PRESENT AND FUTURE
This chapter is excerpted from Donna Arzt, Refugees Into Citizens: Palestinians and the End of the Arab-Israeli Conflict (Council on Foreign Relations Press, 1996).
The book is distributed by the Brookings Institution.
A common denominator of the plan's basic components is the
underlying premise that only through the granting of citizenship
to Palestinians, wherever they will eventually reside, both within
and without the Middle East, will a permanent and viable solution
to the Arab--Israeli conflict be achieved. The international
refugee regime has traditionally posited three "durable solutions"
to the global refugee crisis, each of which is a form of permanent
absorption. In descending order of generally accepted preference,
they consist of repatriation, or voluntary return to the country
of national origin or state from which the refugees fled;
permanent integration in the locale of asylum; and resettlement in
a third country that has agreed to take them. Given the nature of
most refugee flows and of global conditions, the first two
solutions have rarely been achieved. Voluntary repatriation has
been unlikely when refugees are unwilling to reexperience the
persecution that caused their flight originally. Moreover, asylum
countries, which are usually contiguous to the country of origin,
are often too poor and unstable themselves to absorb a large new
population. And given the reluctance on the part of wealthier,
more stable states to absorb poor and racially or culturally
divergent masses, even resettlement is becoming less viable an
All three of these obstacles have, until recently, been reflected in the Palestinian refugee crisis. Comprehensive repatriation, although desired by the Palestinians, was impossible while the ongoing "cause" of their flight, the fact that Israel existed on the land that was considered to be Palestine and refused to recognize Palestinians as a distinct people, continued. Moreover, the neighboring countries of the Palestinians' asylum were either too poor (Jordan), too unstable (Lebanon), or too anxious to use the refugees as political pawns in a long--term regional conflict (Syria). Although the Palestinians were not so culturally divergent from the peoples of the wealthier, more stable Arab states (Kuwait and Saudia Arabia, for example), these countries also followed the "pawn strategy," refusing to absorb the refugees because, as they refused to recognize the reality of Israel, they insisted that full repatriation--as the sequel to Israel's destruction--was the only possible resolution.4 Yet even as early as 1950, the U.N. General Assembly was recommending that either "repatriation or resettlement" be employed as a means of absorbing Palestinian refugees "into the economic life of the Near East."5
The Madrid and Oslo frameworks have altered all these barriers, because Israel's right to exist has now been acknowledged by all the participants, including the Palestine National Council, and Israel has likewise acknowledged the Palestinians to be a people. Therefore, while no one of the three durable solutions is viable or realistic in itself, it is possible to devise a strategy that uses all three in as balanced a manner as is feasible and fair. To paraphrase the late U.N. Secretary-General Dag Hammarskjold, such a strategy would treat the Palestinian refugee question not as a regional liability but as a net, and mutual, regional asset.6 Each party to the Arab-Israeli conflict, whether it be Israel, the Palestinians, the neighboring asylum countries, or the wider group of Middle Eastern states, will lose a little and gain a little more, which can add up to a regional boon in economic development and political maturity.
The plan consists of four structural components:
Figure 4.1 Decision-making Bodies
The main feature of the proposal is an adjustment in the
demographic distribution of Palestinian refugees in the region.
The recommended "target figures" are meant as approximations of
optimal conditions and not as strict quotas in the sense of either
a floor or a ceiling. Yet they are stated as specific numbers in
order to facilitate planning and resource allocation.
Perhaps the best way to explain and illustrate the plan's "target absorption" aspects is graphically. The left side of table 4.1 repeats from table 2.1 (found in chapter 2) the estimated current population of Palestinians by country or territory and the most recent figures for those still residing in UNRWA camps, which are identified be-- cause they represent the top priority for resettlement. These consti-- tute the "from" side of the proposal. The right side of table 4.1 corresponds to the "to" side. It presents optimal population figures for the year 2005, approximately seven years from the date of the permanent peace agreement. Included in the far right--hand column are approximations of the percentage of target Palestinians vis--a--vis the country's or territory's total (Palestinian refugee and non--Palestinian refugee) population.
Estimated Total Current Population [a]
Total in UNRWA Camps, 1996 [b]
Proposed Targets for Year 2005
Proposed Percentage Palestinians to Total Population [b]
other Mideast states
[a]These columns identical to columns I and III in Table 2.1 (Source: UNRWA General Information Sheet, January 1996).
