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International Law, Israel, and Palestine

Why a ‘right of return’ is necessary

Sari Hanafi is director of the Palestinian Diaspora and Refugee Center.

By Sari Hanafi
From the Lebanon Daily Star
October 7, 2004

The right of return of Palestinian refugees to their place of origin is enshrined in four separate bodies of international law: humanitarian law, human rights law, the law of nationality as applied to state succession, and refugee law.

Beyond these bodies of laws, which apply to all refugees in the world, the UN General Assembly specified the Palestinian case in Resolution 194, paragraph 11, which sets forth a framework for a solution to the problem of Palestinian refugees, including the possibility of return: “The refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the governments or authorities responsible.”

To understand the importance of the refugee issue to Palestinians, we must understand that the Palestinian nation and Palestinian nationalism as it exists today was born following the expulsion of over half the Palestinian population from their land in 1948, and that one of the fundamental aspects of Palestinian identity is “refugeehood.” Such an understanding obliges us to address the problem of the Palestinian refugees as fundamental to any solution of the Palestinian-Israeli conflict.

There are five reasons for this: First, as long as the Israelis do not take into consideration what happened to the Palestinians in 1948 and the expulsion of the indigenous population from 78 percent of the land of historic Palestine, they will keep bargaining about the remaining 22 percent (the West Bank including East Jerusalem and the Gaza Strip). There is no solution to the land issue without coupling it with the refugee issue. This may be the reason why the Oslo Accords failed.

Second, resolving the refugee issue is not just a technical matter of absorption, nor is it a matter of reciting international law like reciting the Koran. Rather, it involves deconstructing the Palestinian-Israeli conflict to its very premises, to understand how its causes led to a certain kind of colonial practice, and to recognize the need for a debate not just to understand, but also to acknowledge and accept, historic responsibility. This is the very precondition for true reconciliation and mutual forgiveness, as suggested by the late Edward Said.

Third, irrespective of whether the final resolution of the Palestinian-Israeli conflict takes the form of a two-state or a binational state solution, the refugee issue cannot be considered secondary. The current intifada has revealed the importance of the refugees; they are the social and political actors most unable to bear the impasse in the Oslo process.

Fourth, beyond the moral and symbolic value of achieving a right of return, the right is useful in creating a framework for providing refugees with a choice between remaining in their host countries, returning to their places of origin or coming to a future Palestinian state (or third countries). The right of choice is a necessity for those who have, for half a century, been forced to live as aliens without basic rights in miserable camps and in states that have not always embraced them with open arms.

Finally, if the right of return and the right of choice is accepted, it will open many possibilities for the refugees to choose from. The movement of refugees depends on many factors related to their social, economic, cultural and identities. The return of refugees does not mean that the whole refugee community will move back to Israel. In almost all cases, the experience of refugees across the world shows that the number of those who return is less than those who choose other solutions. The Israeli phobia of a return is unjustified.

Hannah Arendt, in her study of totalitarianism, reminded us of “the decision of statesmen to solve the problem of statelessness by ignoring it.” She insisted on the necessity of examining displacement through the prism of often xenophobic nation-states, and she traced the political and symbolic logic that had the effect of “pathologizing” and even criminalizing refugees. The contemporary linkage that has been forged between Palestinian return and a disturbance of the regional order, especially in Israel, attests to the continuing relevance of Arendt’s point.

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