lead to what is referred to as ‘normalization’ or normal relations.
Few, if any, political figures involved in the Oslo process,
however, bothered to ask how it would be possible to conduct normal
relations between the two states (i.e., relations based on
international law) when one of the states was a self-avowed
abnormal state. As former Justice Minister Yossi Beilin (Labor),
and one of the architects and movers behind Oslo, stated last year
several months after the collapse of the final status talks in
Taba, Egypt: “What we have to understand as a Zionist movement is
that we are doing a very, very unnatural thing here [i.e., the
Jewish state].” The Jewish Agency, which is responsible for Jewish
immigration and construction of new rural Jewish settlements among
other tasks, is more blunt: Israel “is not a regular state, but a
Jewish state for the Jewish people.”
Perhaps those who set up the Oslo process hoped that the
Palestinian state established as a result of the political process
would somehow be a mirror to the Jewish state – i.e., a Palestinian
state for the Palestinian people. There were those, for example,
who advocated that the Palestinians should adopt a Palestinian ‘Law
of Return’ similar to the Law of Return in Israel that would
provide special citizenship and residency privileges for
Palestinians, despite the fact that UN human rights committees have
roundly criticized Israel’s law as being inconsistent with
international human rights law.
The advent of final status talks between Israel and the PLO at Camp
David (July 2000) and Taba (2001) made it abundantly clear that the
issue of a durable solution for Palestinian refugees could not be
tackled without addressing the issue of the ‘Jewish state.’
Israel’s starting point for crafting a solution to the refugee
issue was the maintenance of the ‘Jewish character’ of the state.
Discussion among most Israeli politicians, analysts and even
members of the peace camp about the Palestinian refugee issue that
ran parallel to the official talks at Camp David and Taba focused
squarely on the impact of the right of return onthe ‘Jewish
character’ of the state of Israel. Unfortunately, most of the
discussion and commentary lacked substance and was characterized by
a general hysteria equating the implementation of the refugees’
basic human right to return with destruction and ‘national
suicide.’ Some Israeli commentators even suggested that violent
confrontation, including war, was preferable to allowing
Palestinian refugees to return to their homes and villages of
origin inside Israel.
While successive Israeli governments have argued that
Palestinian refugees cannot return to their homes and villages of
origin inside Israel due to limited space and resources and
so-called security reasons, the primary reason for denying
Palestinian refugees the right of return is to maintain the Jewish
character of the state. Recent studies demonstrate a sufficient
capacity of space and resources for the ordered return of those
refugees choosing to exercise their right of return. Not all
refugees will choose to exercise their right of return. So-called
security considerations, moreover, should be viewed in the context
of a comprehensive peace agreement. Palestinians and Arab states
have offered Israel full normal relations in exchange for a
comprehensive peace consistent with international law and UN
resolutions thus removing concerns about Palestinian refugees being
a potential ‘security threat’ or ‘fifth column.’ The sole reason
for barring the return of refugees, therefore, is to maintain the
Jewish character of the state.
The ‘Jewish Character’ of Israel
What does the Jewish character of state of Israel mean? Generally,
when Israeli political figures and commentators refer to the Jewish
character of Israel they are referring to a state that has a solid
and permanent Jewish majority where the majority of the land is
held in perpetuity for the use of the Jewish people, including
those Jews not holding Israeli citizenship or not resident in
Israel. Israel’s High Court (Ben-Shalom vs. Central Election
Committee, 1988) states that the Jewish character of the state is
defined by three inter-related components: 1) that the Jews form
the majority of the state; 2) that the Jews are entitled to
preferential treatment such as the Law of Return; and 3) that a
reciprocal relationship exists between the state and the Jews
outside of Israel.