[b] BASIS: Proposed Targets for 2005 as percentage of projected total populations for 2005 of 5,000,000 (Jordan); 4,200,000 (Leabnon); 18,400,00 (Syria) and 5,600,000 (Israel). Percentages for West Bank and Gaza assume a small percentage of settlers will decide to stay.
[c] SOURCE: US Bureau of Census projection for year 2005. See Don Peretz, Palestinians, Refugees and the Middle East Peace Process (Washington DC: United States Institute of Peace Press, 1993), p.16
Working from a projected total worldwide Palestinian population
of 8,265,000 for the year 2005, each proposed target figure in
table 4.1 is based on the following assumptions:14
The target population is 2,400,000 Palestinians. This target
doubles the current population of 1,200,000, which is enough to
cover natural population growth, the return of the approximately
350,000 displaced persons from 1967, plus others (mainly from Gaza
and Lebanon) who urgently need permanent homes.15 Assuming that
housing starts and development keep pace in the period up to the
year 2005, this target number should not overburden the economy or
Target population is 450,000 Palestinians. This figure cuts in
half what would have been the projected natural growth for 2005,
based on the current figure of 880,000. Although Gaza currently
has one of the highest densities of anyplace in the world, most of
it is confined to a small portion of the entire strip, which means
that there is room for the 450,000 who would remain there to
disperse more comfortably. Except for a small number of family
reunification cases and 1967 displaced persons, no new refugees
will be absorbed in Gaza during the seven-year transition
The target population is two million Palestinian refugees (as
distinct from the long--term Palestinians of Jordan who are not
refugees). This target is only 168,000 more than the current
Palestinian population of 1,832,000 and less than the projected
natural growth. Most Palestinians who now live in Jordan are
already citizens; most, particularly those with thriving
businesses and other means of earning a living, probably will
stay. Perhaps only a small number of the 13 percent who are still
in Jordan's refugee camps will seek to move elsewhere. Because
Jordan has already supported a disproportionate share of refugee
resettlement needs, it will not be expected to absorb additional
refugees from other areas, except for a small number who may have
family reunification needs.
The target population is 75,000 Palestinians, a figure much
reduced from the 372,000 current figure. Although Lebanon has
expressed the intention to expel all but a few thousand
Palestinians currently residing there, doing so would be a
violation of international law. Many of the refugees probably will
prefer to resettle in Jordan, the West Bank, or northern Israel,
where their families originally lived. The figure of 75,000, which
is identical to the number proposed for repatriation to Israel, is
essentially symbolic: if Israel can be persuaded to allow the
return of 75,000 Palestinians, Lebanon can also be expected to
grant citizenship to and permanently absorb that many
The target population is 400,000 Palestinians. Because most of
the 352,000 Palestinians currently in Syria have been integrated
into the society in all but formal citizenship, it is assumed that
when they are granted that status, most will remain. The target is
based on projected natural growth, plus the resettlement of some
refugees from Lebanon, and the departure of a portion of the
96,447 who were still in camps as of 1996.
The target population is 1,075,000, which is composed of 1
million Palestinians who have been Israeli citizens since 1948
(based on projected natural growth from the 840,000 of the
mid--1990s and on the assumption that few will seek to move to the
West Bank) and another 75,000 Palestinians who will be permitted
to return and be offered Israeli citizenship. (Because this target
requires a more elaborate explanation, it will be described below
after the final two target locations.) The offer of citizenship is
important so as not to drive a wedge between the new returnees and
those who remained after the 1948 war.
The target population is 965,000 Palestinians. This target is
based on half a million newly resettled Palestinians on top of the
natural population growth from the 446,600 who currently reside in
these other Arab states (some of whom may opt to move to the West
Bank, Israel, or elsewhere). It is hoped that once Syria signs
onto the peace process, other Arab states, particularly the
sparsely populated Gulf countries such as Saudi Arabia, Iraq, and
Kuwait, will also see it in their interest to participate, which
will include a commitment to absorb refugees. (Of these latter
states, the participation of Iraq is most in question.)
