The B'nai Brith Canada Institute for International Affairs has a mandate to protest the abuse of human rights throughout the world and advocate on behalf of worldwide Jewish communities in distress. The Institute has a special focus on pro-Israel advocacy and education.

Rochelle Wilner
President

Frank Dimant
Chief Executive Officer

Amos Sochaczevski
National Chair

Ruth Klein
National Director


ISRAEL AND THE PALESTINIANS:
Myths and Realities

by David Matas, LL.B., M.A.
Senior Legal Counsel,
B’nai Brith Canada

When the member states of the United Nations gather to discuss racism, anti-racist advocates have cause for concern. Will racism be condemned or endorsed; will the fight against racism be advanced or set back?

It is a victory for the anti-racist community, albeit a modest one, if the member states of the United Nations do not endorse racism. For the anti-racist community, the convening of a United Nations conference on racism becomes an exercise in damage control. Time, effort and money have to be poured into the struggle to prevent the inter-governmental community from reinforcing racism.

The Jewish community is a primary victim of twentieth century racism. The global response to the horrors of the Holocaust - the murder of six million Jews and the attempt to extinguish the whole Jewish people - was two-fold. The first response was the elaboration of human rights instruments and mechanisms, starting with the Universal Declaration of Human Rights. The second was the acceptance by the world community of the need to create the State of Israel.

While the Universal Declaration of Human Rights met with consensus, the creation of the State of Israel did not. There remain to this day states at war with Israel, which refuse to recognize its existence and call for its destruction. Discussions at United Nations fora have become a reflection and a continuation of this war against Israel. Enemies of Israel have attempted to use the United Nations in a variety of ways to wage a campaign to delegitimize the State of Israel.

World conferences against racism have been front and centre in this anti-Israel attack. The 1978 conference, held in Geneva, recalled, “with deep regret” as part of its concluding declarationi the prevention of the return of the Palestinian people to their homes and the establishment therein of “settlers from abroad”. The 1983 conference, also held in Geneva, in condemning apartheid, singled out Israel alone for its trade with South Africa from amongst all the nations engaged in discreet bilateral trading with that pariah state.ii Similarly, the conference recalled with deep regret the “practices of racial discrimination in Israel.”iii

The preparatory discussions to the 2001 World Conference Against Racism, which will be held in August 31-September 7, 2001 in Durban, South Africa, have held up a similar spectre of condemnation of Israel. The Asian preparatory meeting for the World Conference, held February 2001 in Tehran (from which Israel was barred), expressed “deep concern” that Palestinian refugees are prevented from returning to their homes and properties because of a “racially” based Law of Return.iv The Tehran Declaration further recognized the “right of return” of the Palestinian refugees.

The following text sets out some of the criticisms of Israel that have surfaced at the United Nations before the third World Conference Against Racism and provides responses to those criticisms. Some of these criticisms are themselves racist. Yet, it is likely that they will be presented both at the non-governmental and inter-governmental fora in Durban. They may even be endorsed by the World Conference, as they were by the two previous World Conferences. These criticisms should be answered, rather than ignored.

 

Criticism: Zionism is racism.

Response: Zionism, the belief in the need for the State of Israel, is an assertion of human rights. Zionism asserts the right to the self-determination of the Jewish people and the right to preserve their cultural identity.

The Holocaust, though it left some Jews alive, completely extinguished Jewish shtetl culture in Europe. The survival of Israel is necessary today not only to protect its Jewish residents from those who would drive Jews in the Middle East into the sea. It is necessary as well for the cultural survival of the Jewish people. The end of the State of Israel would be a continuation of the Holocaust, a rejection of its human rights legacy, and an act of cultural genocide against the Jewish people everywhere.

The right to self-determination of peoples is the only human right that is to be found in both the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic Social and Cultural Rights. Its presence in both Covenants underlines its nature as a foundation for all rights.

The right to self-determination of a people does not always mean a right to statehood. However, it coalesces into a right to statehood whenever the rights of a people are violated in so gross and flagrant a manner that to expect the people to remain under the government of the perpetrators would be inhumane.v

If ever a people has earned through its suffering the right to statehood, it is the Jewish people. Throughout history, racism and its victims were found everywhere, but the scale and scope of the “Final Solution” was unprecedented. While the Nazis and their cohorts proceeded with plans to exterminate the Jews of Europe, countries around the world denied the victims refuge from persecution and death. After the war, in contrast, Nazi mass murderers found havens from prosecution with ease.

The horrors of the Holocaust discredited traditional antisemitism. Yet, antisemitism did not die. For many member states of the United Nations, it has become anti-Zionism. Israel has become the Jew amongst nations, condemned for sins it did not commit and targeted for destruction.

Anti-Zionism is typically a form of anti-Jewish racism, the assertion that the Jewish people, alone amongst the peoples of the world, do not have the right to self-determination.

Turning racist discourse on its head, in 1975 the United Nations General Assembly, by a vote of 89 to 67, passed a resolution declaring that Zionism is a form of racism. That resolution sat on the books until 1991 when it was revoked by a vote of 87 to 25. There remain, from the last recorded vote, at least 25 states that maintain the position that Zionism is a form of racism. That resolution was not an innocent mistake regarding the nature of racism, but rather a conscious attempt to delegitimize Israel and deny the Jewish people their right to self-determination.

 

Criticism: The Israeli Law of Return is racist because it allows Jews admission to Israel on the basis that they are Jewish.

Response: The Holocaust was possible because there was no state to which the Jews could flee. If Israel had existed before World War II, the Holocaust would not have happened.

Even after the war, it was easier for Nazis who perpetrated the Holocaust to get out of the displaced persons camps and find resettlement than it was for Jewish survivors. Before the creation of the State of Israel, Jewish survivors sat in refugee camps in Europe with little hope of relocation.

The Holocaust dictates not only that there should be a Jewish state, but also what kind of state it should be. The failure by countries around the globe to grant refuge to Jews fleeing the Holocaust and its aftermath tells us that a Jewish state has to be a place of refuge to Jews from all over the world.

Moreover, Israel was the logical choice for this place of refuge given that it was the ancient state of the Jewish people. Even after the expulsion of the Jews from their national homeland by the Romans in 70 AD, there has always been an unbroken chain of attachment and longing to return, as well as a continuous Jewish presence in the land of their forefathers.

