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Human Rights and Israel-Palestine at the Melbourne Festival of Ideas

June 30, 2011 – 10:55 am86 Comments

Self-determination – a human right?

By Andrew Wirth
I recently attended Melbourne University’s Festival of Ideas to hear a debate entitled: “The Middle East: the Cockpit of National Identities and Perpetual Conflict… can the idea of two states –Israeli and Palestinian – be made to work?” Naomi Chazan and Mark Baker, (representing “progressive Zionism”) presented a nuanced and compassionate – almost anguished – attempt to embrace and honor two conflicting narratives. In arguing for a two-state solution, they acknowledged both Jewish and Palestinian identities struggling to find purchase in a disputed piece of land.

Saree Makdisi, speaking from a Palestinian perspective, replied (paraphrasing): These are just nice words. Israel’s establishment led to the dispossession of Palestinians, many of whom are refugees who have not had their basic rights met to this day. The only way to redress this wrong is to accept that Palestinian refugees have the right of return to their places or origin, and to live in peace alongside the Jewish inhabitants of Palestine.

And in case anyone had any doubts “This is just a matter of human rights. Simple. How can you argue with that?”

In arguing for one state, Makdisi wasn’t arguing politics. This wasn’t about settlers, facts on the ground, the “bantustanisation” of Palestinian territory, or a rejectionist Israeli leadership making the two state solution impossible to implement in current circumstances. While these are very real and legitimate issues, they could in principle be overcome with appropriate policy implementation, and do not reflect human rights limitations inherent in the idea of two states for two peoples.

The essence of Makdisi’s position seems to be that while a two state solution might provide an opportunity for Palestinians to live as free and equal citizens within a state that fully enshrines their human rights, only the one state solution provides acceptable redress for the dispossessed refugees. The argument that the return of refugees is essential is constructed in the language of human rights, and hermetically sealed with the righteousness of the oppressed. The potential loss of Israel as a Jewish State becomes simply a side effect, desirable or unfortunate depending on ones view on nation states in general, and Israel in particular.

Arguments about the right of return typically focus on several familiar themes: who and how many are the Palestinian refugees; how ought we apportion blame for the initiation and perpetuation of their plight; how ought we interpret and apply the various moral-legal frameworks that apply to this problem – in particular the UN Charter on human rights, and UN resolutions 181 and 194: and of course Jewish and Palestinian claims of “sacred rights” to land, which can be asserted but not argued. These are important issues. Yet such discussion, which fills the pages of the Jewish News, Galus, and other media invariably gets bogged down in historical and legal disputation, and is often unproductive and unenlightening.

Let’s take it as a given that the Jews of Palestine/Israel were at least partly to blame for Palestinian dispossession, and that a human rights perspective should inform any solution to the problem. Left Zionists have for years used the language of human rights to defend two states against the Zionist right. It is ironic, and in fact quite disorienting now to have this very language used to invalidate their position. During question time at the debate, several of the most poignant objections to the position being defended by Baker and Chazan were put by Jews in the audience. These Jews – and they felt obliged to introduce themselves as such – seemed unable to validate a Jewish state on the grounds of justice and human rights. It is as though years of being the oppressor has made this language unavailable to them.

So how can we argue a case for a two as opposed to a one state solution on human rights grounds?

I would suggest that this position requires:

  • that the “human rights cost” to the Palestinians of foregoing the right of return to their original home towns (as opposed to living in a genuinely independent Palestinian state alongside Israel) is less than the “human rights cost” to Jews through the loss of a space in which they can enjoy national self determination; and
  • that a human rights loss for one group can in some circumstances be legitimately weighed against a human rights loss of another group.

It is important to reiterate that one-state proponents are not simply asserting that Palestinians should enjoy full democratic/civil rights within a State. This they could achieve in an appropriately implemented two state solution. Rather, their argument rests on the notion that there are essential aspects of human rights that can only be realized by returning to their original towns, villages and homes.

