Introduction

 

The unresolved plight of Palestinian refugees and displaced persons encapsulates the often murky nexus between international law and international relations. While it is recognized generally that Palestinian refugees and displaced persons have a right to return to their homes or origin[1], realpolitik dictates that return is neither ‘realistic’ nor ‘practical’ for this group of refugees. Factors militating against return include the length of displacement, the ethno-national character the state of Israel and a protracted military occupation.

 

Resettlement and compensation have thus been identified by Israel and the primary western powers actively involved in the past five decades of Middle East peacemaking (the ‘international community’)[2] as the preferred solution. The most recent formulation is found in the April 2003 Performance-Based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict. The plan, endorsed by the United Nations Security Council in November 2003, affirms an “agreed, just, fair and realistic solution to the refugee issue.” No definitions are provided in the document.

 

Though the Palestinian refugee question has been viewed with a degree of ‘exceptionalism’ for most of the past five decades[3], the challenge posed by Palestinian refugees to the nation-state system, and the responses of states to Palestinian refugees and displaced persons is by no means unique. “Refugees represent two conflicting dimensions of international politics,” observes Barbara Harrell-Bond.

 

On the one hand, there is the question of realpolitik represented by the tensions which refugees create among and between states and other international actors. On the other, refugees represent a fundamental challenge to sovereignty, by forcing international actors to consider ethical principles and issues of fundamental human rights, which are part of their international obligations, over and above the interests of a tidy system of sovereign states.[4]

In comparison to other refugee cases around the world, the Palestinian case, arguably, is simply a more extreme example of this tension between sovereignty and territorial integrity of states and the rights of the individual.[5] While some political analysts and legal experts have argued that this distinction is increasingly less relevant with the shift towards globalization and the ‘blurring’ of state borders, others argue that this “paradigmatic shift … may in fact amount to little more than another means of validating essentially Northern assumptions and interests in a post-colonial, post Cold War world.”[6] That certainly has been the case for asylum seekers from the developing world since the 1980s, and it is probably also true for Palestinian refugees.

 

That is not to say that international law does not matter. As already mentioned, the international community at large, with the exception of Israel (and the United States more recently), has reaffirmed the right of Palestinian refugees and displaced persons to return to their homes for more than five decades. The steady, if not always progressive[7], development of international norms concerning the treatment of refugees and displaced persons worldwide through state practice convincingly demonstrates that law does matter.[8] A brief survey of national, regional and international legal instruments, bilateral treaties, and ‘soft-law’ instruments bears witness to the importance of law when it comes to crafting durable solutions for refugees.

 

If one accepts the premise that law does matter, not just for refugees and displaced persons, but also for communities in the country of origin, host and resettlement countries (and for states themselves),  the question remains: how to make international law matter? This is the challenge facing those who believe in a rights-based solution for Palestinian refugees and displaced persons as part of a comprehensive solution to the long-standing conflict in the region. While law provides both a framework and wealth of ‘best practice’ concerning implementation of durable solutions for refugees, the underlying challenge is the transition, in the words of one analyst, from the “principles of politics, to the politics of principles.”[9] 

 

The BADIL Expert Forum on Palestinian Refugees has been a modest attempt to explore these issues. Expert analysis and commentary in the first three of four seminars underlined the role of law in crafting durable solutions for refugees and displaced persons. Participants also grappled with the more challenging question of how to make law matter in a process entrenched so deeply if not captive to realpolitik. This short paper provides brief background information on the BADIL Expert Forum, prefaced by a historical overview of ‘official’ and ‘unofficial’ approaches to the search for durable solutions for Palestinian refugees. The latter explains, in part, the raison d’etre for the Forum. The final part of the paper examines some initial recommendations based on the previous two parts of the paper. 

 

Approaches to Solutions for Palestinian Refugees

 

The following section is based on an initial review of more than five decades (1948-2004) of ‘official’ and ‘unofficial’ initiatives to find durable solutions for Palestinian refugees and displaced persons. Some initiatives focus exclusively on refugees, while others address the refugee question in the context of a comprehensive peace settlement. In either case the critical factor for the choice of cases is explicit reference to solutions for Palestinian refugees.

