The Birth of the Palestinian Refugee Problem, 1947–49

Professor Benny Morris, Ben-Gurion University

Professor Morris began by introducing the creation of the Palestinian refugee problem as a result of the 1947–49 war. The refugee problem, he considered, was one of the two most important consequences of that war, the other being the creation of the State of Israel, which changed the geopolitics of the region. The refugee problem, he said, was the major expression of the collapse of Palestinian society during the course of the war.

There has been controversy over the number of Arabs who were uprooted from their homes and lands. Israel maintained at the time that the figure was 500,000, while Arab countries claimed it was nearer 900,000 or one million. The United Nations (UN) in 1949–50 concluded that the real figure was just over 700,000. Today there are more than five million Palestinian refugees on UN records, including those who were alive in 1948 and their descendants: children, grandchildren and great-grandchildren. All other refugees in the world are handled by the UN High Commissioner for Refugees (UNHCR). It is only Palestinians who have a special agency of their own: the UN Relief and Work Agency for Palestine Refugees in the Near East (UNRWA).

Professor Morris maintains that there is a problem with definitions. The dictionary definition of a refugee is someone who has been uprooted from his or her country by war, persecution and similar, and moved or removed to other countries. About 500,000 of the original 700,000 Palestinian refugees were uprooted from their homes and were moved from one part of Palestine to another (for example, from Jaffa to the Gaza Strip or the West Bank), rather than to outside the country. Only about 200,000 were dispersed in the surrounding Arab countries. Moreover, the children, grandchildren and great-grandchildren of refugees are not recognised as ‘refugees’ (as in the case of, for example, the Sudeten Germans who were expelled from Czechoslovakia to Germany in 1945–46).

There have been two traditional narratives about the creation of the Palestinian refugee issue. The Arab view was that it resulted from a systematic expulsion as a result of a premeditated Zionist programme, in continuation of Zionist ideology. This is the dominant narrative in the Arab world. The Zionist view, formed in 1948, essentially claimed that the refugees fled for no good reason, or as a result of the war and fear, but not because of any expulsion plan or policy on the part of Israeli forces.

Professor Morris then turned to analyse the preconditions that facilitated the creation of the refugee situation. The first was the conflict, which had been ongoing for about 50 years, between Zionist settlers and the local Arab population, which sparked hatred towards Zionists in the Arab community. This came to a head in the Palestinian-Arab assault on Jewish communities at the end of 1947, which started the war. The war of 1947–49 was the last in a series of Arab assaults on the Jewish community in Palestine, which had started in 1920 and continued in 1921, 1929 and 1936–39. Cumulatively, these incidents created enmity among the Jews towards the Palestinian Arabs. The mutual hatred and enmity was the bedrock for the creation of the refugee situation.

The second precondition was the mixed populations, both inside towns (Tiberius, Haifa, Safed, Jerusalem) and between adjacent towns (such as Tel Aviv and Jaffa), and in rural areas. The war was fought mainly in the areas populated by Jews or where the populations were intermixed in varying degrees. In order to win a civil war of that sort, with neighbours shooting at neighbours and each village prohibiting traffic on roads leading to neighbouring settlements, each side had to clear out its neighbours. The Jews did this more successfully, and won. Had the Arabs done this successfully, they would have won. Both the Jewish and the Arab civilian communities, villages and town neighbourhoods served as the bases for their militias. However, it is worth remembering that the Arab side was the side that launched the war.Footnote ¹

On the Jewish-Zionist side, Morris added, there was another factor, which was an ‘expulsionist’ discourse. This evolved mainly during the 1930s, although traces of such thinking can be found before then in statements by Jewish spokesmen (such as Menahem UssishkinFootnote ² ). The increase in antisemitism in Europe and the need for a safe haven for Europe's persecuted Jews, as well as the heightened animosity of the Arabs, all propelled an ‘atmosphere of transfer’. This was augmented by the British Royal Peel Commission of 1937, which recommended the enabling, and even the compulsion of, transfer of communities as a necessary precondition for a stable two-state solution, each of the two emerging states in Palestine to be without large national minorities.Footnote ³

The third precondition, according to Morris, was the weakness of the Palestinian community, which was unorganised, with no democratically elected institutions, with a leadership that did not enjoy legitimacy, and with an internally fractured socio-political structure between different clans. In this situation, the Palestinians entered a war in which they should not have participated. The community was ill-prepared to endure such a war; by comparison, the Zionists were much better organised and united.

Fourth, and perhaps the most important precondition according to Morris, was the war itself, which enabled the eviction of a large number of people.

Professor Morris then turned to describe the four stages of the emergence of the Palestinian refugee problem. During the first stage, between December 1947 and March 1948, most of the Palestinian elite – much of the middle and upper classes – fled to neighbouring countries or to the area which later became known as the West Bank. This group thus left the masses without leadership, and set them an example of fleeing. However, the masses did not have second homes in Beirut and Damascus, and were unable to afford to rent accommodation (unlike the fleeing upper and middle classes). Nonetheless, once the Zionist offensive started in early April 1948, the masses also began to flee – hence the initial flight of 75,000 of the middle and upper classes, which was significant and demoralising for the majority. The second stage lasted until June 1948, when about a quarter of a million Palestinians fled from towns and villages in the areas conquered by the Zionists when the latter went on the offensive in preparation for the expected pan-Arab assault. A few people were expelled, although the vast majority of these refugees fled out of fear of being caught up in battle. The third stage was the ‘Ten Day Period’ in July (9 July 1948 to 18 July 1948), during which Israeli forces launched offensives in different areas of the country. It was during this period that the major expulsion of the war occurred, when Israelis deported about forty to fifty thousand Arabs from Ramle and Lydda. Others fled when the Israel Defence Forces (IDF) conquered Nazareth and its surrounding area. The fourth stage, during October and November 1948, occurred when IDF brigades in the south conquered the Beersheba-Ashkelon area, and in the north, the central upper Galilee. This resulted in another 200,000 refugees. Thereafter, in the two years from November 1948 until the end of 1950, Israeli troops expelled tens of thousands of Bedouins along with townspeople and villagers (for instance, from Majdal\Ashkelon).Footnote ⁴

Professor Morris concluded by addressing the issue of an expulsion policy. He contended that the Zionist side did not enter the war with a coherent plan or policy of expulsion and transfer, and did not reach a decision to unleash a policy of expulsion of ‘the Arabs’, either in the pre-state stage (before 14 May 1948) or afterwards. However, after four months of civil war with Arab attacks and with the prospect of a pan-Arab invasion in mid-May, from the beginning of April 1948 there was an ‘atmosphere of transfer’ in the Zionist community. Ben-Gurion supported transfer, although not everyone agreed with him. The Haganah and the IDF were told, or understood, that it was better to have fewer Arabs behind the front lines while anticipating an invasion by Arab armies or while fighting off the Arab invaders.Footnote ⁵ In addition to these tactical considerations, Professor Morris added that from a strategic and political perspective, the Zionists came to understand during the course of the war that it was preferable to have fewer Arabs as they had fought against the creation of Israel and could be expected to be disloyal citizens of the new Jewish state in the future.

From April 1948 the idea of transfer took hold, although it was not universally adopted. Some officials and commanders were opposed to it and refused to expel Arabs (Ben Dunkelman, who commanded the 7th Brigade in July 1948 in Nazareth, for example). However, very few commanders actually had to expel anybody, as most of the Arabs had fled before fighting reached their doorstep. The crucial decision in this story was not of expulsion, as there was never any Jewish Agency Executive or Israeli Government or Haganah or IDF General Staff decision to expel ‘the Arabs’; but there was a government decision of 16 June 1948, periodically reiterated thereafter, not to allow a mass refugee return.Footnote ⁶ This was decided when about half of those who had fled had already become refugees. The IDF acted pursuant to this decision.

Professor Morris suggested that one form of proof for the contention that there was no pre-planned decision or government-authorised policy of expulsion is that officers acted in different ways: some expelled, others did not, and none were punished in either case. At the end of the war, by late 1949 about 160,000 Arabs had remained in Israel (and acquired citizenship), making up 20 per cent of the state's population. Had there been an official systematic policy, they too would have been expelled. As early as November 1948, various officials claimed that there had been no official policy (in Operation Hiram, in late October 1948, when the IDF took upper-central Galilee) and commanders adopted different approaches.Footnote ⁷

On the Israeli side, Morris added, there is a myth about orders or advice given by Arab leaders to the local population to flee. This is not supported by historical documentation, and there is even evidence to the contrary. In May 1948, for example, there were orders from Fauzi Kawukji, Commander of the Arab Liberation Army, and from Jordan, for people not to leave; these leaders even threatened people with sanctions if they did leave. There is also evidence of orders not to leave given in March 1948 by the Palestinian national leader Haj Amin Al-Husseini to his people. There was therefore no policy of the Arab states or of the national Palestinian leadership encouraging or ordering the population to flee. However, Morris added, there were orders by Palestinian local leaders to evacuate. In some cases the instructions were for complete abandonment, as happened in Haifa on 22 April 1948, the rationale being that to stay would mark acceptance of Jewish sovereignty and be regarded as treacherous. In other instances orders were given by local leaders to villagers to send away women and children in order to remove them from combat or potential combat zones. The intention behind these orders was to strengthen the men who stayed to fight, but in practice they demoralised the resistance. Here and there, the invading Arab armies, the Jordanian and Egyptian armies, encouraged or ordered specific Arab villages to evacuate.Footnote ⁸

In essence, Morris maintained, the main cause of the Arab plight were Zionist attacks on villages and towns, and the fear of such attacks. There were Jewish atrocities which prompted panic and flight, as occurred after Deir Yassin (in April 1948). (There were, of course, also Arab massacres of Jews, as occurred at the oil refinery in Haifa in December 1947). The massacre in Deir Yassin was widely broadcast in the Arab media for weeks, with exaggerated numbers and types of atrocity, leading the population to flee. However, what is crucial was the decision on Israel's part not to allow the refugees to return. Also crucial in the perpetuation of the Palestinian refugee problem was the Arab states’ decision not to integrate the refugees. This contrasted with the situation in Europe after the Second World War, when Czechs, Poles, Russians and others absorbed Czech, Polish and Russian refugees. Both Israel and the Arab states, and the refugees themselves, perpetuated the refugee problem by refusing their absorption by the Arab states.

In the context of post-1945, pushing out populations and moving them around was regarded as morally acceptable behaviour, unlike today. Whole sets of populations were removed, and moved, almost without a murmur. This was seen by American, Russian and other leaders as something that would stabilise countries and actually maintain peace by preventing potentially explosive minority problems (of the sort that had destabilised Europe before the First and Second World Wars).

