The Israeli/Palestinian Conflict: The Evidence

  evidence-based reports | authored and compiled by
constantine kaniklidis
scholars for peace in the middle east (spme) | director, progressive voices for peace in the middle east (pvpme)

right of return

►Invalid Authorities

BDS supports the Palestinian claim that international law vests Palestinian refugees and their descendants the “right of return” to the territory of the State of Israel. But critical appraisal demonstrates unequivocally that no such right is assured or granted under international law, neither international criminal, citizenship, refugee (per refugee covenants), nor humanitarian, law. Nor are the descendants of the original Palestinian refugees, under international law, true refugees (95% never set foot in Israel). Moreover many of the people claiming "right" of return were never in Palestine, and are descended from people who were never in Palestine. Critically, in international law refugee status and refugee rights are never heritable.

One basis for right of return adduced is UN General Assembly Resolution 194(III). But the resolution explicitly includes a condition whereby only refugees wishing to “live at peace with their neighbours” should be allowed to return to the State of Israel, leading to the rejection of its legitimacy by Palestinians and Arab States for decades, expressly on grounds that such obligation would also indirectly compel them to recognize the existence of the State of Israel. Hence it is illogical to subsequently argue years later that a resolution rejected by both the Palestinians and the Israelis at the time of adoption should now be construed as the source of law which binds these parties today.

Critically however, General Assembly resolutions do not constitute binding international law, and are recommendation only, not binding legal norms (as per authoritative works on international law: Akehurst; Shaw; Brownlie; others).

Also adduced is the Universal Declaration of Human Rights or the 1966 Covenant on Civil and Political Rights. Again, not applicable: international law experts have noted that the Covenant does not materially and essentially deal with those issues and cannot be invoked to support the claim to return, and does not obligate Israel to allow the entrance of Palestinian refugees who were never Israeli citizens or residents.

Jus Cogens Right to Self-Determination
Moreover, regardless of these legally unsupportable re-interpretations of international law, it is overlooked that the right to self-determination is also and explicitly guaranteed in international law, but recognized as jus cogens - compelling law taking precedence over other considerations - which therefore overrides other claims, as return of refugees to Israel would negate the Jewish right to self-determination in violation of the principle of jus cogens.

The Principle of Just Settlement
What in fact international law - including the resolutions adduced - recognizes is the full authority of the contesting governments to reach any compromise deemed just and appropriate - the principle of "just settlement" - and stipulates that the right of return demand must be negotiated by governments as part of political resolution, not resolvable in courts of law.

As I have argued before, the plight of Palestinian refugees everywhere - including in Arab states - will not be improved by irredentist and false - under international law - claims of right of return. It is time to address the real issues, for the sake of Palestinians, for Israelis, and most importantly, for peace.

States and Established Religions:
Every state in the Middle East (ME) region including the Palestinian Authority (PA) has an officially established religion - Islam - which the PA has declared to be its official and sole state religion - and discriminates against non-Muslims both in law and in fact, implementing as they do discriminatory forms of state-sponsored religion.

A contrast: in Israel no one, including imported and rescued peoples, is forced or requested to convert to Judaism as a condition of being allowed residency (Israel has even accepted a shipload of Vietnamese refugees who had sought asylum).

Israel is a Pluralistic Society:
Although Israel is a Jewish state, it is essentially secular and accords complete and unfettered religious freedom to Muslims, Christians and other faiths, and is more religiously pluralistic than any other country in the Middle East, and moreover, than any Muslim state in the world.

Israel remains the Middle East's only multiethnic, multiracial, and religiously plural state (with African, Yemenite, Georgian, and over a million Israelis who don't practice Judaism), and one in which there is no religious coercion, racial segregation laws, indoctrination of racial ideology, media censorship, political party bans, and in which Arab citizens vote and serve in all strata of government from cabinet to Knesset, serving on and bringing successful suits before the Supreme Court.

The only exception is that although Jewish Israeli men are required to serve a three-year stint in the Israeli Defense Forces (IDF), and serve in the reserve until they are 50 years old, for Arabs, this service is voluntary but except for the Druze, no appreciable number of Arabs has ever volunteer to serve in the armed forces.

States and "Laws of Return"
Other states including the PA (Palestinian Authority) have laws of return yet only Israel is condemned for its law of return - a response to historic anti-Jewish discrimination from other nations - despite the fact that no other state, including Palestine under the British Mandate, would accept Jewish refuges.

