Origin of the Palestinian claim of a ‘right of return’

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Reports emanating from the current Israeli-Palestinian peace negotiations reveal that the Palestinian side continues to demand recognition of “a right of return,” under which about 5 million Palestinians now living outside Israel would migrate to areas within Israel. Acceptance of this demand would result in the liquidation of Israel as a majority Jewish state and is, of course, unacceptable to the Israelis. It has been reported that it is also not acceptable to the United States. Given the special significance of this demand, it is appropriate to examine its history.

Following the end of World War II, approximately 12 million Germans fled or were expelled from the former German areas of Prussia, Silesia, and Pomerania, as well as from the Sudeten area of Czechoslovakia, and from Transylvania in present-day Romania. We might note that such Jewish family names as Koenigsberger, Breslauer, Danziger and Posner trace back to the Jewish communities of cities now known as Kaliningrad, Wroclaw, Gdansk, and Poznan.

In 1947, following the division of the Dominion of India between the Republic of India and the Islamic Republic of Pakistan, Hindus and Sikhs residing in Pakistan fled to India, while Muslims living in India fled to Pakistan. The total number of refugees was about 14 million.

There were other smaller forced mass migrations during that period. One of these occurred in 1948, following the establishment of the state of Israel and the war launched immediately thereafter by the Arab states. Many ethnic Arabs fled from the territory of Israel, quite a number of them encouraged by radio messages from the Arab states, urging them to get out of the way of the invading Arab armies. Heavy fighting was in some cases followed by the expulsion of Arab residents. While Arabs were fleeing from the newly established Israel, Jews, whose ancestors had lived in Arab states for centuries and in some instances for millennia, fled or were forced out of their homes in the years since 1948.

There have been many similar developments in different parts of the world since then. To deal with them, the United Nations established in 1950 the Office of the UN High Commissioner for Refugees. The High Commissioner’s responsibility is to provide needed services for refugees and seek to resettle them.

As we reflect on the millions that engaged in forced migration in the late 1940s, we shall note that except for one group they were all resettled long ago. Most persons of German ethnicity found a home in West Germany. India and Pakistan provides homes for those who shared the religions of the people of the countries to which they fled.

The number of Arab refugees from Israel was slightly more than 700,000. A similar number of Jews fled from Arab countries. Most Jews who fled from Arab countries established themselves in Israel, with some migrating to France. Some Arabs who fled from Israel also made a home for themselves in other parts of the world. But the majority of them were not resettled. They were placed in camps in countries adjacent to Israel: Jordan, Lebanon and Syria.

In 1949, the U.N. created the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), whose only mandate is to “provide direct relief and works programs” for these refugees. No provision was made for their resettlement.

A year later, when the position of UN High Commissioner for Refugees was established, UNRWA was not merged with it. As resettlement of refugees is high on the list of responsibilities of the High Commissioner, Palestinian refugees are the only refugees worldwide for whose resettlement the U.N. has made no arrangements.

The states that played a key role in the formulation of U.N. policy in the 1940s and 1950s, including the United States, would have been ready to provide for the resettlement of Palestinian refugees. It was the Arab member states that opposed it. They had not accepted the existence of the state of Israel and wanted the refugees from Israel to stay nearby and, when called upon to do so, help liquidate the Jewish state.

Its nonengagement in resettlement is not the only difference between UNRWA and the High Commissioner for Refugees. Whereas the High Commissioner serves only the persons who actually fled their homeland and their minor children, UNRWA is authorized to provide its service to the descendants of the refugees of 1948, which today include their great-grandchildren. These great-grandchildren, too, are to remain in refugee status until they can migrate to Israel.

The number of survivors of the refugees of 1948 is today down to less than 50,000. But the number of persons on the UNRWA assistance rolls is now about 5 million, all of whom are claiming the “right of return.”

That claim is now tracked to Resolution 194, adopted by the U.N. General Assembly in 1948, while the Israeli-Arab war was still ongoing. The resolution established a Conciliation Commission, which was instructed to help the parties in conflict “to achieve a final settlement of all questions outstanding between them.” The resolution also spelled out in great detail the guidelines to be followed by the Conciliation Commission in presenting to the General Assembly “detailed proposals for a permanent international regime for the Jerusalem area.” (It is worth noting that all Arab members of the U.N. voted against Resolution 194, probably because of their opposition to the internationalization of Jerusalem.)

In paragraph 11 of this 15-paragraph resolution, the General Assembly resolved that “the refugees wishing to return to their homes and live in peace with their neighbors should be permitted to do so at the earliest practicable date.” These are the words on which the claim of a “right of return” is based.

Paragraph 11 is not limited to Arab former residents of Israel. It covers as well Jewish former residents of areas that were incorporated into Jordan. For each of them it says that they “should” be permitted to return. The word is “should,” not “shall.” That is indeed the appropriate word, given that under the U.N. Charter, the General Assembly is authorized to make recommendations but lacks the power to issue binding instructions, instructions that would grant a “right.” It follows that if we are thinking in legal terms, as is appropriate here, there is no “right of return.”

Former Ambassador Richard Schifter is chairman of the board of the American Jewish International Relations Institute.