The Right to Inheritance and to Return, Keys to Peace in Palestine

, by  Ilan Pappe, Orient XXI, Tamar Yaron, Uri Davis

The “peace process” which culminated in the Oslo Accords in 1993 has failed to ignore two key issues: the nature of the State of Israel and that of the right of return of the Palestinians expelled in 1948. However, in 2005, a United Nations special rapporteur, Paulo Sérgio Pinheiro, defined “Principles” on the return of the housing of deportees or displaced. Precise and detailed, they deserve to be re-read in the light of the international community’s continuing passivity on Palestinian rights.

Fresque murale à Gaza

The current “peace process” that began a few years after the 1967 war and culminated in the “Oslo Accords” of 1993 is in a deadlock . All the attempts to move it forward, including “the deal of the century” or shall we call it “the steal of the century” have failed miserably. Since its inception, the diplomatic efforts t ignored two core issues, which are the principal reasons for its demise. The twin issues of the nature of zionism and the Palestinian right of return. Without addressing them there will be no genuine progress toward reconciliation and a just peace.

Reconsidering zionism and its crimes

Recent scholarship on Palestine has framed zionism as a settler colonial movement. This is an old conceptualization of the Palestine issue first proposed by Maxim Rodinson in his seminal work Israel: A Colonial Settler State [1] and also by Palestinian scholars. For years, the settler colonial viewpoint was considered to be an ideological position. The new scholarship has now firmly validated the framing of zionism as settler colonialism as a solid academic position. This new development accentuates the need to discuss zionism and its nature as the core reason for the ongoing conflict in historical Palestine.

While the framing of Israel as an apartheid state, as had been suggested very early on by Uri Davis back in 1987 [2], is still shunned in some academic circles, also this reference is becoming more accepted than ever before by the academic community. It is hard not to define Israel as an apartheid state, when still today, on the basis of its parliamentary legislation, designates 93 % of its territory as reserved for Jews only.

This view offers a clear historical view on the way the Palestinian refugee problem was born and progressed. Referring to zionism as settler colonialism and to Israel as an apartheid state, also raises the question whether the term genocide is appropriate in such a discussion.

Settler colonialism and genocide

Zionist settlement colonialism was the result of European settlers escaping persecution from Europe and arriving at lands inhabited by other people which the settlers coveted as their new homelands. Their main obstacle on the way of creating a Europe away from Europe that had not want them was to remove the native population. The late scholar Patrick Wolfe attracted attention to the logics that inform settler colonial movement such as Zionism when they encounter an indigenous population. He asserted that in such a case they motivated by a logic he defined as that of “the elimination of the native” [3].

Elimination quite often meant genocide as in the case of the native people of North America and Australia. In South Africa it took the form of apartheid, ethnic cleansing, and other oppressive measures. In Palestine, ethnic cleansing too was the principal means of implementing this logic and which led to the expulsion of half of Palestine’s population and villages, the destruction of its urban space and the occupation of almost 80 % of the country [4].

Until today even critical observers hesitated to apply the term genocide to Israeli polices towards the Palestinians. However, when viewing the situation of the Palestinian refugees and their descendants as victims of the logic of “elimination of the native”, they are as such also victims of a genocidal policy.

Such a reference is justified if we look at the UN’s definitions of genocide. The UN “Convention on the Prevention and Punishment of the Crime of Genocide” of 1948, which was adopted by the Knesset as binding states: “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such ’including’ ’causing’ serious bodily or mental harm to members of the group.”

Dispossession and the restoration of rights

The nature of zionism and the right of return are interconnected issues. Thus, we aim here to go beyond the framing the Palestinians as victims of one genocidal act in 1948, but rather as targeted by an policy of dispossession, which has visible aspects of genocidal policies. Patrick Wolfe suggested to look at settler colonialism not as an event but as a process. If the 1948 ethnic cleansing is framed as a genocidal act, then the continued policies of dispossession raise by the same logic of the “elimination of the native”. These policies of elimination continue because the 1948 operation was incomplete, due to the resistance of the Palestinians.

The structural dispossession was not just an act of ethnic cleansing, but was also part of genocidal policies, pursued immediately after the end of the 1948 catastrophe (the Palestinian Nakba). It began with the official Israeli expropriation of the refugees’ assets and possessions by the “Absentees Property Law of 1950” and subsequent acts and legislations. Moreover, the authorities expelled additional Palestinian villages between 1948 and 1956, increasing by that the number of the refugees [5].