Post-Soviet Russia, Germany and China have implemented explicit laws of return, as has Jordan [Jordanian Nationality Law, Article 3 (3); Law 6, No, 1171 (Gazette, 1954], in which the latter (Jordan) explicitly denies citizenship to all Jews including those who have lived in Jordan for generations, and in Saudi Arabia, both Christians and Jews may not be citizens at all.

Contrast this with the fact that for some 40+ years Palestinians have been denied citizenship in Syria, Egypt, Lebanon, Kuwait, Saudi Arabia and Iraq, have been expelled from Kuwait, Libya and Iraq, and in Lebanon must live in designated areas, cannot own homes and are barred from 70 occupations.

The Fallacy of 4.7 Million Palestinian "Refugees":
And note that it is only the Palestinians who, for almost sixty years, have been considered “refugees.” In fact, a special branch of the United Nations (UNWRA) exists only for the maintenance of these “refugees”.

Although the United Nations now incorrectly registers about 4.7 million Palestinian refugees throughout the region, the vast majority of these are the descendants of the approximately 700,000+ who fled the Arab-Israeli war of 1948 and the 300,000 who fled in 1967; these descendants are clearly, and under international law, not true refugees - fully 95 percent of them have never set foot in Israel.

Since 1947, there have been over 100 UN resolutions concerning the Palestinian refugees, but not one single resolution addressed the horrible injustices done to the nearly one million Jewish refugees from the Arab states.

evidence-based reports: our reporting

Imperative in this context is a new equity in geopolitics that eschews disproportionate approbation of one actor to the exclusion of all others while also acknowledging the competitive narratives of national ambition and identity in the Middle East, with the need for new engagement and negotiation. 

This misplaced and uncritical reliance on ideological and prejudicial sources has evolved to be a formidable obstacle to peace in the Middle East. It has led to what others have termed a new “soft powerlessness” for Israel whose legitimacy has been successively eroded and who stands accused and convicted in the international arena. And it helps account for the current moribund state of peace negotiation. We therefore realized that what is needed to overcome these barriers to peace is effective confrontation through the exposure and refutation of lawfare as practiced by anti-peace NGOs and obstructionist initiatives like BDS. This will in turn require a new rational and equitable discourse in addressing the clash of competitive nationalist aspirations for self-determination in the same land, in order to achieve a fair and durable peace in the Middle East for Israel, and for the Palestinians.

To that end, I as Director of Progressive Voices for Peace in the Middle East (PVPME) and a member of Scholars for Peace in the Middle East (SPME), have authored and compiled a series of evidence-based reports (EBRs) on the Israeli/Palestinian Conflict which are founded on an objective critical systemic review of the core issues and a critical appraisal of the relevant arguments, sustained by scrupulous attention to and respect for principles of international and human rights law.  This demands (1) systematic review of all credible sources on an issue, (2) critical appraisal of all sources extracted for factual basis, (3) cross-confirmation of accuracy wherever viable, and (4) use of the highest caliber of sources available, with preference to peer-reviewed literature.

These evidence-based reports hone to the principles of the evidence-based paradigm and methodology as it has evolved from initial domain of application (medicine) into a broad spectrum of evidence-based practice and research, in the form of evidence-based sociology, evidence-based education and evidence-based teaching, evidence-based psychology, evidence-based crime policy / policing, evidence-based  decision making /policy, evidence-based social work, among many others. We  also commit to industry-standards promulgated by the Society of Professional Journalists (SPJ) in their SPJ Code of Ethics, and also those of the Ethical Journalism Network (EJN) in their 5 Principles of Ethical Journalism, as well as the principles articulated in The Poynter Institute's The New Ethics of Journalism: A Guide for the 21st Century.    

progressive voices for peace (PVPME)

Progressive Voices for Peace in the Middle East (PVPME), a Brooklyn based initiative, grew out of the recognition that these next-generation obstacles to peace require effective confrontation through counter-lawfare initiatives and the need for a new rational and equitable discourse in addressing the clash of competitive nationalist aspirations for self-determination in the same land.

Director, Constantine Kaniklidis

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Constantine Kaniklidis | Progressive Voices for Peace in the Middle East | 2018.  All rights reserved.