The Nakba and the Palestinian Silence

Professor Mahmoud Yazbak, University of Haifa

Professor Mahmoud Yazbak disagreed with many of the ideas and notions presented by Professor Morris, and began by suggesting a metaphor. He asked the participants to imagine an earthquake taking place; everyone runs for shelter; after a few minutes, the quake ends and they return to their homes. He drew a comparison with the Palestinian problem, and asked whether the Palestinian refugees would be allowed to return. It is an accepted notion that when people experience fear they have to flee in order to save themselves; when the event ends, they expect to return to their homes.

Professor Yazbak then turned to address the main issue of his presentation.Footnote ⁹ He said that Nakba is a Palestinian term that indicates the total destruction that struck Palestinian society as a result of the establishment of the State of Israel in 1948. During the course of the 1948 War, the Zionist militias destroyed all the foundations of life in Palestinian society. After 15 May 1948 these militias constituted the Israeli army. In the course of the Zionist and Israeli military operations about 400 Palestinian towns and villages were destroyed, resulting in the expulsion and flight of about 80 per cent of the residents of the Palestinian regions on which the State of Israel was established. These residents became refugees, either within their homeland, as explained below, or outside, particularly in Syria, Lebanon and Jordan. As a result of the Palestinian Nakba, a group of Palestinians was created whose homes and villages were destroyed but who did not leave the region which had become the State of Israel. They are usually referred to as ‘internally displaced persons’ (IDPs) or ‘internal refugees’, and their number is at present estimated at 300,000.

Although the IDPs remained in their homeland and acquired Israeli citizenship, the State of Israel took ownership of their property, lands and villages that had been systematically destroyed. This confiscation of property was based on the doctrine of ‘absentee owners’ that was invented by Israeli law.Footnote ¹⁰ According to this law, owners of Palestinian property lost title to their property if they were away from their villages or homes when the Israeli authorities conducted a census, notwithstanding that it was Israel that had expelled them and prevented them from returning to live in their homes. In the majority of cases the State of Israel transferred the expropriated property from its original owners to Jewish-Zionist institutions and set up Jewish settlements on the expropriated property all over the country. Most of the villages have been renamed with new Zionist names. An example is the Jewish settlement of Elyakim, which was established on the ruins of the Palestinian village of Umm al-Zinat in the Haifa region, the residents of which were expelled in 1948. Some of the residents became refugees outside the new Jewish state, and some joined the IDPs within the borders of the State of Israel. As in the case of the other Palestinians, they were forbidden from returning to their homes and property. Another group of Palestinians remained in their cities and villages. The IDPs acquired Israeli citizenship and, like other Palestinian citizens of Israel, were governed by military law until 1966.

The Palestinian cities of Safad, Tiberias, Haifa, Acre (Akka), Jaffa (Yafa), Lydda, Ramla and Bir A-Sabi'a (Beer Sheva), which fell into Israeli hands in 1948, suffered from the same destruction that struck the villages. The Israeli forces destroyed and razed the majority of the Arab neighbourhoods in these cities, systematically removed all signs of their culture and history, uprooted their residents and expelled them from their homes. The majority of those residents became refugees outside the borders of the State of Israel. These cities, and particularly Haifa and Acre, were not only urban centres; more importantly they were cultural and political centres where the majority of the Palestinian intellectuals and politicians lived. These cities contained the libraries, publishing houses, institutions of higher education, cultural centres and cafés, which had played an important role in the Palestinian cultural scene prior to the Nakba. All of these ceased to exist after the Nakba.

Professor Yazbak contended that the Nakba split Palestinian society and turned it into population groups dispersed over many places with no political, social or cultural leadership. Some of the Palestinians now lived in refugee camps on the West Bank of the Jordan River, which was annexed by Jordan and had become part of it. Some lived inside the Kingdom of Jordan, which at that time was referred to as the East Bank. In the Gaza Strip, which was under Egyptian rule, several refugee camps were established, and were occupied by those who had been expelled from Jaffa and the southern coast. The majority of the refugees from the northern part of Palestine, who had been expelled from the Galilee, found themselves in refugee camps in Lebanon and Syria, and some even reached Iraq. These groups were broken, destroyed, homeless, lacking work and education, living for years with no clear political vision. They suffered from the agendas and interests of the host countries, which sought to erase their identity, and sometimes to marginalise them, while ostracising them socially and politically. The refugees’ rights to work, to education, residence and a dignified life were trampled upon.

Professor Yazbak went on to describe the ways in which the Palestinian refugees dealt with the situation. In the shadow of these difficult conditions, and in the absence of any Palestinian political leadership, the refugees started to seek out, by their own efforts, means of support, food, housing and, later, education. The refugee trauma was acute, as was the material and emotional loss that accompanied it. Their daily lives were fraught with intolerable challenges. In this situation there was no possibility of dealing with memories of the past or the question of ‘how did all this happen to us?’. There were no scientific, technical or cultural tools to encourage the victims of the Nakba to make themselves heard, to recount or document their story. In many cases the defeated refugees who had been expelled from their homes avoided expressing their feelings and pain over what had been done to them and their families. This was the silence of the defeated and expelled refugees, who had lost their homeland and citizenship. Often they had no travel or transit documents, and certainly no political and national leadership who could lay out a road to alter the painful reality. This silence served the interests of the Middle Eastern countries that were directly connected with the question of the Palestinian refugees, but refrained from articulating the events of the Nakba and its horrifying stories.

The defeated, living in fear and insecurity in the refugee camps in a strange environment, did not wish to talk about their defeat. In addition, they were overcome by shame, guilt and torment, which only reinforced their silence. Photographs from the era show that the humiliating living conditions and the sense of alienation from the environment created shame on the part of the refugees towards themselves and others. The collective failure also symbolised their personal failure, which injured the pride of the patriarchal leadership, on both the general and the personal levels, and thus the silence was reinforced.

As a result of its displacement, exile and dispersal, Palestinian society broke down. Its cultural infrastructure was destroyed; the educated and intellectual elements were expelled and left their homes, taking nothing with them. The Palestinian intellectuals had no choice but to engage in arduous temporary jobs in order to feed their families, rather than to deal with the refugees’ distress, describe their suffering and seek solutions for the situation. Alongside the inability of the intellectuals to fulfil their role and destiny, the host countries exercised complete control over the media and consequently controlled the voices that were allowed to be heard and what authors were permitted to write, in line with the interests of governments, which in many cases contradicted the interests of the Palestinian refugees.

The Palestinians who remained in their homeland within the borders of the State of Israel were under the control of military rule, as mentioned earlier, and clearly they were unable to tell of their disaster and express their hopes to the media, which were subject to the control of the military censor. Their voice was not heard for at least twenty years, and the story of defeat was not told. The silence of the defeated Palestinian society provided a golden opportunity for the victors to tell the story of their victory – namely the establishment of the State of Israel. The victors displayed pictures of heroism and miracles, with no regard for the results of their victory: they ignored the distress they had caused the Palestinians by uprooting them, killing and massacring them, destroying their villages and cities, taking over their property, and sometimes committing rape against their women (evidence for this exists in the diaries of Yosef Nahmani). In parallel with the silence on the part of Palestinians, the voice of Israel's propaganda rose up in the attempt to evade responsibility for its actions against a defenceless, leaderless people, who were unable to notice the dangers that threatened them. Israel presented itself as the soul of a modern miracle of David and Goliath and, in the absence of a Palestinian voice, the world expressed its admiration for the heroic acts of the modern Israel, which was perceived as a reflection of the developed Western countries.

Thus the Palestinian minority that remained within the borders of the State of Israel was cut off from its cultural and national core. For two generations it remained devoid of all cultural infrastructure, except for a minority who joined the communist party, the only legal political party that did not represent the interests of the Zionist institutions. This minority had no voice other than the newspaper Al-Ittihad, which described the living conditions of Palestinians in Israel. However, this voice was local and did not reach the international audience in order to tell of the consequences of the Nakba, the policy of expropriation of land and the disaster of the military rule over the minority. The situation of the refugees outside the homeland was no better. After the adoption of UN General Assembly Resolution 194(III),Footnote ¹¹ which stated that the refugees must be returned to their homeland and their problem resolved, they were forgotten. The refugee problem became limited to the provision of food and services by UNRWA.

In June 1967 Israel won a quick war against Egypt, Syria and Jordan. As a result of the conquest, its area increased two-fold or more. Israel occupied the Gaza Strip, the Sinai Peninsula, the West Bank including East Jerusalem, and the Golan Heights. Consequently, many refugee camps on the West Bank and in the Gaza Strip came under Israeli control. The year 1967 was a decisive year in Palestinian history. Palestinians holding Israeli citizenship met again with a large part of the Palestinian people in the West Bank and the Gaza Strip. Unlike in 1948 and as a result of Jordanian-Israeli political considerations, Jordan did not close the border with the West Bank after the 1967 war. Thus Jordan became a refuge for the transfer of Arab cultural creativity from Arab countries to the West Bank and from there to Palestinian towns and villages within Israel. This transfer significantly helped to disseminate cultural and political awareness among the Palestinian minority within Israel and in the West Bank.

Simultaneously, and as a consequence of the unexpected expansion of the State of Israel, the majority of the Israeli work force was employed in safeguarding ‘security’, and managing the occupation and other state affairs. Israel needed to construct new lines of defence along the Suez Canal, in the Golan Heights, and along the Jordan River, which separated the West Bank from Jordan. Now Israel had no choice but to exploit the Palestinian work force bearing Israeli citizenship, the majority of whom had been unemployed since the expropriation of their property and land. This initial event caused profound changes in Palestinian society within Israel, and subsequently also in the West Bank and in the Gaza Strip. As a consequence of the opening of the work market, the economic position of the Palestinians gradually improved; it accelerated following the 1973 war in which Israel, for the first time since its establishment, did not achieve a clear military victory. As a result of the accelerated economic improvement that followed the war, the first signs of a Palestinian bourgeoisie emerged. Parents invested in their children's higher education and, at the beginning of the 1980s, a new generation emerged of Palestinian intellectuals who had studied at Israeli universities. As the identity of this generation formed, the issue of the Nakba and the collective memory became a central component of the cultural and political identity of Palestinians in Israel, in the territories occupied in 1967 and in the Palestinian diaspora. The wall of shame was gradually breaking down. The Palestinian establishment set up the most significant website, ‘Palestine Remembered’, on which people began to tell of the Nakba, recording their memories and impressions, and building a comprehensive and all-embracing Palestinian narrative.