The return of Palestinian refugees to their homes and villages of
origin inside Israel is therefore regarded as incompatible with the
Jewish character of the state of Israel because: 1) it would change
the demographic balance between Jews and ‘non-Jews’ (i.e.,
Palestinians); 2) it would necessitate legal reform to incorporate
the fundamental right to equality in Israeli law thus wiping away
the preferential treatment granted to Jews; and, 3) it would
involve recognition of the relationship of Palestinian refugees to
their homes and villages of origin located inside Israel. In other
words, the mass displacement/expulsion of Palestinian refugees is
regarded as the solution to the issue of the Jewish state. From the
early days of Palestinian displacement, Israeli officials have thus
argued that “the refugee question was not simply one of individual
rights but one effecting the fate of countries and peoples and the
desirability of achieving demographic homogeneity.Without the mass
displacement of the Palestinian people – i.e., without the creation
of the Palestinian refugee problem – Israel would not be able to
exist as a Jewish state, but rather would be a normal state of all
its citizens.
The Jewish character of the state of Israel (i.e., Jewish majority
and Jewish control of land) that resulted from the mass
displacement of Palestinians is preserved through a system of
unique laws and institutions. Citizenship and residency laws, for
example, grant exclusive privileges to Jews to immigrate, settle
and acquire citizenship in Israel. Numerous restrictions in these
laws, however, discriminate against non-Jews denying them access to
the same privileges. The 1950 Law of Return grants all Jews,
regardless of their national origin or citizenship, the right to
‘return’ to Israel as the Jewish national homeland.
As Israel Supreme Court Justice Aharon Barak has noted, the
Jewish state “is the state in which every Jew has the right of
return.” Israeli law does not recognize a right of return for
non-Jews, including Palestinian refugees. Under Israel’s 1952
Nationality Law and 1980 Amendment the indigenous Palestinian Arab
population must be able to prove (among a list of 5 conditions for
those born before the establishment of the state of Israel and 3
conditions for those born after) that they were in the state of
Israel on or after 14 July 1952, or the offspring of a Palestinian
who meets this condition. Due to the fact that most Palestinian
refugees were displaced outside the borders of the state of Israel
on or after 14 July 1952, they are unable to resume domicile in
their homeland. Israeli citizenship is almost never granted to
non-Jews.
At the same time Israel has also adopted a series of laws to
expropriate and transfer the land and property (moveable and
immovable) of the indigenous Palestinian Arab population, including
refugees, to the state and the Jewish National Fund. These include
a series of abandoned property regulations, emergency regulations,
a set of absentees’ property laws, and a collection of various
other laws. According to the 1950 Absentees’ Property Law, for
example, Israel acquired control of the property of Palestinian
refugees by virtue of a government payment to the Israeli Custodian
of Absentees’ Property.
The Israeli government thus claimed that the property had been
acquired legally (i.e., by payment) rather than through
confiscation. Property expropriated under these laws is held by the
state of Israel and the Jewish National Fund (JNF) as the
inalienable property of the Jewish people. Under the Basic Law:
Israel Lands, land held by the state and the JNF, which comprises
93 percent of the land in Israel (most of which is refugee
property) “shall not be transferred either by sale or in any other
manner.” Palestinians whose property was expropriated by the state
of Israel for exclusive Jewish use, including by Jews not holding
Israeli citizenship or resident in Israel, are therefore unable to
receive real property restitution.
There is no fundamental right to equality in Israeli law. Under the
1992 Basic Law: Human Dignity and Freedom 1992, for example, which
empowers the Supreme Court to overturn Knesset laws that are
incompatible with the right to dignity, life, freedom, privacy,
property and the right to leave and enter the country, the right to
equality is upheld only so long as it is consistent with character
of the state as a Jewish state. The 1992 Basic Law does not provide
for equality because: 1) religious political parties insisted upon
maintaining the status quo between the State and religion; and, 2)
the majority sought to protect the character of the state as a
Jewish state. Inclusion of a general article on equality was
regarded as an obstacle to the passage of the law.
The law thus enables Israel to uphold discriminatory nationality
and property laws – i.e., the 1952 Nationality Law and the 1950
Absentees’ Property Law, among others –that prevent Palestinian
refugees from returning to their homes of origin because the laws
are compatible with the character of the state as a Jewish state.
Other laws related to the Jewish character of the state include the
1992 Foundations of Law Act, the 1992 Basic Law: The Knesset and
Law of Political Parties, the 1953 State Education Law, the 1967
Protection of Holy Sites Law, and the 1971 Religious Jewish
Services Law.
