Gary D. Keenan -
Note: As well as the refugees of the 1947/48 conflict, this article also deals with those expelled prior to and during the 1956 war and as a consequence of the 1967 and 1973 wars. Given their importance, I also include a brief discussion of illegal settlements, confiscation of Palestinian land and key events regarding East Jerusalem/the Old City.
A. REFUGEES OF THE 1947-48 CONFLICT In 1949, the United Nations Relief and Works Agency (UNRWA) determined through a methodical survey that at least 726,000 Palestinians were made refugees prior to and during the 1948 Arab/Israel war. As this figure did not include several thousand unregistered refugees, the generally accepted total was revised to 750,000. According to an official with Israel's government at the time, however, even this number was too low. "Walter Eytan, then Director General of the Israeli Foreign Ministry, referred to the UNRWA registration of 726,000 [refugees] as 'meticulous' and believed that the 'real number was close to 800,000'." (Norman Finkelstein, "Debate on the 1948 Exodus" Journal of Palestine Studies , Vol. XXI, number 1, Autumn, 1991, footnote #4, p. 86.)
Among other demands, Israel insists that in order to achieve peace the Palestinian leadership must abandon the right of return for refugees of the 1947-48 conflict and their descendants registered with UNRWA who now exceed five million. (See page 19) This despite the fact that the legal right of all Palestinians made refugees during the 1947/48 conflict and their descendants to return to that portion of their homeland now known as Israel ( i.e., within lands it controlled when the 1949 armistice agreements were signed) is incontestable.
Background
Israel's first and second requests to join the United Nations following the signing of the 1949 armistice agreements were rejected because the General Assembly considered it to be in contravention of the UN Charter. This was due to the fact that in violation of the Partition Plan (General Assembly Resolution 181, 29 November 1947), Israel was occupying the international zone of West Jerusalem (from which it had expelled 60,000 Palestinians before and during the 1948 war) and more than half of the territory assigned to the proposed Palestinian state.
Although the native Palestinian Arabs owned 94% of the land on 29 November 1947 and made up at least 69% of the population, the General Assembly's Partition Plan recommended that a Jewish state be granted 56% of Palestine (including its most fertile areas) and an Arab state 42%. The remaining 2%, comprised of all of Jerusalem ( i.e., East and West or Old and New Cities) and environs along with Bethlehem was to be an international zone ( corpus separatum ) under UN jurisdiction. (The total land area of Palestine was 27 million dunams or 6, 750,000 acres.)
It is important to note that the UN Partition Plan was recommendatory only, i.e., non-binding as it was passed by the General Assembly, not the Security Council.
Note : Apart from internal UN matters, resolutions passed by the General Assembly are recommendatory only. General Assembly resolutions are in essence binding, however, if, as in the case of Resolution 194 (11 December 1948, calling for the return of and/or compensation for Palestinian refugees of the 1948 conflict), they reflect international law, e.g., the Universal Declaration of Human Rights which was passed and adopted by the UN on 10 December 1948. Resolutions passed by the Security Council are mandatory or binding, providing of course, that they comply with international law. Hence, the Partition Plan could not have been passed by the Security Council as it violated the United Nations Charter which " reaffirm[s] faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small...."
The Partition Plan also contravened the terms of the British Mandate in Palestine (24 July 1922) which was a Class A mandate, i.e., its purpose was to assist Palestine as a nation "until such time as [it is] able to stand alone." While it encouraged Jewish immigration, the League of Nations sponsored British Mandate did not contemplate the partitioning of Palestine into Jewish and Arab states.
For the record On the day the Partition Plan was passed the total population of Palestine was approximately 2,115,000 of which about 31 per cent were Jews who owned just 5.67 per cent of the total land area of Palestine, including just over 15 per cent of its cultivable area. (Sami Hadawi, Bitter Harvest: A Modern History of Palestine , Olive Branch Press, 1991, pp. 49-50) As of 1946 (the year for which the last records are available), 90 per cent of the Jewish population consisted of foreigners (primarily from Poland, Russia and Central Europe) and their offspring born in Palestine. Only one-third of the Jewish immigrants had acquired Palestinian citizenship and tens of thousands were illegal immigrants. The remaining ten per cent of the Jewish population was made up of native Palestinian/Arab Jews who were adamantly anti-Zionist. (Clifford A. Wright, Facts and Fables: The Arab-Israeli Conflict , Kegan Paul International, London and New York, 1989, p. 114, various sources cited) Hence, native Christian, Druze and Muslim Palestinians made up 69 per cent of the population and owned 94.33 per cent of the land.
Given the Partition Plan's grossly unjust recommendations regarding Palestine's natives and the resulting violence (mostly, according to then British High Commissioner to Palestine, Sir Alan Cunningham, on the part of Jewish forces), it is no wonder that as requested by Truman administration in Washington, the United Nations General Assembly initiated a debate based on the premise that the Partition Plan was unworkable and should be shelved. In the midst of the debate, however, David Ben-Gurion and other Jewish leaders in Palestine, citing the Partition Plan as justification, declared the "Jewish State" of Israel on 15 May 1948, the day the British Mandate ended.
Apart from being illegal under international law and the UN Charter, the declaration of Israel's statehood also violated the Partition Plan which stipulated that its recommended establishment of Jewish and Arab states in Palestine should not occur until two months after the end of the British Mandate.
It is important to note that during the previous five months prior to the declaration of the state of Israel, i.e., beginning immediately after passage of the Partition Plan, Jewish forces had seized large portions of the proposed Arab state and expelled about 350,000 Palestinians from both the proposed Jewish state and the proposed Arab state. This was in accordance with Plan Dalet , a carefully planned campaign of territorial expansion and ethnic-cleansing formulated by the Jewish Agency in Palestine headed by David Ben-Gurion.
Without informing either the State Department or the U.S. delegation to the UN, President Harry Truman rejected advice from among other key advisors, Secretary of State George Marshall, and immediately granted Israel de facto recognition within its Partition Plan borders. The U.S.S.R. promptly recognized Israel de jure . Thus, with the support of the world's two new super-powers, a Jewish state in Palestine became a fait accompli and any meaningful debate or legal challenge regarding its legitimacy was effectively stifled.
