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The Right of Return and Compensation

Workshop on the Issue of Compensation for Palestinian Refugees

By Dr. Yves Besson
former Director of UNRWA Operations (West Bank, Jerusalem (199O-92), and former Special Adviser to the Commissioner-General of UNRWA (1993-95)

University of Fribourg

Introducing such a sensitive topic at our meeting is not an easy task.Since Madrid and oslo, several books, studies and papers on the subjecthave been published by various circles - Israeli, Palestinian and others.For the most part, they are interesting not only because they restate thewell-known totally antagonistic Arab or Israeli positions (and they partly do that), but also because they sometimes make policyrecommendations or suggestions which, albeit cautious, indicatedirections or areas in which some mutually acceptable convergence is notpossible to imagine. Among all the papers and studies I have had the opportunity to read, I could mention those of the Israeli

International Institute for Applied Economic Policy Review, the Institute of Jerusalem Studies, the College of Law of Syracuse University or various Canadian official or academic papers. This list is far from exhaustive as I am certainly not aware of everything published on the subject.

My task today is not to present a summary or a synthesis of global reflexion on the subject. It is not my purpose and could not be done in half an hour. Nor am I going to try to list what could be acceptable and what not for the parties involved - it is up to them to discuss that. I would just like to think 'aloud' and examine the two notions included in the title: return and compensation. Both words have, in the course of time, acquired a kind of sacred, absolute meaning (what some parties in the RWG have called myths or taboos) and their implementation, some day, has constantly been seen by one of the parties as a sacred obligation while the other party has always considered that such an implementation would be abomination. These two words have set in motion a kind of infernal dialectic in which one side is adamant, involving the force of the law, to imprison the other, while the other inevitably sees in these two words, the acceptance of some kind of absolute historical guilt, historical responsibility bound to lead in the end to its own demise and destruction. That is why I suggest reviewing the situation and looking at what could be done with these two concepts in the search for a solution.

How they could be used to launch reflexion on what kind of basicprinciples they involve, which could guide a process, bring some new ideas on the refugee issue; a process in the process, so to say. I assume that we all know about UN Resolution 194, the history of subsequent UN resolutions and the International Law arguments pertaining to the subject. I will not elaborate once more on historical or legal aspects because at this early stage there is no point in revisiting a very well-known historical debate or exchanging legal arguments; everybody knows that in law almost every point of view can be defended since most lawyers have two hands !

The Return
Palestinians consider the refugee issue as the heart of their conflict with Israel, the centre of their collective memory, the focal point of their modern political life and the core of their present identity as a people. The nakba of 1948-49 has been integrated in the perception they have of themselves as a people of the region and as a collective member of the human community. In fact, every Palestinian living today outside the boundaries of what was former Palestine, since he is prevented from settling down in this land to which he deeply feels that he belongs, considers himself as a refugee. This might not correspond to the different subtle legal definitions of a refugee but it is a fact and we have to concentrate on facts, and how they are perceived. The refugee problem is seen by all the Palestinians as the very essence of the conflict and any solution which does not directly address it is therefore inconceivable. The RWG delegation which visited refugee camps in Lebanon in 1994 experienced this point very vividly.

On the other side, it has been equally as inconceivable for the Israelis, since the beginning, to agree to the return of Palestinians to their land, even in the context of a peaceful settlement. To accept this concept of return in favour of the Palestinians, as they understand it, would be in total contradiction with the Zionist ideology, would undermine the Jewish character of the State and would completely oppose the essential raison d'etre of the Zionist project and its implementation in the course of a long and traumatic history. The Israeli view is only to contribute possibly to permanently settling the refugees by integrating them in the host Arab countries. As for compensation, Israel has declared itself ready to envisage this as long as Jews from Arab countries are also compensated for their properties and losses.

In the peace process started in Madrid and Oslo, the refugee issue (one of the three final status issues slated for bilateral negotiations) is the one which received the least attention in terms of strategic vision and study. In the Israeli opinion it is apparently met with almost total indifference. Could it be a false indifference ? Absolute sacralization of the issue on the Palestinian side is met with totally unconcerned indifference on the Israeli side: which could well confirm that this issue is at the core of the problem.

So where do we go from here?
Plainly speaking, I would like to state that there will be no hope for a solution, given the fact that the positions are so antagonistic, unless the Palestinians somehow transcend this central reference point in the perception they have of their national memory and identity, and unless the Israelis accept revisiting their past (as some Israeli historians have been doing over the last 10 - 15 years). In so doing, the Israelis might accept some sort of responsibility for what happened in 1948-49, and consequently accept opening the files on the subject without preconditions and without restarting the historical debate on who did what. It is not impossible to imagine that, with the two positions being so rigidly anchored in a certain vision of a tragic past, and with both being, in a way, prisoners of the same static perception of their history, memory and a completely stiffened discourse, bridges could be built towards progressively dismantling both perceptions.

This is neither the time nor the place to go into detail about future negotiations on the subject. However, what we could attempt to do is to try to imagine in very general terms what might be a framework for negotiations and how and from where to start. I think it should start with some brainstorming on the concept of return. But before discussing this concept, I would like to signal one immediate danger which could imperil and even destroy the whole process.

We are familiar with the constantly reaffirmed Israeli position of preferring bilateral negotiations. The signature of peace agreements with Egypt, then with Jordan illustrates this preference. Although, in some instances, this bilateral approach has produced results, even with the Palestinians, such an approach to the refugee issue would, in my opinion, be very counterproductive. Indeed, trying to solve this issue by dealing separately with each host country, negotiating according to its own national interest, would deprive the Palestinians of the possibility of bringing to the negotiation table what, as we have seen, is at the core of their perception of the conflict.