This right of refuge is recognized in the Israeli Law of Return. This law is more than righting a historical wrong by providing a haven to survivors of the Holocaust. It has contemporary relevance because of continuing antisemitism, including the wave of antisemitism unleashed in the Middle East by the wars against Israel, and in some countries of Central and Eastern Europe by the replacement of communism with chauvinism. Only Israel offers an escape to every single victim of continuing antisemitism.

The phrase “Zionism is racism” is a blatant form of language distortion. Its repeal did not mean that the desire to obliterate the State of Israel and deny the right to self-determination of the Jewish people has ended. The desire rather has taken other more indirect linguistic forms. Instead of calling Zionism a form of racism, some member states of the United Nations have called the Israeli Law of Return racist.

This bandying about of the charge of racism, throwing it at Israel - the state of the survivor community of the most vicious racism - aside from its perversity and cruelty, ignores what racism is. Race has no objective scientific or anthropological meaning. There are not multiple human races, only one human race.

The 1951 United Nations Convention on Refugees obligates signatory states to provide protection to those who have a well-founded fear of persecution by reason of five listed grounds. One of these grounds is race. To fit within this category, the person does not actually have to be of a certain race that is targeted for persecution. Rather, the person has to be perceived by the persecutor to be of the race designated for victimization.

The concept of race has to be distinguished from the concept of a people. The two concepts are, in fact, exact opposites. A race is defined others, by the persecutor. A people is self-defined by the people themselves. They decide who can become members. Individuals decide whether or not they want to become members of that people. Integral to the right of self-determination of peoples is the right to determine who is eligible for membership. Once outsiders can say who is and who is not eligible to be a member of any given people, the right to self-determination is gone.

The Israeli Law of Return is an integral part of the right to the self-determination of the Jewish people, because it is an expression by the Jewish people of who their members are. Labelling Israel’s Law of Return as racist is, like labelling Zionism as racism, yet another form of delegitimization and denial of the right to self-determination of the Jewish people.

Just as anti-Zionism is a form of racism, by denying to the Jewish people the right of self-determination, so is opposition to the Israeli Law of Return, since it denies the Jewish people the right to determine their own membership. The right to self-determination cannot exist without the right to self-definition. To say that the Jewish people do not have the right to self-definition is to say that the right of self-determination exists for other peoples, but not for the Jews.

 

Criticism: The Israeli Law of Return is racist because it is based on ancestry or blood lines.

Response: The Israeli Law of Return considers a person as Jewish if the person was born a Jew or has converted to Judaism, and is not a member of another religion [Article 4B]. Judaism is a religion that anyone can join. While it does not proselytize, it does accept converts. It is impossible to call a law racist when anyone who chooses, by converting to Judaism, can take advantage of the law.

Race is often identified with colour. Yet, Jews come in every colour. There are black Jews, Falashas, who - under the Law of Return - were airlifted from Ethiopia to Israel by the Israeli government. One cannot brand a law racist that encompasses all races.

Citizenship laws across the globe allow parents to pass on their citizenship to their children. For instance, a child born of a Canadian parent is Canadian, no matter where in the world the child is born. The child can maintain Canadian citizenship throughout his or her life without ever entering Canada, provided that the person establishes a substantial connection with Canada.vi A citizenship law cannot be racist simply because it is based on birth.

The basic law of Germany allows anyone to become a citizen who is the descendant of a person who was a German citizen and was deprived of that citizenship on political, racial or religious grounds between January 30, 1933 and May 8, 1945.vii The person does not have to be a first generation descendant. This German law is itself informally called a Law of Return, yet no United Nations resolution has ever suggested that this German Law of Return is racist.

 

Criticism: The Israeli Law of Return discriminates against those who are not Jewish.

Response: The Israeli Law of Return distinguishes between those who are Jewish and are those who are not Jewish, but does not discriminate against those who are not Jewish. Not every legal distinction amounts to discrimination. A prohibition against discrimination does not encompass any law that has as its object improving the lot of the disadvantaged, including those disadvantaged because of race or religion.viii

The Israeli Law of Return exists as a protection against the racism Jews have suffered and continue to suffer. The law is a form of affirmative action, making sure that Jews who are at risk elsewhere around the world can seek and obtain protection in Israel.

In principle, every person who is the victim of antisemitic discrimination should be considered Jewish under the Law of Return whether, objectively, the person has any cultural or religious ties with Judaism or not. If racists target a person as Jewish, then a law and a state created to protect Jews should offer protection to that person. Offering protection to the victims of racism does not make the protector racist. Acknowledging the existence of racism and the need to defend against it is the antithesis of racism.

The Law of Return encompasses within its definition of a Jew those who had been targeted by the Nazi race laws. It includes in its definition of a Jew every person who was born of a Jewish mother.ix The Law further provides that the rights of a Jew are vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew, and the spouse of a grandchild of a Jew. The only exception to this law is a person who has been a Jew and who has voluntarily changed his religion.x

The Jewish community has learned through bitter experience who is likely to be targeted by antisemites for hatred and destruction. The Nazi Nuremberg race laws, attached as an appendix to this report, are a flagrant example.xi Calling the Israeli Law of Return “racist” means rejecting the notion that Jews have been disadvantaged and, in many countries, are still disadvantaged. The State of Israel, through its Law of Return, offers protection to all such people. It confounds logic, language and common sense to argue that a law designed to protect targets of racist persecution is itself racist.

 

Criticism: Palestinians have a “right of return” to Israel.

Response: The call for a Palestinian right of return is an eerie form of mimicry of the language of the Israeli Law of Return. It defies language and logic for states in one breath to call the Israeli Law of Return racist and in the next to call for a Palestinian right of return.

The claimed Palestinian right of return is not a “right”, since it is recognized neither in Israeli law nor in international law.xii Nor is it about “return”, since it is applied to millions of people who have never set foot in Israel.

There are reportedly 6.5 million Palestinians around the world who trace their descent from Arabs who lived in Palestine before 1948 and who identify themselves as Palestinians. Potentially all of these 6.5 million people would benefit from the asserted right of return.

