OXFORD STUDY CHALLENGES ISRAEL'S CLAIMS CONCERNING PALESTINIAN REFUGEES
By Miko Peled, Mintpress News.
October 26, 2020 | EDUCATE!
Above photo: Palestinian refugees carry their belongings as they flee across
the wrecked Allenby Bridge over the Jordan River from the Israeli-occupied
section of Jordan, June 22, 1967. Bernard Frye | AP.
A Historical Reckoning.
Pro-Israel institutions and spokespeople like to claim that the Palestinian
refugee issue has passed some imaginary statute of limitations, but as a
comprehensive new Oxford study shows, it "has since become even stronger."
There needs to be a fundamental change in the way Palestinian refugees are
seen, no longer as victims but as people with rights who are entitled to
shape their own destiny. This assertion is made in a new study whose
importance cannot be overstated.
According to international law, Palestinian refugees have a right to return
to their homes and land and receive restitution and compensation for their
suffering and personal and communal losses. Furthermore, the State of
Israel, which is responsible for Palestine's ethnic cleansing, must pay for
the repatriation, the rehabilitation, and the rebuilding that the return
will necessitate. A thorough understanding of why millions of Palestinians
live as refugees and what international law says about their situation is
critical, and a recently published study sheds unprecedented light on the
Palestinian refugee issue.
"Palestinian Refugees in International Law" (2nd Edition), by Francesca P.
Albanese and Lex Takkenberg, was published in May 2020 by Oxford University
Press. It is a comprehensive body of work on the Palestinian refugee issue,
and its importance cannot be overstated. This study sets the record straight
on what caused the refugee crisis, provides vital statistics and fills in
crucial pieces of information regarding what international law says
regarding Palestinian refugees.
The study states at the outset that, "At the time of publication, the
unresolved exile of Palestinian refugees has entered its eighth decade."
Some refugees are third or even fourth generation, and they account for "the
largest group of refugees globally." Furthermore, it says, "theirs is the
most protracted refugee situation in modern history."
Background
The original mass ethnic cleansing campaign of Palestinians by Zionist
forces took place from 1947 to 1949. Although ethnic cleansing and internal
displacement of Palestinians by Israel continued well into the 1950s, and in
fact, continues to the present day, the ethnic cleansing campaign of
1947-1949 is what brought about the destruction of Palestine as it had been
known for centuries. That campaign was responsible for the emergence of what
the study calls "one of the largest and most protracted refugee crises of
all times." The majority of these refugees and their descendants, third and
even fourth generation, are registered as 'Palestine refugees' with UNRWA
and are commonly referred to as 1948 refugees.
The Palestinians who were exiled from the West Bank, East Jerusalem, and the
Gaza Strip in 1967 are commonly referred to as "displaced persons" or "1967
refugees." Their fate and status under international law are similar to that
of the 1948 refugees. Still, different terminology is used regarding them
because of the status of the land from which they were displaced - the
Kingdom of Jordan, which at that point was an independent state. Each year,
the United Nations General Assembly passes a separate annual resolution
focusing specifically on them.
Refugee Rights
Suffering a violent assault on their lives and property and suddenly
deprived of protection by the government of Mandate Palestine of which they
were citizens, Palestinians became stateless refugees. They were admitted
into neighboring countries on what many expected would be a temporary basis.
However, one could argue, as I do, that this expectation stemmed from a
serious misunderstanding of the objectives and influence of the Zionist
movement.
"For historical and political reasons Palestinian refugees enjoy a
distinctive regime made up of specific norms and institutional arrangements
different from those for other refugees." This reality has affected the
protection Palestinians deserve as refugees and often leaves them "excluded
from the rights and standards of treatment afforded to other refugees." In
other words, Palestinian refugees are internationally recognized yet subject
to a distinctive institutional regime compared to other refugees around the
world. The distinction stems from special arrangements the UN had to make
for them in 1948, seeing that the newly established Zionist state would not
allow them to return.
One of the common mistakes people make regarding Palestinian refugees'
rights is the belief that securing rights in their host countries, including
citizenship, will somehow undermine their claims towards Israel. This
belief, according to this study, "must be put to rest." In fact, the study
goes on to state that for the rights of Palestinian refugees to be realized,
the Palestinian community needs to make a paradigm shift, and international
and regional diplomacy needs to provide a level of support "that has
hitherto been largely lacking."