When Israel declared itself a state the Arab League had no option but to reluctantly send its greatly outnumbered and outgunned Arab state armies into Palestine in an attempt to end the accelerating dispossession and ethnic-cleansing of defenceless Palestinians. (During late April and early May alone, 60,000 Palestinians were expelled from Haifa and 70,000 from Jaffa.)
By the end of hostilities in 1948, Israel's vastly superior forces had defeated the Arab armies, seized 78% of Palestine, including West Jerusalem, expelled a further 400,000-450,000 Palestinians and destroyed 480 of their towns and villages, including churches, mosques and cemeteries. 750,000-800,000 Palestinians were now refugees.
Of all the land that came under Israeli control as a result of the 1949 armistice agreements only 7.8% (1,614,667 dunams – about 403,670 acres) was Jewish owned compared to 92.2% (19,017,170 dunams – about 4,754,295 acres) which was Arab owned. (Terry Rempel, "The Ottawa Process: Workshop on Compensation and Palestinian Refugees," Journal of Palestine Studies , Vol. XXIX, Autumn 1999, p. 40)
Financial losses incurred by Palestinian refugees of 1947-48 The total financial loss incurred by Palestinians made refugees as a consequence of the 1948 war and events leading up to it has been arrived at as follows: In 1994, during a conference on refugees held at Georgetown University, Professor Atif Kubursi of the Economics Department at Ontario's McMaster University announced that through careful research he had determined the total financial losses incurred by Palestinians made refugees as a result of the 1947-48 war to be $199 billion in 1994 U.S. dollars. In 1996, after including an adjustment for inflation since 1948 and a modest 4% rate of return, he revised the figure to $235 billion. (Terry Rempel, "The Ottawa Process:…," p. 44)
On 8 April 2000, at a conference on refugees held at Boston University Law School, Professor Kubursi declared that after amending the total to include loss of income and psychological stress, he calculated the losses incurred to be: property losses – $146 billion; lost income – $300 billion; and psychological losses - $281 billion. ( ADC [American-Arab Anti-Discrimination Committee] Times , April/May, 2000, p. 5)
Recommendations of Count Folke Bernadotte On 16 September 1948, Swedish Count Folke Bernadotte, the United Nations Mediator for Palestine, submitted his progress report to the United Nations. It contained what he described as "seven basic premises" regarding the situation in Palestine. In the one headed "Right of Repatriation," he declared: "The right of innocent people, uprooted from their homes by the present terror and ravages of war, to return to their homes, should be affirmed and made effective, with assurance of adequate compensation for the property of those who may choose not to return."
The count went on to declare: "It is…undeniable that no settlement can be just and complete if recognition is not accorded to the right of the Arab refugee to return to the home from which he has been dislodged. It will be an offence against the principles of elemental justice if these innocent victims of the conflict were denied the right of return to their homes while Jewish immigrants flow into Palestine, and indeed, at least offer the threat of permanent replacement of the Arab refugees who have been rooted in the land for centuries." (Sami Hadawi, Bitter Harvest… , p. 126) Israel promptly rejected Count Folke Bernadotte's recommendations.
On 17 September 1948, the day after he submitted his progress report to the UN, Count Folke Bernadotte, along with his French aid, Colonel Serot, was assassinated in Jerusalem by men wearing uniforms of the Israeli army who were subsequently discovered to be members of the Stern Gang, a Jewish terrorist group headed by among others, Yitzhak Shamir, a future prime minister of Israel.
The murder of Count Folke Bernadotte by Jewish terrorists was not only despicable and cowardly, but bitterly ironic. During World War II, while serving as head of the International Red Cross, he had negotiated the release of thousands of Jews and Christians from the Nazis. For obvious reasons, Israel has yet to acknowledge Count Folke Bernadotte's extraordinary humanitarian accomplishment. As Jewish historian Moshe Menuhin (father of violinist Yehudi Menuhin) remarked: "To this day it is almost a crime to recall the murder of Count Bernadotte. Forgotten is the name of the noble man who was a victim of ungrateful, land-hungry jingoists." (Quoted by Sami Hadawi, Bitter Harvest… , p.126)
Resolution 194 Apart from its aforementioned mentioned violation of the 1947 Partition Plan's recommendations, Israel's first attempts to join the UN were rebuffed by the General Assembly because of deep concern regarding the plight of the 750,000 plus Palestinian refugees living in abject poverty and misery in over crowded camps in the Gaza Strip, the West Bank and poor neighbouring Arab countries. Winter had set in and with only flimsy tents and little or no sources of heat, their situation was becoming increasingly desperate. As the Arab host countries were only able to contribute the little they could deny their own needy citizens, the refugees were dependent on rations provided by the UN. It was not until years later that the Arab state oil producers were producing sufficient revenue to be able to provide aid to the refugees.
On 11 December 1948, the UN General Assembly passed Resolution 194 (III) of which paragraph 11 (quoted below), in accordance with international humanitarian law (e.g. the Universal Declaration of Human Rights adopted by the UN on 10 December 1948 – see below) and the UN Charter, calls for the return of Palestinian refugees who wish to do so and financial compensation for those who do not.
Following the signing of the 1949 armistice agreements the 22% of Palestine not then occupied by Israel came under Arab state control. Egypt took over administration of the Gaza Strip (clearly stating, however, that it belonged to the Palestinians as part of their state) and Jordan illegally annexed the West Bank and East Jerusalem/the Old City. Significantly, however, only Britain and Pakistan recognized Jordan's annexation. It was rejected by the Palestinians, declared illegal by the Arab League, and never accepted by the United Nations or the United States.
Israel agrees to permit repatriation of refugees to gain membership in UN In 1949, Israel again sought UN membership. This time, however, in order to be considered for admittance, Israel formally agreed at the United Nations to obey General Assembly Resolution 194 regarding refugees and to accept Resolution 181, the Partition Plan, as a basis for negotiations. Israel also signed the Lausanne Protocol at the 1949 Lausanne Peace Conference and thereby reaffirmed its commitments regarding Resolutions 194 and 181.