As of December 30, 1999, according to the Government of Israel Central Bureau of Statistics, the population of Israel was 6.2 million people, of which 4.9 million were Jews. To introduce into that population a potential 6.5 million Arab Palestinians would mean that the Jewish character of the State of Israel would end, the preservation of the cultural identity of the Jewish people would be threatened and the right to the self-determination of the Jewish people would be defeated.

International human rights law allows for restriction on freedom of movement in order to allow for the preservation of the cultural identity of a people.xiii If for no other reason, Israel is justified in preventing the entry of 6.5 non-Jewish Palestinians into Israel in order to preserve the cultural identity of the Jewish people.

The coupling of a policy of entry into the Jewish State of Israel of a potential 6.5 million Palestinian Arabs together with a policy that would deny Jews around the world the right to seek refuge in Israel, should be seen for what it is: a naked attempt to end the right to self-determination of the Jewish people. The massive influx of a population that shares neither the language, nor the culture, nor the religion of the Jewish people would mean the end of Israel as the state for the Jewish people.

There may be some who assert the right of return for Palestinians without any awareness of the impact it would have on the Jewish people. Others are aware but either do not care, or worse, support that impact. For those in support, “the right of return of the Palestinian people” is today what the “final solution to the Jewish problem” was in the days of Hitler, a mask of words disguising the end result: a denial of the Jewish people’s right to a national identity in its historic homeland.

 

Criticism: Every person has a right of entry to his own country. Because Israel is the country of the Palestinians, Palestinians have a right of entry to Israel.

Response: The Universal Declaration of Human Rights asserts a right of return. However, the treaty that followed this provision, the International Covenant on Civil and Political Rights, does not. The closest provision within the Covenant to a right of return is the right of entry.

The Universal Declaration of Human Rights provides, in article 13(2), that everyone has the right “to return to his country.” The International Covenant on Civil and Political Rights provides, in Article 12(4) that: “No one shall be arbitrarily deprived of the right to enter his own country.”

The Human Rights Committee established under the International Covenant on Civil and Political Rights General Comments on Freedom of Movementxiv states as a general principle that a country is a person’s own country if the person, because of his or her special ties to or claims in relation to that country, cannot be considered to be a mere alien. The Committee gives three examples:

  1. the person has been stripped of his or her nationality in violation of international law,
  2. the country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them, and
  3. the person is stateless, a permanent resident of the country and arbitrarily deprived of the right to acquire the nationality of that country.

Neither the examples nor the general principle apply to Israel. Israel has not stripped Palestinians of their nationality in violation of international law. The country of nationality of the Palestinians has not been incorporated in or transferred to Israel. Stateless Palestinians are not permanent residents of Israel arbitrarily deprived of the right to acquire the nationality of Israel.

More generally, Israel is not the country of stateless Palestinian refugees. These refugees do not have special ties to or claims in relation to Israel. Each of these points is elaborated in what follows.

 

Criticism: Palestinians have been stripped of their nationality in Israel in violation of international law.

Response: Palestinians who claim a right of return to Israel never had nationality in Israel, and never were stripped of that nationality. There are alive today some Palestinians who had been offered the nationality of British Mandate Palestine. However, British Mandate Palestine no longer exists. These Palestinians lost their nationality in British Mandate Palestine because it no longer exists.

 

Criticism: The country of nationality of Palestinians, British Mandate Palestine, has been transferred to Israel, whose nationality is being denied them.

Response: The area currently under discussion comprises about one fifth of the original Mandate of Palestine which was awarded to Britain by the League of Nations on April 25, 1920. The remainder was subsequently ceded to the Hashemites to form Transjordan, the precursor of modern-day Jordan, of which approximately two thirds of the population are of Palestinian origin.

According to United Nations General Assembly Resolution 181 of November 29, 1947, there were to be two states created out of the remaining area of British Mandate Palestine west of the Jordan - a Jewish state and an Arab state.

The resolution recommended the adoption of a plan of partition that stated: “Independent Arab and Jewish States...shall come into existence in Palestine.” The details of the partition plan are superseded by United Nations Security Council Resolutions 242 and 338 of 1967 and 1973 respectively. However, the principle that there would be two states in the land of Palestine, one Jewish and one Arab, has not been superceded.

The suspended animation of the future Arab state in part of the territory of British Mandate Palestine has prevented the application of the principles of state succession. The Arab state, once created, may and certainly should allow Palestinian refugees to acquire the nationality of that state. Palestinian self-determination in its own state does not depend on a right of return to the State of Israel.

The Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, adopted by the International Law Commission in July 1999, deal with the situation where a state ceases to exist and the various parts of the territory of the predecessor state form two or more successor states. One article attributes nationality based on habitual residence.xv Another article grants a right of option.xvi

The trouble with using these provisions is that, even though the predecessor state, British Mandate Palestine, has dissolved and ceased to exist, there are not now two successor states on the territory of the old Palestine west of the Jordan as envisaged by Resolution 181. It is impossible for the International Law Commission Draft Articles on Nationality of Natural Persons in Relation to the Succession of States to operate according to their terms until the Arab state in British Mandate Palestine west of the Jordan is created, and its law of nationality is legislated. Some of those Palestinians who left the territory of what has now become Israel, before its creation, left because they wanted to live in an Arab Palestine state rather than in a Jewish state. Today, presumably, Palestinian refugees would prefer to live in an Arab Palestinian state rather than a Jewish state.

As explained later, it is not altogether apparent that the principles set out in the draft articles cited above should apply to British Mandate Palestine. However, even if these principles are applied, the delayed creation of an Arab state in that area cannot create a right to nationality in the Jewish state. If the Arab state, once created, would be the country of Palestinian refugees, the delay in its creation cannot now make Israel the country of Palestinian refugees.

 

Criticism: Palestinians are stateless. They or their ancestors were permanent residents in what is now Israel. They have been arbitrarily deprived of the right to acquire Israeli nationality.

Response: Palestinians are not now permanent residents of Israel. Most of them have never been permanent residents of territory that is in Israel. They have not been arbitrarily deprived of the right to acquire Israeli nationality for the reasons given in the previous response.