The post-1948 refugees and Internally Displaced Persons (IDPs) are also victims of ethnic cleansing and in part of what the UN defines as an act of genocide. Ignoring the rights of all of them - those of 1948 and ever after - will render any future solution invalid morally and futile politically.

The first important step is to focus on the 1948 refugees and IDPs. Many among the Palestinian victims of the 1948 ethnic cleansing have Ottoman and British Mandate land registry (Tabu/Tapu) documents as well as other documents attesting to their ownership of various properties.

Without respecting these deeds and titles of these refugees and without respecting their descendants’ rights of return and inheritance there will be no peace in Israel and Palestine. These rights should also be accorded to the internally displaced Palestinian citizens of Israel.

Surprisingly, few scholars have paid attention to a simple modus operandi, which applies to the way in which these rights could and should be implemented. This process offered by the UN compliments well with Salman Abu Sitta’s work, which is one of the major attempts to engage profoundly with the implementation of the right of return.

What the UN brings to the fore is recognition that the restoration of justice in the case of the Palestinian refugees and expellees include their right of inheritance that should be obtained through a adherence to the mechanisms that have been proposed by the UN in 2005 and are known as the Pinheiro principles.

A blueprint for restorative justice in Palestine

In 2005, Paulo Sérgio Pinheiro, the special rapporteur presented a report to the commission of the UN Human Rights. His focused on economic, social, and cultural rights, with particular focus on housing and property restitution in the context of the return of refugees and that of internally displaced persons [6].

Pinheiro’s principles state clearly:

That all refugees and displaced persons have a right to voluntary return, in safety and dignity, to their original or former habitual homes and lands, Underscoring that voluntary return in safety and dignity must be based on a free, informed (…).

The principles regard the restitution of housing, land and property right, and the right of return as “essential to the resolution of conflict and to post-conflict peace-building.

It’s like “a key element of restorative justice, [and as a factor that] contributes to effectively deterring future situations of displacement and building sustainable peace.”

Another principle concerns right of voluntary return:

All refugees and displaced persons have the right to return voluntarily to their former homes, lands or places of habitual residence, in safety and dignity (…). States shall allow refugees and displaced persons who wish to return voluntarily to their former homes, lands or places of habitual residence to do so.

No less important is the principle that explains the connection between restorative justice, restitution, and return.

States shall demonstrably prioritize the right to restitution as the preferred remedy for displacement and as a key element of restorative justice. The right to restitution exists as a distinct right and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution.

Restoration and continued displacement

As the Israeli displacement continues - and since settler colonialism as Patrick Wolfe told us is a process and not an event - another clause is relevant:

The right to be protected from displacement. Everyone has the right to be protected against being arbitrarily displaced from his or her home, land or place of habitual residence.

The importance of these 2005 principles, is that they respect the right of return and restitution and protect the refugees from further displacement. No less important they tell us how the international law refers to the treatment of refugees before restitution is achieved. When one reads these guidelines one can see that the Palestinian refugees wherever they are do not enjoy any of the protection that is promised to them by the Pinheiro document of principles.

The principles present a clear picture of housing, land and property rights:

States should ensure that all housing, land and property restitution procedures, institutions, mechanisms and legal frameworks are fully compatible with international human rights, refugee and humanitarian law and related standards, and that the right to voluntary return in safety and dignity is recognized therein.

And:

States are required to establish “equitable, timely, independent, transparent and non-discriminatory procedures, institutions and mechanisms to assess and enforce housing, land and property restitution claims.

The principles cast all the responsibility for effective housing, land, and property restitution on the state:

These mechanisms and not just the principle of return and restitution should be part of the peace agreements and voluntary repatriation agreements. Peace agreements should include specific undertakings by the parties to appropriately address any housing, land and property issues that require remedies under international law or threaten to undermine the peace process if left unaddressed, while demonstrably prioritizing the right to restitution as the preferred remedy in this regard.

And:

Everyone who has been arbitrarily or unlawfully deprived of housing, land and/or property should be able to submit a claim for restitution and/or compensation to an independent and impartial body, to have a determination made on their claim and to receive notice of such determination. States should not establish any preconditions for filing a restitution claim.