Israel's pledge to abide by the terms of Resolution 194 and the Partition Plan was made legally binding by including it in General Assembly Resolution 273 (11 May 1949) granting Israel UN membership: "Recalling [Resolutions 181 and 194] and taking note of the declarations and explanations made by [Israel]...in respect of the implementation of the said resolutions, the General Assembly...decides to admit Israel into membership in the United Nations." Israel is the only state admitted to the UN on the condition that specific resolutions would be obeyed.
Shortly after gaining UN membership Israel reneged on its commitment to abide by the terms of Resolution 194 as well as Resolution 181, the Partition Plan, which the Arab delegation, including Palestinian representatives, had accepted as a basis for peace negotiations at the Lausanne Peace Conference.
It is important to note that the Partition Plan, discarded by Israel, "provides that the Arab inhabitants of the Jewish state shall be protected in their rights and property." Furthermore, Israel's Proclamation of Independence (15 May 1948) guarantees political equality and other freedoms for all its citizens and provides that "the state of Israel will be ready to cooperate with the organs and representatives of the United Nations in the implementation of the resolution of the Assembly of November 29, 1947 [the Partition Plan], and will take steps to bring about the economic union over the whole of Palestine." (Sami Hadawi, Bitter Harvest…. , p. 144)
There is no question whatsoever that Israel is legally bound to abide by the terms of Resolution 194 regarding refugees. Only Washington's protection has prevented Israel from having its UN membership suspended, as happened to apartheid South Africa. Arab and Palestinian acceptance of UN Security Council Resolution 242 (22 November 1967), discussed below, resulted in Israel no longer having to obey Resolution 181, the Partition Plan as it was rendered irrelevant. Resolution 194, however, remains fully in effect.
Commenting on Israel's refusal to live up to its commitment to abide by Resolution 194 as a precondition for gaining admittance to the UN, Francis A. Boyle, Professor of International Law, declared: "Insofar as Israel has violated its conditions for admission to UN membership, it must accordingly be suspended on a de facto basis from any participation throughout the entire United Nations system." ( Palestine, Palestinians and International Law, Clarity Press, Atlanta, 2003)
Summary of Resolution 194 regarding refugees
Paragraph 11 resolves "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 in equity, should be made good by the Governments or authorities responsible…."
The Conciliation Commission for Palestine, formed in accordance with Resolution 194 and comprised of United States, France, and Turkey, is instructed by paragraph 11 "to initiate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation and to maintain close relations with the Director of the United Nations Relief and Works Agency [UNRWA] for Palestine refugees and, through him, with the appropriate organs and agencies of the United Nations."
After careful analysis, the Conciliation Commission for Palestine interpreted paragraph 11 as follows: "The General Assembly has laid down the principle of the right of the refugees to exercise a free choice between returning to their homes and being compensated for the loss of or damage to their property on the one hand, or, on the other, of not returning to their homes and being adequately compensated for the value of the property abandoned by them." (Paragraph 38; UN Document A/AC. 25/W.81/Rev.2, pp. 20-21)
The UN Secretariat (office of the secretary general) affirmed that Resolution 194 conferred individual rights on refugees by concluding that paragraph 11 "intended to confer upon the refugees as individuals the right of exercising a free choice as to their future." (UN Doc. A/AC.25/w.45, 1950)
Additional UN resolutions regarding the 1947-48 Palestinian refugees' right of return
On 26 January 1952, the General Assembly passed Resolution 513 (VI). While Paragraph 2 of Resolution 513 (VI) declares that its provisions are without prejudice to the repatriation and/or compensatory provisions for refugees contained in Resolution 194, it endorses a proposal by UNRWA designed to expedite the reintegration of the refugees into the economic life of the area. "It provides that this is to be accomplished either by repatriation, as enunciated in Resolution 194, or through resettlement elsewhere. Resettlement was apparently offered as a practical alternative to the principle of repatriation which had thus far not been practically obtainable." (Thomas Mallison and Sally V. Mallison, "The Right of Return," Journal of Palestine Studies , Spring 1980, p. 130)
Many refugees, especially those who were well educated or possessed trades that were in demand, did eventually manage to integrate into the local economies or relocate. Most, however, remained in the camps. This was due to the fact that the great majority had made their living as farmers or in some other area of the agricultural industry and there was already a surplus of such workers in the West Bank, the Gaza Strip and other Arab countries. The refugees also firmly believed that in accordance with international humanitarian law, the UN Charter, the Universal Declaration of Human Rights and Resolution 194, the community of nations would insist that they be permitted to return to their homeland.
On 19 December 1968, the General Assembly passed Resolution 2452 B dealing with the 1947-48 refugees. In operative paragraph 1 the General Assembly: "Notes with deep regret that repatriation or compensation of the refugees provided for in paragraph 11 of General Assembly Resolution 194 (III) has not been effected, that no substantial progress has been made in the programme endorsed in paragraph 2 of Resolution 513 (VI) [without prejudice to Article 11 of Resolution 194 III] for the reintegration of refugees either by repatriation or resettlement and that, therefore, the situation of the refugees continues to be a matter of serious concern."
Operative paragraph 4 of Resolution 2452 B states that the General Assembly: "Notes with regret that the United Nations Conciliation Commission for Palestine was unable to find a means of achieving progress in the implementation of paragraph 11 of General Assembly Resolution 194 (III), and requests the Commission to exert continued efforts towards the implementation thereof."
On 10 December 1969, the General Assembly adopted Resolution 2535 A. As well as recalling Resolutions 194, 513, and 2452 B, Resolution 2535 A expresses regret that the refugees have not been repatriated or resettled and requests the Conciliation Commission for Palestine to continue working for the return of the 1947-48 refugees.
On 13 December 1972, the General Assembly issued Resolution 2963 A. It notes with deep regret that paragraph 11 of Resolution 194 remains unimplemented and requests the Palestine Conciliation Commission to continue efforts to have it implemented.
On 7 December 1973, the General Assembly passed Resolution 3089 B regarding Palestinian refugees of the 1947-48 conflict. It requests the Conciliation Commission "to exert continued efforts" to bring about the right of return provided for in Resolution 194.
