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Tel Aviv University
Transitional Justice and The Right of Return of the Palestinian Refugees / By Yoav Peled and Nadim Rouhana

http://www.nakbainhebrew.org/ima

Department of Political Science Department of Sociology
Tel Aviv University Tel Aviv University
Theoretical Inquiries in Law, 5:2, 2004, pp. 317-332
Introduction
By most accounts, the issue of the Palestinian refugees and their right to return
to the part of Mandatory Palestine that now constitutes the State of Israel has
been the most obstinate stumbling block preventing the resolution of the conflict
between Israel and the Palestinians. This is so because the right of return, more
than any other issue, touches, for each side, on the essence of its history since
the conflict began, and on its prospects for the future. The national narrative of
each side is centered on its own version of how things turned out in the 1948
war, during which the Palestinian refugee problem was created. And both sides
believe that their national identity and future national existence hinge on how
the issue of the right of return is resolved.
The 1993 Oslo Accords designated the question of the Palestinian refugees a
“final status” issue, meaning that it was one of the issues that Israel and the Palestinians
would have to resolve for a permanent peace to be established between them. This issue
was central to the failure of the Camp David summit in the summer of 2000 to result in
a final status agreement. It figured even more prominently in the talks held in Taba,
Egypt, in early 2001, where some progress on this issue was reportedly achieved.1 The
progress achieved at Taba was supposedly reflected in the Geneva Accord, a mock
peace agreement authored by a number of liberal Israeli politicians and unofficial
representatives of the Palestinian National Authority in December 2003. This accord,
Nazmi Ju’beh, The Palestinian Refugee Problem and Final Status
Negotiations: A Review of Positions, 9 1
Palestine-Israel Journal, 5 (2002); The Refugee Problem at Taba: Akiva Eldar Interviews Yossi Beilin and
Nabil Sha’ath, 9 Palestine-Israel Journal, 12 (2002); Yossi Beilin, A Guide for a Wounded Dove (Rami
Tal ed., Yediot Aharonot, Sifrei Hemed, 2000X); Ofer Shinar, Making Silent Voices Heard: Non-Official
Truth and Reconciliation Commissions in the Israeli - Palestinian Conflict (New York University, 2001)
.((unpublished
2
however, failed to address the issue of the right of return in a
straightforward manner, and has been soundly criticized for that.2.
The failure of these peace efforts to seriously address the issue of the right of
return is a reflection of the fact that the broader question of historical justice in general
has been avoided in the various attempts to solve the Israeli-Palestinian conflict. A key
argument in support of this avoidance has been that justice is a
subjective construct, and allowing it to become a subject of negotiation would only perpetuate the conflict. As
articulated by the Israeli scholar of international relations, Yaakov Bar-Siman-Tov:
Since fairness and justice are not self-defining and objective terms, it may be difficult for the parties to agree what is fair and just. The assessments of what is fair and just are often biased by self-interest. The
resulting conflict in perceptions of what constitutes fair and just agreement may create barriers to peace implementation and relations.3 However, the negotiating framework established in Oslo in 1993, that studiously
avoided considerations of justice, has brought the parties to an historic dead-end,
resulting in unprecedented dynamics of violence that have posed
existential threats to both parties.
Transitional justice
Our argument in this paper is that considerations of historical justice are essential for
achieving reconciliation in the Israeli-Palestinian (like any other) conflict, and that a
2 See, for example, Mark Levine, The Trouble With Geneva, Tikkun, Oct. 25, 2003, at
http://www.tikkun.org The Accord itself is at
http://www.heskem.o References in the present paper are to the hard-copy Hebrew edition: The
Geneva Initiative: A Model for an Israeli-Palestinian Permanent Agreement, November 2003.