 

The typology used here is not absolute; characterization of various initiatives as official or unofficial may be open to debate. Moreover, these two categories could be sub-divided into further categories such as peace agreements, governmental policy, academic initiatives, track two diplomacy, and various forms of popular participation. They are merely used here for simplicity. Additionally, it should be noted that the 80-plus initiatives reviewed here (See the Annex to this paper) is based on an initial literature review and may not necessarily be comprehensive. For example, there is a paucity of published literature on popular initiatives.

 

Official initiatives as used in this paper thus include peace conferences and peace agreements, but also include frameworks put forward by parties to the conflict (including government ministers) and members of the international community as well as the United Nations. Unofficial initiatives include popular movements, academic working groups, plans by former political figures and track II diplomacy. The purpose of this section is primarily analytical rather than descriptive; the details of each initiative are beyond the scope of this paper.

 

Official Initiatives

 

The majority of those initiatives surveyed for this paper (more than two-thirds) can be considered as official initiatives. There are three primary periods of official negotiations on the Palestinian refugee question. Early negotiations between 1949 and 1951 were facilitated by the UN Conciliation Commission for Palestine.[10] A second round of negotiations was held in the late 1970s as part of the Egyptian-Israeli peace process facilitated by the United States. These negotiations, however, only addressed the issue of those refugees displaced in 1967.[11] The latest round of official negotiations began in the early 1990s. Neither interim nor final status negotiations between Israel and the Palestine Liberation Organization (PLO) concluded a settlement on the refugee question.[12] Two of the three rounds resulted in bilateral agreements that address the refugee issue.[13] Only in the case of the September 1967 understandings between Jordan and Israel, brokered by the International Committee of the Red Cross (ICRC), however, were some refugees able to return to their homes of origin in the West Bank and Gaza Strip.[14]

 

Palestinians advanced more than ten additional initiatives during the same period. All initiatives affirm the right of Palestinian refugees to return to their homes of origin. Until the mid-1970s return was conceptualized as part of the process of decolonization and liberation of the historic homeland. In other words the right of return and right to self-determination was ‘co-terminus’. Proposals from 1974 onwards view these two rights as ‘complimentary’, consistent with the transition towards a two-state solution to the conflict.[15] This is further elaborated in a 1976 PLO submission to the UN Committee on the Inalienable Rights of the Palestinian People[16] and in the PLO’s 1988 Declaration of Independence.

 

The fact that little further substantive legal work was done to explain how a two-state solution is compatible with the individual right of return to the home of origin (an argument frequently raised against the right of return today) may be explained by several possible factors: 1) there was no contradiction between individual and collective rights in the minds of PLO officials; 2) emphasis on political rather than legal strategies; 3) lack of capacity for more extensive research; 4) and, the fact that the two-state solution was essentially imposed on the PLO as a condition for political recognition and dialogue[17] and, concomitantly, Palestinians viewed the two-state solution as a step towards the ‘re-establishment’ of a secular (multi-cultural) democratic state in all of historic Palestine.

 

Official proposals from the Washington talks in 1992-93 appear to confirm the essential complimentarity of individual and collective rights in the minds of PLO officials. The PLO delegation (part of a joint Jordanian-PLO delegation) submitted five proposals for an interim self-governing authority in the West Bank and Gaza Strip. In each case, despite counter-proposals by Israel and American bridging proposals to the contrary, the proposals included a legal framework and recognition of the right of 1967 refugees (‘displaced persons’) and deportees to return to their homes of origin in the occupied territories in order to participate in elections for the legislative assembly of the self-governing authority. These proposals do not address the question of 1948 refugees, not only because negotiations were conceived as a two-stage process (interim followed by final status talks), but presumably because the issue of 1948 refugees was a question of individual rights complementary but not co-terminus with the right to self-determination. In other words, the homes of origin of 1948 refugees are inside Israel; resolution of the issue is therefore not a matter exclusively within the jurisdiction of a future Palestinian state.[18]  

 

The survey also covers twelve initiatives advanced either directly by the government of Israel or indirectly through individual government ministers. Of these all but three – the 1949 ‘100,000’ offer[19]; the 1977 Begin autonomy plan; and, the 2001 ‘Non-Paper’ submitted to the Taba talks – advocate host country integration and third country resettlement as the only solution for Palestinian refugees. In all three cases, however, the West Bank and Gaza Strip were considered as the primary area of ‘return’ regardless of the fact that the majority of the refugees and their descendants originate from towns and villages inside Israel. These proposals are consistent with Israel’s self-definition as a Jewish state.[20]

