VIIIC Peter Beinart and the Right of Return of Palestinians

Morality, Policy and Practice

I have gathered Peter Beinart’s arguments into three clusters: a) those based on ethics and morality; b) those based on international law and policy; and c) those based on international and Jewish/Israeli practices. In each of these clusters, there are two trifecta, two sets of three arguments each. These clusters yield a total of 18 arguments in total. Given the large number, I will have to be reasonably succinct in dealing with each one.

  1. Ethical and Moral Arguments

Beinart offers us three negative and three positive ethical and moral arguments to reinforce his claim that supporting return is the morally superior position. The three negative arguments are based on logical consistency, political necessity and just deserts. Addressed primarily to liberals, the first argument claims that it is purportedly logically inconsistent to oppose the occupation and the settlement of the West Bank and oppose return since the underlying principle is the same – the right of a person to his or her home and land and not be forcefully deprived of the same. Second, if the argument against return is conjoined with the argument for a two-state solution, you have an unholy alliance since the two-state solution is now divorced from reality as a possibility. Third, the denial of return is based on an inapplicable principle of just deserts, namely, the Palestinians brought the expulsion upon themselves when the facts of history demonstrate that the vast bulk of the exodus was the result of forced ethnic cleansing by the Zionists.

However, opposing the occupation and the expansion of settlements entails resistance against new actions. Supporting return entails rolling back behaviour that has already taken place. It is one thing to oppose the continuing infringement on indigenous rights and another not to connect such a move with rolling back and reversing the white occupation of North America. It is not a contradiction to resist new initiatives yet oppose reversal moves even when the two situations appear to mirror one another, divided only by a present timeline.

The second negative argument is based on the premise that a two-state solution is unrealistic. But if lack of realism is the basis for dismissing a case, Beinart’s own support for a one-state solution is far more unrealistic and, on that basis, would seem to rule out support for return. Third, there is no necessary connection between the principle of return or non-return and moral responsibility for the exodus. The Palestinians may be partially responsible for the large-scale exodus. Or the Zionists may be largely responsible. However, the decision about what to do about the results is a distinct question on its own with no necessary connection to moral responsibility for the event. The Germans may have been responsible for allowing Hitler to come to power. But that does not mean the Marshall Plan for rehabilitating Germany was not morally justified. There is simply no necessary connection between the cause of a fault and determining the appropriate cure.

The positive moral case supporting return also has a trifecta of moral arguments. The first is the argument that the nakba was not restricted to 1948 but has continued until today; the actions of 1948 and those currently underway by the Zionists in power are the same. However, that moral presumption of commonality is highly questionable; its empirical premise is clearly and distinctly untrue. The international community voted in support of partition in 1948. There would have been no mass exodus if the Palestinians and the Arab neighbours had then accepted partition as Egypt and Jordan now do. In contrast, the international community almost universally opposes Israel’s annexation of the West Bank, even the creeping annexation by means of settlements. Thus, the encroachment upon and appropriation of land as a result of a defensive war, and the rejection of refugee return, may be justified in 1948 because of the need to secure a state. It may not be either necessary or desirable to expand that state.

The second positive moral argument is that refugee return is a necessary condition and prerequisite for Jews and Arabs to live side by side in peace and tranquility that ensures stability since political egalitarian systems are inherently more stable. However, the same voices often argue that for centuries, until the arrival on the scene of the Zionists, Jews and Arabs lived side-by-side in peace. But surely there is no basis for arguing that they did so based on equality. On the other hand, Jews and Palestinians within Israel have been living side-by-side in relative peace for seven decades until the recent riots, and, as Beinart would agree, they do not in practice have equal status. On the other hand, the inequalities for a significant portion of middle-class Israeli Palestinians has demonstrably narrowed, yet there can still be outbreaks of intercommunal violence. The reality is – pre-WWII Germany is an example – relative equality between ethnic groups is no guarantee of an absence of ethnic strife in the future. (See the story of former Yugoslavia below.)

The third argument is based on Jewish economic and political supremacy which return would be crucial in reversing. But Hasidic Jews are even more economically deprived than Israeli Palestinians. Yet much of the extremism against Palestinian Israelis can be located there. It is not the power differential that necessitates economic deprivation of the weaker party, though it certainly does not help. Palestinian return might simply lead to increased numbers among the poor Israeli Palestinians. Some Israeli Palestinians actually oppose return because it might threaten their own status at the same time as it might or would lead to greater average Palestinian Israeli impoverishment.

  • International Law and Policy

Perhaps the most important arguments for return are based in international law and policy. Beinart contends that the dominant international norm endorses the principle that, “People who want to return should be allowed to” based on the Universal Declaration of Human Rights and UN Resolution 194 which over the decades have assumed the role of a fundamental premise of international law.

Except, it isn’t. International rights law is universal. Refugee law is about membership in a specific state. Nowhere in its many articles does the Universal Declaration refer to refugees. In fact, Article 2 refers to the equality of all polities whatever their status and reads: “no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”

Given the equal status of the Gaza Strip and the West Bank under international law with respect to human rights, Article 13:2 reads: “Everyone has the right to leave any country, including his own, and to return to his country.” In the plain meaning of the text, there are two very different rights, first the right to leave a country, which everyone under the human rights charter possesses as an inalienable right, and the right of members of a country to return. Not everyone has the right to return. Jews only have the right of return to Israel because the governing authorities and the people of that country have bestowed that right. Except for Palestinians who are citizens of Israel, Palestinians explicitly do not have a right to return to Israel because Israel was not and is not the Palestinian’s country.