3 Yaakov Bar-Siman-Tov, Dialectics Between Stable Peace and
Reconciliation. Paper presented at the
Leonard Davis Institute, Hebrew University, Jerusalem, February 2001, 8. 3
morally and politically sound basis could and should be established for a workable
solution to the question of the right of return. We believe this could be achieved on the
basis of a conception of justice that is not merely corrective or
compensatory, but rather transformative. This conception, usually referred to as “transitional justice,” does not
seek to achieve a balance between violated rights and compensatory measures. It aims,
rather, to establish the principles that should govern the transition from a morally
deficient (“barbaric”) society or situation to a morally superior
(“minimally decent”) one.4 The successful transition itself is what endows the measures necessary for its
achievement with their moral value. In other words, in transitional justice the practical
outcome that is being sought should itself be the basis in which the moral arguments are
grounded.
While transitional justice necessarily addresses past injustices, it is future-, rather than
past- or present-oriented in terms of where its moral emphasis lies. It seeks to “affirm
and restore the dignity of those whose human rights have been violated; hold
perpetrators accountable, emphasizing the harm they have done to
individual human beings; [and] create social conditions in which human rights will be respected.”5 Here,
therefore, the “practical” is not a limiting condition of the “moral,” but rather its
foundation.
While the principles of transitional justice seek to transcend mere power relations, in order to achieve its ultimate goal – establishing the conditions for greater
respect of human rights -- transitional justice must take the power balance between the
parties into account. Its virtue, therefore, lies not in its being absolute, but rather in its
being attainable. It is for this reason that transitional justice
privileges reconciliation Rajeev Bhargava,Restoring Decency to Barbaric Societies, in Truth v. Justice: The Morality of Truth 4 and Reconciliation Commissions (Robert I. Rotberg and Dennis Thompson, eds., Princeton University .Press, 2000) 45
E. Kiss, Moral Ambition Within and Beyond Political Constraints, in Truth v. Justice, supra note 12, 68 5
.((emphasis added
4
over retribution – which would satisfy solely the victims of past
injustices -- and forgetfulness –, which would benefit only their perpetrators. Still, transitional justice
must walk a thin and very treacherous line between ignoring the existing power
relations and subjecting justice to them.
Recognition
To achieve reconciliation, transitional justice relies on what may be termed its two other
R’s: recognition and restitution. Recognition of the narrative told by the victims of
injustice is a necessary precondition for reconciliation. This narrative forms an essential
component of the victims’ identity; and is usually denied and
delegitimated by their victimzers.6 In many cases, recognition of that narrative, that is, of the injustice that was
committed, and validation of their experiences, memories and identity, is the primary
objective sought by victims of historic injustice. For When political victims suffer violence, they are not merely
harmed physically … The act of violence transmits an unambiguous,
unequivocal message, that their views on the common good – on matters of public significance – do not count, that their side of the argument has no worth and will not be heard, that they will not be recognized as participants in any debate, and, finally, that to negotiate, or even reach a compromise with them, is worthless. In effect, it signals their disappearance from the public domain.7
6 For the place of the nakba – the catastrophe of 1948 -- in Palestinian identity see, among many other
sources, Rashid Khalidi, Observations on the Right of Return, 21 Journal of Palestine Studies, 29 (1992);
Ahmad Sa’di, Catastrophe, Memory and Identity: Al-Nakbah as a Component of Palestinian Identity, 7
Israel Studies, 175 (2002); Dan Rabinowitz, Morality, Identity, Demography, Return: Thoughts on the
Future of Palestnian Refugees, presented at The Hagop Kevorkian Center for Near Eastern Studies, New
York University (2003).
7
Bhargava, supra note 12 at 47. An example of this attitude can be seen in an interview with Ehud Barak,
Israel’s Prime Minister during the failed Camp David summit. Barak said in that interview “…”
5
It is this situation that is most often in need of rectification.
Recognizing the victims of historic injustice requires, first and foremost,
that the historical truth about the injustice that was committed against them be
revealed.8 However, if the victims’ truth entails the complete denial of the
perpetrators’, then, unless the power relations between the two sides had been
reversed, the perpetrators, who are still the more powerful party, will refuse to
accept it. Therefore, the primary fu'nction of truth and reconciliation commissions has been to enable the victims, as well as the perpetrators, to air their historical narratives.