The target population is 900,000 Palestinians. This target
doubles the current figure of 452,000, most of whom are in Western
states such as the United States. It assumes that they are rather
well integrated in these states and that only a small portion will
seek to return to the Middle East. While Western states may prefer
to contribute development and compensation funds to the peace
process rather than absorb additional refugees, they may be
willing to participate in a pledging conference like that
undertaken in 1979 for the Indochinese boat people, which was more
successful in locating absorption spots than even its sponsors had
anticipated.16 The close to half a million Palestinians already
living very productive lives in Western states should encourage
these countries to agree to absorb more.
Although there is currently much popular opposition in Israel
to the idea that even a single Palestinian refugee should return
to live within the Green Line, this sentiment can be overcome when
it is presented as part of a reciprocal and regional framework for
resolving the Palestinian refugee question and obtaining a
full-scale peace. Israel's decision to accept Palestinian refugees
could be described, instead, as the same process of "absorption"
that the Arab states would concomitantly be undertaking, rather
than as the oft--feared acknowledgment of a Palestinian "right" to
"return." Moreover, because there will be a top limit of 75,000
returnees, Israel need not risk being overwhelmed by a massive
influx of non--Jews. At least three additional reasons exist for
this seemingly optimistic belief in a change of popular heart.
First, the target number of Palestinians in Israel, composed of existing citizens with but a small addition of newly absorbed former refugees, will be only slightly over one million in the year 2005, compared to the projected Israeli Jewish population at that time of over four million. (These figures compare to the combined 2005 target of just under three million Palestinians in the neighboring West Bank and Gaza, although the relative ratios may later change depending on birth and death rates, immigration, and out-migration.) Moreover, there is a historical precedent for Israel's agreement to absorb more Palestinians, namely, the 1949 Lausanne Conference described in chapter 1, during which Israel agreed to accept 100,000 Palestinian returnees. Given the small number of Jews living in Israel at that time, 100,000 was a much greater relative percentage then than 75,000 would be to Israel's Jewish population in the year 2005. Similarly, 100,000 was a greater percentage of the total Palestinian population of 1949 than 75,000 is of the projected 2005 population.17 Therefore, 75,000 additional Palestinian citizens will not unduly endanger Israel's demographic stability. Second, each Palestinian who seeks to return to--or "be absorbed by"--Israel will be required to meet certain criteria to be agreed upon in the final peace treaty, such as the following:
A population subgroup very likely to seek return, and which would be most likely to satisfy this third criterion, is the oldest living generation of Palestinians, the ones who retain personal memories of life before 1948.
Finally, it should be understood that Israeli agreement to this rather small and symbolic target of 75,000 persons is essential to facilitating the final peace agreement, because only when the Arab states see that Israel at least partially recognizes Palestinian claims for return (regardless of the terminology employed) will they themselves be willing to grant citizenship to and permanently absorb their own target numbers of refugees. It also will facilitate mutual acceptance of peace if Israel accepts full Palestinian self-determination. In other words, Israel would make a pragmatic decision to exchange partial, symbolic return of Palestinians and the establishment of a Palestinian state in the West Bank and Gaza for the Palestinian and Arab state acceptance of less than full Palestinian return and less than the complete territory they originally sought. As explained by Palestinian author Ziad Abu Zayyad, many Palestinians have come "to view their return as the acquisition of national independence and dignity, and not necessarily as a literal return."19 Israelis would do well to recognize their own advantage in such a compromise resolution and to express their commitment to truly being part of a regional absorption plan that will lead to greater regional stability.
The traditional discourse concerning Palestinian refugees has
tended to divide them into categories based on where they lived
before 1948 and 1967, when they left, and why they left. Because
there will never be full or even partial consensus on the "magic
number," this kind of discourse can never lead to a negotiated
settlement. Moreover, the "numbers game" is inherently
retrospective and blame-ridden. As time passes, the categories,
whether 1948 versus 1967, voluntary versus involuntary, blur and
become harder to distinguish anyway. Therefore, the most
pragmatic, not to mention humanitarian, method of resolving the
refugee question is by focusing not on past causes but on current
needs, by paying attention to the most vulnerable Palestinian
populations, that is, those who most urgently need permanent
solutions to their residential, legal, political, and social
Most observers would probably agree on a priority ranking that looks something like this, in descending order of urgency:
The actual list of need-based priorities would be set by a joint population commission (composed of representatives of the signatory parties to the final peace treaty, with a majority of seats held by Palestinians) that will function much like the joint commissions that have operated in other instances of bilateral population transfer.20 The commission will then supply each family with written and oral explanations of their available residential and compensation options. (See figure 4.2 as an example of available options.) To ensure that the decisions are made under conditions of informed and free consent, a set of commission-generated guidelines, such as those used or proposed in other contexts, will be followed as closely as practicable.21 The residential choices selected by the families in each need-based category of refugees would then be weighted according to their place on the list or resolved in an order corresponding to the relevant category's degree of urgency.
