American Bar Association Journal Libels Israel

ABA Journal, published by the American Bar Association, features as the cover story for its December issue an article on the Palestinian refugee problem that is seriously marred by numerous errors, omissions and distortions. Written by Jeffrey Ghannam, a staffer at the magazine, the article (“Where will they go?”, ABA Journal, December 2000), misrepresents Middle East history and international law to falsely portray the Palestinians and the Arabs generally as blameless victims of Israeli aggression, where the reverse is much closer to the truth.

The misrepresentations start with the cover headline, which asserts that “international law” is on the side of Palestinians who claim that their home is in Israel. There is no basis, in the article or elsewhere, for such a conclusion. The inside headline is somewhat more careful in stating that “Palestinian refugees say international law is on their side …” (emphasis added)

The rest of the article is peppered with similarly deceptive and even false claims, most of them concerning refugees. For example:

• Refugees see the end of their struggle in U.N. Resolution 194 (III) of 1948 as the authority for the right of return. But will the resolution be strictly interpreted or ignored altogether? (Ghannam, p 42)

•Paragraph 11 of Resolution 194 states that “refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or equity, should be made good by the governments or authorities responsible.” (Ghannam, p 43)

It is strange that the Arab states and the Palestinians would cite Resolution 194, because they repeatedly denounced and long violated its central provision, which called for the creation of a Conciliation Commission that would arrange:

… establishment of contact between the parties themselves and the Commission at the earliest possible date … to seek agreement by negotiations [and thereby reach] a final settlement of all questions outstanding between them. (Resolution 194, paragraphs 4 and 5)

Through many years and multiple wars, the Arab states refused even to meet with Israel, much less to try to reach a peaceful settlement. On that basis alone, under the legal principle of estoppel, the Arab states and Palestinian representatives are in no position to now invoke Resolution 194.

Beyond this, Ghannam’s characterization of Resolution 194 is also incorrect. The often discussed paragraph 11, merely suggests (it could not “require,” since it was a General Assembly rather than a Security Council resolution) that:

refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date … [R]epatriation, resettlement and economic and social rehabilitation of refugees and payment of compensation [should be facilitated]. (emphasis added)

Because this only recommends that refugees be permitted to return, it can hardly be characterized as creating a “right.” Moreover, the requirement that returnees first accept living “at peace with their neighbors” meant that Palestinian returnees would have to accept Israel’s right to exist, something that very few of them, even today, seem truly willing to do. Further, it did not even hint at any return rights for descendants of refugees.

It should also be noted that (1) the resolution applies equally to Palestinian refugees from Israel and to the similar number of Jewish refugees from Arab countries who came to Israel after 1948, and (2) that it placed repatriation, resettlement, and payment of compensation on an equal footing. This equal footing was also included in other GA resolutions of that era, such as Resolution 393 of December 2, 1950, which stated that:

… without prejudice to the provisions of paragraph 11 of General Assembly resolution 194 … the reintegration of the refugees into the economic life of the Near East, either by repatriation or resettlement is essential … for the realization of conditions of peace and stability in the area.

Similarly, Resolution 394 of December 14, 1950 called upon:

… the Governments concerned to undertake measures to ensure that refugees, whether repatriated or resettled, will be treated without any discrimination either in law or in fact.

And Resolution 513 of January 26, 1952, speaks of “reintegration either by repatriation or resettlement.” It is therefore quite clear from the plain language of these resolutions that the General Assembly did not even try to establish a binding right of return.

Indeed, all the Arab states voted against Resolution 194, precisely because it did not establish a “right of return,” and because it implicitly recognized Israel. It is disingenuous, at best, for those same Arab states (and Palestinian representatives) to see today in Resolution 194 the right of return they formerly claimed did not exist.

Having mentioned above the U.N. Conciliation Commission that the Arab side refused to cooperate with, it should be noted that Mr. Ghannam misrepresents that commission’s aims and goals:

• The U.N. Conciliation Commission for Palestine was created in 1948 to effect the return of refugees, as well as to facilitate restitution of refugee properties and compensation for losses and damages, reports Badil, a Bethlehem grassroots advocacy group for refugee rights. (Ghannam, p 43)

As stated previously, the Conciliation Commission’s mandate was to foster conciliation; its efforts were frustrated at every turn by the hostile refusal of the Arab side even to sit down with Israel.

