The Palestinian Right of Return and the Justice of Zionismby Chaim Gans-- Ted Honderich Website -- This reflective
article considers
the
question of whether Zionism as understood obliges Israeli Jews to allow
Palestinians to return to where they lived in the past or to
uninhabited
regions in the area. Necessarily there is consideration of the nature
of
Zionism. The article, whatever is to be thought of its conclusion,
which is for
less repatriation of Palestinians than called for in another view it
considers,
consists in argument in good order. Prof. Gans teaches legal, moral and
political philosophy in the Faculty of Law at Tel Aviv University. He
is the
author of The Limits of
Nationalism and of Philosophical
Anarchism and Political Disobedience. Another
book, From Richard Wagner to
the Right of Return: Philosophical Analysis of
Israeli
Public Affairs, will be published in 2005. Abstract:
Supporters of a
Palestinian right of return assume that Israeli Jews bear
responsibility for
both the past and present suffering of the Palestinian refugees.
Accordingly,
the Palestinian claim for return is a demand to realize this
responsibility
(inter alia) by way of the return of the refugees to their places of
origin or
to uninhabited regions in the Land of Israel/Palestine. The purpose of
this
article is to examine the responsibility of the Israeli Jews for the
Palestinian suffering and whether this responsibility ought to be
realized by
way of return of the refugees in light of the question of the justice
of
Zionism. Part I of the article presents
various approaches rejecting or affirming Zionism. The subsequent parts
investigate the implications of the disparities between these
approaches
rejecting/affirming Zionism and Zionism’s actual history as it unfolded
in
terms of Jewish responsibility for the Palestinian plight and the
question of
Palestinian return. I argue that some of the approaches to Zionism are
irrelevant to the dispute over the Palestinian right of return as it is
understood within the framework of Israeli internal discourse and the
Israeli-Palestinian dialogue. However, my main point is that those
approaches
rejecting /affirming Zionism that are relevant, though they may vary in
their
implications for the scope of Jewish responsibility for Palestinian
suffering,
nevertheless lead to very similar conclusions with respect to
discharging that
responsibility by way of Palestinian repatriation.*
INTRODUCTION
Supporters of a
Palestinian right of return assume that Israeli Jews
bear responsibility for both
the past and
present
suffering of the Palestinians. Accordingly the Palestinian
claim for
return is a demand to realize this responsibility (inter alia)
by way of
the return of the Palestinian refugees to their places of origin or to
uninhabited
regions in the Land of Israel/Palestine.[1] There are several
dimensions
to this claim and to its underlying presupposition concerning the
responsibility of Israeli Jews for the plight of the
Palestinian
diaspora. One such dimension pertains to the types of damage for which
responsibility should be borne (property damages, loss of residence,
pain and
suffering, loss of livelihood, and so on). Another dimension pertains
to the
scope of the people to whom responsibility is owed: Only and strictly
those
exiles who were forcibly expelled by the Jews? All exiles, including
those who fled out of fear? Or an intermediate category of displaced
people? A
third dimension of the Palestinian demand concerns the group of exiles
towards
whom responsibility will be realized by allowing their return either to
their
places of origin or to uninhabited areas in the Land of
Israel/Palestine and to
the possible future political-cultural character of these areas. For example, should all Palestinian refugees
be allowed to return to their places of origin or just some of them?
And if
this right to return is to be restricted to only some refugees, then
how will
they be defined? Furthermore, should the remainder then be permitted to
return
to uninhabited areas in the Land of Israel/Palestine currently
controlled by
the primarily Jewish state but that eventually will constitute part of
a
primarily Palestinian state? And there are further possibilities:
return to
uninhabited regions of a bi-national state or return to uninhabited
areas in a
state that is culturally neutral.
The most ambitious interpretation of
the right of return and of the assumption of Jewish responsibility for
the
Palestinian refugee situation is that Jews in Israel are responsible
for all
of the past and present suffering of all members of the Palestinian
diaspora
resulting from Zionism and the establishment of the State of
Israel. Under
this interpretation, responsibility for the Palestinian plight can only
be
properly discharged (in addition, inter alia, to providing monetary
compensation for the suffering in all its manifestations) by
way of
allowing the return of all members of the Palestinian diaspora to
their
places of origin in a state that is entirely Palestinian and expelling
all the
Jews living in those places or at least those who live there as a
consequence
of Zionism. The antithesis to this interpretation of Jewish
responsibility for
Palestinian suffering is the absolute denial of any such
responsibility
and the total rejection of any Palestinian right of return, of
any
scope—and perhaps even beyond this: the exacerbation of the
problem by
transferring those Palestinians still resident in the Land of Israel,
at least
the western part. These are the
two polar positions of the spectrum, between which numerous
intermediate
possibilities fall. The central intermediate position supports the
return of
all or part of the Palestinian diaspora to Israel within its pre-1967
borders.
Under this position, Israel is supposed to continue its role as the
manifestation
of the Jewish right to self-determination. The Israeli consensus
rejects this
position, but at least refers to it and regards it as worthy of
response in its
internal discourse and in its dialogue with Palestinians. The focus of
this
paper is on the right of return as conceived under this intermediate
approach.
The array of
considerations for assessing the
scope of
Jewish responsibility for the Palestinian diaspora and whether that
responsibility should be realized in some form of Palestinian return is
complex. It comprises individualist and collectivist moral
considerations,
historical and a-historical considerations, and retrospective and
prospective
moral considerations. I focus primarily, though not exclusively, on the
individualist and collectivist moral considerations deriving from
historical
and present justice concerns. These considerations cannot be properly
identified without addressing the different approaches affirming and
rejecting
Zionism and their respective justifications and underlying assumptions.
In Part
I below, I present some of these approaches for and against Zionism,
and in the
subsequent parts, I investigate the implications of the disparities
between the
different approaches and Zionism’s actual history as it unfolded in
terms of
Jewish responsibility for the Palestinian plight and the question of
Palestinian return. I argue that some of the approaches denying or
affirming
Zionism are irrelevant to the dispute over the Palestinian right of
return as
it is understood within the framework of Israeli internal discourse and
the
Israeli-Palestinian dialogue. Both these discourses presuppose that the
dispute
revolves around the question of the existence of a Palestinian
right of
return to Israel as a state that realizes the Jewish right to national
self-determination. I argue that although the approaches affirming or
rejecting
Zionism that are relevant to this specific point of dispute may vary in
their
implications for the scope of Jewish responsibility for Palestinian
suffering, they nevertheless lead to very similar conclusions
regarding
discharging that responsibility by way of Palestinian repatriation. I.
Different Forms of Zionism and Different
Approaches Rejecting It
In the framework
of the present
discussion, Zionism is
understood as a cultural-nationalist ideology. This type of ideology is
not
necessarily devoid of political aspirations,[2] but its focus is on the
interest of members of particular national cultures in adhering to
their
cultures, sustaining them through the generations, and securing
political
support to do this. Nationalism of this type first originated in
Central and
Eastern Europe and should be distinguished from what historians and
sociologists refer to as “civic nationalism,” which I prefer to call
“statist nationalism". [3] The latter originated in Britain and France
and is concerned not so
much with
people’s interest in adhering to their cultures as with the interest
states
have in ensuring the cultural homogeneity of their populations.[4]
Zionism is a
cultural nationalist movement of Jews, but not the only such movement.
The Bund,
too, was a cultural nationalist ideology that focused on enabling the
Jews to
adhere to and sustain their culture. However, in contrast to Zionism,
it did
not aspire to realize these goals in the Land of Israel. This latter
aspiration—to establish Jewish self-determination specifically in the
Land of
Israel—can be regarded as a constitutive component of Zionism.[5] One possible
basis for rejecting Zionism is
the rejection in principle of cultural nationalism. This rejection can
be
grounded in political ideologies such as socialism, cosmopolitan
liberalism, or
neutralist liberalism. Neutralist liberalism does not necessarily
dispute
cultural nationalism’s claim that people have an interest in adhering
to and
sustaining their cultures, but it does contest the notion that
the State
should actively promote such an interest.[6] The other two
political
ideologies noted—socialism and cosmopolitan liberalism—reject the
thesis that
there is any such real interest.[7] Another possible basis for
rejecting
Zionism, rather than deriving from the rejection in principle of
cultural
nationalism, can be the denial of the right of any national group to
protect
its culture within the boundaries of a territory already inhabited by
another
group or groups (even if the former has a preceding historical link to
that
territory).[8]
Zionism can be
affirmed on the basis of a
principle according to which the aspiration of the Jews for
self-determination
in the Land of Israel should be realized in a non-territorial form or,
alternatively, in a territorial form. Each of these two possible forms
has a
number of variations. The non-territorial form of Zionism can
be
understood as prescribing the establishment of either a spiritual
center or a
bi-national state in Palestine/the Land of Israel, where Jewish
and Arab
populations would be intermixed. The territorial approach can
be
conceived of as advocating the creation of a bi-national state that
will
designate separate territories for each group. Alternatively, it could
be
interpreted as supporting the establishment of a Jewish state in part
of the
Land of Israel/Palestine with a Jewish hegemony, populated primarily,
but not
exclusively, by Jews or even a Jewish state in the entire territory of
Palestine with a Jewish hegemony. Yet a third version of the
territorial
approach would call for the establishment of a Jewish state in part of
the Land
of Israel exclusively for (all) Jews. Almost all of these approaches,
both
those advocating Zionism and those rejecting it, had their supporters
at
various stages of Zionism’s history. The dominant form of Zionism,
however, the
approach that occupied and continues to occupy central stage in the
history of
the Zionist movement, is the aspiration to establish a Jewish state
in
part of the Land of Israel, with a Jewish hegemony, that is (or strives
to be)
a homeland for all Jews. II.
