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Peace and the ‘Right of Return’

Israeli Prime Minister Netanyahu will be speaking to Congress next week. He should reaffirm that further progress toward peace depends on Palestinian recognition that the Jewish people, no less than the Palestinians, have a right to national independence in a state of their own.

by
Peter Berkowitz

Bio

May 19, 2011 - 5:01 pm

On May 24, at Speaker of the House John Boehner’s invitation, Israeli Prime Minister Benjamin Netanyahu will address a joint session of Congress. With the demand for change sweeping the Middle East, the UN General Assembly threatening to declare a Palestinian state in September, and President Obama in his speech from the State Department earlier today having reaffirmed his determination to see negotiations move forward, it will be incumbent on Netanyahu to restate the principles for a just and lasting peace between Israel and the Palestinians.

Among those principles will be recognition by Palestinians of Israel as the nation-state of the Jewish people. Contrary to international public opinion and Obama administration rhetoric and policy, Palestinian refusal to do so remains the heart of the conflict.

Since the collapse in July 2000 of the Camp David talks between Israeli Prime Minister Ehud Barak and Palestinian Authority president Yasser Arafat, it has been widely assumed that the parties agree on major principles:

  • A Palestinian state should be established with borders that for the most part track the 1967 lines but which accommodate Israel’s needs for security.
  • Israel and Palestine should share Jerusalem as their capitals.
  • A reasonable number of Palestinian refugees should be allowed to take up residence in Israel.

Meanwhile, President Obama’s demand in 2009 that Israel cease construction beyond the Green Line became, for the first time, a Palestinian precondition for negotiations, and directly led to a breakdown in talks between the two sides. It also reinforced the opinion common in Europe and progressive circles in the U.S. — and Israel — that but for Israeli intransigence, the two sides could achieve peace.

Thanks to “The Palestine Papers and the Right of Return,” a study recently released by Christians for Fair Witness on the Middle East, we know that what has been widely assumed is wrong. The study (available online as a PDF file) carefully analyzes the leaked Palestine Papers — more than 1600 internal Palestinian documents published online in January by Al Jazeera dealing with the last decade of negotiations. While Israel’s settlement policy is certainly open to criticism, and most of what is supposedly agreed upon remains contentious, the Palestine Papers show that the biggest stumbling block is fundamental disagreement about refugees.

And contrary to initial reports in the Guardian, the Palestine Papers do not reveal conciliatory Palestinians pitted against inflexible Israelis. For example, whereas Israel is prepared to welcome a small symbolic number of refugees, the PA seeks to preserve an unlimited flow that would, by sheer numbers and deliberate intention, end Israel by turning it into an Arab-majority state.

The refugee question is inseparable from a neglected aberration in international law. For all peoples but one, international law defines a refugee as a person forced to live outside the country of his origin. For Palestinians alone, international law treats refugee status as passed down from parents to children. Consequently, while between 500,000 and 710,000 Palestinians fled Israel in 1948 when five Arab armies invaded the newly-declared Jewish state, international law today recognizes approximately seven million Palestinian refugees.

As the “The Palestine Papers and the Right of Return” documents (pp. 7-9), for the last ten years Palestinian negotiators — led since 2004 by PA President Mahmoud Abbas and chief negotiator Saeb Erekat (who resigned after it was determined that the documents published by Al Jazeera were leaked from his office) — sought a formula that guarantees an individual right of return to the state of Israel inhering in each of the seven million Palestinians on whom international law confers refugee status. The vast majority never lived in Israel.

The commitment to an unlimited right of return compels Palestinians to reject recognition of Israel as the nation-state of the Jewish people. A Nov. 16, 2007 memo warns that acknowledging Israel’s Jewish character would be seen, both in Israel and internationally, as “an implicit waiver of the right of return.” Accordingly, in a May 3, 2009 memo , Erekat is advised to refrain from recognizing “Israel as the state of the Jewish people” and instead instructed to use the noncommittal formulation, “two states living side by side in peace.”

President Abbas has refused to specify the number of refugees that he anticipates would choose to exercise a right to return to Israel. Instead, he has proffered vague statements that in principle would set no limit on the inflow of refugees.

In keeping with this policy, the PA commissioned a demographic study, discussed in a July 28, 2008 memo, that contemplates scenarios under which 500,000 to 2,000,000 Palestinian refugees would arrive in Israel over the course of fifteen years. The memo gives no suggestion that after fifteen years the inflow would end.

The abundant evidence of the Palestine Papers indicates that President Obama has been wrong: freezing construction beyond the 1967 borders, whatever one thinks of Israel’s settlement policy, is not the key to reinvigorating peace negotiations. The question of refugees, moreover, is much more than, as the president described it in his State Department speech, a “wrenching” issue. Palestinian dedication to a right, with no precedent under international law, inhering in seven million Palestinians to establish residence in the state of Israel has been and remains the overriding obstacle to a secure and lasting peace.

And Prime Minister Netanyahu, who in his landmark June 14, 2009 Bar Ilan speech reaffirmed Israel’s recognition of the justice and necessity of the creation of a Palestinian state, has been correct. He should reaffirm before Congress on May 24 that further progress toward peace depends above all on Palestinian recognition that the Jewish people, no less than the Palestinian people, have a right to national independence in a state of their own.

Peter Berkowitz is the Tad and Dianne Taube Senior Fellow at the Hoover Institution, Stanford University, where he chairs the Koret-Taube Task Force on National Security and Law.
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