Palestinian Refugees and a Jewish State

Analysts of the Israeli-Palestinian conflict sometimes make the distinction between "the 1967 issues" and "the 1948 issues." The 1967 issues are those having to do with Israel’s 1967 occupation of the West Bank and the issues of settlements, borders, and security. The 1948 issues are those having to do with the Arab opposition to the very existence of a Jewish state, and with the Nakba, the expulsion or exodus of Palestinians refugees. Jerusalem is its own special category.

Efforts to resolve the conflict will likely fail if negotiators focus primarily on the 1967 issues, hoping to glide over the 1948 fundamentals. For instance, there is the problem of implementing the evacuation of a significant number of settlers from the West Bank. No Israeli government will have the political will and staying power to carry this out if the Israeli public, on both sides of the green line, believes that a peace agreement will not yield real peace because it does not include Palestinian recognition of Israel as the nation state of the Jewish people. Or consider the issue of the claim to a right of return for the refugees. The stance of Tzipi Livni, the "moderate" chief Israeli negotiator, has been that no refugees will return to Israel. Suppose that the Palestinian Liberation Organization (PLO) leadership actually accepted this. Is it not likely that PLO responsibility for betraying the refugees, when combined with the likely disappointments of independence, would give rise to a Hamas victory in the first or second free elections within the State of Palestine? 

The goal of the negotiations must extend beyond a peace agreement. A piece of paper that can neither be implemented nor sustained may be worse than no agreement at all. But can the 1948 issues be resolved? There is a way to win PLO recognition of Israel as a Jewish state, and there are ways to significantly address the material and symbolic needs of the refugees without endangering Israel’s Jewish character. The key, however, is that the two 1948 issues have to be taken up together.

Consider first the Jewish state issue. Some PLO leaders have said they will never accept this; and certainly it will not be easy to shift the current stance. However, this was not always the PLO position. Reviewing the history of the Palestinian national movement, there is a powerful vantage point from which to successfully engage the Jewish state question: the Palestinian Declaration of Independence, proclaimed at the Palestine National Council in Algiers in 1988. It was the highpoint of Yasir Arafat’s legacy as a peacemaker.

The Palestinian Declaration of Independence, which was written by Palestinian national poet and PLO Executive Committee member Mahmoud Darwish, was and remains, the most remarkable document of the Palestinian national movement. Unfortunately, it is largely unknown outside Palestine. This stands in sharp contrast to the other foundational document of Palestinian nationalism, the PLO Covenant, written in 1964. Over the years, the covenant was subjected to acute, even manic, analysis and interpretation, not just by the press and the U.S. Congress, but by leading figures within the Israeli intelligence community. The lack of attention to the declaration is very odd, given that it reversed the heart of the covenant, thereby redefining Palestinian nationalism.

Both the covenant and the declaration addressed the Partition Resolution adopted by the United Nations General Assembly in November 1947 (UNGA Res. 181), a document itself cited in the Israeli Declaration of Independence as a central basis in international law for the creation of Israel. The PLO Covenant stated, "The partition of Palestine in 1947 and the establishment of the state of Israel are entirely illegal, regardless of the passage of time … ." The covenant underscored this, stating, "Palestine, with the boundaries it had during the British Mandate, is an indivisible territorial unit."

The declaration reversed the PLO position on partition. In 1988 the PLO revisited the 1947 Partition Resolution and asserted it as the basis in international law for the Palestinians’ own proclamation of statehood:

Despite the historical injustice inflicted on the Palestinian Arab people resulting in their dispersion and depriving them of their right to self-determination, following upon UN General Assembly Resolution 181 (1947), which partitioned Palestine into two states, one Arab, one Jewish, yet it is this Resolution that still provides those conditions of international legitimacy that ensure the right of the Palestinian Arab people to sovereignty.

Here the Palestinians made a fundamental distinction between matters of morality and legality. As a matter of morality, they continued to view all of Palestine as rightfully theirs and creation of Israel as unjust. But regarding matters of "international legitimacy" they reversed the claim in the covenant that partition was illegal; instead they affirmed the continuing legal force of the 1947 Partition Resolution. And on this basis, the Palestinian national movement was transformed from one dedicated to reversing partition, to one that embraced the two-state solution.

