BADIL 2003 – 2004 Expert Forum for the

Promotion of a Rights-Based Approach to the Palestinian Refugee Question

  Summary of Proceedings

Rights-Based Durable Solutions for Palestinian Refugees:

Ways Forward

Hosted by

the Emil Touma Institute for Palestinian and Israeli Studies
and the Association for the Defense of the Rights of the Internally Displaced (ADRID)

Haifa, 1 - 4July 2004

1. Stocktaking and Legal Analysis (Session One, 02-07-04)

2. Models of Transitional Justice and Participatory Process – Tools for Moving Forward in the Case of Palestine-Israel? (Session Two, 02-07-04)

3. Civil Society Initiatives, Experiences and Perspectives (Session Three, 03-07-04)

4. Lessons Learned and Ways Forward: Summary and Recommendations (Session Four, 03-07-04)

5. List of Participants

- Copies of working papers submitted to the seminar are available at BADIL's Website

- This seminar was sponsored by: ICCO and Stichting Vluchteling, Netherlands.

Introduction and presentation of legal analysis: Two working papers in progress and one discussion outline were presented as following:

1.1. ‘A Rights-based Approach to Durable Solutions for Palestinian Refugees and Displaced, Summary of Preliminary Findings: BADIL Expert Forum’ was presented by Terry Rempel, BADIL, in order to introduce participants to the rational and preliminary outcomes of this process. The idea for this Forum developed against the background of preceding international seminars and track-two diplomacy dominated by a top-down approach, the exclusion of the right of return, and a view of refugee-rights advocates as ‘spoilers.’ The BADIL Forum aims to compile expertise and network among experts, in order to strengthen rights-based debate and strategies among civil society actors, academia and policy makers.

Three expert seminars were conducted earlier: International Law in Peacemaking and Crafting Durable Solutions for Palestinian Refugees (Ghent, May 2003); Housing and Property Restitution in Durable Solutions for Palestinian Refugees (Geneva, October 2003); and, Closing the Gaps: From Protection to Durable Solutions for Palestinian Refugees (Cairo, March 2004). This fourth and final seminar aims to ‘bring home’ for debate some of the key issues identified by the earlier seminars and by a review 56 years of efforts at conflict resolution:

(1)     There is general recognition that international should matter, irrespective of whether an eventual peace agreement is externally imposed or internally crafted. The question is how to make international law matter in the case of Palestine-Israel in general, and in particular of Palestinian refugees.

(2)     There is general consensus that civil society can play an important role in generating political will for rights-based solutions and a more democratic, bottom-up peace process.

(3)     A broader and inclusive message was identified as a requirement for effective civil society advocacy for rights-based solutions. Such message must include resolution of the meta-conflict (the conflict over what the conflict is about), the legal narrative, and a historical perspective which extends beyond the 1967 occupation and incorporates the 1948 Nakba and the Palestinian refugee issue.

(4)      There is general consensus that rights-based efforts must include the excluded, i.e. (internally displaced ) Palestinian citizens of Israel and Palestinian refugees and displaced in exile.

1.2 Introductory observations on ‘State Responsibility of Israel and Individual Responsibility of Perpetrators under International Law to Remedy Violations against 1948 Palestinian Refugees and Internally Displaced Persons’ were presented by Gail Boling. Given the long passage of time since Israel’s establishment in 1948, legal responsibility and accountability require a three-step process:

(1)     Clarification of the character of violations under international law existing at that time (1948); problem: relative weakness of international law and codification of responsibility until1948;

(2)     Establishment of ‘continuing violation:’ The ‘continuing violations doctrine’ is widely recognized (e.g. European Court of Human Rights, UN Draft Articles on Responsibility of States for International Wrongful Acts). In order to prove a continuing violation, the violation itself (and not only their effect) must continue. If we can successfully characterize Israel’s actions as continuing violations of rights that existed in 1948, Israel is accountable under the stronger law and human rights conventions developed since then (e.g. European Convention on Human Rights) and can be held liable for the entire length of the violation.

(3)     Selection of the proper court: the court must have jurisdiction over the subject matter involved as well as procedural jurisdiction, i.e. the party raising the case must have standing under the rules of the court.

Major difficulties in establishing Israeli state responsibility for 1948 violations derive from the need to establish ‘continuing violation’ (due to the late development of international human rights law) on the one hand, and the absence of a court with procedural jurisdiction, on the other. Palestinian refugees have no access to Israeli courts, the ICJ is a court reserved for states (individuals have not standing), and Palestinians have no immediate standing in the ICC. Palestinians can raise claims against Israeli violations under the UN human rights treaty mechanisms and invoke universal jurisdiction under the grave breaches regime established under the Fourth Geneva Convention.