Professor Yazbak then turned to two examples which, he believed, exemplify the themes he had explored: two small villages beside Nazareth – Aylut and Ma'lul.Footnote ¹² In Aylut, a Muslim village, people were expelled. Yazbak maintained that there was a very well-documented massacre in the village, following which the villagers were expelled and they went to the church in Nazareth, where they stayed for three years. The church applied pressure on Israel to allow the villagers to return. However, by the time they were allowed to do so, all the land around the village, which had not been destroyed, had been confiscated and given to a new Jewish settlement.

In Ma'lul, which was composed of 50 per cent Muslims and 50 per cent Christians, the people were told by the IDF to leave for two or three weeks until order was maintained in the area. The villagers went to Nazareth and found temporary residence. However, after a few days the village was destroyed, and there were no houses to return to. The villagers lived as IDPs in Nazareth, and their property was confiscated and given to Jewish settlements nearby.

To summarise, Professor Yazbak stressed that according to the Palestinian narrative, the refugees, both internal and external, were expelled. Expulsion means not only forcing people to leave. They experienced acute fear and fled, legitimately expecting to return when circumstances allowed. The government's decision not to allow them to return was not expected. Yazbak emphasised that it must be remembered that many Palestinian citizens of the state are still refugees. For example, the people of Saffuri, only one kilometre from Nazareth, were expelled and moved to a nearby hill, overlooking Saffuri. Every day they see their village that was destroyed. If you ask them who they are, they answer they are refugees, and point to their old home; their Israeli citizenship does not change this fact. Professor Yazbak ended by stating that this issue of internal refugees must also be tackled, as well as the issue of external refugees.

Palestine Refugees and the Challenges in Seeking Legal Protection Outside the Region

Professor Guy Goodwin-Gill, University of Oxford

Professor Goodwin-Gill began by pointing out that international law and organisation relating to refugees now had close to a hundred years behind it, yet states have traditionally seen the refugee phenomenon as essentially temporary. With a few exceptions, this perspective has dominated their approach since the first League of Nations High Commissioner for Russian Refugees was appointed in 1921.

Another issue has been the humanitarian-political dichotomy, which has persisted but has never been adequately addressed, despite the efforts of various individuals. For example, in 1935 James Grover McDonald resigned as High Commissioner on the ground that the German refugee problem was not only humanitarian, but also political. If the international community is not prepared to tackle the refugee problem on a political level, a purely humanitarian approach is unlikely to succeed. An additional tension also exists in the practice of organisations and states to approach refugees in terms of groups and categories, rather than as individuals with rights.

Following the massive population displacements of the Second World War, the UN General Assembly set up the International Refugee Organization in 1946. This organisation was soon caught up in the politics of the Cold War, and although it was already in existence when the Israeli-Palestinian refugee crisis arose, it was not mandated to deal with it. This responsibility was given to UNRWA and the UN Conciliation Commission for Palestine, which were established by the General Assembly in 1949. During the period 1948–50, the UN began to think about replacing the International Refugee Organization, and it was decided to create the Office of the United Nations High Commissioner for Refugees (UNHCR) as a subsidiary organ of the General Assembly. To complement this agency, which was initially intended to be non-operational, a new convention was proposed, building upon the treaty experience of the 1920s–40s, and the 1951 Convention relating to the Status of Refugees was negotiated and signed in Geneva in July of that year.Footnote ¹⁹

The other major issue at this time, of course, was the Israeli-Palestinian conflict. During the debates in the General Assembly between 1948 and 1950, it was clear that many states did not want the issue of the Palestinian refugees to be lost within measures relating to refugees generally. There were several reasons for this. The Arab states, in particular, saw the problem essentially as the responsibility of the UN, because of the latter's adoption of the Partition Resolution. In their view, and because of this involvement, the UN should retain specific accountability for Palestine refugees. States were keen to ensure that the Palestinian refugees should enjoy continuity of protection and rights under the Refugee Convention, should UNRWA protection and assistance come to an end.Footnote ²⁰

The debates in the UN also reflected the idea that refugees were a temporary phenomenon, and the confident but misplaced expectation that the Palestinian issue would be settled in the near future. Nevertheless, from the start the General Assembly accepted that Palestinians were refugees and no one questioned it. Article 1D of the Refugee Convention provides that it ‘shall not apply to persons who are at present receiving protection or assistance’ from UN agencies other than UNHCR. The wording does not specifically refer to ‘Palestine refugees’ but that was the understanding at the time. Article 1D is sometimes referred to as ‘excluding’ Palestinian refugees, but this is a misunderstanding. In fact, Article 1D provides that ‘when such protection or assistance has ceased for any reason, without the position of such persons being definitively settled … these persons shall ipso facto be entitled to the benefits of [the] Convention’. So, rather than being an ‘exclusion’ clause, Article 1D of the Refugee Convention is a ‘contingent inclusion’ provision.

From the perspective of a lawyer or a state, Article 1D raises a number of interpretative challenges, not the least being as a result of the Palestinian issue remaining unresolved.Footnote ²¹

The term ‘at present receiving’, for example, is inherently ambiguous. It is not clear whether it refers to those receiving protection on 1 January 1951 (when UNHCR came into existence), 28 July 1951 (when the Refugee Convention was opened for signature), or 22 April 1954 (when the Refugee Convention came into force). Similarly, there is no clear definition of a Palestine refugee, and therefore of the scope of application of Article 1D ratione personae. It could require reference, among others, to UN General Assembly Resolution 194(III),Footnote ²² Resolution 2252 (ES-V) of 1967,Footnote ²³ or to the general practice of UNRWA. Moreover, the approach of UNRWA to the definition has been essentially operational, geared towards providing relief and assistance, rather than defining eligibility for refugee status in the sense of Article 1A(2) of the Refugee Convention.

One aspect that was not anticipated by the drafters in 1951 is the increase in mobility for refugees, which has emerged as an issue for many European and other states. Not surprisingly, this has led to uncertainties as to the interpretation of Convention terms such as ‘if such protection ceases’ or ‘presently receiving’. While this might refer to the end of UNRWA's operations, it was not clear that it referred to refugees leaving the areas of UNRWA's ongoing operations. At the same time, the protection due to the refugee has become ‘individualised’ and a matter of rights. States still see asylum as an exception to their sovereign power to decide on the entry and removal of non-citizens, and are as concerned today as they were in 1951 about having perhaps signed a ‘blank cheque’ on the admission of refugees. Consequently, they tend to argue that the ‘right to asylum’ should be interpreted restrictively.

The phrase ‘[w]hen such protection or assistance has ceased for any reason’ also offers plenty of scope for interpretation. On first reading, a Palestinian refugee whose protection ceases for any reason, without his or her situation being resolved, appears to be entitled to the benefits of the Convention. Does this mean that a Palestinian can simply choose to leave UNRWA's area of operations and thereby become entitled to the benefits of the Convention? One approach, with support in European jurisprudence, is to look for evidence of involuntary decisions, such as political or security reasons beyond the control of the individual, and which underlie his or her reason for leaving or inability to return. This approach may then be qualified by consideration of the additional question, whether the individual concerned was receiving or eligible for UNRWA assistance. Such an approach may cause many Palestinians to ‘fall between the cracks’, for example, if they are self-sufficient and thus outside the UNRWA safety net.

Where does that leave us today? Until there is a definitive resolution of the conflict, and in the absence of a major shift in the General Assembly and the Security Council, Palestinian refugees are a class identifiable as such by reference to certain historical facts. However, this is also a group in which membership is nevertheless open, and which may include the descendants of the refugees of 1948 and 1967. In the absence of a durable solution, protracted refugee situations can commonly lead to statelessness and the transmission of refugee ‘status’ through generations – as Article 1D says, until such time as their position is ‘definitively settled’.

The jurisprudence does not offer an easy solution for Palestinian refugees outside the region. This may not be intentional, but is rather a result of the ways in which ambiguous words and phrases have been interpreted, particularly in the light of states’ other concerns.

Refugees and Return in Prolonged Occupations

Professor Eugene Kontorovich, Professor of Law, Northwestern Pritzker School of Law

Professor Kontorovich addressed the issue of refugees and settlers in prolonged occupation in a broader and comparative context, to find points of potential application to the Israeli-Palestinian refugee issue. He noted the difficulty in finding perfect points of comparison because of the prolongation of the Palestinian refugee issue, as defined by its own terms, for nearly seventy years. There are no comparable situations of a refugee population being recognised as such and given legal status, including an intergenerational definition of refugees; the demands of return enduring for such an extended period are also exceptional. Nonetheless, these various cases may still shed insights into this current conflict.

One of the most contentious issues in the Israeli-Arab conflict is the fate of Arab residents of Palestine who fled from the territory during Israel's War of Independence.Footnote ²⁴ Another major issue is the question of Jewish settlers in the West Bank (and formerly Gaza). While considerable attention has been focused on these issues in the Israeli context, there is much that can be learned by examining their treatment in other contexts. Such state practice is an important source of determining the content of international norms.

Do the 1948 Palestinians Have the Right to Return?

Professor Yaffa Zilbershats, Chair, Planning and Budgeting Committee, Council of Higher Education

Professor Zilbershats opened by stating that the return of the Palestinian refugees and their descendants to the State of Israel is one of the most difficult issues facing the parties as they seek to resolve the Israeli-Palestinian dispute. According to the Palestinians, the refugees and their descendants have a right to return to the homes that they left during the period 1947–49. In contrast, the State of Israel opposes recognition of the right of return and extensive entry of Palestinian refugees into its territory as part of the resolution of the dispute, as it sees this as an existential danger to the national home in which the Jewish people seek to implement their right of self-determination.

Professor Zilbershats clarified that her goal was to prove that the sources of international law do not support the legal right of the Palestinian refugees to return to the State of Israel. Accordingly, Israel must insist that the issue of the Palestinian refugees be dealt with in the framework of political negotiations. Israel must refrain from discussing this issue within the framework of rights. She said she would also review cases of other refugees in regions around the world where ethnic disputes are under way and show that the return of refugees who are members of one national ethnic group to territory that is controlled by another group is generally not the appropriate solution for ending a prolonged ethnic dispute.

Many of the country's Arab inhabitants fled, or were deported, as a result of hostilities that erupted in Mandatory Palestine following the UN General Assembly decision on the partition of the territory into two states, Jewish and Arab,Footnote ⁴⁴ and following the War of Independence of the State of Israel. Many became refugees in the neighbouring Arab states. These refugees were excluded from the application of the Convention relating to the Status of Refugees of 1951Footnote ⁴⁵ and from the protection of UNHCR. Since 1950 they have been protected, by virtue of a UN resolution, within a special framework – namely UNRWA. Over the course of time UNRWA has become an organisation that functions as a major relief agency. It handles approximately 4.7 million people, yet refrains from rehabilitating the refugees. This figure stems from the organisation's broad definition of a Palestinian refugee. The UNRWA definition, unlike the definition given in the Refugee Convention, includes descendants of the refugees who left Mandatory Palestine as well as those who have acquired citizenship in the countries in which they have since settled.

