Experts: No legal basis for Palestinian refugee demands
Law professors Ruth Gavison, Yaffa Zilbershatz present PM with position paper claiming must not recognize right of return 'even as symbolic gesture'. Had this been a legal right, it would have already been discussed at international court, documents says
Ariela Ringel Hoffman
"International law does not recognize the right of the Palestinian refugees and their descendents to return to their homes," according to a first-of-its-kind position paper recently submitted to Prime Minister Benjamin Netanyahu and
other senior officials.
"Any recognition of this right may tie Israel's hands and lead to mass lawsuits that will effectively mean the end of the Jewish state," prominent jurists Prof. Ruth Gavison and Prof. Yaffa Zilbershatz wrote in the document.
must continue to vehemently oppose the broad implementation of the Palestinian refugees' return to its territory and must not be tempted to recognize the right of return even as a symbolic gesture," they claim.
According to the jurists, the return of Palestinian refugees will "undermine the Jews' ability to realize their right to self-determination in a Jewish and democratic country, and therefore Israel's legal opposition regarding this issue is justified. (Recognizing the right of return) may perpetuate the (Israeli-Arab) conflict."
Asked whether the recognition of the right of return may advance a peace agreement that would be acceptable to the Palestinians, Zilbershatz says, "The fact that the Palestinians are talking about the right of return places the idea above any negotiation – because you can't argue with rights.
"We also do not believe in the statement, 'You recognize the right and we'll make sure it is not implemented'. Even the most western, modern philosophy adheres to the notion that economic interests are not the only ones that drive people. You can offer someone a huge financial reward and he or she will still want to return home," she says.
Do you believe such a position paper or any other legal document can overcome the Palestinian narrative?
'I'm not naïve. But I think decision-makers and the general public should be made aware of this issue. This is what we are trying to do with this paper. It is also important to mention that there is no connection between this Palestinian demand, which relates to the 1948 refugees, and the conquest in 1967," says the professor.
"Had this been a legal right and not a question of morals or politics, it would have already been discussed at the international court."
Zilbershatz, who has been mentioned as a possible candidate to succeed Gabriela Shalev as Israel's ambassador to the UN, is considered an expert in international law.
Gavison is the president of the Metzilah Center, which was founded in 2005 to address the "growing tendency among Israelis and Jews worldwide to question the legitimacy of Jewish nationalism and its compatibility with universal values."
According to Zilbershatz, a thorough examination of laws pertaining to refugees found that the Palestinian demand has no legal basis.
"The opposite is true," she says, "In 1948, when the refugee problem was created, returning (to Israel) was not an option, and the trend was to separate the sides, sometimes forcefully by population transfer.
"The interesting thing is that this approach is currently gaining more and more support in the UN. The international community's position that it is preferable to fully settle disputes than to recognize refugees' right of return supported by a recent ruling by the European Court of Human Rights. The court debated the right of the Greek refugees who were expelled from northern Cyprus in 1974, and five months ago it ruled that due to the time that has passed, it would be wrong to rectify the situation by allowing them to return to their homes and expelling those who currently live in the area.
"The court determined that an arrangement for the refugees must be found in the framework of a political solution to the conflict," says Zilbershatz, adding that allowing Palestinian refugees to return would jeopardize the two-state solution.
According to the professor, UNRWA differentiates between Palestinian refugees and other refugees around the world. She says the organization recognizes the right of the descendants of Palestinian refugees to return to Israel and also considers Palestinians who hold Jordanian citizenship as refugees.
"To make matters worse, UNRWA also upholds the refugee status of terrorists and people who committed crimes against humanity. According to the United Nations Convention relating to the Status of Refugees, such people do not fit the definition of refugees. This document shows how throughout the years UNRWA has made it impossible for refugees to become independent people who lead independent lives," she says.
Gavison adds, "Even if there is an agreement between governments, the grandchildren or great-grandchildren of the signatories may one day rise up, demand that their rights be restored and determine that the conflict is not over."
According to Zilbershatz, the solution proposed by right-wing elements and some leftists – one state between the Jordan River and the Mediterranean Sea - will not resolve the Palestinian refugee problem.
"Such a state would require the return of refugees because the Palestinians would have no other alternative, no other state in which they would be able to realize their desire for self-determination. In light of the projected numbers, such a state would certainly not be Jewish and democratic," she says.
In other words, you propose two states for two peoples based on ethnicity, including the evacuation of settlers from the West Bank.
"I didn't say that and it isn't necessary. A future Palestinian state must have an ethnic majority. There are currently 1.5 million Arabs in the West Bank and only 200,000 Jews, so the Arab majority is very clear. If we allow refugees to return, it will become even clearer," Zilbershatz claims.
"We are in favor of establishing a Palestinian state. There is nothing that should prevent Jews from living in it as well."
Professor Gavison says the discussion on the refugees' status also "diverts attention from the fact that in 1947 the Arabs rejected the Partition Plan."
Asked whether the position paper serves the interests of the Right, Gavison says, "Meretz also believes the solution involves two states for two peoples and not the return of refugees. It is the Right which is refusing to respond to the claim that a bi-national state would not fulfill the Palestinians' nationalistic aspirations and would not give them the opportunity to live in a country they identify with."
The jurists say those who support the right of return ask why Jews have a right to return to their homeland after 2,000 years while the Palestinians' right to do the same is disputed after only 60 years.
"The answer is that Israel's Law of Return upholds the Jews' rights in this respect. When a Palestinian state is established, it will be able to pass a law that protects the rights of the Palestinians," Gavison says.