Resolution 3089 D (7 December 1973) refers to the "inalienable rights of the people of Palestine" and states that "the enjoyment by the Palestine Arab refugees of their right to return to their homes and property, recognized by the General Assembly in Resolution 194 (III) of December 11, 1948, which has been repeatedly reaffirmed by the Assembly since that date" is indispensable for "a just settlement of the refugee problem."
Resolution 3236 (22 November 1974) is one of the most important General Assembly resolutions regarding Palestinian refugees. It acknowledges that that all those made refugees since 1947 have an inalienable right to return. Operative paragraph 1 refers to the national inalienable rights of "the Palestinian people" and operative paragraph 2 provides that the General Assembly "Reaffirms also the inalienable rights of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return."
According to Thomas Mallison and Sally V. Mallison, both acclaimed experts in international law at George Washington University, "[Paragraph 2 of Resolution 3236] emphasizes the significance of the right of return of the Palestinians by describing it as 'inalienable.' The characterization of rights as 'inalienable' should be interpreted as meaning that they cannot be surrendered or otherwise terminated. Such fundamental rights may consequently be regarded as having unusual strength and permanence of a kind not associated with less important rights."
The Mallisons note that "…the right specified [in paragraph 2 of Resolution 3236], as in Resolution 3089 D, is of individual Palestinians to return, as distinguished from Palestinian national rights. The geographical reference of paragraph 2 is a comprehensive one. The term 'their homes and property' covers areas of the State of Israel, whether as defined by the Palestine Partition Resolution or as it existed de facto prior to June 1967, and it also includes homes and property which are located in the territories occupied by Israel since 1967."
They go on to say: "There is nothing in Resolution 3236 which derogates from Resolution 181 [the Partition Plan]. Resolution 3236 is entirely consistent with the basic principle of two national states in Palestine which is embodied in Resolution 181. It should also be mentioned that Resolution 3236 is fully consistent with the provisions of the United Nations Charter, including the principle of the sovereign equality of member states. The sovereign equality of the State of Israel is not in question, but like other states, it must have its boundaries established in a lawful manner and honour the right of return as established in law and recognized by the world community through the General Assembly." (Thomas and Sally Mallison, "The Right of Return," pp.133-34)
General Assembly Resolution 3376 (XXX) (10 November 1975) refers to the Palestinians' "inalienable right to return to their homes and property from which they have been uprooted."
General Assembly Resolution 33/28 (7 December 1978) reaffirms that a just and lasting peace requires, among other things, the attainment of "the inalienable rights of the Palestinian people, including the right of return…."
UN Security Council Resolution 605 Most importantly, the UN Security Council made it absolutely clear that all Palestinian refugees, including those of the 1947-48 conflict, have an inalienable right to return to their homes when it passed mandatory/binding Resolution 605 (22 December 1987). Resolution 605 refers to "the inalienable rights of all peoples recognized by the Charter of the United Nations and proclaimed by the Universal Declaration of Human Rights."
Human Rights legislation pertaining to the 1947-48 Palestinian refugees' right of return Throughout history the "right of return" has been so universally accepted that it was not codified until 1215, in Chapter 42 of the Magna Carta: "It shall be lawful in the future for anyone…to leave our kingdom and to return, safe and secure by land and water…."
Following World War II the right of return was further enshrined in international law when in accordance with its charter, the UN adopted The Universal Declaration of Human Rights (Resolution 217 A III) of which Article 13(2) states: "Everyone has the right to leave any country, including his own, and return to his country." As noted above, the UN adopted The Universal Declaration of Human Rights on 10 December 1948, the day before Resolution 194 was passed. As a member of the UN, Israel is bound to abide by the terms of the Universal Declaration of Human Rights and of course, the UN Charter.
To sum up regarding refugees of 1947-48 Apart from Israel's pledge to comply with Security Council Resolution 194 as a precondition for UN membership, Palestinians made refugees in 1947/48 are entitled to return to their homes because the right of refugees to return is an "inalienable" universal human right guaranteed in international law, the UN Charter and the Universal Declaration of Human Rights. Under no circumstances can this right be renounced by anyone, including the Palestinian leadership. It can only be surrendered on an individual basis. Indeed, it is not only the legal right of Palestinian refugees to insist on their right of return; it is their duty on behalf of all humanity.
This does not, however, preclude the Palestinian leadership from suggesting or even recommending to the refugees of 1947-48 and their descendants that as individuals they consider not exercising their right of return. One possible scenario is that as part of a final peace agreement based on implementation of UN Security Council Resolution 242 passed after the 1967 war (discussed below), an agreed upon number of refugees would be compensated for their properties and other assets seized in 1947/48 and allowed to return to what is now Israel. The remainder would receive generous compensation for what they lost. It must be stressed, however, that each individual Palestinian must make his or her own decision. In this regard, the majority of 1947-48 refugees may well choose compensation without repatriation. Indeed, most may prefer to live in a viable sovereign Palestinian state rather than as an oppressed and deprived minority in Israel which is the fate of Israel's current Arab citizens.
Needless to say, before the Palestinian leadership could propose to individual refugees that they consider surrendering their right of return and settle for compensation only, Israel would have to acknowledge the fact that the refugees and their descendants have an inalienable right to return. Otherwise, international humanitarian law would be seriously compromised.
