NEGOTIATING THE
LAST TABOO: PALESTINIAN REFUGEES
Source: FOFOGNET Digest, 29-31 January 1996.
by Donna E. Arzt
It is time to start talking about the refugees:
the return, resettlement and/or compensation of the
anywhere from two to four million Palestinians currently
living outside of Israel, the West Bank and Gaza.
Although the September 13, 1993 Declaration of Principles
between Israel and the Palestine Liberation Organization
designates the refugee issue as a "permanent
status topic," not to be negotiated until (at
most) three years after the Israeli withdrawal from
Gaza and Jericho, it would be absurd to suggest that
official negotiators will be able to broach the subject
out of a virtual abyss. Yet that would be the effect
of waiting until late 1996 or 1997 before beginning
to raise the topic at public conferences, open forums,
in telecommunications media or in print.
Anyone who makes an honest assessment of the Arab-Israeli
conflict must acknowledge that it is not really about
territory but about people. The territorial issues
-- secure borders, demilitarized zones, mutual withdrawal
room, even the final status of Jerusalem, as seemingly
as explosive a problem as any -- are essentially symbolic
and ultimately amenable to technical solutions. By
contrast, the human dimension of the conflict -- the
fate of the refugees, their material and psychological
needs, their dislocation and claims of entitlement,
the resolution of their residential and legal status
-- is the real crux of the issues to be permanently
resolved. Yet this is the last taboo, the one that
neither side raises either in public discussion or,
by all accounts, in private meetings.
I recently spent three weeks in Israel and the West
Bank looking for people of influence who were willing
to talk about Palestinian refugees. I spoke to Jewish
and Palestinian academics, current and former government
(including Palestinian National Authority) officials
and political activists, as well as personal friends,
usually center-to-left Israelis. Almost unanimously,
they told me that they were not themselves working
on the topic but were certain that someone else was.
Occasionally, Israelis would give me another name
to check, but almost invariably, it would turn out
to be a false lead. Palestinians would usually refer
me to the same person, Salim Tamari, a Bir Zeit University
sociologist who heads the Palestinian delegation to
the refugee multilateral talks. As he said when I
finally caught up with him, "One person does
not make a dialogue."
Even more frustrating were the conversations with
native Israeli friends. Two unrelated couples offered
similar comments about my investigation. One pair
are Holocaust survivors active in the Labor Party;
the other, middled-aged kibbutzniks from the secular
Kibbutz Artzi movement. Both told me that I shouldn't
be limiting my sources to Palestinians and Israeli
leaders "on the left." But when I asked
them who on the right would be willing to discuss
the refugee issue rationally, they couldn't name anyone.
One of the kibbutzniks almost got hysterical at my
use of the word "refugee." When I showed
her official Israel Foreign Ministry documents that
used the term in reference to Palestinians, she declared
that they were "selling out all of the sons who
died in all the wars."
After a while I realized that these patterns were
more than coincidental, an indisputable leitmotif
with two separate, but related explanations: for Israelis,
there may be a psychological barrier, a deep refusal
to face the fact that there are real-life Palestinians
out there who want to return to their family homes;
and for Palestinians, it may reflect a "postponement
mentality," a sense that though it is a central
topic, it is not as urgent as elections, economic
investment and negotiating the Israeli withdrawal
from the rest of the West Bank.
None of this is meant to imply that the refugee
issue has never been introduced officially or unofficially
by the peace negotiators. The multilateral process
has made modest headway in the area and deserves some
wider recognition. But ultimately, as the following
description reveals, it has failed to put the topic
of Palestinian refugees on the only agenda where it
will ever lead to a consensus about permanent status
and final conditions: in the minds and in the discourse
of the public.
The Refugee Multilateral Working Group, a component
of the Madrid Process, was intended to undertake confidence
building measures focusing on improving the short-term
living conditions of Palestinian refugees without
waiting for political breakthroughs of a more long-term
nature through the bilateral negotiation process.
This was, in and of itself, a significant development,
as it meant that Arab states and Palestinians had
accepted the principle -- which they had previously
opposed for 45 years -- that the refugees could improve
their quality of life without prejudicing their future
rights and status as either refugees or returnees.
To this end, the members of the Multilateral agreed
to undertake humanitarian projects in the areas of
human resource development, vocational training and
job creation, public health, child welfare, and social
and economic infrastructural development. In addition,
they agreed to sponsor research projects, including
Canada's development of a database of existing information
and material on the refugees, and a Norwegian survey
of the socio-economic conditions of refugees living
in Gaza and the West Bank.
