International law Is key

The Palestinians’ right of return challenges not only international law itself, but more so the political will of UN member states to act in the face of blatant racism and forced dispossession. A reply to Ahmed Badawi’s “Palestine: seize the initiative”.

Sam Bahour
5 November 2009

Ahmed Badawi is to be applauded for thinking out of the box and probing issues that are virtually taboos on each respective side of the Palestinian-Israeli divide. That said, I must respectfully challenge the thesis that he presents. My reading of his analysis is that he may have fallen into an Israeli trap - one that has been set ever since the late nineteenth century and has taken innumerous well-intended persons victim.

Towards the end of his analysis, Badawi makes a statement that is key to anyone serious about resolving this prolonged conflict; “In both societies, there is a dire need to rearticulate the national consensus in accordance with international law, which ultimately provides the best guarantee for their long-term security. Neither society can do this on its own.” This is exactly what the Palestinians have been calling for for more than four decades. It is not where the Palestinian position started, but it is where it has been ever since Israel militarily occupied the West Bank and Gaza Strip in 1967.

Israel, on the other hand, has not only shunned international law ever since it’s founding, but continues to do so to this day, as we are all witnessing with their latest attempt to whitewash the entire Gaza onslaught that took place at the beginning of this year. Even when one of the world’s most respected international law experts, Judge Richard Goldstone - who just happens to be a Jew, a Zionist, and a staunch supporter of the state of Israel - pointed to Israel as having carried out war crimes and possible crimes against humanity, he became, in Israel’s eyes, the enemy.

This is key. Israel’s national paranoia that the international community is bent on holding Israel to a higher standard than the rest of the world has provided an environment where Israel acts with impunity in full view of the entire global community. If Israel brushes aside international law and third states, which as signatories to the relevant international conventions have an obligation to hold Israel accountable, accept this, then Palestinians will continue to be placed in a perpetual negative image - as can be seen even in the title of Badawi’s article: “…can the Palestinians seize the initiative?” The burden is once again unduly dropped on the back of the Palestinians - a dispossessed and ‘protected people’ under international law.

Without a third party baseline, we are left with backroom wheeling and dealing, a model that no matter how well intentioned, will reflect the existing balance of power. In other words, Israel, being the regional military might, and its key ally the US, will impose a resolution that fits their liking and narrow interests. No need to note that such a “resolution” is no resolution at all, and thus the six decade conflict survives.

Israel’s trap is no longer a secret. With the faithful assistance of the US, Israel refuses to accept international law as being applicable to the conflict. This includes any part of the conflict as well, whether it be refugees, settlement building, house demolitions, or even the actual military occupation of the West Bank and Gaza Strip itself. Peace seeking persons across the globe should not fall into the black hole of trying to imagine a resolution based solely on the here-and-now possibilities. Ahmed Badawi and the two respected writers who replied to him, Oliver Ramsbotham and Gershon Baskin, all fall into this mindset of ignoring what’s right and wrong and using today’s balance of powers as the starting point. This is a dangerous approach to conflict resolution in a region that tends to read history in 100-year episodes and is willing to sit it out if need be. Without international law as the guiding framework, both sides will see the future tilting to their side.

Back to the two elements of the conflict that Badawi attempts to link: recognition of Israel as a Jewish state and the Palestinians right of return.

Two-thirds of all Palestinians are refugees.

The Palestinian refugees symbolize the long-standing conflict between Israelis and Palestinians. The refugee problem has its roots in what Israelis call their 1948 Israeli War of Independence, which ended in the mass displacement of over 750,000 Palestinian Arabs (approximately half of the Arab population). According to historical accounts of the War, including from recent Israeli historians, Jewish Zionist forces precipitated the flight of the Palestinian Arabs as part of a campaign of population transfer. The nascent state of Israel subsequently enacted laws to expropriate the refugees’ property and bar their return. The refugees were left homeless and destitute, mostly dependent on foreign aid for survival. The subsequent Israeli occupation of the West Bank and Gaza Strip resulted in the further displacement of around 200,000 Palestinians.

It is interesting to note what the U.N. Mediator for Palestine, Count Folke Bernadotte, reported on September 16, 1948, just one day before he was assassinated in Jerusalem in 1948 by the militant Zionist group Lehi (one of the three Jewish groups that merged to form the Israeli Defense Forces):

“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 would be an offence against the principles of elemental justice if these innocent victims of the conflict were denied the right to return to their homes while Jewish immigrants flow into Palestine, and indeed, offer the threat of permanent replacement of the Arab refugees who have been rooted in the land for centuries.” (UN Doc. A/648, Progress Report of the United Nations Mediator in Palestine.)

