The Right of Return & Transformative Justice

— Yoav Peled

BY MOST ACCOUNTS, the issue of the Palestinian refugees and their right to return to the part of Mandatory Palestine that now constitutes the State of Israel has been the most obstinate stumbling block preventing the resolution of the conflict between Israel and the Palestinians.

This is so because the right of return, more than any other issue, touches, for each side, on the essence of its history since the conflict began, and on its prospects for the future.

The national narrative of each side is centered on its own version of how things turned out in the 1948 Arab Israeli war, during which the Palestinian refugee problem was created. And both sides believe that their national identity and future national existence hinge on how the issue of the right of return is resolved.

The 1993 Oslo Accords designated the question of the Palestinian refugees a "final status" issue, meaning that it was one of the issues that Israel and the Palestinians would have to resolve for a permanent peace to be established between them.

This issue was central to the failure of the Camp David summit in the summer of 2000 to result in a final status agreement. It figured even more prominently in the talks held in Taba, Egypt, in early 2001, where some progress on this issue was reportedly achieved.

The progress achieved at Taba was supposedly reflected in the Geneva Accord, a mock peace agreement authored by a number of liberal Israeli politicians and unofficial representatives of the Palestinian National Authority in December 2003.

This accord, however, failed to address the issue of the right of return in a straightforward manner, and has been soundly criticized for that. [Several perspectives on the Geneva Accord appeared in our March April 2004 issue, ATC 109  ed.]

The failure of these peace efforts to seriously address the issue of the right of return is a reflection of the fact that the broader question of historical justice in general has been avoided in the various attempts to solve the Israeli Palestinian conflict.

What is Transitional Justice?

A key argument in support of this avoidance has been that justice is a subjective construct, and allowing it to become a subject of negotiation would only perpetuate the conflict. However, the negotiating framework established in Oslo in 1993, which studiously avoided considerations of justice, has brought the parties to an historic dead end, resulting in unprecedented dynamics of violence that have posed existential threats to both parties.

My argument in this essay is that considerations of historical justice are essential for achieving reconciliation between Israelis Palestinians, and that a morally and politically sound basis could and should be established for a workable solution to the question of the right of return.

I believe this could be achieved on the basis of a conception of justice that is not merely corrective or compensatory, but rather transformative.

This conception, usually referred to as "transitional justice," does not seek to achieve a balance between violated rights and compensatory measures. It aims, rather, to establish the principles that should govern the transition from a morally deficient society or situation to a morally superior one.

The successful transition itself is what endows the measures necessary for its achievement with their moral value. In other words, in transitional justice the practical outcome that is being sought should itself be the basis in which the moral arguments are grounded.

While transitional justice necessarily addresses past injustices, it is future oriented, rather than past or present oriented in where its moral emphasis lies. It seeks to "affirm and restore the dignity of those whose human rights have been violated; hold perpetrators accountable, emphasizing the harm they have done to individual human beings; [and] create social conditions in which human rights will be respected."

Here, therefore, the "practical" is not a limiting condition of the "moral," but rather its foundation.

The principles of transitional justice seek to transcend mere power relations, but in order to achieve its ultimate goal-establishing the conditions for greater respect of human rights-transitional justice must take the power balance between the parties into account. Its virtue, therefore, lies not in its being absolute, but rather in its being attainable.

It is for this reason that transitional justice gives priority reconciliation over either retribution, which would satisfy solely the victims of past injustices, or forgetfulness, which would benefit only their perpetrators. Still, transitional justice must walk a thin and very treacherous line between ignoring the existing power relations and subjecting justice to them.

Transitional Justice and Return

In the case of the Palestinian refugees, the principles of transitional justice would suggest the separation of the right of return, which is non negotiable for the Palestinians, from the full realization of that right in practice, which could be negotiated between the two sides.

The only right of return that can be meaningfully recognized by Israel is the right of the refugees to return to the State of Israel within the borders of its formal sovereignty, whatever these borders may be following a future Israeli Palestinian peace agreement.

Since recognition of a right necessarily creates an obligation, and since there is no moral value in creating an obligation for somebody else, Israel cannot meaningfully recognize the right of the refugees to return to a third country, not even to the future state of Palestine.

In this respect the Geneva Accord, which gives the Palestinian refugees the right to return only to territories that will be under the sovereignty of the future Palestinian state and denies them the right to return to their original places in Israel, fails to meet the moral challenge that, in my view, must be met for reconciliation between the two peoples.

By the same token, if Israel were to recognize the right of return this would satisfy an essential demand of the Palestinians and would enable them to recognize Israel's acquired right to continue its national existence in its part of the disputed territory. This would mean that the actual realization of the right of return could be negotiated in a way that would take the concerns and interests of Israeli Jews into account.

This much has been made clear already by many Palestinians, including people in positions of authority, from Yassir Arafat on down. So far, however, neither present nor former Israeli officials, not even those actively engaged in seeking an understanding with the Palestinians, have agreed to recognize the right of return. They have maintained, erroneously I believe, that the Palestinian demand for recognition of the right of return signifies, in and of itself, a denial of the right of the State of Israel to exist.

Recognition by Israel of the right of return would meet many of the goals stipulated by transitional justice as necessary for achieving reconciliation:

Truth.  The Palestinian narrative of 1948 will become legitimate in Israel, leading to recognition of the nakba (Palestinian catastrophe of 1948) and of the Palestinians' identity as its victims. This is a necessary first step towards the construction of a joint historical narrative, an important goal of transitional justice.

Preparatory work could begin even before Israel recognizes the right of return, by non  or semi official truth and reconciliation commissions that would clarify and acknowledge the historical truth. The biggest task of these truth commissions will be to document the specific histories of the refugees, in order to establish a pattern, which will expose the "hidden history" of the region.

As Hanan Ashrawi has stated, "allowing the truth to come out will
go a long way to starting a process of reconciliation."

Recognition of the moral worth of the Palestinians as human beings, that has been denied since 1948. (This denial of their moral worth has been more pronounced in the case of non Israeli citizen Palestinians under Israel's rule and of the refugees in some of the Arab countries than for those who are citizens of Israel).

Recognizing their historical narrative will go a long way towards affirming their humanity and moral worth.

Responsibility, both collective and individual, of Israel and of
Israelis, for the nakba in general and for individual atrocities will be established. Israel/Israelis will probably maintain that they had no choice, that the Palestinians, as well as the Arab states, shared in the responsibility, etc. Given the passage of time, recognition of responsibility is not likely to lead to demands for the prosecution of individual perpetrators of crimes (on either side).

Public Discussion.  This has been stifled in Israel due to the fear of recognizing the right of return. That fear, obviously will be removed once the right of return is recognized, and this will open up the possibility of airing the history of 1948, including the opening up of still classified material in various official Israeli archives.

The Beginning of Reconciliation

Of course, recognition of the right of return only will not be sufficient in itself to achieve reconciliation. But it will meet many of the preconditions for it. Reconciliation could be achieved only after some measures of restitution are affected as well.

Of these, compensations and reparations could begin to be assessed (although recognition of the right of return is not necessary for that), while the most difficult aspect of restitution, return of refugees, begins to be negotiated.

ATC 111, July-August 2004