Compensation for Palestinian Refugees: Initial Comments

Source: Workshop papers.

by John Quigley

Workshop on the Issue of Compensation for Palestinian Refugees International Development Research Centre, Palestinian Refugee Research Network

Ottawa, July 14-15, 1999

Right of repatriation/compensation as an individual right
The rights of displaced persons are rights adhering to them as individuals. The individual character of these rights is found in three bodies of law: the law relating to nationality; the law of human rights; humanitarian law. Each displaced person is entitled to decide individually about being repatriated, and each is entitled to decide individually about acceptance of compensation.

The right of repatriation/compensation, being an individual right, cannot be overridden by inter-governmental agreement. Neither Israel nor Palestine, nor the two in concert, have the legal capacity to extinguish claims of individuals. If a Palestine-Israel agreement makes inadequate provision for repatriation and compensation, the claims of individuals will survive.

A recent example of the survival of individual rights involves the Sudeten Germans, several million of whom were expelled from Czechoslovakia in 1945-46. In 1997 by a joint declaration of Germany and the Czech Republic, Germany expressed regret for occupying Czech territory in 1938, and the Czech Republic expressed regret for expelling the Sudeten Germans. The declaration indicated that Germany would not pursue claims on behalf of the Sudeten Germans, and that Germany would support the Czech application for membership in the European Union. In 1999, however, the matter was raised in the European Parliament, which adopted a resolution calling on the Czech Republic to repeal the expulsion decrees of 1945-46 as a condition of admission to European Union. The European Parliament viewed the issue as one of individual rights. Sudeten German organizations indicated they intend to take the matter to the U.N. Human Rights Commission. While Germany and the Czech Republic may have resolved the issue in their bilateral relations, they did not resolve it as a matter of individual rights.

The rights of property owners as individual rights in the context of a mass dispossession have been affirmed by the European Court of Human Rights in the case of a Greek Cypriot woman denied access to her real property in northern Cyprus (case of Mrs. Loizidou). Turkey responded that the matter of property rights in northern Cyprus was being handled at the political level, and that court rulings on the rights of individual owners might interfere with that process. The Court said in this regard, "Nor can the fact that property rights were the subject of intercommunal talks involving both communities in Cyprus provide a justification for this situation under the Convention." (Judgment of 18 December 1996, Loizidou v. Turkey (merits) , para. 64.) The European Court of Human Rights said that Turkey was violating the woman's enjoyment of her rights in property by denying her access to the land she owned and awarded her compensation.

Thus, in the Court's view, individual rights in property subsist, despite dispositions in inter-governmental agreements.

Terminology
In reviewing the legal literature, I find confusion caused by the fact that the question of the 1948 Palestinians is often addressed on the basis of the definition of refugee found in the U.N. convention on refugees. The Palestinians displaced in 1948 do not fit that definition, since they seek repatriation to their home areas rather than asylum abroad. Nonetheless, some writers try to fit the Palestinians into the convention definition, or they conclude that certain ones among them (e.g., persons who have committed acts of violence) may not qualify. Unfortunately, the U.N. documents employ "refugee" for the 1948 Palestinians. However, in my view it facilitates proper legal analysis to refer to them as displaced persons, rather than as refugees.

Nationality of the dispossessed
Non-possession of the nationality of the state to which repatriation of persons is sought, and in which repossession of property is sought, does not defeat the right of repatriation/repossession. Ukraine repatriated the Tatars to Crimea, even though Crimea had been part of the Russian Federation at the time of the dispossession in 1944 and thus had held the nationality of the Russian Federation. (Crimea was transferred to Ukraine in 1953.) Ukraine repatriated, despite the fact that the Tatars had never held Ukraine nationality.

Options available to a displaced person
For real property of displaced Palestinians, three options are open to an owner: (1) to repossess and inhabit; (b) to repossess and dispose; (c) to take compensation. Displaced persons must be repatriated when hostilities have ceased to the point that repatriation may be safely accomplished. Repatriation (and repossession of real property) is a right found in customary international law for persons displaced during a military conflict.

State practice on the issue includes instances in which U.N. bodies have called for repatriation, and others in which repatriation has been effected. Recent examples include: Cambodians repatriated under the agreement ending civil conflict; Abkhazia (Security Council and five-nation contact group calling for repatriation of displaced Georgians); Hutus repatriated to Rwanda after civil war; Tatars repatriated to Crimea after 1944 expulsion; Muslims, Croats, and Serbs repatriated to Bosnia under 1995 Dayton agreement; Serbs repatriated to Croatia; Kosovars repatriated to Kosovo under NATO auspices, and as called for by U.N. Security Council; Guatemalans repatriated to Guatemala after civil war; right of repatriation/repossession of Greek Cypriots in northern Cyprus (European Court of Human Rights decision).

U.N. General Assembly Resolution 194
Resolution 194 provides an appropriate standard of law to be used in regard to repatriation and compensation of the displaced Palestinians, for two reasons. First, it reflects customary international. It stands as a statement of the international community regarding the requirements of customary law in relation to the Palestinians displaced from their homes. Second, in Resolution 242, the Security Council in effect incorporated Resolution 194 by calling for a "just settlement of the refugee question." For the United Nations, Resolution 194 was, and remains, the key element in settling that question. Resolution 194 has not been repudiated by the U.N. General Assembly, either directly or indirectly. In particular, efforts by the General Assembly to encourage states of refuge to facilitate assimilation of displaced Palestinians did not amount to a renunciation of the principles expressed in Resolution 194.

Compensable losses and level of compensation
Without attempting to be comprehensive, I would note the following. Compensation for real property is due at the 1948 value plus interest for those choosing not to repossess. The international law standard is compensation at full value. Compensation is due, as recognized by the European Court of Human Rights in the Loizidou case, for denial of access to property. The Court required compensation not only for financial loss resulting from a denial of access, but also non-pecuniary damage for what it termed "the anguish and feelings of helplessness and frustration which the applicant must have experienced over the years in not being able to use her property as she saw fit." (Judgment of 28 July 1998, Loizidou v. Turkey (Article 50) , para. 39.) The Court awarded damages on this ground to Mrs. Loizidou, even though the real property in question had not been used as her abode.

Compensation is due for personal property at 1948 value plus interest. The international law standard is compensation at full value. For business enterprises, the standard is value as an ongoing business.

Compensation is also due for exclusion from one's home area, regardless of whether a person owned real property, and regardless of whether the person elects to be repatriated. Compensation is due for any deprivation of access to financial resources, for example, funds Israel withheld from bank accounts of Palestinians before the banks remitted funds to account holders.