 

Official proposals advanced outside UN-facilitated talks up until 1967 included several transfer plans. Following the 1967 military occupation of the West Bank, eastern Jerusalem, and the Gaza Strip, however, most Labor government plans focused on economic rehabilitation, reintegration and resettlement of those refugees residing in the occupied territories. These initiatives aimed either to dismantle the refugee camps or transform them into urban areas akin to existing non-refugee population centers in the territories.

 

By contrast, initiatives advanced by the Likud in the 1970s revisited the notion of population transfer but also raised the idea of Palestinian autonomy in the occupied territories – 1977 Begin autonomy plan – including ‘joint administration’[21] of immigration controls to the West Bank and Gaza Strip. Labor and Likud approaches to the refugee question during this period tend to approximate subsequent initiatives by the parties, respectively, to the search for solutions for Palestinian refugees. Labor government initiatives at Camp David II and Taba negotiations, for example, centered on the transfer of territory in exchange for resettlement of refugees in the occupied territories. Since 2001, the Likud government has largely dismantled this framework and transformed the Labor notion of territorial separation into hybrid form of physical and administration segregation.[22] The 2004 Gaza disengagement plan, while not dealing directly with refugees (apart from the fact that the majority of the Gazan population are refugees), is consistent with this approach.

 

The survey also includes initiatives advanced by the Arab League, individual Arab states, the European Community/European Union, the Council of Europe, and the United States. The key element dividing Arab initiatives from those put forward by European and American bodies is the role of international law. Arab proposals consistently recognize the right of refugees to return to their homes of origin. While Arab states have been criticized historically for not absorbing the refugees within their own national communities, it is important to remember that their no obligation upon host states to resettle refugees within their borders.

 

Moreover, the Arab position may also been seen simply as a reflection of refugees stated wishes. Unlike later initiatives, early initiatives by Arab states included a more detailed approach to durable solutions. The only exception to European and American initiatives concerning the role of international law is the early confidential papers prepared by the US Department of State[23] and the 1973 European Economic Community Shuman Paper drafted by France but blocked by Germany, the Netherlands and Italy.[24] Both initiatives did recognize the right of refugees to return to their homes of origin. [EU on language, just solution, from 242 and later to Road Map]

 

Six United Nations initiatives are included in the survey. None of these initiatives led to an agreement between the parties. All but one initiative – the 1951 UNRWA plan[25] – focused on refugee repatriation and choice as a key principles for a comprehensive solution. The UNRWA plan for economic integration of refugees into the region came at a time when the international community was searching for alternative means to break the political stalemate between the parties. By the end of the 1950s, however, the UN had concluded that the refugee question was primarily a human question and that no integration would be possible “were it to be brought about by forcing people into new positions against their will.”

 

Subsequent UN initiatives relied upon international norms as a basis for crafting durable solutions for Palestinian refugees. This includes the 1976 initiative advanced by the Committee on the Inalienable Rights of the Palestinian People and the 1983 Geneva Peace Conference.[26] The United States vetoed the 1976 plan when it was brought before the UN Security Council while the Conference ended without agreement. From the mid-1980s onward the United States successfully sidelined the United Nations from the peacemaking process.[27] The UN has played a marginally greater role since the onset of the second Palestinian intifada in September 2002 through its various organs – Commission on Human Rights, General Assembly, Security Council – and as a member of the so-called four-party steering group for the Middle East peace process known as the ‘Quartet.’

 

In general, official initiatives have been characterized by a top-down, “elite pact-making approach” to crafting durable solutions. Palestinians – refugees and non-refugees – were largely absent from the official negotiation process. Refugees participated only in first round negotiations in the early 1950s.[28] The United Nations Conciliation Commission also made an effort to consult refugee communities in the camps in the Middle East during the early stages of the negotiation process.