The Palestinians base the refugees’ right of return on international law. They refer both to UN resolutions and UN conventions. We believe that neither vests a right of return upon Palestinian refugees. The discourse of rights in this area largely developed following the Second World War. The UN adopted many conventions on human rights and the signatory states undertook to safeguard these rights within their territory. Concurrently, monitoring and supervising mechanisms were established to implement the conventions.

Professor Zilbershats moved on to review various relevant legal sources, the first of which is UN resolutions. The primary resolution upon which the Palestinians base their claim to a right to return is UN General Assembly Resolution 194(III) of 1948.Footnote ⁴⁶ This Resolution sought to set out a general strategy for resolving the dispute through the establishment of a Conciliation Commission. Indeed, the return of the refugees is mentioned in Article 11 of the Resolution, but this must be seen as part of the general strategy and not as an independent right vested in the Palestinians, particularly as the Resolution does not refer to the term ‘right’ and, when adopted, was rejected by the Palestinians. Subsequent resolutions of the UN General Assembly recognise the right of the Palestinian people to self-determination and the right of the Palestinians to return to their homes. In contrast, Security Council Resolutions 237 and 242 of 1967Footnote ⁴⁷ and 338 of 1973Footnote ⁴⁸ call for a ‘just’ solution to the Palestinian problem, but make no reference whatsoever to their ‘right to return’. It is these decisions of the Security Council that are binding in the relations between the Israelis and the Palestinians, as the Oslo Agreements signed by the two partiesFootnote ⁴⁹ vest them with binding force following their adoption by the parties.

The international human rights conventions do not provide uniform definitions regarding the scope of the right of freedom of movement on which, on occasion, the right to return is allegedly based. One of the important documents pertaining to this subject, relied on by the Palestinians, is the International Covenant on Civil and Political Rights of 1966 (ICCPR).Footnote ⁵⁰ Article 12(4) of the Covenant prohibits the imposition of arbitrary restrictions on the right of a person to enter his own country. The Palestinian refugees do not satisfy the terms of the article and therefore it too does not vest them with a right to return to the State of Israel. For the Palestinians, Israel is not ‘their country’, and even if it is regarded as their country, the restriction on their entry is not arbitrary. The State of Israel is entitled to prevent the entry of Palestinians into its territory and, a fortiori, the entry of their descendants, as such a development might endanger the existence of the state and the exercise of the right of the Jewish people to self-determination within it.

Nor do international nationality laws impose a duty on the State of Israel to grant citizenship to Palestinian refugees. The general international conventions, and those dealing specifically with the question of citizenship, provide for the right of every person to citizenship, but there is no express obligation on the part of any state to grant such citizenship. Arrangements for the granting of citizenship to those who leave the state in situations where large movements of people are generated as a result of war that has led to border changes, have not yet been formulated in binding rules, and therefore are not legally binding in the context of the issue of Palestinian refugees.

International refugee law is defined primarily by the Convention relating to the Status of Refugees of 1951. This Convention provides for the right of refugees not to be deported to the country from which they escaped and in which their lives or freedom are in danger.Footnote ⁵¹ Global practice over the years testifies to the fact that states have not interpreted this right as indirectly obligating the original state to permit the return of the refugees. Similarly, the Statute of the Office of the UN High Commission for Refugees of 1950Footnote ⁵² provides that return is merely one of the possible ways of resolving refugee issues. Irrespective of the above, the Refugee Convention has excluded the Palestinian refugees from its purview and, in accordance with UN decisions, has made them the responsibility of UNRWA. At the same time, the latter agency has not been tasked with dealing with the return of the Palestinians.

An examination of precedents from around the world relating to the resolution of ethnic disputes in which the fate of many refugees is involved reveals a variety of solutions for dealing with this issue as part of the attempt to resolve or stabilise national disputes. Until the end of the Cold War, the legitimate and even preferred solution for ethnic disputes was the forced exchange of populations. The premise was that such a solution contributed to the stabilisation of the states that were suffering from ethnic tensions. This was the case in relation to the peace agreements between Greece and Bulgaria in 1919 and between Turkey and Greece in 1923.Footnote ⁵³ The Peel Commission of 1937 called for the partition of Mandatory Palestine into two states and recommended the exchange of populations in reliance on the Greek-Turkish precedent.Footnote ⁵⁴ Similarly, at the time of the partition of India into India and Pakistan in 1947, an exchange of populations involving millions of people was carried out with the aim of separating two disputing ethnic groups.

Thus, when the problem of the Palestinian refugees arose, the exchange of populations, particularly in cases of ethnic disputes, was regarded as a legitimate and even appropriate solution. In retrospect, it is possible to regard the absorption of hundreds of thousands of Jewish refugees from the Arab states in Israel, which took place at the same time as the escape or deportation of Palestinian refugees to the neighbouring Arab states, as such an exchange of populations. The new reality that evolved could have provided a fitting infrastructure for the settlement of the dispute. However, unlike the State of Israel, the Arab states in general did not take measures to absorb the refugees and resettle them, but rather encouraged the continuation of the refugee situation and the aspiration to return to the territory of the State of Israel.

Following the end of the Cold War the process of population exchange was defined as ethnic cleansing and was absolutely prohibited by international law. Return was adopted by states, particularly by those that absorbed refugees, as the preferred solution for the problems of refugees which had been created by ethnic disputes. However, in many cases this policy encountered difficulties and sometimes was not capable of being implemented at all. This, for example, was the situation in Bosnia and Herzegovina, which had formed part of the former Yugoslavia. The war in the region gave rise to an increased movement of refugees. The Dayton Agreement of 1995 provided for their right to return to their homes.Footnote ⁵⁵ In practice, the return of these refugees has encountered numerous obstacles, including ethnic hostility, which to this day still on occasion turns into severe violence.

In Cyprus, the Secretary General of the UN, Kofi Annan, proposed in 2004 to the populations in the two sections of the island to resolve the refugee problem that had been created about thirty years earlier. His proposal included a minimal return of refugees, so that each ethnic community could remain a majority in its own territory.Footnote ⁵⁶ This example shows that the international community concurs that even now a legitimate solution to an ethnic dispute that resulted in many refugees will not necessarily include the extensive return of refugees to their original place of residence. According to Professor Zilbershats this view is supported by the Demopoulos judgment of the European Court of Human Rights, which in March 2010 decided the issue of the property rights of Greek Cypriots who had lived in Northern Cyprus and moved to the south of the island following the Turkish occupation. The Court stated:Footnote ⁵⁷

The judges pointed out that during the 35 years that had elapsed since the events of 1974, which caused the problem and forced the petitioners to leave their homes, generations had passed, and the local population had changed. Turkish Cypriots who had come from the south of the island were now settled in the north. Turks who had come from Turkey had also settled in the north of the island. A considerable portion of the property of the Greek Cypriots had changed ownership through donations, sale or inheritance. The lapse of time had therefore weakened the links between those who claimed rights in the property and the property itself. This had implications for the nature of the remedy to be regarded as meeting the conditions of the Convention: when restoration of the property was not possible, compensation would be regarded as appropriate.

The Court not only examined the violations of the rights of the petitioners but also asked whether the right to property and the expectation of enjoying the full benefit issuing from it was consistent with actual reality. In view of this reality, was it appropriate to allow the petitioners to exercise their rights? The judgment upheld the argument put forward by the Turkish-Cypriot government and stated that it would be arbitrary, dangerous and unreasonable after 35 years to expect the Court to order the unconditional restoration of the petitioners’ property. A state was entitled to take into account additional factors, including the status of additional parties who had occupied many of the assets for many years. If the Court had ordered the unconditional return of the property, this would have disregarded the rights of those now living there, or those making essential use of the property for public purposes. Accordingly, the Court emphasised that it was not interpreting the Convention in such a manner as to impose a sweeping and unqualified obligation on the government to forcibly remove and expel the inhabitants in order to resettle those who asserted a right to the property, even if this would protect the rights of the petitioners as entrenched in the Convention.Footnote ⁵⁸

Professor Zilbershats concluded by saying that it is recommended that the discussion on return be shifted from the discourse of rights to the domain of political negotiations. The State of Israel should not be tempted to recognise the right of return of the refugees by a proposed guarantee or understanding to the effect that such recognition will not result in de facto return. Israel should not be misled into thinking that recognition of the right is only a symbolic gesture aimed at acknowledging the suffering of the refugees. The alleged right may have far more than symbolic significance: it may be the right of individual refugees, and it is not at all clear that the Palestinian representatives are entitled to waive such rights. Indeed, the claim that this right cannot be waived is made expressly by those who assert it. Professor Zilbershats clarified that if the view is taken that the refugees have a right to return, the leaders may not be able to forgo that right during negotiations. The sweeping solution of return is incompatible with the interests and the rights of the State of Israel as the state of the Jewish people. Of course, it is important to bring an end to the suffering of the Palestinian refugees. Yet, extensive return to the State of Israel of a population with cultural and social characteristics – which differ so sharply from those of the Jewish population, when there is such deep hostility between the two groups – is certainly neither the correct solution to the suffering of the refugees, nor the way in which to achieve stability in the region.

Palestinian Refugees, the Right of Return and Israeli Legal Practice

Advocate Manal Hazzan

Advocate Hazzan began by stating the Palestinian claims: namely a just solution within the framework of international law, including UN General Assembly Resolution 194(III)). This means the right of return and reparations. The Palestinians suggest four solutions for geographical locations to implement the return: the State of Israel, the future Palestinian state, both states, or third-party states.

The status of the refugees in Arab countries differs between countries, and their description given earlier as poor and downtrodden is inaccurate. In Lebanon the situation is indeed very bad, but in Syria, until the civil war, and in Jordan they have acquired rights, such as the right to vote.

Advocate Hazzan said that Israel's position is not based on a legal framework but on a moral rejection and denial of responsibility for the refugee problem. The denial in Israeli practices is not only within the territory of the State of Israel but also in the West Bank. The refugee issue should not be viewed as an isolated issue, but one within the wider context of Israeli laws on status and citizenship. At its core is the issue of demography. This leads to the absence of a notion of citizenship. The Palestinians view the Israeli policies as an ongoing Nakba.

Since 1967 Palestinians in West Jerusalem have not been granted citizenship and there are limitations on their ability to transfer status to descendants. They cannot leave the area for fear of loss of status. The family reunification legislation also incorporated considerations of preventing return. These temporary measures have become permanent. There are 10,000 stateless children as a result of these laws. So, when Israel speaks of the vast numbers and of the responsibility of Arab states and maybe UNRWA for the problem, Israel by its own laws is contributing to the numbers of stateless people and refugees in future generations.

