Palestinian refugees and the right of return

Posted: June 26, 2011 by Rex Brynen in being argumentative, peace process, right of return

On the sidelines of the recent Conference on Displacement and Reconciliation at Saint Paul University, a colleague and I (we’ll call her only “Roula X”) had a spirited discussion regarding the relationship between Palestinian negotiating strategy and the right of return. It raised a number of important issues, so I thought I would throw it open for broader discussion on the PRRN blog.

First, let’s start with a (admittedly-imperfect) characterization of positions regarding the refugee issue. In general,  a rough continuum of seven such positions can be discerned:

  1. Palestinian refugees were forcibly displaced, have legitimate grievances and an absolute right of return, and that right is achievable. Minimal acceptable agreement: full right of return to 1948 areas.
  2. Palestinians were forcibly displaced, have legitimate grievances and an absolute right of return. That right is not achievable now, but might be achievable later, and hence needs to be preserved. Minimal acceptable agreement: full right of return to 1948 areas, or transitional agreement that preserves the ability to continue to advance claims.
  3. Palestinians were forcibly displaced, have legitimate grievances and a right of return, but that right is unlikely to be fully achievable. In order to gain partial rights, and in order to gain leverage in negotiations, there should be no public compromise on the issue now, even if it must be compromised later. Minimal acceptable agreement: Israeli acknowledgement of responsibility and symbolic recognition right of return, coupled with modalities that sharply limit actual return.
  4. Palestinians were forcibly displaced, have legitimate grievances and a full or partial rights of return, but those rights are unlikely to be fully achievable. Demanding an unachievable right is misleading the refugees and/or counterproductive as a negotiating position. Minimal acceptable agreement: acknowledgement of Israeli responsibility and/or refugee grievances, coupled with limited/symbolic return.
  5. Palestinians were forcibly displaced, and have legitimate grievances. They also have rights of return but they are somewhat ambiguous and have weakened over time. Moreover, their rights are unlikely to be fully achievable. Demanding an unachievable right is misleading the refugees and/or counterproductive as a negotiating position. Minimal acceptable agreement: acknowledgement of Israeli responsibility and/or refugee grievances, coupled with limited/symbolic return.
  6. Some Palestinians were forcibly displaced, and have many legitimate grievances, but little or no right of return to Israel proper. They may or do have rights to repatriate to a Palestinian state. Minimal acceptable agreement: acknowledgement of refugee suffering, coupled with limited/symbolic return. End of Palestinian claims.
  7. Palestinians were not forcibly displaced, have few or no legitimate grievances, and no rights of return to Israel, or possibly  anywhere in historical Palestine. Minimal acceptable agreement: no acknowledgement or return. End of Palestinian claims.

Palestinian public and elite opinion generally runs the gamut from positions #1 to #3, although a few have advocated #4. While the PLO’s public rhetorical position tends to be #1, in practice its negotiating positing (at Camp David in 2000, at Taba in 2001, and in the Annapolis round in 2007-08) has generally been that of #3.

The position of most Arab countries has been similar to the PLO negotiating position in public (#1) and private (#3). The position of the international community has ranged somewhere between #4 and #6. The US has never really articulated its own position on the issue, but if it did so I suspect it would be fairly close to #6. The Europeans tend to be all over the place, varying across countries and even officials. Many would privately articulate position #5.

The Israeli public and elite position runs from #6 to #7 (although there are a few individuals, academics, and NGOs who take a slightly different position). The Israel government adopted position #6 at Taba and the Annapolis round. The Netanyahu government takes position #7.

One of the more interesting gradations in this spectrum—and the one that sparked this discussion—was the differences between positions #3 and #4. Both positions regard Palestinian refugees as having been forcibly displaced, in what both would regard as acts of ethnic cleansing. Both believe that the refugees have a range of rights, including rights of return. Both positions, however, do not believe that substantial numbers of refugees will be able to return to 1948 areas in any likely agreement. Rather, an agreement is likely to include some recognition of responsibility, some symbolic return, rights of repatriation to a Palestinian state in the West Bank and Gaza, and reparations/compensation for refugees.

Where they differ, however, is on the issue of at what point the Palestinian side should compromise on their demands on full implementation of the right.

