Dag 17 – De Nakba, the Right of Return
Palestijnen hebben volgens internationaal recht en de universele mensenrechten het recht terug te keren naar de dorpen en steden waar zij in 1948 uit verjaagd zijn. Resolutie 194 van de Algemene Vergadering van de Verenigde Naties bevestigt dit. Voor het bereiken van een rechtvaardige vrede dient dan ook aan dit recht voldaan te worden.
Tijdens het begin van de genocide op Gaza heb ik voor een vak aan de universiteit een academisch paper geschreven over de Right to Return vanuit een filosofisch perspectief. Het stuk is eind oktober geschreven in een periode die mentaal erg zwaar was voor mij. Op elke mogelijke manier zocht ik naar handelingsperspectief in de schrijnende situatie in Gaza. In het paper analyseer ik het recht op terugkeer vanuit twee verschillende filosofische theoriën over burgerschap. De tekst wijkt af van de gebruikelijke blogpost, maar hopelijk weet het een enkeling te interesseren.
The Palestinian Right to Return: Philosophical Perspectives
This essay is composed in the wake of heavy bombardments and the besiegement of Gaza by the Israeli Defence Force in October and November 2023. The entire Gaza Strip has been cut off from a steady supply of water, electricity and fuel for a month. So far, more than 10,000 Gazans have been killed, the majority of which are women and children. Amongst them were also seniors who had lived through the 1948 Nakba or catastrophe – an ethnic cleansing in which approximately 750,000 Palestinians fled their homes to Gaza, the West Bank and neighbouring countries (Pappe, 2006, p. 137). A recently leaked initial policy document circulating in the Israeli Ministry of Intelligence calls for “[t]he evacuation of the civilian population from Gaza to Sinai” (Text Translation, 2023). Although this policy plan has not been formally endorsed, the Israeli acts and rhetoric of war reap fear amongst the Palestinians for a repeat of the Nakba.
In contemporary political philosophy, the interrelation between Palestine and Israel can be investigated from numerous angles, such as the philosophy of war. In this paper, I would like to focus on the right to return. The right of Palestinian refugees of the Nakba to return to their homeland is one of the most exemplary cases of this moral right. The topic is closely connected to philosophical debates on migration, citizenship and intergenerational justice and it can be answered within various understandings of statehood. Here, I will investigate the right to return in line with the Stakeholder principle formulated by Rainer Bauböck (2009) and occupancy rights, formulated by Anna Stilz (2011) and further developed by David Lefkowitz (2015). The stakeholder principle and occupancy rights are embedded in broader theories on citizenship and statehood which depart from nationalist political theory. Because they both enable the right of return within their respective broader philosophical perspective of statehood, I have made them my main focus. This paper investigates whether the stakeholder principle and occupancy rights allow for the Palestinian right to return.
One vital criterion to assess their success in handling the Palestinian right to return is the extent to which they can encompass a context of (historical) injustice. Although failure to address unjust treatment could allow for the right to return on a different basis, it would ignore the belief of many Palestinians that the right to return should in part act as a retributive right, compensating for the injustices that they have suffered in the past. History is repeating itself as the world is witness to hints of another ethnic cleansing – even genocide – unfolding under its very eyes. I do not want to argue that the right to return should be considered retribution for past injustice. Nevertheless, I do believe that it is an integral part of any solution aimed at bringing justice to displaced Palestinians. Any philosophical theory on the right to return should take forced expulsion into account in the formulation of said right.
One might argue that it is premature to argue for the right to return of an ethnic cleansing that has yet to see its completion. I don't see it this way. What this paper does, is establish a philosophical framework of debate based on the historical context, which suits the characteristics of the current crisis. Furthermore, it is still of value in past philosophical work on the right to return. Its biggest divergence from the existing literature is that it can avoid the intergenerational dilemmas, persistent in the right to return following the 1948 Nakba. It is not that I think the question of whether second and third-generation refugees can inherit the right to return is unimportant. Rather I focus on the first generation of refugees, regardless of whether they fled the territory in 1948 or 2023, because understanding the first-generation right to return is fundamental in the allocation of rights of newer generations of refugees.
Besides noting the predominant focus on the right to return of first-generation refugees, I want to make three remarks. Firstly, as this is a philosophical work it will concern itself with moral rights first. Legislation may follow whatever these moral rights prescribe but these are not the main issue at hand. Secondly, I limit myself to the right of individual Palestinians to return, rather than their right as a group. Finally, I do not argue for or against the validity of the Palestinian right to return, as I will take it as a given that such a right is indeed bestowed upon first-generation refugees living in the diaspora. Instead, I use the Palestinian context as a crucial test because it is one of the most typical cases of the right to return. If political theories can meaningfully engage the Palestinian right to return, it makes them all the more plausible.
