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Chapter 4: From Refugees to Citizens

Source: The book is distributed by the Brookings Institution

by Donna Arzt

This chapter is excerpted from Donna Arzt, Refugees Into Citizens: Palestinians and the End of the Arab-Israeli Conflict (Council on Foreign Relations Press, 1996).

This chapter outlines the basic components of a plan for permanent regional absorption of Palestinian refugees that is intended to result in a mutually agreeable division of responsibilities among all of the parties to the peace process. It is offered as a proposal, not a formal blueprint, so that participants in the negotiations can borrow some parts, reject other parts, improve on those for which future fact-finding may shed more light, and be prompted to generate other possible solutions. Chapter 5 elaborates on some of the major components of the plan by examining similar efforts in other countries or regions of the world and suggesting relevant legal standards to facilitate implementation within the Middle East.

The plan develops from the assumption that because the conflict is regional, the solution must be regional. Accordingly, it can best be worked out within the context of the multilateral rather than the bilateral negotiation process (even if, like most of the post--Oslo agreements, it is initiated in bilateral discussions).1 The collective approach is more suitable because it recognizes that refugees are not merely individuals residing in isolated enclaves but also members of a regional community that transcends national borders. Because of its roots in the post--World War II era, much of the preexisting framework for resolving refugee crises has been grounded in the ideology of individualism.2 Yet a postmodern refugee framework appropriate to the 1990s and the 21st century requires a collective perspective: a mutually satisfactory solution to a jointly shared, regional problem.

No plan to resolve the refugee question will work without a comprehensive, viable, and bona fide peace that can be carried out in good faith. Realistically, Syria, Lebanon, Israel, and other states are not likely to grant citizenship to Palestinian refugees unless such a commitment is preceded by, or offered concomitant with, a final settlement of the entire Arab--Israeli conflict. But that only proves that the refugee question is ultimately inseparable from the underlying cause of the decades-long conflict: the failure to accept the reality that Israelis and Palestinians, Arabs and Jews, live together in the same neighborhood. Thus, only when the burdens and benefits of peace are distributed in a regionally balanced fashion will all the parties be willing to come on board.

Components of the Plan
A common denominator of the plan's basic components is the underlying premise that only through the granting of citizenship to Palestinians, wherever they will eventually reside, both within and without the Middle East, will a permanent and viable solution to the Arab--Israeli conflict be achieved. The international refugee regime has traditionally posited three "durable solutions" to the global refugee crisis, each of which is a form of permanent absorption. In descending order of generally accepted preference, they consist of repatriation, or voluntary return to the country of national origin or state from which the refugees fled; permanent integration in the locale of asylum; and resettlement in a third country that has agreed to take them. Given the nature of most refugee flows and of global conditions, the first two solutions have rarely been achieved. Voluntary repatriation has been unlikely when refugees are unwilling to reexperience the persecution that caused their flight originally. Moreover, asylum countries, which are usually contiguous to the country of origin, are often too poor and unstable themselves to absorb a large new population. And given the reluctance on the part of wealthier, more stable states to absorb poor and racially or culturally divergent masses, even resettlement is becoming less viable an option.3

All three of these obstacles have, until recently, been reflected in the Palestinian refugee crisis. Comprehensive repatriation, although desired by the Palestinians, was impossible while the ongoing "cause" of their flight, the fact that Israel existed on the land that was considered to be Palestine and refused to recognize Palestinians as a distinct people, continued. Moreover, the neighboring countries of the Palestinians' asylum were either too poor (Jordan), too unstable (Lebanon), or too anxious to use the refugees as political pawns in a long--term regional conflict (Syria). Although the Palestinians were not so culturally divergent from the peoples of the wealthier, more stable Arab states (Kuwait and Saudia Arabia, for example), these countries also followed the "pawn strategy," refusing to absorb the refugees because, as they refused to recognize the reality of Israel, they insisted that full repatriation--as the sequel to Israel's destruction--was the only possible resolution.4 Yet even as early as 1950, the U.N. General Assembly was recommending that either "repatriation or resettlement" be employed as a means of absorbing Palestinian refugees "into the economic life of the Near East."5