Mr. Ghannam also falsely asserts that:

Israel agreed to [Resolution 194] as part of its membership in the United Nations. (p 42)

This claim is entirely without foundation, as pointed out by Prof. Ruth Lapidot of the Hebrew University School of Law:

As to the claim that Israel, upon its admission to membership in the UN allegedly undertook to implement [Resolution 194], a careful scrutiny of the text of Israel’s application for membership and of the discussions that took place in the Ad Hoc Political Committee and in the plenary session of the General Assembly show that no such commitment was made; nor did the General Assembly’s Resolution on the admission of Israel impose upon her an obligation to implement that Resolution, and a fortio
did not require such implementation as a condition for admission. (Ruth Lapidot, The Right of Return in International Law, with Special Reference to the Palestinian Refugees, Israel Yearbook on Human Rights, Vol. 16, 1986)

Moreover, Prof. Lapidot also quoted international legal expert Inis L. Claude, Jr., who wrote that:

The best evidence that Israel had made no such commitments was provided by the speeches of Arab delegates in the plenary meeting at which the resolution was voted; they regarded the admission of Israel as a repudiation of their demand for capitulation on the refugee issue by the applicant state, and they asserted with bitterness that Israel “had given no definite assurances.” (Lapidot, p 117)

Mr. Ghannam’s other assertions on the refugee issue are equally specious. For example, he writes that:

Other international efforts on behalf of refugees appear to support the claims of the Palestinian refugees. Palestinians point to the U.S.-led international coalition to repatriate Kosovar refugees, and the right of return and restitution for Bosnian refugees under the U.S.-sponsored Dayton accords. (Ghannam, p 42)

Neither the Kosovar nor the Bosnian refugees were part of an attempt, with the aid of nearby states, to eradicate, in violation of the UN Charter, a neighboring state. Having started and lost an aggressive war of conquest against Israel, in which fully one percent of Israel’s population – 6000 people – were killed, the Palestinian claim to a right of return might more accurately be termed a desire for the right to try to eradicate Israel again, from within. There is no international right of a “do over,” regardless of what partisans of the Arab side claim.

Mr. Ghannam also makes what can only be called an obscene comparison of Jewish holocaust survivors to Palestinian refugees:

• The billions of dollars in legal settlements that Germany, Austria, Switzerland and Belgium have agreed to pay to Holocaust survivors serve as precedent, Palestinians say, for their own claims for lost properties and profits from Israel’s use of refugee lands for 52 years. (Ghannam, p 42)

The Jews who received settlements from Germany and other countries were entirely innocent victims of an unparalleled genocide; they had never declared war against Nazi Germany, nor were they ever in any position to threaten Nazi Germany. The Palestinians and their Arab brethren, on the other hand, themselves intended to perpetrate genocide against their Jewish neighbors. For example, just prior to the 1948 war, Azzam Pasha, Secretary General of the Arab League, stated quite forthrightly:

This will be a war of extermination and a momentous massacre which will be spoken of like the Mongolian massacres and the Crusades. (Larry Collins and Dominique Lapierre, O Jerusalem, p 400)

The primary Palestinian leader spoke similarly. Haj Amin al-Husseini, the Grand Mufti of Jerusalem, declared through his spokesman that the Arabs’ goal was “the elimination of the Jewish state.” (Collins, p 400). Husseini also instructed his followers, “I declare a holy war, my Muslim brothers! Murder the Jews, murder them all.”

It should also be pointed out that the same Haj Amin al-Husseini spent World War II in Nazi Germany where he urged the accelerated extermination of the Jews in meetings with Hitler, helped organize Bosnian Muslim SS units, and made numerous pro-Nazi propaganda broadcasts to the Arab world. After the war he was indicted by Yugoslavia for war crimes, but escaped prosecution.

Contrary to Ghannam’s portrayal, the Palestinians of that time were hardly innocent victims. Ghannam is deceptive in other ways as well: concerning the Partition Resolution, for example, Ghannam writes:

• Palestinians rejected the 1947 U.N. partition of Palestine as against the will of the indigenous population. They say 750,000 refugees were created by the panic-driven or forced depopulation and occupation of village lands in the months preceding and the war surrounding Israel’s establishment. (p 43)

The Jews were the majority within the proposed partition borders for Israel, and had the Arabs accepted this partition, there would have been an Arab Palestine alongside Israel and not a single Palestinian refugee.