Furthermore, the physical and political fragmentation that has befallen the
Palestinian people and the diversity of legal frameworks and actors
responsible for them have become features of their experience and
misfortune. There needs to be a fundamental change in the way Palestinian
refugees are seen, "not the victims of a failed political process, but as
people with rights, entitled to shape their own destiny."
Identity And Numbers
"Today, out of over thirteen million Palestinians globally, about eight
million are refugees." 5.5 million are registered as 'Palestine refugees'
with the United Nations Relief and Works Agency or (UNRWA) in Jordan,
Lebanon, Syria, the Gaza Strip, and the West Bank.
The study estimates that some 1.5 million Palestinians are currently
dispersed outside Arab countries, and their status and documentation make
them statistically invisible and, therefore, difficult to track. As a result
of their dispersal, Palestinian refugees' identity is often hyphenated:
Palestinian-Jordanian, Palestinian-Syrian, Palestinian-American,
Palestinian-Iraqi, etc. It should be noted that for most Palestinians,
long-term residence in host countries has not resulted in the protection
afforded through citizenship.
Another little known fact revealed repealed in this study is that since the
late 1960s, more than 700,000 Palestinian refugees have been ejected from
Arab countries, creating enormous challenges, including the need to seek
asylum again in another country. What is worse is that the UN General
Assembly did not confer a mandate to care for them. They are not included as
a registered refugee population by UNRWA and do not receive comprehensive
assistance from the agency.
A Demographic Issue
What has become known as the "demographic issue" is code for a Zionist
obsession to establish a Jewish majority in Palestine - a territory that
until then 1948 had a large Arab majority. This has been a pressing issue
for Zionist leadership since the early years of the British Mandate. Still,
despite British support for the Jewish national project and the waves of
Jewish migration to Palestine since the late nineteenth century, at the end
of 1947, Palestine's Jewish population was only one-third of the total
population of Palestine.
Britain facilitated Jewish migration to Palestine and turned hundreds of
thousands of Jewish migrants from Europe into Palestine Mandate citizens.
"The Citizenship Order of August 1, 1925, extended full citizenship rights
to all Turkish (Ottoman) subjects habitually resident in Palestine." This
included the original 729,873 Ottoman citizens of Palestine, of whom the
vast majority were Palestinian Arabs.
By 1946, the population of Palestine was estimated at 1,846,000. This
included 1,203,000 Palestinian Arabs and 608,000 Jews. In the 30 years of
British control over Palestine, the Jewish population grew over 30 percent
compared to an average of 10 percent growth during the final 20 years of the
Ottoman Empire, a time period already marked by increased Jewish
immigration.
The idea of forcing the Arab Palestinians out of Palestine through expulsion
and transfer had become ingrained in the Zionist leadership mindset very
early on. As early as the 1930s, the Jewish Agency had established a
Population Transfer Committee which devised schemes to remove the
Palestinian population "by securing land for them in neighboring states, or
by having Britain remove them." During 1948, several Transfer Committees
were set up by the Jewish Agency, and later the Israeli government to
"facilitate the exodus."
By the time the armistice agreements were signed in 1949 between the new
State of Israel and its Arab neighbors, only 15 percent of Palestine's
pre-1948 Arab population remained in the area that would become Israel.
Criminalizing Return And Confiscating Property
The State of Israel declared independence on May 14, 1948. By June of that
year, the Israeli government had decided to bar refugees from returning. In
1952, Israel passed the Nationality Law, which effectively excluded over
two-thirds of Palestinian Arab citizens from retaining citizenship in
British Mandate Palestine, a land that was still their own country.
In 1954, Israel passed the 'The Prevention of Infiltration Law,' which
effectively criminalized the return of Palestinian refugees. Soldiers who
saw "infiltrators," a term used to describe any Palestinian attempting to
return to their home or lands, were authorized to shoot them on sight. Those
who were caught and not killed on the spot were imprisoned and expelled
again.
This was not merely motivated by Zionist cruelty but also by greed.
The wealth that Palestinians left behind "was strategic to the emerging
State of Israel." Palestinians left behind huge tracts of farmland, tools,
livestock, shops, factories, houses of worship, private homes, financial
assets, and personal belongings. Produce from fields and orchards was also
left behind, with large citrus fruit stores waiting to be exported for hard
currency.
