Collective AND Individual Rights: Palestinian Statehood and the Right of Return

Intensified diplomatic efforts by the United States and the European Union applied against the Palestinian leadership and Israel in the context of the so-called global war on terrorism over the past several months have failed to put the Oslo negotiation process “back on track.” The dispatch of Anthony Zinni, the third in a series of special American envoys (the “Mitchell-Tenet-Zinni process”), to the region in November failed to accomplish the minimum objective of restoring some sense of calm on the ground in the 1967 occupied Palestinian territories.

The average weekly toll of Palestinians killed as a result of the intifada has more than doubled since 11 September 2001. The relative ease with which Israel has been able to temporarily reoccupy areas of the West Bank and Gaza Strip under Palestinian control and destroy the infrastructure of the Palestinian Authority (PA) underline not only the abject failure of US and European efforts, but point towards an Israeli policy bent on destroying Palestinian resistance to Israel’s 34-year long military occupation and the denial of the Palestinian right to self-determination in all of the 1967 occupied territories as well as the right of Palestinian refugees to return to their places of origin inside Israel.
Israel’s unprecedented military response to the intifada over the last three months is reminiscent of the attempt by Ariel Sharon, then defense minister, to destroy Palestinian resistance in Lebanon in the early 1980s culminating in the massacre of several thousand Palestinian refugees in Beirut. The significance of the widespread military attacks on the PA over the past several months, however, goes beyond a strike at symbols of Palestinian sovereignty. With more Palestinians employed in the government sector than in other sectors, and the linkage between government sector employment and a household income above the poverty line, the destruction of PA institutions appears to be aimed at undermining the political as well as the civil and economic autonomy of the Palestinian Authority and the Palestinian people.

Ariel Sharon’s decision to prevent Yasser Arafat from traveling to Bethlehem for Christmas celebrations encapsulated the inherent problem of Oslo. The asymmetry of power between the PLO and Israel, the absence of any reference to international law as an objective guideline to resolve disputes between the parties, and the lack of an implementing mechanism always have meant that the very course and content of the process has been determined largely by Israel. If the US and Europe do not have the political will (interventions were made by both parties) to lift Israel’s travel-ban on Arafat, how will they muster the necessary political will to ensure a total freeze on Jewish colonies (settlements) in the occupied territories, one of the major confidence building measures of the Mitchell process?

Three Strikes and You’re Out!

The abject failure of US ‘mediation’ over the course of the Oslo process - particularly in the context of the last 15 months of the second intifada (i.e., Mitchell, Tenet, Zinni) - has not engendered thoughtful or significant reassessment of American policy. In response to the failure of the Zinni visit in December, for example, the US administration has requested Israel’s Defense Ministry to avoid reference to the total number of incidents and injuries during upcoming visits of the special envoy. The standard rule of American baseball (3 strikes and your out!) apparently does not apply to US policy in the Middle East. US Secretary of State Colin Powell’s much-touted on-again/off-again address outlining US policy concerning the Palestinian-Israeli conflict and a two-state solution, the so-called “positive vision for the region”, moreover, proved to be little more than warmed-up leftovers of Oslo.

The so-called vision includes the usual reaffirmation of America’s “ironclad commitment” to Israel’s security followed by the demand that Palestinians end violence and terror. The phrase “Palestinians must…” is used repeatedly in reference to a shopping list of demands that Palestinians must fulfill to restart political negotiations. No such demands are made of Israel. Israel is not even required to end the occupation; it only must be willing to do so – i.e., Israel will decide when and under what terms to end the illegal occupation. The vision lacked any reference to international law as an objective set of guidelines to resolve the conflict. Those who criticize the failings of Oslo, moreover, Powell labeled as so-called “rejectionists.” As President Bush noted in reference to his global war on terrorism, “you are either for us or against us.” It seems the same applies to America’s vision of peacemaking in the Middle East; you are either for the Oslo-Mitchell-Tenet-Zinni process or you are against peace.

As regards Palestinian refugees, the American vision calls for a “just solution that is both fair and realistic.” There is no mention of UN Resolution 194 or the right of return. The definition of fair and realistic is buried in the American demand that Palestinians accept “the legitimacy of Israel as a Jewish state.” In other words, the US vision of a just solution requires Palestinians to accept Israeli policies and practices that various UN human rights treaty bodies have deemed to discriminate against non-Jewish, i.e. mainly Palestinian, citizens and residents (including internally displaced Palestinians) inside Israel as well as the (non-Jewish) Palestinian refugees in exile since 1948. This vision is completely contrary to that espoused by the United States in other refugee cases, such as Bosnia, and in opposition to the human rights principles elaborated by leading international human rights organizations.

