'Right of return' claim adds up to a surfeit of 'refugees'

Of the many issues to be resolved by the parties, the primary and most contentious are the borders between Israel and the future Palestinian state and the claim of a "right of return" for Palestinian refugees.

The issue of borders is extremely complex, particularly in the vicinity of Jerusalem. However it is not inconceivable, given the proposals presented at Camp David by Ehud Barak and the later Olmert proposal, that a solution could be found.

But what is the basis of the "right of return" claim? The conflict in 1948 ended with an estimated 700,000 former residents of what became Israel displaced into neighbouring countries. An organisation was established by the UN to resettle this refugee population that became known as the UN Relief and Works Agency.

UNRWA defined Palestinian refugees as people whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict.

However rather than being resettled, the displaced population remained ghetto-ised in the recipient Arab countries, often deprived of all civil rights. In time UNRWA broadened the definition of refugees to the point that today, 60 years on, it estimates the number of refugees to be in excess of five million.

According to the current definition, a Japanese woman living in Sydney who is the wife of an Australian whose Palestinian great-grandfather lived between 1946 and 1948 in Palestine would be eligible for consideration as a Palestinian refugee.

Absurd? But that is how UNRWA arrives at its figure of five million plus.

But there is a universally accepted definition of refugee contained in the Refugee Convention on which governments throughout the world, including Australia, base their refugee policy. This applies to all of mankind - all, that is, except the Palestinians.

According to the 1951 Refugee Convention a refugee is:

Any person who ... owing to well-founded fear of being persecuted ... is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Two issues emanate from the convention:

a. it applies to persons who do not have a nationality; and

b. it applies to the persons themselves and not their progeny, spouse or relatives.

As such under the refugee convention all Palestinians who have accepted another citizenship would be ineligible, as would anyone connected with them who was not originally a resident of the country of origin. This would reduce the number of Palestinian refugees to no more than a few tens of thousands and not the more than five million claimed by UNRWA. Furthermore, now that they have their own self-administered territories in Gaza and the West Bank, those who live there are clearly at home.

Why, you may ask, are the Palestinians excluded from the universal refugee convention? The answer lies in the fact that UNRWA came into existence two years before the UN High Commissioner for Refugees, so its definition preceded that of UNHCR. To bring the Palestinian definition into line with the rest of the world would require a vote of the UN General Assembly.

Here's the rub. The General Assembly, with its automatic pro-Arab majority, uses the Palestinians as a whip with which to flog Israel. There has never been any possibility of the General Assembly changing the definition of Palestinian refugees, an act which could be to the advantage of Israel.

But the absurdity of this paradoxical situation is beginning to surface. The US Congress is beginning to demand that its funding of UNRWA recognise a definition of refugee aligned to its own, which excludes "parents, siblings, grandparent, grandchildren, nephews, nieces, uncles, aunts, cousins or in-laws". It also excludes those who have acquired another citizenship. Clearly it would take a supreme exercise in intellectual contortion to explain how Palestinians living in their own country could consider themselves refugees.

Thus with such a rational definition the mathematics change completely, reducing the five million plus to a few tens of thousands at best, and only these would be eligible for consideration if a "right of return" existed.

So the next question is "Who has a right of return?" The answer is quite simple: rights are granted by states (except in the very specific case of human rights, which are universal). For example, Egyptian Jews who were expelled have no right to return to Egypt where they lived for centuries. Children of overseas Australians who have never lived in Australia have no right to citizenship. The right to citizenship is entirely the prerogative of the state. No such right has been granted by the state of Israel to those who formerly lived in its present territory, hence no right of return applies. The recognition of this reality by the Palestinians would remove an obstacle from the peace process.

If the Australian government wishes to promote peace in the Israeli-Palestinian conflict it should introduce legislation which recognises this reality: it should align the definition of Palestinian refugees with its own definition of refugees and confirm that only Israel has a right to decide to whom it grants immigration rights. Since Australia has made such a disproportionate commitment of our foreign aid to UNRWA our views should carry weight in this matter.