The Madrid and Oslo frameworks have altered all these barriers, because Israel's right to exist has now been acknowledged by all the participants, including the Palestine National Council, and Israel has likewise acknowledged the Palestinians to be a people. Therefore, while no one of the three durable solutions is viable or realistic in itself, it is possible to devise a strategy that uses all three in as balanced a manner as is feasible and fair. To paraphrase the late U.N. Secretary-General Dag Hammarskjold, such a strategy would treat the Palestinian refugee question not as a regional liability but as a net, and mutual, regional asset.6 Each party to the Arab-Israeli conflict, whether it be Israel, the Palestinians, the neighboring asylum countries, or the wider group of Middle Eastern states, will lose a little and gain a little more, which can add up to a regional boon in economic development and political maturity.

The plan consists of four structural components:

  • Absorption Targets: Each of the Middle Eastern parties participating in the final peace treaty negotiations--which will include Israel, the Palestinian Authority, Jordan, Egypt, and, it is hoped, Syria, Lebanon, and other Arab states, as well as any Western states that offer to participate, will absorb an optimal ("target") number of refugee families that will not be demographically, politically, or economically disruptive to it or to neighboring states.7 This caveat is particularly important in the West Bank and Gaza, the stability of which would be undermined by an overly rapid flood of immigrants. The refugees will be absorbed on a gradual basis over a seven--year period commencing after the final peace treaty is adopted, which is supposed to be no later than May 1999. (Specific target figures are proposed and explained in the next section and in table 4.1.) During this necessary transitional period, in which the refugees will move in gradual waves rather than in one large-scale rush, housing, jobs, and infrastructure can be readied and disorder avoided.

    After the seven-year period is over, population changes will occur naturally, within the standard of "normalcy" that the peace settlement strives for. In other words, no attempt will be made to destabilize a neighboring state by drastically altering one's own population, nor to attack the legitimacy of a neighbor's immigration or other demographic policy, especially given that both Israelis and Palestinians will continue to conceive of their territories as places of refuge for their respective peoples.8

  • Choice, Compensation, and Palestinian Passports: All refugees will be offered a fully informed, written choice of available residential and compensation options, including absorption in a state in the region, return to the Palestinian territory (regardless of its legal status) in the West Bank and Gaza, or, if qualified (according to criteria to be described), return to their ancestral home in Israel. Each family will, in writing, rank its residential preferences. In accordance with international law norms, no one will be forced to reside anywhere against her will.9 As Dag Hammarskjold noted in 1959: "No reintegration would be satisfactory, or even possible, were it to be brought about by forcing people into their new positions against their will. It must be freely accepted, if it is to yield lasting results in the form of economic and political stability."10 In addition to receipt of compensation (either in the form of a "reintegration allowance" or real property, as will be outlined) for those who are eligible but who do not return to Israel, all Palestinians, no matter where they reside, will be offered a Palestinian passport that will declare their Palestinian nationality and enable them to visit and/or work in the West Bank and Gaza if they choose. (Employing Palestinians with specialized job skills living in Israel and Jordan, states contiguous to the West Bank and Gaza, may be needed and probably preferred over the option of importing non--Palestinian specialists.) This is consistent with the 1988 Independence Declaration of the Palestine National Council, meeting in Algiers, which called Palestine the state of the Palestinians, "wherever they may be."11 In other words, every Palestinian will be able to consider the new Palestinian entity, no matter what its final legal status, and no matter where she and her family reside, as her home. Such a national passport "would express for every holder the emotional and symbolic bond that unites the Palestinian people."12

  • Citizenship and Rehabilitation: In addition to Palestinian passports, the refugees will be offered citizenship and full protection of their human rights in each of the absorption states, including Israel, to which they go. Thus, anyone who does not become absorbed in the West Bank or Gaza will be eligible for dual nationality (or dual citizenship, if the territories become an independent sovereign state), both as Palestinians and as citizens of their country of residence.13 The value of possessing a state's citizenship was amply demonstrated during the Persian Gulf War, in the contrasting treatment of the Palestinian citizens of Jordan and the expendable and expellable Palestinian workers of Kuwait.