In 1988, Jordan's King Hussein formally returned control of the West Bank and East Jerusalem/the Old City to their rightful owners, the Palestinian people. In the same year, the Palestine National Council (PNC) met in Algiers and ratified UN Resolution 181, the 1947 Partition Plan, in its Palestinian Declaration of Independence. It stated: "Despite the historical injustice inflicted on the Palestinian Arab people resulting in their dispersion and depriving them of their right to self-determination, following…U.N. General Assembly Resolution 181 (1947) which partitioned Palestine into two states, one Arab, one Jewish,…this Resolution [181]…still provides those conditions of international legitimacy that ensure the right of the Palestinian Arab people to sovereignty.... The State of Palestine herewith declares that it believes in the settlement of regional and international disputes by peaceful means, in accordance with the U.N. Charter and resolutions." (1)
According to Francis A. Boyle , Professor of Law, University of Illinois, "This Palestinian Declaration of Independence explicitly accepted the UN General Assembly's Partition Resolution 181(II) of 1947, which called for the creation of a Jewish state and an Arab state in the former Mandate for Palestine, together with an international trusteeship for Jerusalem. The significance of the PNC's acceptance of partition in the Palestinian Declaration of Independence itself cannot be overemphasized. Prior thereto, from the perspective of the Palestinian people, the Partition Resolution had been deemed to be a criminal act that was perpetrated upon them by the United Nations. Today, the acceptance of the Partition Resolution in their actual Declaration of Independence signals a genuine desire by the Palestinian people to transcend the past century of bitter conflict with Jewish people in their midst in order to reach an historic accommodation with them on the basis of a two-state solution. The Declaration of Independence is the foundational document for the State of Palestine. It is determinative, definitive, and irreversible." (2)
On 13 September 1993, Palestinian leader Yasser Arafat and Israeli Prime Minister Yitzhak Rabin signed the Oslo accords. The Palestinian leadership agreed as part of a final settlement to abide by the terms of UN Security Council Resolution 242 (discussed below) and recognize Israel as a sovereign state within the area it controlled on 4 June 1967. By so doing the Palestinians abandoned the 1947 Partition Plan which had recommended they receive just 42% of their original homeland and agreed to accept a state comprising a mere 22% with East Jerusalem/the Old City as its capital. Although it subsequently indicated its willingness to share East Jerusalem/the Old City as a capital with Israel, the Palestinian leadership did not equivocate on the refugees' right of return as laid out in Resolution 194 in accordance with international humanitarian law.
B. POST 1948 HUMAN RIGHTS LEGISLATION PERTAINING TO PALESTINIAN REFUGEES The next important document dealing with human rights, including the right of return, was the Fourth Geneva Convention (12 August 1949) of which Article 49 states: "Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive." Israel ratified the 1948 Geneva Conventions in 1951.
The UN Security Council has passed several mandatory resolutions protesting Israel's violations of the Fourth Geneva Convention regarding Palestinian refugees.
On 16 December 1966, the General Assembly passed Resolution 2200 (XI) and thereby adopted the International Covenant on Civil and Political Rights which states: "No one shall be arbitrarily deprived of the right to enter his own country."
The right of return was also incorporated into The American Convention on Human Rights (22 November 1969): "No one can be expelled from the territory of the State of which he is a national or be deprived of the right to enter it." The African Charter on Human and Peoples' Rights, The European Convention for the Protection of Human Rights and Fundamental Freedoms, and the recently passed Rome Statute of the International Criminal Court also affirm the right of return.
The legality and sanctity of the right of return was further demonstrated in recent history by the efforts on the part of Western powers to ensure the return of refugees in Bosnia, Kosovo and East Timor.
C. THE RIGHT OF RETURN FOR PALESTINIANS MADE REFUGEES BETWEEN 1949 AND 1956 The right of return for the approximately 25,000 Palestinians and their descendants expelled by Israel from 1949 to 1956, mainly just prior to and during its 1956 invasion of Egypt (in collusion with France and England), is guaranteed by among other human rights laws, the UN Charter, the Universal Declaration of Human Rights, and The Fourth Geneva Convention which as noted above, Israel ratified in 1951.
D. REFUGEES OF THE 1967 JUNE WAR On 5 June 1967, Israel launched a massive land and air war against Egypt and thereby, Jordan and Syria, each of whom shared a mutual defence pact with Egypt. The war ended with Israel occupying the remaining 22 per cent of Palestine (East Jerusalem/the Old City, the West Bank and the Gaza Strip) as well as Syria's Golan Heights and Egypt's Sinai.
The total land area of Palestinian lands seized by Israel during the 1967 war is just over 6000 square kilometres broken down as follows: The Gaza Strip – 360 square kilometres; the West Bank – 5860 square kilometres and East Jerusalem/the Old City – 0.89 square kilometre. (3) Although Egypt's Sinai was subsequently returned as part of a peace treaty, Syria's Golan Heights, consisting of 1,250 square kilometres, is still occupied by Israel.
The 1967 war also "...left in its wake 210,000 new refugees, and again made homeless another 113,000 Palestinians who had already been refugees from the 1948 war." (Donald Neff, Fallen Pillars , Institute for Palestine Studies Washington, D.C. 1995, p.81)
Of those families that managed to remain, many found themselves destitute because they had lost their men-folk during the war. In addition, 100,000 Syrians expelled from Syria's Golan Heights and 35,000 Egyptians expelled from the Sinai became refugees. (Frank Epp, Whose Land Is Palestine? , McClelland and Stewart Limited, Toronto and Montreal, 1970, p. 215) According to Professor Walid Khalidi, the number of Syrians expelled from the Golan Heights as a consequence of the June war was 120,000. (Walid Khalidi, "The Prospects of Peace in the Middle East," Journal of Palestine Studies , Winter 2003, p. 53)
During the years immediately following the 1967 war Israel's brutal occupation of the West Bank, East Jerusalem/the Old City and the Gaza Strip, together with its illegal confiscation of land and dynamiting of homes caused more than 200,000 additional Palestinians to flee, further swelling the refugee population. "These were followed in subsequent years by individual expulsions. Thus, the total number of [Palestinians] who fled their homes or were expelled in this second exodus [ i.e., during and after the 1967 war], was about 416,000 persons. This does not include Syrians expelled from the Golan Heights and Egyptians from the Sinai Peninsula." (Sami Hadawi, Bitter Harvest… , p. 146)
Not wanting a repeat of the situation that occurred in 1948, the UN Security Council quickly passed mandatory Resolution 237 (14 June 1967) calling upon Israel to "…facilitate the return of those inhabitants who had fled the area since the outbreak of hostilities." While as noted above, Sinai was eventually returned to Egypt, Israel has yet to allow Palestinian and Syrian refugees of the 1967 war to return.
As well as Security Council Resolution 237, the right of return for Syrians expelled from the Golan Heights and their descendants along with Palestinians expelled or displaced from East Jerusalem/the Old City, the West Bank and the Gaza Strip and their descendants is also guaranteed in law by the UN Charter, the Universal Declaration of Human Rights and the Fourth Geneva Convention.