Article 13 is very different than Article 15. The latter insists that everyone has the right to be a member of some state. Statelessness runs against human rights. But the Charter of Human Rights does not specify which state that right applies to, only that it should be some state. “Everyone has the right to a nationality” and “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”

What about UN General Assembly Resolution 194? Article 11 of that resolution provides that, “refugees wishing to return to their homes and live at peace with their neighbours 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 equity, should be made good by the Governments or authorities responsible.” This resolution has the status of a moral advisory rather than an assertion of rights. Further, it is conditional on the following: 1) the permission of Israel; 2) the willingness of the returnee to live in peace and cease a state of belligerency; 3) recommends compensation be paid to those who choose not to return (versus those who want to return but are not given permission); and 4) the responsibility for compensation belong to governments (plural) responsible for the exodus and, given the debates at the time, this was a reference to the invading Arab armies that tried to stop Israel becoming a sovereign and independent state.

It is true that over the subsequent decades, particularly after 1967, that Resolution came to be interpreted as the refugees having a right of return, that the right was transferred to descendants of the original refugees, and that this mantra of “right to return” developed as a central belief in the Palestinian cause of seeking their own state or seeking to displace the Israeli state. In any case, UN General Assembly resolutions simply have no legal force.

What about international policy? Beinart insists that, “Return is by far the most general pattern for resolving refugee crises.” In terms of general frequency, he is correct. But the vast majority of sources of refugees result from ideological conflicts or conflicts over power. Inter-ethnic conflicts rarely lead to return. When they do, it is only behind a conquering army. In inter-ethnic conflicts, refugee return is not only not the pattern it is not even the exception except when superior force is used to back return (e.g. the return of Tutsi to Rwanda following the genocide and the end of the civil war). The Palestinian Liberation Organization when it was formed in 1964 recognized that and determined to return with a conquering army.

  • International and Israeli Practice

Fortunately or unfortunately, depending on the side on which you are on, the cases Beinart cites not only do not support his position but undermine it. Take the Dayton Accords that brought a form of peace to former Yugoslavia. This was a case of inter-ethnic conflict between Serbs, Croats and Bosniacs. It is true that, “The right of refugees to return to their homes is the central promise of the Dayton peace agreement, which considers rebuilding a united multiethnic society in Bosnia-Herzegovina the key to a sustainable peace.” 

Except it never happened. The actual peace was a result of the Serbs, Croats and Bosniacs consolidating their power and occupancy in their own geographical areas. Like the Palestinians, but in larger numbers, one million refugees were either forced to leave their homes or fled to avoid being caught up in the violence. There were another million IDPs. Each of the ethnic groups strenuously resisted return and the international community met with persistent non-compliance. Further, even the efforts to provide compensation by making the former homes marketable was made virtually impossible by the new economic order undergirded by the United Nations and the international community which, in effect, gave the nationalist perpetrators of the war the initial economic and political power.  (Cf. for example, the United States Institute of Peace, Special Report 26, “Dayton Implementation The Return of Refugees,” which summarized the myriad of obstacles which undermined the goal of return.) Dayton, rather than providing an illustration of a right of return, instantiated the enormous difficulties of enacting return after an inter-ethnic conflict in spite of the enormous support for return from the international community.

The Somali and Afghan examples of passing refugee status down generations applies only to those refugees who remain stateless. Palestinian refugees who fled to Jordan received citizenship. Palestinians who fled to Gaza and the West Bank, in effect then Palestinian territory, were de facto internally displaced rather than refugees under the meaning of the UNHCR as having left their own territory. The reality is that the vast majority of the so-called Palestinian refugees are not refugees in accord with international standards, but followed an older pattern of designating refugees by humanitarian need rather than membership.

In another more far-fetched example, the cases of Jews returning to Spain and Austria whose ancestors were evicted years or even centuries ago are all examples, not of a “right of return,” but of states wanting to make amends and/or wanting the return of refugees who posed absolutely no threat to the home population militarily, politically, economically or demographically. These are simply cases bearing no resemblance to the Palestinian case. These Jews are not even called refugees, which adds another nail to the coffin of stupidity of this argument.

Finally, the attempt to undermine the Israeli resistance to return based on the argument of limited absorptive capacity or the need to balance compensation for the Jewish refugees from Arab lands with Arabs from Israel, and the insistence that return does not entail eviction, simply misrepresents the three points. Limited absorptive capacity is a side issue and is not the central argument against return. Compensation, on the other hand, is accepted in principle, but the issue becomes who pays and the assurance that everyone displaced as a result of the wider conflict be compensated.

The issue of compromise at the end of the essay is a joke if it were not so serious. That is because the description of the compromise of return without eviction takes precisely the form of the Israeli Supreme Court proposed compromise to the inhabitants of the houses in Sheikh Jarrah. No eviction if rent is paid, ultimate legal ownership is acknowleged and vacancy is guaranteed when the existing tenant dies.

When one gets to the end of the paper, it is as if one was dealing with a defence piling argument on top of argument whatever the value of each, hoping at least one would stick. A critical reader feels like he or she has escaped a manure pile.

Tomorrow: Teshuva

 Cf. Howard Adelman and Elazar Barkan (2011) No Return, No Refuge: Rites and Rights in Minority Repatriation.

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