Palestinians in the West Bank need Israel's permission to leave the territory, which means that Israel controls their movement. The implications for this kind of control is more stateless people. Tens of thousands of stateless people do not fall within the definition of refugee or UNRWA protection. They remain entirely without protection.

The status of Israeli Palestinians and their situation cannot be explained by an existential threat; these are Israeli nationals. The explanation for their status is based on interests in land.

In recent years Israel has restricted the entry of foreigners to the West Bank. They are treated as refugees exercising the right of return. At issue are people with ties in the West Bank who come for family visits, or to remain, or to volunteer. The maximum for which they can stay is 27 months.

Advocate Hazzan said that apart from creating more instances of statelessness and refuge, from Israel's practices within its own territory, there are also attacks on refugees. She spoke not of attacks in Gaza, where the population consists mostly of refugees, but of attacks on aid agencies assisting refugees, such as UNRWA. The UN Office for the Coordination of Humanitarian Affairs (OCHA) has issued a report on attacks on humanitarian aid agencies.Footnote ⁵⁹

She concluded by saying that Israeli practices in East Jerusalem with respect to the internally displaced in Israel and in the West Bank, through regulation, aid and population registration, indicate that at issue is not only sovereignty and international law, but politics. It is not about security but about ethnic cleansing.

Restitution and Compensation

Professor Rex Brynen, Department of Political Science, McGill University

Professor Brynen made some introductory remarks. First, the notion that property seized would be returned is very unlikely for political reasons. With regard to terminology, ‘reparations’ might be a more accurate term but it is politically loaded because of its Second World War connotation. Therefore, he would use the term ‘compensation’. In every set of negotiations between Palestinians and Israel the topic of compensation arises, and both sides assume that compensation will be part of the settlement. Evaluation of the compensation payable can go anywhere from four billion to four hundred billion dollars. One can talk about a narrow range (limited to property losses) or an expansive package. The Israelis would like to know the number in advance, and do not want a process to calculate the amount. The Palestinian position is that they do not know the precise figure, so there should first be agreement that there will be compensation and then the Israelis will pay. It is assumed that the international community will foot the bill, but many in the international community refuse to do so, demanding that Israel pays. Israel has always contemplated numbers in the low billions, which is considerably low and is unlikely to satisfy the Palestinians. In addition, Professor Brynen noted that the Israelis always bring up the issue of Palestinian and Arab responsibility for rejecting the Partition Plan, and so on.

Another issue is to whom Israel should pay – whether it is individual persons, families, or perhaps the Palestinian Authority (regarding which concerns were raised on grounds of a lack of legitimacy). There is a real risk that a deal would be forged by political concerns that would not be feasible in practice.

A claims-based system is the Palestinian preference, because it is a form of acknowledgement that Israel had displaced them. It is a problematic mechanism because the system is very slow and time-consuming, as descendants live in various countries with different inheritance laws. Moreover, compensating on the basis of property owned before 1948 could be problematic because it will result in giving a large share of the compensation to the rich families who have always been rich, and those in refugee camps would receive much less because the distribution of resources before 1948 had never been equal.

The host countries also demand a right of compensation for hosting the Palestinian refugees, but the general approach of the international community is to reject their demands. The Jordanian government, for example, is demanding compensation or a package for supporting a deal. Palestinians in Jordan are better off than the average Jordanian, but in Lebanon they are treated terribly. In addition, the deal should not require the refugees to make an immediate decision, but give them time to decide.

Another issue is how to move forward in practice. Should the parties defer working on the modalities and just agree on a framework agreement? Or should they agree on the modalities from the beginning, which could cause problems in negotiations?

On the Israeli side, there is a way to reduce the bill by linking Jewish refugees to Palestinian refugees. This is a problematic position because it does not seem morally just that a Palestinian refugee should lose out for something he or she did not do, and not make, say, the Iraqi or Egyptian government responsible. It would also reduce the amount of money the refugees would receive, and that would be counterproductive politically.

Professor Brynen concluded by saying that he thinks that inadequate attention has been given to the compensation issue. Research in social psychology shows that if you take an issue that is dear to someone and tell them to compromise and accept money instead, it makes them less willing to compromise if the deep normative issues involved are not also addressed. In short, just throwing money at the problem does not solve it. Israel needs to acknowledge its wrongdoings, which may be just as important to Palestinians as money. This is what Professor Brynen advised the US State Department during John Kerry's term.

The issue of who should represent the Palestinians was raised. On the one hand, there is the Palestinian Authority, which lacks legitimacy in the eyes of many Palestinians. On the other hand, Professor Brynen has his doubts that grassroots movements would be effective at the negotiating table.

Unequal Property Rights: Restitution in Israeli Law

Advocate Alaa Mahajna

Advocate Mahajna said he would focus his argument on restitution under Israeli law. He would use Jerusalem as a case study to show the differential application of the law relating to restitution, based on a policy and practice grounded on ethnicity, nationality or religion, which aims to maximise Jewish ownership and control over land, especially in East Jerusalem, and a policy of dispossession of Palestinians (in East and West Jerusalem).

Advocate Mahajna introduced three current examples from three Palestinian villages inside Jerusalem: (i) Sheik Jarrah, a Palestinian neighbourhood in East Jerusalem; (ii) Batn al-Hawa, located in Silwan in East Jerusalem; and (iii) Liftah, a village at the entrance to Jerusalem in the south, displaced in 1948.

Sheik Jarrah is a neighbourhood located between the Old City and Mount Scopus. Since the 1970s many Palestinian families living there have been under the threat of eviction. They were settled there by UNWRA and the Jordanian government in houses of Jews who had fled during the war. The Palestinian families were promised property deeds by the Jordanian government but never received them. After the war in 1967 two settler organisations demanded the properties back in the form of restitution. The court claimed that these organisations did not have sufficient evidence for their claims. In 1982 the court upheld their claim, but said that the Palestinian residents were ‘protected tenants’ and therefore could pay rent to the Jewish owners. The organisation started a process of eviction on the ground of non-payment of rent and illegal construction. As a result, some families were evicted. Essentially the court held that land that was owned by Jews before 1948 could be subject to restitution. The court did not take into consideration changes in the assets, improvements or occupancy over many years (since 1956), although it did consider the ‘protected tenants’.

In Batn al-Hawa in Silwan most residents are Palestinians. In 2001 Ateret Cohanim, an extreme aggressive settler organisation, approached the District Court of Jerusalem and took over a waqf that was created in 1850 for the benefit of impoverished Jewish residents of Jerusalem and poor people in general, including non-Jews. The original mutawalis (trustees) were the two Chief Rabbis. Ateret Cohanim persuaded the court to appoint them as mutawalis instead of the Chief Rabbis (who did not object to this appointment). They then approached the General Custodian who had inherited the administration of the properties from the Jordanian government. The General Custodian released the property to Ateret Cohanim. This was in effect restitution of property to the current mutawalis, the settler organisation, which in 2015 initiated eviction proceedings against tens of Palestinian families living in Silwan. These families were not part of the release procedure, and knew nothing about the release until they were served with the eviction claims. One eviction claim was accepted by the court, which confirmed the ownership; this decision was confirmed by the Supreme Court.

The Liftah case shows that restitution is not possible in relation to Palestinians who demand the return of land, even if they have Israeli citizenship. Their property was confiscated through the Absentee Property Law of 1950 and handed over to the General Custodian, who in turn handed it over to the development authority, which should have used it for the benefit of the public. As part of this arrangement vast tracts of refugee land were sold. The original owners, according to the Law, have lost their ownership forever unless they can prove they were not ‘absentees’. Liftawis were deemed to be absentees because they had moved a few kilometres to the east, under Jordanian control, until 1967. The planning authorities sold the land mainly to wealthy American Jews. The village of Liftah is a unique case. In most cases where Palestinians were expelled in 1948, the villages were destroyed and the land used for building houses for Jewish immigrants or used as parks and forests. However, many of the houses in Liftah still stand in the village, and most are vacant. It is even considered to be a location with very high architectural value because it shows the Palestinian village as it was in 1948; many architects, in fact, have protested against attempts to demolish the houses because of this architectural value. Currently the planning authorities are advancing a new plan to designate Liftah as a site for luxury housing to be sold mainly to wealthy American and other foreign Jews.

With regard to property seized under the Absentee Property Law, all cases for restitution by Palestinian owners who still live in the area of historic Palestine fail unless the owners can prove that in 1948 they were not ‘absentees’ according to Israeli law. Even those who acquired Israeli residence or citizenship after 1967 are barred from claiming restitution of this property. This is the case for Liftah and all refugee property, and even for Palestinians who were internally displaced in 1948 but stayed in what became Israel and became its citizens.

To conclude, Advocate Mahajna emphasised that the Israeli legal system disregards Palestinian claims for restitution but allows Jews to claim restitution. The courts and academics rely on the Absentee Property Law and technical excuses to justify this, but the Law violates international norms and human rights. The Jewish state gives more rights to Jews than to other citizens, and tries to help the settlers advance their agendas, while the Law is a tool to eliminate Palestinian presence in certain areas.

The approach of the Israeli legal system raises questions of how the legal system approaches human rights issues and the rule of law, and the differential application of the law. Restitution in Jerusalem is only one example that demonstrates the general trend, whether in the West Bank or East Jerusalem, or even Israel itself. While this situation is inconsistent with international law and is based on racial discrimination, it is not surprising. The State defines itself constitutionally as a Jewish State and it is accepted that, as such, it bestows privileges on Jews, and unequal restitution is part of these privileges. The legal system of the Jewish state operates to facilitate and uphold Jewish privileges.

UNRWA at 66: Between Light and Shadows

Dr Lex Takkenberg, UNRWA

Dr Takkenberg began by introducing the origins of UNRWA. It was created upon the initiative of the UN Conciliation Commission for Palestine – comprising the US, France and Turkey – and modelled on the Tennessee Valley Authority. Its founders aimed to expand the quest for a solution to the plight of the more than 700,000 Palestinian refugees unable to return, through economic integration by means of large-scale public work schemes – hence the ‘works’ in the name. As such, the agency has been an instrument through which the international community has discharged some of its responsibilities towards the communities, countries and territories affected by the events of 1948. Despite the constant reiteration of its temporary nature, the tragedy of the Palestine refugees and the lack of success on the part of the international community in resolving their plight have meant that UNRWA has become embedded in the diplomatic, humanitarian and political architecture of the Middle East.

