The Right of Return Myth

Eyal Benvenisti
Send in e-mailSend in e-mail
Eyal Benvenisti

What does the Beirut Declaration really say? Seven years after the Saudi peace initiative, and more than six years after the initiative received the backing of the Arab League, public discussion of the matter is beginning here. Some of the speakers are taking a suspicious approach, seeing a treacherous no hiding behind the yes of the Beirut Declaration.

This approach is healthy and appropriate, but it necessitates the gathering and evaluation of facts.

Here are a number of facts from international law that have to do with one of the key problems of the conflict: The demand for the return of the Palestinian refugees.

The Beirut Declaration called upon Israel to conduct peace negotiations that will include a "just solution to the Palestinian refugee problem to be agreed upon in accordance with United Nations General Assembly Resolution 194." It is clear to everyone that an "agreed upon" solution means that the solution also has to be agreed upon by Israel, and that "just" implies flexibility that does not necessarily stick close to the strict letter of the law.

However, what is the meaning of the requirement that the agreement be in accordance with UN General Assembly Resolution 194? Resolution 194, say the suspicious, recognizes the right of the Palestinian refugees to return to their homes, and therefore Israel must not be seduced by the initiative.

However, the truth is that in Resolution 194 there is no recognition of the refugees' right of return. Indeed, since the 1990s the Palestinians have been claiming that the resolution recognizes the right to return but their claim is baseless. On the contrary, the resolution denies the refugee's right to return to his home.

Moreover, the resolution set as a goal for the UN the solution of the problem of the refugees by means of resettling them in Arab countries. The formulation that was passed was amenable to convenient interpretation from Israel's perspective, because it left in its hands the judgment as to whether, when and how many refugees it would accept into its territory.

The struggle for the formulation of 194 was complex and strenuous. The opening position was bad from Israel's view, because the draft of the resolution suggested by Count Folke Bernadotte recognized the right of the refugees (only the Arab refugees) to return to their homes as soon as possible.

The formulation that was passed was crucially different. Those refugees (implicitly also Jewish refugees) who wish "to return to their homes and live in peace with their neighbors should be permitted to do so at the earliest practicable date." The language of the resolution left all the important questions open: Who will sort the refugees and determine whose return will enable them to live in peace with their neighbors, whether their return is practicable and if so when this will be possible and more.

The resolution also established a "Conciliation Commission" that assessed that because of the changes that had taken place during the course of the war and immediately after it, any plan for the return of refugees would have to be coordinated with Israel and that the number of refugees permitted to return would be agreed upon and final. The UN General Assembly accepted this position.

The position that denies the right of return was also the position of international law in the era after World War II. This was an era when forced population transfers were perceived as the appropriate way to reduce ethnic frictions and build national identities. During the course of the 1990s it seemed as though a change had occurred in the position of international law in light of the ethnic cleansing in former Yugoslavia. The desire to prevent acts of slaughter and expulsion led to widespread recognition of the obligation to return the refugees to their homes. In the course of this, the distinction between the Bosnian refugees and the Palestinian refugees was blurred.This was the period during which the Palestinians adopted Resolution 194, and read into it the ostensible recognition of the right of return.

Since then, more than 10 years have gone by during which there has been a general sobering up from the solution of return. Former UN secretary general Kofi Annan's 2003 plan to settle the conflict in Cyprus recognizes that the Cypriot refugees do not have the right to return to their homes. Annan draws a distinction between the Bosnian and Cypriot refugees because of the circumstances of life that had changed during the 30 years that had elapsed since the conflict erupted there, and the legitimate needs of those who had settled into the refugees' homes.

It is hard to exaggerate the significance of the precedent in the UN position that recognizes the right of governments to negotiate on behalf of refugees. In the waning days of 2008 there are those who have doubts even as to the wisdom of the effort to return the Bosnian refugees to their homes, as their return has led to a crisis-prone situation that is liable to degenerate into renewed violence at any moment.

There are those who are saying that the Beirut Declaration adopts the Palestinian reading of Resolution 194. This claim is untenable for a number of reasons, among them the recognition of the need for Israeli agreement and the statement that the Palestinians will not be resettled in Arab countries in which special circumstances prevent this. That was a promise to Lebanon, which understood that the declaration relinquishes the demand for return and therefore hastened to defend its fragile demographic balance. However, even if the claim that the Beirut Declaration adopts the Palestinian interpretation is true, in light of the correct interpretation of Resolution 194, Israel's acceptance of the initiative would not constitute recognition of the right of return.

The author is a full professor at the Tel Aviv University Faculty of Law