Thursday, May 07, 2009 • 12:00 AM Comments (2)

Rights in Conflict: Israel's Right to Exist and the Palestinians' Right of Return

posted by David Tebaldi

In an extended interview reported on earlier this week in the New York Times, Hamas leader Kaled Meshal announced that rocket attacks on Israel from Gaza have ceased and promised the Obama administration and the international community that Hamas will be “part of the solution, period” in the Middle East. While steadfastly refusing to accept Israel’s existence (I will turn in a minute to what that can possibly mean), he claims to be for a two state solution based “on the 1967 borders . . . [including] East Jerusalem, the dismantling of settlements and the right of return of the Palestinian refugees.” [My italics.]

For its part, Israel and the Obama administration refuse to negotiate with Hamas, which won the Palestinian legislative elections in a landslide victory over Fatah in January 2006, unless and until it renounces violence, recognizes Israel’s right to exist and accepts previous Palestinian-Israeli accords. [My italics.]

 Clearly, a major obstacle to any solution in the Middle East is the apparently irresolvable conflict between two rightful claims – Israel’s right to exist as a Jewish state and the Palestinian refugees’ right to return to the homes from which they fled or were expelled in the 1948 Arab-Israeli war. What kind of rights are these and what do they involve?

Rights are valid claims against another to do or forbear from doing something. While all rights, qua rights, are equally valid, some rights are more basic than others and thus take precedence in cases where two (or more) valid claims cannot both be satisfied.

Rights are of two kinds, moral and legal. Moral rights exist whether or not governments recognize them. Legal rights, on the other hand, only exist when governments have agreed to them. Most people would agree that moral rights trump legal rights and we often use moral rights to assess the legitimacy of governments.

Let’s begin with Israel’s right to exist. Is this a moral right or a legal right? Also, are we talking about Israel’s right to come into existence or its right to continue to exist? Why do these distinctions matter?

They matter because for a large number, perhaps even most, Palestinians, the least acceptable claim would be that Israel had a moral right to come into existence – and thus to continue to exist – as a Jewish state. I would summarily reject this assertion on the grounds that nothing – no country, no human being, no group of human beings – has a moral right to come into existence. Something that does not yet exist cannot have moral rights.

A far less controversial assertion would be that the existing state of Israel, under international law, has a legal right to exist as a Jewish state and to defend itself. The means it uses to defend itself and the nature of the threats it perceives may be very controversial, but the basic rights to exist and protect its citizens is not disputable.

When Kaled Meshala rejects Israel’s right to exist, it is the first of these interpretations that is at stake. (The basis for his rejection is undoubtedly different than mine, however; he rejects it because to do otherwise would be tantamount to embracing the Zionist project.) But when the United States and Israel insist that Hamas recognize the existence of Israel, it is only the second, weaker sense that matters to them.

What about the right of return? Is this a moral or a legal right? I am prepared to accept that it is both, but I would argue that Israel’s right to exist as a Jewish state is a more basic right that should take precedence over the Palestinians’ right of return. Even Yasir Arafat, the former leader of the Palestinian Liberation Organization and long-time nemesis (some would say stooge) of Israel acknowledged this in his first and only New York Times op-ed piece of February 3, 2002 when he wrote, “We understand Israel’s demographic concerns and understand that the right of return of Palestinian refugees, a right guaranteed under international law and United Nations Resolution 194, must be implemented in a way that takes into account such concerns.”

Reliable figures on the Palestinian refugee population are difficult to come by but some sources place the number as high as 7.5 million. This is greater than the total population of Israel today. Even the much more conservative number of 4.3 million provided by the United Nations Relief and Works Agency would pose a serious threat to the viability of a peaceful, democratic Jewish state in Israel if all were allowed to return en mass.

The vast majority of bona fide refugees – individuals who were expelled from or forced to flee their homes in Palestine as a result of the Arab-Israeli war of 1948 – are no longer alive. An infant in 1948 would be in her early 60s today, in a region in which, according to the World Bank’s Human Development Report, the average life expectancy is 68 years. One would assume that Palestinians living in refugee camps and under the constant stress of a military occupation would have lower than average life expectancy.

