The Palestinian right of return is not for the US, Israel, or Israel’s supporters, to bargain away

by Nima Shirazi*

When discussing possible solutions to the current Israeli/Palestinian impasse during a recent panel discussion entitled “Jewish Perspectives on the Boycott/Divestment/Sanctions Movement,” participant Gil Kulick suggested a return to the proposals of the 2000 Clinton Parameters, the 2002 Nusseibeh-Ayalon agreement, and the 2003 Geneva Accords. This would effectively declare the Nakba a Zionist fait accompli and force us to pretend that a wholly demilitarized Palestinian state – existing on 42% of the 80% of the 22% of 100% of their original homeland – is a viable expression of nationhood.  In terms of Israel’s actual legal obligations regarding the Palestinian right of return, Kulick said this: “The right of return will have to be exercised within the Palestinian state…and I think everyone understands that.” Who “everyone” is was never fully addressed by Kulick or his anti-BDS co-panelist, Kathleen Peratis, who stated during her presentation that the Palestinian Authority would “settle” for relinquishing the right of return.  What both Peratis and Kulick, who also referred repeatedly to the possible concessions to be made by Mahmoud Abbas and Salam Fayyad, failed to either point out or understand is that neither Abbas nor Fayyad have any popular political mandate from the Palestinian people.  Whereas both Rebecca Vilkomerson and Hannah Mermelstein spoke of the BDS movement as a non-violent consensus of Palestinian civil society, supported by over 170 Palestinian organizations and encompassing not only the aspirations of Palestinians in occupied East Jerusalem, the West Bank, Gaza, but also Palestinian citizens of Israel and those in the Diaspora, Peratis and Kulick held firm to the idea floated by the United States and Israel that Abbas and Fayyad somehow actually speak on behalf of the Palestinian people as a whole and can somehow legally and officially bargain away their inalienable human rights and their rights as enshrined in international law.

What should have been pointed out by either the other panelists or the audience is that Abbas is no longer the elected president of the PA, his four-year term having expired on January 24, 2009.  Though theoretically appointed to an open-ended, extended presidency at the behest of the PLO’s Central Council, Abbas actually serves at the pleasure of the United States and Israel.  Additionally, “prime minister” Fayyad was unilaterally appointed by Abbas as a replacement for the  democratically-elected Hamas leader Ismail Haniyeh in 2007, despite not having any legal authority to do so and in spite of the fact that Fayyad’s own political party garnered a mere 2.41% of the vote in the 2006 elections, the least of any of the six parties running.  Fayyad even resigned his appointed post in March 2009 only to be reinstated by Abbas two months later. Furthermore, the right of return is not a bargaining chip to be bartered away by the US-approved Palestinian leadership.  It is affirmed repeatedly in international law, from the Universal Declaration of Human Rights (Article 13.2) to the Fourth Geneva Convention of 1949 (Articles 44, 46, and 49) and is deemed an inalienable and individual right meaning that it is impossible for any governing or official body to abrogate or deny this right on behalf of an entire people.  As the mere act of “expulsion” is illegal, the right to return after a forced displacement is self-evident.

The 1948 UN General Resolution 194 specifically applies the right of return to the Palestinian refugees. Paragraph 11 states “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 property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.”

This resolution has been reaffirmed practically every year since its adoption with near unanimity.  While it is true that while General Assembly resolutions are “non-binding,” unlike Security Council resolutions, Israel’s admittance to the UN as a member state (Resolution 273) was conditioned on the explicit acceptance and implementation of Resolution 194 and its stipulations. Consequently, Israel is bound, as a condition of membership in the UN, to implement 194 and to facilitate the return of the Palestinian refugees.  Everyday it refuses to do this – which is everyday over the past 62+ years – it has been in violation of its own UN membership and international law.

It is disheartening, to say the least, that Kathleen Peratis, who is a lawyer, demonstrates so little knowledge of these basic elements of international law.  At one point during the panel discussion, Peratis also falsely claimed that Israel’s “legitimacy” as a state is verified by the international mandate of United Nations General Resolution 181.  Yet, not only was UNGR 181 a non-binding resolution, accepted with a vote of 33 to 13 (with 10 abstentions) only after extensive  diplomatic bullying and arm-twisting by both the US and Russia, but it was also merely a recommendation – not an affirmation or creation of anything – that required the approval of both Jewish Zionist and Palestinian Arab for it to be implemented.  As the resolution was understandably rejected by the Palestinian representatives (and only begrudgingly accepted by the Zionists as a jumping off point for continued colonial expansion), it has absolutely no legal authority and by no means legitimizes Israel’s subsequent unilateral declaration of independence in 1948.

That Israel exists is beyond doubt.  That a community of European settler-colonialists had a legal mandate from the international community to establish an ethnocratic state on land inhabited by other people, however, is not.  That Israel can only exist as a discriminatory state that privileges its Jewish citizens should be evidence enough that the concept of what Israel “is” should not only be reevaluated, but also redefined.
*Nima Shirazi is a political commentator from New York City. His analysis of United States policy and Middle East issues, particularly with reference to current events in Iran, Israel, and Palestine, can also be found in numerous other online and print publications, as well as his own website, WideAsleepInAmerica.com.