While Palestinian refugees thus do not yet have a directly accessible legal forum for claiming Israeli state responsibility, we must watch new developments because the law is steadily becoming stronger. The 2001 UN Draft Articles on Responsibility of States for International Wrongful Acts, for example, sets standards for what states may/must do, if a violation of international law by their actions can be established. These Articles have been endorsed by the UN General Assembly, but have not yet been codified as a treaty. They can, therefore not (yet) be invoked in court by other states (individuals would have no standing). The Articles are very progressive; they provide for responsibility of the successor state for actions of paramilitaries that preceded its establishment (Article 10(1) and (2)); recognize ‘continuing violations’ (Articles 14, 15); and require states to make reparations (restitution, compensation, satisfaction) where a violation has been proven. (The Draft Articles are available at: www.un.org/law.ilc ).

1.3 ‘Do Israeli Rights Conflict with Palestinian Refugees’ Right of Return?’ is a BADIL working paper in progress presented by Michael Kagan as a tool for further debate. Initial examination of legal arguments for and counter-arguments against collective and individual rights of Jewish-Israelis in Palestine-Israel under international law shows that individual rights to secure housing and property are more strongly protected than collective claims for a Jewish state based on the right to self-determination or political and economic stability. Israeli-Palestinian civil society debate based on this analysis could thus serve as a tool for shifting discussion about Palestinian rights to return and restitution away from the current collective/demographic argument (where Jewish-Israeli and Palestinian refugee rights are mutually exclusive) towards a more technical, and less frightening, debate over possible solutions to conflicting rights of individuals in specific circumstances.

Four sets of conflicting rights/claims were identified and examined for their strength under international law:

(1)     The Jewish collective/national right to exercise the right to self-determination in 1948 by establishing a ‘Jewish state’ in Palestine:

Argument: based on Balfour Declaration, UN Partition Resolution (181);

Counter-argument: law of self-determination continues to be vague and was even more so in 1947/8. There is no evidence of the law permitting violation of collective (self-determination) and individual (residency and property) rights of Arab Palestinians for the sake of collective Jewish rights. The state of Israel was established, moreover, not by law but my military force.

(2)     The Jewish-Israeli collective right to maintain a ‘Jewish state’ today, even if a right do establish such state did not exist in 1948:

Argument:  states can be recognized de facto rather than de jure, and international law prefers stability over justice. Israel has existed as a separate state for more than 50 years and is recognized by the international community. International law allows discrimination by state naturalization law, i.e. states have a right to determine who are their citizens (discrimination by naturalization law, for example is explicitly allowed by the Convention on the Elimination of Racial Discrimination);

Counter-argument: arguments above are based on the assumption of ‘clean hands,’ i.e. the notion that no war crimes were committed in order to bring about the state of Israel in its current form. This assumption is incorrect. Israel is a successor state of Mandatory Palestine, and denationalization (by means of Israel’s citizenship law) is expressly prohibited under international law.

     (3)  The individual right of Jews/Jewish-Israelis to secure housing, and enjoyment

of property:

Argument: long term residents and private investors in property have protected ‘acquired rights’ under common law, European Convention on Human Rights, a.o.; the principle of equitable remedy also provides that restitution to original owners of property can be blocked, if hardship on the current owner would be non-proportional.

Counter-argument: the scope of housing and property rights acquired by individuals depends, among others, upon the question of whether property was purchased/rented in good faith. Dealing with restitution of Palestinian refugee property as if it was a regular commercial dispute between bona fide purchasers/users is another ‘clean hands’ argument that is not applicable in this case.

(3)     The right of the state of Israel to avoid intolerable political, social and economic disruption by denying return and restitution to Palestinian refugees:

Argument: in the case of Broniowski vs. Poland, the European Court of Human Rights supported the argument of Poland that 80,000 restitution claims would threaten national stability and order. Israeli could argue the same against massive Palestinian restitution claims.

Counter-argument: Poland was not the original perpetrator (the land was confiscated by the former Soviet Union). In the case of Israel, there direct responsibility and obligation.

1.4 Discussion, Session One

(Issues raised in response to the presentations, responses by speakers and discussants; a brief statement by Joe Schechla/HIC on the role of Zionist organizations as perpetrators and possible claims for responsibility is added here to the debate, although originally given later in the seminar.)

On State and Individual Responsibility:

- Israel argues self- defense, and therefore no responsibility, based on the 1948

declaration of war by Arab states:  It is not permissible for a state to argue self-defense if it brought about the conditions against which it wishes to defend itself. The commentary to the UN Draft Articles gives specific examples. Israel’s unilateral declaration of independence in 1948 was a provocation. It happened while the UN Security Council was looking for alternatives to partition. Moreover, Israel cannot invoke self-defense for its ongoing denial of the right of return, because the Geneva Conventions permit only temporary relocation of civilian population. Any self-defense arguments only last until armistice is signed.