The risk does exist that, as is often the case in such situations, implementation of the policy thus adopted bilaterally by a host country may well be set in motion before any negotiations on governing principles, the latter depending then on the concretization of the former. In fact, the present weakness of the Palestinian side means that this risk is not inconceivable. This would result in a situation where the key object of negotiation for the Palestinians could be preempted, bypassed by a bilateral approach between Israel and specific host countries who would completely dilute the question.

The Palestinian refugee question is no doubt a global regional issue but for reasons easy to understand it has to be discussed first between the Israelis and the Palestinians. Some satisfaction and guarantees must be given to the Palestinian side while some reassurance and guarantees should be agreed upon in favour of the Israeli side. These guarantees must be defined in common by the two parties and they could be found by first working together towards the definition of a content for the concept of return. This common task of discussing the concept of return together and defining a mutually acceptable political meaning for the word would allow Israel to demonstrate some understanding and to accept the view that what happened to the Palestinians in 1948-49 represented a terribly traumatic experience which first requires recognition. The problem has no doubt multiple legal, social and economic aspects but they can be left to the experts. What is of primary importance, as a prerequisite, seems to me to be the recognition of the very high sensitivity to injustice which exists among Arabs in general and Palestinians in particular, and consequently some initial recognition of the importance of the emotional-psychological dimension of the Palestinian refugee of 1948. Constant Palestinian insistence on UN Resolution 194 is a good indication of this importance.

As was the case for the Oslo document, the diplomatic tool of a Declaration of Principles on the refugee issue (Shlomo Gazit's idea) could be useful. It could be used to draw a framework, guidelines, successive steps along which the negotiations would develop. It would be mainly useful to set up a mutually acceptable definition of the two concepts of return and compensation , thus 'disentangling' them from their highly symbolic and rigid interpretation and desacralizing in a way the various mutually exclusive interpretations and finalities which have been given to them by both parties during the last fifty years. How to interpret the notion of return ? There can be physical return, lega return, political return, social return, etc.

Such a DOP on the refugee issue would provide some satisfaction to the Palestinians' long quest for recognition of the injustice done to them in 1948 and reassure Israel that the Jewish character of the State will not be jeopardized. Later on it would also permit discussion of the many technical aspects of the problem under the umbrella of a set of principles agreed upon bilaterally, while technical solutions would necessitate the involvement of several other parties, host countries and the international community.

It seems to me that what has been desperately lacking in the work of the RWG since 1992 is precisely such an umbrella of agreed semantic-political principles (i.e. what means what) and this very absence has made the humanitarian or economic development efforts of the Group sometimes look pathetically inappropriate or ineffective. I will not give a list of all the technical aspects I mentioned before as I presume we can imagine them perfectly; some of them have already been dealt with in various scholarly works. Humanitarian efforts in the field of family reunification, for example, in the absence precisely of any agreed set of political principles, have only produced meagre results compared to the size of the refugee problem and in view of the considerable investment in time and money by the international community.

I would like to raise one final point, given my time limit.
While the Palestinians have constantly approached the issue as (as Elia Zureik has noted) a communitarian one, considering first and foremost the identity of the group to qualify as Palestinian nationals (and such a policy is necessary for nation and state building as the Zionist project has shown!), the Israeli side has strictly adhered to the political liberalism model concerning the Palestinians, that is, as it was done in the RWG, examining individual rights as opposed to collective ones (see Family Reunification). We are all familiar with the legal arguments and justification of such a policy and we know that it mainly aims at safeguarding the sovereignty of the State. Nevertheless, it does not seem unthinkable to me that, in drafting a DOP on the refugee issue, Israel might accept making some room for a communitarian approach, on the model of its own Law of Return, while the Palestinians, in reciprocity, would accept that the implementation of this DOP be done according to the liberal individualist model. I am aware that the path would be very narrow! Such a procedure could be a way to overcome or bypass the so-called myths and taboos.

Evidently, the treatment of this concept will strongly depend on the solutions agreed upon concerning the notion of return. But the technicalities surrounding this question could enjoy some margin of manoeuvre, some margin of independence, especially because they will involve the host countries and the international community for obvious financial reasons. But I think there should be, precisely because of the existence of a certain margin of manoeuvre, no exclusivity on the subject regarding for instance discussing losses encountered by the Jews when they left some Arab countries to go to Israel in the Fifties. Even if this notion of 'exchange' of populations defended for so long by Israel on the question of Palestinian refugees does not sustain, in my opinion, a thorough analysis and cannot be legally defended, it has a psychological-political dimension which the Palestinians and the Arab countries cannot ignore. And, finally, for the Palestinians this question of compensation for the Jews is a question to be dealt with between Israel and the Arab countries involved, not themselves!

The words 'myths and taboos' were seen and heard during the RWG's activity to qualify the concepts of return and compensation. Rigid and quasi-sacred reference to them on one side and the equally rigid and sacred rejection by the other should be avoided. Myths are useful because they help perceiving and describing a certain reality, maybe an imagined one but in this instance the perception is much more relevant for our purpose than reality itself, at least at the beginning of a process which should first lead the two parties to accept the perception of the other in order to be able together, further down the road, to amend the reality and perhaps build a new common one. As for taboos, destroying them unilaterally and abruptly means applying moral violence which can only fuel more physical violence and desperation. Taboos are best described, accepted and integrated when they take the long and twisting road of thefairytale. At the end of the road, the two parties will have to recognizethat they have both nourished imagined representations for too long--thepast for one of them and the future for the other.

I hope I have presented a few useful remarks on this subject. Thank you.

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