The revolutionary road to 194

Source: Ha'aretz.

by Akiva Eldar

Monday, July 22, 2002 Av 13, 5762
Israel Time: 06:22 (GMT+3)

A poll recently requested by the School of Education at Tel Aviv University shows that it was the violence that broke out in September 2000 far more than the failure at Camp David that eroded Israeli faith in the peace process (85 percent and 58 percent, respectively). The disappointment is based on the belief that Ehud Barak proposed a generous division of the Greater Land of Israel, meaning a withdrawal to the 1967 borders accompanied by minor border corrections. Yasser Arafat, on the other hand, demanded Israel recognize the right of return - in other words, the elimination of the State of Israel. Without getting into the controversy about the Camp David narrative, it can be stated that Greater Palestine is no longer an obstacle to the division of the Greater Land of Israel.

If the political negotiations were to reopen today, the Israeli side would likely find the Arab League's Beirut decision from March - also known as the Saudi initiative - on the table. Presumably, alongside it Israel would find Palestinian Minister Nabil Sha'ath's non-paper, which he presented last month to the American administration. Neither document mentions a demand for Israel to recognize the right of return nor its implementation. They make do with a demand for "a just solution." Arab state leaders and the Palestinians demand the solution be based on the United Nations General Assembly Resolution 194 from 1948. The Palestinian proposal adds the solution should be agreed on by both sides.

This principle was set at the Taba talks in early 2001. Right -wingers and commentators claim that accepting 194 brings the refugees into Israel through the back door, if not the front door. The decision, which refers to the establishment of a reconciliation committee and the principles for a solution to the refugee problem, says, "Resolves 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."

Seemingly, that means granting the right of return to all 3.5 million refugees (according to UNWRA statistics), and therefore there's been no change in the Arab and Palestinian position. But surprisingly, even the Israeli Foreign Ministry rejects that interpretation. On its Web site, the ministry has long carried a legal analysis that unequivocally states there is no international treaty or UN decision - including 194 - that determines the Palestinians have the right of return to the sovereign territory of the State of Israel.

Prof. Ruth Lapidoth of Hebrew University, former legal adviser to the Foreign Ministry and the Israeli representative to the arbitration over Taba with the Egyptians, writes that 194 does not recognize "the right" but recommends allowing Palestinians who want, to return. The choice of the term "should" in the context of that permission and not "shall" indicates, she says, that this is only a noncommittal recommendation. She also says the UN covenant does not grant the General Assembly to make any operative decision, other than budgetary and internal organizational matters. According to her interpretation, the references in 194 to principles of international law or justice only deal with the matter of compensation and not with the right of return.

Presumably there will be Palestinians - and Israelis - for whom the fact that Prof. Lapidoth is in the front rank of international jurists is irrelevant to their ideological convictions. But that doesn't mitigate from the important breakthrough in the Arab and Palestinian proposals to trade in their demand that Israel recognize the right of return, for UN General Assembly Resolution 194. The Arab interpretation of UN Security Council Resolution 242 - withdrawal from all the territories - has never prevented any Israeli government from turning UNSCR 242 into a cornerstone of the solution of the conflict over the occupied territories. Hopefully, when we finally have time to deal with something other than the democratic reforms, maybe we'll notice there's been a quiet (and silenced?) revolution in the Land of Greater Palestine.