    The resettled refugees also will receive rehabilitative services, including health care, education, and job training, in order to encourage their full social, political, and economic integration. Given that Palestinian refugees have, for three generations, refused absorption in most of the places they have resided, this support will play a crucial role in the process of transition to true citizenship. The rehabilitation services will be supported by development funds awarded to the countries on the basis of their willingness to absorb optimal target populations and administered with the assistance of the respective specializing U.N. agency and relevant nongovernmental relief organizations.

  • Temporary Decision - Making Bodies: In order to facilitate the process of deciding on target numbers, residential selection options, and compensation awards--and to ensure that such selections and awards are made fairly--four new bodies will be established: a joint population commission, a compensation tribunal, a repatriation committee, and a repatriation tribunal for appeal of the committee's decisions. (See figure 4.1.) When all of the decisions, selections, awards, and appeals are finalized, which may take about a decade, these institutions will be phased out. Claims to property or compensation will also be extinguished, so that closure on the refugee issue can be achieved.

Figure 4.1 Decision-making Bodies

Target Populations
The main feature of the proposal is an adjustment in the demographic distribution of Palestinian refugees in the region. The recommended "target figures" are meant as approximations of optimal conditions and not as strict quotas in the sense of either a floor or a ceiling. Yet they are stated as specific numbers in order to facilitate planning and resource allocation.

Perhaps the best way to explain and illustrate the plan's "target absorption" aspects is graphically. The left side of table 4.1 repeats from table 2.1 (found in chapter 2) the estimated current population of Palestinians by country or territory and the most recent figures for those still residing in UNRWA camps, which are identified be-- cause they represent the top priority for resettlement. These consti-- tute the "from" side of the proposal. The right side of table 4.1 corresponds to the "to" side. It presents optimal population figures for the year 2005, approximately seven years from the date of the permanent peace agreement. Included in the far right--hand column are approximations of the percentage of target Palestinians vis--a--vis the country's or territory's total (Palestinian refugee and non--Palestinian refugee) population.

  "From" "To"

Estimated Total Current Population [a]

Total in UNRWA Camps, 1996 [b] Proposed Targets for Year 2005 Proposed Percentage Palestinians to Total Population [b]
West Bank


133,886 2,400,000


Gaza 880,000 389,035







Lebanon 372,700 186,006 75,000 1.8%







(family reunification)

other Mideast states 446,600


965,000 --
non-Mideast states







8,265,000 [c]

[a]These columns identical to columns I and III in Table 2.1 (Source: UNRWA General Information Sheet, January 1996).

[b] BASIS: Proposed Targets for 2005 as percentage of projected total populations for 2005 of 5,000,000 (Jordan); 4,200,000 (Leabnon); 18,400,00 (Syria) and 5,600,000 (Israel). Percentages for West Bank and Gaza assume a small percentage of settlers will decide to stay.

[c] SOURCE: US Bureau of Census projection for year 2005. See Don Peretz, Palestinians, Refugees and the Middle East Peace Process (Washington DC: United States Institute of Peace Press, 1993), p.16.

Working from a projected total worldwide Palestinian population of 8,265,000 for the year 2005, each proposed target figure in table 4.1 is based on the following assumptions:14

West Bank
The target population is 2,400,000 Palestinians. This target doubles the current population of 1,200,000, which is enough to cover natural population growth, the return of the approximately 350,000 displaced persons from 1967, plus others (mainly from Gaza and Lebanon) who urgently need permanent homes.15 Assuming that housing starts and development keep pace in the period up to the year 2005, this target number should not overburden the economy or infrastructure.

Target population is 450,000 Palestinians. This figure cuts in half what would have been the projected natural growth for 2005, based on the current figure of 880,000. Although Gaza currently has one of the highest densities of anyplace in the world, most of it is confined to a small portion of the entire strip, which means that there is room for the 450,000 who would remain there to disperse more comfortably. Except for a small number of family reunification cases and 1967 displaced persons, no new refugees will be absorbed in Gaza during the seven-year transition period.