The work of truth and reconciliation commissions is designed to acknowledge the distinctive identity of the victims, strive to repair the damage done to them through violence, stigmatization, and disrespect, and include their histories in the collective memory of the relevant political community.9 Revealing the truth about past injustices can be very traumatic, of course, to both victims and perpetrators, as well as to their descendants and sympathizers.
This trauma has been exemplified in the acrimony generated by the “historians’
debate” about the 1948 war in Israel, and, most recently, by the controversy
surrounding the claim that a massacre had been perpetrated by Israeli forces in
the Palestinian coastal village of Tantura. What the appearance of the “new
history” in Israel also points to, however, is the greater readiness of new
generations, farther removed from the original injustice, to face the historical
truth.10
8 Nadim Rouhana, Identity and Power in the Reconciliation of National Conflict. In Eagly, A. H., Baron,
R. M., & Hamilton, V. L. (Eds.). (2004). The Social psychology of group identity and social conflict:
Theory, application, and practice. Washington, D.C.: American Psychological Association.
9
Kiss, supra note 13, at 73.
10
Teddy Katz, The Exodus of Arabs from Villages at the Foot of Southern Mount Carmel in 1948, Master’s
thesis, University of Haifa, Haifa, Israel (1998) (Hebrew). In his thesis Katz argued, mainly on the basis of
6
Restitution
One way of according recognition to victims of historic injustice, as well as
compensating them for their real material losses, is through restitution. The
question of restitution raises the issue of responsibility: Who is the agent
responsible for the injustice? Can the present generation, or immigrants who
arrived after the injustice had been committed, be held accountable for the
actions of their predecessors? Is the political community the responsible agent,
regardless of its changing human composition? Similarly, how far can the right
to receive restitution be transmitted across generations? Does that right inhere in
individual members of the victimized community, or in the community as a whole? Are the rights of the victims ever superseded, and under what conditions? Different schools of thought in moral philosophy and political theory give different answers to these questions.11
A major issue to be considered in discussing restitution is not only the form it
should take – restoration of citizenship status and expropriated property, repatriation,
monetary compensation, etc. – but also its magnitude. The passage of time makes the
monetary evaluation of the damage done to the victims of injustice extremely difficult,
but not impossible. However, the factors that should be included in this evaluation are in
contention among scholars, as are the principles that should govern their determination.
oral history, that the Jewish forces committed a massacre in the process of occupying the Palestinian
village of Tantura. The public and academic outrage that this thesis stirred continues until today. The
author was taken to court by veterans of the brigade that had occupied the village and Haifa University
established a special committee to investigate the thesis and eventually disqualified it. See also Jose
Brunner, Pride and Memory, 9 History and Memory, 256 (1997); Jose Brunner, Contentious Origins: A
Psychoanalytic Comment on the Public Debate over Israel’s Creation, in Psychoanalysis, Identity, and
Ideology: Critical Essays on the Jewish/Israeli Case (J. Bunzl and B. Beit-Hallahmi eds.),.(Kluwer 2002);
Ilan Pappe, The Tantura Case in Israel: The Katz Research and Trial, 30 Journal of Palestine Studies, 19
(2001); Samera Esmeir, 1948: Law, History, Memory, 21 .( Social Text, 2 (2002
Jeremy Waldron, Superseding Historic Injustice, 103 Ethics, 4 (1992); W. James Booth, Communities 11
of Memory: On Identity, Memory, and Debt, 93 American Political Science Review, 249 (1999); Susan
.(Dodds, (1998). Justice and Indigenous Land Rights, 41 Inquiry, 187 (1998 7
Should restitution aim to restore a hypothetical status quo ante? Should it aim to
compensate the victims or their descendants for all they could have achieved had the
original injustice not been committed? For all that the perpetrators had gained from their
injustice? Is it even possible to calculate those things? Or should restitution serve as
merely the material signifier of recognition, and involve only symbolic compensation?12
Reconciliation
If recognition means acknowledging the identity of the victims as
rights-bearing human beings, reconciliation entails recognition by the victims of the humanness of their
oppressors, rather then the attribution to them of absolute evil. The historicity of the
injustice committed should be taken into consideration, without being used as a
justification for the injustice. In other words, as much as reconciliation demands
remembering, it also demands letting go of the psychologically comforting tendency of
the victims to picture themselves as “the ‘good people:’ the ones who, from now on,
will have the absolute right to command because they were absolutely right in the way
they suffered.”13 Going through a psychological transformation of this kind is no less
traumatic for the victims than revealing the historical truth is for the perpetrators, and
victims tend to show a great deal of resistance to this demand.
