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“The Palestinian Right
of Return: New Understandings of International Law.”
8 August 2000—At an August 4 Center for Policy Analysis on Palestine briefing, Susan Akram explained why international law is typically understood as providing less protection for Palestinian refugees, while the drafters actually intended the opposite. The consequences of this interpretation “have been enormous,” considering that according to the U.S. Committee on Refugees, one in four refugees world-wide is Palestinian. Akram was followed by Phyllis Bennis, who discussed the growing awareness of international law and the movement for a Palestinian right of return. Akram, associate professor at Boston University School of Law, cited the two key instruments which address the problem of refugees—the 1951 Convention on the Status of Refugees and the 1967 Protocol on the Status of Refugees. Yet these instruments have been “universally interpreted as not applying to Palestinians” because of Article 1D of the 1951 Convention. This article states: “this convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations, other than the United Nations High Commissioner for Refugees [UNHCR], protection or assistance.” Because Palestinian refugees were to receive protection under the UN Conciliation Commission on Palestine (UNCCP) and assistance under the UN Relief and Works Agency (UNRWA), the international community excluded them from the protection afforded other refugees by the 1951 Convention and the UNHCR. Yet, “there is now quite a bit of evidence that this interpretation … is incorrect.” Akram argued that “the regime that was established for Palestinian refugees was not to be one of fewer protections than that offered to other refugees,” but one of “special or heightened protection.” Among other reasons, this was due to the drafters belief that they had a “legal obligation” to these refugees. Because of UN Resolution 181—which called for the partition of Palestine and caused some 800,000 Palestinians to be expelled by the Zionists or to flee—“they felt they created the Palestinian refugee problem in the first place.” The Palestinian refugee regime is based on three instruments. If the UNCCP or UNRWA failed in its respective mandate, Article 1D provided a “fallback” so that the UNHCR could step in to provide assistance and protection as for other refugees. “This has never … taken place,” even though the UNCCP failed in its mission. Because of these misinterpretations, Palestinian refugees have: 1) a lack of international legal protection; 2) deficient international representation; 3) no international forums where Palestinians can claim their rights and; 4) a “unique” situation for Palestinian refugees “where you find a collision between individual rights” and “collective rights.” If Palestinian statehood is established and recognized, Israel may be able to create a clause which states that their obligations to refugees have thus been fulfilled. Individual refugees would then find it much more difficult to claim restitution or compensation. According to Bennis, a fellow at the Institute for Policy Studies, “everywhere else in the world, we see a kind of new appreciation for international law, [a] new excitement about the possibilities that international law can bring about in terms of defending human rights.” At the same time, “we’re not yet seeing this expansion of international human rights law … toward the Palestinians. It’s only beginning to emerge.” She discussed the case of former Chilean dictator Augusto Pinochet, which was a “huge development in international law.” Bennis argued, “as people change their perceptions about what’s possible in international law, we’re seeing that change … on the ground in terms of public consciousness,” if “not yet at the negotiating table.” Parallels between the Palestinian case and other conflicts are also being recognized. People are more aware that in situations like Rwanda and Bosnia, when “war is over, civilians get to go home. And why should Palestinians be any different?” Bennis has been to the Occupied Territories numerous times. However, a recent trip to the West Bank “was really the first time that I heard people talking in a serious way about the right of return as a serious issue,” rather than just an idealized goal. The movement seems to come from the third generation—the grandchildren of those expelled in 1948 who are now in their teens or 20s. For example, she talked with young people in Dheishe refugee camp who are doing an oral history project. They are conducting extensive interviews with people from their village of origin “to learn very concretely what was life like: how did people earn a living? How did they get water? What would we do now to rebuild if we had the right to return?” Israelis are concerned that already Arabs comprise approximately 20 percent of their population. If Israel repatriates Palestinian refugees, that could rise to 40 or 50 percent. They fear that “Israel would no longer be a ‘Jewish state’,” said Bennis. “They’re absolutely right about that. What they’re wrong about is the claim that somehow not liking the outcome gives you the right to violate the law.” In Rwanda, if the government argued that they didn’t want Hutu refugees to return because they did not like “how it would shift the Hutu-Tutsi relationship,” that would not circumvent the Hutus right to return to their homes. “The same should be true for Israel.” However, until Israel’s strategic backer, the United States, “shifts its power position to say international law is international law” and neither the U.S. nor Israel is immune, little will change. Even with these challenges, compromise is still possible. Yet specific issues, such as costs and other details, can be addressed only after the right is recognized and refugees are included in the negotiations. “There are possible interpretations of how the right of return can be exercised in a way that would minimize rather than aggravate regional tensions, economic crises, [and] human crises, but it has to [first] be based on the right.”
The above text is based on remarks delivered on 4 August 2000 by Susan Akram, associate professor as Boston University School of Law, and Phyllis Bennis, a fellow at the Institute for Policy Studies. Their views do not necessarily reflect those of the Center for Policy Analysis on Palestine or The Jerusalem Fund. This “For the Record” was written by Wendy Lehman; it may be used without permission but with proper attribution to the Palestine Center. This information first appeared in For The Record No. 48, 8 August 2000. |
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