Principles and Procedures
for Compensating Refugees: International Legal Perspectives
Compensation as Part of a Comprehensive Solution
to the Palestinian Refugee Problem By Eyal
Benvenisti
Workshop on the Issue of Compensation for Palestinian
Refugees
Ottawa, July 14-15, 1999
The Right to Compensation
in International Law: A Discrepancy between Principles
and Practice
(a) Principles
The principle that refugees are entitled
to compensation for their lost property is increasingly
gaining recognition in international law. This principle
now applies not only to aliens' property but also
to citizens fleeing from their own state. Principle
4 of the International Law Association's 1992 Cairo
Declaration of Principles of International Law on
Compensation to Refugees, which aims at reflecting
customary international law, declares that "[a]
State is obligated to compensate its own nationals
forced to leave their homes to the same extent as
it is obligated by international law to compensate
an alien."
A different question relates to the appropriate standard
of compensation. The general debate over the legal
standard of compensation for expropriation of aliens'
property is well known. This debate draws upon United
Nations General Assembly resolutions, judicial decisions,
bilateral investment treaties and even lump sum agreements.
In the context of refugees' right to compensation,
there is no coherent practice to support any unambiguous
conclusion as to the lawful standard of compensation.
The majority of instruments that mention compensation
for refugees' property do not elaborate on this issue.
Generally, there are two notions of full compensation
for damages. As pronounced in 1929 in the famous judgment
of the Permanent Court of International Justice (PCIJ,
the precursor of today’s International Court
of Justice) in case of Chorzow Factory. In its decision,
the PCIJ set forth two standards: for takings or other
acts which are illegal under international law, the
"payment of a sum corresponding to the value
which a restitution in kind would bear;" whereas
for other takings which are not illegal, "the
value of the undertaking at the moment of dispossession,
plus interest to the day of payment." Yet, in
the specific context of refugees, these standards
are not suitable, and indeed, a different standard
has been proposed. In 1981, the General Assembly of
the United Nations first enunciated the right "of
those who do not wish to return to receive adequate
compensation." This principle was subsequently
approved by the United Nations Group of Governmental
Experts on International Co-operation to Avert New
Flows of Refugees, and reaffirmed by the General Assembly.
Both standards of full compensation raise difficulties
in cases of mass transfer of population, especially
when long time has elapsed. The current value of the
property may be influenced by investments, both public
and private, that may have increased or decreased
its value. At the same time, the historic value of
the property could be difficult to ascertain. Moreover,
full compensation could drain the resources of the
state, and create instability during a delicate transitional
period. In light of these considerations, the German
Federal Constitutional Court intimated in its "Land
Reform" decision of 1991 that the standard of
compensation for property expropriated between 1945
to 1949 in the former GDR need not be at full market
value, and a lesser amount would be permissible under
the German Basic Law. A similarly nuanced formula
is found in the Dayton Accords of 1995 concerning
Bosnia, whose Annex 7 ("Agreement on Refugees
and Displaced Persons") mentions "just compensation
in lieu of return."
The principles of "adequate" or "just"
compensation seem more appropriate than the Chorzow
Factory formulae in cases of mass relocation and abandonment
of property. It is suggested that the more nuanced
principles are analogous to the notion of equitable
compensation, calling for an ad-hoc appraisal of the
various interests and constraints involved. At times,
this principle could mean more than the historic value
(plus interest) but less than the full current market
value; at other times, when rehabilitation of refugees
require more funds than the value of their abandoned
property, "adequate" or "just"
compensation might mean more than the full value of
the property. These principles are not just backward
looking; they are also, and not less importantly,
forward looking.
