Right of Return Confusions
by Jerome Segal
University of Maryland
January 13, 2001
In recent days some of the best minds on the Israeli left (Amos
Oz, A.B.Yehoshua, David Grossman etc.) issued, in the Israeli
press, a letter to the Palestinian leadership. After noting
that they have struggled for over thirty years for the two state
solution, the signers forcefully stated that they shall never be
able to agree to the return of the refugees to within the borders
of Israel. Instead they affirmed that "the refugees will have the
right to return to their homeland, Palestine, and settle there." For
the best minds, this was not their best thinking.
By introducing "the right to return to their homeland, Palestine" the
signers appear to be rejecting the key Palestinian demand
for recognition of their right to return to their homes in Israel.
In doing this they reinforce the Barak government in its conflation
of two quite different matters: the Palestinian right to return
and the actual return of the Palestinians. Rather than merging
these two, it is important to sharpen an awareness of the distinction.
Unfortunately, by addressing their message to the Palestinian
leadership, the signers of the statement have perpetuated a dangerous
misunderstanding of the deadlock in the negotiations. The Palestinian
leadership seeks some formal recognition of Palestinian rights.
They are not seeking the return of millions of refugees to Israel.
This they understand is quite impossible. They are seeking a choice-based
approach which will provide the refugees with a variety of structured
options, of incentives and disincentives, such that only a few
will actually choose to return to Israel.
The problem with the statement is that it represents the Palestinians
as seeking to overwhelm Israel with refugees. As such they
are portrayed as seeking Israel's destruction. This portrayal can
serve only as the basis for concluding that the Palestinians have
no real interest in a negotiated solution, and that diplomacy has
exhausted its potential. But if diplomacy has exhausted its potential,
then what need is there for electing a Prime Minister committed
to the peace process? The stage is set for a military response,
most likely under the leadership of Ariel Sharon.
Rather than trying to get the Palestinians to embrace a "right
to return to their homeland, Palestine" the yet-to-be-completed
task of negotiations needs to be identified: finding a way to accommodate
a Palestinian right of return to Israel, while avoiding any actual
return that threatens Israel's Jewish character. This is
a complex and subtle task, yet it is the future of the peace process,
a major uncompleted task that requires further time and thought
- a continued peace process. Some think this an impossible effort
to square the circle, but that view is quite mistaken.
Distinguishing Palestinian Objectives : Palestinians have sought
some and all of the following objectives:
- That Israel would accept responsibility for the refugee problem
- That Israel would recognize "in principle" a right of return
for Palestinian refugees
- That Israel
would accept Resolution 194
returning to Israel would be
one of the options available to refugees.
It is no easy task to simply understand what each of these formulations
means. Each is subject to multiple interpretations. All of them
can be distinguished from actual outcomes (e.g. that 100,000 Palestinians
will return, that 1 million Palestinians will return). What is
truly striking about the gaps between the two sides in the negotiations
is that they are about conceptualization rather than outcomes.
The Israeli government is prepared, as an outcome, to allow certain
numbers of refugees to return, but it wants them to be returning
not by right, but as a matter of Israeli humanitarian policy.
In this the negotiations over the refugees are quite different
than those over Jerusalem or territorial withdrawal. In those areas
Israel was pressured to make major compromises over outcomes. For
instance, to agree that it would withdraw from 95% of the West
Bank rather than 75%; to agree that Palestinians would gain sovereignty
over neighborhoods within Jerusalem not just over Abu Dis. And
on these tangible matters, the Barak government made major concessions.
Yet when it comes to refugees, where the Palestinians are not pushing
for the return of 500,000, 1 million or 2 million - on this issue
there is a log jam.
One would have thought that Israel could afford to be gracious
in its victory. Possibly it is not,
because it takes that victory totally for granted. Yet it is worth
remembering that under the Partition Resolution of 181 the Jewish
state that was created in 1948 was itself almost 50% Palestinian.