The target population is two million Palestinian refugees (as distinct from the long--term Palestinians of Jordan who are not refugees). This target is only 168,000 more than the current Palestinian population of 1,832,000 and less than the projected natural growth. Most Palestinians who now live in Jordan are already citizens; most, particularly those with thriving businesses and other means of earning a living, probably will stay. Perhaps only a small number of the 13 percent who are still in Jordan's refugee camps will seek to move elsewhere. Because Jordan has already supported a disproportionate share of refugee resettlement needs, it will not be expected to absorb additional refugees from other areas, except for a small number who may have family reunification needs.

The target population is 75,000 Palestinians, a figure much reduced from the 372,000 current figure. Although Lebanon has expressed the intention to expel all but a few thousand Palestinians currently residing there, doing so would be a violation of international law. Many of the refugees probably will prefer to resettle in Jordan, the West Bank, or northern Israel, where their families originally lived. The figure of 75,000, which is identical to the number proposed for repatriation to Israel, is essentially symbolic: if Israel can be persuaded to allow the return of 75,000 Palestinians, Lebanon can also be expected to grant citizenship to and permanently absorb that many refugees.

The target population is 400,000 Palestinians. Because most of the 352,000 Palestinians currently in Syria have been integrated into the society in all but formal citizenship, it is assumed that when they are granted that status, most will remain. The target is based on projected natural growth, plus the resettlement of some refugees from Lebanon, and the departure of a portion of the 96,447 who were still in camps as of 1996.

The target population is 1,075,000, which is composed of 1 million Palestinians who have been Israeli citizens since 1948 (based on projected natural growth from the 840,000 of the mid--1990s and on the assumption that few will seek to move to the West Bank) and another 75,000 Palestinians who will be permitted to return and be offered Israeli citizenship. (Because this target requires a more elaborate explanation, it will be described below after the final two target locations.) The offer of citizenship is important so as not to drive a wedge between the new returnees and those who remained after the 1948 war.

Other Middle Eastern States
The target population is 965,000 Palestinians. This target is based on half a million newly resettled Palestinians on top of the natural population growth from the 446,600 who currently reside in these other Arab states (some of whom may opt to move to the West Bank, Israel, or elsewhere). It is hoped that once Syria signs onto the peace process, other Arab states, particularly the sparsely populated Gulf countries such as Saudi Arabia, Iraq, and Kuwait, will also see it in their interest to participate, which will include a commitment to absorb refugees. (Of these latter states, the participation of Iraq is most in question.)

Non-Middle Eastern States
The target population is 900,000 Palestinians. This target doubles the current figure of 452,000, most of whom are in Western states such as the United States. It assumes that they are rather well integrated in these states and that only a small portion will seek to return to the Middle East. While Western states may prefer to contribute development and compensation funds to the peace process rather than absorb additional refugees, they may be willing to participate in a pledging conference like that undertaken in 1979 for the Indochinese boat people, which was more successful in locating absorption spots than even its sponsors had anticipated.16 The close to half a million Palestinians already living very productive lives in Western states should encourage these countries to agree to absorb more.

Further Assumptions Concerning Israel
Although there is currently much popular opposition in Israel to the idea that even a single Palestinian refugee should return to live within the Green Line, this sentiment can be overcome when it is presented as part of a reciprocal and regional framework for resolving the Palestinian refugee question and obtaining a full-scale peace. Israel's decision to accept Palestinian refugees could be described, instead, as the same process of "absorption" that the Arab states would concomitantly be undertaking, rather than as the oft-feared acknowledgment of a Palestinian "right" to "return." Moreover, because there will be a top limit of 75,000 returnees, Israel need not risk being overwhelmed by a massive influx of non-Jews. At least three additional reasons exist for this seemingly optimistic belief in a change of popular heart.

First, the target number of Palestinians in Israel, composed of existing citizens with but a small addition of newly absorbed former refugees, will be only slightly over one million in the year 2005, compared to the projected Israeli Jewish population at that time of over four million. (These figures compare to the combined 2005 target of just under three million Palestinians in the neighboring West Bank and Gaza, although the relative ratios may later change depending on birth and death rates, immigration, and out-migration.) Moreover, there is a historical precedent for Israel's agreement to absorb more Palestinians, namely, the 1949 Lausanne Conference described in chapter 1, during which Israel agreed to accept 100,000 Palestinian returnees. Given the small number of Jews living in Israel at that time, 100,000 was a much greater relative percentage then than 75,000 would be to Israel's Jewish population in the year 2005. Similarly, 100,000 was a greater percentage of the total Palestinian population of 1949 than 75,000 is of the projected 2005 population.17 Therefore, 75,000 additional Palestinian citizens will not unduly endanger Israel's demographic stability. Second, each Palestinian who seeks to return to--or "be absorbed by"--Israel will be required to meet certain criteria to be agreed upon in the final peace treaty, such as the following:

  • a. They must be able to prove original residence before 1948.