(b) Practice
In contrast to the widely shared principle that compensation
for refugees’ property is due, the practice
in the many cases of mass relocation of populations
throughout the twentieth century leaves much to be
desired. Bilateral agreements on population exchanges,
between Bulgaria and Greece (1919), between Greece
and Turkey (1923), and between India and Pakistan
(1947), provided procedures for compensating the refugees
for their lost property. The Bulgarian-Greek and Greek-Turkish
agreements contained detailed mechanisms for assessing
the value of property and for calculating the amount
of compensation. Bulgaria and Greece did pay some
compensation for property left in their countries,
yet the Greek-Turkish arrangement proved too difficult
to implement. After lengthy negotiations, the sides
agreed in 1930 to settle the question of refugees'
property by the assumption by each state of the property
rights in refugee property left in its jurisdiction,
and by the setting-off of all claims for compensation,
which left Greece liable for a lump-sum payment of
425,000 pounds sterling. India and Pakistan also agreed
on a system of compensation, but disagreements over
the actual appraisal of property, as well as political
difficulties, frustrated its implementation.
Compensation in lieu of repossession of property
is viewed as an alternative in the international efforts
to resolve the refugees’ problem in both Cyprus
and Bosnia. UN initiatives to resolve the Cypriot
refugees’ claims and counterclaims emphasize
compensation as the preferred alternative, and offer
a procedure for processing claims. The 1995 Dayton
Accords provide a general framework for compensating
refugees who would prefer it to repossession. Despite
international efforts, however, the scheme is yet
to begin functioning.
II. Procedures
As the failures to compensate refugees demonstrate,
carefully designed procedures to process claims to
compensation are the key to providing an effective
compensation scheme. Past international practice provides
a number of compensation schemes as possible prototypes
for situations of mass abandonment of private property.
The important variables are the processes through
which private persons may prove their claims (to a
national or to an international institution) and the
methods of payments (a direct payment by one state
to the claimant, or an indirect payment to the claimant’s
government or to an international institution). An
examination of the possible designs will help to identify
the most appropriate method in the Israeli-Palestinian
context.
(a) International Claims Tribunals
International Claims Tribunals provide a forum for
adjudication of claims brought by individuals (and
states) against states. These tribunals are based
on international agreements. With a few exceptions,
international claims tribunals were in fact imposed
after wars by victorious powers on their defeated
enemies who conceded their infringement of international
law. The agreements establishing such tribunals reflected
the unequal power positions between the parties by
explicitly or implicitly excluding the opportunity
of citizens of the defeated state to bring claims.
Starting with the Jay Treaty of 1794 between the
United States and Britain, and until World War II,
states often resorted to international claims tribunals
to settle disputes, many of them dealing with takings
of alien property. Since that war, however, this practice
has virtually stopped, as lump sum agreements became
increasingly favored. In fact, with the exception
of a few tribunals established under post World War
II peace treaties, in the last five decades only one
such tribunal -- the Iran-U.S. Claims Tribunal –
was established. The primary reason cited for the
sharp decrease in the number of international claims
tribunal was the slow and inefficient procedure before
these institutions.
The Iran-U.S. Claims Tribunal was established in
1981 as part of the settlement of the crisis in the
relations between the two countries, which had started
with the seizure of the US embassy in Tehran, to which
the US responded inter alia by the freezing of Iranian
assets situated in the US. About 4,000 claims were
filed with the tribunal. The tribunal is commended
for its successful adjudication of commercial disputes
between the US governmental agencies and private firms
vis-a-vis Iran. By the end of 1994, the great majority
of the large commercial disputes was resolved, either
through awards issued by the tribunal or by agreed
settlements. One may assume that many of these settlements
would not have been attained but for the availability
of the tribunal and the standards it set. The tribunal
did experience some delay in its work, partially due
to delay tactics of the Iranian side.
When assessing the feasibility of establishing a
similar tribunal to deal with property claims of individuals
in the Israeli-Palestinian context, the success of
the tribunal in resolving commercial disputes is largely
irrelevant. For our purposes, the most telling observation
is the tribunal's failure to settle satisfactorily
the claims of private US citizens who had left or
had been expelled from Iran as a result of the Islamic
revolution. Out of about 40,000 US citizens who had
fled Iran between November 1978 and February 1979,
only 1,500 (less than 4%) have actually filed claims
against Iran. Until 1990 (nine years after the beginning
of the tribunal's activity) only six of these claims
were adjudicated, and damages were awarded in only
one case. In view of this failure, in 1990 the two
governments concluded a lump sum agreement concerning
these individual claims, following which these claims
are to be relegated to the US Foreign Claims Settlement
Commission.
