6. Gaza 2018: (b) International Law and the Israel-Gaza Conflict

On 18 May 2018, the UN Human Rights Council passed a resolution calling for the Council to “investigate all alleged violations and abuses of international humanitarian law and international human rights law” in the Occupied Palestinian Territory and particularly the occupied Gaza Strip, since 30 March. That was the official date when demonstrations under the banner of the “Great March of Return” along the border of Gaza with Israel began.

Is there an international law that obligates countries, that is, independent nation-states, to permit refugees to return from the land from which they fled or were expelled? This is a key question. For it determines what the rights of the protesters are as well as the nature of the current conflict on the Gazan border. This does not mean that other alleged violations of international law and international human rights law did or did not occur. But until the latter issues are contextualized under the claim of an international right of return, it is difficult to really grasp the nature of the conflict let alone determine what if any international humanitarian or human rights laws were abused.

The demonstrations supported and organized behind the scenes by Hamas were called the “Great March of Return” for a reason. Further, the committee organizing the mass demonstrations along the Gaza-Israeli border called for “peaceful,” not militant, demonstrations, and did not call for efforts to return by either force or the mass of numbers, but to “visit” the area adjacent to the Israeli security fence. Even Hamas, a key organization behind the protests, called on Palestinians to remain “peaceful” even if militancy was indirectly strongly supported.

Indeed, the vast majority of demonstrators could be located 500-700 metres from the fence. There is no evidence that any of these demonstrators were killed or injured. However, most international reports, and, indeed, Israeli ones, conflated the two types of demonstrations even though, upon initial examination, this would seem to undermine Israeli efforts to win the war for international public opinion. Why would Israel do that?

One reason is that Hamas, unlike Gandhi’s marches in India, did not rule out the use of force. Quite the reverse. Hamas insisted that its members would not hesitate to use force if Israel used force to disperse the demonstrators. With one aberrant exception, I could find no evidence that Israel used force to disperse the demonstrators who stayed away from the fence. Instead, Israel threatened to take severe measures against Palestinians who tried to damage the security fence or, even worse, force their way into Israel.

Hamas, which controls Gaza, celebrated the demonstrations in advance for the “sacrifices for the sake of adhering to their rights, maintaining their identity, sticking to their land, resisting all attempts to wipe them out, and rejecting all forms of normalization.” If a peaceful demonstration was planned that did not challenge the Israeli security fence, why would there be any sacrifices? Hamas made clear that the demonstrations were about the “right of return,” about the refusal to surrender their claim to land in Israel or even to the land of Israel in general. Their identity was as intricately tied to the land as the Zionist program of return over the twentieth century. Further, Israel’s efforts to deny such rights were equated with genocide and with the attempt to eradicate the culture and identity of a people. To that end, there could be no normalization between a Palestinian entity in Gaza and Israel since the very creation and continued existence of Israel was itself considered the genocidal act.

In the words of Hamas, Land Day (March 30th) “is a source of inspiration that reminds Palestinians of the right of return” and “will remain an occasion of sacrifice for the sake of restoring Palestine.” The tents set up 500-700 meters from the border were called the “Tents of Return.” The violence was not simply the result of the efforts of a small portion of the demonstrators attacking the security fence, but of the context which defined the right of return as an either/or choice – either Palestine or Israel but not both.

If Palestinians believe in and want to operationalize a “right of return,” it cannot be accomplished except by war. As Elazar Barkan and I demonstrated in our book, No Return, No Refuge – Rites and Rights in Minority Repatriation,” (Columbia University Press, 2011) there has not been one case of significant return of a minority driven out or which fled except behind an army. The Tutsi return to Rwanda between 1990 and 1994 was only made possible through war. This was also true of the Kosovars. In other words, not only Hamas, but the Palestinian Authority that supported the demonstrations, were holding onto the principle of a “right of return.” This is not a right written into international law and was not even part of the UN armistice agreement of 1949.

The source cited as promulgating the “right of return” is most often the section of the 1949 UN Resolution 194 dealing with refugees. That section resolved that “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 the property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.”

Resolution 194, as stated above, widely cited as the basis of a right to return, never declares that it is a right. In fact, even among Palestinians, the passage was only interpreted as a right in later UN resolutions of the late 1960s and ’70s. In 1949, it was stated as a moral recommendation. In effect, Israel “should” consent to return and to providing compensation to those who decided not to return. From 1949-1967, few self-respecting Palestinians would make a request to Israel to allow their return for that would de facto accept Israel as a nation-state with the authority to make such a decision.

