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The Two Rights of Return
Publication date: 2009-05-15

The Two Rights of Return in the Middle East Conflict and the Two States Solution

Now that Obama Administration has expressed its commitment to resolving the Middle East Conflict, it is necessary to bring some understanding to the most “controversial” and the most “fundamental” issue in this conflict — the two “Rights of Return”, because without a clear understanding of this issue all attempts to resolve this conflict are doomed to failure.

Yes, the root cause of the Middle East conflict is the two Rights of Return, which are closely interconnected: (1) the “Right of Return of every Jew to the Land of Israel” claimed by the Israeli Government and the various branches of the Zionist Movement around the world, and (2) the “Right of Return of every Palestinian displaced from Palestine as a result of the establishment of the State of Israel” claimed by the Palestinians and their supporters. We shall proceed to consider the legal and practical issues involved in these “rights”.

The Israeli Right of Return is based on the claim that, because over 2000 years ago there was a Jewish state in Palestine, the capital of which was Jerusalem, this state should be re‐established and every Jew living in any country in the world has a right to “return” to that state and be its citizen. It is this claim that is used to justify (1) the establishment of the State of Israel in 1948, (2) the subsequent establishment and expansion of Israeli settlements in the West bank from 1967 to the present time, (3) the claim of Israel to all of Jerusalem and the current attempts to assert it by demolitions of Arab districts and their re‐development.

The Palestinian Right of Return is based on their claim, that, because they lived in Palestine before the creation of the State of Israel and had been expelled from their land and houses to make place for the Israeli State, this expulsion was illegal and they have the right of return to their original places of residence. It is this claim that is used to justify all the hostilities of the Palestinians and their supporters to the State of Israel.

What is the legal validity of these claims?

Most of the arguments relating to the Middle East Conflict revolve around the issue of “statehood”, that is the right of a group to establish a state on a territory. But this is not the point at issue. The conflict arose not because Jews had established a state, but because in doing so, they had violated the property rights of non‐Jewish residents of the area where that state was established. If the State of Israel had been established on a vacant land, there would have been no conflict. It is not wrong for a group of people to establish a state, if they want to do so, just as it is not wrong for a person to build a house on the land he owns. It is wrong to expel people from the land they own.

The historical claim to the “Land of Israel” by the Jews can explain their desire to settle in Palestine and to create a state there. But it does not justify expelling a single person from whatever land he owns. It is not wrong for an Italian to buy a house in London or even to open an Italian restaurant there and call it “My Londinium”. It would be wrong for an Italian to expel a London house owner from his house claiming that at some time in history London was part of the Roman Empire and London was called “Londinium”, and being a descendant of the ancient Romans he is entitled to return to “Londinium” and expel its present inhabitants by force to make room for himself. And, if such case did happen, then the expelled owner would have legal right to regain his property which was unlawfully taken from him by force.

In the course of human history there had been many movements of people around the globe. States and nations were appearing and disappearing, state borders were changing, many wars were waged and many atrocities were committed. And it would be wrong and practically impossible to base current entitlement to property ownership or even statehood on the state of the world as it was not only 2000 years ago, but even more than a 150 years ago. The ownership of property can only be based on the current status, going back not over 150 years. Statehood can be based only on the current demography and equality before the law of all citizens within a state regardless of their tribal, national, or racial origin.

So, the desire of the Jews to create a state does not give them right to expel non‐Jews from their land or impose on them a state in which they will have an inferior legal status. And this gives legal validity to the Palestinian Right of Return to the places of their origin and to full citizenship rights in whatever state the territory will be governed by.

While the Palestinians have a valid legal right to return to their land, there arises the question “How the Palestinian Right of Return can be exercised in practice?”. And to answer that question one needs to consider the present state of affairs in the area, and what such return would mean in practice.

Although violations of Palestinian property rights have been going on from before the establishment of the State of Israel in 1948 and are continuing at present, we shall consider specifically the “Right of Return” of the Palestinians expelled in 1947–48 from the area of Palestine which has became the pre‐1967 State of Israel. It is this issue that is the root cause of the conflict and one of the most difficult to resolve.

The practical difficulties in resolving this issue are due to the “changes on the ground” that have taken place during the past 60 years. In the simple literal sense of the “Right of Return” as “to return to the houses from which they were expelled”, the exercise of this right has become impossible. The houses no longer exist and even the character of the land on which they stood has changed beyond recognition, and the country is not Palestine, but the State of Israel. So, if the Israeli Government would grant to all the Palestinians (and their descendants) who were expelled from the pre‐1967 Israel permission to enter and reside in Israel without limitations of time and place, there would arise the issues of where they would settle and of what would be their citizenship status.