- Was there a legal vacuum following British departure in 1948? Most people would

define the period between November 1947 and May 1948 as internal conflict. If Israel had not declared independence, the UN would most likely have established a trusteeship over all of Palestine, because this is what the UN Charter provides for.

- What about individual responsibility? Israeli perpetrators of 1948 have in a sense

won and escaped responsibility. Most of them have died or are very old, and the ICC or other courts will probably never touch them. This doesn’t mean that their actions shouldn’t be reviewed according to modern standards, even if only for the moral argument. State responsibility, however, will remain.

- What would be the role of the Palestinian leadership, if we choose an individual,

rights-based approach? Individual and collective rights (self-determination) are not exclusive, they merge in one packet. The problem is that state-building tends to favor collective over individual rights, and individual rights, especially refugee rights, maybe sacrificed in the name of the collective. This is a conflict, and there is no definite answer to it. However, if too many individual rights are required to be given up, then perhaps the state-building process may need to be postponed.

- Lack of Standing in Court: The directly injured state has the best standing to charge

another state for responsibility. If injury is to the international community, then, according to UN Draft Articles, other states can take on the charge. In the case of Israel, we would have to prove that core rights, i.e. preemptory norms of international law were violated in 1948, and convince another state to take on the case. This is not easy to accomplish for the time being.

- What about the International Criminal Court (ICC)? Individuals can press claims

against a state in only two cases: either against their state or against the state in which the violation occurred. Israel has not ratified the Rome Treaty, and although signing without ratifying doesn’t get states off the hook under the Vienna Convention on Treaties, it does so unfortunately in practice.

- Can’t Palestinian refugees press for claims in states where they are citizens? This

depends on the respective domestic law, there is no uniform rule, and there has to be a match between international treaties and separate bilateral agreement signed. Spain vs. Pinochet is an example; Spanish citizens had been murdered by Pinochet. Palestinian refugees who held a second citizenship in 1948 have pressed governments to intervene. This is, however, not possible if citizenship was obtained after the violation occurred (Law of Nationality of Claims). In some states, there is also law under which aliens can press claims against states (e.g. the Aliens Tort Claims Act in the US), or universal jurisdiction law, such as the Belgian law that was pulled back due to US threats to remove the new NATO headquarters away from Brussels.

- Option of filing claims against Zionist organizations worldwide: these organizations

(JNF, WZO, a.o.) have been strongly involved in land confiscation and eviction since pre-1948 and until now. At the same time, they operate as charitable organizations under the domestic law of states. The option of legal charges against them must be examined thoroughly.

- What is the status of internally displaced Palestinians in this context? Almost 80%

of the IDPs are from villages whose lands are empty today, they are not a demographic threat and they are still not allowed to return: Israel does not permit return and restitution, because of fear that this will open the whole case of 1948 refugees.

- Need to consider the case of Jewish property in the Arab world: while Israeli

governments have abused this case for counter-claims against the Palestinians, there is today important and new debate led by mizrahi intellectuals, such as Yehuda Shenhav. Parts of Arab Jewish claimants have chosen an individual rights approach, they don’t want to be represented by the state of Israel anymore. Their rights should be incorporated into the debate.

- Legal debate is too narrow, may not be effective at all: Court cases are only one way

in which legal principles can be applied. Legal knowledge is important for building strong arguments for advocacy and campaigning, and legal principles must guide rights-based activities of every type and at all times. Business-people and politicians have legal advisors, and so should activists for peace and justice.

- Need for combining legal claims with publicity campaigns: Isolated court cases are

not enough. Take the example of the Zionist campaign for restitution of holocaust victims. It is politically coordinated, using media, mobilizing the US government and threats with sanctions. Most lawsuits are settled out of fear of devastating consequences. We need broader awareness-raising and political campaigns, in order to be effective.

Statement by Joe Schechla/HIC: This statement served to remind of the fact that Jewish nationality status conveys rights in Israel, rather than citizenship. Jewish nationality and subsequent privileges have implications through other laws (e.g. law of return, access to land). Zionist para-statal organizations (‘national institutions’), such as the World Zionist Organization (WZO), the Jewish Agency (JA), and the Jewish National Fund (JNF), function as perpetuators of institutionalized discrimination in Israel. At the same time, they operate as tax-exempt charitable organizations around the world. These organizations must be considered – in addition to the state of Israel – as perpetrators of war crimes from before 1948 until today, and as duty holders to provide restitution and return to Palestinian refugees and internally displaced Palestinians. There have been a few (successful) campaigns against these organizations (e.g. by the American Council of Judaism, 1968), as well as a demand by the UN Committee on Social, Economic and Cultural Rights, 1998 and 2003) on Israel to end the special para-statal status of these organizations under Israeli law, but by far not enough has been done. Publicity campaigns must also target them, and it may even be easier to file legal suits against them under the domestic law of states where they operate, rather than having to take the state of Israel to court.