UNRWA – Politics Disguised

Dr Einat Wilf, Washington Institute for Near East Policy

Dr Wilf began by holding that the very existence of UNWRA distances peace. The conflict is very difficult and UNWRA is one of the causes of the failure to resolve it. The conflict is ‘a tale of two returns’: on the Jewish side, there is the return of people to their ancestral land. This return is a core part of their identity. It is deeply emotional for Israelis and for Jews around the world who support the Jewish state. There is also the story of Palestinian refugees who wish to return to their land and the hope of justice; this is a core part of their identity.

If either side insists that their return is more just than that of the other, the conflict will continue with no end in sight. In order to put an end to the conflict, neither side can claim superiority and both need to recognise the legitimacy of the other. On the Israeli side the settlement project is an expression of the return for many Jews to their ancestral homeland. On the Palestinian side the idea of return is kept alive by UNWRA. This agency is supported mostly by Western countries, with some voluntary contributions from private donors. These are all countries that support a two-state solution and the idea that Jews are in Israel by right and not might, but they reject the notion that it is a superior right. Ironically these countries continue to fund UNWRA and send a message that Palestinian return is internationally supported. Although they will deny this, the Palestinians view this as international support for their claim. If the international community maintained an equivalent policy towards the settlements, it would say to Israel: ‘Please settle your nationals wherever you want because you have a strong emotional connection with the land; we will give you billions of dollars a year and we trust that when there is peace you will uproot the settlers.’ This is an absurd approach, but it is exactly what those countries are essentially saying to the Palestinians in their support for UNWRA.

Each side may dream. Jews will dream about Hebron and Shiloh, and they will always be part of their identity; Palestinians will dream of Jaffa and Haifa, and they will be part of their identity. However, there is a vast difference between dreams and donating money in order to implement them. Dr Wilf stated that she would like the international community either to not prejudice either party and leave it to both sides to do their own thing (a course of action that is not helpful, in her view), or to send a forceful message to both sides that they cannot have it all, because there is another group of people here with an equal right, and both sides need to accept that neither of them will have it all: this entails not only strong policies on settlements but also, on the Arab side, curbing the Palestinian idea of the return of all Palestinians to all of Palestine. For example, UNRWA can be transferred to places where it makes sense for it to operate. In the West Bank funds should be transferred to the Palestinian Authority; in Gaza, where the vast majority are still recognised as refugees and are in need, they should be attended to by a new agency that only supports aid and does not promote the idea of return. Most people were born there and have never been displaced, but they are told that this is not their home and that their home is on the other side of the fence. Consequently, when they receive cement they do not build houses because it is not really their home; instead they build tunnels to infiltrate into Israel. Palestinians in Jordan should be made full citizens; solutions are also needed in Lebanon and Syria. Dr Wilf said that at the very minimum we need a clear declaration that the international community does not support the claim to a greater Palestine.

Dr Wilf said that the international community can take strong positions against settlements, and refuse claims beyond 1967 lines. States can withhold financial support and tax breaks; they could tell settlers that they need to hold a passport issued by Palestine, but these steps will be legitimate only if they take a strong stance with the Palestinian side; otherwise there will never be peace. For this each side must be resigned to the idea that maximalist claims are not realistic.

Dr Wilf concluded by saying that the international community needs to find a way to stop referring to non-displaced people as ‘refugees’, and these people should not automatically be given refugee status. Other global refugee solutions are not maintained forever, especially when dealing with millions of people. We need to separate the politics from the humanitarian, and to pressure both sides to drop maximalist claims.

Discusssion

Participants expressed doubt whether UNWRA was the correct organisation to target. The agency does not deny that the right of return exists – and not only for Palestinians – but it does not pursue this message. Dr Wilf disputed this and claimed that there are studies that show otherwise. It was argued that Palestinian students attending schools of the Palestinian Authority have the same views as students who attend UNWRA schools; if anything, Palestinian Authority schools are far more radical than those of UNWRA. A participant noted that the Israeli argument is that Palestinians in the West Bank are, in fact, in their country. Another participant held that the international community does not accept this. If UNRWA were to be terminated, UNHCR itself would assume responsibility. If the General Assembly wished to direct it to do so, there would be an automatic majority for such a resolution. In practice, terminating in the West Bank would legally and politically bring in UNHCR to take over and that would make the claim for return much stronger. In fact, 15 years ago Palestinian refugees wanted UNHCR to take over precisely for that reason. Palestinians who are Jordanian citizens would not become UNHCR refugees. It is indeed problematic that they receive UNRWA services.

Another participant noted that it is for the states in the General Assembly that set up UNRWA to terminate the agency's mandate, or for states who are funding UNRWA, but not for the organisation itself. In the Resolution that established UNRWA, operative paragraph 1 is about the right of return. Also, with regard to the application of Article 1D, European jurisprudence recognises the refugee issues per se when it comes to Palestinians ending up somewhere in Europe.

A participant rejected Dr Wilf's attempt to create symmetry where it does not exist. There is a strong state with a functioning government, and the pressure is on the government to comply with its international obligations. Pressure on individuals is misplaced; it should be on the government that supports the individuals. Dr Wilf responded that she was not addressing UNRWA or the Palestinians, but the funding states, which have significant leeway and influence. She emphasised those because they support the two-state solution. If the donors were from Saudi Arabia there would be little scope for engagement.

It was pointed out that Israel itself has lobbied certain countries not to take away funding from UNWRA. This was because it was concerned that children who benefit from such funding would go into Hamas hands. Dr Wilf replied that indeed her critique was also directed at the Israeli government. She believes Israeli policy is deeply misguided, especially since 1967. It supports UNRWA, essentially through the Coordination of Government Activities in the Territories and the Ministry of Defence, on the assumption that it is the lesser evil. However, this is a limited, military view, which does not deal with long-term narratives. Citizens of Israel should be aware that Israel is providing UNRWA with an iron dome. UNRWA is not a military organisation, but it secures the existence of graduates who have in interest of fighting Israel based on a maximalist view of justice.

Dr Wilf disagreed that it would be political suicide to try to replace UNRWA. The international community dares not do so because the agency is a shining symbol of the commitment of the international community to support Palestinian maximalist claims. The Afghani example given earlier of the intergenerational mandate of UNHCR is a great example of the difference between the two agencies: UNHCR chose to grant intergenerational status; it did not automatically grant it. UNHCR prefers return, but this is only a preference. In contrast, UNRWA does not have any leeway. All refugee graphs show a peak, and then solutions are found. Of course, the intergenerational issue will be debated, but it should not be assumed. Dr Wilf called on donor states to say that irrespective of the UNGA mandate, they want UNRWA to provide aid, but not refer to the beneficiaries as refugees. A participant argued that this would not detract from their status as people who were forcibly displaced in a protracted situation. Dr Wilf said that to refer to them as refugees would then expose the politics because they retain this status only because UNRWA was created to prevent any other solution. It was commented that every refugee issue is political. This is what led MacDonald to resign: the refusal to acknowledge the politics.

A participant queried the basis for giving UNRWA aid to people in Jordan, given that their situation is better than that of many Jordanians. Dr Takkenberg responded that the UNRWA mandate does not refer to the nationality or status of the individuals, which is why they are ‘Palestine refugees’ and not ‘Palestinian refugees’. The mandate was established during the Cold War, when the US and the United Kingdom were concerned about communist influence in Jordan, and wanted UNRWA to assist Palestinians in Jordan to counter this influence. The only service given to everyone is basic education and health. The rest (micro-business, and so on) is given on a need basis. These basic rights are where UNRWA steps in for the international community. Other participants added that in Jordan only 17 per cent of the Palestinian refugees are in refugee camps; and 75 per cent of Palestine refugees do not use UNRWA services, but Jordanian services. When they move out of the camps they do not receive services, but they maintain their status as refugees. There is no Western support for cutting down UNRWA in Jordan because there are strong security interests there, but Western financial support is not perceived as support for the right of return. During last year's financial crisis, the Prime Minister of Jordan came out in support of UNRWA continuing to provide services there.

As for the status of Palestinians in Jordan, it was noted that there are different kinds of travel document. Some people have ID numbers, some do not but nonetheless have a passport. They are not citizens.

What Can We Learn from the Exodus of Jews from Arab Countries?

Mr Adi Schwartz, Bar Ilan University

Mr Schwartz addressed the issue of the Jewish refugees in the context of the 1948 War, who were uprooted from their homes in the Middle Eastern states as a result of the Israeli-Palestinian conflict. He began by noting that the issue of Jewish refugees is usually neglected in the discourse of refugees in the Arab-Israeli conflict. He maintained that the issue was important, as it enriches the discussion and allows for more perspectives on the entire conflict to be voiced.Footnote ⁶⁶

Mr Schwartz began by setting out the factual framework. He said that in 1947 there were about a million Jews living in Arab countries. The largest communities were in Morocco (250,000), Iraq (150,000), Algeria (150,000) and Egypt (100,000). He then differentiated between two different groups of community: Middle Eastern Jews (from neighbouring countries such as Iraq, Egypt and Syria); and North African Jews (mostly in Morocco and Algeria).

As for the Middle Eastern Jews, their expulsion and flight was directly connected with the 1948 War and, in fact, was one of its outcomes. Most of the Jews had left these countries by the early 1950s, and by 1952 hardly any Jews remained in those countries. In Syria, where almost 50,000 Jews had lived, they left in 1947–48. In Egypt, most left in 1948–49, and the remainder left in 1956 as a result of the Sinai War. Jews in Iraq left in 1950–51. The context of these mass population movements was the invasion of Israel by those states in May 1948. As part of the war, the states treated their Jewish citizens as enemies and, in an attempt to get rid of them, made their lives miserable and impossible. Only two days after the establishment of the State of Israel the New York Times reported that 900,000 Jews were in great danger in Muslim lands.

Mr Schwartz claimed that this maltreatment was not entirely surprising, as the Arabs had threatened before the war to do just that. For instance, the Egyptian representative in the UN said in November 1947, during the discussion over the Partition Plan:Footnote ⁶⁷

Moreover, the Iraqi representative threatened that ‘[t]he masses in the Arab world cannot be restrained. The Arab-Jewish relationship in the Arab world will greatly deteriorate. Any injustice imposed upon the Arabs of Palestine will disturb the harmony among Jews and non-Jews in Iraq’.Footnote ⁶⁸

The day after the UN accepted the Partition Plan (30 November 1947), the Arab population and Arab governments started to harass the Jewish population. In parallel with war breaking out in Palestine, an anti-Jewish campaign started in Arab countries. Jewish quarters were attacked and Jews were killed and injured. Bombs were thrown into their synagogues and markets; Jews were sacked from their jobs; their assets were nationalised and bank accounts frozen; some were arrested, beaten and even tortured. All this was part of an orchestrated and planned action to harm the Jewish communities, which the Arab governments did not hide. Mr Schwartz noted that some of these Jews were not Zionists, especially not in any sense of political activity, and yet the Arab governments treated them as enemies. They were not seen as individuals, but as members of an ethnic group that was at war with the local population. Some, he added, were expelled, taken to seaports with only a suitcase in their hands, while others could not tolerate the atmosphere of intimidation and decided to flee.