The 1961 Convention on the Reduction of Statelessness attempts to address the problem of statelessness by committing signatory states to a series of rules for granting nationality to those who would otherwise be stateless. Israel signed the Convention, but has not yet ratified it. The 1969 Vienna Convention on the Law of Treaties provides that a state is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has signed the treaty, subject to ratification, unless and until it has made its intention clear not to become a party to the treaty.xvii

The denial of Israeli citizenship to stateless Palestinian refugees would not defeat the object and purpose of the Treaty. Palestinian refugees never had the citizenship of Israel. So the provisions of the Convention obligating states not to deprive certain persons of nationality do not apply to Israel and the Palestinian refugees.

There is nothing in the Convention on the Reduction of Statelessness dealing with the dissolution of a predecessor state and its succession by two new states. The general rule in the Convention is that a contracting state shall grant its nationality to a person born in its territory who would otherwise be stateless.xviii By now, the majority of the Palestinian refugees have been born outside of the territory that later became Israel.

Even for those born in the territory of what later became Israel, the problem arises caused by the delay in the creation of the Arab state envisaged in British Mandate Palestine west of the Jordan River. When that Arab state is created, would Palestinian refugees “otherwise be stateless”? In principle, they should not be, because the new Palestinian state should give all Palestinian refugees an option of acquiring nationality in that state. The delay in the creation of that state, here too, cannot create a right to nationality in Israel that would not otherwise exist. Insofar as statelessness has resulted because the Arab state has not yet come into existence, the remedy for that statelessness would be the creation of the Arab state, and not the creation of nationality in the State of Israel.

 

Criticism: A country with which a person has genuine and effective links is the person’s own country. Israel is the country of the Palestinians because that is the country with which Palestinians have genuine and effective links. Palestinians have genuine and effective links with Israel because their ancestors came from there; they are attached to the territory, and that attachment is inculcated in their children.

Response: There are people who have links with countries of which they are not nationals that are far stronger than the links of Palestinian refugee with Israel. Anyone who accepts the principle that a country with which a person has genuine and effective links is the person’s own country must apply that principle first to these other people, before it is applied to the Palestinians.

The notion that a country is the person’s own country because the person has genuine and effective links with that country most commonly arises when a Western country attempts to deport a Third World national who has lived in that country for many years, without having national status there. It is common for a deportee from a Western country to argue that, under international law, the deportation is illegal. This argument rests on the claim that even though the deportee is not a national of the country from which he or she is being deported, that country is his or her own country since the person has genuine and effective links with it.

These deportees may have been born in the country and spent their whole lives there. They may know the language of the country, and not that of the country of their nationality. They may be acculturated to the country that seeks to deport them and alienated from their country of nationality; all their immediate family may be resident and even nationals there. It is impossible to call for recognition of a right of return of Palestinians, because of genuine and effective links to Israeli territory, without first calling for an end to Western deportations of Third World immigrants and visitors from the countries with which they have established genuine and effective links.

Even if one were to accept that many non-nationals ordered deported have a right to remain in the country trying to deport them, it does not necessarily follow that Palestinian refugees have a right of entry to Israel. The ties of Palestinian refugees to Israel are more akin to those of emigrants to their country of emigration than to those of deportees to the country that seeks to deport them.

Acceptance by the world in general of the right of entry asserted by Palestinian refugees would mean unscrambling history. The consequence would be that millions of descendants of emigrés would have a right of entry to their ancestral countries.

A right of return based on genuine and effective links would apply to virtually everyone in the Americas. Except for its aboriginal population, everyone in the Americas has an ancestor born abroad. Many people in the Americas show an attachment to a country of their ancestors and inculcate that attachment in their children. There are, as well, many millions of descendents who fit this description in the rest of the world. It would create havoc to grant all those people a right of return to the country of their ancestors.

 

Criticism: The Nottebohm case in the International Court of Justice supports the claimed right of return of Palestinians to Israel.

Response: The non-governmental organizations Human Rights Watch and Amnesty International have both endorsed the claimed right of return of Palestinians to Israel.xix In doing so, they have abandoned their human rights mandates and called for a human rights violation. The organizations have been led astray, in part, by a misreading of the Nottebohm case in the International Court of Justice.xx

Friedrich Nottebohm was a German national carrying on business in Guatemala from 1905. He took out Liechtenstein nationality in 1939, after the outbreak of World War II, and, by so doing, lost German nationality. Guatemala was at war with Germany, but not with Liechtenstein. In 1943 Guatemala, as a result of war measures, refused to readmit Nottebohm after he left.

Liechtenstein claimed before the World Court that Guatemala had acted towards its national, Nottebohm, in a manner contrary to international law. The Court ruled that the ties of Nottebohm to Liechtenstein were so tenuous that Liechtenstein was not entitled to invoke Nottebohm’s nationality against Guatemala.

In order to determine whether ties are tenuous or whether there are genuine and effective links with a country, the Court proposed specific criteria. Those were: habitual residence of the individual concerned, the centre of his interests, his family ties, his participation in public life, the attachment shown by him for a given country and whether that attachment was inculcated in his children. Those criteria, applied to Nottebohm, did not point to Liechtenstein.

Human Rights Watch and Amnesty International have drawn support from this case for the claimed Palestinian right of return. These organizations argue that Israel is the country of the Palestinians because Palestinians have genuine and effective links with Israel. They claim that at least some of the Nottebohm criteria apply, that Palestinians have an attachment to territory within the boundaries of Israel and that attachment is inculcated in their children.

It should be pointed out that the Court in the Nottebohm case did not deal with the situation where a person has no nationality. It is a stretch to apply the Nottebohm case to the situation of the Palestinians who have no nationality.

However, if one does so, one can see that the Nottebohm case does not support the position argued by Human Rights Watch and Amnesty International. On the contrary, the case supports the completely opposite position, that Israel is not the country of the Palestinians.

The Court in the Nottebohm case observed that, at the time of his eviction from Guatemala in 1943, Friedrich Nottebohm had been settled in Guatemala for thirty-four years. Guatemala was the centre of his interests and business activities. If the reasoning of Human Rights Watch and Amnesty International were correct, then the Court would have considered Nottebohm to have had effective nationality in Guatemala. Guatemala could not have refused to admit him, not because they were obliged to recognize Liechtenstein nationality, but because he was, in reality, Guatemalan.

The Court did not condemn the Guatemalan refusal to readmit Nottebohm as an enemy alien. By the time the case was decided, the war with Germany was long since over, yet the Court did not rule that Nottebohm had a right of return to Guatemala.