On Conflicting-Rights:

- If collective, demographic arguments are so weak legally, why do Israeli

governments continue to use them? Probably for political reasons. Israel tends to

prefer political over legal arguments. Once you get into the field of property claims, the discussion becomes technical. It opens doors to questions, such as: where did the property come from? What was the role of the JNF, the Custodian of Absentees’ Properties? And this is a debate Israel does not want to open. The advantage of the demographic argument is that it can make use of the ongoing ambiguity, especially in the west, about multi-ethnic states. Germany, for example, has been reluctant to give citizenship to Turkish residents who have lived there for several generations. There is a notion that ethnic homogeneity is somewhat of a good thing, and Israel’s demographic argument appeals to this notion.

- Can Israel invoke the ‘destabilization argument’ against Palestinian restitution?

The risk is there. Courts, including the ECHR, have considered individual restitution claims against general ‘public interest.’ The ECHR, however, has never clearly determined what constitutes such ‘public interest.’ It has said that it is not limitless, and that state discretion is not without ends, but all of this is not clearly defined. The case of South Africa, for example, shows that state discretion is limited once acts of the state are considered a threat to peace and security under the UN Charter. In the Poland case (Broniowksi vs. Poland), the court did not make any reference to ethnic conflicts, because this was not required. In general, courts will look to whether alternative forms of reparation are available, such as compensation rather than restitution.

- Do displaced people loose their rights over time? No, certainly not. There is no loss

of Palestinian rights over time. There may, however, be an increase in conflicting Israeli rights as time goes by. If, for example, we had lead this discussion in the 1950s, Israeli rights would be far less strong. Bosnia is another example. The international community intervened fast, and it was easier to resolve property claims, because the short passage of time prevented the solidification of rights held by secondary occupants.

- Status of Jewish claims in Arab states: these rights/claims do not conflict with

property claims of Palestinian refugees in Israel. Another issue, more directly relevant to the Palestinian-Israeli conflict would be claims of Jews who lived in the West Bank and the Jewish quarter of Jerusalem before 1948. Pending clarification of the question of how these Jewish settlements were established, their right to return and restitution should be considered, if we are talking about basic human rights for all. These are not conflicting rights either, but they are more directly relevant than the rights of Jews in Arab states.

This session was dedicated to an examination of new and evolving academic approaches/disciplines and their relevance for conflict resolution in Palestine-Israel. Two working papers were presented and discussed, one additional speaker scheduled for this panel (Rama Mani, Geneva), was unable to come because her visa was not ready in time. Therefore, her introduction into models of Transitional Justice had to be cancelled. For a brief overview, and alternatively, see: www.ictj.org.

2.1 ‘Transitional Justice Models and their Applicability to the Zionist-Palestinian Conflict and the Palestinian Refugee Issue’ by Jessica Nevo, gave an overview over the recently evolved discipline of Transitional Justice (TJ). TJ deals with responses by governments and civil society with past and present human rights abuses. Mechanisms and tools employed can be judicial or non-judicial, based on models of retributive or non-retributive (restorative) justice, including war crimes tribunals, truth commissions, legal and institutional reform, museums of memory, etc.

TJ mechanisms are commonly employed in transitions from war to peace and from dictatorship to democracy, i.e. in post-conflict, transitional situations. There are many examples of TJ mechanism used long before they were called by this name and before TJ evolved into a discipline with the South African Truth Commission and CONADEP fact finding in Argentina. TJ mechanisms are also employed in situations which are not typical situations of transition, e.g. the African American demand for reparations for slavery, the tribunal of women sexually enslaved during WWII demanding an apology from the Japanese government, and an ongoing truth commission in the USA analyzing the 1979 massacre at Greensboro.

Arguments for and against the relevance of TJ in the Palestinian-Israeli context were then reviewed. Arguments for the irrelevance of the TJ model in this context were summarized as following:

(1)     The Zionist/Palestinian conflict has a unique history and features. Lessons learned from transitional processes in other contexts cannot be inferred to this conflict.

(2)     Restorative/transitional justice mechanisms are developed mainly to deal with internal conflicts, like in South Africa and Argentina. In these cases the populations in question share/are forced to share the same territory. In our case, the conflict is cross-borders (?) and the trend is towards separation (Goldstein 2001).