Transitional Justice and the Right of Return
Transitional justice has usually been applied to transitions within particular
societies, rather than to inter-societal relations. It could be argued, therefore, that
Waldron, supra note 10; Barkan, supra note 20; Tyler Cowen, Discounting and Restitution, 26 12
Philosophy and Public Affairs, 26, 168 (1997); Atif Kubursi, Valuing Palestinian Losses in Today’s
Dollars, in Palestinian Refugees: The Right of Return (Naseer Aruri, ed., Pluto Press 2001) 217; Ruth
.[??? Klinov [IN THIS ISSUE
B. Van Roemund, B. (2001). Rubbing Off and Rubbing On: The Grammar of Reconciliation, in Lethe’s 13
Law: Justice, Law and Ethics in Reconciliation (E. Christodouldis and S. Veitch, eds., Hart, 2001), at
.183, 186
8
transitional justice is not applicable to the case of the Israeli-Palestinian conflict,
which is a conflict between two distinct societies. We, however, believe that the
principles of transitional justice can provide useful guidelines for analyzing the
Israeli-Palestinian conflict in general, and the issue of the right of return in
particular. The Israeli-Palestinian conflict has features of both an intra-societal
and inter-societal dispute, and its very nature in this respect has been a subject of
controversy and has changed over the years.
Since the Zionist movement claimed Palestine as the homeland of the Jewish people, that land came to be the site of conflict between the Palestinians and the
Zionists. Thus at the core of the Israeli-Palestinian conflict, at its current stage,
is a disputed but shared territory – that of Mandatory Palestine -- with which the
history and identity of both sides are inextricably intertwined. This despite the
fact that on each side there are people who do not currently reside in that
territory, have never resided in it in the past and may never reside there in the
future. The obvious asymmetry, that members of one national group – the Palestinian refugees – are prohibited from returning to that land, because their right of return is not recognized, while members of the other group are welcomed under a Law of Return, is the outcome of power relations -- the defeat
of the Palestinian national movement in 1948. Due to the Arab defeat of 1967
the disputed territory in its entirety is currently under the control of one side,
which has established an internationally recognized state on part of it, while the
other side has failed to achieve this goal. The question of what kind of state the
Palestinians seek to establish, and may eventually succeed in establishing – a
separate state in the occupied territories or one bi-national or non-national state
in all of Mandatory Palestine -- is still unresolved. Its resolution would 9
determine, retroactively as it were, whether the conflict is (was) an intra-societal
or inter-societal one.
More concretely, the issue of the right of return bears not only on the relations between Israel and the Palestinians outside the borders of its formal sovereignty. It bears also, at least in part, on Jewish-Palestinian relations within
the sovereign state of Israel as well. Israel’s Palestinian citizens are implicated
in the issue of the right of return in several ways:
(1) as members of the Palestinian nation whose society was decimated in 1948,
resulting in a very large portion of its members becoming refugees; (2) as citizens of a state that encourages the immigration of Jews, but blocks almost completely the immigration of Palestinians (since 2003, even of those married to Israeli citizens) among other reasons, for fear of recognizing the right of return
“through the back door;” (3) because at least 15% of Israel’s Palestinian citizens, or about 150,000 people,
are “internal refugees” (known officially as “present absentees”), displaced from
their original places of residence since 1948 and not allowed to return to those
places, mostly for fear, again, of implicitly recognizing the right of return.14
This complicates even further the question of whether the conflict is an intrasocietal
or inter-societal one, adding weight to our determination that the principles espoused by the conception of transitional justice are relevant to its resolution.
