Debunking the Palestinian Claim of a “Right of Return”, by Paul Schneider

(Jerusalem Post, January 6, 2021)

By Paul Schneider

With the election of Joe Biden, the US can now go back to its role as an honest broker in the conflict between Israel and the Palestinians. That means speaking hard truths to both sides. The US should again call for recognition of the Palestinians’ right to a viable, independent state. But it should also finally tell the Palestinians that they have no “right of return” to what is now the state of Israel. This is something that legal analysis makes clear but which Western intermediaries have failed to acknowledge.
The Palestinians’ claimed right of return, and the West’s willingness to indulge it, have been the biggest obstacles to resolving the conflict. That is the theme of The War of Return, an important new book by Adi Schwartz and Einat Wilf. As the authors put it, “The first step that needs to be undertaken by countries and professionals dedicated to true peace is to send a clear and unequivocal message to Palestinians that they do not possess a right of return to the sovereign State of Israel. There is no international law that requires Israel to allow Palestinian refugees and their descendants to return to Israel.”

In support of this point, Schwartz and Wilf rely on an exhaustive analysis by law professor Andrew Kent, titled “Evaluating the Palestinians’ Claimed Right of Return.” Kent concludes that it is “clear that the claimed Palestinian ‘right of return’ for refugees from the 1947-49 conflict has no substantial legal basis.” Proponents of a right of return mainly try to rely on UN General Assembly Resolution 194 (III) of 1948, which says, “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.”
However, General Assembly resolutions do not amount to binding law – a point the Arab states themselves made when they rejected the 1947 Partition Resolution. Moreover, as Kent notes, Resolution 194 “did not describe the return of Palestinian refugees as a ‘right.’” (Note the use of “should,” as opposed to “shall.”) And in fact, at the time of its adoption, the international community understood that the resolution would not result in the mass return of Palestinian refugees.
AS KENT also notes, the Palestinians and Arab states rejected Resolution 194 (III), in part because it did not provide a “total, unconditional right to return.” Thus, they are hardly in a position to invoke the resolution now, much less claim that it provides such a right.
Nevertheless, Palestinians continue to claim that refugees from what is now the State of Israel have a right to return. Moreover, they say, a partial or symbolic right is not acceptable. The right must be unrestricted. As Palestinian Authority President Mahmoud Abbas said during the failed negotiations of 2008, “I can’t tell four million Palestinians that only 5,000 of them can go home.” Nor is this claimed right a mere bargaining chip. Rather, it is the sine qua non of any peace agreement. As negotiations have shown, Palestinians actually seek a mass return of refugees to Israel. If that is not possible, they insist, there can be no deal.
One political ramification of the Palestinians’ position is especially problematic: It is antithetical to a two-state solution. The Palestinian philosopher and academic Sari Nusseibeh recognized this when he said, “The Palestinians have to realize that if we are to reach an agreement on two states, then those two states will have to be one for the Israelis and one for the Palestinians, not one for the Palestinians and the other also for the Palestinians.”

However, access to two states is exactly what Palestinians seek. As an adviser to Abbas has said, “Palestinians will not accept an agreement that does not provide refugees with the choice of where to relocate, including to Israel.”
But Palestinians cannot have it both ways. They cannot enjoy a right of self-determination in their own state while demographically threatening Jewish self-determination in Israel. According to Schwartz and Wilf, this “is the heart of the matter: instead of being a legal or humanitarian issue… the refugee problem is first and foremost a political problem, reflecting the desire to dominate the entire land.” Given the history of the conflict, it’s hard to disagree.
Schwartz and Wilf make a compelling case: It is past time that peacemakers disabuse the Palestinians of any notion of a right of return. Until that happens, not much will change. Therefore, one hopes The War of Return will have a wide readership within the Biden administration.

The writer is an attorney who lives in Bethesda, Maryland.