Moveable property was sold by Israeli authorities. The government even
leased abandoned stone quarries and sold cactus fruit from abandoned fields.
"Beyond this monetary gain, control of the refugees' property allowed Israel
and the Jewish Agency to cheaply settle hundreds of thousands of Jewish
immigrants who began pouring into Israel after 1948."
"The gap between such properties and their original owners/holders was
further widened by the transfer, through 'purchase agreements,' to the
Israeli Development Authority, and subsequently to the Jewish National Fund,
for administration." These Zionist institutions made it impossible for
properties - both movable and immovable - of Palestinian refugees and
internally displaced Palestinians to be restored to their rightful, legal
owners.
In addition to severing the links between the land and its original owners,
Israel transformed the territory to benefit its own economic growth. "By
1950, the Custodian had become the largest landlord in Israel." It had
acquired the legal authority to allocate Palestinian property to incoming
Jewish immigrants.
In the 1950s, Absentee Property Laws consolidated the seizure of absentee
properties and their transfer to the State of Israel for exclusive benefit
of the Jewish population. Absentee property played a huge role in turning
Israel into a viable state. It allowed Israel to take over farms and urban
homes of Palestinians and populate them with Jewish newcomers from Europe
and Arab countries. Jewish kibbutzim and agricultural settlements began the
process of expropriating the land of both refugees and that of the
Palestinians who remained in what became Israel. Palestinians who remained
had no choice but to work for the same Israeli owners who had stolen their
land.
These enormous tracts of good, arable land were now held by the state and
were used by Jewish settlements and individual farmers to grow crops and
vegetables. Vacant Arab homes were used to accommodate immigrants. With
time, emptied Palestinian villages were either transformed or destroyed.
Some were turned into parks and forests; others were used for cultivation
and development. "All these measures steadily rendered the possibility of a
return of the refugees ever more remote."
Israel and Zionist spokespeople worldwide like to claim that the Jews came
to an empty, barren land and made it bloom. This study makes it clear that
they came to an already prosperous country and stole its riches.
The Report Of The UN Mediator For Palestine
One would be remiss to discuss Palestinian refugees without mentioning the
contributions and indeed sacrifice of the UN Mediator to Palestine, Count
Folke Bernadotte. Bernadotte was a Swedish diplomat, who after successfully
negotiating the rescue of some twenty thousand prisoners from Nazi
concentration camps (more than half of whom were Jewish), was asked to take
on the role of Mediator for Palestine. He visited the country several times
and presented several reports.
Count Bernadotte presented his first report regarding the refugees to the
United Nations on September 16, 1948. The report describes his efforts to
obtain an agreement from the Provisional Government of Israel for a phased
return of refugees. This study clearly states that "attempts at finding a
diplomatic solution were unsuccessful because of the firm stance of the
Provisional Government of Israel against the return of the refugees."
Bernadotte's report underscored that:
The right of innocent people, uprooted from their homes by the present
terror and ravages of war, to return to their homes, should be affirmed and
made effective, with assurance of adequate compensation for the property of
those who may choose not to return."
The Palestinian refugees 'right' to return and to be adequately compensated
is recurrent in his report, notwithstanding the views expressed by the
Provisional Government of Israel. The right of return was considered by
Bernadotte to be among the most basic premises for the settlement of the
conflict. The following passage of his report still resonates today:
No settlement can be just and complete if recognition is not accorded to the
right of the Arab refugee to return to the home from which he has been
dislodged . It would be an offence against the principles of elemental
justice if these innocent victims of the conflict were denied the right to
return to their homes while Jewish immigrants flow into Palestine, and,
indeed, at least offer the threat of permanent replacement of the Arab
refugees."
The Mediator not only stressed the right of the refugees to return but also
made clear that those rights be affirmed rather than established. This
reflected the prevailing consensus regarding the norms of international law
when dealing with refugees.
Bernadotte also made it clear that,
The right of the Arab refugees to return to their homes in Jewish-controlled
territory at the earliest possible date should be affirmed by the United
Nations, and their repatriation, resettlement and economic and social
rehabilitation, and payment of adequate compensation for the property of
those choosing not to return, should be supervised and assisted by the
United Nations."
