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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:

  1. residents of the most over-crowded and unsanitary refugee camps in Gaza;
  2. given Lebanon's oft-stated intention to expel them, residents of the most vulnerable refugee camps in Lebanon;
  3. all other refugee camp residents in Jordan, Syria, Lebanon, the West Bank and Gaza;
  4. 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
Tel. 315-443-2401
Fax 315-443-5394
"Justice, justice thou shalt pursue." - Deut. 16:20

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