Defying international law, Israel lays claim to East Jerusalem/the Old City and begins construction of illegal Jewish settlements On 28 June 1967, in flagrant violation of international law, Israel's Knesset passed "without debate a law enabling the Minister of the Interior to proclaim Jerusalem a single city under Israeli administration.... The next day the government formally united the two sections [East and West] of the Holy City and extended its borders to include Kallandia Airport and Mount Scopus to the north and northwest, the Mount of Olives to the east, and several villages to the south." (Fred J. Khouri, The Arab Israeli Dilemma , Syracuse University Press, 1985, p. 113)
Israel thus illegally claimed occupied East Jerusalem/the Old City, illegally united it with West Jerusalem and extended its municipal boundaries by 65 square kilometres into the West Bank. (Dilip Hiro, Dictionary of the Middle East , St. Martin's Press, New York, 1991, p. 77)
The result of this illegal unification and extension of East Jerusalem/the Old City became known as Greater Jerusalem. The UN Security Council invalidated Israel's actions by passing Resolution 252 on 21 May 1968.
Note: In 1948, only one acre or about 0.50 per cent of East Jerusalem/the Old City was Jewish owned. The remainder was owned by Palestinian Christians and Muslims. ("Assessing Palestinian Property in the City," by Dalia Habash and Terry Rempel, Jerusalem 1948: The Arab Neighbourhoods and their Fate in the War , edited by Salim Tamari, The Institute of Jerusalem Studies, 1999, pp. 184-85)
On 4 July 1967, the General Assembly passed Resolution 2252 (ES-V) welcoming with great satisfaction Security Council 237 and calling upon Israel to ensure the safety, welfare and security of the inhabitants of the areas where military operations had taken place and to facilitate the return of those inhabitants who had fled the area since the outbreak of hostilities.
During the summer of 1967, Israel began constructing settlements in the occupied West Bank, the Golan Heights and the Sinai. In late September, the government awarded a new kibbutz 6000 dunams in the Qunaitra region of the Golan Heights. (Charles D. Smith, Palestine and the Arab-Israeli Conflict , St. Martin's Press, New York,1988; pp. 208-10)
There are now (2006) more than 450,000 Jewish settlers residing in illegal settlements in the occupied Palestinian West Bank and East Jerusalem/the Old City (including its further illegally extended boundaries combined with West Jerusalem to form "Metropolitan" Jerusalem – discussed below), along with a further near 20,000 in Syria's occupied Golan Heights.
Note : To this day, Israel's supporters contend that the Labour government of Levi Eshkol offered to withdraw from all lands it had seized during the 1967 war in exchange for a peace agreement with the Arabs only to be rebuffed by the Arab League at the August 1967 Khartoum Conference. In fact, as I will demonstrate in a future paper regarding the Khartoum Conference specifically, Israel had no intention of withdrawing.
Resolution 242 On 22 November 1967, in response to the June war, the Security Council passed mandatory Resolution 242 which emphasizes "the inadmissibility of the acquisition of territory by war…." While the English version of Resolution 242 calls for Israel's "withdrawal from territories occupied in the recent conflict," the equally authentic French and Russian versions call for Israel's "withdrawal from the territories...." In effect, and in accordance with international law and the UN Charter, Israel is required to withdraw to the area it controlled on 4 June 1967. Resolution 242 also calls for the "termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity, and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free of threats or acts of force."
Regarding the overall refugee problem, including those Palestinians ejected during the 1947-48 conflict, Resolution 242 "[a]ffirms the necessity…[f]or achieving a just settlement of the refugee problem."
Those who argue that Resolution 242 does not call for Israel's total withdrawal from Arab lands seized during the 1967 war because the English version does not include the definite article, i.e., the , before "territories occupied," not only ignore the French and Russian versions, but also fail to grasp the obvious fact that the Security Council cannot pass resolutions that violate the UN Charter. That is why the resolution refers to the "inadmissibility of the acquisition of territory by war…." This does not preclude, however, minor mutually agreed border adjustments (i.e., to "clean up" the 1949 armistice lines) as part of a final peace agreement.
It is important to note that apart from the fact that Resolution 242 is binding because it reflects international law and was issued by the Security Council, it was also formally agreed to at the time in a document signed and delivered to the UN Secretary General by Israeli Foreign Minister Abba Eban on behalf of the Labour government led by Prime Minister Levi Eshkol.
During a meeting on 8 November 1967, U.S. President Lyndon Johnson assured Jordan's King Hussein that most Israeli troops would be withdrawn "in six months." (Donald Neff, Fallen Pillars , Institute for Palestine Studies, 1995, page 101) To this day, however, Israel maintains an illegal "belligerent occupation" over about 3,800,000 Palestinians in the West bank, East Jerusalem as well as the Gaza Strip which is still deemed "occupied" under international law despite the withdrawal of illegal Jewish settlers and end to 38 years of permanent deployment of Israeli troops. (As I write, the Gaza Strip is once again under attack by Israel in an attempt to overthrow the democratically elected Hamas led government.)
General Assembly Resolution 2452 A (19 December 1968) recalls Security Council Resolution 237 and calls on Israel directly "to facilitate the return of those inhabitants who have fled the areas since the outbreak of hostilities." It also emphasizes the "requirement" of the refugees' "speedy return to their homes and to the camps which they formerly occupied" and requests the secretary general to follow up and report on "the effective implementation of the resolution." Israel is called upon to take "effective and immediate steps for the return without delay" of those who fled their homes due to the 1967 war.
Thomas Mallison and Sally V. Mallison contend that "[like] Resolution 194, [Resolution 2452 A]…appears to be written on the assumption that the right of return is established and that the central task is to obtain its implementation." ("The Right of Return," Journal of Palestine Studies , Spring 1980, p. 131.)
Regarding refugees of the 1967 war, General Assembly Resolution 2535 B (10 December 1969) recognizes "that the problem of the Palestine Arab refugees has arisen from the denial of their inalienable rights under the Charter of the United Nations and the Universal Declaration of Human Rights" and calls upon the Security Council to take effective measures to ensure their implementation. It also recalls Security Council Resolution 237 (quoted above) as well as General Assembly Resolutions 2252 and 2452 A regarding refugees of 1967, and reaffirms "the inalienable rights of the people of Palestine," notes Israel's refusal to implement resolutions concerning the 1967 refugees and requests that the Security Council ensure their implementation.
