Return - Part 1

For three years, the Somerville Divestment Project has tried to push the city of Somerville to divest its retirement fund of assets invested in Israel. Its leaders have championed a sweeping (if impotent) divestment program within the US Green Party, forcing the party to shred its key principles and electoral prospects in the process. Hell, "Divestment" is the SDP's middle name! So why is it that their 2006 campaign makes no mention of the "D" word?

The organization has put two measures onto the Middlesex 27^th district ballot in November, one on divestment, and the other on the "Right of Return" of Palestinian refugees. Yet all of their campaign literature: the signs they held at polling booths on Primary Day, their handouts, posters and fliers only discuss Right of Return. Divestment, for the SDP itself, seems to have become the crazy aunt in the attic about which no one speaks.

This could be an admission that divestment issue is a loser, especially given the recent abandonment of the financial boycott weapon by churches (until recently, divestment's last remaining institutional bulwark). Or perhaps the novelty of a new issue is expected to galvanize volunteers and voters. One way or another, the campaign seems to be turning not on divestment this year, but on the refugee issue, a new challenge that requires an airing of facts.

First off, what is the "Right of Return?" SDP literature offers little historical guidance, consisting as it does of just the usual bill of indictment against the Jewish state on charges stemming from Israel's creation in 1948. To understand the meaning of this phrase, which developed in the 1970s and gained momentum throughout the 80s and 90s, one needs to see it through the prism of the "Two-State Solution" that has been the principle behind various peace processes during that same period.

The "Two-State Solution" holds that the region is the home of two people's, Jewish and Arab, each deserving its own state. Four decades of peace initiatives (including the Oslo accords) were built on guiding Arabs and Jews towards accepting a final settlement where two independent states: Israel and Palestine, would live side-by-side, independent and at peace.

Putting aside the many legitimate criticisms of this two-state strategy (no small request, given the massive failure of Oslo), Right of Return can be seen as not just a tactic targeting Israel, but also one aimed squarely at the two-state consensus of the last several decades. Simply put, Right of Return gives every Arab refugee from 1948 and every one of their descendents the right to lay claim to land within the borders of Israel, as they were constituted in 1948. If the two state solution was supposed to end with a new Palestinian state in control of its own borders (within which, we can presume, Jews would be as scarce as they are throughout the rest of the Arab world), Right of Return gives this new Arab state the additional right to declare who can live within the borders of another state (Israel).

Needless to say, this stance has been a bit of a non-starter at the negotiating table. In fact, the final death of Oslo at Camp David took place in 2000 when this issue was finally put onto the negotiating table, a table Yassir Arafat kicked over and began a war which continues past his death. Putting aside the charged nature of "Right of Return" for all parties, are there legitimate arguments in support of this maximalist option?

Supporters like the SDP begin with a legal case, based largely on two UN documents: Resolution 194 (passed after the 1948 War of Independence that created the Jewish state and the Palestinian refugee issue) and the UN's Universal Declaration of Human Rights also passed in 1948.

Resolution 194 does indeed state that "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," although it also says much more besides. The resolution sets up a Conciliation Commission to facilitate the "repatriation, resettlement and economic and social rehabilitation of the refugees," yet such resettlement does not explicitly say who should be resettled where. Given that Jordan and Egypt were in control of more than half the territory after the 1948 conflict, this call to resettle refugees was as much a call to them as it was to Israel.

Even the key phrase regarding refugees noted above only applies to refugees willing to "live at peace with their neighbours," a peace that logic predicates be based on accepting those neighbors' (i.e., Israel's) right to exist in the first place. One could make the case that 194 requires no settlement or resettlement whatsoever until the underlying precondition (a willingness to live in peace) was met. While Israel's foes have long stated that 194 can only be interpreted in one way: as establishing the unconditional right of any and all Palestinians to return to Israel proper, with no precondition of even recognition of the Jewish state, thousands of years of jurisprudence have established that a law does not simply mean whatever one side or the other wishes it to mean.

The Universal Declaration of Human Rights is even more problematical for Israel's detractors, foremost because it is a measure applied specifically to states (the UN being an organization of states, after all). As such, Article 13 which states that "(1) Everyone has the right to freedom of movement and residence within the borders of each state; and (2) Everyone has the right to leave any country, including his own, and to return to his country." can only be applied to the Palestinian refugees if (1) the state of Palestine existed and was a party to the Declaration and (2) that the borders of this "Palestine" already included every square inch of territory, from Jordan to the Sea. Only then would the universal right of Palestinians to live anywhere they wished apply to the Arab-Israel conflict.

But the problems do not end there. For if the ambiguous legal nature of the territory means Arabs are free to settle anywhere in the region they like, then the same principles would apply to other inhabitants of the region such as Jews. Yet this would seem to justify an unlimited Israeli settlement policy under the same Article 13 used to justify limitless Arab "rights" to settle wherever they wished, not a principle the SDP (along with many others) may have in mind.

Reading through all 30 articles of the Universal Declaration Universal Declaration one is also struck by how one region in the world more than any other: the Arab Middle East, exists in contravention to almost every one of these principles: from freedom of the individual to representational government to freedom of religion, peaceable assembly, and equal rights before the law. It's intriguing that those who most aggressively flog the distorted reading of just one article of the Declaration are the most passive with regard to the clear meaning of the Declaration as a whole applied outside of Israel's borders.

Finally, there is the issue of legal authority. Even if we put aside the corrupt and unfair way the UN has treated Israel since its birth and the legally non-binding nature of many UN resolutions (notably those that come out of a General Assembly which dedicates a quarter of its time and budget to condemning Israel), accepting the UN as an unquestioned legal authority presents a host of new problems for Israel's critics.

For if UN Resolution 194 and the Declaration of Human Rights are to be held up as guideposts that everyone must follow, the organization has a whole raft of other resolutions that must also be accepted at face value. Notably, UN Resolution 181 which partitions the former British mandate into two territories: one Jewish, one Arab means that acceptance of the Jewish state is mandated under the same UN authority we are asked to take as unquestioned with regard to resolutions 194. Beyond that, UN Resolutions 242 and 338 mandate that Israel's acceptance is not just required, but that Israel be accepted within "secure borders." These resolutions also require the Arab states to negotiate peace with their Jewish neighbor. Needless to say, none of these conditions were met in 1967 when these UN Resolutions were adopted, and I would hazard to say that groups like those pushing divestment and the so-called Right of Return would be hard pressed to acknowledge that their own legal embrace of UN authority requires them to accept these terms today.

NEXT ? - The Historic Case (or lack thereof)