by Donna E. Arzt
SYRACUSE UNIVERSITY
COLLEGE OF LAW
dearzt@law.syr.edu

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 problem.

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.

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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 too high.

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:

1. the returnees must be able to prove original residence before 1948;
2. they must have close family members (a term which would have to be defined) who have been citizens of Israel since 1948; and
3. 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.