Mr Schwartz then turned to discuss this issue in the context of peace negotiations. He said that when Israel had raised the issue of the Jewish refugees in past negotiations, Palestinians replied that it was not a bilateral issue but a multilateral issue, as Jewish refugeehood was not the fault of the Palestinians and therefore it did not directly concern them. He rejected this argument in terms of historical context, as the Jewish exodus happened because of the war – either during the war or immediately following it. The main reason for this exodus was that, by and large, the Arab world, including the Palestinian Arabs, rejected Jewish sovereignty in the land of Israel. Thus, the reason for war breaking out is the same reason why Jews were expelled from their countries. The Jews were not expelled because of internal issues, but because of the Partition Plan. These were not two separate events but part of the same war. Arab countries invaded Israel upon the request and invitation of Arab Palestinians, who were their co-belligerents. In fact, since 1946 Arab countries and the Arab Palestinians have collaborated by a decision of the Arab League to do everything possible to prevent partition. Hence, he concluded, Palestinians certainly have some responsibility for the Jewish exodus. Had they, together with the entire Arab world, accepted the Partition Plan and the notion of Jewish sovereignty, this exodus might not have happened – certainly not in the same way.

Moving to the North African group (from Morocco and Algeria, although not Libya, which has a different story), Mr Schwartz maintained that the exodus did not take place in 1948, but only when those countries were about to gain independence from France. In Algeria, where some 150,000 Jews lived, the community disappeared within a year on the eve of independence (1961). From Morocco, home to 200,000 Jews, they left in waves but mostly towards independence in 1956 (and again at the beginning of the 1960s when the ban on leaving the country was lifted).

Mr Schwartz turned to analyse the reasons for these phenomena, and pointed to the fear that was felt from the newly emerging Muslim states. The reasons reside in the pre-colonial era (until the beginning of the nineteenth century), when Jews lived in precarious conditions, endured legal and economic restrictions, and at times even suffered from physical violence. There was a religious and a legal basis in the Muslim faith and doctrine, as Jews are considered to be dhimmi – which means ‘protected persons’. They were allowed to remain and live in Muslim lands, but on condition that they accepted their inferiority. Additionally, they were obliged to pay a special tax, and suffered from many restrictions that differentiated them from Muslims. Mr Schwartz contended that this situation changed during the period of colonialism, when the French brought along the spirit of the French Revolution and ideas of equality, and Jews were partially emancipated and somewhat freed from dhimmi status. Jews began to leave their quarters and take government positions, a move regarded by the Muslim society as a disruption of the natural order by foreign interference, and was received with hostility and contempt. In Morocco, when the French were preparing to leave in the 1950s, Jews were afraid they would lose their rights and colonial protection. They knew that they would be relegated to second-class citizenship subject to discrimination, and would not be seen as part of the emerging nation. This led to their flight en masse.

Mr Schwartz summed up by noting that by the mid-1960s, the Middle East and North Africa were mostly devoid of Jews, and claimed that this can be used to refute the myth that there was harmony between Muslims and Jews before Zionism. He added that those who hold this position claimed that Jews were expelled because of Zionist activity, which disrupted the equilibrium. Yet, the situation of the Jews under Muslim rule was not harmonious, and the status quo that existed was in great disfavour with the Jews. In common with other instances of subjugation throughout history (such as slavery) the situation was peaceful for as long as Jews did not attempt to change the rules.

Mr Schwartz attempted to draw a wider observation, that Zionism did in fact change the rules, and this is what brought about Arab hostility to it. The conflict, he asserted, is not merely territorial, but also involves an Arab rejection of Jewish demands to be treated as equals. The inferiority of Jews in the eyes of the Muslim world throughout the ages helps in understanding the Arab resentment of Zionism. It is hard, he added, to accept equality and sovereignty by a people which were religiously, socially and ideologically treated as inferior. This, Mr Schwartz claimed, makes for a clear moral case in favour of Zionism, as the State of Israel is a haven and the only place for Jews who originated in Arab countries, where they are entitled to freedom and equal rights.

Mr Schwartz concluded with observations about the relationship between the issues of Jewish refugees and Palestinian refugees. He maintained that Palestinians define their case as an unprecedented and unique injustice against them, and regard themselves as the ultimate victims. However, a simultaneous mass exodus of Jews occurred, for which Palestinians were responsible, at least in part. In terms of ‘ethnic cleansing’, he noted that he could not identify a precedent for the departure of almost the entire Jewish community, even in places that showed extreme antisemitism, like Czarist Russia. Mr Schwartz noted that the absence of any but a handful of Jews today in Middle East Muslim countries is proof of their having been forcefully displaced. Lastly, Jews are an indigenous people in the Middle East. Jews from Middle Eastern and North African countries comprise about half of the present day population of the State of Israel and, as such, have the right of self-determination. When the Ottoman Empire collapsed and the Middle East was divided into new states, Jews had the right to claim their own independence, as they constituted about 1.5 per cent of the entire population in the region. By virtue of this, Israel can be regarded as the nation state of an indigenous people which has always been a part of the Middle East. Generally speaking, Zionism can be defined as a liberation movement of an indigenous local ethnic group, which brought a solution for the centuries-old plight and discrimination of Jews from Arab countries.

Re-examination of the Premises

Brigadier-General (Retired) Israela Oron, Geneva Initiative

Brigadier-General Oron presented a legal historical perspective of the current laws dealing with the Palestinian refugee issue. She contended that the main, although not the only reason that the Israeli government decided to involve the issue of the Jews who came from the Arab countries was for the sake of public opinion, in order to gain support from half of the Israeli population to a peace agreement. With that as the backdrop, she established her connection as one of the legal drafters of the first Israeli government's position on the refugee issue before the Camp David Accord; and during that process the issue of refugees was to address both Israeli and Palestinian refugees.

In all attempts to deal with the hugely tragic and long-running refugee crisis, as another participant had mentioned, there is a tendency to go into the compensation issue because of its technical nature. Brigadier-General Oron recollected that for many years the Palestinians refused to talk about compensation because they felt that this would constitute abandoning the right of return, which comes first. However, ideas have changed over the past few years, and the Palestinians are not only dealing with the issues, they are also prepared to talk about compensation: who compensates, what is compensated, and the value of property laws. Political reality is often more important than legal considerations.

Brigadier-General Oron was part of the Geneva Initiative and was also responsible for Chapter 7 of the Geneva Initiative, which states that the final resolution must be discussed before resolving the refugee issue.Footnote ⁷⁰ Thus the Palestinian state is a precondition to the refugee issue. The Geneva Initiative proposed resolving the issue primarily through compensation for property loss. For this there were two tracks: one fast; one regular. The Initiative also called for substantial international involvement in the search for a solution, its implementation and the resources needed. It also laid out five options for permanent residence for the refugees. Israel also was to absorb a small number of refugees. There would be massive development projects throughout the country. Afterwards, the responsibility of UNRWA would be transferred to the state.

However, Brigadier-General Oron asserted that these recommendations would not work because of the political environment. First, the possibility of there being any Palestinian state or any final status in the near future is very slim. Unfortunately, there is a growing refugee population which is causing political issues all over the world. There are also ongoing instabilities in our area, including in Syria, Iraq, Afghanistan and Iran. The demographics of Jordan, Lebanon, Turkey and Europe are all changing. These should be a cause for concern for many countries. Furthermore, there is a growing sense of the ‘Trump effect’, which probably preceded the election of President Trump – namely the hostile attitude towards immigrants and immigration, which can be witnessed in the events of Brexit and the US elections.

Brigadier-General Oron presented suggestions for resolving the refugee issue, which may facilitate a final status. She suggested treating the refugee problem separately from the establishment of the Palestinian state. We must focus first on refugees in Palestine and Jordan, which number some four and a half million, instead of all the refugees.

The plan proposed by the Geneva Initiative consists of the following:

• • Compensation for refugees for loss of property will be the responsibility of Israel.

• • The governments of Palestine and Jordan will take responsibility for refugees after payment of compensation.

• • The government will receive funds for rehabilitation.

• • The Palestinian government will resettle refugees in Area C in the West Bank. Refugees who move to the West Bank will become citizens and lose refugee status even though there is no state.

• • Funding will be mainly by Arab countries (Gulf) and by the international community.

She then described why the plan is not likely to work:

• • The Palestinian refugee issue is the main Palestinian asset in negotiations with Israel.

• • The Palestinians are not likely to abandon the narrative of the right of return (although the proposal does not require it to be abandoned).

• • Hamas and extreme Jihadists will object to the plan.

• • Israel does not wish to compensate without an end of claims agreement.

• • Lastly, the current political atmosphere of Israel is not likely to bring about this type of peace talks.

She concluded by emphasising that traditional concepts might no longer be workable, and that the linkage between a Palestinian state and the refugee issue is understandable.

Rights in Israel: 10 Years for the Arab Future Vision Documents: The Question of Bi-nationalism

Advocate Hassan Jabareen, General Director, Adalah – The Legal Center for Arab Minority

Advocate Jabareen spoke about the Arab future vision documents. Ten years ago, Palestinian citizens of Israel – academics, community leaders and activists – and human rights/civil society organisations published a set of ‘vision documents’. These documents are important because they show the views of Palestinian civil society towards a shared future in Israel for Arab and Jewish citizens of the state.Footnote ⁷¹

The three documents were published between 2006 and 2007 by Arab human rights organisations, Arab mayors, and Arab research centres with the participation of social, political and cultural academics, community leaders and activists. The Arab political leaders did not participate in the drafting of the documents but representatives of the political parties were present and contributed to the debates. The goal was to articulate what Arab civil society wanted, how it viewed the relationship between Israel and its leaders, as well as its concerns and rights. At the time of the conceptualisation and publication of the documents, the Knesset was holding hearings on drafting a written Constitution for Israel. Different groups, especially Jewish-Israeli groups, became active in this process of constitution making. Palestinian citizens of Israel did not see themselves as part of this process. They refused to take part in it even though they saw themselves as citizens of Israel, because they also view themselves as a national minority, and they were afforded no special status in this process. There was also a fear that the constitution-making process would emphasise the ‘Jewishness’ of the state; that it would end without deciding upon the borders of Israel; and that if Palestinians were to participate in the process they would indirectly give legitimacy to both of these problematic issues.