The best known of these cases is that of the Christian communities of Ikrith and Bereim, a case that has 14
been in adjudication in the Israeli courts for the past 50 years. On June 26, 2003, Israel’s Supreme Court
rejected yet another appeal by the former residents of Ikrith to be allowed to return to their village, on the
grounds that such a return could enhance the Palestinians’ claim of a general right of return (Haaretz, June
27, 2003). For a general discussion of the “present absentees” see Hillel Cohen, The Present Absentees:
.(The Palestinian Refugees in Israel Since 1948 (The Institute for Israeli Arab Studies, 2000) (Hebrew
10
For Palestinians, the nakba was an historic injustice inflicted on them by the
Zionist project, an injustice that, in their view, can be rectified only through
recognition of the right of return.15 If the nakba was indeed an historic injustice,
which we take as our starting point,16 then it is hard to see how the right to return to
the homes and homeland from which they had been unjustly removed could have
been denied to the refugees at the time. However, some might argue that in the halfcentury
that has passed since the original injustice had been committed the right of
the refugees to return has been superseded.
Jeremy Waldron has most eloquently articulated the argument that historic injustice may be superseded with time.17 Waldron’s argument is sophisticated and multi-layered, but the crux of it, we believe, is the contention that an act that may have constituted an injustice at a certain point in time may not
constitute an injustice at a later point, due to changed circumstances. When that happens, the right of the
victims of the original act to restitution has been superseded.
If one were to apply Waldron’s argument to our particular case, s/he would have to argue along the following lines: The expulsion of about 750,000 Palestinians from Israel, and the expropriation of their land, in 1947-48, by 600,000 Jews, who then comprised one third of the population of Palestine, was indeed
unjust. However, in the intervening years millions of additional Jews arrived in the
country, both because their national identity is intimately connected with it and
because they had nowhere else to go. Today, Jews, broadly defined, outnumber
Palestinians at a ratio of about 3:2 within Mandatory Palestine, so their control of
about 75% of the territory is at least not as blatantly unjust as it was in 1948.
15 Khalidi, supra note 14, at 31-32.
16 We take this as a starting point, rather than arguing why the expulsions of 1947-48 were indeed an
injustice. The burden of argument that expulsion of the Palestinians from their homeland and preventing
them from return is just should be on those who maintain this view. The view The view that their
expulsion is unjust is shared by all Palestinians and is, therefore, the view that needs to be addressed if
reconciliation is to be achieved.
17 Waldron, supra note 10.
11
Moreover, Jewish settlement has resulted in economic development that would have
been unimaginable without it, so that property values have soared and even small
amounts of property can now guarantee their holders a decent standard of living. If
only the Palestinians had agreed to accept the Jews and live in peace with them, all
of Mandatory Palestine, whether divided politically into two states or not, could
have been a peaceful and prosperous land.
This argument, we believe, would have been difficult even for Waldron to accept. Even if by some theory of justice it could be convincingly argued that the Palestinians now have a moral duty to share their land with Jews, or even that they had that duty in 1947 (because Jews were persecuted and had nowhere else to go),
this would in no way diminish the injustice committed by the forceful expulsion of
the Palestinians from their homes and homeland, the destruction of their society, and
the disruption of so many individual and family lives. Moreover, many of the
refugees of 1948, and their descendents, still live in refugee camps in miserable
conditions (for example in Lebanon) and have not been able to reconstruct their
lives. Thus the injustice committed against them is still ongoing, and the question of
supersession has not become relevant. (Refugees who are most likely to actually
return to Israel, if an agreement is ever reached on the right of return will come
from this group) Even according to Waldron, his supersession thesis “applies only if
an honest attempt is being made to arrange things justly for the future. If no such
attempt is being made, there is nothing to overwhelm or supercede the enterprise of
reparation.”18
But there is a morally valid argument that can be derived from the changed circumstances, viz., that the Jews living in Israel now have acquired, with time, the right not to be displaced and to maintain an Israeli Jewish national community in that land. For these Jews, the prospect of a massive Palestinian return, and the