Even if we put aside the question of whether Guatemala was the country of Nottebohm and consider only Liechtenstein, here too, the reasoning of the Court undercuts, rather than supports, the position of Human Rights Watch and Amnesty International. Nottebohm chose Liechtenstein. Yet, the Court held that this choice should be disregarded and that the matter should be viewed objectively.

Palestinian refugees may well want to go to Israel. However, if we are to follow the Nottebohm reasoning, then this choice must be disregarded.

Viewed objectively, Palestinian refugees who have never set foot in Israel and are not Jewish either by culture or religion have far more real, genuine and effective links with the Palestinian state in the making than with Israel. Those links must be viewed in combination with the right to self-determination of the Jewish people and the large number of stateless Palestinian refugees. The result is that stateless Palestinian refugees who have never set foot in Israel would have a right of entry to a new Palestinian state only, and not a right of entry to Israel.

 

Criticism: United Nations General Assembly Resolution 194 recognizes the claimed Palestinian right of return.

Response: The Asian preparatory meeting for the World Conference, held in Tehran in February 2001, referred to General Assembly Resolution 194 in support of the claimed Palestinian right of return. It was the sole reference in the document to support that right.

An examination of that resolution shows that it asserts no such right. Rather it resolves that “the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date”.xxi The Resolution registers support, from some of the nations of the world, for granting permission to Palestinian refugees to return, not for a right of return. The language of rights was neither used nor intended.

The support for permission to return was subject to a precondition. The refugees must be willing to live at peace with their neighbours. Yet, many of the countries in the Arab world that host Palestinian refugees remain at war with Israel. Granting permission to return, according to the resolution, was envisaged as a measure to follow a full and lasting peace with Israel, and not to precede peace.

The resolution supports granting permission to return to the refugees alone, and not to their descendants. Of course, in 1948 the nations of the world could not have anticipated that the Palestinian refugee problem would remain unresolved 53 years later. Nonetheless, that resolution cannot be read as support for the proposition that millions of adult descendants of the original refugees, who have never set foot in Israel, should be granted permission to enter Israel.

The use of the word “permission” has its own special significance. The word acknowledges that the right to allow or to deny entry rests with Israel. The resolution recommends to Israel that its admitted power of entry to its own territory be exercised in a particular way.

Reliance on Resolution 194 in support of the claimed Palestinian right of return is a form of Orwellian “double speak”, saying two opposites at one and the same time, and believing in both with equal fervour. No state would accept that non-nationals have a right of entry into that state’s territory simply because of historic links to the territory. Every state would assert that this entry into its own territory is a sovereign right of the state, subject to its permission, and not the right of the foreign national. Yet, these same states interpret Resolution 194, which asserts this sovereign right, as somehow creating a right in non-nationals which Israel must respect, completely disregarding Israel’s own sovereign rights.

In a democracy, majority rules. To avoid a tyranny of the majority over disadvantaged minorities, democracies, as well, entrench human rights protections in their constitutions. In the United Nations General Assembly, the majority does not rule. The majority of the General Assembly may or may not reflect the majority of the world’s population. Micro-states like Kiribati or Tuvalu have the same vote as states with massive populations like China or India.

States voting at the General Assembly may or may not be democracies reflecting the will of their people. Repressive governments at odds with the will of their people cast votes in the General Assembly which have the same numerical weight as the votes of democratic states.

The General Assembly does not rule. General Assembly resolutions cannot be equated to statutes of a legislature. The Charter of the United Nations gives the General Assembly power to make recommendations only.xxii

There is no institutional mechanism, paralleling the courts in democracies, which can invalidate General Assembly votes that fail to meet international human rights standards. The only mechanism available is public disregard. If a General Assembly vote fails to respect the human rights of a minority, the vote should be ignored. That should be so even where the resolution represents the will of the majority of the states of the globe.

When the General Assembly passes a resolution respectful of human rights by consensus obligating each and every state, and the resolution is coupled with state practice in conformity with the resolution, then something has happened that approaches legal force. When the General Assembly passed the Universal Declaration of Human Rights by consensus, that was more than just a statement of political opinion.

However, when the General Assembly passes a vote on what Israel should or should not do, that vote tells us the political position of each and every state that votes in relation to Israel and nothing more. Such a vote binds neither the planet, nor Israel, nor the states voting in favour.

Resolution 194 was not passed unanimously, nor by consensus. Thus, it is not legally binding on any party. In particular, the Arab states voted against Resolution 194. There is obvious hypocrisy in the Arab states that voted against resolution 194 now saying to states that voted for the resolution: “You are bound by your vote, but we are not bound by ours”.

Even if resolution 194 could be read as an endorsement of the claimed Palestinian right of return, that endorsement should be disregarded because, as argued elsewhere, it does not respect the rights of the Jewish people. Human rights standards thus invalidate the vote.

There are many United Nations General Assembly resolutions that appear to support the Palestinian right of return.xxiiiIt is odd that the Tehran Declaration would cite a UN resolution that does not endorse the claimed Palestinian right of return and profess that it does, rather than cite UN resolutions which do appear to support a Palestinian right of return. It is also strange that Arab states would now invoke a resolution they had earlier opposed, and pass over resolutions they have always supported.

The answer presumably lies in the date of Resolution 194. The resolution was passed on December 11, 1948, following closely upon the creation of the State of Israel on May 14, 1948. While later resolutions asserting the Palestinian right of return were passed around the time of the resolution equating Zionism with racism, Resolution 194 was passed by a General Assembly not in the thralls of the reflex anti-Israel majority that developed subsequently. Thus, it is evidently seen by the enemies of Israel as a sort of admission by the then friends of Israel. This reliance on Resolution 194 should be seen for what it is, a cheap debating trick rather than an international law argument.

 

Criticism: The Palestinian right of return to Israel, because of its repeated acceptance by the majority of the states of the globe, has become customary international law.

Response: Customary international law is a custom or practice by states which they consider binding upon themselves. An example would be the principle that, in all actions concerning children undertaken by the state, the best interests of the child shall be a primary consideration. There is a widespread practice around the world by states giving the best interests of children primary consideration. States everywhere consider the practice binding upon themselves. The 1989 United Nations Convention on the Rights of the Child,xxivwhich asserts this principle, has been signed by every state in the world except Somalia. The only reason Somalia has not signed is that it has no government in place that the international community recognizes as having the authority to sign the Convention.