As for the Palestinians being “indigenous,” many of them immigrated to the area during the Mandate period, thanks to relatively good economic conditions, educational opportunities, etc, created by British and Jewish efforts. (see Arieh Avneri, The Claim of Dispossession, Transaction Press, Rutgers University) Why does Ghannam refer to these Arabs as “indigenous,” while portraying Jews who returned to their ancestral homeland as some sort of interlopers?

In addition, the claim of 750,000 Palestinian refugees is wildly exaggerated, as that was the approximate number of Arabs who in 1945 lived within what would become Israel’s borders three years later. Not all of these people fled, not all of those who fled were refugees, and more than 160,000 didn’t flee at all, instead staying in Israel and becoming Israeli citizens. According to the UN Mediator on Palestine, the actual number of Palestinian refugees was 472,000.

Finally, the claim that there was any substantial expulsion of Palestinians by Jewish forces during the 1948 war has been authoritatively debunked. Recent research by leading Israeli scholars (such as Efraim Karsh, Fabricating Israeli History: The New Historians; Shabtai Teveth, The Palestine Arab Refugee Problem and its Origins, Middle Eastern Studies, April 1990; Anita Shapira, The Past is not a Foreign Country, New Republic, November 29, 1999) have thoroughly discredited authors such as Benny Morris and Ilan Pappe who had charged Israel with mass expulsion of Palestinians during the 1948-49 Arab-Israeli war.

Consider the case of Haifa, whose Arab population numbered 62,500 in 1947, but by May 1948 had dwindled to almost nothing, accounting for one-tenth of the Palestinian refugees. The question, of course, is “Were the Palestinians Expelled?” As it happens, this is the title of Professor Karsh’s latest work, wherein he concludes:

in Haifa, one of the largest and most dramatic locales of the Palestinian exodus, not only had half the Arab community fled the city before the final battle was joined, but another 5,000 – 15,000 apparently left voluntarily during the fighting while the rest, some 15,000 – 25,000 souls, were ordered or bullied into leaving against their wishes, almost certainly on the instructions of the Arab Higher Committee. The crime was exclusively of Arab making. There was no Jewish grand design to force this departure, nor was there a psychological “blitz.” To the contrary, both the Haifa Jewish leadership and the Hagana went to great lengths to convince the Ara
bs to stay.(Commentary, July-August, 2000)

What happened in Haifa was typical; the vast majority of Palestinian refugees were not forced out, but fled, at times despite the counsel of their Jewish neighbors to stay. The Palestinian refugee problem was caused by a war that was initiated by the Palestinians themselves and by the five Arab states whose armies invaded Israel the day it declared independence. Had the Palestinians and the Arab states not attacked Israel and attempted to destroy it, there would not have been a single Palestinian refugee.

It should also be remembered that the roughly 500,000 Palestinian refugees created by the war were not alone — there were a similar number of Jewish refugees from Arab countries. At great expense and effort the newly born state of Israel settled these Jewish refugees. Unfortunately, the Arab states, many of them flush with oil wealth, made no such effort, often acting to keep the Palestinian refugees in festering poverty, all the better to use them as a weapon against Israel.

So harsh was the Arab position on the refugees that the former director in Jordan of UN aid to the Palestinians, Ralph Galloway, stated:

The Arab states do not want to solve the refugee problem. They want to keep it as an open sore, as an affront to the United Nations and as a weapon against Israel. Arab leaders don’t give a damn whether the refugees live or die. (Ralph Galloway, UNRWA, as quoted by Terence Prittie in The Palestinians: People History, Politics, p 71)

Ghannam, of course, mentions none of these facts. And, having distorted the history and origins of the Palestinian refugee problem, it is perhaps not surprising that Ghannam also misrepresents the present day status of the refugees:

• Up to 3.7 million refugees are registered with the United Nations Relief and Works Agency for Palestine Refugees … (Ghannam, p 40)

As of June 30, 1998 there were 3,521,130 Palestinian refugees, according to the “Report of the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East – 1 July 1997 – 30 June 1998,” (Table 1). However, the report, which is available at the UN website, admits that:

UNRWA registration figures are based on information voluntarily supplied by refugees primarily for the purpose of obtaining access to Agency services, and hence cannot be considered statistically valid demographic data; the number of registered refugees present in the Agency’s area of operations is almost certainly less that the population recorded. (emphasis added)

Moreover, not only does the UN admit the figures are of doubtful accuracy, there being obvious reason for families to claim more members and thereby receive more aid, the UN also admits that the total includes 1,463,064 Jordanian citizens, who cannot by any stretch be considered refugees. Indeed, if they are refugees, then the more than 500,000 Jewish refugees from Arab countries who came to Israel after 1948 were nonetheless still refugees even after receiving Israeli citizenship, as are their descendants (since, in these claims, descendants of Palestinian refugees are themselves considered refugees). That is, there would be in Israel today at least 2 million Jewish refugees from Arab countries. Whether or not one accepts that the descendants of refugees are themselves refugees, if the claims of the Palestinian refugees are now being discussed, so should the claims of these Jewish refugees.