The Right of Return and the Anti-Nationalist Rejection of Zionism
Those who reject
Zionism on the
basis of an outright
rejection of cultural nationalism (which I will hereafter refer to as
“nationalism”) will hold Israeli Jews responsible for all the
suffering
that was and still is the lot of the entire Palestinian diaspora. They
can do
this because even the most minimalist form of Zionism supports the
establishment of a bi-national state in Palestine, an aspiration
rejected by
anti-nationalists as not legitimate. Accordingly, the argument goes,
Zionism is
responsible for the creation of the Palestinian diaspora in its
entirety
and not merely for the exile and hardships suffered by Palestinians
forcibly
expelled during the 1948 Israeli War of Independence. Consequently, at
least
from the perspective of retrospective considerations, the entire
Palestinian
diaspora is entitled to return. However, those
who reject
Zionism for anti-nationalist reasons cannot support the removal of all
Jews
from the Land of Israel. The anti-nationalist stance is grounded in
arguments
drawn from socialist or liberal political moralities. Proponents of
these
moralities are necessarily humanists. As such, they will not advocate
the
banishment from Palestine of all Jews living in Israel today as
a result
of Zionism, for this would entail the immoral expulsion of people born
and/or
raised in Israel since the advent of the refugee problem. Since their
lives are
deeply rooted in Israel, on the one hand, and since they bear no
personal
responsibility for the emergence of the Palestinian diaspora, on the
other, a
strong individualistic argument can be made against their displacement
and
removal from their homes. Because these points, grounded in contemporary
realities, act as a bar to any demand by opponents of
nationalism to
remove all Jews from Israel, they also preclude the return of all
members
of the Palestinian diaspora to their places of origin. The most that
anti-nationalists can demand is the return of some of the Palestinian
refugees
to their places of origin and the return of others to unpopulated areas
of
Palestine/the Land of Israel.
It should be
recalled, however, that an
anti-Zionist stance deriving from the rejection of nationalism grounded
in
socialism, cosmopolitan liberalism, or neutralist liberalism must, for
consistency, reject also the establishment of a state that would
realize the
Palestinian right to self-determination in Palestine. It can
only
support the establishment of a culturally neutral state in Palestine
where Jews
and Arabs coexist. Yet I am skeptical as to the defensibility of the
various
theses upon which this rejection of nationalism is based. I doubt
whether the
cosmopolitan ideal is universally suited to all human beings.[9] I am
also
skeptical as to the feasibility of an ideal of a culturally neutral
state in
which there is no clear preference of one or a very limited number of
national
cultures over other cultures to which citizens of the state belong. In
the
context of the debate between neutralist liberals and nationalist
liberals on
this matter, it has often been observed that states cannot be neutral
vis-à-vis
culture in the same way as they conceivably can be neutral with
regard
to religion, the reason being that there is no way to avoid
giving
preference to, for example, one or a few of the state's dominant
languages over
languages that are the first language of many citizens. Such a
preference, which results from practical necessity, engenders a
partiality that
may be prejudicial to the interests of individuals belonging to
cultural
minorities who wish to adhere to their cultures and live within the
framework
of those cultures. Needless to say, it can be argued in the Marxist
vein that
these interests are based on false consciousness and that people should
be
reeducated so that they no longer identify with these interests. Since
this is
not the appropriate forum for addressing this claim, I will note only
that
insofar as the Jewish-Palestinian struggle is concerned, the belief of
both sides in the importance of their interests in their
respective
cultures is so entrenched that any attempt to reshape their
consciousnesses in
the foreseeable future would be doomed to fail. Since there is an
urgent need
to resolve the Palestinian refugee problem in the foreseeable future,
understandings of the right of return based on a rejection of Zionism
that
derives from the outright rejection of cultural nationalism must be set
aside
for the time being. Furthermore, as stated above, both the Israeli
internal
discourse regarding the Palestinian right of return as well as the
discourse
between Israeli Jews and those Palestinians willing to discuss the
issue
presuppose the return of members of the Palestinian diaspora to the
borders of
a state that is the framework for Jewish national
self-determination—namely, to
Israel. Denial of the feasibility of such a state is incompatible with
the
presuppositions of these two discourses. Hence, even if it were tenable
to
reject Zionism on the basis of anti-nationalism, such a stance would,
in
practice, be irrelevant to the present Israeli-Palestinian dialogue. III. The
Right of Return and Rejecting
the Realization of Jewish Nationalism in Palestine
Zionism can be
rejected not only
on an
anti-nationalist basis. It can also be rejected by nationalists who
object to
the realization of Jewish self-determination specifically in
Palestine/the Land
of Israel.[10] Such an objection could be grounded in the denial of any
historical connection between the Jewish People and the Land of Israel.
Alternatively, an actual historical connection can be admitted, but the
normative significance of that connection could either be completely
denied
or deemed insufficient to justify the politically-motivated return of
the
Jewish People to a particular territory that, up until their return,
had been
populated by individuals constituting a cultural group entirely
distinct from
the Jews.[11] If, indeed, the Jews have a right to national
self-determination,
proponents of this position would argue, they should have realized it
in the
territories in which they were residing at the relevant time. Since
members of
another, non-Jewish culture already inhabited the territory comprising
the Land
of Israel, Jewish migration to that land for the purpose of
establishing
a Jewish entity there was inappropriate insofar as it entailed the
usurpation of land from its inhabitants. The principled position that
this
approach presupposes is that the right to territorial
self-determination is
held only by groups that already constitute a majority in a given
territory; it
is not the right to create such a majority in a territory already
settled by
other nations.[12]
Which
particular version of the Palestinian right of return supporters of
this
position will adopt depends on whether they are liberal nationalists or
nationalists to the right of liberalism. The former do not assume
normative
priority of the national “collective” over its
individual
members, nor do they assume normative priority of one national group
over other
such groups. On the contrary, their understanding of the relationship
between
national groups and their members rests on individualistic assumptions,
while
their understanding of the relationship among different national groups
rests
on egalitarian assumptions. Non-liberal nationalists do the
opposite:
they assume normative priority of national groups over their individual
members
and normative priority of their own national group over other
groups.[13]
However both liberal nationalists and more right-leaning nationalists
who
reject Zionism because they deny either the very fact of the historical
connection between the Jews and the Land of Israel or the normative
significance of that link will attribute responsibility to Zionism for
the
Palestinian diaspora in its entirety and for all the various types of
suffering
borne by its members. Yet they may differ significantly on the
matter of
Palestinian return. Non-liberal
nationalists who reject Zionism
based on their rejection of any factual or normatively significant link
between
the Jews and the Land of Israel might subscribe to the first
version of
the right of return, i.e., the return of the entire Palestinian diaspora
and
the expulsion of the Jews. They will derive this position from their
presumption of the normative priority of the national group over its
individual
members. Under this presumption, they will find it irrelevant that the
lives of
Jewish individuals are currently rooted in Palestine and that
those
individuals are not responsible for the fact that their lives are now
rooted
there. Since their moral ontology is comprised primarily of collectives
and not
individuals, they will ascribe responsibility to the Jewish collective
inhabiting Palestine, regardless of the innocence of the majority of
the
individuals comprising that collective. The Jewish collective is
certainly
responsible for the fact that its existence is rooted there, as well as
for the
fact that this existence began in sin as it were. Under this approach,
therefore, it is legitimate to expel the members of
that
collective. Thus a rejection of Zionism that stems from a right-wing
rejection
of the legitimacy of realizing Jewish self-determination in Palestine
inevitably produces the most extreme version of the Palestinian right
of
return: the return of the entire Palestinian diaspora and the removal
of all
Jews from the territory of Palestine if their presence is the
result of
Zionism.[14]
Liberal
nationalists who reject the realization of Jewish self-determination in
Palestine cannot adopt this extreme interpretation of the Palestinian
right
of return. As liberals, they base their nationalism on individualistic
interests, and they therefore would be compelled to attribute
significant weight to the interests of the Jewish individuals
currently living
in
Palestine/the Land of Israel to continue living there and not to be
uprooted
even if their presence in Israel is the result of Zionism. These
individual
interests must merit protection at least with respect to those
individuals who
are not responsible for the fact that they were born and raised in
Israel. Since the interests in question are significant, the liberal
nationalist has no choice but to support the right of these
individuals
to remain in Israel or at least concede that there is no
justification
for expelling them. In addition, acknowledgement in this way of the
right of
numerous individual Jews currently residing in Israel to continue to do
will
also lead to recognition of the right of those same individuals to
self-determination in areas in which they constitute the majority. In
other
words, despite the liberal nationalist’s rejection of the all-embracing
claim
regarding the Jewish People’s right to establish their
self-determination in
the Land of Israel at the time of the inception of the Zionist movement,
he
or she must acknowledge the moral right to national
self-determination
of Jews born in Israel and/or who immigrated there as infants—and who,
therefore, bear no personal responsibility for their lives’ being
rooted there.
That is to say, while liberal nationalism can allow its proponents to
reject
Zionism, it nonetheless requires their post-facto assent to
Zionism’s
normative consequences—consequences that are consistent at least with
the most
rudimentary, modest form of Zionism. By rejecting this rudimentary form
and
denying the historical justification for its adoption by the mainstream
Zionist
movement, liberal nationalists can hold the Jews accountable for all
the
Palestinian refugees’ trials and tribulations. However, since they
recognize
that Zionism has had certain consequences that, post facto, provide a
normative
basis for Jewish self-determination in the Land of Israel, the
responsibility
ascribed to the Jews for all the Palestinian exiles and for all their
suffering cannot be translated into a correlative right of return for
all
members of the diaspora to their places of origin.[15] Liberal
nationalists certainly would not
resort to individualistic arguments in order to justify the return of
Palestinian refugees to areas currently inhabited by Jewish
individuals, since
the latter are not individually responsible for the expulsion
of the
Palestinians or for the fact that their lives are rooted in these
places.[16]
However, with respect to uninhabited areas, individualist
considerations could,
in the eyes of the liberal, justify allowing the return of the
Palestinian
refugees to the places from which they were uprooted,
regardless of
whether they were expelled or left voluntarily. Further on in this
article, I
deal with the question of whether this argument is decisive with
respect to
this kind of Palestinian return. As argued above, no member of
the
Palestinian dispersion, whether he/she was exiled or left willingly, is
entitled to return to his or her former home if inhabited by
Jews who
are not responsible for the fact that they currently reside there. The
question
is, are such refugees entitled to return to presently uninhabited areas
in the
Jewish state from which they were not uprooted in the past? There seem
to be no
individualistic considerations that work in favor of this particular
way of
realizing Jewish responsibility for the refugee problem. The
determination of
the appropriate way of realizing responsibility for the Palestinians’
exile and
suffering is contingent on what form is deemed appropriate for
realizing the
right to self-determination of both nations that today, as a point of
fact,
reside in the Land of Israel/Palestine. Those favoring a single
bi-national
political framework for this self-determination in the territory
between the
Jordan River and the Mediterranean Sea ("Western Land of Israel"),
without any territorial distinction between the two nations, would
certainly
argue that all Palestinian exiles should be permitted to return
to the
areas currently within the boundaries of the State of Israel,
just as
they are entitled to live in areas of Palestine outside those borders,
for all
of Western Land of Israel constitutes the Palestinians’ historical
homeland. However, if, for
reasons stemming from the
desirable interpretation of the right to self-determination in general
or from
its desirable realization in the context of the Israeli-Palestinian
dispute,
liberal nationalists were to contend that Jewish
self-determination and
Palestinian self-determination should be realized today in mutually
distinct
territorial frameworks (either in two separate
states or in one state with a territorial
division between the two cultures, as in Belgium and
Switzerland), then
under such an arrangement, the place of Palestinian return would be
contingent,
first and foremost, on how Palestine/Western Land of Israel is divided
between
the two nations. This question is a thorny one, for Zionism’s
“birth in
sin” casts a shadow not only on its demographic consequences but also
on its
territorial consequences. From this perspective, Israel’s 1948
borders
(in force from the establishment of the state until June 4, 1967, the
beginning
of the Arab-Israeli Six-Day War) would have no legitimacy, nor would
the
borders set out in the 1947 UN Partition Plan or the borders
running
along the demographic lines set by the Jewish settlements in the
Occupied
Territories (Judea and Samaria and the Gaza Strip) since the 1967 war.