In fact, Palestinians were excluded from the official negotiation process until the early 1990s (initially as part of a joint Jordanian-Palestinian delegation), nearly two decades after the United Nations recognized the PLO the sole, legitimate representative of the Palestinian people. [Check]

 

The majority of those initiatives which led to political agreements between parties to the conflict (including regional partners such as Egypt and Jordan) involved third party intervention. Third party involvement in these agreements included individual states and the International Committee of the Red Cross.[29] Intervention ranged from facilitation through conciliation and mediation. In no case was a solution imposed upon the parties. In only one case – the 1994 Israel-Jordan peace agreement – was an agreement reached through direct bilateral negotiations. At the same time, it is important to note that third party (American) facilitation and mediation of talks at Camp David in 2000 between the PLO and Israel failed to bring about an agreement on the refugee question illustrating, perhaps, the limitations of international political will.

 

Official initiatives, moreover, were primarily bilateral in nature. Preference for bilateral versus multilateral negotiations has been a historical point of difference between the parties.[30] This is particularly true for those initiatives that resulted in an agreement between the parties. Bilateral talks in Camp David (2000) and Taba (2001), however, failed to bridge the differences between Israel and the PLO. Early ‘multilateral’[31] talks in Lausanne and Paris did not result in agreements between the parties, although both Israel and Arab states did sign a declaration – the Lausanne Protocol[32] – which aimed to provide a general framework for future negotiations. Multilateral talks initiated in 1992 addressed humanitarian rather than political and legal aspects of the Palestinian refugee question, despite attempts by the Palestinian delegation to wide the scope of the talks. This talks broke down when parallel bilateral negotiations reached a stalemate.

 

Another interesting feature of official initiatives that resulted in an agreement between Israel and the PLO is the lack of reference to international law. Bell observes that the Palestinian-Israeli accords “led to a dynamic whereby rights have simply disappeared.”[33] This absence can only be explained by realpolitik. All five proposals for a self-governing authority submitted by the Palestinian delegation to the pre-Oslo Washington talks (1992-1993) included a clear legal framework for resolution of the conflict.[34] Subsequent PLO initiatives at Camp David and Taba (2000-2001) are consistent with this approach. Proposals submitted by Israel and American bridging formulas omitted reference to international law. By contrast agreements between Israel and Arab states – Egypt and Jordan – (similar to most peace agreement) affirm that the agreement and future relations between the states will be based on international law and the principles set forth in the UN Charter.[35]

 

It is also interesting to note two other features of these official initiatives. First, the majority of these initiatives attempted to draw a linkage between the refugee question and territorial aspects of the conflict, similar to the Lausanne Protocol mentioned above.[36] In all cases, initiatives which drew this linkage have failed. This is due in part to the legal confusion about the right of return created by the two state solution.[37] Only in the two cases where solutions were addressed solely as a refugee question – 1967 agreement between Jordan and Israel and the Canada camp agreement[38] – did the agreement result in some returns. A final aspect of past official initiatives has been an attempt to address the refugee issue by dividing the refugee population into groups and addressing solutions for each group separately.[39] This includes 1948 refugees, 1967 refugees (displaced persons), and deportees from the West Bank and Gaza Strip. More recent initiatives also identified Palestinian refugees from Lebanon as a separate sub-group.

 

Unofficial Initiatives

 

Only about one-third of initiatives surveyed may be considered unofficial initiatives. These include popular initiatives by Palestinians (and more recently by Israeli Jews), academic projects, plans drafted by former political officials, and track-two diplomacy. These initiatives primarily appear during the early period of displacement in 1948, again during the early period of the second mass displacement in 1967, although there are no documented popular refugee initiatives, and again during the 1990s in the context of the Oslo process which witnessed an exponential growth in unofficial initiatives. The paucity of unofficial initiatives in comparison to official initiatives may also relate to the lack of published literature.

 

What are some of the features that stand out from five decades of unofficial initiatives? First, the early period was characterized primarily by popular refugee initiatives in and outside camp communities in the region. Popular refugee initiatives often coalesced around specific interests (e.g., property claims), family reunification concerns, or around the village of origin.[40] While societies, clubs and associations based on village of origin (not to mention organization of camps around village social structures) continued to persist after the 1950s, grassroots political activism eventually fell under the umbrella of a national parties and a national leadership with the formation of the Palestine Liberation Organization in 1964.