The “Two State Solution”, being talked about by the “International Community”, presumes that the State of Israel will remain a predominantly Jewish state within its pre‐1967 borders. So, if the pre‐1967 refugees return to the pre‐1967 Israel, which will retain its predominantly Jewish character, then the status of the “returnees” will be that of Israeli citizens of non‐Jewish origin. Will the returnees accept such status? Will the Israeli authorities guarantee that the citizenship status of these returnees will be equal to those of Israeli citizens of Jewish origin. To re‐settle these returnees new residential areas will have to be built, which raises the issues of the quality standards of these residential developments and of their locations. In addition to the residential re‐settlement, the returnees will need to be compensated financially for being forcibly expelled and living in exile for the past 60 years. This compensation should be such as to allow the returnees to live at a good standard for the next 20 years without need for additional income which will allow them to rebuild their lives and to get established economically in their new surroundings.

This is what a literal “Right of Return” of Palestinian refugees would mean in practice within the framework of a “Two State Solution”, as being considered by the “International Community”.

Are those who propose the “Two State Solution” willing and able to practically implement such project? Are the Palestinian organizations willing to accept it? Is the Israeli Government? Are the proponents willing and able to finance this project?

And, if the answer to any of the questions is “No”, then what practical alternative can they offer? Because, in any event (regardless of any other issues), the Palestinian refugees have an undeniable legal right to (1) compensation for loss of property (in kind, or money equivalent), (2) first class citizenship rights in a country acceptable to them, (3) financial compensation for the injustices caused to them, which will enable them to live at a good standard for the next 20 years without any additional income.

This is what those who have established the State of Israel and supported its existence (the USA and the European “Powers”) owe to the Palestinian refugees, regardless of how many states will emerge in Palestine as a result of any “solution”. Nor is any workable solution possible without satisfaction of this right.

The “Palestinian Right of Return”, however, arose as a result of the Jews exercising their “Right of Return”, and no solution to the Middle East Conflict is possible without a due consideration of this right.

The “Two State Solution” is based on acceptance of the “Right of Return” of the Jews to the pre‐1967 Israel, but limits it only to that area. The Zionist Movement (and all the Israeli governments have always represented various branches of that movement) have always seen pre‐1967 Israel but a part of the “Land of Israel” to which they are entitled. So, the occupation of the parts of Palestine in 1967, was seen as “return” of more of the Biblical “Land of Israel” which they saw as theirs. And this explains all the “settlement” activities in the West Bank. And their dream of “returning” to the Old City of Jerusalem is the most essential central part of the Zionist ideology, rooted in the Jewish national consciousness and religion.

For Jews religion is not a “belief in some deity”, to which they were “converted” (as most modern Europeans see religion), but national history and national consciousness. Practising religious Jews mention Jerusalem (and the return to it) in their daily prayers. And they have been doing so for over 2000 years. Jews praying at the Wailing Wall under the Dome of the Rock are not just praying, they are praying for rebuilding for the third time a temple on top of that wall, of which this wall is a remainder. For the Jews this temple has no lesser significance than the Ka'bah for Muslims. And this explains their desire to take over the Old City, which for them is no less important than Mekkah. For the Jews Jerusalem is not just the focal point of their religion, but the national capital of their ancient state. And this is the meaning of the “Right of Return” on the Israeli side.

The “Two State Solution”, based on the pre‐1967 borders, presumes that Old Jerusalem will be part of the proposed Palestinian State. And to make this solution workable, those who propose it will have to persuade the Israeli government and a substantial part of Jews in Israel and around the world to abandon their “Right of Return” to Old Jerusalem and to any other Palestinian areas beyond the pre‐1967 borders. And, if such persuasion fails, they will have to find a way to make them abandon that right by some form of compulsion. And, if the proponents of the “Two State Solution” are not willing or not able to find a way of compelling the Israelis (and Jews around the word) to permanently abandon their “Right of Return” to the Biblical Land of Israel, to the Old City of Jerusalem, and to rebuilding their Temple on top of the Wailing Wall, the “Two State Solution” will fail.

So, if President Obama and his team, are seriously considering the “Two State Solution”, they need to find practical workable ways of dealing with the “Two Rights of Return”, because without resolving these issues the “Two State Solution” will solve nothing, but will continue to be an empty political slogan, just as it was in the days of G.W. Bush and his administration.

There are, however, other solutions deserving consideration: a One State Solution, proposed by us in 2005, which is based on satisfaction of the both Rights of Return at the same time, and a 57‐State Solution mentioned recently by King Abdullah of Jordan, the exact details of which are still to be announced. And some propose still another solution: to move the State of Israel to the USA, while others are suggesting a single bi‐national state.

But for any solution to work, its proponents would need not only to propose it, but to state clearly what it means in practice, how it would be implemented, and by whom. A mere agreeing by heads of state about a set of slogans and political stances will not solve anything.

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