At this
stage of the discussion, I will not examine the relevant
criteria for
determining the appropriate borders under the territorial-separation
solution
to the Jewish-Palestinian dispute. Suffice it to say that if
territorial
separation is the appropriate resolution, then there would be obvious
advantages to a solution whereby Jewish responsibility for the
Palestinian
refugees is fully realized through compensation for their
suffering and
through their repatriation exclusively within Palestinian territories,
at least
with regard to those unable to return to their places of origin because
they
are currently occupied by other individuals. Palestinians’ residence in
areas
designated as Palestinian territories would be considered residence in
their
homeland at least to the same extent as their residence in territories
designated for Jewish self-determination.[17] However, since
Palestinian
culture would be more fully expressed in exclusively Palestinian
territories
and since the Palestinian right to self-determination would be realized
primarily there, collectivist considerations would favor Palestinian
return
specifically to those territories. These considerations would be
decisive, in light
of the individualistic considerations against allowing exiles to return
to
areas now inhabited by Jews who are not responsible for the fact that
their
lives are rooted there. Admittedly, it could be argued that Palestinian
refugees whose places of origin are currently occupied by Jews could
conceivably prefer to live in geographic proximity to their former
homes, even
if located in the territory of Jewish self-determination, to living in
a
territorial entity controlled by Palestinians where they would enjoy
national
self-determination. However, I
am skeptical as to how compelling such a preference could be. For
ultimately,
most of the places in close physical proximity to the refugees’ original
homes have changed beyond recognition in terms of physical appearance
and
character. Accordingly, even if a certain weight is ascribed to
proximity to
places of origin, it certainly cannot be of a decisive nature. The position of
liberal nationalists who
reject Zionism but accept its post-facto consequences can be
summed up
as follows: They call for Israeli recognition of the Jews’ collective
responsibility for the emergence of the Palestinian diaspora in its
entirety,
not just for those expelled, and for all the Palestinians’ subsequent
suffering. They point to significant individualistic grounds for
recognizing a
prima facie right of return for Palestinians, which would mandate that
all
Palestinian exiles be given the right to return to their places of
origin on
the proviso that Jewish individuals do not reside there (or that those
who do
are personally responsible for the expulsion of Palestinians). Those
liberal nationalists who view a bi-national state in all of Western
Land of
Israel as the appropriate solution to the dispute will demand
Palestinian return to any uninhabited place, regardless of
whether it
falls within the current borders of Israel or not. However, if they
deem
territorial separation the appropriate solution, their demand will be
restricted to a right of return to those areas that are
designated to be
part of the Palestinian territory.
The question to
be asked, then, is whether
the Jewish People’s historical connection to the Land of Israel is of
sufficient normative significance to justify their return to that
territory for
the purpose of realizing their self-determination. This is a watershed
question, separating those who reject Zionism without an accompanying
outright
rejection of nationalism and those who support Zionism. Those who deny
any
normative significance to the connection to the Land of Israel or claim
that it
is insufficient to justify the return of the Jews to territory already
inhabited by another nation will reject Zionism. I have just discussed
the
conclusions such nationalists should arrive at with regard to the
Palestinian right
of return. However, those who take the position that the Jews’
historical
connection to the Land of Israel can provide a sufficient ground for
their
return to that territory, despite its being inhabited by Arabs, would
subscribe
to one or another form of Zionism. I mentioned two such streams
at
the beginning of the article, and I will now proceed to discuss their
implications for the Palestinian right of return. IV.
A Non-Territorial Version of Zionism and the Palestinian Right of Return
According to the
first and very
modest version of
Zionism mentioned above, the version subscribed to by Ahad Ha’am
and
later by the Brit Shalom movement, Jews should have been
allowed to
realize national self-determination in the territory comprising the
Land of
Israel, but not within the framework of a Jewish nation-state and
probably not
even within an independent territorial framework. On the one hand, this
version
of Zionism is based upon the recognition of the normative significance
of the
historical connection between the Jews and the Land of Israel and
perhaps also upon the understanding that national self-determination is
viable
only within a historical homeland. On the other hand, it recognizes
that the
territory comprising the Land of Israel is simultaneously the
Palestinian
homeland, and accordingly, Palestinians have the same entitlement as
Jews
vis-à-vis that territory—namely, to realize their right to
national
self-determination there. At the inception of the Zionist movement, the
Palestinians were dispersed throughout the entire territory. However,
their
degree of concentration at the time did not preclude the parallel
settlement of
a large Jewish population, large enough to warrant the realization of
sub-statist and non-territorial Jewish national self-determination.
Therefore,
in accordance with this version of Zionism at that point in time, the
Jews were
entitled to aspire to this kind of self-determination in Palestine/the
Land of
Israel. They were not, however, justified in aspiring to statist
self-determination
or sub-statist territorial self-determination, because, given the
existing
demographic circumstances of the land, this would have meant imposing
Jewish
government on the entire Arab population or at least many of them, thereby turning them into foreigners within
their own homeland. The Palestinians, for their part, also would have
content
themselves with sub-statist and non-territorial national
self-determination.
All this pertains to the principle that Zionism should have
adopted and
that, had it adopted, the Arabs would have had to come to
terms
with.[18] History, as we know, took a different path. On the one hand,
mainstream Zionism aspired to establish a Jewish nation-state in the
Land of
Israel and was not content with sub-statist and non-territorial
self-determination. On the other hand, the Arabs gave the impression
that they
were opposed not only to the establishment of an independent Jewish
state, but
also to any other form of Jewish national self-determination in the
Land of
Israel, even sub-statist and non-territorial. If, indeed, these are the
facts,
then to the extent that the Palestinian exile was voluntary,
the Jews
and Arabs share equal responsibility for the emergence of the
Palestinian
diaspora and its accompanying suffering. The Jews bear sole
responsibility only
towards those Palestinians who were forcibly expelled.[19] This, then,
concludes the issue of the allocation of responsibility. The way in which
this responsibility should
be realized rests primarily on which framework is the most appropriate
today
for both nations currently living in Palestine/Israel to realize their
self-determination. The options
will resemble those proposed by liberal nationalists who reject Zionism
by dint
of their rejection of the Jews’ historical connection to the Land of
Israel,
options that have already been addressed. The relevant approaches to
this
matter are those proposed by liberal nationalists and not those
proposed by
right-wing nationalists, since the latter would presumably not endorse
the moderate
version of Zionism. It is reasonable to assume that Jewish non-liberal
nationalists (i.e., nationalists to the right of liberalism) would
support more
extreme versions of Zionism, whereas their Palestinian counterparts
would
reject Zionism out-and-out. Liberal nationalists who support the
moderate
version of Zionism might, under current conditions, support a
bi-national state
without territorial distinctions, as a possible but not necessary
implication
of their accepting this version of Zionism. Such liberal nationalists
could
also accept territorial separation between the two nations (whether
within the
framework of one state or two) as a solution necessitated by the
history of the
dispute and its demographic and territorial realities. Liberal
nationalists
holding this latter position would reject the right of Palestinian
exiles to
return to their places of origin if populated, but would find powerful
grounds
for favoring the right of all Palestinian exiles, whether they were
forcibly
expelled or left voluntarily, to return to their places of origin if
unpopulated. This position with regard to those who were expelled
follows from
the exclusive Jewish responsibility for these exiles. With regard to
the return
of those who left voluntarily, the argument will be that since Israeli
Jews as
a collective bear partial responsibility for these exiles and since
most are
unable to return to their places of origin because they are now
populated by
others, there are compelling grounds for allowing the return of those
whose
places of origin are vacant. All of this, however, depends on whether
it makes
any sense at all to speak of "vacant" places, an issue addressed in
Part VI. In the framework
of a bi-national solution
in which the Palestinian and Jewish populations would not be
distinguished from
each other territorially, all Palestinian exiles would, of course, be
permitted
to return to unpopulated areas of Palestine/Western Land of Israel. In
the
framework of a bi-national solution with territorial separation or,
alternatively,
a two-state solution, return would be allowed only to territories
designated as
Palestinian. I will leave open the question of which territories are
Palestinian and which Jewish for the time being, until I discuss it in
Part
VII.
To sum up, the
position of those liberal
nationalists who endorse the moderate version of Zionism on the
Palestinian
return will be similar to that of liberals who reject Zionism on the
basis of a
denial of the historical connection between the Jews and the Land of
Israel.
Under the latter position, the Israeli Jews are responsible for all
of the
suffering of all members of the Palestinian diaspora.
Under the
moderate version of Zionism, the Jews and Arabs share equal
responsibility for all of the suffering caused to those Palestinians
who were
not expelled, whereas the Jews are exclusively responsible only
towards
those who were forcibly expelled. With respect to the question of how
the
responsibility for the Palestinians’ loss of residence and property
should be
discharged—compensation or return—the answers are identical to those
arrived at
in the previous Part. There are strong individualistic grounds for
recognizing
the right of all members of the Palestinian diaspora, not only
of those
forcibly expelled, to return to their places of origin if the lives of
other
individuals are not rooted in there. Those Palestinian exiles who
cannot meet
this condition should be entitled to return to unpopulated areas either
in a
mixed bi-national state, if that is deemed the appropriate
solution to
the dispute, or, if territorial separation is deemed the appropriate
solution,
to unpopulated areas in territories designated for the Palestinian People. V. A
Territorial Version of Zionism and the Palestinian Right of
Return
According
to a
more ambitious version of Zionism, Jews at the end of the nineteenth
century
had not only a right to sub-statist, non-territorial self-determination
in the
Land of Israel, but also the right to realize their self-determination
within a
distinct territorial framework. The historically dominant stream in
Zionism
sought to realize that right within the framework of an independent
state. The
legitimacy of this stream of Zionism from the perspective of
liberal
nationalism depends primarily on the answers to two types of questions.