Despite the various terminologies, what the documents had in common was that they set out anti-discrimination principles, group rights for the Arab minority in Israel, and self-identification as a Palestinian Arab ‘homeland minority’. They demanded not only group rights and cultural recognition, but also acknowledgement of the historical injustice against them. In this respect, they linked themselves to the Palestinian refugees, as around 25 per cent of Palestinians in Israel are ‘internally displaced’. Many of the issues faced by the Palestinian refugees are similar to those faced by Palestinian citizens of Israel, and are part of the historical injustice faced by the Palestinians in general. This link between Palestinians – in Israel, in the Occupied Palestinian Territory, and the refugees in the diaspora – also brings about the question of the right of return. Part of recognising the historical injustice is to resolve the questions of full and equal rights for citizens, to end the occupation, and the right of return.

One of the most important aspects of these documents is that they recognise the right of self-determination for Israeli Jews. This step marked the first occasion on which Palestinian Arab citizens of Israel, civil society leaders and activists recognised the right of self-determination of Israeli Jews in Palestine.

The responses to the documents were rather negative from some groups. Among the Arab population in Israel generally there was serious debate as to their legitimacy and who authorised their preparation. Advocate Jabareen believes that the problems arose mainly because the documents emphasised aspects of secularism, which many groups, including the Islamic Movement in Israel, preferred to settle within Palestinian society. Among the Jewish Israeli public, the documents were attacked primarily because they negated Israel as a Jewish state, called for rescinding the Law of Return, and demanded recognition of the Palestinian right of return. They are based on a bi-national ideal: that Israel should be a bilingual and multicultural society, and recognise the Israeli Palestinians as a homeland minority group with corresponding rights, in accordance with international law.

Ten years later, Advocate Jabareen reviewed the documents and the critique. In addition to the above, the documents were criticised also for being irrelevant to Israeli Palestinians because they are based on the concept of a two-state solution. How could the documents claim both that the Palestinians are a part of the ‘homeland minority’ of Israel and demand the right of return at the same time? Second, there was no mention of the minority rights of Israeli Jews as, under this future vision, the Palestinians will be the majority. There was also objection to emphasising group rights when it is not known what the future holds. Maybe Palestinians will constitute the majority, and group rights should be guaranteed for Israeli Jews.

Advocate Jabareen asserted that there is a need for collaborative work between all Palestinians, in Israel and the West Bank and Gaza, and with refugees elsewhere. They need a new vision. The Nakba is now becoming the main factor in a shared political discourse of Palestinians. First it was the right of return, then the two-state solution. Bringing back the Nakba is to bring the Palestinian people back as a collective.

Advocate Jabareen suggested emphasising self-determination. There is agreement among the Palestinian people that Israeli Jews have a right to self-determination in Palestine. Hamas did not object to the principle, but the question is whether it is an appropriate time to recognise it when there is no reciprocal recognition by Israel. Other Islamist organisations have argued the same. This is similar to the critique by Edward Said: that the Palestinians gave up their last card in the game.

One of the obstacles faced by the Palestinian Authority is that it cannot mobilise the population to support a two-state solution. When they acquired de facto recognition of a Palestinian state by the UN General Assembly in 2012,Footnote ⁷² the Palestinian population did not see it as a cause for celebration. However, two years earlier, when President Mahmoud Abbas spoke about the Nakba, the Palestinian public regarded him as a hero.

It is necessary, therefore, to speak about rights before discussing the partition of Palestine. To speak of self-determination for the Palestinian people is to speak about living in equality and dignity and recognising historical injustice in Palestine. Partition should be put off until later. To the critique that he is running ahead of himself, Jabareen answered that this is because of the lack of consensus on partition. The debate should be on self-determination and what it means for rights. The discussion should be premised on civil and political rights for all.

Advocate Jabareen concluded that perhaps a lesson from these documents is the need to find common points of departure – in this case, the self determination of Israeli Jews and Palestinians and the concept of rights. The second stage would then be to talk about partition. Since all of the debates have been constrained by the question of partitioning, there are inevitable conflicts within the documents. The proposal is for the concept of self-determination to take the lead while ensuring civic and political rights for Israeli Jews and Palestinians, not only collectively but also for individuals. The partitioning of the territory should be addressed at a later stage.

The Claim for Justice and the Truth Commission for the 1948 Refugees

Dr Daphna Shraga

Dr Shraga proposed the establishment of a historical truth commission for the 1948 refugees. She began with two general remarks on the Palestinian ‘claim for justice’ and the theory of ‘barriers to peace’. The Palestinian claim for justice, first put forward in Oslo in 1993, demanded that Israel acknowledges its responsibility, both moral and legal, for the plight of the Palestinian refugees, and offers redress ranging from apology to restitution, compensation and, above all, recognition of the right of return. This claim, flatly rejected by Israel in Oslo in 1993, was put forward again in subsequent meetings at Camp David (2000) and Annapolis (2007–08). By then Israel was willing to offer some expression of regret, ‘recognition of suffering’ or ‘acknowledgement of pain’, but not an apology or any assumption of responsibility. What for Israel was the maximum that it was willing to offer was not even the minimum that the Palestinians were hoping for or willing to accept.

Dr Shraga then commented on Professor Bar-Siman-Tov's theory of ‘justice as a barrier to peace’.Footnote ⁷³ According to this theory, where justice is a barrier to peace and the gap between the parties cannot be bridged, the parties should attempt to delink the claim for justice from the peace process, strive to reach a peace agreement first, and agree to deal with the claim for justice at a later reconciliation stage. In the Israeli Palestinian context, Bar-Siman-Tov argued, the Palestinian claim for justice had plagued the two-decade negotiating process and brought it to a halt. To remove the barrier to peace and, at the same time, ensure that the claim for justice is dealt with at the reconciliation phase, the parties would have to agree in the peace agreement to postpone the resolution of the claim for justice until after its conclusion.

Dr Shraga criticised this proposal on several grounds. First, there is little to suggest that the Palestinians would be willing to defer consideration of their claim for justice until after the conclusion of the peace agreement. Second, if the claim for justice is truly a barrier to peace, then it cannot simply be removed; for it to be removed it has first to be resolved. Third, in an atmosphere of mutual distrust, and given the history of broken promises, the likelihood that the Palestinians would agree to defer the resolution of their claim for justice on the basis of a promise is small. In her view, dealing with the claim for justice should not necessarily be linked to the peace process; it should rather precede it. Dr Shraga's critique of the theory of justice as a barrier to peace brought her to recommend that a historical truth (and reconciliation) commission be established ahead of the negotiating process, focusing on the problem of the 1948 refugees in all its aspects.

The historical truth commission, provisionally titled ‘the 1948 Commission’, would investigate the events of 1948, the War of Independence for the Jews, and the Nakba for the Palestinians. It would deal with the Palestinian claim for justice ahead of the negotiations and in an atmosphere free from political pressure, so that by the time the peace process resumes and the claim arises again, the negotiators, both Israelis and Palestinians, would have the benefit of an objective factual report. Informed by the conclusions of the Commission, the parties would negotiate on the basis of knowledge of the facts of the 1948 events, and not, as has hitherto been the case, on the basis of ignorance. The Commission's well-researched report and conclusions would provide a basis for reconsideration of Israel's role in the plight of the Palestinian refugees, and of its readiness to offer an apology or other expressions of regret. Dr Shraga said that the establishment of the 1948 Commission to unveil the truth about the 1948 events may at this point be an imaginary scenario (for all the reasons that had been elaborated by Brigadier-General (Retired) Oron), but within this imaginary scenario, the proposal hopes to tackle some real challenges.

The main characteristic of the 1948 Commission and its greatest challenge is the absence of a formal legal basis for its establishment. Unlike most truth and reconciliation commissions established by law or agreement, the 1948 Commission would be established outside any legal framework. The Commission would have to rely on its perceived legitimacy as it cuts across all aspects of the Commission, from the moment of its establishment, throughout its operation, until the submission of its report.

The establishment of the Commission should be preceded by a broad-based consultation process, a necessary preliminary step, according to the toolkit on National Consultation on Transitional Justice (2009) of the UN Office of the High Commissioner for Human Rights.Footnote ⁷⁴ The process of consultation should be led by an NGO coalition with the purpose of informing the two societies of the proposed Commission and seeking their views on the propriety of the Commission, its mandate, composition and expected outcome. It is on the basis of the views and expectations expressed by the public that the Commission would be designed. It was, in fact, largely on the basis of a two-year consultation process that the Truth and Reconciliation Commissions in South Africa and Sierra Leone were designed.

Dr Shraga then set out the mandate of the proposed Commission, its subject matter, temporal and personal jurisdiction. The mandate would be to investigate the ‘events of 1948’, which are broader than the plight of Palestinian refugees and would include some constituent events, such as the Dir Yassin massacre. The temporal jurisdiction of the Commission would begin in 1947 and continue until some time in the 1950s. The term ‘1948’ is therefore conceived not necessarily as an indication of the year, but as a symbol for the 1948 events.

As for the personal jurisdiction, Dr Shraga recommended a broader understanding of the term ‘refugees’ to include not only the Palestinian refugees, but also the internally displaced ‘absentees’ and Jewish refugees from Arab countries. The inclusion of Jewish refugees as part of the broadly conceived mandate of the 1948 events will reflect even-handedness in dealing with the events of 1948, and enhance the legitimacy of the Commission in the eyes of the Jewish society.

To convey legitimacy, the composition of the Commission must be balanced and representative of the many segments of both societies. It should be gender balanced, and include both Arabs and Jews, former judges and politicians, historians and religious figures. Premised on the assumption that, in the circumstances now prevailing, there is little likelihood that the 1948 Commission would be established by the government, it is envisaged that it would be established by civil society with wide support from public institutions – academia, the Office of the President and the NGO community, including, in particular, Jewish and Palestinian refugee organisations.

The process of collecting evidence and hearing testimonies – another important element in the build-up of the legitimacy of the Commission – should be transparent. With the passage of time there would be fewer living testimonies of both Palestinian and Jewish refugees and combatants. Increasingly, therefore, the Commission would have to resort to written documents, evidentiary material and testimonies provided by historians and political scientists.

Dr Shraga noted that in recent years the Nakba has emerged as a legitimate subject of discussion. The academic debate has spilled over to the press, the cultural space, the plastic arts and the fringe theatre. While it has not yet trickled down to society at large, there is nonetheless a sense of awakened interest.

Dr Shraga concluded by saying that managing the expectations of both Jewish and Palestinian communities would be one of the many challenges facing the Commission. In setting out its purposes, it would have to be made clear that the Commission is not mandated to recommend practical solutions for the Palestinian refugee problem (that would be a matter for the negotiating peace process); nor would it be expected to create an agreed narrative or even create a ‘historical truth’, but to give a platform for both narratives, recognise their legitimacy and, in so doing, narrow, however slightly, the narrative gap.