Section I introduces the stakeholder principle. It argues that external citizenship and its stakeholder principle are not equipped to encompass the Palestinian right of return. I assert that the stakeholder principle is too forward-looking. Thereby, it neglects the historical context of the forceful annexation of Palestinian territory that grounds the contemporary injustice of preventing Palestinians from being stakeholders in the first place. Section II considers occupancy rights. It assesses whether they do successfully address the problems stated in section I. I argue that it indeed leaves room to look at past injustices. The work of Lefkowitz will serve as an example.
Section I – Stakeholder principle
Bauböck’s The Rights and Duties of External Citizenship begins by defining external citizenship (2009). He believes that external citizenship has been overlooked in favour of nationalistic political theory. However, nationalistic theories of citizenship ignore rights connected to the citizenship that a migrant enjoys in their country of origin. Through the appreciation of external citizenship, Bauböck wants to acknowledge a normative framework of rights that appeals to both the country of residence and origin (2009, p. 477). His wish is to create a political theory of citizenship that is sensitive to the political reality of many migrants, that of enjoying dual citizenship. To allocate rights and duties that are fitting within and between these two citizenships, he introduces the stakeholder principle (Bauböck, 2009, p. 477).
Before moving on to the stakeholder principle, I must demonstrate that displaced Palestinians meet the criteria of having external citizenship according to Bauböck. Especially because he makes no mention of Palestinians as a specific group and his theory appeals to a broad range of migrants. Bauböck interprets ‘external’ “as referring to the territorial jurisdiction rather than to the legal status of citizenship itself” (2009, p. 477). In a note, he further denounces that “[e]xternal citizens […] would be those who have a claim to citizenship rights although they are formally non-citizens and thus outside the legally defined boundaries of membership” (Bauböck, 2009, p. 493). In these two quotes, Bauböck makes room for a more fluid interpretation of citizenship, that does not necessarily have to have a firm grounding in a legal status. To Palestinian individuals who have historically been subjected to multiple legal rules, this reading is favourable. However, seeing Palestinians as external citizens becomes more difficult when Bauböck adds that the polity should recognise them as members (Bauböck, 2009, p. 478). Because the Palestinian case deals with annexation, the territorial jurisdiction has also moved from that of a Palestinian polity to an Israeli one. These questions pertain to the question of “which communities have a claim to self-government” (Bauböck, 2009, p. 478). This is exactly where the first cracks begin to show for Bauböck’s theory, which I come back to towards the end of this section. For now, I allow the Palestinian polity to be in want of territorial jurisdiction, although they do not currently enjoy it, to move on with the argument. This is an approach that Bauböck himself takes as well when he states that one may combine the determining of membership status through the stakeholder principle:
with an appropriate response to the first question about legitimate self-government by considering how criteria for citizenship might change when the community in question is not an independent state, but […] an autonomous polity within a state […], or a political movement struggling for territorial self-government. (Bauböck, 2009, p. 478)
I now move on to assess this stakeholder principle, that determines which and to what degree individuals have a claim to citizenship in these aforementioned self-governing communities. Being a stakeholder means that the individual has an interest in and influence on the common good of political institutions in a polity (Bauböck, 2009, p. 479). Whether an individual can be counted as a stakeholder depends on objective ties that create responsibility towards a political community. This is further specified as the dependency and biographical subjection criteria. The former is aimed at the long-term protection of basic rights. The latter looks at how an individual’s life has been shaped by a political community as an indicator of future involvement in said community. It is important to note that both criteria are targeting political involvement.
According to Bauböck the right to return is at the core of external citizenship (Bauböck, 2009, p. 482). It needs to be enforced by the external country of origin. He also believes that refugees and groups in the diaspora have high stakes in returning to their external homeland (Bauböck, 2009, p. 481). Often they are seen trying to influence their political community. This too, is the case for Palestinian refugees in the diaspora. They advocate for their right to return to the territory they were displaced from. They cannot appeal to a legitimate political community to do so, however. Based on this background information about the stakeholder principle I introduce my main concern with it.