First,
there are factual questions concerning the concentrations of Arab
populations
at the end of the nineteenth century in Palestine/ the Land of Israel,
their
numbers, and the patterns of their geographical dispersion. Second are
questions of principle and empiric assessment regarding the scope of
territory
and size of population necessary to constitute a viable
political
entity. If the size and dispersion of the Arab population in Palestine
at the
time could have enabled the establishment of two viable, separate
territorial
entities, one primarily Arab and the other primarily Jewish, then
liberal
nationalists could even have supported the more ambitious version of
Zionism.
If, however, the establishment of two such entities in Palestine was
not
possible at the time, then the Jewish attempt to do so would, by
definition,
have been an attempt to subjugate at least some of the Arab population
to
Jewish rule, making them foreigners in their own land. Liberals could
not
condone such an attempt. As mentioned
above, apart from the factual
questions pertaining to the size and dispersion of the Arab population
in
Palestine at the end of the nineteenth century, the justification of
this
version of Zionism is dependent also on the demographic and territorial
criteria for constituting a viable political entity. This dependence
makes any
attempt to decisively determine whether or not this version of Zionism
is
justified a hornets’ nest.[20] I will avoid making such an attempt, but
for
argument’s sake, I will assume the legitimacy and justifiability of
this
version of Zionism. This version has two implications for the
resolution of the
Palestinian refugee problem that distinguish it from the previous
versions.
First, under this version, while Israeli Jews may bear exclusive
responsibility
for the suffering of those Palestinians who were forcibly expelled, the
primary
responsibility for all “self-exiled” Palestinians lies with the
Palestinians
themselves. Responsibility cannot be equally divided between the sides
as it is
under the more moderate versions of Zionism, because the actual
historical
realization of Zionism does not deviate much from Zionism as it should
have
been in principle realized under the territorial version. For if we
assume, in
accordance with mainstream territorial Zionism, that the Jewish People
were
justified in their (subsequently successful) aspiration for
self-determination
in a territorial manner in a part of the Land of Israel, then the
Palestinian
opposition to that aspiration was unjustified. Consequently,
Palestinians who
departed in fear of the war they forced upon the Jews in order to
prevent them
from realizing that right bear responsibility for their fleeing, along
with the
Arab states that encouraged them to do so. Israel cannot be held
responsible
for these actions or their consequences. It should be noted
that the
ramification of this approach is that Israel is not required to
compensate all
of the Palestinian exiles for their suffering.[21] Accordingly, Israel
would be
responsible for compensating only those who were forcibly expelled.[22]
However, the denial of Israel responsibility for the departure of all
of the
Palestinian exiles, if this version of Zionism is justified, does not
entail
that the exiles, whether they were expelled or left voluntarily, are
not
entitled to compensation or to return to their former property.
Ultimately,
even if they left of their own volition, they are entitled to change
their
minds, in which case, a very strong argument could be made for allowing
them to
return to their former homes if unpopulated. For on the individual
level, the
issue concerns property rights and residence rights, where the
act of
vacating the concrete objects of those right is not tantamount to a
waiver of
the rights themselves (at least if the right-holders have continued to
demand
restitution, as have the Palestinians). And if the original concrete
objects of
these rights cannot be restored, the right-holders are entitled to
alternative
compensation in the form of compensation.
A
second difference in the implications of the ambitious version
of
Zionism and the moderate non-territorial version vis-à-vis the
Palestinian
right of return is that the former provides a clear method for
instituting the respective rights of the Jews and Arabs to
self-determination
in Palestine/the Land of Israel. Under the latter version of Zionism,
Zionism
should realize its aspiration to self-determination within the
framework
of a bi-national state without any territorial distinctions. The
exigencies of
the history and geo-demographic conditions that were created in the
area,
however, entail a need to reexamine the question of how this form of
Jewish
self-determination should be realized today. Under the territorial
version of
Zionism, there is no need to reexamine the question of realizing the
right to
Jewish self-determination, for if the geo-demographic conditions in
Palestine
at the end of the nineteenth century justified the Zionist aspiration
for
territorial self-determination, then it is certainly justified in the
geo-demographic conditions that obtain at the beginning of the
twenty-first
century. What may, in fact, require reexamination is the matter
of the
just division of the territory of Western Land of Israel between the
Jews and
the Palestinians. This question remains an open one, as it did in the
context
of the moderate, non-territorial version of Zionism and in the context
of the
rejection of Zionism based on the denial of the normative sufficiency
of the
Jewish historical connection to the Land of Israel to justify
the return
of the Jews. Consequently, the question of which vacant areas of
Western Land
of Israel should be designated for the return of Palestinian
exiles who
cannot, on an individual basis, return to their places of origin also
remains
open. At the outset I
noted additional forms of
Zionism. They revolve around the establishment of a Jewish state in all
of the
Land of Israel or in parts thereof designated exclusively for Jews.
These forms
of Zionism do not merit discussion, not only because they cannot be
justified
under a humanistic interpretation of nationalism, but also because
their
presuppositions are diametrically opposed to those of any possible
Israeli-Palestinian dialogue on the subject of return. Such a dialogue
would
concern the return of members of the Palestinian diaspora, which
emerged as a
result of the creation of the State of Israel, to the territory
occupied by a
state that would continue to manifest the Jewish People's right to
self-determination. The ideal of a state only for Jews necessarily
entails the
outright rejection of any possibility of Palestinian return. This
conception of
Zionism is the mirror image of those approaches that reject it (and the
right
to self-determination in the Land of Israel of those Jews living there
as
a result of Zionism) for reasons stemming from non-humanist forms of
Palestinian nationalism. As mentioned above, these forms of nationalism
demand
the return of all members of the Palestinian diaspora to their places
of
origin, in conjunction with the removal from the Land of Israel of
all
those Jews whose lives are rooted there as a consequence of Zionism,
even if
they bear no personal responsibility for the injustices
suffered by the
Palestinians. It should be recalled that the rejection of Zionism on
the basis
of the outright rejection of cultural nationalism, while justifiable on
humanistic grounds, cannot serve as the starting point for any dialogue
on the
Palestinian right of return. In rejecting the very possibility of
political
support for national cultures, this approach also excludes any
possibility of a
state serving as the framework for Jewish self-determination.
Palestinian
return is, of course, possible under this approach, but it could
definitely not
be to territories located in a state that realizes the Jewish right to
self-determination. As noted, the Palestinian return
discourse
presupposes the possibility of return to a state that realizes that
right. Most of the
approaches from the gallery of
versions accepting and rejecting Zionism (whose implications
vis-à-vis Jewish
responsibility and the right of return are discussed above) were
rejected as
undesirable for normative reasons, and the approach just discussed was
discarded for pragmatic reasons. Thus, three approaches remain that
warrant
serious consideration: (1) the liberal nationalist rejection of Zionism
based
upon the denial of the normative significance of the Jews’ historical
connection
to the Land of Israel; (2) the moderate version of liberal Zionism,
which
supports Jewish non-territorial self-determination in the Land of
Israel; and
(3) the ambitious version of liberal Zionism, which advocates
territorial
self-determination for Jews in parts of Western Land of Israel. Each of
these
three positions has distinct implications for the question of the scope
of
Jewish responsibility for the Palestinian plight, both in
terms
of the categories of suffering and the categories of Palestinian exiles
towards
whom responsibility is borne. However, all three approaches
have almost
identical implications vis-à-vis a Palestinian right of return.
With respect to
the scope of suffering for which Jews are responsible, those rejecting
Zionism
will assert Jewish responsibility for all of the suffering endured by
all
Palestinian exiles. Supporters of Zionism in its moderate form will
ascribe
special responsibility to the Jews for all the suffering of
those
Palestinians who were forcibly expelled and joint responsibility
with
the Palestinians and perhaps other entities for all of the suffering of
all
other Palestinian exiles. Proponents of the territorial version
of
Zionism will assign special responsibility to the Jews for the
suffering of all
those forcibly expelled, but will exempt them from any responsibility
towards
other exiles (except with regard to the suffering entailed by the
continued
separation from their property and places of origin). All these
positions
acknowledge weighty grounds for recognizing a Palestinian right
of
return on an individual basis for all Palestinian exiles to
their places
of origin in Jewish territories if uninhabited. If territorial
separation (in
the framework of either one state or two) is the preferred arrangement
for
establishing Jewish and Palestinian national self-determination, then
on
collectivist grounds, none of these approaches will recognize a
Palestinian
right of return to unpopulated Jewish territories if they are not site
of the
places of origin of those seeking to return. As noted, under
the ambitious version of
Zionism, the appropriate arrangement for setting up Jewish
and
Palestinian self-determination today is the same as was the case at
the
inception of Zionism: territorial separation. It seems that today this
option
should also be accepted by those who claim that Zionism should
have been
rejected from the outset since they deny any normative significance to
the
Jews’ connection to the Land of Israel, as well as by those who
maintain that,
from the start, only the moderate version of Zionism should have been
accepted,
with its aspiration only for non-territorial Jewish self-determination.
The
reasons that both groups should now embrace territorial
separation do not rest, of course, on the view that national
self-determination
must necessarily and always take a territorial form, but rather on the
fact
that the constraints of the particular history of the
Jewish-Palestinian
dispute over the last 120 years make this solution the most likely to
succeed.
This claim is not only a moral claim; it is factual prediction. Since
we can
presume that very few will dispute this claim, I will adopt it as it is.
Thus, all three
approaches to Zionism
warranting consideration in the context of the debate over a
Palestinian right
of return have identical implications for this right. First, they all
acknowledge powerful reasons for supporting the return of exiles to
their
places of origin if unpopulated, reasons that stem from people’s right
to their
property and to residence in their places of origin. Second, they
support the
return of all other exiles (i.e., those whose places of origin are not
vacant) to unpopulated areas of Palestine/Western Land of Israel
designated
to be Palestinian territory. However, this stance leaves open two
significant
points of contention regarding the right of return. The first pertains
to the
vagueness of the term “unpopulated” (or “vacant”) areas and the
conclusiveness
of the reasons for supporting the return of Palestinian exiles to
unpopulated
places of origin. The second point pertains to the appropriate
territorial division of Western Land of Israel. VI.