There are unarguably powerful personal, emotional and cultural values attached to familial and clan history, property and birthplaces. Bradley Burston touches on these intangible values (for both “sides”) in a recent article in Haaretz. The inability to return to such places is a painful emotional and cultural loss, which must be appropriately recognized and acknowledged, and nothing in this piece is intended to diminish this important issue. The question being raised is whether the difference between returning to ones original family home on one hand, or reestablishing a home within a genuine Palestinian state nearby on the other, really constitutes an unacceptable human rights infringement? What is the incremental gain of returning to places of family origin, as expressed in the language of human rights? If we look to the 30 articles in the UN Universal Declaration of Human Rights there are only two whose fulfillment is conceivably dependant on the right of return.

Article 13 (2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 17 (2) No one shall be arbitrarily deprived of his property.

I say conceivably because there is ample scope to critique the applicability of these articles as related to Palestinian right of return. What is the definition of one’s own country? Is loss of property occurring in the context of intercommunal war arbitrary? However, once again, for this discussion let us accept that at least some Palestinian human rights could only be fulfilled in Israel proper.

The key question is what legitimately follows from this? Does demonstrating that some Palestinian rights can only be addressed by right of return automatically warrant their implementation, or does the legitimate exercise of a right depend on the implications for other parties of exercising that right? My right to free speech does not extend to yelling “fire” in a crowded theatre if no fire exists. In the instance of the right of return, the consequent loss to be considered is that of Jewish national self-determination.

The loss of a space within which Jewish cultural expression, language, religion and sense of home are not vulnerable, but can flourish freely – and where the physical safety of Jews, if not guaranteed, is at least a matter of Jewish responsibility. These are conditions Jews have not enjoyed for two thousand years, during which they have repeatedly “experimented” with living in dominantly non-Jewish societies – an experience characterized by exclusion, expulsion and ultimately extermination. The meaning of the loss of a Jewish state is once again to be at risk of such events. This is an experiment that Jews might wish reasonably not to run again.

But can such risks be viewed within a rights framework? Nowhere does it state in the UN charter that everyone has a right to live in a society in which they form part of the dominant cultural group. However, most national or cultural groups either already live as part of a majority group or have the potential to move to a homeland where that is the case. Those groups that do not enjoy actual or potential self-determination as a national majority (Roma, Kurds, Tibetans and, historically the Jews, among others) have suffered and continue to suffer infringements of their rights.

Thus, even though living within a national majority group is not an explicit human right, and this is key, the enjoyment of human rights, historically, appears to be contingent on such a status.

Set against the rights described in articles 13 and 17 of the charter (which a two state solution may compromise for Palestinians), rights that Jews have not enjoyed (and in many cases still do not enjoy) in their precarious existence as minorities in Christian and Muslim societies include:

Article 1. All human beings are born free and equal in dignity and rights.

Article 3. Everyone has the right to life, liberty and security of person.

Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law.

Article 9. No one shall be subjected to arbitrary arrest, detention or exile.

Less clear, but I think also arguably relevant are:

Article 15. (1) Everyone has the right to a nationality.

Article 27. (1) Everyone has the right freely to participate in the cultural life of the community…

Palestinian advocates might reasonably say- “that’s a shame, but your loss of a national space is not a Palestinian responsibility”. If the argument is conducted as a zero sum game then one can take that view. However, if the conversation is genuinely about ensuring universal human rights for all (and not just a tactic), then the case must be made that the realization of those rights only achievable through right of return (but not in a two state solution) justifies the loss to another group of several arguably more fundamental rights. This is not simply an appeal to justice based on intuition, but is implied in articles 28 and 30 of the UN charter itself.

Article 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 30. Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Those arguing for unlimited Palestinian right of return are arguing for an international order in which the realization of fundamental Jewish rights is put at risk. A case against the full implementation of the Palestinian right of return/one state solution need not be predicated on denial of any Israeli responsibility for the refugee problem, nor even on denial that some Palestinian rights might be forgone in a two state arrangement. One can argue, in the terms of the UN Charter, that the loss of rights for the Jewish residents of Israel (and the broader Jewish community) inherent in a one state solution underpins a strong case for a two state solution.

Advocates of a Jewish state as part of a two state solution should not have to feel apologetic, whether in a university debate, with colleagues over coffee, at the shabat dinner table or in the blogosphere, whether confronting critics on the right, or as in this instance, the left.

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