Return, Resettlement, Repatriation:
The Future of Palestinian Refugees in the Peace Negotiations
Source: FOFOGNET Digest, 22 April 1996
by Salim Tamari, Institute
of Jerusalem Studies
Final Status Strategic Studies
Institute for Palestine Studies
Beirut, Washington, and Jerusalem
February 1996
IV. Problems of Definition: What is a Refugee Family?
Problems of 'definition' occupied a whole intersessional
of the RWG, which met in Tunis in February 1994. At
the heart of the problem was the issue of maximalist
definition of the family (Palestinian) and a minimalist
definition (Israeli, limiting it to the spouse and
minor children). A number of Palestinian and Israeli
human rights groups in Jerusalem put forth a memorandum
to the refugee intersessional which posed the implications
of this issue. Their findings were summarized in a
position paper drafted by Adv. Eliahu Abram from the
Israeli Association for Civil The Rights. The most
salient features of this memorandum:
- The issue of family reunification is broader than
the issue of refugees and subsumes it. It rests,
among other things, on the right of married people
to reunite with their non-resident spouses.
- The most disruptive feature of Israeli policies
on dispersed families is that they do not recognize,
in principle, the right of spouses and their children
to reunite with their parents. Family members who
leave temporarily to work or study, are regularly
denied residency for overstaying their exit permits.
- The Israelis authorities have used family reunification
as a bargaining instrument in the negotiations over
refugees, in the transitional period. I should add
here that this is the only issue on which there
was progress in the bilateral negotiations with
the Israelis in the RWG.
- Family reunification is a principled right recognized
by a number of international conventions (article
74 of the Geneva Convention, and the Helsinki Final
Act of 1974). It is also incorporated in all emigration
laws of most states. It should not be subject to
political bargaining.
- The right of immediate family members to family
reunification should not be subject to quota restrictions.
Questions of Definition
The document called for the recognition of two categories
of family members for purposes of family reunification:
(a) the immediate family members of a legal resident;
and (b) other members of the extended family who either
lack a nuclear family of their own or are otherwise
dependent on the resident and his immediate family.
Abram's memorandum makes a distinction between the
two categories as far as policies are concerned. While
both categories are entitled to apply for family reunification,
he stated 'immediate family members are entitled by
their objective status alone to family reunification.
The decision in their case need not be subject to
discretionary procedures; it should be quick and clear-cut,
giving effect to a prima facie right to live together
and subject only to such requirements for documentary
proof of genuine family relationships as are common
to the immigration regulations of democratic countries.'
One should take into account also the specific Arab
and Islamic environment in which the dispersal of
Palestinian refugees took place which is typified
by the prevalence of shared residence by joint families
and a unified extended household economy.
The report concludes with the irony that Palestinian
expatriates returning to their homeland have less
rights than foreign emigrants making applications
for citizenship in a new country of choice:
"While the Palestinian residents of the occupied
territories have not acquired an independent citizenship,
neither are they alien residents with the option to
return to a previous homeland or domicile in order
to be reunited there with dependent parents or other
relatives. The anomalous position of Palestinians
under prolonged occupation, disrupting at times the
natural development of the family, should not be ignored.
Their right to be unified with family members should
approximate state practice with respect to citizens."
Procedural Reform of Family Reunification
Schemes
The Abrams report made specific procedural proposals
for reforming the FR system in the transitional period.
Those included:
(a) All those immediate or dependent family members
currently present in the territories should be allowed
to apply for family reunification while present, and
be entitled to positive and rapid processing of their
applications without being required to depart.
The French Emissary reported that Israel has undertaken
to assure "regularization for Palestinians already
present in the territories". This commitment
has not yet been put into effect.
In fact, current policy flatly contradicts this
commitment. Immediate family members who entered the
territories after August 1992 are denied the opportunity
to apply for family reunification while remaining
in the territories, and Israeli officials continue
to threaten them with expulsion.
(b) Immediate family members should be allowed to
visit the territories and to apply for family reunification
during the duration of their visits. They should not
be required to leave pending an answer to their application.
Except during the summer months, Israel currently
denies most applications of immediate family members
for visitor permits. Under present policy, family
reunification cannot be requested during the visit.
The French Emissary has reported Israel's commitment
to process family reunification applications within
three months. Three months is the normal duration
of the visitor's permit. It should be possible, therefore,
for the visiting family member to apply for reunification
upon arrival and to receive an answer to the application
prior to the expiration of the visitor's permit. In
any case, there is no rational reason to refuse an
extension of the visitor's permit until a final answer
is given concerning family reunification.
(c) Steps should be taken to enable a legal resident
of the territories temporarily residing abroad with
his family to apply, while abroad, for family reunification.
Furthermore, it should be made clear that the resident's
temporary abode abroad will not be interpreted as
evidence of intent to transfer his domicile away from
the territories and will not prejudice the family
reunification request in any way. Although the French
Emissary's report indicates, apparently, that Israeli
authorities already announced their intention to adopt
this measure, the report's language is somewhat opaque
("files may be transmitted by a person not residing
in the Territories provided his guarantor has resident
status"). No known steps have been taken to inform
Palestinians in the territories or abroad how they
can apply from abroad.
(d) Full and specific reasons must be provided by
the authorities for rejecting a family reunification
application. Giving notice of the grounds of rejection
to the applicant (as distinguished from explanations
to the Palestinian Authorities) fulfils a well-established
principle of natural justice. Only in this way can
the applicant hope to challenge the deprivation of
his or her right to family unity or to rebut the factual
assumptions on which the denial is based.
(e) A final procedural point concerns bureaucratic
and political sensitivities. It is not essential that
every person entitled to family reunification be granted
immediate permanent resident status. The underlying
humanitarian problem - that family members need to
live together - can be solved by granting any form
of renewable temporary resident status during the
interim period. Such an approach may allay the reluctance
to accept change and the fear of prejudicing final
settlements.
Policy Implications for Refugee Families
Although the above analysis of procedures impacting
family reunification schemes in the RWG are meant
to deal with the exiting situation concerning dismembered
families, its policy implications for refugee families
in the context of the current negotiations on displaced
persons are immense.
These implications were underscored by the February
1994 intersessional meeting of the RWG on family rights
and family reunification, were--despite Israeli opposition--
a consensus among the expert group of jurists and
social scientist emerged on the relationship between
the conception of the changing roles of the Palestinian
family and its rights under Israeli rule. The group
of social scientists agreed on the following issues:
- That the decline of the extended family as a residential
unit does not entail the Palestinian family has
lost its extended ('joint') features.
- That the rate of dependency of children on their
parents in Palestinian and Arab families extends
beyond the legal definition of maturation, and should
be taken into account when applications for family
reunification is made.
- That the policy of wilfully separation of families
by creating bureaucratic obstacles to unification
of spouses and their children seriously undermines
the social fabric of Palestinian society.
Any agreement in principle over the wider role of
kinship networks in the functioning and survival of
Palestinian society is bound to involve larger number
of individuals to join their dismembered family members.
A nucleated definition of the family, on the other
hand, would focus the area of reunification over the
spouse and younger children of dispersed families.
It was this 'European' notion of the family that Israel
has been advocating--though purely for purposes of
setting a low ceiling on the admission of displaced
persons and refugees. Once the realities of Arab society
began to impose themselves over the terms of the debate,
the Israeli reverted by restricting the implementation
of the agreed upon quota, while admitting in effect
that the Palestinian family is indeed not exactly
equivalent to European nuclear prototypes.
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