The'Jewish State' and the Right of Return

Over the course of the past three months (January-March 2002) Israel’s military and political establishment inflicted unprecedented damage and destruction in the 1967 occupied territories in an effort to crush Palestinian resistance to Israel’s illegal 35-year military occupation and more than 50-year denial of Palestinian refugee rights.

 Since the beginning of the year Israeli military forces and settlers have killed more than 350 Palestinians, an increase of 80 percent from the previous three-month period, representing the highest three-month death toll since the beginning of the al-Aqsa intifada in late September 2000. More than a year ago following the collapse of final status negotiations at Camp David (July 2000) and Taba (January 2001) numerous Israeli commentators and political figures stated that violent confrontation, including war, was preferable to accepting the right of Palestinian refugees to return to their places of origin inside Israel. Events on the ground indicate that these statements were not simply empty talk. Israel continues to expand the use of lethal weapons against the Palestinian civilian population and increase the severity of its military attacks. This included a sustained three-week campaign in March that targeted Palestinian refugee camps throughout the 1967 occupied territories.

 By the end of March 2002 Israeli Prime Minister Ariel Sharon, under the pretext of fighting Palestinian suicide bombings, had declared that Palestinian President Yasser Arafat was an enemy of Israel and that Israel was in a state of war. Israel’s latest military assault that began in late March with the total re-occupation of Ramallah and ‘isolation’ of President Arafat, despite internal intelligence reports that there is a direct correlation between Israel’s military campaigns and a decrease in security inside Israel, strongly suggests that the underlying aim of the Sharon government is to impose a settlement on the Palestinian people through military force and thereby avoid a comprehensive peace agreement based on international law and UN resolutions.

As Sharon himself stated, “It won’t be possible to reach an agreement with [the Palestinians] before the Palestinians are hit hard. Now they have to be hit. If they aren’t badly beaten, there won’t be any negotiations. Only after they are beaten will we be able to conducts talks.” (Ha’aretz, 5 March 2002) For Israel’s political and military establishment, the death of more than a thousand Palestinians since September 2000 as well as several hundred of its own Jewish citizens, the mass destruction of Palestinian propertyand considerable economic losses for Israel, is a price that the establishment appears willing to exact to try to impose a solution on the Palestinian people that preserves both the post-1967 colonization program in the occupied territories and the Jewish character of the state (i.e., a Jewish demographic majority and Jewish control of refugee lands).

The International Community and the ‘Jewish State’
The ongoing absence of effective international intervention further suggests that the United States, along with key European allies, now accept that Israel’s aerial bombardment, use of surface-to-surface missiles, and strafing of refugee camps with heavy machine gun fire, as well as attacks on medical personnel, is acceptable practice in defense of the Jewish state. It is difficult to draw any other conclusion, given the widespread consensus within the international human rights community that Israel has repeatedly committed grave breaches of international humanitarian and human rights law, and that the use of weapons (purchased by Israel from the US and individual European states and used in the occupied territories) violate provisions of relevant domestic law.

The extent of US support, in particular, for Israel as a Jewish state is evident not only in the speeches of US politicians but also in the 2001 US Department of State Country Report on human rights in Israel and the occupied Palestinian territories that was released in February. The report lists some of the laws relating to citizenship/residency and property rights and institutions that grant special privileges and services to Jews but avoids any discussion of the ramifications of these laws and institutions for the human rights of Palestinians. The report fails to mention that there is no fundamental right to equality in Israel and that the right to equality is upheld only to the extent that it is consistent with the Jewish character of the state. Moreover, the report does not contain a single reference to the basic human rights of Palestinian refugees including the right of return and the right to real property restitution.

The willingness of Israel to wage a war against the Palestinian people in order to prevent the return of refugees and avoid having to live together with Palestinians on the basis of full and complete equality was evident in Israel’s response to the proposal for a comprehensive peace adopted by the Arab Summit in late March. The proposal offered Israel full normal relations in exchange for a comprehensive resolution of the Palestinian/Arab-Israeli conflict based on international law. This included an end to Israel’s 35-year long military occupation (i.e., full withdrawal to 4th June 1967 armistice lines), establishment of an independent Palestinian state in all of the West Bank and Gaza Strip with eastern Jerusalem as its capital, and a solution to the Palestinian refugee issue consistent with UN General Assembly Resolution 194 (i.e., return, restitution and compensation).