Bernadotte's advocacy for the Palestinian refugees and his claim that
Jerusalem - by then occupied and subjected to a thorough ethnic cleansing
campaign - should come under international control and not Zionist control
could not be tolerated by the Zionist government in Palestine. On September
17, 1948, one day after he submitted his progress report, Folke Bernadotte
was assassinated in a terrorist attack by members of a Zionist militia.
The terrorists acted on an order to get rid of Bernadotte, and although it
was later claimed that the assassins were part of a fringe extremist group
and that the central provisional Zionist government formally condemned the
assassination, there is little doubt that the entire Zionist established was
complicit in Bernadotte's murder.
Although the assassins were well known and had even given interviews, none
were ever brought to justice. One of the people known to have been directly
involved in the assassination was Yitzhak Shamir, though he was not a part
of the terrorist squad that committed the murder. Shamir went on to serve in
many important Israeli government posts, including Prime Minister.
Resolution 194
The UN General Assembly accepted Bernadotte's recommendations when it
adopted Resolution 194, and as a result of his death, established the United
Nations Conciliation Commission for Palestine (UNCCP), which took over the
main functions of the Mediator. Concerning refugees, the resolution states
that the General Assembly:
Resolves that the refugees wishing to return to their homes and live at
peace with their neighbors should be permitted to do so at the earliest
practicable date, and that compensation should be paid for the property of
those choosing not to return and for loss of or damage to property which,
under principles of international law or in equity, should be made good by
the Governments or authorities responsible;
Following Israel's refusal to comply with the Mediator's request to allow
refugees to return to their homes, in paragraph 11, the General Assembly
stressed that it,
Instructs the Conciliation Commission to facilitate the repatriation,
resettlement and economic and social rehabilitation of the refugees and the
payment of compensation, and to maintain close relations with the Director
of the United Nations Relief for Palestine Refugees and, through him, with
the appropriate organs and agencies of the United Nations.
The work of the United Nations Conciliation Commission for Palestine (UNCCP)
was completed in 1964. According to this study, records in the Commission's
archives reveal that it determined the worth of the Palestinian refugees'
privately owned land was 204,660,250 British Palestine pounds, equivalent to
$9.6 billion U.S. dollars in 2019.
The study also states that the Commission's estimates are considered to be
"incomplete and conservative," yet are the most methodologically accurate
ones made to date. "Beyond land losses, a compensation regime should also
consider movable property losses, disturbance allowance (representing the
loss of income until a refugee could re-establish himself/herself),
ex-gratia payment representing a general compensation for hardship, and
reintegration costs."
In August of 1961, at the U.S. government's suggestion, the Commission
appointed Dr. Joseph E. Johnson as a special representative. Johnson's
overall estimate of the amount owed to Palestinian refugees for compensation
was $1.377 billion U.S. dollars in 1962. This is equivalent to $22.975
billion in 2019. All of this is for the refugees of 1948 only.
Resolution 194 is one of the most widely reaffirmed resolutions in UN
history. This study states that "resolutions that have been reaffirmed
hundreds of times not only confirm long-established international consensus
but they acquire a legal character." Resolution 194 has been repeatedly
reaffirmed over the years, and it has even served as a precedent in
international responses to other refugee crises.
Military Order 58
In the aftermath of the 1967 Israeli assault and conquest of Arab lands, and
immediately after it seized the West Bank, the Israeli army issued Military
Order 58. It authorizes the seizure of any property held by West Bank
residents who were outside the area on June 7, 1967, and that of those who
subsequently left. "Military Order 58 replicates the Absentees' Property Law
of 1950 for the 1967 territories, applying it to territory that Israel
supposedly "merely occupies and over which it has no sovereignty."
According to this study, Military Order 58 "has a broader scope than the
Absentees' Property Law," in that it allowed Israel to take control over
property that had been held by Jordan since 1948 and placed it under the
control of the Custodian's authority of Israel. Furthermore, it has no time
restrictions, covers any Palestinian who leaves the West Bank, and remains
in force to this day.
