International Law and the Israeli-Palestinian Conflict

A Rights-Based Approach to Middle East Peace

Susan M. Akram, Michael Dumper, Michael Lynk, Iain Scobbie, Susan M. Akram, Michael Dumper, Michael Lynk, Iain Scobbie

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781136850974
• Edition: 1
• Topic: Historia
• Subtopic: Historia de Oriente Medio

The Israeli-Palestinian conflict has long been intertwined with, and has had a profound influence on, the principles of modern international law. Placing a rights-based approach to the Israeli-Palestinian conflict at the centre of discussions over its peaceful resolution, this book provides detailed consideration of international law and its application to political issues.

Through the lens of international law and justice, the book debunks the myth that law is not useful to its resolution, illustrating through both theory and practice how international law points the way to a just and durable solution to the conflict in the Middle East. Contributions from leading scholars in their respective fields give an in-depth analysis of key issues that have been marginalized in most mainstream discussions of the Israeli-Palestinian conflict:

• 
  
  

• Palestinian refugees
• Jerusalem
• security
• legal and political frameworks
• the future of Palestine.

Written in a style highly accessible to the non-specialist, this book is an important addition to the existing literature on the subject. The findings of this book will not only be of interest to students and scholars of Middle Eastern politics, International Law, International Relations and conflict resolution, but will be an invaluable resource for human rights researchers, NGO employees, and embassy personnel, policy staffers and negotiators.

PART I
Core issues: Refugees and Jerusalem

1
MYTHS AND REALITIES OF THE PALESTINIAN REFUGEE PROBLEM

Reframing the right of return

Susan M. Akram*
BOSTON UNIVERSITY

Introduction

For close to six decades Palestinian refugees have been denied critical aspects of international protection, and remain today without a durable solution to their condition. Palestinians comprise one of the largest and longest-standing refugee, or “refugee-like’’ populations in the world – it is estimated that approximately two in five refugees in the world are Palestinian.¹ Palestinians as a nationally-identifiable population comprise the largest global population of refugees, internally displaced, and stateless persons. As this chapter will discuss, their situation as refugees is both similar in some aspects, and unique in other critical aspects, as compared to other global refugee populations.

Certain elements of the refugee problem are not unique to the Palestinian refugee case. Similar situations of conflict-induced mass exodus, widespread violations of human rights, institutionalized discrimination concerning nationality and property rights, are experienced by many refugees around the world and contribute to protracted refugee situations. Elements of the Palestinian refugee problem can be found in numerous mass refugee situations in Africa, Central America, Asia, and Europe.² What remains unique about the Palestinian refugee problem is the persistent and severe denial of international protection, the lack of access both to a durable solution and to the mechanisms for implementing a durable solution – minimum protection guarantees that are available over time to other refugee populations in the world. The lack of international protection towards Palestinians

A version of this chapter appears as the author’s contribution to the Encyclopedia of the Israeli–Palestinian Conflict (2010) Cheryl Rubenberg, ed., Lynne Rienner Publishers, and draws on prior published work co-authored with Terry Rempel. The author particularly thanks her research assistant at the American University in Cairo, Kate Burton, for her excellent research help and meticulous note editing on this chapter.

includes two key aspects: the day-to-day physical security and integrity of the person; and the longer-term durable solution to their unique condition as a refugee population. Contributing to the denial of protection to Palestinian refugees is a severe gap in understanding and implementing the key provisions of law applicable to the Palestinian case.

This chapter describes the main legal issues underlying the Palestinian refugee question, examining and deconstructing several of the key arguments surrounding the rights and principles involved in the refugee problem. Beginning with a brief summary of the contesting historical narratives of the causes of the refugee problem, the chapter discusses the relevant positions taken by both sides, and their validity as legal claims. Underlying the contentious nature of the Palestinian refugee problem is a lack of understanding about the difference between political positions and legal rights. These arguments are broadly described, separating political/philosophical positions from legal claims and discussing the actual rights involved in more detail, along with their implications for a just and durable solution to this core aspect of the Middle East conflict.