The concrete results in each of these areas have
been less than stellar. But by discussing and funding
projects that are outside the West Bank and Gaza,
as well as inside, the Refugee Multilateral is intended
to reassure diaspora Palestinians that their needs
have not been cast aside by the bilateral autonomy/negotiation
process.
In terms of multilateral negotiations over movement
of persons, the results are even more modest. Israel
agreed in 1993 to raise its annual ceiling on the
number of family reunification cases it accepts from
1000 to 2000 (or a total of 6000 individuals); this
involves the return to permanent residency status
in the West Bank or Gaza of Palestinians who left
in 1967 or later. Israel also agreed that the returning
members of the Palestinian police force and their
families would not be counted in the annual quota.
Another 5000 temporary residents of the territories
have been allowed to remain permanently with their
families and up to 80,000 permanent residents of the
territories who overstayed their permits to go abroad
will be allowed back.
The most far-reaching result on refugees that has
come out of the bilateral process arises from the
Jordanian-Israeli Peace Treaty of October, 1994. One
of the six general principles of the treaty states
that the two countries "believe that within their
control, involuntary movements of persons in such
a way as to adversely prejudice the security of either
party should not be permitted." (The two English
language texts that I've examined use the elective
word "should," rather than the mandatory
"shall".) In addition an article titled
"Refugees and Displaced Persons" renewed
the 1993 Declaration of Principle's call for a quadripartite
committee of Israel, Jordan, Egypt and the Palestinians
to work toward the resolution of the matter of persons
displaced from the territories during or after the
1967 war. In a final article, Israel and Jordan agreed
to establish a claims commission for the mutual settlement
of all financial claims. The provision does not go
into any detail, however, as to who can make claims,
subject coverage, valuation of property or sources
of funding.
The quadripartite committee did meet in Amman in
early March of 1995. The meeting produced only disagreement,
as expected, over the matter of numbers: Israel contends
that the number of Palestinians displaced in 1967
is between 150,000 and 250,000, while the Arab parties
put the total number at about 850,000. As usual, the
United Nations Relief and Works Administration for
Palestinian Refugees (UNRWA) comes out in the middle,
at 350,000. The discrepancy is mainly attributable
to Israel's refusal to count spouses and children
of those who left in 1967. It is hard to imagine that
this refusal is more than an initial negotiating stance,
as Israel has already accepted the principle of family
reunification in other contexts. With natural increase
over 28 years, the middle-range 350,000 figure would
have doubled to 700,000 by today. The rest of the
disparity comes from Israel's rejection of a few hundred
persons involved in terrorism, and those whose fate
it seeks to have resolved in final status talks: those
from East Jerusalem, those whose home towns have since
1967 become Jewish settlements, and those 1948 refugees
who were displaced again in 1967. This latter category
is certainly a significant percentage.
The Amman meeting was obviously a disappointment
for anyone with idealistic expectations. But given
that it was the very first, official face-to-face
meeting on this subject, the virtually complete lack
of progress is understandable. Because the issue of
the 1967 Displaced Persons does not directly implicate
the question of repatriation to Israel proper, I think
that an agreement on the mechanism for their future
return to the West Bank is eventually achievable.
So, what is left to resolve after the matter of
the 1967 displaced? Only the fate of approximately
two to four million Palestinians who currently live
in Jordan, Lebanon, Syria, elsewhere in the Middle
East and outside the Middle East. How many will eventually
return? To where? The West Bank and Gaza? To within
the Israeli Green Line? What will happen to those
who remain outside of either Israel or the Palestinian
territories? Who will receive compensation? How much
and from what source? These are not merely symbolic
or technical questions by any means. In order for
negotiators to begin to approach them, let alone resolve
them, public discourse needs to be directed toward
some underlying principles of discussion.
Though each side expresses it differently, at the
most fundamental level, the refugee or human dimension
of the Israeli- Palestinian conflict is about the
willingness to accept who one's neighbors are. What
"Jewish security" means for Israelis, "Palestinian
return" means for Palestinians and other Arabs:
the need for acceptance. To achieve a practical yet
equitable final settlement, each side knows that it
must compromise its seemingly most uncompromisable
need. Hence the difficulty in inaugurating, let alone
reaching closure on, the refugee issue.