(3)     The effectiveness of restorative justice mechanisms, especially truth-seeking ones, is grounded in the discontinuity of the ruling political regime allowing the new regime to openly reject the former during the TJ process. This does not apply to our case (Tamir Yael, 1986).

(4)     TJ mechanisms apply better to situations of a former dictatorship or totalitarian regime. Israel is defined as a democracy (Goldstein, 2001).

(5)     TJ processes are effective if taken on as official initiatives involving a government. Since Israeli governments will not initiate or back a TJ process, the model is irrelevant.

(6)     A TJ process can be effective only when the beneficiary, i.e., Israeli Jews, realize that “something is wrong.” Since Israelis operate based on a “victim psychology,” they won’t recognize that “something is wrong” (Tamir 1986).

(7)     A TJ process is fit for application in societies in real transition and real post-conflict. We are far from being in a situation of post-conflict or transition.  

The speaker then argued that some elements of TJ can – and in fact already are – employed, irrespective of the fact that we are not in a post-conflict situation. The three-staged Fresno/California model of restorative justice was identified as particularly useful in our context:

(1)     Recognizing/acknowledging the harm perpetrated;

(2)     Restoring the imbalance and repairing the wrong;

(3)     Clarifying the future and giving assurances that the wrongs won’t be perpetrated again.

The feeling that ‘something is wrong’ – essential as a starting point for TJ is found among sectors of Jewish-Israeli civil society, and there are those who have started to search for and speak out the truth (e.g. army refusers’ movement, Zochrot). Truth seeking, exposure of official lies, and establishment of sites of memory should be the at the core of TJ efforts in Zionist Israel. In this context, the speaker proposed to focus civil society efforts on two objectives:

(1)     Raise demand for an official commission of inquiry (based on the existing 1968 law) to investigate the 1948 state policies related to the creation of the Palestinian refugee question;

(2)     A civil strategy of transitional truth telling/dealing with the past, hearing the stories of the victims and testimonies of perpetrators and thus enabling a process of acknowledgement, recognition of responsibility, and expressing apology.

2.2 Public Participation in Peace Process: Comparative Experience and Relevant Principles by Celia McKeon, who works with an NGO (Conciliation Resources) that supports civil society organizations working to bring about transition from conflict situations, and documents and analyzes comparative experience. The starting premise is that political participation is a right enshrined in many human rights treaties. The problem is that public participation is often deferred in top-down peace negotiations and elite pact-making, which is the dominant paradigm for peacemaking.

Findings of comparative study of public participation in 6 peace processes show that people’s participation makes an important contribution to the process: it facilitates inclusion of a large number of actors and issues; allows deliberations about the root causes and development of the conflict; improves transparency of negotiations; and, employs unique local capacities and resources for conflict resolution – all factors which contribute to the sustainability of a settlement.

Three modes of public participation were identified based on six different peace processes:

(1)     Representative participation: delegates to negotiations are selected from a wide

spectrum of public constituencies, typically political parties (e.g. South African constitutional talks, Northern Ireland/Belfast Agreement). This requires a well developed multi-party system, a legitimate procedure for selecting delegates, and understanding that agreement cannot be reached by two parties alone.

(2)     Consultative participation: civil society organizations meet and debate the conflict and possible solutions and issue recommendations to the official negotiators (e.g. Guatemala/Grand National Dialogue, Philippines/National Unification Commission). Problem: recommendations generated are not binding and may not be taken into consideration.

(3)     Direct Participation: usually limited to local conflicts, e.g. intercommunity meetings result in local cease-fire agreements (e.g. Mai, Colombia, local and regional peace committees in South Africa). Change start locally and on the level of civil society, agreements reached can then be taken into consideration by official negotiators.

The presentation also highlighted the role of the international community in blocking/facilitating public participation in peacemaking. International intervention by means of pre-set peace plans usually hinders public participation, while offering capacity building for local communities encourages participation. The speaker left it open for discussants to the debate the relevance of these findings for Palestinian-Israeli context. All documentation on peace processes and public participation is available on the Conciliation Resources website: www.c-r.org/accord.

2.3 Discussion, Session Two

(Issues raised in response to the presentations, responses by speakers and discussants)

On the Merits of the Transitional Justice Approach:

- Is it true that Jewish-Israeli society feels that ‘something is wrong,’ i.e. that there are beginnings of transition? Numerous discussants felt that this was not the case,

and that recent opinion polls show the opposite trend (e.g. 63% of Jewish Israeli say that Palestinian citizens should leave, 45% say they shouldn’t participate in elections). Initiatives like Zochrot are a tiny minority. The speaker responded that if we assume that any peace built on justice must include some kind of recognition by Jewish-Israelis, then we must give importance to signs – even if small – of a new discourse (e.g. about the Nakba), “cracks” in the official discourse, and civil society initiatives (e.g. refuseniks) which are fundamentally opposed to official and public consensus.

