The Right of Return
and Compensation
Dr. Yves Besson
former Director of UNRWA
Operations (West Bank, Jerusalem (199O-92), and former
Special Adviser to the Commissioner-General of UNRWA
(1993-95)
University of
Fribourg
Introducing such a sensitive topic
at our meeting is not an easy task.Since Madrid and oslo,
several books, studies and papers on the subjecthave been
published by various circles - Israeli, Palestinian and
others.For the most part, they are interesting not only
because they restate thewell-known totally antagonistic Arab
or Israeli positions (and they partly do that), but also
because they sometimes make policyrecommendations or
suggestions which, albeit cautious, indicatedirections or
areas in which some mutually acceptable convergence is
notpossible to imagine. Among all the papers and studies I
have had the opportunity to read, I could mention those of
the Israeli
International Institute for Applied
Economic Policy Review, the Institute of Jerusalem Studies,
the College of Law of Syracuse University or various
Canadian official or academic papers. This list is far from
exhaustive as I am certainly not aware of everything
published on the subject.
My task today is not to present a
summary or a synthesis of global reflexion on the subject.
It is not my purpose and could not be done in half an hour.
Nor am I going to try to list what could be acceptable and
what not for the parties involved - it is up to them to
discuss that. I would just like to think 'aloud' and examine
the two notions included in the title: return and
compensation. Both words have, in the course of time,
acquired a kind of sacred, absolute meaning (what some
parties in the RWG have called myths or taboos) and their
implementation, some day, has constantly been seen by one of
the parties as a sacred obligation while the other party has
always considered that such an implementation would be
abomination. These two words have set in motion a kind of
infernal dialectic in which one side is adamant, involving
the force of the law, to imprison the other, while the other
inevitably sees in these two words, the acceptance of some
kind of absolute historical guilt, historical responsibility
bound to lead in the end to its own demise and destruction.
That is why I suggest reviewing the situation and looking at
what could be done with these two concepts in the search for
a solution.
How they could be used to launch
reflexion on what kind of basicprinciples they involve,
which could guide a process, bring some new ideas on the
refugee issue; a process in the process, so to say. I assume
that we all know about UN Resolution 194, the history of
subsequent UN resolutions and the International Law
arguments pertaining to the subject. I will not elaborate
once more on historical or legal aspects because at this
early stage there is no point in revisiting a very
well-known historical debate or exchanging legal arguments;
everybody knows that in law almost every point of view can
be defended since most lawyers have two hands !
The Return
Palestinians consider the refugee
issue as the heart of their conflict with Israel, the centre
of their collective memory, the focal point of their modern
political life and the core of their present identity as a
people. The nakba of
1948-49 has been integrated in the perception they have of
themselves as a people of the region and as a collective
member of the human community. In fact, every Palestinian
living today outside the boundaries of what was former
Palestine, since he is prevented from settling down in this
land to which he deeply feels that he belongs, considers
himself as a refugee. This might not correspond to the
different subtle legal definitions of a refugee but it is a
fact and we have to concentrate on facts, and how they are
perceived. The refugee problem is seen by all the
Palestinians as the very essence of the conflict and any
solution which does not directly address it is therefore
inconceivable. The RWG delegation which visited refugee
camps in Lebanon in 1994 experienced this point very
vividly.
On the other side, it has been
equally as inconceivable for the Israelis, since the
beginning, to agree to the return of Palestinians to their
land, even in the context of a peaceful settlement. To
accept this concept of return in favour of the Palestinians,
as they understand it, would be in total contradiction with
the Zionist ideology, would undermine the Jewish character
of the State and would completely oppose the essential
raison
d'etre of the Zionist
project and its implementation in the course of a long and
traumatic history. The Israeli view is only to contribute
possibly to permanently settling the refugees by integrating
them in the host Arab countries. As for compensation, Israel
has declared itself ready to envisage this as long as Jews
from Arab countries are also compensated for their
properties and losses.