I contend that this most intractable of issues can
be resolved if three basic negotiation principles
are accepted by all sides:
1. The first principle is that discussion of the
refugee question will be forward, not backward-looking,
so that age-old battles over fault and causes of dislocation
will not be relitigated; this is easier said than
done because concrete agreements must take into account
concrete contemporary demographic figures, which all
derive from the hotly disputed base figure which I
call the "magic number" -- the number of
Palestinians who left Israel during the 1948 war.
It also requires a great amount of rhetorical restraint
in use of politically-loaded terminology such as "return,"
"expulsion," "transfer" and "rights."
Even the term "refugee," as I learned from
my Israeli friends, can precipitate endless altercation
in this context.
2. The second principle is that wherever possible,
obligations of the parties to the negotiations must
be made reciprocal and regionally balanced. I believe
that the only pragmatic and fair resolution of the
human dimension of the conflict is through regional
participation. This involves a fact which honest brokers
must acknowledge: that a large percentage of Palestinian
refugees must be absorbed permanently into either
the countries of their heretofore temporary residence
or neighboring countries of the Middle East. This
result can ultimately be acceptable to the vast majority
of Palestinians and their host states if they are
given compensation for abandoned property and dual
citizenship as, for instance, Palestinian-Jordanians
or Palestinian-Syrians (or even -- if I may be so
bold to suggest, Palestinian-Kuwaitis), which will
facilitate their future right to travel to and eventually
to settle in an independent Palestinian state, but
not their complete and immediate return, which would
be unstabilizing and impractical.
3. Third, the standard to be achieved in the entire
settlement must be international normality, the condition
in which responsible, peaceful states and their citizens
are expected to behave and interact with each other,
including respect for human rights and non-persecution
of the ethnic minorities that will inevitably remain
in Israel, Palestine and all of the neighboring states.
King Hussein stated it best at the White House ceremony
which ended the state of war between Jordan and Israel:
"We are on our way now truly towards what is
normal in relations between our peoples and ourselves."
As a law professor, I am constantly asked what principles
of law are relevant to resolution of the refugee issue.
The answer, cynical though it may sound, is "very
few." Three aspects of international law, aside
from the general principle of respect for human rights,
are germane, but not necessarily helpful. They are
the right of return within the context of the international
law of freedom of movement; the right of refugees
to compensation both for their dislocation and for
property left behind; and the prohibition on mass
expulsion and involuntary transfer.
On the first subject, return, international law
scholars such as Tufts University professor Hurst
Hannum have closely construed the relevant language
of the central treaty, the International Covenant
on Civil and Political Rights, which reads: "No
one shall be arbitrarily deprived of the right to
enter his own country." The word "return"
is conspicuously absent from this formulation. Moreover,
it is structured as an individual right and not a
collective or group right. It has also been pointed
out that the most relevant non-treaty law on the subject
of Palestinian refugees, the U.N. General Assembly's
Resolution 194, adopted in 1948, states that the refugees
"should be permitted to return to their homes...and
receive compensation" but nowhere uses the word
"right." Therefore, I think that resort
by Palestinian negotiators to the legalese of "right
of return" can only result in the politicized
locking of horns.
On the second topic, refugee compensation, it must
be acknowledged that aside from a few and very discreet
occasions, no large-scale refugee crisis has ever
been resolved through the award of compensation. However,
much ground-breaking research in the specific context
of Palestinian refugees has been done by SUNY Binghamton
political scientist Don Peretz, author of the recent
book, Palestinian Refugees and the Middle East Peace
Process. He has worked on identifying Palestinian
property left behind in Israel in 1948, as well as
methods of assessing the current value of that property
and the possible means of funding and distributing
compensation. The parties to the peace process have
barely touched on this very volatile compensation
question. Thrown into the cauldron is the issue of
Israeli counter-claims concerning Jewish property
abandoned in Arab countries in the period of 1949-1952
when Jews from Iraq, Yemen and elsewhere emigrated
to Israel. The lobby group WOJAC (World Organization
of Jews from Arab Countries) claims that this property
is worth five times that of Arab property left in
Israel.
The third germane area involves customary international
law norms about about mass expulsion and forcible
transfer of populations. From time to time, extremists
in both Palestinian and Israeli camps have espoused
purported "solutions" to the conflict that
invoke these rejectionist means. Suffice it to say
that international law forbids such unilateral action.