  • b. They must have close family members (a term that would have to be defined) who have been citizens of Israel since 1948.

  • c. 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.18 However, it would be a rebuttable presumption, to be resolved by an impartial tribunal set up under the final peace agreement.

A population subgroup 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 who retain personal memories of life before 1948.

Finally, it should be understood that Israeli agreement to this rather small and symbolic target of 75,000 persons is essential to facilitating the final peace agreement, because only when the Arab states see that Israel at least partially recognizes Palestinian claims for return (regardless of the terminology employed) will they themselves be willing to grant citizenship to and permanently absorb their own target numbers of refugees. It also will facilitate mutual acceptance of peace if Israel accepts full Palestinian self-determination. In other words, Israel would make a pragmatic decision to exchange partial, symbolic return of Palestinians and the establishment of a Palestinian state in the West Bank and Gaza for the Palestinian and Arab state acceptance of less than full Palestinian return and less than the complete territory they originally sought. As explained by Palestinian author Ziad Abu Zayyad, many Palestinians have come "to view their return as the acquisition of national independence and dignity, and not necessarily as a literal return."19 Israelis would do well to recognize their own advantage in such a compromise resolution and to express their commitment to truly being part of a regional absorption plan that will lead to greater regional stability.

Current Needs and Preferences
The traditional discourse concerning Palestinian refugees has tended to divide them into categories based on where they lived before 1948 and 1967, when they left, and why they left. Because there will never be full or even partial consensus on the "magic number," this kind of discourse can never lead to a negotiated settlement. Moreover, the "numbers game" is inherently retrospective and blame-ridden. As time passes, the categories, whether 1948 versus 1967, voluntary versus involuntary, blur and become harder to distinguish anyway. Therefore, the most pragmatic, not to mention humanitarian, method of resolving the refugee question is by focusing not on past causes but on current needs, by paying attention to the most vulnerable Palestinian populations, that is, those who most urgently need permanent solutions to their residential, legal, political, and social status.

Most observers would probably agree on a priority ranking that looks something like this, in descending order of urgency:

    1. Any refugees in temporary housing, such as those expelled from Libya in late 1995 who were living in tents on the Egyptian border;

    2. Given Lebanon's oft-stated intention to expel them, residents of the most vulnerable refugee camps in Lebanon, and those expelled from Kuwait in 1990 who were never able to be reabsorbed into Jordan;

    3. The residents of the most overcrowded and unsanitary refugee camps in Gaza;

    4. All other refugee camp residents in Jordan, Syria, Lebanon, the West Bank, and Gaza;

    5. All other refugees, including Palestinian residents of other Middle Eastern states, most of whom are stateless.

The actual list of need-based priorities would be set by a joint population commission (composed of representatives of the signatory parties to the final peace treaty, with a majority of seats held by Palestinians) that will function much like the joint commissions that have operated in other instances of bilateral population transfer.20 The commission will then supply each family with written and oral explanations of their available residential and compensation options. (See figure 4.2 as an example of available options.) To ensure that the decisions are made under conditions of informed and free consent, a set of commission-generated guidelines, such as those used or proposed in other contexts, will be followed as closely as practicable.21 The residential choices selected by the families in each need-based category of refugees would then be weighted according to their place on the list or resolved in an order corresponding to the relevant category's degree of urgency.