One underlying assumption in Bauböck’s work is that the initial move from the country of origin to the external country was a voluntary one. When he speaks of refugees, he speaks of individuals who have decided to emigrate. He fails to mention forced expulsion as a reason for their migration. As mentioned in the introduction of this paper, any theory advocating in favour or against the Palestinian right of return should take note of the involuntary nature of the Palestinian exodus which was the result of an ethnic cleansing and usage of war crimes. I want to argue that any future political stake that a refugee in the diaspora has in their homeland is largely influenced by a political history of annexation and oppression. So much so, that it leaves the stakeholder principle impotent at enforcing its objective criteria.
The Palestinian efforts for the right to return precede that of being a stakeholder in a political community in a formal sense. The former is by itself the strive for territorial self-government or the attempt to have a political stake, first and foremost. Bauböck agrees that legitimate self-government has priority over being a stakeholder. When we regard self-government as a precondition, the taking away of the possibility to establish it is yet another injustice, however different from the direct injustice that is forceful expulsion. The more subtle injustice is taking place not at one specific point in time but is perpetrated throughout history in the form of preventing the formation of any Palestinian political authority in annexed territory and legislation based on apartheid aimed at Palestinians who remained within what are now the borders of Israel.
One explanation why the stakeholder principle is inapt at addressing past and continuous oppression is because it is a forward-looking principle. Bauböck acknowledges this himself when he writes: “When considering why stakeholdership is the most plausible principle for determining who has a right to citizenship in which polity, we need to refer to the future: individuals acquire a stake in that polity whose future collective destiny is likely to shape their own life prospects” (2009, p. 479). A principle that is predominantly future-directed takes the status quo of legitimacy too much for granted. Thereby, it indirectly perpetuates the injustice of active denial of Palestinian political territorial involvement. Lefkowitz states that “unjust displacement frequently involves not only the initial injustice of involuntary expulsion from a given territory but also the persistent injustice of refusing to allow the victims of the initial injustice to return to that territory” (Lefkowitz, 2015, p. 533). His view will be examined in more depth in the following section.
Bauböck’s endeavour to define external citizenship through the exercise of genuine stakeholdership in a polity might remain of value in instances of voluntary migration. It is wanting, however, in the case of the Palestinian right to return. Although Bauböck rightfully wants to argue that “[i]t is plainly contradictory to recognize that a person has a stake in life-long membership in a political community but then to deny this person the opportunity to join fully this community by taking up residence” (Bauböck, 2009, p. 486), he dismisses that in a historical context policy of the international community can enforce such contradictions by obstructing the preconditions of stakeholdership.
Section II – Occupancy rights
In the previous section, Bauböck’s external citizenship and stakeholder principle were considered in light of the Palestinian right to return. A right to return, the way he delineates is not able to take the past injustice of forced expulsion and the current deterrence of the Palestinian people into account. The current section argues that occupancy rights, sketched out by Anna Stilz (2011), and further developed by David Lefkowitz (2015) offer a more suitable framework to incorporate injustice in the ‘right to return’ discussion. It can both break with the forward-looking tendencies of the stakeholder principle and has the added benefit of paving the way for the legitimisation of a Palestinian political authority through Stilz’s annexation objection.
Similarly to Bauböck, Stilz wants to offer an alternative basis for citizenship that avoids a nationalist theory of territory. The result of which is her legitimate state theory. A claim to territory is rightful if it meets the following four criteria:
(a) the state effectively implements a system of law defining and enforcing rights, especially property rights, on a territory; (b) its subjects have a legitimate claim to occupy that territory; (c) that system of law “rules in the name of the people,” by protecting basic rights and granting the people a voice in defining them; and (d) the state is not a usurper. (Stilz, 2011, p. 578)
Whether the Palestinian polity met these criteria before, or after the Nakba is an empirical question beyond the scope and aspiration of this paper. Instead, I wish to investigate whether the legitimate state theory, specifically its occupancy rights, can solve the problems that arose in section I. These rights are best described by the second condition, to which I will now turn my attention.
Condition b, or occupancy rights, according to Stilz, is “an important precondition for almost all other rights. If I can be displaced off a territory at any moment, then my property and my other rights—even most of my goals and pursuits—mean little to me. ” (2011, p. 582). The interest of autonomous individuals to form and pursue their own conception of the good plays a central role in her argument. This is not to be confused with the political role of individuals having to shape the common good for Bauböck’s stakeholder principle. Lefkowitz develops this notion further by defining occupancy rights as the “individual right grounded in a person’s exercise of his or her capacity to form and pursue a territorially grounded conception of the good” (2015, p. 529). In this characterisation of occupancy rights, as linked to an individual’s conception of the good, he moves away from politicised notions of citizenship.