Return to Unpopulated Places of Origin
Consider the
case of a house
that serves as a
restaurant or the warehouse of an Israeli institution in an area that
has
completely transformed in character since the original owners left the
house
and went into exile: Should this be considered a “vacant” place? Is the
answer
to this contingent on the use made of the place by the institution and
whether
alternative sites for such use exist? Can a village that was destroyed
and a
forest planted on its land and its agricultural lands, once tilled by
the
exiled villagers, now provide the livelihood of others be
considered
vacant? And what about a village that was not destroyed, but since its
original
inhabitants either fled or were driven away, its agricultural
lands now
provide a livelihood for others? These are places that are not
privately owned
or possessed by Jewish Israeli individuals in the sense that the
majority of
their lives are conducted there. Rather, they are places that were
previously
owned or possessed by Palestinian individuals or entities that
are now
state-owned by the State of Israel. The State nationalized them and
either
directly changed their character or indirectly did so by giving them to
private
or public Israeli entities that changed the character of these places,
which
are now used by Israelis with varying degrees of intensity. Can these
places be
regarded as vacant? Is it even at all possible to speak of unoccupied
places in
Israel after it has changed, to varying extents, the character of
almost all of
the physical sites left by Palestinian exiles more than fifty years ago
and the
majority of which Israelis make some use? It could be
claimed that since there are no
clear answers to these questions, in those situations in which they
arise, the
general logic underlying the eventual settlement of the
Israeli-Palestinian
dispute should be followed to solve the problems. If the arrangement
chosen is
one of territorial separation, then the members of the Palestinian
diaspora
ought to relinquish their right to return to territories
designated for
Jewish self-determination, even if those territories include
Palestinian places
of origin that are vacant in some sense. However, this claim can only
be
consistently made if, under the territorial separation
arrangement, no
Palestinians are to be left in the areas designated for Jewish
self-determination. It cannot be consistently made by those who
maintain that
all or at least some of the Palestinians who have been Israeli citizens
since
the establishment of the State of Israel (“Israeli Arabs”) be allowed
to
continue to reside in these areas (a position I will later argue in
favor of),
since, under their view, Jewish-designated areas would, in any event,
not be
populated exclusively by Jews. The moral vagueness of the term “vacant
areas”
cannot provide the ground for the absolute and overall exclusion of any
Palestinian return. But it can provide a reason for the parties to
reach a
compromise solution with regard to return to these areas so as to avoid
getting
entangled in disputes over moral issues lacking clear solutions. Such a
compromise would entail recognition of the right of return for
a
non-negligible number of people, but not the mass return of Palestinian
exiles to areas within the borders of the Jewish entity. Yet another
argument can be put
forth in support of this type of limited Palestinian return,
which
derives from Israel’s duty to acknowledge its responsibility
for at
least part of the wrongs suffered by the Palestinians in the wake its
establishment. This responsibility arises not only under the position
rejecting
Zionism that stems from a rejection of the normative significance of
the Jews’
historical connection to the Land of Israel or under the moderate
non-territorial form of Zionism. It arises also under the ambitious
version of
Zionism, according to which, at the end of the nineteenth century, Jews
were
entitled to territorial self-determination in Western Land of Israel.
Such
responsibility certainly follows from the first two positions (i.e.,
the
rejection of Zionism based on a denial of the Jewish connection to
Palestine
and the affirmation of the non-territorial form of Zionism), since the
actual
realization of Zionism deviated from its acceptable parameters under
these
positions: Zionism attempted and succeeded in forming a Jewish state in
the
Land of Israel. However, for a number of reasons, Israel also bears
this
responsibility under the ambitious version of Zionism. One reason stems
from the
fact that believing in the justness of this version of Zionism cannot
be free
of all doubt. As I argued above, its justifiability is contingent not
only on
factual matters such as the size and dispersion of the Arab population
in the
Land of Israel at the end of the nineteenth century, but also on the
answers to
questions such as the minimum demographic and territorial conditions
for
establishing a viable states. In many cases, the question of
whether
these conditions obtain is hard to answer. Since the aspiration to
establish a
Jewish state in Palestine at the end of the nineteenth century is one
such
case, the justness of this aspiration must also be subject to doubt.
Even if
this doubt does not lead to an abandonment of this version of Zionism,
it does require
a consideration of the price paid by the Palestinians for the
realization of
this version of Zionism and the acknowledgement of a certain degree of
responsibility for it, a responsibility that must be discharged in some
substantial form. The second
reason why, under the ambitious
version of Zionism, Israel should acknowledge its responsibility for
wrongs
suffered by the Palestinians stems from the nature of the conceivable
justifications of this version. Such justifications could
certainly not
be based exclusively on corrective justice considerations relating to
the
persecution of the Jews throughout history. Many have already observed
that if
the establishment of the Jewish state was based upon the persecution of
Jews,
then there was no justification for the Palestinians to pay the price,
since
they played no part in this persecution. As I hinted at above, the
justification for establishing a Jewish state in the Land of Israel is
based on distributive justice considerations regarding the division of
territory
among nations for the purpose of realizing their rights to
self-determination.
It derives from the principle that every nation is entitled to a piece
of
territory in its historical homeland where it can exercise its right to
self-determination.[23] Some might argue that this principle is only
valid in
cases in which the territory designated for the exercise of the right
to
self-determination is actually settled by members of the nation wishing
to
exercise that right.[24] Those who reject Zionism based on the claim
that the
Jews’ historical link to the Land of Israel is not sufficient to
justify their
return to that territory would surely adopt this position. Moreover,
even those
who accept Zionism based on this link must concede that its realization
inflicted a huge sacrifice on the Palestinians, the dominant
nation in the
Land of Israel at the end of the nineteenth century: they were forced
to give up lands they naturally regarded as their own. The
sheer magnitude
of their sacrifice may provide the basis for appreciating their
opposition to
Zionism, even if this opposition was not justified. The magnitude of
their
sacrifice should be the basis for the requirement to take actual
measures to
appease them, for example, by returning some of the exiles to
their
original locations. The third and
the most important argument
for holding Israel at least partially responsible for the suffering of
the
Palestinians even if the ambitious version of Zionism is justified
pertains to
the fact that Zionism in practice was more ambitious than was justified
even
under this ambitious version. In other words, even if at the end of the
nineteenth century there was ex ante justification for the
Jewish People
to strive for territorial self-determination in the Land of Israel,
there was
certainly no justification for striving to do so within the borders
created
following the 1948 Israeli War of Independence. Even if the War was
forced upon
the Jewish state and therefore a just one, there was no justification
for
expelling Palestinians, nor for seizing the property and places left by
those
who fled the war.[25] Conceivably, even if some of these actions are
excusable
due to the particular circumstances of the Jewish People in 1948 and
the fears
that these circumstances gave rise to (the justified fears of the Jews
in the
wake of World War II and in the face of the refusal of the Arab
states to accept the establishment of a Jewish state under the
UN
resolution of
November 29, 1947), this does not mean they are justified, all or some.
Therefore, there is good reason to hold Israel at least partially
responsible
for the Palestinian suffering even we regard the ambitious version of
Zionism
as just and the Arab opposition to its realization as unjust. VII.
Return to Israeli
Territory and Territory that Will Cease to Be Israeli
The discussion
thus far has
shown that all three of
the approaches to Zionism warranting consideration within the framework
of the
right of return discourse support the return of Palestinian exiles to
their
places of origin within the territory of the Jewish state only if those
places
are vacant. However, the discussion has yet to clarify whether
the
justifiable borders of the Jewish state are the pre-1967 borders or
whether they should be an expanded or narrower form of those borders.
The
reason for this lack of clarity is that if, under the three
relevant
approaches to Zionism, Zionism as it has actually unfolded is
responsible for
its demographic consequences, then there is no reason not to hold it
similarly
responsible for its territorial consequences. Andrei Marmor
illustrates this point
in the following manner: If I purchase a piece of land and others
trespass on
it, conceivably I am entitled to take violent measures to
remove them.
However, their act of trespass does not entitle me, the
landowner, to
seize additional territory. If this claim is correct, then the claim
that
Palestinian refugees who cannot be repatriated to their places of
origin should
not be repatriated to vacant areas in the Jewish state does not entail
the
conclusion that they should not be allowed to return to vacant areas
that are currently within the borders of the State of Israel.
Conceivably, they
should be
allowed to return to the latter vacant areas, and at the same time,
these areas
should be transferred to a Palestinian state. But is this, in
fact, an appropriate
solution? An overwhelming majority of the Israeli left rejects such a
solution,
for they reject any form of Palestinian return to territory within the
borders
of the Jewish state set following the 1948 Israeli War of
Independence,
borders sacred to them. On the one hand, they oppose withdrawal from
these
borders to the narrower borders of the Partition Plan under the
UN
Resolution of November 29, 1947, regarding the establishment of a
Jewish state
in the Land of Israel. On the other hand, they oppose expanding these
borders
to include Jewish settlements that are the result of Israeli settlement
activities in the territories conquered in the 1967 war. In their view,
the
Palestinian refugee problem must be resolved within the framework of a
Palestinian state to be established in those parts of Western Land of
Israel falling outside of Israel’s pre-1967 borders. The central
reason for this position
regarding the territorial division of Western Land of Israel is
the
international recognition of Israel’s pre-1967 borders and the
prospects such a
division holds for reaching a peaceful arrangement between a
Jewish
state and a Palestinian states. Borders wider than the pre-1967 borders
will
not enjoy these two advantages. First, such expanded borders have never
been
accorded international recognition, and under current conditions, there
is no
chance of this ever occurring; second, such borders preclude any
possibility of
an agreement between the Jews and Palestinians that will provide the
Palestinians with a minimal measure of self-respect vis-à-vis
what they have
endured due to the dispute with the Jews thus far as well as with
regard to the
possibility of their independent and respectable existence in the
future. It
could be argued, of course, that while these are valid reasons for
preferring
the pre-1967 borders to expanded borders, they do not provide the basis
for
preferring the pre-1967 borders to narrower borders. Obviously,
narrower
borders would similarly accommodate the possibility of peace between
the Jews
and Palestinians—it would almost certainly enhance its prospects (the
well-known aphorism “Give them a finger, they’ll take a hand”
notwithstanding),
and there is no reason to assume that such borders would not enjoy
international recognition. But this
argument overlooks the reason why
the international recognition of the pre-1967 borders makes them the
appropriate line along which Western Land of Israel should be divided
between
the Jews and Arabs. It is not that these borders are inherently just,
but,
rather, that there is no clear answer (from an infinite number of
possible
reasonable answers) to the question of the just territorial division of
Western
Land of Israel between the Arabs and Jews, specifically, and of
territories between national groups, in general. In drawing the
territorial
boundaries of national entities for the purpose of self-determination,
complex
moral considerations of distributive justice must be weighed, relating
to the size of the national groups, the nature of their
cultures,
and the
collective and individual needs of their members. These factors must be
evaluated relative to other national groups in the world and their
comparative
needs and in consideration of the limitations of global territorial
resources.