 

It was not until the mid-1990s that the region witnessed a re-emergence of popular refugee initiatives. This can be explained by several factors. On the one hand refugees experienced a sense of marginalization from the Oslo process. Refugees roundly expressed “concern and a warning of the implications of the weakness of the Oslo agreements on the refugee issue.”[41] They were neither consulted nor were key principles such as the right of return reflected in the agreements reached between the PLO and Israel.[42] This sense of marginalization was augmented by the fact that refugee rights had always been one of the central elements of the Palestinian national liberation movement.

 

At the same time, the PLO had “suffered a series of profound seismic shocks” between 1982 and the early 1990s, which “undercut its organically developed democratic mechanisms.”[43] This was exacerbated by the Oslo process when the PLO moved key figures and shifted resources towards the establishment of a self-governing authority in the occupied territories. Refugees outside the occupied territories were particularly affected. The popular refugee movement thus aimed to address both issues of substance and strengthen civic structures that would provide more effective channels of communication between refugee communities and the PLO.[44]

 

A second feature of these unofficial initiatives is the apparent paucity of Israeli Jewish initiatives on the refugee question. The immediate period after the 1967 war saw several initiatives by former political figures and by academics mostly focused on the resettlement of refugees in the West Bank and Gaza Strip through economic integration (a measure already rejected as ineffectual in the late 1950s). These unofficial initiatives ran parallel to more official efforts. Another round of unofficial Israeli Jewish initiatives emerged in the 1990s with the beginning of the Oslo process, most of which were track II  and academic projects. All conceptualized return as being to the West Bank and Gaza Strip, with only a limited quota (often through family reunification) to places inside Israel, and not necessarily homes of origin. Popular Israeli Jewish initiatives on the refugee question (e.g., Zochrot) are only a recent phenomenon.

 

The 1990s also witnessed a significant number of academic projects and proposals on the refugee question. Interestingly, many of the proposals reflect earlier official proposals. This includes the 1997 Arzt plan published by the New York-based Council on Foreign Relations, which is similar to the 1951 UNRWA resettlement plan, the Abu Sitta return plan which is similar in its staging to the early proposals put forward by individual Arab states during the ninth and tenth sessions of the UN General Assembly in the 1950s, and the Geneva Accord which in its basic form has similarities to the 1958 plan advanced by academics at the Institute of Mediterranean Studies.[45] Curiously, polling refugee preferences (based on the assumption that an agreement would have to account for Israel’s ‘demographic reality’ as a Jewish state) became popular again in the 1990s. In fact, one of the more controversial polls arrived at the same results as the US State Department did more than fifty years ago.[46]

 

More recently a number of ‘externally mediated’ popular approaches to the refugee issue have emerged. This includes the 2000 British All-Parliamentary Commission of Inquiry which sought to inquire from refugees themselves how they view a rights-based solution to the conflict through a series of town-hall style meetings in refugee camps across the Middle East[47] and a just-launched EU-supported project through Nuffield College/Oxford University to assist refugees in determining the types of civic structures and mechanisms needed by Palestinian refugees in the refugee camps and exile communities outside the West Bank and Gaza. It is a needs assessment exercise to be carried out by the refugees themselves, through deliberative debate and consultation.

 

Generally, the majority of unofficial initiatives over the past five decades do not place significant importance on international law. In fact, in their overall approach, they are remarkably similar to official Israeli and international initiatives described above. In fact, one recent initiative – the Geneva Accord – goes so far as to suggest that if there is a conflict between the Accord and the UN Charter, the provisions of the Accord override the Charter. The complementary of these unofficial initiatives with their official counterparts facilitates contact and influence with policymakers. By contrast, popular initiatives and a number of academic studies – Abu Sitta plan and the Temporary Protection plan – are grounded in international norms. It is also true, however, that while Palestinian popular initiatives have had a significant impact on the Palestinian leadership, they have yet demonstrate similar influence with Israeli international policymakers.