The Jewish character of the state of Israel is expressed through a
number of quasi-governmental institutions, including the World
Zionist Organization, the Jewish Agency, and the Jewish National
Fund. These institutions functioned as the leadership and
quasi-government of the Zionist movement before the establishment
of the state of Israel in 1948 and continue to function through
special agreements with the state of Israel. According to the 1952
World Zionist Organization – Jewish Agency (Status) Law and
bilateral agreements with the state of Israel, these institutions
are mandated to provide certain services on behalf of the
government, including immigration and the development of land and
new rural communities.
As the internal regulations of these bodies aim to benefit only
Jews, and as the state cooperates and coordinates many of its
governmental functions with them, the needs of Palestinian citizens
are systematically disregarded. There is no parallel government
agency that deals with the same activities for those not covered
(i.e., non-Jews) by the WZO and the Jewish Agency activities. By
giving central roles to these private institutions, the Israeli
government has ensured that key resources are channeled to Jewish
citizens alone while denying accusations of state
discrimination.
The ‘Jewish State’, UN Resolutions, and International
Law
Is Israel’s definition of itself as a Jewish state consistent with
UN resolutions and international law? Political figures, analysts
and journalists in Israel often cite UN General Assembly Resolution
181, 29 November 1947 (‘Partition Plan’) as the basis for
international recognition of Israel as a ‘Jewish state.’ After all,
the resolution recommended the partition of Palestine into two
states, one Arab and the one referred to as a Jewish state. A
simple reading of the resolution, however, reveals that the Jewish
state envisioned in the UN partition plan is not at all similar to
Israel’s definition of itself as a Jewish state.
The Jewish state envisioned in the partition was not an ethnically
or religiously exclusive state for the Jews. Nearly half the
population of the proposed Jewish state was comprised of
Palestinian Arabs. According to the partition plan, the state would
have had a population of 498,000 Jews and 497,000 Palestinian
Arabs, 90,000 of whom were Bedouins in 1948. Moreover, the
Palestinian Arab population included within the Jewish state owned
nearly 90 percent of the land. State land comprised less than 3
percent with the remaining land under Jewish ownership.
The partition plan also included provisions for the protection of
human rights and fundamental freedoms in each of the proposed
states, including freedom of movement and the rights of personal
property among others. The plan included specific provisions
ensuring citizenship and residency rights for the population in
each state and prohibition against the arbitrary expropriation of
property. Moreover, the partition plan conditions international
recognition of independence on the full incorporation of these
fundamental rights with the constitution and fundamental laws of
each state.
Various UN human rights committees, moreover, have found key laws
and institutions relating to the Jewish character of the state of
Israel to be in violation of fundamental principles of
international human rights law. The Committee on the Elimination of
All Forms of Racial Discrimination concluded in 1998: “The right of
many Palestinians to return and possess their homes in Israel is
currently denied. The State Party should give high priority to
remedying this situation. Those who cannot repossess their homes
should be entitled to compensation.”
The Committee on Economic, Social and Cultural Rights (1998) has
noted “with grave concern that the Status Law of 1952 authorizes
the World Zionist Organization/Jewish Agency and its subsidiaries
including the Jewish National Fund to control most of the land in
Israel, since these institutions are chartered under private law,
the State of Israel nevertheless has a decisive influence on their
policies and thus remains responsible for their activities. A State
Party cannot divest itself of its obligations under the Covenant by
privatizing governmental functions. The Committee takes the view
that large-scale and systematic confiscation of Palestinian land
and property by the State and the transfer of that property to
these agencies, constitute an institutionalized form of
discrimination because these agencies by definition would deny use
of these properties by non-Jews.”
The Committee also noted “with concern that the Law of Return,
which permits any Jew from anywhere in the World to immigrate and
thereby virtually automatically enjoy residence and obtain
citizenship in Israel, discriminates against Palestinians in the
diaspora upon whom the Government of Israel has imposed restrictive
requirements that make it almost impossible to return to their land
of birth.” In addition the Committee expressed its “concern over
the plight of an estimated 200,000 uprooted ‘present absentees’
[internally displaced] who are Palestinian Arab citizens of Israel,
most of whom were forced to leave their villages during the 1948
war on the understanding that they would be allowed to return after
the war by the Government of Israel. Although a few have been given
back their property, the vast majority continue to be displaced and
dispossessed within the State because their lands were confiscated
and not returned to them.”