“An offence against the principles of elemental justice.” Instead of taking these words to heart and acting to stop this historical injustice, the world simply turned a blind eye because that was the desire of the powers that be at the time. Palestinians continue to pay the price for this inaction. Today there are over 5.5 million Palestinian refugees and displaced persons who have never been allowed the choice to return to their homes and/or given redress for their losses. The continued denial of their rights encapsulates the decades-long strife, disenfranchisement and dispossession the Palestinians have suffered.

Framing the Palestinian refugee issue within international law provides light at the end of the tunnel. The state of Israel, which controls the key to solving the refugees’ quandary, has refused to recognize the right of the refugees to choose whether to return to their homes and denied any responsibility for the problem since 1948. Israel has adopted this position in violation of international law, including UN General Assembly Resolution 194, which affirmed the right of the Palestinian refugees to return to their homes or receive compensation. The General Assembly has affirmed this most basic human right of the Palestinian refugees every year since 1948. Additionally, admission of Israel to membership in the United Nations (General Assembly Resolution 273 of May 11, 1949) requires Israel to comply with General Assembly Resolution 194 of December 11, 1948.

If Palestinians are beginning to sound like a broken record in calling for their inalienable rights to be respected, then so be it. I prefer that the Palestinians remain transfixed on resolving their plight using international law rather than falling for Israel’s trap of either living in the law of the jungle or as inferiors in a flawed and illegal political settlement which will only prolong the conflict. Historians will record the issue of Palestinian refugees as one that challenged not only international law itself, but more so the political will of UN member states to act in the face of blatant racism and forced dispossession.

Israel has defended its refusal to concede the right of return on the grounds that the massive return of Palestinian refugees would spell the death of the Jewish state. But admitting its historical responsibility to the Palestinian people and recognizing the rights of the refugees could in fact deliver security and prosperity to Israel. Badawi makes the same observation. Indeed, Israeli recognition of these basic principles would improve the atmosphere on the ground, help create more parity between the parties, and provide a fair framework for working out the details of a peace plan for resolving the conflict.

Ultimately, how Israeli citizens - all Israeli citizens, Jewish and non-Jewish - agree to define themselves is their own concern. Israel today cannot even answer the question of who is a Jew, let alone convince the world to accept the notion of being a “chosen people.” Under international law, recognition is not a perquisite to self-determination and sovereignty. The Palestinian people, if not its leadership too, should be applauded for refusing to explicitly accept Israel as a Jewish state while Israel holds the entire Palestinian people, including, over 20% of Israel’s own citizenry, hostage to some yet unknown “final status solution.”

This issue of Israel as a Jewish state was posed and answered by none other than the PLO itself. In a document from the PLO Negotiations Affairs Department titled, Palestinian Refugees (May 2008), they pose the question and answer as follows:

“Doesn’t the right of return threaten Israel’s “Jewish character”?”

“Allowing Muslims and Christians to choose to return to their homes or not does not negate Jewish historical attachment to Israel nor does it deny the rights of Jews to immigrate to Israel. The right of return is essentially a right of choice and seeks only to address historic injustices and affirms the rights of the indigenous non-Jewish population.”

This type of approach to our inevitable joint future is an enormous vote for tolerance on behalf of Palestinians, even after what Israel has, and is, putting them through. This is the kind of Palestinian stance that Israel successfully obscures from the eyes of onlookers. This same, genuine commitment to tolerance was reiterated over and over again in a collection of oral histories that I co-edited titled, Homeland: Oral Histories of Palestine and Palestinians (Interlink Publishing Group, 1994).

Israel’s first Prime Minister said that “the old [refugees] will die, and the young will forget”. A few years ago, Israel’s last Prime Minister Ehud Olmert, explicitly stated that Palestinians must, “relinquish your demand for the realization of the right of return.” Following these ill-fated desires, Israel has sought to deny or delay addressing the refugee issue. However, the amount of blood shed since 1948 proves the fallacy and the immorality of the Israeli position. Adhering to it will only lead to more bloodshed.

The Palestinian-Israeli issue is beyond negotiations via wordsmithing. The rights of the Palestinian people, and in particular the refugees, should be recognized alongside any legitimate rights of the Israeli people. Ultimately, it is through the evenhanded application of international legitimacy that we may be able to get out of the current stalemate and reach real grounds for peace. Otherwise, the failed Israeli practice of “might is right” will prevail, as will the prolonged needless death and destruction on all sides.

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