Also unmentioned by Ghannam is the fact that as a goodwill gesture during the Lausanne negotiations in 1949, Israel offered to take back 100,000 Palestinian refugees prior to any discussion of the refugee question. The Arab states, which had refused even to negotiate face-to-face with the Israelis, turned down the offer because it implicitly recognized Israel’s existence. (Nadav Safran, Israel: The Embattled Ally, Harvard University Press, p 336)

Despite this, on humanitarian grounds Israel has since the 1950’s allowed more than 50,000 refugees to return to Israel under a family reunification program, and between 1967 and 1993 allowed a further 75,000 to return to the West Bank or Gaza. Since the beginning of the Oslo process Israel has allowed another 90,000 Palestinians to gain residence in PA-controlled territory.

Ghannam also neglects to mention that Arabs who lost property in Israel are eligible to file for compensation from Israel’s Custodian of Absentee Property. As of the end of 1993, according to the Israel Land Administration, a total of 14,692 claims had been filed, claims had been settled with respect to more than 200,000 dunums of land, more than 10,000,000 NIS (New Israeli Sheckels) had been paid in compensation, and more than 54,000 dunums of replacement land had been given in compensation. Israel has followed this generous policy despite the fact that not a single penny of compensation has ever been paid to any of the more than 500,000 Jewish refugees from Arab countries, who were forced by the Arab governments to abandon their homes, businesses and savings.

Completely obscured by Ghannam is that fact that, despite present-day appeals to UN resolutions by the Arab states, it was the Arab states which violated numerous UN resolutions, by making war against Israel, by forcing the Palestinian refugees to live in squalid refugee camps, by refusing to offer them citizenship (with the exception of Jordan, which did so not for humanitarian reasons, but to absorb the West Bank, which it had conquered, occupied and annexed), by discriminating against them (Resolution 394) “in law and in fact,” and by forcibly preventing (Resolution 393) “the reintegration of the refugees into the economic life of the Near East.” The Arab states did this because they were determined to exterminate Israel, or failing that, to prevent (Resolution 393) “the realization of conditions of peace and stability in the area.”

Of course, beyond the refugee weapon the Arabs also used military weapons to make war against Israel, violating Resolution 181 (the Partition Resolution), and the UN Charter, which calls upon members to:

• .. settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. (UN Charter, Article 2(3))

• .. refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state … (UN Charter, Article 2(4))

In addition, despite Israeli restitution to Arabs who lost property in Israel, the Arab states have for more than 50 years violated Resolution 194 by refusing to pay compensation to Jewish refugees whom they drove out of their countries.

Finally, Mr. Ghannam’s choice of interviewees was entirely one sided, inc
luding only critics of Israel. The Israelis were completely on the far left of the political spectrum and therefore entirely unrepresentative of mainstream political thought in Israel. And Mr. Ghannam allowed the Palestinians interviewed to level the most fantastic charges. For example, Atallah Salem claimed that, “We were the victims in 1948. We were the victims in 1967.” By no reasonable standard can the Palestinians be considered the sole victims – or even the victims – of wars which were started by the Arab states in league with the Palestinian national movement, and in violation of the UN Charter. Had Mr. Ghannam been less biased he at least would have included among the 1948 victims the 6000 Israelis who died defending their country against Palestinian forces and the invading armies of Egypt, Jordan, Syria, and Iraq. Similarly, the Israelis who fell in 1967, again defending their country against surrounding Arab armies, including a Palestinian army stationed in Gaza, were also victims ignored by Mr. Ghannam and the ABA Journal.

It is especially troubling that a legal journal associated with the American Bar Association would publish an article that so mangles and misrepresents the international legal status of the Middle East conflict. ABA members deserve better than the polemical, partisan, misleading and in many instances simply incorrect version of history served up by Mr. Ghannam. The magazine should publish a full and fair correction that will accurately represent the Middle East’s legal and political hisotry.


ACTION ITEMS: [In the original alert, action items and contact information were listed here.]

Comments are closed.