Figure 4.2 Refugee Options: An Example

The joint population commission will then collect applications containing each family's ranked list of preferred options and perform a matching service, facilitated by the use of a sophisticated computer program, which will generate for each family its highest ranked preference consistent with urgency of need and available positions, based on the target absorption figures for each residential choice.22 (If there are too many applicants for any particular target setting, the commission may decide to make its final selections through a lottery.) Depending on the outcome, the refugees will then make application to one of two other bodies, the repatriation committee or the compensation tribunal. (See figure 4.1 for a graphical layout of the relationship among the joint population commission, the committee and its appeal tribunal, and the compensation tribunal.)

Those Palestinians who are selected by the commission to repatriate to Israel will then submit documentation of their qualifications under the agreed-upon repatriation eligibility criteria to an independent repatriation committee (composed of representatives of each of the signatories to the peace treaty; in contrast to the joint population commission, a majority of seats on this committee will be held by Israelis). An impartial repatriation tribunal (composed of a majority of arbitrators from non-Middle Eastern states) will hear appeals of denials by the repatriation committee. Once a Palestinian family has been deemed eligible for repatriation, Israel would not restrict the actual place of residence within the country, except for a limited number of clearly demarcated security zones. Applications for repatriation will go through the committee and tribunal process until the target number (proposed here as 75,000) is achieved.

Because the overwhelming majority of original Palestinian properties either no longer exist as such or are occupied by second-, third-, or later-generation transferees, the repatriating refugees will need financial assistance in acquiring new homes and businesses. These funds would take the form of low-interest loans rather than grants, to distinguish them from payments of compensation to those who are not repatriating. Israelis will not be displaced from their own residences and properties by the returnees, except by consenting to a bona fide sale at contemporary market values. The same principle of nondisplacement except by bona fide sale will apply to Palestinians living in what before 1948 were Jewish-owned residences.

Those Palestinians who will not be repatriating will instead proceed to file for their compensation award from an impartial compensation tribunal (also composed of a majority of arbitrators from non-Middle Eastern states). Compensation awards will either be in the form of a cash "absorption" or "reintegration allowance"23 or title to real property, as described in the next section. The experiences of the Iran-United States Claims Tribunal and the United Nations Compensation Commission, which resolves claims arising from Iraq's invasion of Kuwait, provide valuable lessons in areas such as valuation of property, dispute settlement procedures and mass claims processing techniques.24

Due to the success of these precedents, it is recommended that compensation tribunals be composed not only of representatives of the affected parties but also of impartial arbiters from uninvolved countries. In addition, in order to effectuate closure, and because the function of these proposed bodies is more in the nature of settlement than of adjudication, no other court or tribunal should have de novo or further appellate review of the final decisions of the repatriation and compensation tribunals.

Because immigration is traditionally considered a subject of domestic and not international jurisdiction, each state that will be absorbing refugees will naturally want to enact its own legislation to regulate the process. But as already noted, citizenship carries with it a package of rights, not the least of which is the right to equality. Those Arab states that have not heretofore been in the forefront of democratization trends will have the opportunity to demonstrate such a commitment in the case of their newly naturalized Palestinian citizens. Palestinians will themselves probably want to promulgate Laws of Return and of Nationality for the West Bank and Gaza that, perhaps ironically, may in many respects replicate Israel's own such legislation.25 Just as Israel and Jordan promised, in their joint peace treaty, to repeal all their discriminatory legislation, the Palestinian Authority should avoid enacting laws that discriminate against non-Palestinians. (Chapter 5 elaborates on these nationality and human rights themes.)

Compensation and Funding Sources
As previously noted, claims for refugee compensation have rarely been sought because of the necessity of establishing causation. In a few instances of bilateral population transfers, such as the Greek-Bulgarian Agreement of 1919, the Lausanne Treaty of 1930 involving Greeks and Turks, and the New Delhi Accord of 1950 between Pakistan and India, mechanisms were established for valuation of and payment for evacuated properties, but without regard to fault.26 None of the five major agreements that have been adopted to date pursuant to the Oslo process: the September 1993 Declaration of Principles (Oslo I), the May 1994 Gaza-Jericho Agreement, the August 1994 Early Empowerment Agreement, the October 1994 Israeli-Jordanian peace treaty, and the September 1995 Interim Self-Rule Agreement (Oslo II), have even attempted to address the issue of causation in regard to refugee flows. A weak precedent for resolving the compensation question exists in the 1979 peace treaty between Egypt and Israel, which called for the establishment of a "claims commission for the mutual settlement of all financial claims." However, neither party has ever invoked this clause.27

