Do Palestinians who were displaced when the state of Israel was created in 1948 have a right to return to their former homes? A widely held Palestinian position is that the Israelis must recognize a right of return as a matter of principle, and that Palestinians will then work out with them a realistic compromise on implementation. As far back as February 2002, Yasir Arafat, in his one and only New York Times op-ed piece, made it clear that Palestinian negotiators were not seeking the actual return to Israel of millions of Palestinian refugees. 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."
Israeli negotiators, however, have long resisted any recognition of a right to return. To the extent that they are prepared to allow some refugees to return to Israel, they insist that this be done on humanitarian grounds, such as "family unification," rather than in deference to claimed refugee rights. The Israelis fear that were they to accept, even in principle, a right of return, they would be opening themselves to never-ending pressure to admit greater and greater numbers of refugees. They also fear that acceptance of any right of return would bolster acceptance of Palestinian accounts of the events of 1948, accounts that most Israelis reject outright or regard as one-sided.
The refugee issue is a major challenge for any effort to end the conflict. In order to achieve a lasting peace, Israeli-Palestinian negotiations must produce a treaty that will be regarded as legitimate by the refugees themselves. Part of the difficulty may be that little progress has been made in defining the rights of the refugees with any precision. Instead, the phrase "right of return" has been bandied about without adequate analysis or clarification. In this regard, the situation is similar to that involving the other rights concept which has plagued efforts to negotiate a comprehensive peace: recognition of Israel's "right to exist." As we think about the right of return, then, it is useful to reflect on past experience with the "right to exist" concept.
In 1975, as a result of talks between Henry Kissinger and Israel's Deputy Prime Minister, Yigal Allon, the United States declared that it would not negotiate with the Palestine Liberation Organization (PLO) until the PLO recognized Israel's right to exist. Today, "recognition of Israel" is one of the conditions imposed by the Middle East Quartet (the United Nations, the European Union, Russia, and the United States) on Hamas, which regularly announces that it will never "recognize Israel," "Israel's legitimacy," or "Israel's right to exist"--three concepts which are not the same, but whose meaning remains to be clarified.
With respect to "Israel's right to exist," the most fundamental questions have never been answered. Are we talking about a moral right or a legal right? And are we talking about a right to have come into existence or a right to remain in existence? These distinctions generate a spectrum of four possible interpretations of the "right to exist." To the Palestinians, the least acceptable of these would be that Israel had a moral right to come into existence. The least problematic would be that the existing state of Israel, under international law, has a legal right to live in peace and security. The first interpretation represents a highly controversial ideological assertion about the moral validity of Zionism, while the second represents a far less controversial assertion about the rights of all existing states under current international law. The point is that in the 33 years since the Kissinger-Allon agreement, no one has ever clarified the meaning of this fundamental concept. …