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Do Israeli Rights Conflict with the Palestinian Right of Return?

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Do Israeli Rights Conflict with the Palestinian Right of Return? Do Israeli Rights Conflict With the Palestinian Right of Return? Identifying the Possible Legal Arguments Working Paper No. 10 August 2005 Michael Kagan Attorney, Tel Aviv University Clinical Legal Education Programs BADIL Resource Center for Palestinian Residency & Refugee Rights 1 Michael Kagan (BA Northwestern 1997, JD Michigan 2000, Member of New York State Bar) is an American lawyer specializing in refugee rights. From 2001 to 2003 he developed legal aid programs for asylum-seekers in Cairo and Beirut. He has taught refugee law at the American University in Cairo, and has published a number of articles on refugee law and refugee protection in the Middle East. Since 2004 he has been an instructor in the Refugee Rights Clinic at Tel Aviv University Buchmann Faculty of Law, and is a consultant with a number of refugee-related organizations around the Middle East, including the BADIL Center. He is the founder of the website RSDWatch.org, which provides information about how the United Nations decides refugee cases. Credits & Notations This Paper was prepared for the BADIL Expert Forum, “Closing the Gaps: From Protection to Durable Solutions for Palestinian Refugees,” 5-8 March 2004, al-Ahram Centre for Strategic and Political Studies, Cairo, Egypt. The author wishes to extend his thanks to the following people who offered insightful commentaries in the preparation of this paper: Salman Abu Sitta, Jeff Handmaker, Ingrid Jaradat, Karine MacAllister, Terry Rempel, and Ty S. Wahab Twibell. The original concept of this project was developed by Ingrid Jaradat. This working paper represents only the personal opinion of its author, and does not necessarily reflect the views of any other institution. BADIL working papers provide a means for BADIL staff, partners, experts, practitioners, and interns to publish research relevant to durable solutions for Palestinian refugees and IDPs in the framework of a just and durable solution of the Palestinian/Arab-Israeli conflict. Working papers do not necessarily reflect the views of BADIL. ISSN: 1728-1660 BADIL Resource Center for Palestinian Residency & Refugee Rights P.O. Box 728, Bethlehem, Palestine Tel-Fax: 970-2-274-7346 Email: [email protected] Website: www.badil.org 2 Contents 1. Executive Summary.......................................................................................................................4 2. Introduction....................................................................................................................................6 a) What is a conflicting right?........................................................................................................................6 b) Why talk about conflicting rights?.............................................................................................................7 c) What this paper is not.................................................................................................................................8 3. Jewish self-determination............................................................................................................10 a) Who is entitled to self-determination?.....................................................................................................11 b) Best case arguments for exclusivist Jewish self-determination ..............................................................14 c) Commentary: Untangling self-determination in Palestine.......................................................................17 d) “Jewish National Home” v. Jewish state.................................................................................................18 e) Immigration v. return................................................................................................................................20 4. Property Disputes: Refugee Restitution v. Secondary Occupants..........................................23 a) Claims to restitution.................................................................................................................................23 b) Recent post-conflict restitution precedents..............................................................................................24 c) Is passage of time relevant?......................................................................................................................25 d) A possible Israeli argument on conflicting property rights......................................................................26 e) Observations on the restitution problem...................................................................................................26 5. Concern for Stability Amid Mass Return .................................................................................29 a) The role of the public interest...................................................................................................................29 b) Possible Israeli argument about stability.................................................................................................31 c) Observations on the public interest..........................................................................................................32 6. Concluding Observations.............................................................................................................33 3 1. Executive summary Recent historical and legal research have strengthened longstanding arguments that Palestinian refugees are morally and legally entitled to choose whether to return to homes inside Israel and to claim restitution and compensation for lost property. Historical research has generally backed up Palestinian claims that they were expelled from their homes by violence and fear, and likely by a systematic campaign of ethnic cleansing. Legal research has illustrated that the right of return has broad roots in international law. While the right of return remains highly contentious among Jewish Israelis, some Israeli intellectuals have sought to acknowledge the justice of Palestinian claims while finding alternative reasons for opposing the full implementation of the right of return. Such arguments have centered on the effect Palestinian return would have on Jews and on the State of Israel. Much of this new literature presupposes that the Palestinian and Israeli rights are in conflict. This paper attempts to develop the idea of conflicting rights as a means of addressing Israeli objections to Palestinian refugee return. Rather than explore Palestinian arguments for the right of return, this paper starts from the assumption that the right of return exists and must be accepted by Israel in order to reach a just peace that complies with international law. Instead, this paper aims to identify and assess separate claims by Jews or Israelis that cannot coexist with refugee return. Without this separation, any assertion of Palestinian rights may be misunderstood as a denial of Israeli interests, and vice versa. Because Palestinians base their right to return in international law, many Israelis may assume that international law leaves no room for their concerns. By looking at separate, conflicting rights, the interests of both sides can at least be acknowledged in the discussion, and both assessed through the lens of international law. This offers a channel of dialogue for Israelis and Palestinians who want a just solution to the conflict. Broadly speaking, we can identify three types of possible Jewish/Israeli rights that could conflict with Palestinian return. The first is the basic Zionist claim that Jews have a collective right to self- determination to form and maintain a specifically Jewish state, in which Jews must hold a dominant demographic majority. The second are individual Israeli property-related rights, such as the right to a home, that would conflict with property restitution for refugees. The third possible conflicting right addresses Israel’s prerogative as a state to use security and fear of socio-political disruption as a justification to avoid full or partial implementation of the right of return. Each of these claims has, at least in the abstract, a plausible legal basis. However, it is not enough for Jews or Israelis to simply assert a right in a vacuum. In order to function as a conflicting right, they must show that their rights are actually irreconcilable with refugee return, and carry more weight than the right of return. Only some of the possible conflicting rights can plausibly pass this test. The most frequently asserted Israeli conflicting right is the claim that Israel has a right to exist as a Jewish-dominated state and to resist Palestinian refugee return in order to maintain a Jewish majority. In the abstract, this claim draws support from the fact the League of Nations recognized Jews as a “people” in 1922, and modern human rights law entitles all “peoples” to self- determination. The problem is that self-determination is normally meant as a right of all of the people of a given territory to self-government. It is not a license to artificially change the demographic character of a country by either ethnic cleansing or prohibition of refugee return. The UN’s non-binding partition recommendation for Palestine in 1947 specifically prohibited such measures. In international law, self-determination is inclusive, not exclusive; so long as Jewish Israelis retain their equal citizenship in Israel, their right to self-determination cannot be threatened by non-Jews returning to homes in the same country. Self-determination
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