The negotiators made no effort to defend and uphold the right of return

At a meeting with the chief Palestinian negotiator, Saeb Erekat, on 18 February 2008, French Foreign Minister Bernard Kouchner commended the Palestinian approach on the refugee issue, describing it as “wise”. This plaudit was only given after the Palestinian negotiators had confirmed their distinction between recognition of the right of return in principle and its actual implementation. Any agreement founded on this basis would, of course, move the Israelis one step closer toward realizing their dream of a pure “Jewish state”.

Kouchner did not stop at praising the Palestinian negotiators; according to Al Jazeera’s Palestine Papers he encouraged them to communicate their position to the people directly affected, the refugees themselves: “Implementing the right of return would not mean asking Israel to allow the return of millions of refugees.”

The international consensus and resolutions on the subject indicate that the right of return is an individual, not a collective, right which cannot be removed by a third party. It is also understood to mean that refugees have a right to repatriation, restitution and compensation, although for many years the Palestinians have been called upon by western mediators to accept the latter two only, and relinquish the right to repatriation. In other words, no return to their “homes and property” as advocated by UN resolution 3236 (1974).

Every aspect of the proposal lauded by the French is offensive. It seeks to compound the injustice of expulsion with the injustice of permanent exile. To the seven million Palestinians in the diaspora any such agreement would be the ultimate injustice inflicted on them; not only by the Israelis, but also by their own leadership.

When Ehud Olmert made his offer to Mahmoud Abbas on 31 August 2008, Israel’s position was confined to recognition of Palestinian “suffering”; there was no recognition of Palestinians’ rights. Yet, it was the PLO which later summarized the offer in an internal confidential memo stating that Israel would in the preamble of the future agreement “acknowledge the suffering of – but not responsibility for – Palestinian refugees”.

Shortly before that, on 26 March 2008, the Negotiations Support Unit (NSU) communicated the talking points for a meeting with the Israeli negotiator, Tal Becker, regarding the recognition of refugee rights. That document included this: “The PLO will pursue the recognition of all refugees’ rights and their satisfaction with particular care, especially since these are individual rights. The Palestinian leadership is however ready to negotiate their implementation in order to accommodate to the two-state solution.”

The document recommended “an explicit reference to the principle of the recognition of the right of return to ensure that the refugees themselves ‘buy into’ the agreement. However, the provision referring to this right would also stress that the desire for return will have to be adapted to current realities and the objective of the two-state solution. In practice, return would be limited to Israel’s absorption capacity.”

If Israel could not allow the return of the Palestinian refugees because it has a limited “absorption capacity”, why didn’t the Palestinians insist that Israel abrogates its Law of Return, which affords the right to Jews anywhere in the world to migrate to Israel and be guaranteed automatic and full rights of citizenship? It appears, therefore, that there was a certain convergence of interests between the two parties to enable Israel to preserve its Jewish identity and demographic majority.

On 22 January 2008, at a meeting attended by Ahmad Qurei’, Dr Saeb Erekat and Salah Ilayan on the Palestinian side, and Tzipi Livni on the Israeli side, Livni’s position was clear: “I don’t want to deceive anybody. There’ll be no Israeli official whether from the Knesset or the government or even the public who will support the return of refugees to Israel.”

Moreover, Livni had on more than one occasion emphasized her preference for a population exchange that would facilitate the removal of Palestinians from Israel to the proposed Palestine state. Here, it must be recalled that there are within Israel itself more than 250,000 Palestinians who were driven from their homes and villages in 1948 and have, until today, been denied the right to return, even though they still live in the Zionist state.

The fact that Israeli negotiators refuse to acknowledge, and of which the Palestinians fail to remind them, was that Israel was admitted into the UN on condition that it allows the refugees to return to their homes (UN resolution 273, 1949).

The general thrust of the Palestinian Papers suggests that ultimately Palestinian refugees will be settled either in the Palestinian state or elsewhere, but not in the “homes and land” from which they were expelled in 1948 which are now inside Israel. The negotiators on both sides are clearly guilty of trying to confuse the individual right of return with the collective right to self-determination. In principle, neither right should be curtailed at the expense of the other. The right of the individual must be preserved, irrespective of the outcome of the collective struggle for self-determination.

Instead of upholding the right of return as an inalienable right, meaning one which is not subject to negotiation, debate or review, in a confidential paper the PLO negotiators discussed an international mechanism to resolve the refugee issue and absolve Israel of its obligation to allow them to exercise their right: “An international mechanism shall be established, with the participation of Palestine, Israel, the host countries and other stakeholder countries and entities] [I: the parties have agreed to invite the United States, in coordination with them, to establish and lead an international mechanism]”

The Palestinian leadership, it seems, has a very short memory, for when the 1978 Camp David accord left it up to Egypt and Israel to resolve the problem of the Palestinian refugees by “agreed procedures”, the UN declared “that the Camp David accords and other agreements have no validity in so far as they purport to determine the future of the Palestinian people and of the Palestinian territories occupied by Israel since 1967”.

The very notion that Palestinian return was made dependent on an agreement meant that Israel was effectively granted a veto in this matter. The General Assembly declared further that: “The validity of agreements purporting to solve the problem of Palestine requires that they lie within the framework of the United Nations Charter and its resolutions on the basis of the full attainment of the inalienable rights of the Palestinian people.” [33/28, December 1978]

Any agreement undertaken by the Palestinian negotiators that seeks to undermine or compromise the right of the refugees to return to their homes would be null and void. While they discuss with the Israelis the terms of compensation, without repatriation, individual refugees must themselves resist this surrender of their rights, because their sons and daughters may want to return. In this regard, Article 8 of the Fourth Geneva Convention is clear: “Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention.”

The revelations contained in the Palestine Papers on the refugees are the latest in a series that began after the 1993 Oslo Accords, all engineered and promoted by the same persons. They reflect a determined and concerted effort to jeopardize this right. Starting with the Abu Mazin-Yossi Beilin document of October 1995 to the Geneva accord of October 2003, the reader discerns a pattern of proposals devised to obstruct and deny the exercise of the right of return. It is inexplicable, therefore, that despite all the legal guarantees in their favour, the Palestinian representatives have not made the slightest effort to take advantage of them. Instead, they have chosen to rely on their personal “creative” skills and the goodwill of the Israelis and Americans, both of which have been demonstrably inadequate. Given the imbalance in the political relationship between the parties, the only way to ensure the restoration of Palestinian rights is to adhere to international legality.

Dr Daud Abdullah is the director of the Middle East Monitor – an independent media research institution founded in the United Kingdom to foster a fair and accurate coverage in the Western media of Middle Eastern issues and in particular the Palestine Question.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.