This relatively small number of refugees has the moral and legal right to return to their former homes inside Israel if they wish to do so (or to be compensated for what was taken from them if that is not possible). They pose no obvious threat to the existence of Israel as a Jewish state, demographically (since they are beyond their childbearing years) or otherwise (since there are not many 60-something year-old resistance fighters). The concept “inside Israel” is problematic in view of the fact that Israel’s borders have been a central aspect of the dispute between the two peoples from the very first partition in 1947. But the Israel’s borders prior to the 1967 “Six-Day War” are clear enough and any viable two state solution is likely to force Israel to revert to these borders.

Depending on the actual numbers, it may even be possible to allow the children (who would now be adults) and grandchildren of the bona fide refugees to return with them, although it seems reasonable to suggest that many would be happier in the new Palestinian state. (The conditions under which Arab-Israelis live are a subject for another post.)

In the novella which made him famous, the Palestinian writer and political activist Ghassan Kanafani (who was assassinated in 1972 by the Israeli secret police) tells the story of a middle-aged Palestinian couple who return to Haifa to the apartment they were forced to abandon in 1948 and the memories of their infant son helplessly left behind in the mass panic of that tumultuous day 20 years earlier. Miraculously, the Jewish couple that took over the apartment found and adopted the child, who has become an Israeli soldier. The son rejects his Palestinian parents, remaining fiercely loyal to Israel.

To paraphrase another novelist, you can look homeward, angel, but you can’t go home again.

CAPTIONS FOR TOP TWO IMAGES:

Top: The Balfour Declaration

Middle: Israel's pre-1967 Borders

Bottom: 1947 Map of Partition

Comments (2)
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David: You define "rights" as "valid claims against another to do or forbear from doing something." Where does this definition come from? It doesn't seem to fit many things we think of as our most basic rights--the right to free speech, for example, or the right to "life, liberty, abd the pursuit of happiness." Your definition seems rather arid to me. Also, what does the word "trump" mean when you say that moral rights trump legal rights--they certainly don't triumph over legal rights in a court of law. Finally, is it really meaningful to say that a thing that doesn't yet exist cannot have any moral rights, when in fact it is the moral right to exist that causes the entity to come into being in the first place? Pleun: Since, as you say, it is up to each state to decide the requirements for citizenship, the fact that any state--Israel, France, Switzerlan, Saudi Arabia, etc.--has limited those who can be citizens dos not create an inconsistency with democracy, since democracy simply means that all who are citizens get a vote. You may not like how the state has defined citizenship, but that's a different question.
Posted by Martin J. Newhouse on 5.12.09 at 13:47
David: I agree that rights can give rise to claims, but rights themselves are far more fundamental than that and would exist even if there were no attempt made to impose upon them. Looked at in your way, the right to free speech or private property simply would not exist in a society that did not permit them to be asserted. But it is the sense that these rights are inherent and have meaning ourside of a given social/cultural framework that has made them the source of revolutionary action. And in this sense, it seems to me that rights can definitely cause something--thus the "right" of women to equality could cause an upheaval in societies that repress women. In short, I would assert that, while you might think as a logical or philosophical matter than rights cannot "cause anything," historically they have in fact often been causes (along with other causes, to be sure) of events of historical significance. The felt right to be free to determine one's own thoughts and life path is the most obvious example--eloquently depicted in the recent HBO series on John Adams. (Put another way, I think that Locke, not Hobbes, was correct about these matters.) I agree with you that we often use our sense of what is morally right to critique the law, but in the end this often boils down to a legal challenge (probably because morality is often very subjective). Thus, the Nuremburg trials were based on law, not morals. And with regard to slavery, my understanding is that a large measure of the condemnattion of it throughout the U.S. derived from a sense that the Constitution guaranteed African-Americans rights that were being violated. (Again, of course, we have "rights" helping to cause emancipation.) And becuase morality is subjective, I don't think that it should trump law, since law, at least in our society, is a better approximation of how most people think and feel about an issue. Finally, we are not here talking about an individual right to exist, but a corporate right--one that is articulated by sentient human beings, based on a long and tortured history, involving centuries of undeserved abuse capped by cold-blooded genocide. To dismiss this as having no validity as a factor in the creation of a state, as you appear to do, strikes me as unrealistic and wrong.. Perhaps we could avoid the argument by recasting the claim of Ithe Jewish People to have a state of their own as a legal claim, rather than a moral one.
Posted by Martin J. Newhouse on 5.13.09 at 10:12
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