In the peace process started in
Madrid and Oslo, the refugee issue (one of the three final
status issues slated for bilateral negotiations) is the one
which received the least attention in terms of strategic
vision and study. In the Israeli opinion it is apparently
met with almost total indifference. Could it be a false
indifference ? Absolute sacralization of the issue on the
Palestinian side is met with totally unconcerned
indifference on the Israeli side: which could well confirm
that this issue is at the core of the problem.
So where do we go from here
?
Plainly speaking, I would like to
state that there will be no hope for a solution, given the
fact that the positions are so antagonistic, unless the
Palestinians somehow transcend this central reference point
in the perception they have of their national memory and
identity, and unless the Israelis accept revisiting their
past (as some Israeli historians have been doing over the
last 10 - 15 years). In so doing, the Israelis might accept
some sort of responsibility for what happened in 1948-49,
and consequently accept opening the files on the subject
without preconditions and without restarting the historical
debate on who did what. It is not impossible to imagine
that, with the two positions being so rigidly anchored in a
certain vision of a tragic past, and with both being, in a
way, prisoners of the same static perception of their
history, memory and a completely stiffened discourse,
bridges could be built towards progressively dismantling
both perceptions.
This is neither the time nor the
place to go into detail about future negotiations on the
subject. However, what we could attempt to do is to try to
imagine in very general terms what might be a framework for
negotiations and how and from where to start. I think it
should start with some brainstorming on the concept of
return. But before discussing this concept, I would like to
signal one immediate danger which could imperil and even
destroy the whole process.
We are familiar with the constantly
reaffirmed Israeli position of preferring bilateral
negotiations. The signature of peace agreements with Egypt,
then with Jordan illustrates this preference. Although, in
some instances, this bilateral approach has produced
results, even with the Palestinians, such an approach to the
refugee issue would, in my opinion, be very
counterproductive. Indeed, trying to solve this issue by
dealing separately with each host country, negotiating
according to its own national interest, would deprive the
Palestinians of the possibility of bringing to the
negotiation table what, as we have seen, is at the core of
their perception of the conflict.
The risk does exist that, as is
often the case in such situations, implementation of the
policy thus adopted bilaterally by a host country may well
be set in motion before any negotiations on governing
principles, the latter depending then on the concretization
of the former. In fact, the present weakness of the
Palestinian side means that this risk is not inconceivable.
This would result in a situation where the key object of
negotiation for the Palestinians could be preempted,
bypassed by a bilateral approach between Israel and specific
host countries who would completely dilute the
question.
The Palestinian refugee question is
no doubt a global regional issue but for reasons easy to
understand it has to be discussed first between the Israelis
and the Palestinians. Some satisfaction and guarantees must
be given to the Palestinian side while some reassurance and
guarantees should be agreed upon in favour of the Israeli
side. These guarantees must be defined in common by the two
parties and they could be found by first working together
towards the definition of a content for the concept of
return. This common task of discussing the concept of return
together and defining a mutually acceptable political
meaning for the word would allow Israel to demonstrate some
understanding and to accept the view that what happened to
the Palestinians in 1948-49 represented a terribly traumatic
experience which first requires recognition. The problem has
no doubt multiple legal, social and economic aspects but
they can be left to the experts. What is of primary
importance, as a prerequisite, seems to me to be the
recognition of the very high sensitivity to injustice which
exists among Arabs in general and Palestinians in
particular, and consequently some initial recognition of the
importance of the emotional-psychological dimension of the
Palestinian refugee of 1948. Constant Palestinian insistence
on UN Resolution 194 is a good indication of this
importance.
As was the case for the Oslo
document, the diplomatic tool of a Declaration of Principles
on the refugee issue (Shlomo Gazit's idea) could be useful.
It could be used to draw a framework, guidelines, successive
steps along which the negotiations would develop. It would
be mainly useful to set up a mutually acceptable definition
of the two concepts of return and compensation , thus
'disentangling' them from their highly symbolic and rigid
interpretation and desacralizing in a way the various
mutually exclusive interpretations and finalities which have
been given to them by both parties during the last fifty
years. How to interpret the notion of return ? There can be
physical return, lega return, political return, social
return, etc.