On 13 December 1972, the General Assembly passed Resolution 2963 D regarding the refugees of the 1967 war. The General Assembly: "Calls once more upon Israel immediately to take steps for the return of the displaced inhabitants" and requests the secretary-general to report upon implementation.
Resolution 2963 C (13 December 1972) refers specifically to those Palestinians made refugees for the second time by being expelled from the Gaza Strip during the 1967 war. The General Assembly calls upon Israel "to take immediate steps for the return of the refugees concerned to the camps from which they were removed…."
E. REFUGEES OF THE 1973 WAR In what proved to be an unsuccessful attempt - due in large measure to the U.S. launching a massive airlift to replace Israel's tanks and aircraft destroyed in the fighting which according to journalist Seymour Hersh ( The Samson Option , 1991), was in response to Israel's threat to use its nuclear weapons - to liberate their lands seized by Israel in 1967, Egypt and Syria launched a war on 6 October 1973. In accordance with UN Security Council Resolution 242 which had been accepted by the Arab League, no Arab troops or aircraft attempted to enter Israel's side of the 1949 armistice lines. The fighting was confined entirely to the occupied Sinai and Golan Heights. Egypt and Syria were entirely within their legal rights to launch the war in order to liberate their sovereign territories.
During the 1973 war Israel expelled a large number of Palestinians, including refugees of the 1947-48 conflict, from the occupied Gaza Strip into the occupied Sinai.
On 22 October 1973, the UN Security Council passed Resolution 338 calling for a cease-fire and "the start immediately after the cease-fire of the implementation of Security Council Resolution 242" and "the start immediately and concurrently with the cease-fire, of negotiations aimed at establishing a just and durable peace." Regarding Palestinian refugees in general and related matters, it called for "a just settlement of the Palestine Problem."
General Assembly Resolution 3089 C (7 December 1973) concerns refugees from the 1967 war and refugees driven from the Gaza Strip during the 1973 war. It explicitly reaffirms "the right of the displaced inhabitants, including those displaced as a result of recent hostilities, to return to their homes and camps."
Resolutions 3089 B, D, and C regarding refugees of the 1947-48, 1967 and 1973 wars were issued by the General Assembly to explain Security Council Resolution 242 which had called for "achieving a just settlement of the refugee problem" without defining the basis for such a settlement.
Resolution 3236 (22 November 1974), discussed in detail in section A regarding 1947-48 refugees, also applies to all Palestinians made refugees after 1948. In short, Resolution 3236 resolves that all Palestinian refugees have an "inalienable" right to return "to their homes and property."
"The term 'their homes and property' [contained in Resolution 3236] covers areas of the State of Israel, whether as defined by the Palestine Partition Resolution or as existed de facto prior to June 1967, and it also includes homes and property which are located in the territories occupied by Israel since 1967." ("The Right of Return" by Thomas Mallison and Sally V. Mallison, Journal of Palestine Studies , p. 133.)
In accordance with the peace treaty it signed with Egypt in March 1979, Israel withdrew from the Sinai (not considered to be part of "Eretz Israel" by the World Zionist Organization, the Labour party, or the Likud.) Regrettably, however, among other issues it failed to address, the Camp David accords negotiated in September, 1978, by Prime Minister Menachem Begin and President Anwar Sadat with the assistance of U.S. President Carter that led to Israel's withdrawal from the Sinai made no reference to the refugee problem.
As well as breaking his promise to grant "full autonomy" to Palestinians in the occupied territories, Begin also ignored his pledge to U.S. President Carter to cease the construction of illegal settlements in the occupied territories. They continued at an accelerated rate.
According to President Carter, under the terms of the 1978 Camp David Accords Israeli Prime Minister Menachem Begin agreed to obey UN Security Council Resolution 242: "When I became president, I immediately elevated my goals to bring a comprehensive peace to this land and I devoted a great deal of my efforts to the process. At that time there had been major wars here, four times in 25 years, between Israel and her neighbours. Egypt was the most formidable, so I negotiated between [Anwar] Sadat (former Egyptian president) and [Menachem] Begin (former Israeli Prime Minister) and concluded a treaty in April of 1979 which has never been violated. At the same time we orchestrated terms for the resolution of the plight of Palestinians in what was called the Camp David Accords. In that agreement, Begin, on behalf of the Israeli people, agreed to comply completely with United Nations resolution 242. He agreed to the full withdrawal of all political and military Israeli forces from the West Bank and Gaza. This was presented to the Knesset and the members of the Knesset voted 85% to approve the Accords. Since then the situation has deteriorated." (From the text of comments delivered by former U.S. President Jimmy Carter on 10 January, 2005 at a meeting organized by the World Council of Churches' Ecumenical Accompaniment Programme in Palestine and Israel (EAPPI).
By returning the Sinai and reaching a peace agreement with Sadat, Israel ensured that Egypt (the major Arab military power) would not be an adversary in any future military confrontation resulting from its intention to retain all the remaining occupied Palestinian and Syrian territories and populate them with Jews.
While Egyptian refugees were able to return to their homes following its withdrawal from the Sinai between 1979 and 1982, Israel has permitted only a token number of Palestinian refugees of the 1967 war to do so. In defiance of international law and mandatory UN Security Council Resolution 237, of the hundreds of thousands of Palestinians driven from their homes in the West Bank and Gaza as a result of the 1967 war, Israel has permitted only 14,027 to return plus another 1,847 under a family reunion plan. (Hadawi, Bitter Harvest… , p. 146) No Syrian refugees have been permitted to return to the occupied Golan Heights and Israel retains control of Lebanon's Shebba farms, also seized during the 1967 war.
As noted above in section A, the UN Security Council endorsed the "right of return" for all Palestinians made refugees since 1947/48 when it proclaimed mandatory Resolution 605 (December 22, 1987). To repeat, Resolution 605 refers to "the inalienable rights of all peoples recognized by the Charter of the United Nations and proclaimed by the Universal Declaration of Human Rights."