Once a customary international law exists, it binds the whole international community, not just those who have been instrumental in establishing the law. So, for instance, the principle that, in all actions concerning children undertaken by the state, the best interests of the child shall be a primary consideration binds Somalia, even though Somalia has not signed the Convention on the Rights of the Child.

In order for there to be customary international law, there must be law, that is to say, a general principle; it must be customary; and it must be international. The claimed Palestinian right of return meets none of these criteria. It is, first of all, not a general principle. It is a particular situational assertion. The general principles invoked in support of the claimed right of return, the right to enter one’s own country or the right to nationality, do not, as argued elsewhere in this paper, give Palestinians a right of return to Israel.

Second, it is not customary. A custom requires repetition of certain behaviour by many states over a long period, in the conviction that there exists an obligation to act in this way. A general principle on which Palestinians could rely to give them the right they assert is the principle that descendants have the right of entry into the country of their ancestors. Yet, there is no general practice around the world of giving non-national descendants the right of entry into the country of their ancestors. A custom of this nature simply does not exist.

Third, it is not international. Those states that support the right of return claimed for Palestinians are asserting a claim against one state only, Israel. They are not accepting any principle as binding upon themselves.

A large number of states ganging up on Israel does not make Israel’s existence illegal, only unpopular. When Israel’s critics condemn it for its failure to recognize the claimed Palestinian right of return, the true quarrel they have with Israel is its existence. What Israel has done to justify the criticism is survive. The only thing that will satisfy anti-Zionist critics is Israel’s destruction.

 

Criticism: The right of return claimed for Palestinians has been recognized elsewhere in other situations.

Response: Analogies with other situations are never exact. The Palestinian Liberation Organization put out a “Factfile” dated April 2000, with a section entitled “The Right of Return and of Compensation in Other Selected Cases”. The cases listed are the former Yugoslavia, Abkhazia/Georgia, Cyprus, Namibia-South Africa, and Iraq-Kuwait. Yet, in none of these cases is the situation the same as that in Israel. Except for the former Yugoslavia, all are single state situations. Also, the division of Cyprus has not been recognized by the international community. Thus, these “Other Selected Cases” are not analogies to the case of Israel today.

On the break-up of the former Yugoslavia, there was no acceptance by the international community of its division into ethnic or religions components to parallel the international acceptance of the partition of British Mandate Palestine into a Jewish state and an Arab state. There was no genocide that preceded the break up of the former Yugoslavia prompting the international community to assert the right to self-determination of any one of its religious or ethnic communities.

The closest one can come to a historical parallel to the creation of Jewish and Arab states out of British Mandate Palestine is the partition of the Indian subcontinent in 1947 and the creation of two states, one predominantly Moslem - Pakistan, and one predominantly Hindu - India. After partition, there was a mass movement of Hindus from Pakistan to India, and of Moslems from India to Pakistan, in the midst of wide scale armed combat. The international community does not now assert a right of return of those who moved after partition of the Indian subcontinent, whether those who relocated moved voluntarily or out of fear. This silence about the Indian subcontinent speaks volumes about the claimed Palestinian right of return.

 

Criticism: The solution to the problem of statelessness of the Palestinians is Israeli nationality.

Response: The Palestinian people are a population of stateless refugees for which no solution acceptable to them has yet been found. There is a real problem, but the existence of the State of Israel is not the cause. Its destruction is not the solution. The preferred solution under international law to the problem of statelessness is not nationality in a state in whose territory ancestors have lived, but rather nationality in the state where the descendants have been born. The United Nations Convention on the Reduction of Statelessness has, as mentioned, a general rule that a contracting state shall grant its nationality to a person born in its territory.

The Convention is not widely accepted, having only twenty-one state parties, so it cannot be considered as customary international law. Since the Convention has not been signed and ratified by most of the states where stateless Palestinian refugees have been born, these states cannot be held to account for violation of the Convention. Nonetheless, the Convention provides a useful guide or standard.

The solution to the problem of statelessness of Palestinian refugees is the grant of nationality by the states in whose territories Palestinians have been born. It is the failure of these Arab states to grant nationality to Palestinians, as well as the failure to reach a peace agreement that would establish a Palestinian state, which created the problem of statelessness for the Palestinians, and not the existence of the State of Israel.

 

Criticism: The solution to the Palestinian refugee problem is repatriation to Israel.

Response: For refugees, the Office of the United Nations High Commissioner for Refugees promotes three durable solutions: local integration, third country resettlement and voluntary repatriation. These durable solutions are not part of any treaty. However, their support by the Office of the United Nations High Commissioner for Refugees and its Executive Committee does give them an international status.

The notion of voluntary repatriation of stateless refugees is an oxymoron. Stateless refugees, by definition, have no country of nationality. There is no country to which stateless refugees can be repatriated.

Some of the stateless Palestinian refugees once had been offered nationality in a state that no longer exists, British Mandate Palestine. Other stateless Palestinian refugees never had nationality anywhere and, with the exception of Jordan, were commonly denied citizenship in Arab countries. It is legitimate to ask whether either Israel or the Palestinian state in the making should become for the first time, the country of nationality of stateless Palestinian refugees. However, in answering that question, we must keep in mind that what we are talking about is patriation, not repatriation.

In general, the community of nations should share the responsibility for resettlement of refugees. Israel has done more than its fair share of resettlement of the world’s refugee population. This is because of its Law of Return and the protection it has given to hundreds of thousands of Jewish refugees fleeing antisemitism, including Holocaust survivors from the Displaced Persons Camps of Europe, and between 700,000-800,000 Jews fleeing persecution in Arab lands primarily in the years of 1948-1952.xxv Shlomo Deshen and Moshe Shokeid, The Predicament of Homecoming: Cultural and Social Life of North African Immigrants in Israel, Cornell University Press, 1974 Israel has also accepted the entry of 100,000 Palestinians in the framework of family reunification. There are other countries that have done a good deal less than Israel in resettling refugees and who could provide a durable solution to the problems Palestinian refugees face.