Clearly, widespread agreement on comprehensive and perfect
moral
solutions to these questions (even if, in principle, such solutions
exist) is
well nigh impossible due to the limitations of human intelligence and
nature.
This is certainly the case regarding the Jewish-Palestinian dispute.
When
determining the appropriate size of the Palestinian state relative to
the size
of the Jewish state, the only things that should not be in dispute are
a prima
facie presumption against mass transfers of populations, an
unequivocal
presumption against forming suburb-size states, and a prima facie
presumption in favor of the territorial continuity of states. However,
even
these undisputed points are formulated in language that can open them
up to
debate. For example, what constitutes “mass” population transfer? What
conditions overcome any one of the prima facie presumptions? Other
considerations to be weighed in deciding upon the territorial
division
between national groups are even more controversial. For example,
should the
territorial borders of the Jewish state be based solely on the size of
the
current Jewish population in Israel or should the fact that Israel
perceives
itself as the home for all Jews be taken into consideration and
the
borders set in anticipation of their possible absorption? Should the
territorial borders of the Palestinian state be set in light of the
possibility
of all members of the Palestinian dispersion settling there? Should
consideration be given to the significant political and cultural
support that
would be given to such a state by its neighbors, whose cultures are
very
similar to the Palestinian culture? How much unpopulated space is
necessary to
accommodate the recreational needs of each of the states’ populations?
Even if
there are clear and precise answers to these questions, there
is still
dispute among the members of each party to the Jewish-Palestinian
conflict, as
well as between the two parties themselves, as to how to arrive at
these
answers. In cases where there are moral ambiguities and disagreements
of the
sort discussed here, the parties bear a moral obligation to reach a compromise.
Israel’s pre-1967 borders provide a firm foundation for such a
compromise by
virtue of the international community’s recognition of their
legitimacy. Any
attempt to reach a compromise based on other borders, whether narrower
or
wider, will open up disputes with no ready resolutions for which
consensus can
easily be secured. Moreover, since both sides bear a grave moral duty
to
prevent the further perpetuation of the violence, any attempt to
formulate a
compromise based on anything but the pre-1967 borders must be rejected
as
it will only lead to a stalemate between the two sides and further
violence. In
other words, the pre-1967 borders are the best territorial line along
which to
separate the Palestinians and Jews, not because they are inherently
more just
than any other option in the infinite range of reasonable possibilities
for
just borders, but because it is difficult to point to any relevant
reason for
preferring any one of these solutions over the rest; the advantage of
the
pre-1967 borders lies in the international recognition they already
enjoy.[26]
The fact that international recognition for any other borders will be
secured after a territorial agreement has been reached between
the parties
regarding
those borders cannot assist the parties in setting the borders before
this
recognition. The existing international recognition of the pre-1967
borders provides moral grounds to favor these borders not only because
it is international
recognition but also, and perhaps primarily, because it is an already
existing recognition. It can constitute a conventional anchor for
the
resolution of a moral dispute whose solution is an urgent moral
imperative,
with only a slim chance of finding any solution other than territorial
separation along these borders given the limitations of human
intelligence and
nature.[27] The upshot of
these last comments is that
the preclusion of return for the Palestinian refugees to areas in the
Jewish
state means no return to areas within Israel’s pre-1967 borders. The
general
conclusion of my discussion on Palestinian return is that the stance
rejecting
Zionism based on the rejection of any normative significance to the
link
between the Jews and the Land of Israel, the non-territorial version of
Zionism, and the more ambitious territorial version of Zionism can all
justify,
on individualistic grounds, the return of Palestinians to their places
of
origin if they are vacant within the pre-1967 borders. They also can
justify a
collectivist Palestinian demand for the return of at least some of its
members,
based on the Jewish state’s obligation to realize its responsibility
for at
least some of the suffering caused to the Palestinian People with the
establishment of Israel. Since the issue of what constitutes a “vacant”
area in
the context of the right of return is open to significant
interpretative debate
and since the question of how many Palestinian returnees will suffice
to
constitute a manifestation of Israel’s responsibility has no precise
moral
solution, here, too, the parties bear a moral obligation to reach a
compromise.
This compromise must be guided, on the one hand, by the general logic
of the
chosen solution to the dispute and, on the other hand, by all the
details of
its implementation. The fact that the solution is a territorial
division of
Western Land of Israel between Jews and Arabs is good reason for not
allowing mass
return of Palestinian refugees. The fact that an important detail of
this
territorial division is that the size of the territory to be allocated
to the
Jews is much larger than the territory to be allocated to the
Palestinians
serves as good reason for allowing the return of a non-negligible
number of
Palestinian exiles.[28] Within certain parameters of reasonableness,
neither
morality nor justice provides any guidance as to what constitutes a
“mass”
return and what constitutes a “negligible” return. However, this does
not strip
the principle I have formulated of all content. Vagueness is
characteristic of
many concepts of natural languages, not only moral concepts. Just as
the
assertion “He is tall” is not devoid of content, nor is the statement
“The Palestinian
return should be neither en masse nor negligible” devoid of content.
In his article Entitlement
to Land and
the Right of Return: An Embarrassing Challenge for Liberal Zionism,[29]
Andrei Marmor argues for a more generous right of return than the one I
argue
for. But as I will immediately show, his arguments, if carried through,
imply
a right of return even more generous than he himself actually supports.
Marmor
advocates the return of members of the Palestinian diaspora
who
were exiled as a result of ethnic purges and who have remained
refugees,
regardless of whether or not their places of origin are currently
vacant. The
frequent challenge to this claim, voiced also by Liberal Zionists, is
that such
a return would endanger the Jewish character of the state. Marmor’s
response is
that if ethnic cleansing can be a legitimate means of securing the
cultural
character of a state, then why not ensure this character by placing
restrictions on the political and civil rights of minorities (or even
the
majority)? The Zionist “Left,” Marmor implies, does not have too many
options:
it must either abandon its opposition to the Palestinian right
of return
or else it must admit that it is not truly liberal. Furthermore, in
Marmor’s
view, Israel’s borders prior to June 4, 1967, are morally no more
defensible
than the (expanded) borders that include post-1967 settlements in the
Occupied
Territories. In both cases, the borders were the result of a war; and
war, however
justified, is not a legitimate means of acquiring territory. Although
not
explicit, Marmor’s position is that not only must Israel permit the
return of
Palestinians to unpopulated locations inside its borders, but the
Israeli
borders themselves should be far narrower than the pre-1967
borders.
Thus, the Palestinians should be permitted to return to at least some
of the
unpopulated parts of Israel inside its pre-1967 borders, and their
return to
those parts should be accompanied by a transfer of those places to a
Palestinian state. The arguments
presented
earlier in the article indicate that these conclusions are invalid. I
will
first address Marmor’s claim supporting the right of return for those
members
of the Palestinian diaspora whose exile is the product of ethnic
purges. At the
basis of this claim is the argument that just as Liberals cannot
consent to
limiting freedom of speech and suffrage rights in order to preserve
Israel’s
Jewish character, they cannot agree to the continued perpetuation of a
situation
that is the result of ethnic purges toward the same purpose. There are
numerous
possible responses to Marmor on this count. For example, we can point
to the
fact that the ethnic cleansing of the Palestinians from certain
territories in
Palestine is not a planned future policy, but, rather, was an
exceptional,
one-time occurrence over fifty years ago and preventing the
perpetuation of its
tragic consequences does not necessitate the repatriation of all its
victims,
whereas imposing limitations on the political rights of Israeli Arabs
in order
to preserve the Jewish character of the state constitutes a permanent
future
arrangement whose consequences cannot be mitigated by anything less
than its
total abandonment. Furthermore, compensation for the suffering
that was
and still is the product of the 1948 ethnic cleansing of the
Palestinians may,
indeed, be imperative, but the choice of the means of righting this
wrong must
reflect other components of the moral situation. For example,
the Jews
in Israel harbor well-founded security concerns regarding the presence
of a
large population that bears resentment against the very establishment
of the
state, born of bloodshed and injustices suffered, and quite
naturally,
such seething hostility is not likely to be placated by any Israeli
actions
intended to atone for those wrongs. We can also point to the fact that
not all
ethnic purges are the same. The Serbs’ ethnic purge of the Moslems in
Bosnia in
the beginning of the 1990s did not resemble the ethnic purge of the
Sudetan
Germans by the Czechs in the aftermath of World War II, for example.
Although
not justifying it, the circumstances of the 1948 ethnic purge of the
Palestinians by the Jews may excuse it, provided that the Jews
acknowledge the
wrongs committed and compensate for them by means other than actual
return. However, my
arguments in the
preceding parts of this paper offer a far more fundamental response to
Marmor.
For, in essence, his claim has force only because he plays on the
vagueness of
the term “preserving the Jewish character of the state” and on the
moral
dangers inherent to the use of this term because of this ambiguity. In
the
context of the problem of Palestinian return, the “character of the
state”
argument can be given an entirely clear and lucid interpretation; in
fact, the
argument’s objective can be reached in complete disregard of the
argument
itself. Following the lines of my previous arguments, the
return of
refugees is warranted only when their original locations are
vacant,
since, on the one hand, there are individualistic reasons to support
their
return to their former homes and, on the other hand, there are no
individualistic reasons preclude this (i.e., no innocent individuals
live on
that property whose lives are rooted there). In all other instances,
however,
the wrongs must be redressed by settling refugees not in their original
locations, but in other areas in Western Land of Israel. If the
Palestinian-Jewish dispute is to be resolved by establishing separate
territorial units of self-determination for the two nations, the
internal logic
of this solution supports the conclusion that where individualistic
reasons
preclude the return of Palestinian refugees to their original homes,
they ought
to be resettled in territories designated to be Palestinian. In other
words, if
Zionism is justified or, alternatively, the realization of its
aspirations is
retroactively morally justified in light of current conditions and if
there is
a similar nationalist justification for the establishment of a
Palestinian
state, it is not clear why Marmor supports allowing refugees unable to
return
to their original locations to return to vacant areas in Israel and not
to
vacant Palestinian areas. For in any event, whether these refugees
return to
areas in the Jewish state or the Palestinian state, they will be
returning to
parts of their historical homeland and nearby their original locations.