Particularly relevant is that the declaration characterizes the newly legitimized Partition Resolution as having partitioned Palestine into two states, one Arab and one Jewish. Remarkably, inside the foundational document of their future state, the Palestinians acknowledged that Israel was created, under international law, as a Jewish state. In doing so, they linked the international legitimacy of their state to that of the Jewish state.

The PLO has not abandoned the 1988 declaration. Indeed, in 2008 the PLO Central Council affirmed Mahmoud Abbas as President of the State of Palestine. In 2009, Prime Minister Salam Fayyad’s plan for building the institutions of statehood four times cited the declaration as the basis of the state. And in 2011, when the PLO submitted its application for the State of Palestine to be admitted to the United Nations, it affirmed that it was seeking admission for the state that had been proclaimed by the Declaration of Independence in 1988.

It is possible to draw on the declaration to achieve a negotiations breakthrough on the Jewish state issue, but whether this will actually happen depends primarily on the Israelis. In ways that were not operative in 1988, the recognition of Israel as a Jewish state is today intermeshed with three other issues: the potential implications for the 1.2 million Palestinian citizens of Israel, the validity of the Palestinian narrative, and the implications for the claims and rights of Palestinian refugees.

On the first, the PLO is simply not in a position to negotiate on behalf of Palestinians who are Israeli citizens. Israel will not accept this, and it is inappropriate. The real grievances of Israeli-Palestinians will ultimately have to be addressed within Israeli society. In negotiations, some acceptable formula, such as recognition of Israel as both the state of the Jewish people and of all its citizens will have to be found.

With respect to the Palestinian narrative, much depends on what it means to agree that Israel has a right to exist as a Jewish state. Is this a moral right of the Jewish people to have brought Israel into existence or is it a legal right under international law for Israel to exist as a Jewish state? If the demand is that the Palestinians must agree that they were wrong in resisting the creation of Israel, or must deny that they suffered an injustice when a Jewish state was imposed on them, then this will not happen. But if what is sought is an acknowledgement that Israel was created as a Jewish state pursuant to international law, and that it retains a legal right to remain a Jewish state, then this is largely what the declaration affirmed.

The linkage
of the Jewish state issue to the refugee issue is more problematic. Progress will not be made by calling on Palestinians to renounce the right of return as Israeli Prime Minister Benjamin Netanyahu demands, nor by maintaining that zero refugees will return as Livni insists. Instead, in the context of Palestinian recognition of Israel as a Jewish state, what is needed is an authentic Israeli willingness to address the material and symbolic needs of the refugees, going as far as possible without threatening Israel’s Jewishness. The stance should not be that the right of the Jewish people to a state of their own annihilates Palestinian refugee rights, rather that it limits the modalities of their implementation. Ideally such a change in direction would be motivated by a change of heart with respect to the history of the refugee issue, but it would suffice if it were motivated by the pragmatic realization that the more forthcoming Israel is with respect to refugees, the more likely it will be that a peace agreement will really bring lasting peace.

What can be done to seriously address the refugee issue, without threatening Israel’s Jewish character? A first step would be for Israel to agree that all of the original 1948 refugees will be allowed to return to Israel. Of the original 1948 refugees, it is estimated that no more than 50,000 are still alive, with their average age close to 80 years. If they were all allowed to return, at most, a few thousand would actually do so.

There may be some situations in which there are elderly refugees who would only be able to relocate to Israel if they were accompanied by a younger relative. In those situations Israel should offer non-citizen residency status on a temporary basis to designated relatives. On this approach, the actual return of 1948 refugees to Israel would have almost no impact on Israeli demographics, but by giving a return option to the original refugees, the class of refugees that has the strongest claim, it is possible to make a powerful contribution.