 

Criticism: Even if there is no Palestinian right of return while the war against Israel continues, the right arises once there is peace. A final peace agreement with Israel must include a Palestinian right of return.

Response: In general, a peace agreement should be settled between the parties to the agreement. It is inappropriate for outsiders to say what should or should not be in a peace agreement. For outsiders to insist that one provision or another should be in a peace agreement creates an obstacle to the peaceful settlement of disputes by emboldening one of the parties to the dispute.

The peaceful settlement of disputes is itself an overarching United Nations value, to be found in the Charter of the United Nations in its very first article. Positions taken by a United Nations conference supporting one side in a dispute make the peaceful settlement of the dispute less likely and frustrate a main purpose of the United Nations.

Resolutions like “Zionism is racism” make peace in the Middle East harder to achieve. Negotiators for the Palestinians become hardened in untenable positions because of the support they receive through the United Nations. These sorts of resolutions envenom the dispute and foster war rather than peace.

There is, nonetheless, an exception to the general principle that a peace agreement should be left to the parties. No peace treaty should bargain away human rights. Indeed, some human rights values are jus cogens, peremptory norms of international law, which no treaty can bargain away. The Vienna Convention on the Law of Treaties provides that a treaty is void if it conflicts with a peremptory norm of international law.xxvi

The claimed right of return of Palestinians to Israel is not a right, let alone a human right. The relevant human right is a right to nationality. The 1948 Universal Declaration of Human Rights provides that every person has the right to a nationality.xxvii The Declaration, however, does not assert the right to any particular nationality.

The wrong, the human rights violation, which the Declaration seeks to combat is statelessness. The remedy for the wrong is the grant of nationality. No human rights instrument states that the sole acceptable remedy for the wrong of statelessness is the grant of nationality in the state now encompassing the territory in which ancestors resided.

The closest one can come to finding an instrument recognizing a right that stateless Palestinians could invoke is the International Law Draft Articles on Nationality of Natural Person in Relation to Succession of States. These Draft Articles have yet to be approved by the United Nations General Assembly. In its last session, the General Assembly simply invited governments “to take into account, as appropriate, the provision contained in the articles.” A preambular paragraph in the resolution referred to the Draft Articles as “a useful guide for practice in dealing with this issue”. xxviii

The Draft Articles repeat what is in the Universal Declaration of Human Rights, that everyone has a right to a nationality in at least one state.xxix The Draft Articles make proposals to ensure that this happens, but do not suggest that the right to nationality is violated if nationality is granted in one state and not another.

As indicated previously, the Draft Articles propose that, in a situation where a state has dissolved and various parts form two successor states, each successor state should attribute its nationality to persons who have their habitual residence in its territory, with an option of nationality in the other state. The International Law Commission puts forward this proposal as a solution to the problem of statelessness, but not as the only acceptable solution. Nationality in either state that succeeds the predecessor state, or indeed any state, is a solution to the problem of statelessness consistent with human rights.

The removal of statelessness is not the only human rights value one has to keep in mind in assessing the acceptability of a Middle East peace agreement. There is also the right to self-determination of the Jewish people and the right to preserve their cultural identity. Any provision of a peace agreement that denies or threatens these rights is unacceptable in human rights terms.

The problem of statelessness of Palestinians can be resolved in at least two ways by a Middle East peace agreement, either by granting citizenship in the new Palestinian state that would be created by the peace agreement, or by granting citizenship in Israel. Either of these grants would resolve the Palestinian problem of statelessness. Only one, however, would be consistent with respect for the right of the Jewish people to self-determination and the right to preserve their cultural identity - the grant to stateless Palestinian refugees of citizenship in the new Palestinian state that would be created by a peace agreement.

The other solution, the grant to stateless Palestinian refugees of Israeli nationality, would violate the human rights of the Jewish people and should not be part of any human rights respecting peace agreement. There is no other Jewish state through which the right to self-determination and right to preservation of the cultural identity of the Jewish people can be respected. The choice is Israel or nothing.

 

Criticism: Israel is responsible for the victimization of the Palestinian people.

Response: The State of Israel, like the Jewish population in the days of Hitler, has become the scapegoat for a problem whose cause lies elsewhere, the accused for a violation whose perpetrators are elsewhere. Like the Jewish problem in the days of Hitler, enemies of the Jewish people today have created the Palestinian problem in order to justify Israel’s destruction. The victimization of the Palestinians comes from the very people who call the Law of Return of Israel racist, and then proceed to call for the right of return of the Palestinian people.

Leaders in support of the claimed Palestinian right of return, and in opposition to the Israeli Law of Return, are Tunisia, Algeria, Libya, Iran, Iraq, Syria, Saudi Arabia, and Yemen, all countries with abysmal human rights records. When these countries attack Israel, it should be obvious that their primary concern is not respect for human rights. Indeed, while these countries condemn Israel for their violations of Palestinian rights, these very same countries violate the rights of Palestinians with gusto.

The Arab world has victimized the Palestinians, denying them citizenship, failing to resettle them, and then transferring the blame to Israel. Many states in the Arab world want Israel to disappear from the map. In order to get sympathy for that goal, these states victimize their Palestinian populations and shift the blame to Israel. One can sympathize with the plight of the Palestinian people without faulting the existence of the State of Israel.

 

Criticism: Palestinians were not responsible for the Holocaust. They should not be made to suffer as a result of it. They are under no obligation to remedy the wrongs of the Nazis.

Response: The Holocaust was global, not just European. It had a Middle East dimension, because of the failure of the states of the Middle East to offer protection to Jewish refugees before, during and after the Holocaust. Jewish refugees were protected and resettled in the Middle East without hindrance only after the creation of the State of Israel.

Up until the creation of the State of Israel, it was the United Kingdom that was nominally responsible for shutting Jews out of Palestine. However, Britain, in saying ’no’ to Jews attempting to find refuge in Palestine and in running an anti-Jewish blockade, was carrying out the intransigent will of the local Arab leadership.xxx

The crimes committed against the Jews were crimes against humanity, not just crimes against Jews or Europeans. The notion that the Holocaust was a European crime that should be remedied in Europe is a denial of the universality of human rights, a rejection of the common humanity we all share. This attempt to Europeanize the Holocaust is an assertion that the harm that was done was inflicted on “others”, not on everybody. Humanity can not be compartmentalized into geographical components. The obligation to remedy these wrongs falls on the whole global community, not just on Europe.