According to the US plan, the path towards the realization of this vision of a two-state solution and an end of the Israeli-Palestinian conflict is none other than the Mitchell-Tenet-Zinni process, no doubt due to the success of the special envoys over the past year. The American veto of UN Security Council draft resolution (S/2001/1199)in December, condemning all acts of violence, calling upon the parties to return to the negotiating table, and proposing the establishment of a mechanism to monitor implementation of agreements and assist in creating a better situation in the occupied territories, combined with the US boycott of the conference of High Contracting Parties to the Fourth Geneva Convention, underlined the continued US monopoly over the so-called peace process. Despite attempts by Europe to mold an independent foreign policy in the region parallel to its role of bankrolling the Oslo process, European states remain largely complicit with American policy initiatives, even while the Israeli military destroys the physical infrastructure of the Palestinian Authority (paid for by Europe) with US-made weapons.

Statehood and the Right of Return

The US vision of the broad parameters of a two-state solution to the conflict has been largely welcomed by Israel, particularly, in reference to the refugee issue. Israeli politicians, academics, as well as many activists in the so-called peace camp have long argued that a Palestinian state and the right of return are mutually exclusive – i.e., the (non-Jewish) Palestinian refugees should be absorbed by the Palestinian state rather than return to their places of origin inside Israel. The US vision, shared by Israel, would thus save the Jewish people from having to live together with Palestinians, or in their words, drowning in a sea of Palestinians. The amount of sheer effort expended by Israeli politicians, academics and activists in designing a solution to prevent refugees from exercising their right to return begs the simple question: What is so awful about having to live together with Palestinians?

“The conflict between the Palestinians and Israel will be solved only on the basis of two states for two nations.” “I believe the Palestinians understand that they cannot simultaneously demand both the right of refugees to return [to Israeli territory] and a Palestinian state. The refugee problem will be solved within the framework of a Palestinian state, which will provide the refugees a solution to their problem.” “I believe the refugees need to return to a Palestinian state that will give them the possibility to return and build new lives, and the Palestinians need to recognize that.” Dr. Sari Nusseibeh (Ha,aretz, 24 December 2001)

The US vision for a solution to the refugee issue also received support from an expected source. Over the course of the past several months Palestinian intellectual Dr. Sari Nusseibeh - recently appointed as the PLO point-person for Jerusalem affairs following the death of Faisal Husseini - has repeatedly emphasized to the foreign press and in the company of Israeli interlocutors such as Yossi Beilin, that a two-state solution is incompatible with the right of return. Refugees must, therefore, cede their right to return to their places of origin inside Israel. The statements have elicited strong condemnations from refugees in the region and around the world, while some Israeli politicians have rushed to embrace Nusseibeh as their new Palestinian knight in shining armor.

This vision for a solution to the refugee issue, however, is problematic on both the legal and political level. The vision clearly violates basic tenets of international human rights law. UN human rights treaty monitoring committees and major international human rights organizations such as Amnesty International and Human Rights Watch, for example, hold that all refugees have the individual human right to return to their places of origin, including Palestinian refugees. Moreover, there is no contradiction between collective and individual rights in international law. They are complimentary. In other words, the creation of a Palestinian state in the 1967 occupied territories does not negate the individual right of Palestinian refugees to return to their places of origin inside Israel. Under international refugee law, the starting point in crafting durable solutions to refugee problems is the wishes of the refugees themselves.

At the political level, the vision contradicts the official position of the Palestinian leadership and the content of the Palestinian proposal presented during the last round of final status negotiations in Taba (January 2001). The US vision, apparently shared by Nusseibeh, is based on the assumption that Israel will never agree to the return of Palestinian refugees and therefore a different solution must be found. The US, Israel and Nusseibeh have all failed, however, to explain why Israel’s refusal to allow refugees to return is more valid as a starting point for crafting a solution than the Palestinian refugees’ demand (and right) to return to their villages of origin? The obvious answer it seems is the current balance of power. This elicits another obvious (unanswered) question: Why does the balance of power provide a better set of guidelines for a solution than international law, especially since this formula – peacemaking based on the balance of power – has guided more than 50 years of unsuccessful efforts in the Middle East? The vision also fails to square several inherent contradictions. Why, for example, does a law or right of return apply to all other refugees (and every Jew under Israel’s Law of Return) but not to Palestinians? Why do other refugees, including Jews of European origin have a right to real property restitution, but Palestinians are denied the same right?

While this vision of a solution to the refugee issue has been given wide press coverage, it does little to advance a durable and comprehensive solution to the refugee issue and the conflict as a whole. The vision only engenders confusion regarding the legal parameters for durable solutions to refugee problems and harbors the potential to create false expectations among Jews in Israel regarding the demands of Palestinian refugees and the official position of the Palestinian leadership. At the same time, the US vision underscores or exposes the real obstacle to a durable solution to the Palestinian refugee issue – i.e., Israel’s definition of itself as a Jewish state characterized by a Jewish demographic majority and Jewish control of refugee land, which negates the possibility of Jews and Palestinians living side-by-side on the basis of equality and non-discrimination. Given the unlikelihood that the present generation of Jewish Israeli politicians will change their position on the return of refugees, it will be necessary to find ways to engage the Jewish public in Israel in ways that move beyond the simple rhetoric that the return of refugees will mean the “destruction of the state of Israel” or “national suicide.”