The following day Israel under the pretext of yet another Palestinian suicide bombing declared Yasser Arafat an enemy of the state, called up thousands of reserves and began rolling tanks into the West Bank city of Ramallah. Explaining Israel’s official rejection of the Arab peace proposal, initiated by Saudi Arabia, former Israeli Prime Minister Ehud Barak told CNN that “it was not enough for the Arab states to recognize Israel. They must recognize it as a Jewish state. Israel is not a normal democracy in the Middle East. It is a state for the Jewish people.”

International Law, the Jewish State and a Comprehensive and Durable Peace
In light of the ongoing military escalation over the past three months UN High Commissioner for Human Rights Mary Robinson noted her “grave concern about a growing perception of a double standard in the region.”(UNHCHR/Cairo, 1 March 2002). The problem is not one of perceptions, however, but one of realities. The reality of a clear double standard is no more evident than in the refugee issue itself. While the international community has supported and facilitated the return of refugees to their homes following the cessation of hostilities, places such as Bosnia, Kosovo, and East Timor, it remains unwilling to take necessary measures to support and facilitate the return of Palestinian refugees.

If the international community is serious about a comprehensive and durable peace in the region it must begin by putting international law at the center of the political process. This is particularly true for the United States. As Amnesty International noted in its latest fact-finding mission to the region, “If US officials are serious about their efforts to reduce the level of violence, it is absolutely vital that they recognize the centrality of human rights to security and lasting peace. If General Zinni does not put human rights squarely on the table with both Israelis and Palestinians he may well pack his bags now. Without human rights at the heart of a peace process, his efforts will be doomed to fail, and the downward spiral will degenerate even further out of control…”(AI Index MDE 15/026/2002, 19 March 2002)

This necessarily includes addressing the basic human right of Palestinian refugees to return to their homes of origin, and it means addressing the human rights ramifications of Israel’s definition of itself as a Jewish state. The two issues cannot be separated. Ironically there is some degree of agreement between UN human rights bodies and numerous Israeli political figures and institutions on the issue of the Jewish state. Although each draws different conclusions, both agree that Israel is not a normal state.

UN human rights bodies, including the Committees on Economic, Social and Cultural Rights, Civil and Political Rights, and the Elimination of all Forms of Discrimination have called upon Israel to institute legal reforms relating those laws and institutions that grant special privileges to Jews in order to come into compliance with international human rights law. This includes laws relating to citizenship/residency, property and institutions such as the World Zionist Organization, Jewish Agency and the Jewish National Fund. Israel’s political and military establishment, meanwhile, argues that Israel has a right to be an exclusive Jewish state and continues to introduce legislation to entrench special privileges for Jews, bar the return of Palestinian refugees, and deny Palestinians the right to real property restitution.

Here lies the fundamental contradiction in Israel’s conditions for a comprehensive peace agreement with the Palestinian and Arab people. Israel demands normal relations but also insists on maintaining itself as a self-acknowledged abnormal state. In light of this situation, increased advocacy efforts are needed to press the international community to put international law at the center of a comprehensive and durable peace in the region. Additionally, efforts should be focused on building international support for economic and military sanctions against Israel until it complies with international law, while at the same time finding creative means to engage and educate the Jewish-Israeli public about Palestinian refugee rights and the requirements of a durable solution.

“I heard Israelis say over and again that it would be ‘suicide’ for Israel to admit a Palestinian right of return, that no country could be expected to do that,” wrote American international law professor Richard Falk, in a preface to a report on hearings conducted in 2000 on the refugee issue by the British Joint Parliamentary Middle East Councils Commission of Enquiry.“A perceptive Israeli intellectual told me that the reason Israel was uncomfortable with any mention of human rights was that it inevitably led to the refugee issue, with a legal and moral logic that generated an unacceptable political outcome. 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.”