The difficulties that hindered the filing of damages
claims by the rest 96% of U.S. citizens who had left
Iran may be attributed to the high costs involved
in complex international legal proceedings. One may
assume that similar difficulties would influence also,
and to a greater extent, most of the refugees seeking
compensation. The decision to change the venue for
the individual claims may reflect an understanding
that an international forum for dispute resolution
is less suitable that an internal one, when private
individuals are concerned. In addition, the specific
difficulties in ascertaining the merits of private
claims of refugees after mass relocation and perhaps
loss of documentation would prolong indefinitely the
work of such a tribunal that would have to handle
hundreds of thousands of claims. In light of the magnitude
and the complexity of refugees’ claims, and
the need to achieve early settlement so as not to
delay the rehabilitation efforts, the model of the
Iran-U.S. Claims Tribunal is not suitable.
(b) Lump-Sum Agreements
Such agreements usually include a payment of a fixed
sum by one state to the other. The recipient can in
turn establish through domestic legislation a national
claims commission to adjudicate private claims for
shares of the sum received. Richard Lillich and Burns
Weston examined a total of 168 lump sum agreements
concluded between 1945 and 1988. They observed that
"in the last 40 years this procedural device
has become, without doubt, the paramount vehicle for
settling international claims." There are clear
advantages to lump sum agreements, for both states.
For the claimant state this agreement offers prompt
payment, less costly procedures for distributing the
funds domestically, control over these procedures,
and hence more power for domestic politicians. For
the paying state the benefits include a final sum,
a final release of obligations, usually without admitting
responsibility, and without the high costs of an international
tribunal. The lump sum agreement removes tensions
in the bilateral relations of the two countries linked
to the issue of compensation, and facilitates quick
return to normal relations.
The difficulties in verifying the individual claims
are relegated to the national level. National claims
commissions face a large number of claims that involve
complex questions of facts and law. It will be interesting
to examine in this context the unfolding implementation
of the German scheme for restitution and compensation
of property in East Germany under the Unification
Treaty. It is expected that the process will be lengthy.
But unlike most refugees, most of these claimants,
who reside in the affluent western part of Germany,
speedy relief is not a major concern.
The same principles of a lump sum agreement have
been offered by the U.N. Secretary General, Dr. Boutros-Ghali,
to the governments involved in the Cyprus problem,
as a possible solution of the Cypriot refugees’
claims. The plan was designed specifically to exchange
title to property among the displaced members of both
Greek and Turkish communities as means for both resolving
the problem of titles to land and for providing funds
for monetary compensation. The Secretary-General's
suggestion contains the following essential provisions:
76. Each community will establish an agency to deal
with all matters related to displaced persons.
77. The ownership of the property of displaced persons,
in respect of which those persons seeking compensation,
will be transferred to the ownership of the community
in which the property is located. To this end, all
titles to properties will be exchanged on a global
communal basis between the two agencies at the 1974
[time of the Turkish invasion] value plus inflation.
Displaced persons will be compensated by the agency
of their community from funds obtained from the sale
of the properties transferred to the agency, or through
the exchange of property. The shortfall in funds necessary
for compensation will be covered by the federal government
from a compensation fund.
Such lump-sum agreements seem to be best suited to
solve such large-scale disputes. Indeed, as will be
noted in the following section, such a plan was suggested
already in 1951 by the U.N. Conciliation Commission
for Palestine (CCP) with respect to the Middle East
refugees.
One of the major drawbacks of lump sum agreements
(from the point of view of individual citizens, not
from that of the governments…) lies with the
domestic disbursement of the funds. Typically, such
agreements leave to each government to decide on the
modalities of the domestic process of indemnifying
the citizens. Without attention to this process, individuals
may ultimately remain uncompensated.
(c) International Institutions for Compensation
In the 1990s, two new international institutions were
established to settle claims on a large scale. They
combine some of the ideas already mentioned but offer
innovative ways to deal with some of the problems
encountered in previous efforts, such as backlog of
claim, difficulties in assessing damages, and lack
of transparency.