 

It is also interesting to note that most academic and track two initiatives are, similar to their official counterparts, top down, elite-driven approaches to peacemaking. In only several cases – the Ottawa Process and the RIIA/CLS Project – have refugee activists and community leaders been invited to participate in deliberations. Even so, however, the agenda of these particular initiatives tends to reflect the agenda already identified by official initiatives. In practice then these initiatives are driven by or at least can be seen as the ‘long arm’ of official initiatives, feeding off existing elite-driven agenda (reflected, for example, in the territory versus refugee paradigm) rather than contributing a unique bottom-up approach parallel (and also complimentary) to official peacemaking efforts. Sponsors of various unofficial initiatives has thus tended to ignore popular community driven approaches to the refugee question.

 

BADIL Expert Forum

 

It is in this context that BADIL, as a community-based institution, decided to launch a modest expert forum, bringing together community activists, academics, practitioners, and policymakers in both closed and public working sessions to address some of the key elements of the Palestinian refugee question.

 

Why another ‘Expert Forum’?

 

Recent debate and strategizing for durable solutions for Palestinian refugees has not been static. While it is true that on the diplomatic level and among policymakers little has changed over the past fifty years, civil society has been creative and dynamic. Thus we have witnessed, since the early 1990s, a number of developments which have placed a rights-based approach to the refugee issue squarely on the Palestinian and Israeli public agenda. As mentioned above, however, this dynamic has gone largely unnoticed – or deliberately ignored – by policy makers and  architects of track two and academic fora, whose efforts for Middle East peacemaking have remained dominated by traditional assumptions and positions to the exclusion of a rights-based approach. This has resulted in a significant gap in expertise on the refugee issue consonant with the rights discourse common to the refugee and larger Palestinian community.

 

Since the mid-1990s, Palestinian refugees themselves, pushed to re-organize and revisit their case by the political agenda of the Oslo process, have formulated their own ‘road map’ for the solution of their plight based on international law and best practice gleaned from refugee problems worldwide. Their demands for the right of return, housing and property restitution and compensation, respect for the principle of free and individual choice, and participation and representation in the crafting of durable solutions are raised in the framework of local committees and the global Palestine Right of Return Coalition. Their call for a principled and rights-based framework finds support in recent solutions for refugees and displaced persons implemented and/or debated worldwide, not only in post-Soviet-Union East Europe, the former Yugoslavia, East Timor, South Africa[48], but also in world-wide Jewish restitution claims[49] and in restitution/compensation models currently under preparation for Iraq.

 

Based on growing awareness and understanding of international human rights and refugee law, Palestinian refugees have opted for a human rights discourse  that separates their rights – as individuals and as a collective – to return, restitution and compensation from the political question of sovereignty in Palestine. As Wolfensohn observes in the case of self-organized Guatemalan refugees, this discourse and self-organization enables refugees to “reappropriate the space from which [refugees, among others] had been marginalized and assert their ‘right to have rights.’”[50] Palestinian refugees today accept the fact that the choice for return to original homes and properties may mean return under Israeli sovereignty and Israeli citizenship and will mean sharing the land with Jewish-Israelis living there. This is evidenced in hearings in held in refugee camps in the region before the British All Parliamentary Commission of Inquiry.They have thus sacrificed the dream of recovering the Palestine lost in 1948 for the benefit of true historical compromise and reconciliation. Official Palestinian negotiating positions on the Palestinian refugee question advanced at the Camp David summit in 2000 and the 2001 Taba negotiations with Israel reflected a similar rights-based approach.[51]

 

Increased publicity of the Palestinian official and popular demand for a rights-based solution of the refugee question in the context of the Oslo peace negotiations and their eventual collapse, stirred the complacency of Jewish-Israeli society which had become accustomed to believe that “the right of return won’t come up as a serious issue.” The Oslo peacemaking process was, in part, responsible for reinforcing this view. Designed as a two-stage process with the refugee issue left for final status negotiations, both sides tacitly agreed not to discuss so-called final status issues (deemed to be more political sensitive) in order to achieve progress on less sensitive interim issues. As the weaker party in the negotiations, the PLO had a clear short-term interest in avoiding the question of 1948 refugees.

