by Donna E. Arzt
COLLEGE OF LAW
December 7, 1999
The Palestinian-Israeli conflict poses many potentialstumbling
blocks on its way to a final settlement. These include:
- Jerusalem, often considered to be the
most "intractable" hurdle;
- settlements and the exact shape of the
territory that will become the Palestinian state,
perhaps the most politically charged set of issues;
as well as
- water resources, possibly the most sobering
But there is one issue that is absolutely indispensable
for the agreement to be accepted by the relevant constituencies,
and therefore, to its becoming a final agreement:
the fate of the Palestinian refugees.
It is also the one issue where the parties appear
the furthest apart, at least in their public rhetoric,
and the most unrealistic in their expectations. (At
least they are close in the degree of their respective
unreality.) For half a century, even while the military
conflict has waxed and waned, the rhetorical war between
Palestinians and Israelis has gone on almost unabated.
One side has demanded "absolute justice"
while the other side has insisted on "complete
security." Translated into the refugee question,
this has meant the demand of "complete return"
for every Palestinian refugee, countered by the insistence
by Israelis that no refugee can ever return to within
the 1948 borders of Israel. Just last week, for instance,
Prime Minister Barak declared that Israel would not
accept a single Palestinian refugee within the Green
Line, while Palestinian activists stated that refugees
are not interested in a Palestinian state, if its
price will be surrender of the right to return to
their original homes.
When Ehud Barak and Yasser Arafat sit down together
next month, possibly here in Washington, to produce
a framework agreement, their host, probably Bill Clinton,
should leave them alone together with but two blunt
words of advice about the refugee issue: Get Real.
Use of the American vernacular would have the best
effect, but if King Hussein were still alive (as he
was during the Wye River negotiations), he'd say it
more eloquently, as he did in 1991 before the Madrid
Process began: both Palestinians and Israelis need
"the courage to bury senseless illusions."
In order to achieve a mutually acceptable and durable
peace, both sides will have to relinquish their absolutist
aspirations and negotiate a compromise solution to
the refugee issue. That solution will necessarily
have certain key features:
- it will have to be forward-looking, not backward-looking,
because there will never be a shared consensus on
the full causes of refugee flight in 1948; the "blame
game" is simply a non-starter (though in fact,
Israeli television and school textbooks are beginning
to address the questions raised by the "new
historians"; even the Israeli Defense Ministry
has come around to acknowledging that the Israeli
Army prompted much of that flight by deliberately
frightening Palestinians into leaving);
- it will be regional in scope, because at least
for the foreseeable future, a Palestinian state
will not have the economic stability to absorb all
three to four million refugees, and because all
states in the region share at least some responsibility
for perpetuating the Arab-Israeli conflict, if not
in fact for originally causing the refugee crisis;
- it must offer voluntary and realistic options
for individual Palestinian families, including the
option to remain where they are, with compensation
packages that can assist them to rehabilitate themselves;
or the option to move to the Palestinian state in
the West Bank and Gaza, again with compensation,
which should also include communal reparations so
that Palestinian communities can be reconstituted;
and in all cases, Palestinian passports and full
citizenship in whatevercountry they reside.
In my book, Refugees into Citizens: Palestinians
and the End of the Arab-Israeli Conflict (Council
on Foreign Relations, 1997), I suggest a variety of
such options and explain why international law requires
that all negotiated population resettlements must
be voluntary, humane and orderly. I also propose some
temporary institutions, such as joint commissions
composed of Israelis, Palestinians and neutral third
parties, to decide such questions as who might in
fact be allowed to repatriate to their original homes.
The book also describes existing customary international
law guidelines (based on global precedents and practices
of the UNHCR and other international agencies) for
achieving durable solutions of long-term refugee crises.
In the time remaining, let me focus on what I consider
to be the true lynchpin of the refugee issue, which
itself is the lynchpin of the overall Palestinian-Israeli
settlement: Israel must agree to the repatriation
of at least a minimal, symbolic number of Palestinians.
I've suggested between 50,000 and 100,000. While most
Palestinians invariably find this to be woefully insufficient,
many Israelis are equally adamant that it is 100,000
But let's get real. As Shibley Telhami has recently
written, "No Israeli government can accept the
massive return of Palestinians into Israel in a way
that threatens the Jewish majority." While that
is true, I would likewise suggest that not only will
a Palestinian state have the right to permit refugees
to return to its own borders, if Israel wants other
Arab states to agree to absorb many of the refugees
who will not, at least right away, move to the West
Bank, then it too will have to absorb its share. A
figure in the rough neighborhood of 75,000 will not
threaten Israeli security. That ballpark figure is,
in fact, roughly the number of ideologically entrenched
Jewish settlers who are unlikely to willingly move
backto Israel, and it is a fair number to expect Lebanon
to absorb without upsetting its purportedly precious
communal equilibrium. It's also fair given that the
future state of Palestine is going to end up to be
much smaller than the dream of "absolute return"
implies, and possibly even smaller than the complete
West Bank and Gaza.
In other words, a symbolic number of repatriating
Palestinians allows for regional balancing and face-saving.
Israel must make a pragmatic decision to exchange
partial, symbolic return of Palestinians in return
for Palestinian and Arab state acceptance of less
than the full territory that they originally sought
for the Palestinian state. Israelis would do well
to recognize their own advantage in such a compromise
solution, which places them near the center of a regional
solution that can lead to greater regional stability
and economic development.
Palestinians and Israelis should be able to agree
on criteria for who would be eligible for repatriation
to within the Green Line, such as these three:
- the returnees must be able to prove original residence
- they must have close family members (a term which
would have to be defined) who have been citizens
of Israel since 1948; and
- they must agree, by written contract, to comply
with the condition in General Assembly Resolution
194 to "live at peace with their [Israeli]
neighbors." If, after running a security check,
Israel has substantial evidence (such as proof of
prior terrorist activity) that the would-be returnee
is not likely to comply, it can veto the return.
However, it would be a rebuttable presumption, to
be resolved by an impartial tribunal set up under
the final peace agreement.
(A population sub-group 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 with personal memories of life before 1948.)
A salient series of questions, which I will conclude
by mentioning, is whether an outright Israeli apology
should be required as part of this final agreement.
Similarly, can reconciliation between two warring
peoples be reached without a consensus on how to achieve
mutual justice or on historical truths? And on a more
practical level, should Israel be required to acknowledge
the Palestinians' "right of return" when
it agrees to this gesture of limited repatriation?
Certainly, the lawyers will be able to devise appropriate
language for the framework agreement and the final
peace agreement, which can walk the line between "return"
and "no return." (I myself have written
that Israel does not need to acknowledge outright
blame: under the international law doctrine of "objective
responsibility," a breach of international law
[laying rise to a right to compensation to remedy
the breach] can occur through the result alone.) But
lawyers cannot legislate reconciliation between the
Israeli and Palestinian populations "on the ground."
Only mutual dialogue can do that. And the dialogue
on the future of the refugees has barely even begun.