The 'Jewish State', the Right of Return and a Durable Solution to the

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.