Without giving up hope that they can be resolved, the political scientist and Middle East expert Don Peretz has delineated some of the more complex tasks concerning the issue of compensation:

  1. Identify property that formerly belonged to Palestinian refugees.

  2. Identify former owners.

  3. Determine the relationship between current property values and those of 1948.

  4. Determine which parties are responsible for payment.

  5. Decide what the source of funding for compensation will be.

  6. Decide what form compensation will take.

  7. Establish who will be responsible for distribution of compensation payments.

  8. Assess the status of Israeli counterclaims.

  9. Determine to what extent resolution of the compensation issue will balance off other political, territorial, or moral claims.28

Other complications include the difficulty of distinguishing privately from communally held Palestinian property (the undivided village musha) and confiscated land from land that was duly purchased; the destruction of many if not most of the original land registration records; the problem of property in Israel that has had many subsequent owners or that no longer exists in its original form; and the existence of subcategories of refugees who have not heretofore been the beneficiaries of high-profile advocacy.29 Unanswered political questions include whether previous distributions of development and rehabilitation sums, in the form of loans or payments to individuals and completed infrastructure projects, should be used to offset other compensation obligations.30 Moreover, should the government of Jordan be reimbursed for its costs in long supporting Palestinians outside of the UNRWA system? Many of these issues may not realistically ever become resolvable, due to overly complicated fact patterns, politically charged negotiating positions, the unavailability of funding sources, or the lack of exact legal standards.31

Nevertheless, work is already being done to identify technical problems such as the location of land registration records and to articulate the specific legal basis for reacquiring private property in the wide variety of locales within Israel and the future Palestine.32 Records from the Israeli Absentee Property office as well as UNRWA's family files should include some of the data relevant to compensation claims. The United Nations also holds the records used for property identification and evaluation by the Conciliation Commission, many of which came from the mandatory registry operated by the United Kingdom, as successor to the Ottoman land registry. The peace agreement must require that each of these relevant offices make its files available to potential claimants, who would be urged to act through a finite number of agents.33

Yet due to the difficulty in verifying literally hundreds of thousands of family claims, it is more realistic to offer a series of uniform payments that would be awarded to those claimants who fit into particular classifications, such as original owners of urban or rural property, perhaps subclassified by residential or commercial use, or by the amount of farmland originally owned.34 Claimant families would then only have to prove their membership in the particular class to be eligible under the respective formula.

Because the estimated value of total compensation due might be in the range of tens of billions of 1990 U.S. dollars, it is much beyond the capability of any one country such as Israel to pay.35 And that does not include the billions needed for new housing, infrastructural development, job production and training, and other forms of economic development and social rehabilitation.36 Realistically, given the minimal likelihood of ever resolving the causation question, compensation must be paid out of a combined pool created as part of the final peace settlement and contributed to on an international basis by Arab states, Western industrialized governments, international institutions, private benefactors, and Israel. Contributions by Arab states could be inversely linked to their willingness to absorb refugees or to savings from ensuing reductions in military budgets due to regional peace. Israel's contribution to the compensation pool could, appropriately, come from the "rents" it collected in the late 1940s and early 1950s from the Jewish users of "absentee" Arab property.37 Because it will be one of many contributors to a collective pool of funds, Israel will not be forced into admitting that its contribution constitutes "compensation" that it is under a legal obligation to pay.

In some cases, property exchanges can constitute a substitute for cash compensation. Just as many Israeli immigrants from Europe and Arab states were housed in Palestinian refugee homes in the late 1940s and early 1950s, newly resettling Palestinians can be housed in the homes of Jewish settlers who decide to leave the West Bank or Gaza to return to live in Israel, a number that could approach 100,000 persons.38 Often overlooked is the fact that during the 1948 war there were Jews living in the West Bank and Gaza Strip who fled to within Israel's borders, leaving behind property that then became the homes of Palestinians. Similar de facto "property transfers" have occurred in other contexts, such as between India and Pakistan after 1947.39 A final peace treaty between Israel and the Palestinians could transfer title to these evacuated settler homes to the joint population commission, which could then assign the titles to some of the resettling refugees, in lieu of cash compensation.