The United Nations
Compensation Commission
The United Nations Compensation Commission, established
in 1991 to deal with claims against Iraq stemming
from its invasion and occupation of Kuwait, resembles
the post war international claims tribunals in one
perspective: it presupposes the responsibility of
the defeated state, in this case Iraq's, for war-related
property damages, and does not provide access to Iraqi
claims against Iraq or against the allied coalition
forces. In view of the continuing confrontation between
the Iraqi government and the U.N. Security Council,
an agreement on Iraq's payment of compensation could
not be reached. The prospects of large volume of claims
against Iraq, and the generally unsatisfactory experience
with international claims tribunals, necessitated
fresh thinking over the design of an institution that
could process efficiently a large number of claims.
The result was the innovative structure of the United
Nations Compensation Commission. In essence, the idea
behind this commission is to combine elements from
both international claims commissions and national
commissions (commissions that some states have established
to allocate funds obtained through lump sum agreements).
The U.N. commission does not deal directly with individual
petitions. Governments collect and submit their citizens’
and residents' claims before the Commission. The Commission
may decide in the initial stages to allocate funds
to each government, in respect of its consolidated
claim and according to the available funds at its
disposal. It is probably expected that the governments
in turn would establish procedures to distribute these
amounts to their nationals. The funds are obtained
from proceeds of Iraq's oil sales.
The Guidelines reflect a particular effort to address
personal suffering. Fixed payments of $2,500 backed
by "simple documentation" are to be provided
for departure from Iraq or Kuwait, serious personal
injury, or the death of a family member. Above these
sums, individuals may claim their actual losses, the
Commission giving "expedited priority" to
claims up to $100,000 per person, and requiring "a
lesser degree of documentary evidence" for smaller
claims, below $20,000.
The model of the U.N. Compensation Commission seems
more suitable for one-sided solution, in situations
similar to those dictated by the victorious Allied
powers following the two World Wars. It is unlikely
that any government would accept willingly such fact-finding
procedures, and the across-the-board assumption of
responsibility. Such a model does not suit parties
that must fashion peaceful relationships. Therefore,
this model does not seem to be appropriate in the
Israeli-Palestinian context.
Bosnia’s Commission
for Displaced Persons and Refugees
The parties to the Dayton Accords of 1995, The Republic
of Bosnia and Herzegovina, the Federation of Bosnia
and Herzegovina, and the Republika Srpska, agreed
to establish a Commission to implement the provisions
of the agreement relating to refugees’ return
or compensation. On paper, this Commission is eminently
suited for the task of resolving the task. Without
political will, however, it is doomed to fail.
The Commission is composed of nine members, four
appointed by the Federation of Bosnia and Herzegovina,
two by the Republika Srpska, and three by the President
of the European Court of Human Rights (who also designate
the Commission’s Chairperson). The Commission
may sit in panels. It may decide by a majority vote.
The Commission has mandate to receive and decide
?any claims for real property in Bosnia and Herzegovina,
where the property has not voluntarily been sold or
otherwise transferred since April 1, 1992, and where
the claimant does not now enjoy possession of that
property. Claims may be for return of the property
or for just compensation in lieu of return.? (Article
XI of Annex 7). Article XII provides the procedure
for processing individual claims through determining
ownership based on public records (but disregarding
transfers completed under duress), and visual examination
of the property for the purpose of its inspection,
evaluation and assessment. Article XII(2) provides
that
[a]ny person requesting the return of property who
is found by the Commission to be the lawful owner
of that property shall be awarded its return. Any
person requesting compensation in lieu of return who
is found by the Commission to be the lawful owner
of that property shall be awarded just compensation
as determined by the Commission.
A person who is awarded return of property has the
option of leasing it instead of gaining repossession.
To facilitate its work, the agreement empowers the
Commission to establish fixed rates to determine the
value of all real property in Bosnia and Herzegovina
that is the subject of a claim before the Commission.
The Commission has powers also to effect any transaction
with respect to claimed property (overcoming conflicting
domestic laws) and award monetary grants from a special
fund, established in the Central Bank of Bosnia and
Herzegovina and administered by the Commission.