However, in the aftermath of 1967 and the Six Day War, Rashid Khalidi reformulated the right to return from a right to individual Palestinians to move back to their individual homes or, alternatively, claim compensation, to the right to return to a Palestinian homeland. It became a general claim of a right to self-determination for the Palestinian people.

During the Oslo negotiations between 1993 and 2001, the multilateral talks on water went well. The discussions on security and the recognition of Palestinians having an independent state also were successful. There was even a tentative but never completely resolved agreement to an exchange of territories, land for peace. However, there was no agreement reached on Jerusalem. Further, what some of us expected to be the toughest issue of all, the discussion of the right of return of the refugees, in fact did achieve a breakthrough, even though ratification depended upon agreement on all other issues. That deal took Khalidi’s revision of the right of return another step by defining it as a return to the anticipated Palestinian state with compensation paid for lost properties in the territory governed by Israel. As a quid pro quo of these agreements, the Palestinians recognized Israel’s right to exist and renounced the use of violence and terrorism.

When the Palestinian Papers were leaked by Al-Jazeera on the years of peace negotiations revealing that the Palestinian negotiators were willing to surrender the demand for a right of return in exchange for recognition of an independent Palestinian state, the revelation was greeted by widespread shock and outrage that this centrepiece of Palestinian identity had been surrendered. Omar Barghouti, in an 11 September 2017 article, “Virtual Statehood and the Right of Return,” argued that, “Palestinian officials who have time and again colluded in eroding official international support for UNGA 194, as the Palestine Papers have amply shown.”

Barghouti was outraged that the core meaning that had emerged on Resolution 194 had been traded away simply for the recognition of the right of Palestinians to have a state of their own. He claimed that surrendering the “right of return” in Resolution 194 “is entirely divorced from the will of the Palestinian people, and those advocating it have no democratic mandate from the people to employ it in any way that jeopardises our UN-sanctioned rights.”

The demand for a “right of return” is a defining element of the Palestinian political movement and has, as Hamas and Barghouti noted, become central to the question of Palestinian identity. A large minority had accepted that proposition during the Oslo discussions and, therefore, had resisted those negotiations. However, since the collapse of Oslo, the issue has indeed become a defining element for possibly a majority of Palestinians, not just members of Hamas, and in an inverted proportion to the possibility of its realization.

However, the implication of retaining such a “right” entails perpetual war against Israel. The proposition poses a Hobson’s choice. Either there is a Palestinian state to displace Israel or there is no deal. Though Israelis may not like reading this, it is an understandable position. For if one insists on return, return to the original homeland as one’s own, such a goal can only be advanced through war and not through a peace agreement.

Therefore, the “peaceful demonstrations” of the Palestinians on Land Day on 30 March meant only war by other means. The demand for return is a political slogan, not a pragmatic outcome of peace negotiations. The slogan, simple and easy to repeat, reinforces an identity and the Palestinian claim to be the aggrieved party. It is not intended to advance the possibility of some return for some who lost their homes in 1948. Nor is it any longer a call for a return to a newly established Palestinian state alongside Israel. The slogan is now used to emphasize one’s bona fide status as a spokesperson for Palestinian nationalism and continuing rather than resolving the conflict with Israel.

In sum, the demonstrations planned for Land Day on 30 March were parts of the propaganda war in the battle between Israel and a major stream of the Palestinian movement in the effort to continue rather than end the conflict. The three previous wars in Gaza over the two decades of the twenty-first century resulted in widespread property destruction as well as a huge loss of life. “Peaceful” demonstrations along the security fence might result in some casualties – but nowhere near the number resulting from open general war. Further, international sympathy for the Palestinian cause would be enhanced through actions immersed in a Gandhian framework, even if not exhibiting Gandhian tenets.

In sum, the right of return was not part of the original meaning of Resolution 194. It became part of the meaning in the late sixties and seventies. It then morphed to mean a right of return to one’s own homeland as well as a return to one’s lost properties. Finally, it has become the slogan for a return of Palestine as the homeland for the Palestinian people and the elimination of Israel. The Great March of Return demands a Palestinian right to return to a pre-1948 homeland in historic Palestine.

It is in this context that breaches of international humanitarian law and human rights law must be examined as well as examining the details on the conduct of the war by either side.


With the help of Alex Zisman


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