Although psychologically, the departing settlers may prefer to see their homes demolished, as was the practice when Israel withdrew from the Sinai, it is more sensible for the structures to be left intact so as to expedite the resettlement of Palestinians leaving refugee camps.40 Already by the end of 1995, some settlers, concerned about losing their investment in a depressed housing market, had begun to leave the West Bank and Gaza. "The market goes ahead of the politicians," as a real estate appraiser has put it pragmatically.41

Finally, while most of this chapter has discussed compensation to individual families for expropriated property, another form of compensation may, in the long run, serve a more important function: communal compensation to the Palestinian communities that will be developing or redeveloping both inside and outside of Palestine. Moreover, those refugees who have suffered the most_that is, those still living in the camps and those without meaningful sources of current income_tended to come originally from the poorest sectors of Palestinian society. Concomitantly, the refugees who are likely to benefit most from reparations for loss of property are those who were better off to begin with, having the largest landholdings, and for the most part, who managed to rebuild their post-1948 lives in the diaspora. Thus, the refugees who suffered most will benefit least from a compensation system solely tied to prior property ownership.

Given that the peace negotiations are envisioned as a forward-looking process, the parties should acknowledge that the foundation of refugee rehabilitation is more than merely restitution for past injuries. It is primarily about building hope for the future. Therefore, it would be advisable to maintain a realistic ceiling on the payment of private compensation claims so that greater sums in the form of collective reparations can be awarded to community projects, whether of an infrastructural, educational, or communal nature, thereby benefiting the refugees most in need of support.42

Enforcement and Extinguishment of Claims
Although the Palestinian refugee crisis has endured for almost three generations, it must eventually come to an end. Closure is necessary not only for the refugees but also for the Israelis, who will need assurance that a Palestinian will not someday show up on their children's or grandchildren's doorstep demanding title to the property and/or with a multimillion-dollar compensation claim. Therefore, a window for compensation claims should be left open for a specified period of time, two years after the final status treaty, perhaps, and then be permanently shut, except in extraordinary circumstances.43 Thereafter, all claims previously resolved by the compensation tribunal will be treated as res judicata, "settled by judgment." Although the analogy is not necessarily a propitious one, the U.S. Supreme Court has similarly applied the principle of extinguishment to the land claims of Native Americans.44

Lawyers, in their inherently irritating way, will naturally ask how compliance with all of these absorption targets, promises of citizenship, and other proposed procedures and guidelines can be enforced and guaranteed. After all, it is a fundamental principle of any legal system that rights without remedies for their deprivation are but illusory and meaningless.45 The answer, most likely, is that they cannot be formally enforced, at least not in an adjudicatory forum. After all, issues of immigration and citizenship are normally a matter of sovereign discretion. The only real guarantee of compliance is the adequacy of incentives to participate in the settlement plan itself, through the advantages that will come with regional peace and stability. But as chapter 5 demonstrates, in other contexts, nonbinding regional agreements can sometimes be more successful than binding regimes that states do not take seriously.

One such model is the Conference on Security and Cooperation in Europe (described more fully in the next chapter), which in the midst of the Cold War proved to have a well-utilized system of "enforcement" through periodic review meetings.46 Perhaps the final settlement agreement among Israel, the Palestinians, and their neighboring states should include a commitment to a similar series of periodic review meetings, during which compliance with absorption targets can be surveyed and, if necessary, numerically adjusted to fit economic and other conditions that will emerge over time. Amendments to the procedural elements of the settlement should be permitted, if they are found by mutual agreement to be necessary. Further sets of target populations may even need to be devised every five or more years. If the participants are assured that the plan is flexible and capable of adjusting to changing needs, while remaining fair, practical, and balanced, they will have the incentive to comply with it.

Donna E. Arzt is professor of law at Syracuse University and Associate Director of the school's Center for Global Law and Practice. She was the Project Director of the Council on Foreign Relations study group, "The Arab-Israeli Conflict: Demographic and Humanitarian Issues," and has published extensively in the area of human rights. Comments are welcomed.

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