  • Position #3 argues that it would be both morally inappropriate and poor negotiating tactics to concede large-scale refugee return at the outset of the process. Rather, one should start from the maximalist position in order to secure Israeli concessions, and to assure maximal acknowledgement of refugee rights even if they can’t be implemented. After all, anyone who has bargained knows that you start high, and make concessions from there.
  • Position #3 also holds that compromises on the refugee issue will only be palatable to Palestinians in the context of a broader package deal that includes the attainment of an independent Palestinian state with Jerusalem as its capital. Consequently, it would be politically unwise for Palestinian negotiators to publicly signal too much flexibility early in the negotiations, since doing so will only serve to generate refugee dissatisfaction and create opportunities for rival groups to mobilize public opposition to the negotiating process.
  • Finally, Position #3 is also often based on the implicit view that as the victims of a historic wrong, it would be inappropriate for the Palestinians to offer too much compromise too soon. Rather, Palestinian flexibility is something that Israel can encourage by acknowledging its own responsibility for the refugee issue. It is not the Palestinians’ responsibility to play the role of psychotherapist to Israel’s collective denials and repressed memories.
  • Position #4, by contrast, rejects the notion that by starting with a maximalist position on return the Palestinian negotiation position is enhanced. Rather, it is likely to be understood by Israeli negotiators either as a non-credible rhetorical position, and/or as an indication of bad faith. Indeed, to the extent that the right of return is seen as a back-door mechanism for Palestinian conquest of Israel, it might even be seen as casting doubt on the Palestinians’ commitment to a two state solution.
  • Position #4 also argues that Position #3 under estimates the importance of shifting Israeli opinion on the issue as a way of influencing Israeli negotiating behaviour and expanding the scope of the possible within negotiations.
  • While recognizing the enormous sensitivity of the issue, Position #4 argues that the Palestinian leadership is morally bound to be honest with their people as to what can, and cannot, be achieved in negotiations. It suggests that refugees are more realistic than given credit for, and that inevitable compromises on the refugee issue can be honestly framed as part the refugees’ collective contribution to the achievement of Palestinian liberation and self-determination.
  • Finally, Position #4 suggests that while the Palestinians were undoubtedly subject to forced displacement and ethnic cleansing, it remains an unavoidable reality that Israelis are deeply wedded to their own narrative of victimhood. Consequently, leading Israel to acknowledgement of their responsibility for their issue won’t come from waiting for them see the light, but rather by engaging them in a process of mutual compromise whereby their sense of threat is diminished and uncritical attachment to national mythology is lessened.
Anyone who has read my writings or past blog posts know that I tend to somewhere between position #4 and #5, largely for the reasons articulated above. An obvious counter to that position is that I’m simply wrong in my political assessment of what is possible, and that the full return of all refugees is achievable. I, however, see no evidence that this is the case. Moreover, there are probably some complicated moral issues to be found in balancing the historic rights of refugee return against the contemporary rights of Israeli self-determination. Fortunately, those are philosophical issues that Position #4 is largely able to sidestep.
Other views/perspectives/observations? Feel free to post them in the comments section—remembering, as always, to keep them polite and constructive.
  1. While position #4 seems to be a compromise between the two extremes of #1 and #7, it is still not acceptable to many Palestinians and personally find position #1 to be truthful.

    That being said we can see that the Israeli position being either #6 or #7 hasn’t harmed them politically in front of the international community and probably a mirror image of the stance taken by Palestinians (position #1) wouldn’t harm Palestinians as well.

    While the political image of the two parties, Palestinians and Israelis, are not immensely affected by their positions or maybe not affected at all, the solution seems to be both obvious and speculation at this point. Israeli resistance will be backed by many allies and will not help the weekly supported negotiating power of the PLO. A complete right of return also seems both not enforceable and not welcome by everyone. Social ties of Palestinian refugees living in other countries might bar them from leaving the status quo to live in a new place with people who were labeled as the enemy for more than six decades. The political veneer of the situation sometimes overshadows societal intricacies and is usually left out of political discussions but that is one factor that will have a visible influence only after a political agreement is reached.

  2. […] access to residence in Israel. I’ve argued before that the “right of return” is a much more ambiguous and contingent right in international law than many Palestinians believe it to…. It is doubtful that it applies to refugees with citizenship, and it certainly fades slowly over […]

  3. DMS says:

    Late to the game and untutored in the subject but why should there be a right of return at all?
    The Arabs lost the war they started in 1948 and again (which they started) in 1967.
    Winners win and losers lose.
    So why a “right of return” at all?

    Now as a practical matter, and very pro-Israel, I am (fwiw) willing to concede some return for Palestinians simply for the sake of peace and the future, for all. To be nice etc etc

    But from a somewhat theoretical perspective, where is this “right of return”? Is that standard practice throughout the world? Winners take back populations who were left or driven out by war? Wars of the losers’ own making, I should add.

    Or is just something new which we’ve all decided to start with Palestine? (And obvious loaded question but a real one.)

    • Rex Brynen says:

      Refugees are generally regarded as having a right of return, and the right to leave and return to one’s country is also enshrined in the Universal Declaration of Human Rights. Indeed, return/repatriation is by far the most common “durable solution” for refugees these days (over 90% of cases). The complication in the Palestinian case is the passage of time.

      • DMS says:

        Thank you.

        You mention 90% of case. What are some example — any other recent (last 60-70 years) situations which might offer useful analogies to Israel/Palestine? Where right of return was actually an issue and/or actually used?

        Do Cuban-Americans who left Cuba have a right to return to Cuba? What about French who were forced out Algeria?

        Just trying to thinking of examples — I suspect that there have been many examples in Europe.

      • Rex Brynen says:

        Afghanistan would be case where refugees largely fled in the 1980s, and largely returned after 2001–almost a generation later. As I’ve expressed on the blog, I do not think large-scale Palestinian return is politically practical. At the same time, return is a universally recognized (if not always achieved) right of refugees. In offering to concede on practical implementation in a way that severely limits the actual number of refugees returning, but demanding some symbolic recognition of the right itself, Palestinians are not demanding special attention or being unreasonable, but actually showing flexibility.

      • DMS says:

        Well thanks you for the response but your example of Afghanistan is not exactly persuasive. 🙂 I assume that you are referring to Russian invasion?

        (“Persuasive” in the sense that _of course_ Israel should do what very other decent nation does.)

        Clearly, if this were 1800 or maybe even 1900 then no one would even remotely expect the losers to expect to be able to reclaim the lands they just lost.

        It’s probably too late for rational discussion of Israel-Palestine but the issues of “loser’s rights” is something to consider. From one perspective, giving losers what they possessed status quo ante is a very bad idea as there is minimal penalty for starting a war. If we win, we get possession. If we lose, we can start arguing for a mulligan.

        Part of what should not be forgotten is that the Arabs started the war(s) and that they lost.

        Probably the big take-away is too bad the Jews didn’t start the Zionist process in 1700 and it would be all done by now.

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