This sophisticated and ambitious framework, if it
was ever designed to emerge from paper, has so far
failed. International efforts could not overcome the
animosity among the rival communities. The goals of
refugees’ return or compensation remain unaccomplished.
III. In Search for
the Appropriate Compensation Plan in the Israeli-Palestinian
Context
The Compensation Commission for Palestine (CCP) put
forward in 1951 a scheme to settle the issue of the
compensation for refugees. This scheme had much in
common with the lump sum agreements that characterized
international practice of the last five decades. According
to this plan, Israel would have paid
as compensation for
property abandoned by those refugees not repatriated,
a global sum based upon evaluation arrived at by the
Commission's refugee office; that a payment plan,
taking into consideration the Government of Israel's
ability to pay, be set up by a special committee of
economic and financial experts to be established by
a United Nations trustee through whom payment of individual
claims for compensation would be made.
The CCP found the establishment of a special committee
to be necessary to work out the details of the payment
procedures, and probably also to overcome the problems
of the representation of the refugee community. In
light of the limits of Israel's economy, the CCP suggested
that Israel make piecemeal payments to the special
committee over a period of many years. Until the full
payment would be made, other sources would provide
that committee with funds for disbursement to the
refugees.
Israel did not reject this specific suggestion, but
added a few reservations to it. Israel declared its
readiness "to contribute to the settlement of
the question of compensation for Arab property abandoned
in Israeli territory," and suggested that concrete
discussions be held on the question of evaluation,
which would also take into consideration the following
factors: that the Arab property had been abandoned
as a result of Arab aggression in 1948; that Israel's
ability to pay was affected by the Arab boycott, and
the need to absorb Jewish refugees from Arab countries;
that Jewish property had been abandoned in the West
Bank and the Gaza Strip during the 1948 War; and that
Jewish property had been confiscated in other Arab
countries. In Israel's opinion, the "final agreement
on the global amount of Israel's contribution towards
compensation should put an end to the refugee problem
in so far as Israel is concerned." The Arab side
demanded prompt payment based on the "true value"
of the property, on an individual basis rather than
by a lump sum, and refused to link the payment of
compensation with Israel's financial capacity. In
addition, the Arab states demanded payment for the
value of part of the public property located in Israel
(roads, railway lines etc.). These conflicting attitudes
could not have been reconciled at that stage in Arab-Israeli
relations.
The CCP proposal reflects solid policy considerations.
It has the merit of divorcing pecuniary claims from
political and nationalistic ones thus minimizing tensions
both between individuals of one community with the
authorities of the other community as well as between
the governments themselves. It relegates the process
of ascertaining individual entitlements to the domestic
phase of the settlement, which is controlled by the
claimants’ own government. But this is also
its major drawback. Effective and transparent domestic
process for compensating individuals must be designed
to ensure the satisfaction of individual claims.
Such a separation into two stages seems especially
important in the Israeli-Palestinian context, due
to the complexity and the large scale of the claims
involved. This process should include an identification
of ownership and various other property rights at
the time of abandonment. In certain exceptional instances,
such as rights in land registered during the Mandate
period in the land registry, individuals may be expected
to be able to support their claims with ample evidence.
However, in areas where there had been no orderly
system of registration, and where the substantive
provisions in the property law were archaic and complicated,
as was the situation in Mandatory Palestine, the identification
may prove extremely difficult. The land law in Palestine
was comprised of antiquated Ottoman legislation, together
with a few British ordinances. Needless to say, only
a small number of Israelis and Palestinians are familiar
with the authoritative Turkish texts. Moreover, land
registration was very sparse, and the boundaries of
those plots which were registered during the Ottoman
period (until 1917) were described only literally,
without reference to maps. Therefore, it is extremely
difficult to locate those registered plots. Furthermore,
due to local usages of land cultivation and rules
of succession, large unregistered plots were jointly
owned by several owners, each owning only a fraction
of the title. Identification of property rights and
their holders is further complicated when it is sought
following dozens of years of separation of the original
owners from their property, especially when such a
separation occurred in a time of political and military
turbulence, as existed in this area, especially between
the years 1947 and 1949. Further complications in
identifications may be caused by inaccurate registration
of titleholders and inaccurate transliteration of
Arabic and Hebrew names into the official English
records.