- Reconciliation is a problematic concept in a situation of conflict, because justice is a

requirement for reconciliation, otherwise it turns into normalization of injustice and can serve to de-legitimize resistance to the occupation (e.g. Oslo People to People and reconciliation programs):  the speaker clarified that she had missed to clearly define the concept of reconciliation and that she was aware of the fact that it was often used in an effort to make victims forget and forgive perpetrators at the expense of victims’ rights. She affirmed that in her approach, ‘reconciliation’ is built on justice and must include all three elements of the Fresno/California model: recognition, restoration, and clarification for the future.

- Reservations regarding applicability of the TJ model to the Israeli-Palestinian context: will become applicable only once Palestinians understand that a two-state

solution is impossible and a one-state solution is the only option. Then the conflict can be framed as an internal conflict and TJ becomes more applicable. Additional reservations mentioned were: lack of international consensus about who is the perpetrator and who is the victim; most – even progressive – Jewish Israelis want separation, and injustice done in 1948 and ending the Zionist narrative are not on the agenda. In this context that speaker stated that the process of inquiry commissions itself will highlight that ‘something is wrong’ with the official Zionist version and would give space to Palestinian victims. In this process, also definitions of who is the victim could change, e.g. maybe we are all victims of European colonialism/imperialism, etc.

- What would be the Palestinian role in such a TP model? In the south African case,

blacks were involved in public ‘forgiving.’ This is rooted in the Judeo-Christian and Islamic tradition. The presentation did not address the Palestinian side of the equation. The speaker responded by saying that restorative TJ mechanisms are in most cases not anchored in spiritual/religious traditions, and the South African case was an exception (see also: Hadely Michael (ed), 2001, The Spiritual Roots of Restorative Justice). Concerning the Palestinian role, she emphasized that as a Jewish-Israeli she was interested in the way her civil society could take the initiative. Any similar initiative from the Palestinian side could only be a positive contribution and offer a platform for cooperation.

- TJ can also serve as a model employed by the successful perpetrator: In addition to

transitional situations mentioned by the speaker, TJ can also be employed after a long passage of time and the completion of ‘successful’ colonization processes by the new generations of the colonizer (e.g. North America, Australia), i.e. when new generations who are beneficiaries, but not perpetrators, have to come to terms with material issues of privilege and identity.

- On the problematics of official Israeli commissions of inquiry: Several discussants

stated that official commissions, by their nature, tend to whitewash the situation. The most recent and negative experience with the Israeli Orr commission (investigating the killing of Palestinian citizens by Israeli policy during demonstrations in November 2000) is a good example. Israeli commissions almost always deal with procedural, and not substantive issues, it would not be ready to take on the issue of the 1948 Nakba in any serious way. While one discussant suggested that an international truth commission might be much better, others raised that it would not work, because Israel would feel it was imposed on them and would not participate. The speaker argued for a ‘multi-track’ intervention in which Jewish civil society uses various TJ mechanisms simultaneously. While agreed that the outcome of official commissions of inquiry may be problematic, she emphasized that the process itself was important and can invite attention and discussion.

- On the need to lead an Palestinian-Jewish Israeli debate about root causes of the conflict: Irrespective of doubts concerning the efficiency of official and unofficial

commissions of inquiry and truth commission, all participants agreed that the debate about root causes of the conflict, including the 1948 Nakba, cannot be postponed.

- How to move forward?

            - Find ways to link the narrative of the 1967 occupation with the 1948 Nakba,

which are still seen as separate issues, by developing a narrative of 1967 that shows how it flows from the Nakba, e.g. by highlighting that military rule over Palestinians ended only in 1965, so that there were only two years when Palestinians were not under military occupation; link the narrative of Land Day and refusal to serve in the army with the Nakba, etc.

- Address the ‘fear factor’ among Jewish Israelis: There is recognition that there was an expulsion in 1948, but many seem to internalize that as a reason for the justification to oppress Palestinians even more (this could explain the racist results of opinion polls). There is fear of the consequences of what was done, and this leads to even stronger support for the ‘Jewish state,’ maintenance of military supremacy and demographic majority.

- Recognition that there is something wrong must lead to repentance: We may see the strong support among Jewish Israelis for the ‘transfer’ of Palestinians as an indicator for recognition that there is something wrong. But we do not have repentance. Reconciliation based on repentance would mean that we would have to deal with the root causes, and not only with symptoms. And this also brings up the one-state solution, because even if there was a two-state solution, we would still have institutionalized discrimination inside 1948 Israel. Some discussants thought that this could be accomplished in the framework of civil society truth commission.