However, bilateral and multilateral agreements to
transfer populations are permitted by international
law if offered to the transferees on a truly voluntary
basis, if the process is orderly and humane, and if
compensation for abandoned property is provided. Whether
one- sided or compulsory economic incentives or imposed
political conditions can be considered voluntary depends
on the individual context.
I believe that the traditional discourse which attempts
to divide Palestinians into categories based on from
where and when they left and why they left is bound
to lead nowhere. There will never be agreement on
the "magic number." Moreover, the numbers
game is inherently retrospective and blame-ridden,
and as time passes, the categories (1948 v. 1967,
voluntary v. involuntary, Green Line v. territories
v. diaspora) blur and become harder to distinguish
anyway. Instead, I think the most humanitarian and
pragmatic way to resolve the refugee issue is by focusing
on current needs. A priority ranking of the most vulnerable
Palestinian populations -- those who urgently need
permanent solutions to their residential and legal
status -- would look something like this:
- residents of the most over-crowded and unsanitary
refugee camps in Gaza;
- given Lebanon's oft-stated intention to expel
them, residents of the most vulnerable refugee camps
in Lebanon;
- all other refugee camp residents in Jordan, Syria,
Lebanon, the West Bank and Gaza;
- all other refugees, including Palestinian residents
of other Middle Eastern states, most of whom are
stateless.
It can be assumed that most of the 1.7 million non-camp
Palestinians of Jordan, who have Jordanian citizenship
and are rather firmly settled there, would be willing
to remain on the East Bank of the Jordan, if they
can be given either Palestinian- Jordanian dual citizenship
or a Palestinian identity card, as well as compensation
for property abandoned in 1948. Similarly, although
the 350,000 Palestinians of Syria do not have citizenship,
most are virtual citizens in all but name, living
in permanent housing in neighborhoods of Damascus.
Syria should agree to grant them citizenship and not
consider dual Palestinian citizenship as a sign of
disloyalty. In sum, possibly as many as two million
Palestinians might be willing to accept permanent
absorption and citizenship in their present locales
in Jordan and Syria. Integration in asylum countries
is one of the three commonly-acknowledged "durable
solutions" to refugee crises, the others being
repatriation and resettlement in third countries.
It should not be considered an ineffectual or "copout"
solution for Palestinians.
That would leave somewhere in the neighborhood of
one to one and-a-half million Palestinians for whom
repatriation to the West Bank or Gaza or a package
of resettlement/compensation and citizenship in other
North African and Gulf states are possible options.
Moreover, based on discussions with both Palestinian
and Israeli moderates, I believe it will be possible
for an Israeli Labor Government to accept between
50,000 and 100,000 returnees to Haifa, Jaffa and other
Palestinian ancestral homes within Israel, so long
as there is a concomitant commitment by Israel's neighbors
to offer permanent resettlement to comparable numbers
in their own countries. (One hundred thousand is the
figure that Israel agreed to readmit back in 1949.
That was a much greater percentage then, relative
to Israel's Jewish population at that time and relative
to the Palestinian population of the time than it
is in today's demographic framework.) These returnees
to Israel would be screened to preclude any who have
previously engaged in terrorism and be required to
demonstrate proof of original residence there, as
well as agree to live in peace.
Consistent with the principle of voluntary transfer
and free choice among a variety of viable options,
this is a framework of what might be called "balanced
compromises" which offers dignity through compensation,
group identity and protection through membership in
a duly-recognized Palestinian nationality, and --
through a rational limit on the number who actually
repatriate to either Israel or Palestine, the economic
and political stability that the entire region needs.
It could be administered by a joint commission of
Palestinians, Israelis, Jordanians, Syrians, Lebanese
and Egptians, with perhaps exofficio members from
the United States, Canada, Russia, and other countries,
both inside and outside the Middle East, who will
underwrite the process with financial resources.
Even a long-standing taboo such as this one can
indeed be addressed, and even resolved, so long as
the negotiators have been primed through public discussion
of a small set of basic principles, the most fundamental
being: acceptance of one's neighbors as permanent
and regular fellow citizens, rather than as mortal
enemies or political pawns.
Donna E. Arzt
Associate Professor of Law
Syracuse University College of Law
Syracuse, N.Y. 13244 USA
dearzt@law.syr.edu
Tel. 315-443-2401
Fax 315-443-5394
"Justice, justice thou shalt pursue." -
Deut. 16:20
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