Equating the creation of the State of Israel with the suffering of the Palestinian people is yet another euphemism for denial of the rights of the Jewish people, a rejection of their right to self- determination and cultural preservation, a masked form of racism. The suffering of the Palestinian people flows from their statelessness, the failure of the global community to provide a durable solution to the refugee population and the continuation of the war with Israel, and not from the existence of the State of Israel.

In the end, the suffering of the Palestinian people is caused by their refusal to recognize the existence of Israel and is not caused by that reality itself. If there were peace, and Palestinians were given nationality either in the new Palestinian state to be established by the peace agreement, or in the territories of the states where they are now living, or in refugee resettlement countries around the world, their suffering would end.

 

Criticism: International law prohibits forcible exile or expulsion of any one based on their group identity or ethnic origin. Israeli law has forcibly exiled or expelled Palestinians in violation of international law.

Response: There is no Israeli law stating that Palestinians are to be exiled or expelled. Nor is there any Israeli law that can be considered in substance to be a measure exiling or expelling Palestinians.

The Israeli Nationality Law states that every person who, immediately before the establishment of the state, was a Palestine citizen but who left Israel before the coming into force of the Israeli Nationality Law, is not an Israeli.xxxi Simply put, this provision, coupled with the Entry into Israel Law, means that a Palestinian who left the territory of what is now Israel immediately before or after Israel was created cannot now come back.

The status of these individuals is entangled with the question of whether Israel is their own country. In international law, every country has a right to deny entry to foreigners. If Israel is not the country of the Palestinians, then the State of Israel has the same right to deny them entry as any country does to deny entry to any foreigner.

Even if Israel were now completely empty territory with no inhabitants, it is impossible to describe those who never set foot in Israel as forcibly exiled or expelled from Israel. On the assumption that the land of Israel were empty, the right of return of Palestinian refugees, at its strongest, would exist only for those who had once lived in what is now Israel and their immediate families.

Of course, the land of Israel is not now empty. A country is not just land; it is, indeed, primarily people. The Jewish people who are now in Israel have rights that compete with the rights of those who once lived in what is now Israel. These competing rights are the right to self-determination and the right to cultural preservation that would be threatened or lost by the mass entry of Palestinians into Israel.

Because Israel already has a minority Palestinian Arab-speaking population, Israel could admit and integrate a small number of Palestinian refugees without changing its character or purpose, its raison d’ętre. However, the number of Palestinian refugees demanding entry into Israel according to the “right of return” is not small.

The notion that Israel is the country of the Palestinians focuses on the territory of Israel to the exclusion of its people. It is a rejection or denial of the Jewish reality of the State of Israel. It is impossible to accept that Jewish reality and, at one and the same time, to assert that Israel is the country of the Palestinians.

 

Criticism: In Israel, there is discrimination against Palestinians.

Response: The Israeli Declaration of Independence provides that the State of Israel “will establish equal social and political rights for all its citizens without distinguishing on the basis of religion, race or gender.” One of the five books of Moses, Leviticus, states: “You shall have only one law, the stranger shall be as a citizen”.xxxii Israel is therefore committed to equality in principle and the vocation of Israel as a Jewish state does not change or temper that commitment to equality.

Israeli Justice Aharon Barak, in a speech given in Toronto to the Canadian Friends of the Hebrew University in June 2000, stated:

“Zionism was born to negate racism. It learned to know the extent to which racist treatment, dictated by religious or national belonging, can degrade human character. This Zionism is opposed to any patterns of discrimination on the basis or religion or nationality.”

No state should be judged only by its professed ideals. It should as well be judged by its practice. It is legitimate to criticize discriminatory practices wherever they are found, whether in Israel or elsewhere.

However, to criticize alleged discrimination only in Israel and in no other country of the world becomes a political act of selective criticism, itself a form of discrimination against Israel.

The concluding document of the Asian preparatory meeting for the World Conference Against Racism, held in February 2001 in Tehran, was strident in its condemnation of Israel. Yet, the document said nothing about the recent imprisonment in Iran of Jewish community leaders, religious studies teachers and Rabbis, convicted in secret political trials of spying for Israel, nor about the endemic discrimination against Iran’s Baha’i community. Nor did it condemn or comment on racism in any of the countries that actually attended the meeting. Delegates representing the Baha’i faith and the Simon Weisenthal Centre, a Jewish human rights advocacy group, were effectively barred from participating, while Israel, though physically located within the region from which countries were invited to the Tehran meeting, was not allowed to attend.

Israel is the only Jewish state. For the regional gathering for the area that includes Israel to deny it admission, to condemn alleged racism of Israel and to say nothing about racism in any other country, is discrimination not only against Israel as a state, but against Jews generally. Including anti-Israel accusations in the concluding declaration of the World Conference would be an endorsement of this racism.


David Matas is a noted Canadian legal expert specializing in immigration and refugee issues.

The author acknowledges the helpful comments of Ruth Klein, National Director, Institute for International Affairs of B’nai Brith Canada; Ruth Lapidoth, Professor of International Law, Hebrew University of Jerusalem; Paul Michaels, Director of Communications, Canada Israel Committee.

 

 

 

Appendix A

The Nazi Nuremberg race laws described two types of Jews, “full blooded” Jews and “mixed blooded” Jews. “Full blooded” Jews consisted of two categories. The first category was every person who was descended from at least three grandparents, who were, racially, full Jews.xxxiii “Full-blooded” Jewish grandparents were those who belonged to the Jewish religious community.xxxiv The second category of “full blooded” Jews was every person who was descended from two “full blooded” Jewish grandparents if:

  1. the person was a member of the Jewish religious community when the Nuremberg race laws were issued, or joined the community later;
  2. when the Nuremberg race laws were issued, the person was married to a person who was a Jew, or was subsequently married to a Jew;
  3. the person was the issue from a marriage with a Jew in the first category, which was contracted after the coming into effect of the Nuremberg race laws; or
  4. the person was the issue of an extramarital relationship with a Jew in the first category, and was born out of wedlock after July 31, 1936.xxxv
  5. A “mixed blooded” Jew was a person who was descended from one or two grandparents who, racially, were full Jews.xxxvi