Figure 4.2 Refugee Options: An Example
The joint population commission will then collect applications
containing each family's ranked list of preferred options and
perform a matching service, facilitated by the use of a
sophisticated computer program, which will generate for each
family its highest ranked preference consistent with urgency of
need and available positions, based on the target absorption
figures for each residential choice.22 (If there are too many
applicants for any particular target setting, the commission may
decide to make its final selections through a lottery.) Depending
on the outcome, the refugees will then make application to one of
two other bodies, the repatriation committee or the compensation
tribunal. (See figure 4.1 for a graphical layout of the
relationship among the joint population commission, the committee
and its appeal tribunal, and the compensation tribunal.)
Those Palestinians who are selected by the commission to repatriate to Israel will then submit documentation of their qualifications under the agreed-upon repatriation eligibility criteria to an independent repatriation committee (composed of representatives of each of the signatories to the peace treaty; in contrast to the joint population commission, a majority of seats on this committee will be held by Israelis). An impartial repatriation tribunal (composed of a majority of arbitrators from non-Middle Eastern states) will hear appeals of denials by the repatriation committee. Once a Palestinian family has been deemed eligible for repatriation, Israel would not restrict the actual place of residence within the country, except for a limited number of clearly demarcated security zones. Applications for repatriation will go through the committee and tribunal process until the target number (proposed here as 75,000) is achieved.
Because the overwhelming majority of original Palestinian properties either no longer exist as such or are occupied by second-, third-, or later-generation transferees, the repatriating refugees will need financial assistance in acquiring new homes and businesses. These funds would take the form of low-interest loans rather than grants, to distinguish them from payments of compensation to those who are not repatriating. Israelis will not be displaced from their own residences and properties by the returnees, except by consenting to a bona fide sale at contemporary market values. The same principle of nondisplacement except by bona fide sale will apply to Palestinians living in what before 1948 were Jewish-owned residences.
Those Palestinians who will not be repatriating will instead proceed to file for their compensation award from an impartial compensation tribunal (also composed of a majority of arbitrators from non-Middle Eastern states). Compensation awards will either be in the form of a cash "absorption" or "reintegration allowance"23 or title to real property, as described in the next section. The experiences of the Iran-United States Claims Tribunal and the United Nations Compensation Commission, which resolves claims arising from Iraq's invasion of Kuwait, provide valuable lessons in areas such as valuation of property, dispute settlement procedures and mass claims processing techniques.24
Due to the success of these precedents, it is recommended that compensation tribunals be composed not only of representatives of the affected parties but also of impartial arbiters from uninvolved countries. In addition, in order to effectuate closure, and because the function of these proposed bodies is more in the nature of settlement than of adjudication, no other court or tribunal should have de novo or further appellate review of the final decisions of the repatriation and compensation tribunals.
Because immigration is traditionally considered a subject of domestic and not international jurisdiction, each state that will be absorbing refugees will naturally want to enact its own legislation to regulate the process. But as already noted, citizenship carries with it a package of rights, not the least of which is the right to equality. Those Arab states that have not heretofore been in the forefront of democratization trends will have the opportunity to demonstrate such a commitment in the case of their newly naturalized Palestinian citizens. Palestinians will themselves probably want to promulgate Laws of Return and of Nationality for the West Bank and Gaza that, perhaps ironically, may in many respects replicate Israel's own such legislation.25 Just as Israel and Jordan promised, in their joint peace treaty, to repeal all their discriminatory legislation, the Palestinian Authority should avoid enacting laws that discriminate against non-Palestinians. (Chapter 5 elaborates on these nationality and human rights themes.)