As a result of the 1948 War Israel gained control over much of the intended
Palestinian state, which was 100% Palestinian. Thus pre-1967 Israel consisted
of a territory that up until 1948 had a clear Palestinian majority. In other
words, had the refugee exodus never occurred, pre-67 Israel could never have
existed as a Jewish state. Even with the vast immigration of Jews to Israel
over the last 50 years, if there had been no refugee exodus, Israel today would
be 50% Palestinian. The fact that it is possible to end the conflict,
hold onto lands captured during the 1948 war, retain Jewish Jerusalem and yet
prevent 95% of the refugees from ever returning is a tremendous victory for
Israel, and it should be prepared to go to extraordinary lengths to give the
Palestinian whatever conceptualization makes their defeat most bearable. Focusing
on each of the Palestinian issues of conceptualization, there is much that
Israel can indeed provide.
Responsibility : Here a distinction needs to be made between
overall responsibility for the creation of refugees, and responsibility
for specific acts that caused specific populations to become refugees.
With respect to the latter, there is no doubt that during the 1948
war there were instances, perhaps numerous instances, in which
Palestinian villages were forcibly evacuated without justification.
This is well know to historians and to some extent is already part
of Israel's high school curriculum. There is no reason to deny
this in the negotiations. Indeed, Israel's ability to carry out
the difficult processes of peace building that will follow any
successful negotiations will be enhanced by fuller awareness of
the tragedy that befell the Palestinians. If the Palestinians want
to see a Truth Commission emerge from the negotiations, so as to
finally bring to light their individual experiences, Israel should
The question of overall responsibility for the refugee problem
is quite a different matter. Here Israelis can reasonably maintain
that there would have been no refugee problem at all if the Arab
world had accepted Partition, if war had not been launched against
the newly created Israel, or if their had not been broad Palestinian
support for such efforts. Moreover, it is a reasonable surmise
that had Israel lost the 1948 war the entire Jewish population
would have become refugees, if they survived at all.
As important as these issues of moral responsibility are, many
have feared to deal honestly with them because it is thought that
they are directly relevant to the right of return. This however
is a confusion. The issues are quite distinct. Whatever right of
return Palestinian refugees have, it does not rest upon showing
that they were forcibly evacuated. A refugee who leaves a war zone
out of fear or mere prudence, has a generally recognized right
to return once the hostilities have ceased. The issue of responsibility
for his exodus has nothing to do with it.
A right of return for Palestinian refugees : Here it is useful
to distinguish between recognizing a right that pre-exists and
shapes the negotiations as opposed to rights established as
a result of the negotiations. With respect to the latter, this
is a quite reasonable goal. Israel should emphasize that the negotiations
will result in the refugees having specific mutually agreed upon
rights. The contested issue, of course, is what rights should
refugees have as a result of the negotiations, but the idea that
might establish certain rights for the refugees or classes of them, makes eminent
sense. A pre-existing right of return is a distinct and different matter. What
rights do refugees carry with them into the negotiations? The Palestinian position
is that all of the refugees (and their descendants) possess a right to return
to their homes within current day Israel.
The first matter to dispose of is the issue of homes -- in most
cases the homes no longer exist. They were bulldozed as part of
a systematic effort to wipe evacuated Palestinian villages from
the map. Palestinian researchers have identified over 400 such
villages. In other instances, homes exist but have been occupied
for fifty years by Israelis, often by those who have bought them
from other Israelis who sold them under titles legitimized in Israeli
eyes by Israeli law. While Palestinians have legitimate claims
for compensation for their homes, it is hardly worth pursuing whether
they have a right to return to them. Rather, the issue is
whether they have a right to return to the areas from which they
came, or perhaps more generally a right to live anywhere in Israel,
and even a right to become Israeli citizens.
Part of the difficulty of sorting through such issues emerges
from a confusion about "rights talk." An example might help. It
makes perfect sense to say to a group of people: "Each of you has
a right to do X" and at the same time insist that it is legitimate
to regulate and limit the exercise or implementation of those very
same rights. For instance, consider a ferryboat with the capacity
to carry two hundred people on its once a day route. The company
sells 1000 annual passes giving holders the right to use the boat
whenever they please. As a rule no more than 50 passholders show
up on any given day. Once day all 1000 passholders show up. Each
has a right to use the ferry, yet it is quite appropriate to enforce
the rule that says no more than 200 are allowed at a time. To insist
on the legitimacy of rules for the collective exercise of individual
rights does not imply any denial of the existence of those rights
for each individual. Indeed, it is hard to imagine any rights of
individuals which under some circumstances would not be
subject to appropriate restriction.