- Potential obstacles to tackling the Zionist narrative:

- Conflicting messages may represent an obstacle; civil society efforts for

dismantling the Zionist narrative of the conflict take place in an environment

where other messages exist: Arab states are pressured by the international community to normalize their relations with Israel, because this is expected to reduce Israel’s ‘fears’ and soften its positions. At the same time, there is the call, especially on European governments, to put pressure on Israel by means of sanctions in order to bring it line with international law and the Palestinians. There is a need for clarification of the impact of these strategies on Israeli society’s readiness to acknowledge the Palestinian narrative and Palestinian rights.

- The wall will increase physical separation and make it even more difficult to expose Jewish-Israeli society to the Palestinian narrative.

On Public Participation in Peacemaking:

- Request for more information about Guatemala, where refugees were the ones’ to

start direct talks with the government. [remained unanswered]

- Where would Bosnia be located in the above typology of participation? (Speaker):

Bosnia is a typical example of elite pact-making. This has had a devastating effect on how the country operates today to the degree that its viability remains questioned. The international community (OHR) has sacked half of the Serbian government. The Bosnian example indicates the cost of dealing only with warlords; politics as a space for people to deal with conflicts and bring about agreements has been delegitimized.

- Problem of cooption and manipulation: the HIC Land Rights Project has found a

very similar typology of public participation, in this case in negotiations against forced evictions. One problem found is that initiatives of direct participation often become manipulated later on, and they are less legitimate at the end than they were at the beginning. Moreover, we must take into account that legitimacy is not co-terminus with legality of the outcome negotiations.

- Evaluation of initiatives for public participation supported by the international community in Palestinian-Israeli peacemaking: Participants agreed that the local

 experience is mainly negative. Some emphasized that the whole discussion

 about a peace process is surreal. There is one side beating the other, and a continuing process of occupation and oppression. People-to-People has been evaluated very negatively, and the Europeans are not mediating but rather contributing to the conflict, by trying to steer the outcome. European financial and political support for the ‘Geneva Initiative’ is an example. (Comment by one discussant: This initiative has very little to do with Palestinian and Israeli civil society; it is an initiative launched by Swiss bankers with business interests in Israel and in the 1967 OPT). Moreover, it was said in the presentation that the international community can contribute to the public participation by enhancing security. In our case, the ‘security’ argument is used to block real peace negotiations.

- What are lessons learned in Palestine-Israel?

- We are not in a situation of post-conflict, but in a situation of conflict. Dialogue and TJ won’t bring down occupation and apartheid. First conditions must be brought about that make the cost of apartheid too high. (Speaker): In the case of South Africa, participation was what helped bring down apartheid, mobilized in the international context, and built support for a post-apartheid agenda. Structures and capacities were there when apartheid was weakened, in order to propose an agenda.

- The Oslo process poisoned the discourse, language about ‘peace,’ ‘democracy,’ ‘participation,’ ‘civil society,’ etc. has been abused. We need to go back and review our local capacities.

- The question to ask is ‘public participation for what?’ There is a huge difference between dialogue and doing things/struggling together. Justice is more important than peace, and doing things together has also resulted in some more truth coming out (e.g. the ‘new historians’ tackling the history of 1948 in the 1990, B’tselem publishing the first report about torture 15 years ago.), but truth alone does not help (see the dominant racist discourse), at the end it is a question of challenging power.

- The fact that there are two narratives does not give them equal moral weight. Doubts about the truth of the narrative of the oppressed are raised in our case, maybe line with post-modern fashion, but this was never raised in South Africa or Northern Ireland. (Speaker): If there is no consensus on the causes of the conflict, initiatives to generate such consensus on key substantive issues are needed.

- Recently there is more of a tendency to condition participation in dialogue groups by adherence to basic principles and human rights. This limits public participation, but maybe it is time to loose some people? Cannot marginalized Jewish Israelis still speak the truth?

- One participant raised that public participation could be increased by setting up specialized fora for debate, e.g. teachers-to-teachers, students-to-students, in order to discuss the long-term goals of our societies. Others raised that this was already tried in the past.

-  Another participant suggested that due to limited resources, we must choose what is most effective. He raised that formation of a group of (international) moral authorities could be effective in speaking out and addressing the issue that Israel is getting more and more fascist and heading towards more war crimes. (Speaker): there is an example from the peace processes that took place between 1998 – 2002 in Colombia, where the parties each nominated two distinguished individuals to comprise a ‘Commission of Notables,’ who were mandated to accompany the peace negotiations and make recommendations on the necessary steps for the parties to take towards reaching agreement.