Rather than focusing on numbers, Israel should consider extending options to other classes of refugees, and then regulating implementation to ensure that the actual number that returns in any time period is not excessive. For instance, priority might be given to the refugees still living in camps in Lebanon, taking the oldest first. Additionally, there are currently approximately 200,000 Palestinians who are not Israeli citizens, yet live in Israel. These are the Palestinians of East Jerusalem. If a peace agreement transfers Palestinian neighborhoods in Jerusalem to Palestinian sovereignty, these Palestinians will be outside of Israel, and citizens of Palestine. This in itself, opens a substantial opportunity to admit refugees with no net impact on demographics. It could be linked to an approach suggested by Yossi Beilin, which would offer refugees non-citizen residential status in Israel that would match, in equal number, a similar status chosen by Israeli settlers who would be allowed to remain when Palestinian sovereignty is extended to settlements in the West Bank.

A second dimension of the refugee issue goes to the Palestinian need for some acknowledgement of the Nakba. In past negotiations Palestinians sought from Israel a statement of responsibility for the creation of the refugee problem. Israel has resisted such demands, and it appears that little more than a statement of regret for the suffering of the refugees has been on offer. Needless to say, a limited statement of regret will contribute little to putting the issue to rest.

A more powerful way to address the needs of refugees for some form of moral and historical recognition can be obtained through deeds rather than words. In 1948 and 1949, Israel made a concerted effort to erase the remains of 418 villages that were depopulated. Almost all of these villages were bulldozed, and today, while perhaps half of these villages have not been built over, their remains can be difficult to find. To the extent physically possible, Israel should allow the descendents of the villagers to restore the village cemeteries to a semblance of decency. This can be done indirectly by refugees living outside Israel. For instance, they might raise money to hire an Israeli-Arab firm to carry out such services. It is unknown to what extent refugees would actually undertake such efforts, but by allowing restoration of the cemeteries, Israel would make it possible for refugees to maintain a physical link to their history and ancestors.

A third dimension has to do with compensation, which has long been seen as an alternative to return. Unfortunately the numbers do not work. With close to seven million refugees, the monetary levels of any realistic scheme would be so low that they would provoke only anger and outrage. For instance, even a fund of $20 billion would provide only $3,000 per refugee.

Rather than focusing on cash dispersals, other forms of compensation may be more meaningful. The land that Palestinians lost represented more than housing. This was an agrarian society; for most Palestinians land offered a source of employment and income, essentially a capital inheritance passed down through the generations as the key to assuring the family’s continued ability to meet its core economic needs. In today’s society, the closest functional equivalent is the transfer of human capital from one generation to the next, often through the intermediation of educational institutions. Seen in this light, a multigenerational guarantee that the descendents of Palestinian refugees will have access to the finest schools, can serve as a meaningful aspect of compensation. Fortunately this can be done non-quantitatively thus avoiding the specification of a price at which "the right of return was sold." 

One element might be a commitment of top universities around the world, including Israeli institutions, to provide cost-free access to qualified Palestinian students. Alternatively, governments could commit to the provision of a certain number of scholarships, or there could be a fund to which individuals could contribute. The result would be to provide future generations of Palestinian students with a unique guarantee of access to the world’s finest institutions. This in turn would be linked to raising Palestinian institutions to world-class standards.

This is not a comprehensive plan, but it is a start. The main thing is that a good faith effort has to be made to truly respond to the refugees. If this is done, the way will be open for the Palestinian leadership to reaffirm that part of its Declaration of Independence which acknowledged that the Jewish people had a right under international law to bring Israel into existence as a Jewish state and further, to agree that Israel retains a legal right to remain so. This, in itself will not resolve the 1948 issues within the hearts and minds of the two peoples, but it may be enough to start the process of healing which true peace requires. Given the already dysfunctional exchanges, it is unlikely that Israeli and Palestinian negotiators will accomplish this on their own. The challenge, if met at all, will need to be taken up by U.S. Secretary of State John Kerry and President Barack Obama.

Jerome M. Segal is a philosopher at the University of Maryland. He is currently writing a book about the Palestinian Declaration of Independence. In 1988, his writings served as a catalyst for the Declaration.