When considering governments with responsibility for protecting
the common good, one can speak of the legitimacy of rules of implementation.
When considering the bearer of the rights, one speaks of limitations
of the right itself. Thus, one might say, "Yes, you have a right
to take the ferry, but that doesn't give you the right to board
if it is already at full capacity. You have to wait even if it
is a long wait, even if it means missing your only opportunity.
Of course, if you don't go you get compensation."
There are no perfect analogies, but conceptualizing the issue
in this way, Israelis can reasonably say to Palestinian refugees, "Yes,
we recognize a right of return, but it is not an absolute right.
It is conditioned by our rights as well, our right to self-determination.
Because Israel has a right to exist as a Jewish state, and because
your population has grown so massively, we insist on the legitimacy
of a framework for regulating the exercise of rights of refugees
to return." Saying this to the Palestinians does not constitute
a great concession. Such rights are universally recognized for
all refugees. Yet this allows Israel to accept a right of return "in
Israelis may further say to the Palestinians, "You have repeatedly
embraced United Nations resolutions as constituting the basis in
international law for the rights of Palestinians, yet the Partition
Resolution of 1947 (UNGA Res. 181) explicitly called for the creation
of two states, 'one Arab and one Jewish.' This means that Israel
has a right under international law to choose to remain a Jewish
state." Israel can offer mutuality: it will recognize a Palestinian
right of return, provided that the Palestinians recognize Israeli
rights which legitimize regulation of the implementation of return.
Could Palestinians accept this? Could they accept that international
law provides a basis for regulating the implementation of the right
of return? It is a possibility that needs further exploration.
Here is an interesting fact. In 1988, meeting in Algiers, the PLO
issued the Palestinian Declaration of Independence, one of the
foundational documents of Palestinian nationalism. Within this
declaration they for the first time recognized Resolution 181 as
an element of international law. Indeed, it is cited as a basis
in international law for establishing, without Israeli permission,
a Palestinian state. Most strikingly, within their Declaration
of Independence, the Palestinians explicitly characterized Resolution
181 as having called for "two states, one Arab and one Jewish." Implicitly
this was an acceptance of the fact that Israel's Jewishness is
enshrined in international law. Thus it is quite possible that
the Palestinians could enter into a mutual exchange of rights-recognition.
Israel would recognize a right of return, and Palestinians would
recognize that Israel has a right to choose to remain a Jewish
state, and thus a right to regulate the implementation of the right
Regardless of whether or not the Palestinians go this far, this
is the position that Israel should affirm: that because Israel
has a right to choose to remain a Jewish state, until such time
as it decides otherwise, it has a right to regulate the implementation
of the right of return. Retaining Israel as a Jewish state should
not, however, be used as a hammer to deny Palestinian rights,
but rather to structure a principled position with respect to how
to approach and understand Palestinian rights.
Resolution 194: Israeli negotiators have refused to accede to
Palestinian demands that they recognize the legitimacy of United
Nations General Assembly Resolution 194, enacted in 1948. For the
Palestinians, acceptance of 194 appears fundamental to settling
the refugee problem. Here too, Israeli negotiators should be flexible.
The key sentence in Resolution 194 reads: "the refugees wishing
to live at peace with their neighbors should be allowed to return
to their homes at the earliest practicable date." Several
points are worth noting:
- The resolution does not use "rights language" -- saying only
that the refugees should be allowed
to return to their homes. It neither
affirms nor denies that this is
a matter of right.
- The resolution when enacted referred to the 1948 refugees.
While international law recognizes
the rights of descendants as well,
the issue of practicability, cited in the resolution, is
considerably transformed by the vast growth of the refugee
population. The existing 1948 refugees
constitute perhaps 10% of today's
- The resolution carries within itself a critical condition.
It speaks of refugees "wishing to live at peace with their neighbors." Thus
Resolution 194 does not support
a totally unconditional return.
Implicit here is the notion that
in order to return, the refugee must be willing to live at peace.
Interpreting such a condition is not a simple matter. From an
Israeli point of view this does not mean a desire for peace in
the abstract. It means a commitment to lawfulness under very
uncertain conditions in the future, conditions that could even
include war between Israel and one or more Arab states including
the future State of Palestine.