The principles also cover the hurdles the refugees may face in the process of restoration. They will not always be able to properly process their claims and therefore the document it asserts that:

States should ensure that the restitution claims process is accessible for refugees and other displaced persons regardless of their place of residence during the period of displacement, including in countries of origin, countries of asylum or countries to which they have fled.

The rest of these principles chart a clear methodology for restoration of rights that almost all of its parts are relevant to a future solution for the Palestinian refugee problem. These principals also expected states to take full responsibility for the process, which in the case of Zionist Israel will never happen; hence the link between de-Zionisation of the state and the comprehensive solution for the refugee problem.

In the Pinheiro principles such a state will establish claims-processing centers and offices. Making sure refugees have enough time to process their applications. The state will also provide legal aid, free of charge. The state is also expected to:

Establish or re-establish national multipurpose cadastral or other appropriate systems for the registration of housing, land and property rights as an integral component of any restitution program, respecting the rights of refugees and displaced persons when doing so.

Furthermore, the states are also encouraged to consider favorably issues of restoration also in cases where there is no clear documentation of ownership, or cases of “malicious destruction of documentation”.

Finally, two related points in the document serve as an effective reply to two major arguments that form the basis for the Israeli propaganda against the right of return. The first is a claim that the Palestinians in 1948 were not expelled but fled, or even more cynically in this narrative, “left voluntarily” their homes and thus Israel is not obliged to allow their return. However, the principles, care very little about the distinction between refugees who left, fled a violent situation or were forcefully removed from their homes. Its position is clear:

The conclusive presumption that persons fleeing their homes during a given period marked by violence or disaster have done so for reasons related to violence or disaster and are therefore entitled to housing, land and property restitution.

The second counter Israeli argument (mostly voiced by liberal zionists) is that you cannot solve one evil by creating a new one: namely evicting people who populated the homes of the refugees. The document Pinheiro addresses the question of eviction:

States should ensure that secondary occupants are protected against arbitrary or unlawful forced eviction. States shall ensure, in cases where evictions of such occupants are deemed justifiable and unavoidable for the purposes of housing, land and property restitution, that evictions are carried out in a manner that is compatible with international human rights law and standards, such that secondary occupants are afforded safeguards of due process, including an opportunity for genuine consultation, adequate and reasonable notice, and the provision of legal remedies, including opportunities for legal redress.

To comply with international law

Framing sionism as settler colonialism, pointing to the apartheid and genocidal aspects of the Israeli actions in 1948 (and ever since) and on the basis of the UN principles of restorative justice, it seems that it is time for the UN to take a more assertive role on the Palestine issue. The United nations General Assembly could classify the State of Israel as an apartheid State and subject it to the International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973 until such time as Israel meets its obligation to recognize the Palestinian people’s inalienable right to self-determination.

The UN could demand that in compliance with the principles of international law, Israel should nullify its apartheid legislation, notably the Absentees’ Property Law of 1950 ; end its occupation and colonization of all Arab lands and dismantle the separation wall; they should include recognition of the fundamental rights of the Palestinian citizens of Israel to full equality.

Given the detailed procedure the UN itself provided for the restoration of the Palestinian to their homes and properties, the UN General Assembly should pass a resolution calling for Israel to respect, protect and promote the rights of Palestinian refugees to return to their homes and properties as stipulated in UN resolution 194 and according to the Pinheiro principles.

Unless the international community in general, and the UN in particular, would not defend and respect these basic Palestinian rights there will not be a durable, just and comprehensive solution to the conflict in historical Palestine.

View online : Orient XXI

[1Israel: A Colonial Settler State?, London, Pathfinder Press, 1973.

[2Israel: An Apartheid State, London, Zed Book, 1987.

[3Patrick Wolfe, The Logic of the Elimination of the Native, Journal of Genocide Research, december 2006.

[4See Ilan Pappe, The Ethnic Cleansing of Palestine, London and Oxford, One World, 2007

[5See Nur Masalha, A land without a people, London, Faber and Faber, 1997.

[6We are grateful to Joe Schechla, Coordinator, Housing and Land Rights Network, Habitat International Coalition, Cairo, Egypt, for the reference.

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