F. ISRAEL ANNEXES EAST JERUSALEM/THE OLD CITY In 1980, Israel's Knesset passed a "basic law" declaring what was in fact the illegal unification of East Jerusalem/the Old City (with its illegally extended municipal boundaries) and West Jerusalem - known together as Greater Jerusalem - to be the indivisible capital of Israel. Thus, Israel announced to the world that it would never relinquish rule over the Old City or permit it (or Bethlehem) to come under special UN jurisdiction as per the 1947 Partition Plan. Israel's annexation was rejected by the Security Council in Resolutions 476 (March 1980) and 478 (June 1980), by 14 votes to none.
With impunity, Israel has ignored UNSC Resolutions 252 (21 May 1968, discussed above) as well as Resolutions 476 and 478 and continues to this day to illegally extend the boundaries of East Jerusalem/the Old City and confiscate therein occupied Palestinian land.
On 14 December 1981, in defiance of international law and UN Security Council Resolution 242, Israel illegally annexed Syria's occupied Golan Heights, also with impunity. No country has recognized this annexation.
Metropolitan Jerusalem According to Jeff Halper, coordinator of the Israeli Committee Against House Demolitions, the borders of what Israel now refers to as "Metropolitan Jerusalem" ( i.e. West Jerusalem together with East Jerusalem/the Old City extended far beyond the boundaries of previously discussed Greater Jerusalem) now incorporate "a full 40 percent of the West Bank."
Metropolitan Jerusalem's borders "stretch from Beit Shemesh in the west through Kiryat Sefer until and including Ramallah, then extend southeast through Ma'aleh Adumim almost to the Jordan River, there turning southwest to encompass Beit Sahour, Bethlehem, Efrat and the Etzion Bloc, then heading west again through Beitar Illit and Tsur Hadassah to Beit Shemesh." Halper also notes that "In many ways metropolitan Jerusalem is the Occupation. Within its limits are found 75 percent of the West Bank settlers and the major centers of Israeli construction." (Jeff Halper, " The 94 Percent Solution: A Matrix of Control, " - http://www.merip.org/mer
The Gaza Strip constitutes 1.3 per cent of mandated Palestine. Thus, Metropolitan Jerusalem (of which 75 per cent is in the occupied West Bank - http://www.aliasoft.com/themes
As well as pursing a deliberate policy to depopulate it of Palestinians, Israel has made it clear that it intends to incorporate all of East Jerusalem/the Old City, including the Noble Sanctuary and other Muslim as well as Christian holy sites. Apart from its illegality, it is difficult to fathom such arrogance and lack of respect for the other two Abrahamic faiths.
Bearing in mind the additional occupied Palestinian West Bank land that Israel is confiscating through construction of its illegal separation/annexation wall; ongoing seizures, including in the Jordan Valley; illegal settlements blocs it intends to integrate; by-pass roads for Jews only; closed military areas, industrial parks, etc., it is evident that what Israel envisions as a future Palestinian "state" will consist of non-contiguous Bantustans in the West Bank along with the Gaza Strip as an outdoor prison and entail a total land area considerably less than half of the 22 per cent of mandated Palestine invaded by Israel in 1967 that in accordance with Security Council Resolution 242, Palestinians have accepted as their state. In short, very much akin to the outrageous so-called "generous offer" Ehud Barak made to Yasser Arafat during the 2000 Camp David Summit. (See "The Truth Regarding the 2000 Camp David Summit" (4)
For further information on the rights of Palestinian refugees see The Palestine Problem in International Law and World Order by W. Thomas Mallison and Sally M. Mallison , Longman, 1986. By the same authors: "The Right of Return" in The Journal of Palestine Studies , Spring, 1980.
For excellent overall discussions of Palestinian refugees and their right of return, see Bitter Harvest: A Modern History of Palestine by Sami Hadawi, Olive Branch Press, 1991; The Arab Israeli Dilemma by Fred J. Khouri, Syracuse University Press, 1985; The Palestinian Right of Return , by Ali Abunimah and Hussein Ibish, Issue Paper #30, published by the American-Arab Anti-Discrimination Committee, 2001.
G. TOTAL NUMBER OF PALESTINIANS AND DISTRIBUTION OF REGISTERED REFUGEES
The Palestinian Central Bureau of Statistics (PCBS) - http://www.amin.org - has determined that as of 31 December 2005, the total number of Palestinians worldwide was 10.1 million distributed as follows:
3.8 million (37.9%) in the Palestinian Territory (2.4 million in the West Bank and East Jerusalem and 1.4 million in the Gaza Strip); 1.1 million (11.2%) in Israel; 3 million (29.4%) in Jordan; and 462,000 ( 4.6%) in Syria. Although the PCBS report does not include them, there are well over 400,000 in Lebanon. This leaves about 1,338,000 residing elsewhere around the world. (For the record, the PCBS report estimates that the Palestinian population will double within 23 years.)
The PCBS data revealed that 42.5% of Palestinians (1,615,000) in the Palestinian Territory; 87.0% (2,610,000) in Jordan; and 95.6% (441,672) in Syria are registered as refugees with UNRWA. Virtually all of the more than 400,000 Palestinians in Lebanon are also registered refugees. Thus, the total number of registered Palestinian refugees as of 31 December 2005 is at least 5,066,672.
It should be noted that according to Dr. Salman Abu Sitta, former member of the Palestine National Council and renowned expert on refugees, when those not registered with UNRWA are included, the total number of Palestinian refugees is 6,400,000. ("The Palestinian Right to Return Home," June 5 2006 (5) )
Other articles by Gary Keenan published by Canpalnet-ottawa are:
(1) "Issa Fahel, A Man to Remember":
http://www.canpalnet-ottawa
(2)"The Truth Regarding the 2000 Camp David Summit":
http://canpalnet-ottawa.org
(3)"The 2000 Al Aqsa or Second Intifada":
http://canpalnet-ottawa.org
(4) "The Failure of the Taba II Negotiations and
Subsequent Events":
http://canpalnet-ottawa.org
(5) "An Open Letter to My MP Regarding His Membership
in Liberal Parliamentarians for Israel": http://www.canpalnet-ottawa
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