Given the very deep fissure that exists between Israel's Jewish
and Arab citizens and has been made clear in recent months, no
one can guarantee how large numbers of returning Palestinian refugees
would act in a crisis. The "wishing to live at peace" condition
in 194 suggests that an individual by individual determination
needs to be made. Yet this is hardly possible. While some
particularly militant refugees might be excluded for obvious security
reasons, there is no way of knowing about the future behavior of
most refugees in unpredictable trying circumstances.
Indeed, it is possible to argue that the logic of the "wishing
to live at peace" clause in Resolution 194 suggests that the extent
of permitted return could be linked to the evolution of conditions
of true peace. If peace proves to be genuine and resilient then
it becomes credible to say that 194 supports a large return; if
lasting peace is uncertain then a large return will itself undermine
a willingness to live at peace.
The main point is that the scope and force of resolution 194 is
open to wide interpretation. For the purposes of the negotiations,
the key issue is that whatever is agreed upon by way of implementation
of 194 must be affirmed to be adequate fulfillment of Resolution
194. If such an "adequate fulfillment" clause is part of the agreement,
it would be highly desirable to affirm that the agreement was based
on mutual acceptance of 194. Thus Israel should not treat mention
of Resolution 194 as anathema.
The Option of Returning : The option to actually return, is the
central issue. For Palestinian leaders, the key is meaningful choice.
They need to be able to turn to their people and say "Yes you have
an opportunity to return to Israel, but you also have a variety
of other options. Some of them are quite attractive. You decide." Israel
and the Palestinians might wisely put aside the question
of the basis on which such options to return are grounded. Indeed,
as suggested above, such options can themselves be viewed as a
right to choose from a particular menu -- a right that will be
constituted by the negotiated agreement itself.
The key question is: What return options can Israel live with?
Here the leftists who announced that they will never agree to the
return of Palestinian refugees (except for limited numbers based
on humanitarian grounds) are mistaken. They and other Israelis
can in fact agree to much more without any risk of being overwhelmed
by refugees. A variety of tools to do this are available:
Establishing a Rate of Return : Ideally the Palestinian leadership
would like to avoid any regulation of the option to return to Israel.
Their idea is to offer the refugees a menu of alternative options
sufficiently attractive so as to avoid any need to restrict implementation.
Ideally then it would just work out that 95% of the refugees would
decide to accept compensation and resettlement elsewhere rather
than returning to Israel.
Israel, of course, can't put itself in a situation in which there
are no guarantees that it won't be overwhelmed by Palestinian refugees
deciding that all things considered, they would like to become
Israelis. So from an Israeli point of view, something more is required.
The temptation is to impose a total cap. To say, for instance,
that only 100,000 or 200,000 refugees can ever return. (200,000
is roughly the decline in the number of Palestinians who will be
under Israeli sovereignty if Jerusalem is divided). The problem
here however, is that a fixed cap seems to fly in the face of saying
giving all refugees some option of returning.
As an alternative to any total cap, it is possible to say that
the rate of returning refugees must be such as to not alter the
character of Israel as a Jewish state. The rate could be
a negotiated formula. Israelis might suggest that it be limited
to a certain percentage of the annual immigration under the Law
of Return for Jews. Thus, if in the previous year 50,000 Jews immigrated
under the Law of Return, then 1/5 of that number, (10,000) Palestinians
might be allowed to return in the following year, thus keeping
the immigration pool to the same population ratio as found in the
The existence of a regulated rate of return means that if more
Palestinians seek to return than this number allows, they have
to wait in a queue. The more who seek to return, the longer the
queue and thus the longer the wait. This in turn means that choosing
the option of returning to Israel becomes less and less attractive
compared to resettlement elsewhere accompanied by immediate access
to a major financial package for assistance and compensation. Faced
with waiting ten years to return to Israel or getting money, new
homes and land elsewhere, most would choose the latter. In any
event, the actual numbers entering would be proportional to existing
- The 1948 Refugees: From an Israeli point of view the return
of some refugees is more threatening
than the return of others. The
least threatening are the actual
1948 refugees, as opposed to their
adult children and grandchildren. A
child of 15 in 1948 is today 68
years old. This elderly and dwindling population
is well past childbearing age.
Their return, accompanied by minor children in the rare cases
where they exist, posses no long-term impact on Israeli demographics.