The historical roots of the refugee problem, and their relevance to legal rights

The origins of the Palestinian refugee problem can be traced to the interests of powerful western states in the Middle East region during the inter-war and post-World War II periods; the efforts to address the resettlement of large numbers of Jewish and other refugees and displaced persons after the War; and the Zionist program to create a “Jewish homeland” in Palestine. Much has been written about each of these contributing factors to the creation of the Palestinian refugee problem, but historians and social scientists disagree as to the exact causes of the refugee exodus, and why it has persisted to this day.³

The competing narratives about the origins of the Palestinian refugee problem relate directly to the Israeli position that recognizing Palestinians as refugees imputes a Palestinian “right” to return that would negate a Jewish right of return to Israel. This argument is described in varying ways: that the Palestinians were historically not a “people” with recognized rights to Palestine; that they were not forced out or expelled by the Israelis, but fled of their own volition (or in response to orders by Arab leadership to leave); that they fled as part of a war launched by the Arab states to prevent Israel from becoming a state as required by the Partition Resolution, and since Israel was the victor in that war, the Palestinians forfeited their land; that Jews were the native people of Palestine and historically its rightful owners, and in “returning” to it have redeemed it for the Jewish people, and any later claim by Palestinians cannot trump the prior Jewish claims.⁴ Intrinsically related to these arguments is the contention that the Partition Resolution was an affirmation by the international community of the establishment of a Jewish state, and that Israel has the right to maintain a state of exclusively Jewish character, or Jewish majority.⁵ Implicit in all of these arguments is a perception that recognizing Palestinian refugees with a concomitant right of return threatens the existence of Israel as a Jewish state.

With the birth of the Zionist movement in 1897 came the program to create a “Jewish national home’’ in Palestine. The Zionists succeeded in obtaining passage of the Balfour Declaration by the British government, proclaiming that it “viewed with favour the establishment in Palestine of a national home for the Jewish people … it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.”⁶

The Zionists interpreted this Declaration as a British commitment to the “Jewish people’’ for the creation of a Jewish state in Palestine.⁷ This interpretation is difficult to sustain for a number of reasons, not the least of which is that Britain had no authority to create a political entity in Palestine that disregarded the rights of the majority indigenous Palestinian population. The legal interpretation of the Balfour Declaration that is most consistent with the discussions between representatives of the British government and the Zionist delegations, the drafting history of the Declaration, and international law at that time, is that Britain intended to provide a sanctuary for Jews in Palestine without infringing on the rights of Palestinian Arabs or the rights of Jews residing in other countries in the world. In other words, the Balfour Declaration was meant to establish a home for Jews in Palestine, not a Jewish state.⁸

The inconsistent British commitments of, on the one hand, administering Palestine under the post-war League of Nations Mandate for the benefit of its native population and, on the other hand, carrying out the commitment of the Balfour Declaration to establish a “national home for the Jewish people” was disastrous.⁹ These policies laid the foundation for competing claims between the immigrating Jewish community and the native Palestinian population, and fighting broke out between the communities.¹⁰

When the conflict intensified between Jews and Arabs in Palestine, Britain declared unilaterally that it would quit its Mandate, and turned responsibility over the area to the United Nations. The UN General Assembly, in the face of strenuous opposition by the Arab states and Palestinian leadership, passed Resolution 181 on November 29, 1947, recommending the partition of historic Palestine into two states, one “Arab” and one “Jewish,” thus giving the Zionist plan further purported legitimacy. Although the Palestinians and the Arab states rejected the Resolution, it passed 30–17, with 9 abstentions.¹¹

Because of the impact Resolution 181 had on the events that followed, and particularly the role it had in creating the refugee problem, it is important to understand its legal character. The Resolution was a non-binding recommendation by the General Assembly for a political solution to the sudden termination of the British Mandate, the massive outbreak of violence, and the seemingly irreconcilable claims of the communities in Palestine.¹² The Resolution recommended the establishment of two states, Arab and Jewish, with economic union between them. The “Jewish’’ state was to be established in 56 percent of historic Palestine, benefitting the less than one-third of the population which was Jewish that owned 6 percent of the land;¹³ the “Arab” state, benefitting the majority Palestinian Arab population, was to be established in the remaining land, and Jerusalem would be under “international trusteeship.”¹⁴

Aside from whether the General Assembly had legal authority to recommend partition of territory, let alone confer title to territory held by people who did not agree to relinquish their land, Resolution 181 did not authorize establishment of an exclusive Jewish state. The Jewish area was to have 498,000 Jews and 407,000 Arabs, and the Arab area was to have 10,000 Jews and 725,000 Arabs. Jerusalem was to be under “international trusteeship,” with 105,000 Arabs and 100,000 Jews.¹⁵ Thus, even in the Jewish area there would be a bare Jewish majority. Among the most important provisions of 181 are the non-discrimination provisions, which required each state to treat all of its citizens equally, that is, discrimination on the basis of race, religion, or national origin was prohibited.¹⁶ Neither did 181 authorize t...

Table of contents

• CONTENTS
• LIST OF MAPS
• ACKNOWLEDGMENTS
• INTRODUCTION
• PART I Core issues: Refugees and Jerusalem
• PART II Security
• PART III Legal and political frameworks for a durable peace
• PART IV Debating the future
• BIBLIOGRAPHY
• INDEX