The Social, Economic and Cultural Rights Committee thus recommended
that Israel remedy the problems identified in relation to the World
Zionist Organization, Jewish Agency and Jewish National Fund, and
“review re-entry policies for Palestinians who wish to re-establish
domicile in their homeland, with a view to bring such policies to a
level comparable to the Law of Return as applied to Jews.”
The Jewish State, the Right of Return and a Durable
Solution
As numerous international human rights organizations, including
Amnesty International and Human Rights Watch, have noted since the
collapse of the political process between Israel and the PLO more
than a year ago, human rights and international law must be at the
center of a comprehensive solution to the conflict in the Middle
East. A comprehensive solution must include recognition of and
means for implementation of the basis human rights of Palestinian
refugees – i.e., right of return, real property restitution and
compensation. Of necessity, this also means that a comprehensive
solution must address those aspects of Israel’s definition of
itself as a Jewish state that are incompatible with international
law and an obstacle to normal relations with all states in the
region.
Unfortunately the current trend inside Israel as evident in opinion
polls, legislative action, and statements by political figures is
not encouraging and reflect a policy that aims to entrench the
Jewish character of the state by further reducing the non-Jewish
population and placing more restrictions on the fundamental human
rights and freedoms of the non-Jewish population. A poll conducted
by the Jaffee Center for Strategic Studies during the first part of
2002, for example, found that 46 percent of Israel’s Jewish
citizens favor transferring Palestinian citizens of the state out
of the country, an increase from 38 percent a decade ago. More than
60 percent were in favor of transfer by ‘encouraging’ Palestinians
to leave the country through special incentives. More than
three-quarters of those surveyed, moreover, were opposed to
Palestinian citizens of the state being involved in important
decisions of the state.
Over the last three months Israel’s Ministry of Interior has
conducted studies to find legal measures to reduce the number of
Palestinians in the West Bank and Gaza who receive Israeli
citizenship by marrying Palestinians inside Israel and to reduce,
in general, the number of non-Jews entering the country. According
to Israeli General in Reserve Effi Eitam, who considers the Jewish
people as a superior race and the Muslim holy sites in Jerusalem as
a “distortion” and “a kind of desolate waste within the world
order,” the Palestinian citizens of Israel are a ticking time bomb
and an “an elusive threat [which] resembles cancer.” Effi Eitam was
recently appointed as new head of the National Religious Party
(Mafdal) and is expected to join the Israeli cabinet. Ephraim Sneh,
the Minister of Health has recently suggested that Palestinian
populated areas of Israel in the Galilee be exchanged with areas of
the West Bank in order to reduce the number of non-Jews in the
country.
“How to overcome this abyss is a challenge that should haunt the
political imagination of all those genuinely committed to finding a
just and sustainable reconciliation between Israel and
Palestine.”
Sources: Legal Violations of Arab Minority Rights in Israel. Shafr
Amr: Adalah – The Legal Center for Arab Minority Rights in Israel,
1998. David Kretzmer, The Legal Status of the Arabs in Israel.
Boulder, CO: Westview Press, 1990. Ha’aretz, 12 March 2002, 20
March 2002. al-Sinnara, 22 March 2002. Selected UN documents.
“Palestinians, Don’t Forget the Lesson of
1948”
Throughout the Oslo process international mediation and facilitation concerning the refugee issue focused almost solely on finding ‘solutions’ that were consistent with Israel’s demand to maintain the Jewish character of the state. Donor programs and research thus focused on humanitarian assistance to refugees to improve their living conditions and issues of resettlement of refugees in a Palestinian state. At the same time political pressure was exerted to ‘encourage’ Palestinians to cede their basic human rights to return and real property restitution. The international community steadfastly avoided addressing obstacles to a durable solution for Palestinian refugees that related to the Jewish character of Israel. |
(Commentary by Nikad Boka’ee, BADIL staff and member of Shabibeh/Hadash)
Today, after 18 months of the intifada, the picture of the
Israeli government policy is clearer than in the past. The siege on
the Palestinians villages and towns, the segregation between the
West Bank and Gaza, the siege on these areas, the segregation of
Jerusalem, the segregation of the ‘Areas A’, the killing of more
than 1,000 Palestinians, wounding of more than 30,000 Palestinians,
the destruction of hundreds of shelters, the destruction of the
economic infrastructure, a rate of unemployment of more than 50
percent, the arrest of thousands of Palestinians, the assassination
of Palestinian leaders, the destruction of agricultural lands, the
siege of the Palestinian President in Ramallah, the massacre of
Palestinian civilians and security officials, the declaration of
Palestinian towns as "closed military areas" in addition to the
Israeli attacks on the hospitals and the civilian centers - all of
these practices are not part of a security plan for what is called
"fighting the terror".