International Law
The British government initially made two conflicting promises regarding
Palestine, one to the indigenous Palestinian Arabs and the other to the
immigrant-colonizer Jewish community. However, the British government's
actions made it clear that Britain favored the creation of what became known
as a Jewish state - or more accurately, a Zionist state - in Palestine. As a
side note, it is worth mentioning that the local Orthodox Jewish community
residing in Palestine at the time vehemently opposed the Zionists and the
creation of a Zionist state. They made their opposition known to the
British, the United Nations, and the local Palestinian Arab leadership, with
whom they had excellent relations.
British support for Zionist claims to Palestine allowed the all-out military
assault by Zionist militias against the indigenous Palestinian community.
This ultimately led to the creation of an independent Zionist state and the
subjugation, dispossession, exile, and statelessness of indigenous
Palestinian Arabs. It also brought about measures preventing the return of
the Palestinians forcibly displaced while actively promoting Jewish
immigration under the guise of return. As a result of this, there is
currently an unresolved refugee crisis "that has evolved into the largest
and most protracted in modern history."
A crucial point that must be recognized is that the rights of Palestinian
refugees to return, restitution, and compensation, were already enshrined in
international law in 1948. The UN General Assembly reaffirmed these rights
in resolution 194.
In 1948, the refugees already had the right to return to their homes.
Instead, 750,000 refugees were denationalized en masse, prevented from
returning to their houses, and forced into a seemingly endless exile. In
other words, Israel had already violated its obligations under international
humanitarian law and the law of state responsibility in 1948.
Since then, the policies and practices of successive Israeli governments
continue to prevent the return and self-determination of Palestinian people.
Israel denies Palestinian refugees the right to return, restitution, and
compensation, and Israeli leaders even continue to deny the very existence
of a Palestinian people. Israel justifies its actions by challenging the
foundation of its obligations and that of the rights of Palestinians, and
the international community has been weak and unwilling to intervene.
The practice that has evolved since the Second World War affirms that
individual and collective claims of refugees are not mutually exclusive but
rather reinforce each other. In fact, these are challenges found in other
cases of mass displacement, serious human rights violations, and where the
passage of time has increased the number of claimants. The high number of
possible claimants among Palestinian refugees is often seen as justifying
Israel in its refusal to recognize Palestinian refugees' rights in general.
However, given the clarity of the individual rights and the nature of
violations involved in the Palestinian case, "individual claims and claims
en masse for groups of individuals must be addressed."
These are issues that can be overcome, as was demonstrated by the
reparations to victims of Nazi persecution. They included multiple claims in
different jurisdictions within different countries and on different
continents, with settlements being achieved many decades after the
violations took place.
The Israeli government aggressively encourages Jews from around the world to
settle in Israel while pressing for restitution laws to be adopted regarding
losses suffered by the Jewish people. Simultaneously, it adamantly denies
Palestinians the right to return and resettle in their homeland and receive
restitution. Being that Israel is a settler-colonial state these policies
are not unusual, one wonders, however, at what point the international
community will intervene on behalf of the millions of Palestinian refugees
waiting to retun.
Right To Return
Israel objects to the return of the Palestinian refugees claiming it is an
existential threat. However, what Zionist institutions fear equally as much
are demands under international law that they pay restitution and
compensation for the properties both private and public, and for the natural
resources stolen from the Palestinian people.
In 1949, the Geneva Convention elaborated regarding the prohibition of
deportation and expressly referred to the repatriation of protected persons.
Article 49 of GCIV prohibits "individual or mass forcible transfers, as well
as deportation of protected persons from occupied territory." It goes on to
say that "All protected persons who may desire to leave the territory at the
outset of, or during a conflict, shall be entitled to do so."
Zionist institutions and spokespeople claim that the refugee issue has
somehow reached some imaginary statute of limitations. However, the legal
foundation of the rights of the Palestinian refugees to repatriation,
restitution, and compensation - as affirmed in resolution 194 - not only
has not expired but, according to this study, "has since become even
stronger." Furthermore, according to the Articles on State Responsibility,
"the state responsibility does not diminish with the passing of time."
It is only for political reasons that the rights of the Palestinian refugees
continue to be side-lined. Zionist institutions around the world, with the
support of the United States government, are doing all they can to undermine
the severity of the Palestinian refugee issue and to absolve Israel of any
responsibility. The fall of the Zionist- apartheid regime in Palestine and
the emergence of a free and democratic Palestine in its place is arguably
the only development that can realistically bring about the return of the
refugees.
