The US must reject the Palestinian claim of a 'right of return'

(JNS) — American foreign policy can be quite resistant to change. When it comes to the Arab-Israeli conflict, that inertia includes a perennial refusal to take a decisive position on the so-called Palestinian right of return. The result has been decades of failed peace negotiations. With renewed talk of a two-state solution, it’s important to revisit this issue as a new approach is in order.

During the 1948 Israeli War of Independence, approximately 700,000 Palestinians fled or were expelled from what is now the State of Israel. Those refugees were housed in Judea and Samaria, the Gaza Strip and various refugee camps in neighboring Arab countries. Except for Jordan, those countries did not offer them citizenship.

Shortly after the war, the United Nations formed the U.N. Relief and Works Agency to manage the welfare of the refugees. UNRWA’s original mandate was to resettle the refugees in their host countries. However, in the face of Palestinian opposition, UNRWA abandoned that goal and instead began to advocate for the return of the refugees to their former homes. To complicate matters, it has taken the position that the original 1948 refugees and all of their descendants are entitled to refugee status. Today, that amounts to approximately five million people who, UNRWA maintains, have a “right of return” to what is now the State of Israel. The Palestinian leadership agrees, arguing that this supposed right is non-negotiable.

But there is no such right as Adi Schwartz and Einat Wilf have shown in their book, The War of Return. One study after another confirms this. Perhaps the best example is an exhaustive analysis by Professor Andrew Kent, as cited by Schwartz and Wilf, in which he concludes that it is “clear that the claimed Palestinian ‘right of return’ for refugees from the 1947–49 conflict has no substantial legal basis.” Most legal scholars without a political agenda who have addressed the issue agree that 5 million Palestinian refugees are not entitled to take up residence in the State of Israel.

Nevertheless, American peace negotiators have failed to take a firm position on this crucial issue. And so, Palestinian officials have been free to claim that the conflict cannot be settled without recognition of a full right of return.

Perhaps because this issue is so contentious, the parties have largely avoided it over the history of peace negotiations. Under the Oslo Accords, questions regarding refugees were designated as a “final status” issue to be addressed at the end of peace negotiations. That set a pattern that continues to this day.

American foreign policy views the right of return as a bargaining chip in peace negotiations. For example, negotiators have suggested a symbolic right of return limited to only a few thousand refugees. However, U.S. policy has been ambiguous and noncommittal if such a right exists.

Both Israel and the Palestinians argue that the issue is non-negotiable. (As Palestinian leader Mahmoud Abbas has put it, “I can’t tell 4 million Palestinians that only 5,000 of them can go home.”) Nevertheless, the United States maintains its position, failing to change course in the face of decades of gridlock.

As a primary mediator, why has the United States failed to take a firm position on what may be the most determinative issue of the conflict? The likely answer is that pressure from competing sub-state and non-state actors has led to paralysis.

As the scholar Chris Alden has argued in Foreign Policy Analysis, “Domestic influences outside the formal state structures—lobbyists, the media, class factors, constitutional restrictions—are clearly significant and, in some cases, can influence foreign policy. For instance, societal actors, such as interest groups, actively engage the relevant state political actors in order to influence the foreign policy process in line with their concerns.” This is particularly true in the United States, he said, where “there are multiple access points to the executive, foreign policy is ‘society dominated,’ and the public has many opportunities to influence it.”

The American domestic front presents a variety of positions. On the right, interest groups such as AIPAC assert that Palestinian refugees do not have a right of return. On the left, groups like J Street argue that any claimed right of return must be resolved as part of peace negotiations. On the far left, Jewish Voice for Peace questions Israel’s legitimacy as a Jewish state, and while IfNotNow and Americans for Peace Now take anti-Zionist positions, arguing that the only just solution is a binational state between the Jordan River and the Mediterranean Sea.

In trying to navigate the conflicting positions of American interest groups and citizens, policymakers end up pleasing no one. More importantly, their failure to take a clear position on a determinative issue ensures that the conflict will not be resolved. Some disputes cannot be resolved by compromise; one party must give way. The Palestinian claim to a right of return presents just such a case. Israel cannot be expected to compromise its sovereignty. And Palestinians have made it clear for 75 years that they have no intention of debating what they see as a sacred right to all the land “from the river to the sea.”

If the conflict is to be resolved, American officials must tune out the cacophony of competing interest groups and adopt a firm policy. In this case, a top-down approach based on established international law is the most appropriate.

As Schwartz and Wilf have argued, the so-called right of return and the West’s willingness to indulge it have served as the biggest obstacles to resolving the conflict. Therefore, they say, “the first step that needs to be undertaken by countries and professionals dedicated to true peace is to send a clear and unequivocal message to Palestinians that they do not possess a right of return to the sovereign State of Israel.”

American policy, or lack thereof, on the claimed right of return has lasted through 30 years of unsuccessful peace negotiations. It’s time for the United States to finally speak the legal truth to the Palestinian leadership.