An identification of individual claims after half
a century will also require a factual and legal examination
of all subsequent transfers of titles, both inter
vivos and through successions. The validity of title
changes must be examined under internal and international
law. In cases of succession to property, the validity
of such transfers of title would also need to be examined
under the various laws governing such questions, namely,
the laws of the newly acquired domicile or nationality
of the deceased rightholders. Due to conditions of
war, military occupation, and dislocation, formal
requirements (for wills and contracts) are often difficult
to keep, and thus transactions made without meeting
the necessary requirements might not be respected
nor sufficiently proven. A further difficulty, which
becomes increasingly complicated with the passage
of time, is the need to appraise the value of property
in 1948 and then to translate that value into current
terms. With many potential owners, co-owners, and
witnesses, dispersed throughout the world, such a
process may prove too slow and cumbersome. Note that
throughout such a lengthy process, the parties involved
would remain preoccupied with this issue, which could
well strain their relationship during a crucial period
of reconciliation. This complexity is exacerbated
by the possibility that a comprehensive Arab-Israeli
settlement might also involve the claims of Jews who
left their property in various Arab countries and
found refuge in Israel during, and after, 1948.
While the identification and quantification of each
of the individual claims to property rights are extremely
complex and long processes, a global inter-governmental
assessment of the quantity and value of the bulk of
property left by a displaced population may be more
feasible. The criteria for such assessment may be
negotiated by the parties, and the necessary factual
data may be derived from historical, demographic and
geographical surveys. The findings of the CCP, along
with other sources (including aerial photos of the
relevant periods) may prove useful in this respect.
The assessed value of private property of the various
categories may thus be a significant factor in the
calculation of the lump sum payments. However, because
the applicable standard is one of "adequate compensation,"
this factor need not be the only, or even the decisive
factor. The present and future needs of the refugees,
the financial and economic ability of the parties,
and the prospects of contributions and investments
by other members of the international community should
be considered as well.
Once the lump sum payments have been agreed upon
in the inter-governmental level, it is necessary to
determine the principles and the procedures for the
internal distribution of the funds among the individuals.
The reference to past entitlements as the sole, or
even the primary criterion for the allocation of funds
suffers from major drawbacks, especially when implemented
long after the relevant events have occurred. Firstly,
as detailed above, the arduous task of ascertaining
private claims for abandoned property remains. Secondly,
when prompt compensation is needed to rehabilitate
individuals, such a process of identification may
prove both slow and insufficient. Thirdly, and most
importantly, if rehabilitation is the goal, then the
aim of the payment, and, hence, its measure, should
be prospective as well as a retroactive one. Indeed,
instead of referring only to the past, the key to
normalization and reconciliation lies also in addressing
the current and future needs of the communities and
of the individuals. A compensation scheme that is
inspired by consequential considerations and distributive
justice may be preferable to a right-based scheme,
aimed at effecting corrective justice. Such a prospective
outlook carries the promise of the rehabilitation
of emerging economies during a relatively short period.
This policy proved very successful in West-Germany
after the Second World War. In addition to reviving
the German economy and infrastructure, it helped to
absorb and rehabilitate millions of German refugees
from the East, to whom no compensation for lost property
was provided. Such, indeed, was the U.N. plan regarding
the Arab refugees during the 1950s as well as later,
a plan the Arab states refused to implement. Half
a century later, such a prospective outlook with respect
to the refugee problem is all the more appropriate.
In fact, one may already find reference to such a
policy in the Israeli-Palestinian Declaration of Principles.
Annex IV, concerning regional development programs,
sets as its first objective the promotion of a Social
Rehabilitation Program for the West Bank and the Gaza
Strip, which is to include a Housing and Construction
Program.