As previously noted, claims for refugee compensation have
rarely been sought because of the necessity of establishing
causation. In a few instances of bilateral population transfers,
such as the Greek-Bulgarian Agreement of 1919, the Lausanne Treaty
of 1930 involving Greeks and Turks, and the New Delhi Accord of
1950 between Pakistan and India, mechanisms were established for
valuation of and payment for evacuated properties, but without
regard to fault.26 None of the five major agreements that have
been adopted to date pursuant to the Oslo process: the September
1993 Declaration of Principles (Oslo I), the May 1994 Gaza-Jericho
Agreement, the August 1994 Early Empowerment Agreement, the
October 1994 Israeli-Jordanian peace treaty, and the September
1995 Interim Self-Rule Agreement (Oslo II), have even attempted to
address the issue of causation in regard to refugee flows. A weak
precedent for resolving the compensation question exists in the
1979 peace treaty between Egypt and Israel, which called for the
establishment of a "claims commission for the mutual settlement of
all financial claims." However, neither party has ever invoked
Without giving up hope that they can be resolved, the political scientist and Middle East expert Don Peretz has delineated some of the more complex tasks concerning the issue of compensation:
Other complications include the difficulty of distinguishing privately from communally held Palestinian property (the undivided village musha) and confiscated land from land that was duly purchased; the destruction of many if not most of the original land registration records; the problem of property in Israel that has had many subsequent owners or that no longer exists in its original form; and the existence of subcategories of refugees who have not heretofore been the beneficiaries of high-profile advocacy.29 Unanswered political questions include whether previous distributions of development and rehabilitation sums, in the form of loans or payments to individuals and completed infrastructure projects, should be used to offset other compensation obligations.30 Moreover, should the government of Jordan be reimbursed for its costs in long supporting Palestinians outside of the UNRWA system? Many of these issues may not realistically ever become resolvable, due to overly complicated fact patterns, politically charged negotiating positions, the unavailability of funding sources, or the lack of exact legal standards.31
Nevertheless, work is already being done to identify technical problems such as the location of land registration records and to articulate the specific legal basis for reacquiring private property in the wide variety of locales within Israel and the future Palestine.32 Records from the Israeli Absentee Property office as well as UNRWA's family files should include some of the data relevant to compensation claims. The United Nations also holds the records used for property identification and evaluation by the Conciliation Commission, many of which came from the mandatory registry operated by the United Kingdom, as successor to the Ottoman land registry. The peace agreement must require that each of these relevant offices make its files available to potential claimants, who would be urged to act through a finite number of agents.33
Yet due to the difficulty in verifying literally hundreds of thousands of family claims, it is more realistic to offer a series of uniform payments that would be awarded to those claimants who fit into particular classifications, such as original owners of urban or rural property, perhaps subclassified by residential or commercial use, or by the amount of farmland originally owned.34 Claimant families would then only have to prove their membership in the particular class to be eligible under the respective formula.
Because the estimated value of total compensation due might be in the range of tens of billions of 1990 U.S. dollars, it is much beyond the capability of any one country such as Israel to pay.35 And that does not include the billions needed for new housing, infrastructural development, job production and training, and other forms of economic development and social rehabilitation.36 Realistically, given the minimal likelihood of ever resolving the causation question, compensation must be paid out of a combined pool created as part of the final peace settlement and contributed to on an international basis by Arab states, Western industrialized governments, international institutions, private benefactors, and Israel. Contributions by Arab states could be inversely linked to their willingness to absorb refugees or to savings from ensuing reductions in military budgets due to regional peace. Israel's contribution to the compensation pool could, appropriately, come from the "rents" it collected in the late 1940s and early 1950s from the Jewish users of "absentee" Arab property.37 Because it will be one of many contributors to a collective pool of funds, Israel will not be forced into admitting that its contribution constitutes "compensation" that it is under a legal obligation to pay.
In some cases, property exchanges can constitute a substitute for cash compensation. Just as many Israeli immigrants from Europe and Arab states were housed in Palestinian refugee homes in the late 1940s and early 1950s, newly resettling Palestinians can be housed in the homes of Jewish settlers who decide to leave the West Bank or Gaza to return to live in Israel, a number that could approach 100,000 persons.38 Often overlooked is the fact that during the 1948 war there were Jews living in the West Bank and Gaza Strip who fled to within Israel's borders, leaving behind property that then became the homes of Palestinians. Similar de facto "property transfers" have occurred in other contexts, such as between India and Pakistan after 1947.39 A final peace treaty between Israel and the Palestinians could transfer title to these evacuated settler homes to the joint population commission, which could then assign the titles to some of the resettling refugees, in lieu of cash compensation.