Even more relevant to this paper is Lefkowitz’s application of occupancy rights in the unjust displacement from a particular territory. He sees it as failing to respect the autonomy of the individual on the part of the displacer (Lefkowitz, 2015, p. 531). In contrast to Stilz, Lefkowitz takes territory not only as a mere precondition for the pursuit of a good life but frames it as a possibly integral part of it (2015, p. 533). When a territory itself is understood as fundamental to the conception of the good life of individuals, we can start to understand why the annexation of and forceful displacement from one’s country is such a grave injustice. Not only is the individual robbed temporarily of a firm standing from which they can achieve the good life, but also an integral condition to the good life is taken from them. Their ties to a specific territory. As long as an individual has genuine ties to their former territory, the right to return remains intact.
One strong objection against the aim of this paper is that the adoption of occupancy rights is biased and unavoidably ends in advocating for the right of return in the context of forced displacement. Although I do assume the right of return as mentioned in the introduction of this paper, occupancy rights are not of themselves always in favour of a Palestinian right to return. They also acknowledge an Israeli right of residence. Stilz following Jeremy Waldron, for instance, believes that (Palestinian) occupancy rights could fade over time (2011, p. 583). A thought that is worrisome to the Palestinian diaspora who believes their right of return to be indefinite. Lefkowitz dedicates his entire last section to analysing whether the right of residence of the displacers might override the right of return of the unjustly displaced. Although his conclusion prevents the total abandonment of the right of return, he does believe that it is also possible to build up a right to reside through at the outset unjust entry into a territory (Lefkowitz, 2015, p. 543). In the end, what this paper intends to show, is that there are political frameworks regarding migration and citizenship that are better suited to the inclusion of past injustices than others. What their overall verdict of the Palestinian right to return is, remains part of the philosophical discourse.
As a final point, I would briefly like to mention the influence that Stilz’s annexation objection has on a Palestinian’s claim to return. I take the Nakba to be a clear example of annexation. Stilz relies on the intuition that for an annexation to be legitimate “there must be some expression of collective consent on the part of the annexed group” (2011, p. 590). Leaving aside once again the empirical historical debate whether the Palestinians consented to be annexed, I will side with abundant historical research to say that they did not. This would render the Israeli state in the past a usurper. As a consequence, one can put into question their historical right to territory. This is a strong claim, which is in much need of further dissection. This could be a topic for another work. Presently, I want to make a more modest claim that the discussion on whether the Nakba is an example of annexation, means that there per definition must have been a polity that was annexed. Thereby, an implication of the legitimate state theory could be the legitimisation of a historical Palestinian political authority. This would give Palestinians the political voice they were missing regarding the stakeholder principle of section I.
This section has shown that occupancy rights allow historical context to become part of the philosophical inquiry into the right to return. In the depiction of the individual’s right to form a conception of the good, occupancy rights are of decisive importance. These are rights, which cannot be taken away through forced expulsion as the work of Lefkowitz has shown. More indirectly, it could even lead to the recognition of a Palestinian polity, at the very least in the past.
Conclusion
Time is of the essence in the allocation of the right to return. Being stuck in a fruitless philosophical framework that ignores the reality on the ground is a waste of precious time amidst a crisis. As this paper has shown, there are philosophical groundworks that are more suitably referred to in the ongoing war on Gaza, as they can address the illegitimate displacement of Palestinians from and annexation of the Gaza Strip. The stakeholder view proved to be too forward-looking. Theories based on occupancy rights, on the other hand, might provide a more applicable scheme to address the wrongs of an impending ethnic cleansing and give us a basis for debate when the dust settles.
Bibliography
Bauböck, R. (2009). The rights and duties of external citizenship. Citizenship Studies, 13(5), 475–499. https://doi.org/10.1080/13621020903174647
Lefkowitz, D. (2015). Autonomy, residence, and return. Critical Review of International Social and Political Philosophy, 18(5), 529–546. https://doi.org/10.1080/13698230.2014.927117
Pappe, I. (2006). A History of Modern Palestine: One Land, Two Peoples. Cambridge University Press. http://ebookcentral.proquest.com/lib/uunl/detail.action?docID=1357478
Stilz, A. (2011). Nations, States, and Territory. Ethics, 121(3), 572–601. https://doi.org/10.1086/658937
Text Translation: The Israeli plan for the ethnic cleansing of Gaza. (2023, November 1). Mondoweiss. https://mondoweiss.net/2023/11/text-translation-the-israeli-plan-for-the-ethnic-cleansing-of-gaza/
Veel liefs en tot snel,
Rona