The title of this commentary is a threat made by Ariel Sharon, then
Minister of Defense in the Begin government at the beginning of the
1980s, as a response to PLO activities in Lebanon. The threat
reflects Sharon’s mentality, his ideological background, and his
future plans. Today, it's clear that the Israeli government headed
by the same Sharon is seeking to prepare the environment for
renewed displacement under the guise of "fighting terror", and
through the destruction of the Palestinian Authority and the
collective punishment of the civilian population. The purpose is to
engender fear, feelings of weakness, lack of confidence in order to
duplicate the results of 1948 or at least the results of the 1967
war.
This analysis does not seek to exaggerate the current Palestinian
catastrophe, or to accuse uselessly the person and the ideology. It
is based on a factual reading of historical Zionism, which adopted
the policy of forced displacement (“transfer”) as a means for
building the Jewish state. The Zionist policy of “transfer” is and
was based on the belief that unethical measures against the
“temporary competitor” over the land of Palestine and its identity
are unavoidable, necessary and justified in order to realize the
project of "nation building.”
The Zionist movement’s success has always been dependent upon its ability to exploit current political events for the implementation of its program and upon its ability to resolve a basic dilemma, i.e. the need to protect and develop the Zionist project on the expense of the existence and the rights of the Palestinian people on the one hand, and the need to obtain the recognition and support of the liberal western powers, on the other. Historical and current policies aimed at the displacement of the Palestinian people are illustrative of Zionist efforts to resolve this dilemma.
Opinions about the future political orientation of Israeli society are divided. Some political observers hold that there are indicators that show that the Israeli society has developed positions which are commonly identified as “left,” especially following the recognition of some of the Palestinian rights (e.g. the right to Palestinian statehood). Others hold strongly that Israeli society has developed towards the “right,” especially after the election to prime minister of Bibi Natenyahu in 1996 and the failure of the Oslo process. However, irrespective of this debate, and irrespective of the split in the Zionist establishment over the future of the 1967 occupied territories, it is important to understand that the division between the political right and left in Israel is mainly a division over the best way to implement Zionist norms and principles and does not challenge the Zionist consensus. Moreover, the history of the Palestinian-Israeli conflict shows that temporary differences in Israeli public opinion have served to empower Israel as a “Jewish state” through Zionist pluralism.
Thus we see the important historical role of the left Labor Zionism in building the Jewish state and the displacement of the Palestinian people; veterans like Shimon Peres, Israel’s current foreign minister and author of "The New Middle East," can show a long list of achievements on behalf of the Jewish state. Only last year the Labor party presented it’s outline of the "Political Solution of the Conflict" including a proposal for the exchange of land and populations, i.e. a version of forced displacement. There will be no political solution and no peace, as long as Israeli society does not understand the meaning of Palestine to the Palestinian people and their national and historical rights, and as long as proposals for peace are seen as something that must be imposed instead of being rooted in reconciliation.
In February 2001, following Ehud Barak’s failed military response to the popular Palestinian intifada, Israeli society elected Ariel Sharon - not despite his violent record with the Palestinians, but because of it. Ariel Sharon was elected because of his record as a militant fighter against the Palestinians since the 1950s, his leadership in the massacres in Qibya and in the Gaza Strip, his plan in the 1970s to resettle the Palestinians refugees in the 1967 occupied territories, his military invasion in Lebanon in the 1980s and his involvement in the massacre of Sabra and Shatila, and because of his role in the 1990s as leader of the Israeli rejectionists to the Oslo Accords, the Israeli-Jordanian peace agreement, Israeli negotiations with Syria and Lebanon and the Israeli withdrawal from South Lebanon.