Although psychologically, the departing settlers may prefer to see their homes demolished, as was the practice when Israel withdrew from the Sinai, it is more sensible for the structures to be left intact so as to expedite the resettlement of Palestinians leaving refugee camps.40 Already by the end of 1995, some settlers, concerned about losing their investment in a depressed housing market, had begun to leave the West Bank and Gaza. "The market goes ahead of the politicians," as a real estate appraiser has put it pragmatically.41
Finally, while most of this chapter has discussed compensation to individual families for expropriated property, another form of compensation may, in the long run, serve a more important function: communal compensation to the Palestinian communities that will be developing or redeveloping both inside and outside of Palestine. Moreover, those refugees who have suffered the most_that is, those still living in the camps and those without meaningful sources of current income_tended to come originally from the poorest sectors of Palestinian society. Concomitantly, the refugees who are likely to benefit most from reparations for loss of property are those who were better off to begin with, having the largest landholdings, and for the most part, who managed to rebuild their post-1948 lives in the diaspora. Thus, the refugees who suffered most will benefit least from a compensation system solely tied to prior property ownership.
Given that the peace negotiations are envisioned as a forward-looking process, the parties should acknowledge that the foundation of refugee rehabilitation is more than merely restitution for past injuries. It is primarily about building hope for the future. Therefore, it would be advisable to maintain a realistic ceiling on the payment of private compensation claims so that greater sums in the form of collective reparations can be awarded to community projects, whether of an infrastructural, educational, or communal nature, thereby benefiting the refugees most in need of support.42
Although the Palestinian refugee crisis has endured for almost
three generations, it must eventually come to an end. Closure is
necessary not only for the refugees but also for the Israelis, who
will need assurance that a Palestinian will not someday show up on
their children's or grandchildren's doorstep demanding title to
the property and/or with a multimillion-dollar compensation claim.
Therefore, a window for compensation claims should be left open
for a specified period of time, two years after the final status
treaty, perhaps, and then be permanently shut, except in
extraordinary circumstances.43 Thereafter, all claims previously
resolved by the compensation tribunal will be treated as res
judicata, "settled by judgment." Although the analogy is not
necessarily a propitious one, the U.S. Supreme Court has similarly
applied the principle of extinguishment to the land claims of
Lawyers, in their inherently irritating way, will naturally ask how compliance with all of these absorption targets, promises of citizenship, and other proposed procedures and guidelines can be enforced and guaranteed. After all, it is a fundamental principle of any legal system that rights without remedies for their deprivation are but illusory and meaningless.45 The answer, most likely, is that they cannot be formally enforced, at least not in an adjudicatory forum. After all, issues of immigration and citizenship are normally a matter of sovereign discretion. The only real guarantee of compliance is the adequacy of incentives to participate in the settlement plan itself, through the advantages that will come with regional peace and stability. But as chapter 5 demonstrates, in other contexts, nonbinding regional agreements can sometimes be more successful than binding regimes that states do not take seriously.
One such model is the Conference on Security and Cooperation in Europe (described more fully in the next chapter), which in the midst of the Cold War proved to have a well-utilized system of "enforcement" through periodic review meetings.46 Perhaps the final settlement agreement among Israel, the Palestinians, and their neighboring states should include a commitment to a similar series of periodic review meetings, during which compliance with absorption targets can be surveyed and, if necessary, numerically adjusted to fit economic and other conditions that will emerge over time. Amendments to the procedural elements of the settlement should be permitted, if they are found by mutual agreement to be necessary. Further sets of target populations may even need to be devised every five or more years. If the participants are assured that the plan is flexible and capable of adjusting to changing needs, while remaining fair, practical, and balanced, they will have the incentive to comply with it.
Donna E. Arzt is professor of law at Syracuse University and Associate Director of the school's Center for Global Law and Practice. She was the Project Director of the Council on Foreign Relations study group, "The Arab-Israeli Conflict: Demographic and Humanitarian Issues," and has published extensively in the area of human rights. Comments are welcomed.
To be posted...
Rex Brynen * firstname.lastname@example.org * 2 December 1996