Session three looked at interesting and existing civil society initiatives working to build participation and rights-based solutions for Palestinian refugees: Civitas, Zochrot, and the Bir’im-Bar’am community initiative, and Israel sanctions/boycott campaigns and their role in promoting rights-based solutions for Palestinian refugees. The latter, although held in the fourth and final session for reasons of timing, is reported here for sake of coherence. The Association for the Defense of the Rights of the Internally Displaced (ADRID), co-host and invited to speak in this session, was unfortunately unable to attend.

3.1 ‘Foundations for Participation, Civic Structures for the Palestinian Refugee Camp and Exile Communities (Civitas project) presented by Karma Nabulsi: Implementation of this project has just started so that practical experience cannot yet be reported. The project aims to repair damage done to Palestinian democratic politics by the Oslo process. In the past, the Palestinian people everywhere practiced politics through associations, political parties and movements, and the PLO represented the legitimate structure.  The move of the Palestinian leadership – without the people in exile - to Palestine under the Oslo Accords, and intensive (donor funded) state building in the 1967 OPT, has led to a situation where institutions are available, but the majority of the Palestinian people in exile are excluded from political practice and no longer represented by their leadership. In the meantime, or leadership has turned into a captured PNA under occupation, without capacity to represent the voices of the people.  Palestinian refugees and their rights, the core of the conflict, became seen as the obstacle to a solution, and the process was structured in order to exclude them.

The project thus has two objectives: Re-democratization.  We have democracy – we don’t need to import it, but we need to rebuild our structures.  The second objective is recentralizing the refugee problem as the core of the conflict. The project is funded by the EU, which accepted the argument that a “state-building” process was undertaken, but had neglected to take into consideration the majority of the people involved.

Palestinian exile communities everywhere will:

Assess tools and mechanisms needed for communication with their leadership;

Compile lists of issues they would like to raise with their leadership.

Findings will be processed in a central database collection, and several reports will be issued, one to donors with a request for funding of tools and structures identified; another one to the PLO (‘here are your people, here are their issues, you need to talk to them’). Activities among the Palestinian exile will be accompanied by seminars and workshops aimed at educating academics and policy makers about the Palestinian refugee question which they have very much ignored so far.

Discussion, Civitas Project

- How will refugee communities be chosen? This process should be inclusive. There

are “waves” of displaced Palestinians in exile, people arriving at different times under varying circumstances. This work will be community-driven, because we have very little funding. All Palestinians have the right to participate, parties, unions are all invited, but of course, you can’t force people to participate. 

- There are different ways of working, e.g. cross-generational.  The results may depend a lot on who organizing the meetings:  These are the obvious problems.

Sometimes people who are active in the community are not those at the core of the community.  The process is about not being factional.  The idea is to come together to try to change the way that we work.  We do not want to reshape the multi-party society.  We want to see all these parties and organizations flourish, democratically. This is really a technical service of providing a space.  They’re not going to necessarily decide anything political. There is going to have to be an element of trust, that the facilitators will be trusted not to dominate and occupy a hegemonic position.  

- About the prospects for these recommendations being implemented: would the Palestinian leadership (PNA, PNC) be receptive? Have you been able to look at parallel experiences? We’re trying to look at best practice from everywhere.

Interesting examples are the Bosnian case (when did refugees know about the elections, how were they implemented), the Dominican Republic (they had polling stations in New York),the electoral processes in East Timor (entering guerilla-controlled areas and asking open the space up for elections), a.o. There is a multitude of potential problems, and we want to run it well so people can feel they’ve really participated in something valid. The question is not how the PLO will react, but rather, ‘where is the PLO?’– this is a problem at the moment.  People are very involved in top-down efforts to rebuild the it, but this cannot succeed. The people themselves should be involved in redesigning representation – this could unblock the blockage.  That’s how it used to work. Then the leadership will respond because they have to represent, and there will be large numbers of people asking for representation.

- Is this a donor-driven curiosity to see what structures could be created and what outcome can be achieved?  When you have people saying we want representation, the

structural outcome will come out of the status of people.  The structures will reflect the new reality.  You cannot create institutional design in the abstract – it would be too divorced from the people.  Once you have a large number of people involved in the institutional process you get a whole new arena and a different debate about issues. We need to trust in the process for the moment.  People will trust in the process if the results are from them and for them. You have to get away from preordained outcomes.  The people who drafted the Roadmap had preset outcomes and cared nothing about the people, and last years’ constitutional debate was a donor-driven process. 

- Wouldn’t it be better to make a trial study in some locations?  If you have limited resources, you are taking on a large project.  There could be factional resistance, local context resistance, host country resistance, sheer disorganization. We’ve

thought about all this.  But we have to do this all together or not at all. Otherwise it would only increase fragmentation. 

- Shouldn’t this project be directed