Israeli society was thus assured that Sharon would know how to use the language of force to achieve a victory for the army and the nation. Once elected, Sharon, with the support of the Israeli public, proceeded towards the implementation of his old plan and the collapse of the political alternative. The new prime minister has frequently stated that his war will need a lot of time and endurance. Therefore, comments made by some observers about Sharon’s "predicament" due to the lack of a real political proposal or his unwillingness to return to the political negotiations are pointless as long as Sharon has the possibility, the power, and the approval for military escalation.
Today Prime Minister Sharon finds ideal conditions for the
implementation of his plan of the “second Nakba” (as noted by
Israeli journalist Yoel Marcus), much better than the conditions he
found as minister of defense in the early 1980s. Then the Israeli
public considered Israel’s invasion of Lebanon a “war of choice”,
and the land of Lebanon was not regarded to be a part of the
“Jewish land.” Today Ariel Sharon enjoys broad public support and
minimal opposition, because the Israeli public views the clampdown
on the intifada as a war that was imposed on it, and major sectors
of the society consider the 1967 occupied Palestinian territories
as part of the "historical Jewish land". The collaboration of the
Labor Party represents one of Sharon’s achievements. The party,
which led the Oslo process, has no influence in his government; it
has come to accept Sharon’s policy and even pretends that it is a
collective policy.
An opinion poll published in the Israeli press a week prior to the
murder of Israel’s Minister of Tourism and head of the Moledet
Party, Rehavam Ze’evi, showed that almost 75 percent of the Israeli
public supported “voluntary transfer” of Palestinians from the West
Bank and the Gaza Strip, and even of Palestinian citizens in
Israel. (At that time, Israel’s Foreign Minister Shimon Peres
commented on poll by saying that there was no voluntary transfer,
and that this was like claiming that there was voluntary rape).
After the murder of the minister, who had viewed his open support
for the transfer of the Palestinian people as the continuation of
the pre-1948 way of the Mapai (Labor) Party, public support for
“voluntary transfer” increased even further. The broad public
support for “transfer” before and after Ze’vi’s murder indicates
that Israeli society still believes that this is a potential
solution for the Palestinian problem.
The Sharon government has handled the Palestinian case by means
of a step-by-step policy. The first step is the destruction of the
Palestinian Authority and the national leadership in the 1967
occupied territories. At this stage it is the role of the Israeli
right to dismantle the reality created by the agreements signed
with the PLO and to create an environment of panic and anarchy,
which will facilitate the completion of the "job" in the future.
Anarchy and chaos are expected to arise from the deportation and
the dismantlement of the Palestinian national leadership, which
represents the first leadership present in the homeland since 1937
and has symbolized the future Palestinian state since 1995. Ariel
Sharon has never recognized the Palestinian leadership, and is thus
unable to conduct constructive negotiations and to reach a peace
agreement with the Palestinian people. Ariel Sharon has only one
strategy, i.e. to conclude the battle in this historical zero-sum
game, in which progress towards Palestinian rights threatens
Israeli existence in the Middle East. .
It is possible that, as in 1948 and with the complicity of the
international community, the implementation of the Israeli plan
will bring about chaos and dis-order within Palestinian society.
There is danger that a limited initial wave of displacement could
trigger a larger wave of displacement, and that the absence of a
central Palestinian leadership could lead to political localism,
where political positions and strategies depend mainly on specific
local circumstances and the overall balance among Palestinian
interests in the homeland and in the exile will be destroyed.
However, the Palestinian generation of today is different from the
Palestinian generation of the 1948 Nakba. This generation has
learned from the experience of the Diaspora of its parents and
grandparents. It is a generation that knows how to read the
reality, insists in its rights, and is ready to sacrifice in order
to remain in the homeland and implement its national project.
Although it is impossible to predict today, how the Palestinian
people in Palestine will respond to a situation in which its
national infrastructure and leadership is again destroyed, it is
clear that the Palestinian people of today are not afraid to face
the occupation and have no alternative but to resist until
statehood and return.