Such a DOP on the refugee issue
would provide some satisfaction to the Palestinians' long
quest for recognition of the injustice done to them in 1948
and reassure Israel that the Jewish character of the State
will not be jeopardized. Later on it would also permit
discussion of the many technical aspects of the problem
under the umbrella of a set of principles agreed upon
bilaterally, while technical solutions would necessitate the
involvement of several other parties, host countries and the
international community.
It seems to me that what has been
desperately lacking in the work of the RWG since 1992 is
precisely such an umbrella of agreed semantic-political
principles (i.e. what means what) and this very absence has
made the humanitarian or economic development efforts of the
Group sometimes look pathetically inappropriate or
ineffective. I will not give a list of all the technical
aspects I mentioned before as I presume we can imagine them
perfectly; some of them have already been dealt with in
various scholarly works. Humanitarian efforts in the field
of family reunification, for example, in the absence
precisely of any agreed set of political principles, have
only produced meagre results compared to the size of the
refugee problem and in view of the considerable investment
in time and money by the international community.
I would like to raise one final
point, given my time limit.
While the Palestinians have
constantly approached the issue as (as Elia Zureik has
noted) a communitarian one, considering first and foremost
the identity of the group to qualify as Palestinian
nationals (and such a policy is necessary for nation and
state building as the Zionist project has shown!), the
Israeli side has strictly adhered to the political
liberalism model concerning the Palestinians, that is, as it
was done in the RWG, examining individual rights as opposed
to collective ones (see Family Reunification). We are all
familiar with the legal arguments and justification of such
a policy and we know that it mainly aims at safeguarding the
sovereignty of the State. Nevertheless, it does not seem
unthinkable to me that, in drafting a DOP on the refugee
issue, Israel might accept making some room for a
communitarian approach, on the model of its own Law of
Return, while the Palestinians, in reciprocity, would accept
that the implementation of this DOP be done according to the
liberal individualist model. I am aware that the path would
be very narrow! Such a procedure could be a way to overcome
or bypass the so-called myths and taboos.
Compensation
Evidently, the treatment of this
concept will strongly depend on the solutions agreed upon
concerning the notion of return. But the technicalities
surrounding this question could enjoy some margin of
manoeuvre, some margin of independence, especially because
they will involve the host countries and the international
community for obvious financial reasons. But I think there
should be, precisely because of the existence of a certain
margin of manoeuvre, no exclusivity on the subject regarding
for instance discussing losses encountered by the Jews when
they left some Arab countries to go to Israel in the
Fifties. Even if this notion of 'exchange' of populations
defended for so long by Israel on the question of
Palestinian refugees does not sustain, in my opinion, a
thorough analysis and cannot be legally defended, it has a
psychological-political dimension which the Palestinians and
the Arab countries cannot ignore. And, finally, for the
Palestinians this question of compensation for the Jews is a
question to be dealt with between Israel and the Arab
countries involved, not themselves!
Conclusion
The words 'myths and taboos' were
seen and heard during the RWG's activity to qualify the
concepts of return and compensation. Rigid and quasi-sacred
reference to them on one side and the equally rigid and
sacred rejection by the other should be avoided. Myths are
useful because they help perceiving and describing a certain
reality, maybe an imagined one but in this instance the
perception is much more relevant for our purpose than
reality itself, at least at the beginning of a process which
should first lead the two parties to accept the perception
of the other in order to be able together, further down the
road, to amend the reality and perhaps build a new common
one. As for taboos, destroying them unilaterally and
abruptly means applying moral violence which can only fuel
more physical violence and desperation. Taboos are best
described, accepted and integrated when they take the long
and twisting road of thefairytale. At the end of the road,
the two parties will have to recognizethat they have both
nourished imagined representations for too long--thepast for
one of them and the future for the other.
I hope I have presented a few
useful remarks on this subject. Thank you.