Anyone who follows the Israeli-Palestinian conflict knows U.N. Resolution 242, passed in 1967, which calls on Israel to trade land for peace and calls on Israel's Arab neighbors to recognize Israel. Since it was passed, Israel has returned land to Egypt and Jordan and received peace treaties in exchange. Peace with Syria pends on Israel relinquishing the Golan Heights. While this will not happen during a Netanyahu administration, it is likely to happen if/when a left-center government in Israel has control. That leaves the Palestinians, who, thanks to the relinquishing of Gaza by Egypt and the West Bank and East Jerusalem by Jordan, are to be the last recipients of land for peace.
The other resolution evoked often by pundits is Resolution 338, passed after the October 1973 War, which was accepted in spirit by Egypt and Syria, the principal belligerents against Israel in that war. However, you'll find more and more mention of U.N. Resolution 194. What is this resolution and why are many pro-Palestinian activists evoking it more and more?
U.N. Security Council Resolution 194 was passed in late 1948, trying to draw the Israeli War for Independence to a close. Folke Bernadotte, the U.N. negotiator appointed to broker a peace agreement between Israel and the Arab States, had been assassinated by the Stern Gang, the terrorist militia of future Israeli Prime Minister Yitzhak Shamir.
The reason that 194 is being evoked more and more is that it contains within it the statement that refugees displaced by the current war have the right to return to their homes. This is Article 11 of the resolution and it reads thus:
Resolves that the refugees wishing to return to their homes and live at peace with their neighbours 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 in equity, should be made good by the Governments or authorities responsible.
This has traditionally been interpreted to be the legal basis for the right of Palestinians to return to the 1949 borders of Israel — one of the key sticking points in peace negotiations between Yasir Arafat and then Israeli Prime Minister Ehud Barak at Taba in early 2001.
However, if we note that this is Article 11, then we must assume that there are ten preceding articles. And there are, as well as four that follow, for a grand total of fifteen articles. What do the rest say, and why do they, in fact, work against the Palestinian national cause, at least as it currently presents itself?
First, like many other U.N. resolutions, Resolution 194 evokes previous resolutions. The first such resolution is General Assembly Resolution 186, passed on May 14, 1948, concurrent with Israel's declaration of independence. Here things get sticky, because Resolution 186 itself refers to two other resolutions: Security Council Resolution 48 (April 23, 1948) and General Assembly Resolution 181 (November 29, 1947). Resolution 48 is important because it calls upon all parties to cease hostilities and itself refers to earlier resolutions asking for an end to violence. Obviously any continuing violence by either side in the conflict is in violation of these resolutions.
More important is Resolution 181, which is the resolution that partitioned Palestine into Jewish and Arab states. What Resolution 194 says about Resolution 181 explicitly is that it relieves "the Palestine Commission from the further exercise of responsibilities under resolution 181 (II) of 29 November 1947." Part II of Resolution 181 has to do with the borders of the respective states. One possible reading of this language is that the borders as expressed in Resolution 181 are no longer tenable or enforceable because of the ongoing state of war.
Returning to Resolution 194, it next evokes Security Council Resolution 62 (November 16, 1948), which, again, calls on previous truces. It's with the next article, Article 7, that things begin to get hairy.
Articles 7, 8, and 9 call on all parties not only to respect the religious institutions of all parties involved, but it also reiterates a key proposal put forth in Resolution 181 (the partition proposal), i.e., U.N. control over Jerusalem and free access to the city to all faiths. Now, the Palestinians cannot be blamed for the destruction of religious holy sites of Judaism in the West Bank by the Jordanian Army during and after the war. Israel can be held responsible for the destruction of mosques. But the Palestinians themselves can be held responsible, if they wish to evoke Resolution 194, for the destruction of Jewish holy sites since Jordan relinquished its control over the West Bank, e.g., the tomb of Joseph in Nablus. Do the Palestinians really want to be held responsible for this? Because if they want 194 implemented, you can bet Israel will demand that they be.
Furthermore, what about the issue of Jerusalem? Obviously it's a hot-button topic for both sides. Israel's Basic Law on Jerusalem, passed in 1980 and formally establishing it as Israel's capital city, clearly states, "Jerusalem, complete and united, is the capital of Israel." Yes, this is direct contradiction to international law and it's why most countries have retained their embassies or missions to Israel in Tel-Aviv.
But the Palestinian side of the argument is equally tricky. The Palestinians want to claim East Jerusalem as the capital of a Palestinian state. I, for one, think that they have every right to do this. But, again, if they evoke 194, they need to accept that no part of Jerusalem can be their capital — ever.
This brings us to Article 11. The Palestinian interpretation of this is clear. Israel's is, perhaps, less so. Some Israelis claim that this refers to all refugees created by the war, and not just Palestinians. The nations at war with Israel in 1948 were Egypt, Syria, Jordan, Lebanon, Iraq, Saudi Arabia, and Yemen. These countries had, on the eve of Israel's independence, Jewish populations of 75,000 (Egypt), 30,000 (Syria), 5,000 (Lebanon), 150,000 (Iraq), and 63,000 (Yemen), with no significant Jewish populations in Jordan and Saudi Arabia.
What does this mean? This means that for the 800,000 Palestinian refugees created in the Naqba, Israel may (and perhaps would) demand repatriation of over 300,000 Jews (and perhaps more, if one considers Jews expelled in the aftermath of the war from other Arab countries) who were forced out of their homes because of the war. (Notably, these Jews were, by and large, not Zionists.) More likely, monetary compensation would be demanded by Israel, as Israel would not want to lose the population or put those Jews at risk of reprisal if they were sent "home." Is this a risk that the Palestinians and their Arab supporters want to take? It's doubtful.
So what's the bottom line? It comes down to two basic issues. First and foremost, the Palestinians and their supporters cannot evoke Resolution 194 in part, i.e., only the portions about the right of refugees to be repatriated. They must accept it in its entirety or not at all. Think of it like the argument against the line-item veto. The President of the United States doesn't get to strike pork out of bills. He either vetoes or he doesn't. To have it otherwise would be a violation of our system of checks and balances.
So don't demand a right of return under the auspices of 194 if you're not willing to relinquish East Jerusalem.
Second, demanding the right of return as per Resolution 194 will automatically evoke the response by Israel of the Jewish refugees created during the war. In most accountings, taking up the Jews expelled or forced out between 1949 and 1973, the number of refugees on both sides comes out to be the same. In the simplest sense, it's a wash. No refugees are going to be repatriated on either side.
Is this right? No, it isn't. It is fair? Nope. But is it realistic? Unfortunately, it is. Yes, Israel created a huge refugee crisis in creating itself and in its initial defense of itself. This is no longer denied by anyone that can be taken seriously. If the Palestinians want to settle the issues and find peace and security and the right of return is what holds them back, then they should press for monetary compensation and not for the right of 800,000 Palestinians and all their progeny to return to the 1949 borders of Israel. And Israel should accept this duty and pay and not demand compensation for Jewish refugees. Israel's has won enough at this point. Humility in victory would be nice for a change.