18 Waldron, supra note 10, at 27.
12
demographic transformation it would entail, raises a profound and acute fear, that
has to be addressed, that their lives, as individuals and as a national community, be
disrupted.19 Therefore, just like the Palestinians, they maintain the fundamental
belief that their future national existence hinges on whether, and how, the issue of
the right of return is resolved.
Taking these realities into account, the principles of transitional justice
would suggest, we argue, the separation of the right of return, that is non-negotiable
for the Palestinians, from the means of realization of that right in practice, which
could be negotiated between the two sides. The only right of return that can be
meaningfully recognized by Israel is the right of the refugees to return to the State
of Israel within the borders of its formal sovereignty, whatever these borders may be
following a future Israeli-Palestinian peace agreement. Since recognition of a right
necessarily creates an obligation, and since there is no moral value in creating an
obligation for somebody else, Israel cannot meaningfully recognize the right of the
refugees to return to a third country, not even to the future state of Palestine. In this
respect, the Geneva Accord, that gives the Palestinian refugees the right to return
only to territories that will be under the sovereignty of the future Palestinian state,
and denies them the right to return to their original places in Israel, fails to meet the
moral challenge that, in our view, must be met for reconciliation between the two
peoples.20
By the same token, if Israel were to recognize the right of return this would
satisfy an essential demand of the Palestinians and would enable them to recognize
Israel’s acquired right to continue its national existence in its part of the disputed
19
Rabinowitz, supra note 14.
20
Geneva Initiative, supra note 2, at 33, Article 7(4)(d)(iii); see also at 8, Article 5; cf. Levine,
.supra note 2
13
territory. This would mean that the actual means of realization of the right of return
could be negotiated in a way that would take the concerns and interests of Israeli
Jews into account. So much has been made clear already by many Palestinians,
including people in positions of authority from Yasser Arafat on down.21 So far,
however, neither present nor former Israeli officials, not even those actively
engaged in seeking an understanding with the Palestinians, have agreed to recognize
the right of return. They have maintained, erroneously we believe, that the
Palestinian demand for recognition of the right of return signifies, in and of itself, a
denial of the right for a national Jewish existence or the right of the State of Israel to
exist.
Recognition by Israel of the right of return would meet many of the goals stipulated by transitional justice as necessary for achieving reconciliation:22
Truth. The Palestinian narrative of 1948 will become legitimate in Israel, leading to
recognition of the nakba and of the Palestinians’ identity as its victims. This is a
necessary first step towards the construction of a joint historical narrative, an important
goal of transitional justice. Preparatory work could begin even before Israel recognizes
the right of return, by non- or semi-official truth and reconciliation commissions that
would clarify and acknowledge the historical truth. The biggest task of these truth
commissions will be to document the specific histories of the refugees, in order to
establish a pattern, which will expose the “hidden history” of the region. As Hanan
Ashrawi has stated, “allowing the truth to come out will go a long way to starting a
process of reconciliation.”23.
21 Khalidi, supra note 14; Yasser Arafat, The Palestinian Vision of Peace, The New York Times, XXXX;
The refugee Problem at Taba, supra note 1, at 17-23.
22
David A. Crocker, Transitional Justice and International Civil Society: Toward a Normative Framework,
.(5 Constellations, 492 (1998
23 Shinar, supra note 1 at 52-53; see, in relation to that, the cover story in Haaretz Weekend Magazine, 31
October 2003 (Hebrew).