Thus,
it is difficult to understand why they should return specifically to
areas
inside the Jewish state. This objection to the return of Palestinian
refugees
to vacant areas in the Jewish state does refer at all to the “the
Jewish
character of the state” argument. Alternatively, it could be understood
as
giving the argument very clear meaning in the context of the right of
return,
thereby avoiding the moral pitfalls of its vagueness. The second
implicit aspect to
Marmor’s argument is that the pre-1967 borders are no more morally
justifiable
than borders that include settlements created after 1967, since both
are the
product of wars, which, even if they were just, cannot justify
territorial
acquisition. Consequently, the argument goes, the return of Palestinian
refugees to at least part of the unpopulated areas in Israel must be
accompanied by the transfer of these areas to a future Palestinian
state. This
claim is problematic because it takes for granted that the borders of
the 1947
Partition Plan are the morally justified borders of the Jewish
state.
The Partition Plan can be regarded as having established morally
legitimate
borders for the Jewish state for two alternative reasons. One reason is
that it
constitutes an international solution to a problem lacking any clear
moral
solution, and given its potential to prevent the continuation of
violence,
there is a moral obligation to adopt this solution. Alternatively, the
Plan can
be regarded as having enunciated the morally appropriate solution given
the
relevant parameters at the time: it divided the areas with a Jewish
majority on
the one side and those with an Arab majority on the other. However,
neither of
these justifications has force with regard to the period leading up to
the
Six-Day War in June 1967 or to the period immediately thereafter.
Whereas in
1947, the Partition Plan offered a desirable solution because it was
then a
reasonable solution and an international solution to a problem with no
one
right solution, this was not the case in 1967 in terms of international
recognition. In 1967, Israel, as a state perceiving itself as a Jewish
state,
enjoys international recognition within the borders of June 4, 1967,
which
replaced the international recognition the Partition Plan provided in
1947. If
the Plan had offered an appropriate solution for the territorial
division of
Western Land of Israel because of the moral justification of
its
substance, namely, the existence of a Jewish majority in the area
designated
for Jews and the existence of an Arab majority in the areas designated
for
Arabs—then the demographic reality in Palestine/the Land of Israel in
1967 mandated a different territorial division. Of course, such a
division
would not have had to necessarily follow the lines of the pre-1967
borders;
conceivably narrower borders might have been appropriate. But either
way, it
would not have been along the Partition Plan lines of 1947. And in
2004, wider
borders than the pre-1967 might be required. Indeed, the
situation is
such that there is no clear moral criterion for determining whether, in
2004,
the borders should be narrower or wider than the pre-1967 borders, for
there is
international consensus only with regard to the pre-1967 borders. Given
this background, there is a lot of sense to the claim that
the latter
should be the borders. Not only does
Marmor ignore
and belittle these considerations, he also claims that borders
stretching
beyond the pre-1967 ones seem more legitimate than those exceeding the
territorial lines of the Partition Plan, since the former would
be drawn
in accordance with settlements on lands not attained by way of ethnic
cleansing, whereas the latter were based on borders that were largely
the
consequence of ethnic cleansing. He therefore argues that any moral
divergence
between the borders that were set after 1947 and those set after 1967
tilts in
favor of the latter. The only reasons for compromising on the post-1967
borders
are pragmatic and prospective, not principled. Despite his admission in
one
place that these reasons also have moral tinge to them, in deriving
their
impetus from the moral imperative to resolve conflicts in general,
Marmor
underplays the significance of this moral duty by generally
describing
the considerations it reflects as of a pragmatic nature. This
presentation of matters
must be rejected. Admittedly, seizing lands by way of ethnic cleansing
is
perhaps graver than attaining land in a manner that does not involve
this
crime. Yet there are strong reasons for maintaining that the ethnic
cleansing
of 1948 was less morally reprehensible than the ongoing settlement
activity
following the 1967 Six-Day War. First,
the ethnic cleansing of 1948, even if intended by part or all of the
Jewish
political leadership in the Land of Israel, is attributable to
the Jews’
post-World War II fears and the understandable urgency with which they
sought a
state that would provide them with protection, a state whose
establishment the Arabs rejected. Though this claim is, to a certain
extent,
part of the Zionist narrative, it is not necessarily a fabrication. In
contrast, the settlements following the 1967 war were on behalf of, or
at least
under the aegis of, an existing state; they were established for the
purpose of
territorial expansion under circumstances that provided no basis for
the fears
that may have been justified in 1948. Second, and more importantly, the
post-1967 settlements were intended to plant almost insurmountable
obstacles on
the way to peace and the resolution of a violent conflict. The moral
duty not
to obstruct any possibility for terminating the conflict is, in my
eyes, no
less principled than the duty not to thwart the Partition Plan of 1947.
Taking
cold and calculated measures to prevent any possibility of complying
with that
moral duty, as in the manner and circumstances of the settlements, will
prepare
the ground for future ethnic cleansings, which will be absolutely
unpardonable
in the circumstances. To sum up,
Marmor accuses
those who identify themselves as “Liberal Zionists” of two
inconsistencies. The first relates to their use of the “Jewish
character of the
state” argument in order to justify their objection to the return of
the
Palestinians to places that are not their original locations. Marmor maintains that this objection is
inconsistent with the Liberal Zionists’ opposition to imposing
restrictions on
the political rights of Israeli Arabs. Second, he takes issue with
their
objection to borders that exceed the pre-1967 borders. This objection,
he
argues, is inconsistent with their opposition to returning to the 1947
borders.
The above discussion has shown that these charges are unfounded.
Indeed,
inconsistency in fact seems to be the hallmark of those supporting
positions
such as Marmor’s. For if they oppose any kind of nationalism, whether
by dint
of their being socialists or neutralist liberals, then they cannot
speak of the
materialization of Palestinian return within the framework of the State
of
Israel as a state perceived of as realizing the Jewish right to
self-determination. They can speak only of a culturally neutral state
in
Western Land of Israel, the return to which should not be limited to
those members
of the Palestinian diaspora that were the victims of ethnic cleansing,
but,
rather, should extend to all members of the Palestinian diaspora. This
argument, however, is incommensurate with Marmor’s presuppositions, for
he
seems to regard the right of return discourse as revolving around the
question
of the appropriateness of Palestinian return to a state that realizes
the
Jewish right to self-determination. The question of whether
this
possibility merits support will similarly compel the supporters of a
position
such as Marmor’s to address the dispute between liberal nationalists
and
neutralist liberals and not take for granted that liberalism can be
neutralist
with respect to national cultures. The question of whether liberalism
is
compatible with some sort of nationalism will compel them to attribute
greater
significance to the distinction between Liberal Zionists and Romantic
Zionists
(those to the right of liberal nationalism), a distinction Marmor
ignores (for
he refers to Zionism as though it were wholly romantic). Furthermore,
Marmor is
mistaken in directing his accusations at the so-called “Liberal
Zionist”
consensus; in 2003, humanistic nationalists, even if they are not
Zionists, can
also be partners in the consensus regarding the pre-1967 borders and
the
opposition to Palestinian return. For within the geo-demographic
reality that
Zionism created in Western Land of Israel, even non-Zionist
nationalists can
argue that this territory should accommodate both Jewish
self-determination and
Arab self-determination. Furthermore, they also can support territorial
separation between the two entities of self-determination, either
because they
believe that self-determination ought, in principle, to be territorial
or else
because they believe that, in the particular context and history of the
Jewish-Palestinian dispute, territorial self-determination for the
respective
parties is the best solution. My position
regarding the
right of return, therefore, lies somewhere between Marmor’s position
and the
position that he ascribes to the Liberal Zionist consensus. It will be recalled that I support a
restricted right of return for Palestinians as an expression of the
collective
Jewish responsibility for the Palestinian refugees’ plight and
based on
the individual rights of some of the members of the Palestinian
diaspora to
return to their original locations if vacant. My position diverges from
the
Liberal Zionist consensus not because I maintain that the latter
position
reflects inconsistent moral stances, but, rather, because I believe
that it
does not take into account some important considerations. ------------------------ HOME to T.H. website HOME to Det & Freedom website ------------------------ NOTES * I am grateful to Eyal
Benvenisti, David
Enoch, and Andrei Marmor for
their many important comments on an earlier draft of this article. 1. In this article, the term
"the Land of
Israel" (which is
the English translation of the Hebrew Eretz Yisrael) designates
both the
territory lying west of the Jordan River up to the Mediterranean Sea
(which
today encompasses the territories of the State of Israel and the
Palestinian
Authority) and the territory east of the Jordan River, which is part of
Jordan
today and in the British Mandate period was Transjordan. In the Jewish
faith,
the Land of Israel is the territory that was promised to Abraham, the
forefather of the Jews. "Western Land of Israel" refers to that part
of the Land of Israel that lies west of the Jordan River and which is
also
known as "Palestine." The
Palestinian demand for return refers to return within the territory of
Israel's
recognized borders, that is, the state's borders from the end of the
1948
Israeli War of Independence until the outbreak of the Six-Day War in
June 1967.
The Palestinian refugees originate from these territories.
Any official Jewish willingness today to
return of Palestinian refugees relates not to return to these
territories, but,
rather, to territories in Western Land of Israel/Palestine that were
conquered
by Israel during the Six-Day War, some of which were transferred to the
Palestinian Authority under the Oslo Agreements. 2. See Chaim Gans, The
Limits of
Nationalism at ch. 1 (2003). 3. Id. 4. Id. 5. This is so despite the Uganda
Plan, which
proposed Uganda as the
Jewish national homeland, and, inter alia, also because of its total
rejection. 6. See, e.g.,
Brian Barry,
Culture and Equality: An
Egalitarian Critique of Multiculturalism (2001). 7. Regarding the socialist
rejection, see
Nimni’s discussion relating
to Marx and Engels in Ephraim Nimni, Marxism and Nationalism (1991)
(especially
Chapters 1 and 3); for the cosmopolitan liberal’s rejection, see Jeremy
Waldron, Minority Cultures and the Cosmopolitan Alternative, 25
U. Mich.
J.L. Reform 751 (1991-1992). 8. This matter is discussed in
Gans, supra
note 2, ch. 4. 9. These questions are discussed
in Will
Kymlicka, Multicultural
Citizenship: A Liberal Theory of Minority Rights (1995); Gans, supra
note 2, at 160-65. 10.The former approach will find
no
distinction between Zionism and any
other colonialist movement. The latter will concede the possibility of
a
distinction, but of no normative significance for the justification of
Zionism.