The exact weight given to the individual claims to
property rights in the stage of the internal allocation
of the funds depends on the characteristics of the
relevant population and the claims involved. Thus,
for rehabilitated refugees, the primary measure of
their compensation may be the value of the property
they left, to the extent that their claims can be
ascertained today. Such an approach could be taken
in the internal settlement of claims in Israel with
respect to rehabilitated Jewish refugees from neighboring
Arab countries, or Israeli owners of property left
in 1948 in the West Bank and the Gaza Strip. Yet,
against these claims the authorities may partially
or fully offset the value of the lands on which these
people were resettled, some of which had been owned
by those who left to the other side of the border.
For other refugees, who are yet to be rehabilitated,
such as Palestinians living in refugee camps, one
may expect that the primary (although not the conclusive)
criterion for the allocation of funds would be their
current and future needs. Furthermore, such refugees
may be better compensated by supplying them with decent
dwellings, medical facilities and educational institutions,
rather than by cash money. The criteria for compensation
will, of course, determine the identity and scope
of persons entitled to compensation.
In principle, the precise standards and modalities
for the distribution of the compensation should be
determined by each administration concerning its own
population. Yet in this respect, the situation in
the Arab-Israeli conflict poses a unique challenge
that did not exist in the conflicts previously discussed.
This challenge stems from the necessary interaction
between the Palestinian representatives and the Arab
governments in which Palestinians reside. The approximately
two and a half million Palestinian refugees are dispersed
between the West Bank and the Gaza Strip (less than
40%), Jordan (less than 40%), Lebanon (more than 10%)
and Syria (more than 10%). This division may change,
due to the possible return of displaced Palestinians,
who left the West Bank and the Gaza Strip after 1967,
to these areas. One may assume that in future negotiations,
the Palestinians would demand to allow also the return
of the 1948 Palestinian refugees to the territory
of the Palestinian entity. Despite a possible decrease
in the number of Palestinian refugees residing in
the neighboring Arab countries, as a result of such
a return, one may predict that a considerable number
of refugees will prefer to remain where they have
resided for the last five decades. Therefore, any
arrangement for the settlement of the refugees problem
involves not only the Israeli and the Palestinian
sides, but also the countries in which large parts
of the Palestinian refugees are to be resettled and
rehabilitated. The bilateral arrangements between
Israel and the Palestinians can address only the rights
and interests of the Israelis and Palestinians living
in Mandatory Palestine.
The present political situation in the Middle East
does not lend much support to the assumption that
the concerned Arab governments would agree to entrust
to a Palestinian authority the task of administering
funds to the Palestinian refugees situated in their
respective territories. Any rehabilitation program
for the refugees would require not only the distribution
of funds to individuals, but also the initiation of
public projects, such as housing projects, investments
in infrastructure, and the creation of new working
places. These projects must be carried out with governmental
approval and supervision. It is expected that the
governments involved would not tolerate any such activity
that would not be at least coordinated with them.
This assumption is based in part on the previous experience
of UNRWA, which, during the 1950s and 1960s, had to
negotiate its activities and status with the Arab
governments, negotiations which not always produced
satisfactory results from UNRWA's point of view. On
the other hand, it would be wrong to entrust the disbursement
of the funds entirely in the hands of the Arab governments.
The internal political status of the Palestinian refugees
in their places of residence does not fully ensure
the fair representation of their interests by the
governments involved. Therefore, bilateral lump-sum
agreements with the Arab states, which would allow
discretion on the part of Arab governments in the
disbursement of funds, do not seem appropriate.
The drawbacks of any scheme based solely on bilateral
relationships, with wide discretion concerning the
internal arrangements for the allocation of funds,
call for the establishment of a more elaborate mechanisms
that would ensure the proper representation of the
interests of both Palestinians and Arab governments.
Thus it is suggested that any encompassing arrangement
of the refugees problem must include not only Israel
and the PLO, but also the neighboring Arab states.
In addition, it should be expected that contributing
states or organizations would also insist on participation
in setting the criteria and procedures for the use
of the funds and on monitoring their implementation.
It is therefore recommended that all the involved
parties establish a special institution, which will
ensure fair representation of all interest groups,
to effectively supervise the allocation of funds based
on the standards explored above, thus guaranteeing
the successful implementation of the rehabilitation
schemes for the Palestinians. |