14
Recognition of the moral worth of the Palestinians as human beings that has been
denied since 1948. (This denial of their moral worth has been more pronounced in the
case of non-Israeli citizen Palestinians under Israel’s rule and of the refugees in some of
the Arab countries than for those who are citizens of Israel). Recognizing their historical
narrative will go a long way towards affirming their humanity and moral worth.
Responsibility, both collective and individual, of Israel and of Israelis, for the nakba in
general and for individual atrocities (e.g. Tantura) will be established. Israel/Israelis will
probably maintain that they had no choice,24 that the Palestinians, as well as the Arab
states, shared in the responsibility, etc. Given the passage of time, recognition of
responsibility is not likely to lead to demands for the prosecution of individual
perpetrators of crimes (on either side).
Public Discussion. This has been stifled in Israel due to the fear of recognizing the
right of return. That fear will, obviously, be removed, once the right of return is
recognized, and this will open up the possibility of airing the history of 1948, including
the opening up of still classified material in various official Israeli archives.25
Of course, recognition of the right of return only will not be sufficient in itself to
achieve reconciliation. But it will meet many of the preconditions for it. Reconciliation
could be achieved only after some measures of restitution are affected as well. Of these,
compensations and reparations could begin to be assessed (although recognition of the right
24
Zeev Sternhel, Settler Post Zionism, Haaretz, June 20, 2003 (Hebrew). 25
Benny Morris, Revisiting the Palestinian Exodus of 1948, in The War for Palestine: Rewriting the History
.of 1948 (Eugene L. Rogan and Avi Shlaim eds., Cambridge University Press, 2001, 37, at 49-50
15
of return is not necessary for that), while the most difficult aspect of restitution, return of
refugees, begins to be negotiated.
Conclusion
Most people who are interested in achieving reconciliation between Israelis (or actually
Israeli Jews) and Palestinians realize, that the Gordian knot tying the Palestinians’ demand
for recognition of the refugees’ right of return to the Jews’ absolute determination to
maintain a substantial Jewish majority in Israel must be cut. Most liberal Israeli politicians
and scholars, as well as some Palestinians, such as those involved with the Geneva Accord,
believe the knot can be cut by distinguishing between a collective right of “return” and selfdetermination
in a future Palestinian state and an individual right of return that could be
redeemed (without being openly recognized, according to most versions) through monetary
compensation. Others have suggested that the right of return itself should be curtailed in
various ways,26or that a distinction should be made between Israeli citizenship, including
social benefits, that will be granted to Palestinian refugees who would opt for it, and
residence in Israel that will be denied to most of them.27
It is significant, we believe, that none of these authors have been able to provide a
morally persuasive argument for dividing the right of return in any particular way (e.g.,
between generations of refugees, between the residents of different host countries, between
those whose former places of residence are still vacant and those who are not, by socioeconomic
status, etc.). In our view, the right of return is indeed indivisible (as is clearly
evident in the way Israel conceptualized and implemented its own Law of Return), and
therefore the only way to cut the Gordian knot that is both morally sound and politically
26 According to Gans recognition of the injustice done to the refugees could be separated from recognition
of their right of return.
27
Rabinowitz, supra note 14.
16
practicable would be to conceptually decouple the right of return from the negotiations over
the means of actual return of refugees.
In the spirit of transitional justice, recognition by Israel of the right of the 1948
Palestinian refugees to return to their previous places of residence within the State of Israel
would be a formidable step towards achieving reconciliation between Israelis and
Palestinians. The moral significance of this act would be lost, however, if its meaning is
circumvented by designating the future Palestinian state as the target area of the “return” or
by trying to balance off the rights of the Palestinian refugees against the rights of the Jews
who had left the Arab countries in the wake of the 1948 and subsequent Arab-Israeli wars.