Similarly they pose no security threat. Yet surely as a matter
of justice, priority should go to these elderly refugees. Moreover,
the total number of living 1948 refugees is quite limited. Of
the 300,000 or so refugees living
in Lebanon, not more than 30,000
fall into this category. Subject to some regulation of the rate
of return, Israel can extend an option to all of the actual 1948
refugees to return. It will find that relatively few decide to
do so because of their age and dislocation from adult children
and grandchildren. Giving priority to the 1948 refugees is also
desirable from an Israeli point of view because it pushes other
more problematic classes of refugees further back in the queue.
- Location of return: The refugees will have lots
of options to return to places other than
Israel. For those seeking to become
citizens of Israel, with the right
to live where they please, only a very limited number could be
accommodated each year. While
there is no need to say that the
only basis for such returnees is
Israel's "humanitarian generosity," priority
should clearly go to those with
pressing human needs. De facto
this would result in the same outcome as the explicitly "humanitarian
put on the table by the Israeli
But there are ways to give large numbers of Palestinian refugees
a genuine option of returning to land that is today Israel. The
idea of land swaps is now part of the negotiations. In exchange
for territory that Israel seeks to annex to accommodate settlements
in the West Bank, it will swap areas adjacent to the Gaza Strip.
Since these areas will become part of the Palestinian state, large
numbers of refugees can be settled there. This is a powerful
solution. It allows the leadership to say that refugees are able
to return to what is today part of Israel.
Unfortunately it does not seem that this idea is having the powerful
effect that some had expected. In part this is because Palestinians
still cling to the idea of returning to their homes. In part it
is because being in refugee resettlement areas adjacent to Gaza
sounds awfully like being in new refugee camps. And in part, because "returning
to Israeli land which becomes Palestinian" may feel like
a bit of a shell game.
It is possible however to modify the "land swap" idea in ways
that will make it more meaningful for refugees. The key here is
to maintain one principle: the refugees returning to these areas
will be citizens of the state of Palestine, and any children born
to them will also be Palestinian citizens. Within this framework,
there is considerable room for creative ideas. One option
is to not press ahead with an exchange of sovereignty. Rather,
Israel could lease certain areas to the State of Palestine, and
similarly it could lease from the Palestinians settlement areas
in the West Bank (thus giving the Palestinians sovereignty over
a larger percentage of the West Bank.)
Secondly, such areas need not be limited to territories adjacent
to Gaza. If it was thought that ultimately all the leased territories
would become sovereign areas then they should be adjacent to either
Gaza or the West Bank. Along the Green Line, such areas need not
be large. In fact there might be a number of quite small pocket-villages,
designed specifically so as to not resemble vast refugee camps. It
might even be possible for some leased areas to be in interior
regions of Israel, parallel to isolated settlement areas leased
within the West Bank, far from the Green Line. Just as the Jewish
settlers would not be Palestinian citizens, so too, these Palestinians
would not be Israeli citizens. Such options do not have to
be of a large magnitude, they could be limited to a few thousand.
The idea however is to offer to the refugees a wide variety of
possibilities, an offer that is not easily categorized, not easily
dismissed -- while at the same time protecting Israel.
These three tools, regulating the rate of return, focusing on
the 1948 refugees and using land swaps, would operate within
the larger context of compensation and resettlement alternatives
outside Israel, whether in the Palestinian state, Arab countries,
Europe and the United States. Thus, a rich menu of choice can be
devised, accompanied by some regulatory structure which safeguards
Israel. From a political point of view, a choice-based approach
of this sort has major advantages. For the Palestinian leadership
it allows them to avoid charges of having abandoned the right of
return. Rather, it gives them the opportunity to deliver to the
refugees a variety of attractive alternatives.
Importantly, such a choice-based approach is also best for Israel.
Other approaches might wrest from the PLO a verbal statement affirming
that the refugee claims have been satisfied. Yet to truly end the
conflict, it will be necessary for millions of Palestinians to
actually feel that they themselves have made a decision about return,
resettlement and compensation. Only then will the refugee issue
be finally resolved, a necessary condition for truly ending the
Jerome M. Segal is a research scholar at the University of Maryland's
Institute for Philosophy and Public
Policy. He is a co-author of Negotiating
Jerusalem, (SUNY Press, 2000).