The truth is that the question of whether or not Zionism is a
colonialist
movement is irrelevant to its post-facto justification, since
even the
colonialist nations were never seriously requested to leave the
locations in
which they had settled (e.g., the European nations that settled
in New
Zealand, United States, Australia, etc.). In other words, it can be
argued that
just as the historical connection did not justify the Jews’ return, its
absence
does not justify their removal. Accordingly, it is of no consequence
whether or
not Zionism is identified as a form of colonialism. 11. They can in fact reject
Zionism and
Jewish cultural nationalism
through yet a third avenue: that of Palestinian chauvinism, according
to which
only Palestinian nationalism is of intrinsic value and any other
cultural
nationalism is a sham. I do not discuss this possibility since it is
evidently
incoherent (for it ascribes value to one group and denies the value of
others,
despite admitting the relevant similarities between the groups), as
well as
patently racist in its regarding other groups as inferior. 12. For a
detailed discussion of this issue, see Gans, supra note 2,
chs. 4, 5. 13. Regarding philosophical
characterizations
of nationalism that is
right of liberalism, see Isaiah Berlin, Nationalism:Past Neglect
and Present
Power, in Isaiah Berlin, Against the Current:
Essays in the
History of Ideas 333-55 (Henry Hardy ed., 1980); Barry, supra
note 6.
For characterizations of historians, see Peter Alter, Nationalism at
ch. 2 (2d
ed. 1994). Philosophers refer to these forms of nationalism as
romantic;
historians often call them integral. 14. I must stress that this
could be their
position, but it is not
necessarily their position, the reason being that even if they ascribe
ultimate
value to collectives, they can simultaneously ascribe similar value to
individuals. Conceivably, they could ascribe a degree of importance to
individuals that would lead them in this case not to favor the
interests of the
Palestinian collective and its component individuals to inhabit
Palestine by
themselves, over the interests of individual Jews to continue living
there. 15. Obviously, liberal
nationalists could
acknowledge that their
liberal stances might be exploited and manipulated by, for
example,
nationalist movements like Zionism that create on-the-ground facts with
normative significance, facts that liberals will have to recognize. If these liberals are consequentialists,
they can, in principle, recognize the legitimacy of supposedly
non-liberal
steps that might, in the long run, maximize the realization of
liberalism. Problems of this kind cast a shadow also on such legal
institutions
as statutes of limitations. Yet I believe that ultimately these
institutions
are justified and more plausible from a liberal standpoint. For a
convincing
argument, see Jeremy Waldron, Settlement, Return, and the
Supersession
Thesis, 5 Theoretical Inquiries L. XXX (2004). 16. A distinction must be made
between a
person’s lack of
responsibility for the fact that his life is conducted in a particular
place
and his lack of responsibility for the expulsion of the previous
residents from
the same place. The former entails the latter, but not vice versa. No
responsibility for living in a particular place does not imply no
responsibility for the expulsion of previous residents. Hence, Jews
born on
Palestinian property or brought there as infants are not responsible
for the
fact that their lives are rooted in those places and, thus, are not
personally
responsible for the Palestinian exile. Jewish adults who were
opposed to
the Palestinian expulsion or who were even opposed to the actual
realization of
Zionism are not personally responsible for the Palestinian diaspora,
but if, as
adults, they purchased property that was once Palestinian, they are
most
certainly responsible for the fact that their lives are rooted
there. The
situation becomes more complex when we consider that many Jewish
individuals
who are not responsible for the fact that part of their lives are
rooted in
formerly Palestinian property since they have been there since infancy
do bear
responsibility for other parts of their lives being rooted in such
property
since this has occurred in adulthood, when they chose to conduct
certain
aspects of their lives in these places. For example, at the age of
three, I was
brought to the lands of Sumeil (where a part of North Tel Aviv is
located). But
it was only in my adulthood that I began spending time in Sheikh Monis
(where
Tel Aviv University is located). The only way of overcoming this
problem is via
the claim of necessity. Many adults conduct parts of their lives on
formerly Palestinian property, to which they arrived as adults,
since
the
requirements of conducting a normal life, including a career
and
livelihood, leave them no other option. 17. It is important to remember
that whether
or not Jews’ residing in
one or another part of the Land of Israel can be considered residence
in their
homeland depends on whether one attributes normative significance to
the
historical connection between the Jews and the Land of Israel. If one
denies
such normative significance, then it is clear that the borders of the
Jewish
state cannot diverge from the areas in which Jews actually reside. The
reason
is that if the historical connection is not a consideration, then the
justification for a Jew living in the Land of Israel is
identical to the
justification for a settler of European origin living in New Zealand.
Colonialists should not be expelled from the places where their
lives are now rooted. Their right to receive
territories that they
do not
actually occupy is subject to considerations of distributive justice,
which
take natural reproduction into account. However, if one attributes
normative
significance to the historical connection between the Jews and
the Land
of Israel, then vacant areas in that land can be included in
the framework
of the Jewish state and their claim to these territories will not be
based
exclusively on considerations of distributive justice between them and
the
Palestinians that rest on natural reproduction alone, but also upon the
exigencies created by the return of members of the Jewish
diaspora to
the Jewish state. 18. It should be stressed that
this claim
does not imply that the right
of the Jews to return to the Land of Israel is justified by
considerations of
corrective justice, i.e., that the persecution of Jews primarily in
Europe
justifies the compensation of the Jewish People by allowing it
to
establish its self-determination in the Land of Israel. Many hold this
view,
but its foundations are rather shaky given that the Arabs were not a
party to
the persecution of the Jews, and there is no reason why they should
have to pay
the price. The claim is an a-historical distributive justice claim
based on the
general principle that every nation is entitled to self-determination
in its
historical homeland, even if this means that the other nations in that
homeland
must content themselves with less than statehood (see Gans, supra
note
2, ch. 4). It should also be stressed that this principle need
not be
interpreted as asserting a right to a nation-state. It can also be
interpreted as referring to a right to sub-statist
self-determination
(see the Australian and Canadian decisions regarding indigenous peoples
right
to self-determination: Mabo v. Queensland (No. 2) (1992) 175 CLR1;
Delgamuukw
v. British Columbia (1997) 153 DLR (4th) 193 (SCC)). This principle can
be
further qualified: Nations that were uprooted from their homes and
persecuted
are entitled to return to their places of origin even if not
entirely
vacant. In the Jewish-Palestinian case, this would mean that the
Palestinians
are paying the primary price of this principle of distributive justice
and that
they are doing so not as a result of their own culpability but due to
simple bad luck (their homeland is also the homeland of
others).
This fact lays the
basis for international responsibility to solve the Palestinian
refugee
problem, with particular responsibility borne by the European nations
who
persecuted the Jews, which led to the applicability of the a-historical
distributive justice principle in this context. 19. Obviously,
this description
is a
simplistic one. Ultimately, we can
assume that amongst both the Jews and Arabs different stances were
adopted by
different sectors regarding the opinions and actions of the other side
and that
these actions and reactions had a dynamic reciprocal effect.
Accordingly, the
opinions of the different groups and the groupings themselves are
perpetually
in a state of flux. In order to provide comprehensive answers to
questions
concerning the responsibility of one party for the reactions of the
other
party, one must provide answers to factual historical questions
relating to
states of affairs in infinite points in time and to complex
theoretical
questions relating to the justness of the responses of one side to the
other,
in light of the weight of the different opinions of the different
sectors of
both sides regarding the actions of the other. Obviously
I am unable to deal here with either these
factual historical
questions or the theoretical moral ones. 20. Assessments on this matter
are dependent
on innumerable variables,
such as the economic industriousness of the group wishing to form a
state, how
pampered its members are and their willingness to suffer, and
the
technological means available in the particular period, all of which
are
factored in with, amongst other variables, the topography of the
region, the
character of the populations in territories neighboring on the
territory where
the new group seeks to form its state and the relations with them, the
international connections of the particular group and those of their
neighbors,
and the intensity of the international community’s commitment to
morality and
international law. 21. However, if we assume that
certain exiles
immediately regretted
their departure and requested to return but Israel rejected these
requests,
then Israel is not only responsible for their loss of property, but
also for
all damages they suffered from the moment they were refused return.
Israel
could raise a counterargument, that in the absence of a
resolution to
the dispute, considerations of security and public order precluded
granting
permission for their return. This argument might be of real substance,
though
it is not obviously so. It represents yet another
complication in
the tangled way towards a moral solution to the problem of the
Palestinian
diaspora. 22. See supra note
19, para.
2. 23. See Gans, supra note
2,
ch. 4. 24. Id. 25. See Andrei Marmor, Entitlement
to Land and the Right of
Return: An Embarrassing Challenge for Liberal Zionism, in Justice in Time: Responding to Historical
Injustice (Lukas
H. Meyer ed., 2004). 26. It is important to remind
supporters of
this position (the Israeli
left) that this international recognition is accompanied by two
additional
positions taken by the international community: Israel’s
duty to absorb at least a certain number of
Palestinian refugees (UN Resolution 194) and the refusal to recognize
Jerusalem
as the capital of Israel. Reliance on the international recognition of
the
pre-1967 borders as the grounds for adopting them entails
taking into
consideration the other two stances, which also touch on the very heart
of the
Israeli-Arab dispute. These international decisions are inextricably
interwoven
and constitute parts of a whole; rejecting one of them means rejecting
them all
and reopening the points of dispute. 27. Moral problems for which
there are
several possible solutions, none
of which is considered better than the other, and whose resolution is
morally
urgent can be regarded as similar to convention problems. Ordinary
convention
problems are those in which the parties have an interest in cooperating
with
each other and there are a number of ways of cooperating, but none is
necessarily superior to the other from the perspectives of the parties
(or where
the differences among the alternative ways of cooperation do not
produce a
sufficient ground for the parties to forego cooperation). The problem,
therefore, is which mode of cooperation to choose. In our context, the
problems
are not of a kind that the parties are necessarily interested
in
solving, but should be interested in solving them for moral
reasons. The
problem is that there are an infinite number of reasonable moral
solutions to
the matter of the territorial division between the Jews and
Arabs in Western
Land of Israel. There is a moral obligation to choose one of them, for
otherwise the violence will continue. Which should be chosen?
International
recognition of a particular territorial division can determine the
choice.
Obviously, there can be other ways of reaching the decision. However,
even
within the scope of reasonable territorial divisions, the possibilities
are
endless, and the parties could spend the rest of their days trying to
decide
only on the preliminary questions of which of these possibilities will
go into
the hat from which the final solution is to be pulled from. For example,
let
us assume that the parameters of a reasonable solution extend between
one of
the partition plans from the 1930s and the borders that current Israeli
Prime
Minister Ariel Sharon intends to propose within the framework
of the
“Roadmap” process initiated by President Bush. Even within those
parameters,
there is an infinite number of variations, because one can forever add
or
remove different variations from the stockpile that differ only
fractionally from any option for borders. 28. Conceivably, such a return
will have to
be postponed by a decade
from the day that the peace treaty comes into force and will have to be
contingent upon compliance with the other parts of the agreement for
the
duration of that decade in order to assuage Israeli security concerns. 29. Marmor, supra note
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