Still, as is the case with all individual and collective rights, on the way from recognizing the
right of return to the actual return of refugees to Israel the right of return will have to be
balanced against other relevant rights that must also be recognized. Regardless of the original justice or injustice of Zionism, present-day Israelis have acquired the right not to be displaced from their homes inside Israel’s pre-1967 borders. (In this sense there is a great deal of difference between Jewish residents of pre-1967 Israel and
of the territories occupied in that year. The latter have been settled in territories that are
under belligerent occupation, in clear contravention of international law.) Liberal political
theory also recognizes Israeli Jews’ right of national self-determination, especially if the
solution to the Israeli-Palestinian conflict is envisioned as a two-state solution. (The moral
force of Israeli Jews’ claim of the right of national self-determination will be greatly
weakened, however, if the national minority rights of Israel’s own Palestinian citizens are
not recognized.) In addition, the social, economic and environmental rights of Israelis and
of the refugees themselves must be recognized.
One area where the relations between the right of return and its
implementation are unproblematic is that of the internal Palestinian refugees within Israel. The internal
refugees’ return to their original places of residence (or to locations nearby if the original
17
places are inhabited by others), with an adequate compensation program, would not enhance
the Palestinian demographic presence, that Israel considers to be a threat, and could be
affected immediately and unilaterally by Israel. This very act would signal recognition of
the injustices committed by Israel since 1948 and at least some assumption of responsibility
for these injustices. The Israeli Supreme Court’s recent decision alluded to above28 is clearly
a significant step in the wrong direction, in that respect.
Another possible, and partial, way for the conflicting
rights/aspirations/fears of Jews and Palestinians to be reconciled could be negotiation over the
abolition/modification of the Law of Return would be undertaken by Israel in return for limiting the implementation of the refugees’ right of return. Despite the different moral foundations of these “returns,” the
Law of Return could be used by Israel in negotiating the practical implementation of the
Palestinians’ right of return.29 As it is, from a Zionist point of view the Law of Return is
already defeating its own declared purpose, in that the majority of immigrants entering
Israel under its provisions right now are religiously non-Jewish.30 Thus it should not be too
difficult for Israel to agree to abolish that law and replace it with an equitable civil
immigration law, in return for Palestinian concessions on the number of Palestinian
returnees. From a Palestinian point of view, data based on survey research show that the
number of refugees who would actually want to implement a right of return if recognized is
not as high as was originally expected. Thus it should be possible for Palestinians to make
concessions on number of returnees given that most refugees will opt not to return.
Finally, since the question of how many refugees would be allowed to return is
paramount in most Israelis’ minds, we would like to point out that if and when Israel gives
up its occupation of East Jerusalem, the number of Palestinians within the State of Israel
28
Supra note 23.
29
Cf. The Refugee Problem at Taba, supra note 1, at 18-19.
30
Ian Lustick, Israel as a Non-Arab State: The Political Implications of Mass Immigration of Non-Jews, 53
.(Middle East Journal, 417 (1999
18
will decline by 250,000 – 300,000 people. Recent studies have indicated that the number of
Palestinian refugees who are likely to be actually interested in returning to Israel is not
much higher than this figure.31 We point this out not in order to
legitimize Israel’s
“demographic fear,” which we consider to have racist overtones, but as a way of showing
that the conceptual decoupling of the recognition of the right of return – a sine qua non for
reconciliation -- from the negotiation in good faith over the means of its implementation
hides a potential yet unexplored for resolving the conflict. Furthermore, our suggestion is
based on sound moral foundations that guide the approach of transitional justice.
If the implications of Israel’s recognition of the right of return could be shown to have
no negative effect on the question of the continued Israeli Jewish national existence, while
the benefits of recognizing that right, in terms of enhancing the
prospects for reconciliation, could be immense, some of the fears blocking Israelis’ ability to even consider this issue may be alleviated. To the extent that this would facilitate reconciliation between Israelis and
Palestinians, a political outcome of great moral value would be achieved.

31 Khalil Shikaki, The Right to Choose, Al-Ahram Weekly, 28 August – 3 Septemer , 2003; Khalil
Shikaki. The Right of Return, 30 July, 2003.
19
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