 

Some Israeli negotiators (perhaps wanting to believe so) interpreted this silence over time as Palestinian official acquiescence to the Israeli position on the refugee issue. In other words, the refugee issue was not a serious impediment to a peace agreement. This is illustrated by an anecdotal story told by a foreign ambassador closely linked to discussions on the refugee question. Shortly after the collapse of Camp David and Taba negotiations in 2000-2001 the ambassador had a meeting in Tel Aviv with officials from the former Labor government. Reflecting on the failure of final status talks the Israeli officials asked the ambassador where the refugee issue had come from? The ambassador reported that he had been shocked by the question. “If my country had hundreds of thousands of refugees sitting on its border, you’d better believe we would know there was a serious issue to address.”

 

This challenge to Zionist Israel by the Palestinian right of return discourse reinforces the existing and ongoing challenges presented to Israel’s discriminatory political and legal system by its Palestinian citizen minority and their quest for a ‘state of its citizens,’ equality and collective minority rights. Israel has responded to this compounded challenge with support for military action in the occupied territories, increasingly open talk of population transfer and/or demographic separation, which aim to stop, or at least defer, challenges to the status quo.

 

While Israeli policymakers and the majority of its academia refuse to engage in the Palestinian human rights discourse about the refugee question, a minority of Jewish-Israeli civil society has taken up the challenge. For the first time in fifty years, we witness new and sincere interest in the Palestinian narrative of the 1948 Nakba (catastrophe) and the refugee question, as well as sustained organizing and activity for a rights-based solution by newly formed Jewish-Israeli civil society initiatives as well as some activists in the veteran Israeli ‘peace camp.’ Although a minority, these new initiatives can play an important role in establishing the legitimacy of a rights-based discourse about the Palestinian refugee question in Israeli public debate.

 

BADIL Expert Forum, Aims and Objectives

 

The BADIL Expert Forum was launched in 2003, in order to help build a critical mass of experts in the field of refugee issues who are familiar with the Palestinian case and support a rights-based approach towards its resolution.

 

Thus, the BADIL Expert Forum aims to draw the attention of international policy makers and academia to the merits of a rights-based approach to the Palestinian refugee issue, to encourage relevant research and policy recommendations, and to engage in a constructive interchange with the Palestinian refugee community. With this series of expert seminars, BADIL set out to promote a perspective which does not see Palestinian refugees and their rights as passive recipients of aid, non-political actors, or ‘spoilers,’ but as active and constructive components of successful peacemaking. It is a forum which aims to encourage local and international actors to take seriously the new opportunities, inherent in the Palestinian human rights discourse and its positive reception among sectors Jewish-Israeli society, for the advancement of a rights-based approach to the protracted refugee issue and a just and durable solution of the Israeli-Palestinian conflict.

 

The BADIL Expert Forum, moreover, aims to compile a pool of international knowledge and expertise that can serve local actors to explore and develop indigenous mechanisms for a rights-based solution (return; housing and property restitution and compensation; refugee choice and participation) of the Palestinian refugee question. Due to the predominant approach to Israeli-Palestinian peacemaking which considers a rights-based approach as ‘impractical’ and an obstacle for a rapid negotiated solution, such mechanisms have remained largely unexplored, and local actors lack access to relevant international experience, contacts and information.

 

Topics, BADIL Expert Forum

 

In line with the above aims and objectives, themes and topics for the four BADIL Expert Seminars were selected to focus on those aspects of a rights-based solution for Palestinian refugees which have remained largely excluded from mainstream academic and policy making debate. “The Role of International Law in Peacemaking and Crafting Durable Solutions for Palestinian Refugees” (Seminar-1, Ghent, May 2003), served to lay out the broad agenda, revisit the relation between law and politics, and tackle the important question of ‘how to make law work in politics.’

 

The second Expert Seminar (Geneva, October 2003) was dedicated to the “The Right to Housing and Property Restitution,” a topic which has not been addressed in recent peacemaking efforts focused on exploring models of financial compensation of Palestinian refugee and (sometimes) heated debate over their right of return. Restitution is increasingly recognized as a key element of any durable solution for refugees and displaced persons. The Seminar examined relevant international law and principles, Israel’s discriminatory land laws, and studied lessons learned from comparative mechanisms and experiences applied and/or proposed in Bosnia-Herzegovina, South Africa, Cyprus and Rwanda.

 

The third Expert Seminar was convened in Cairo (March 2004) under the title: “Closing the Gaps: From Protection to Durable Solutions for Palestinian Refugees.” Debate focused on the clarification of strategic thinking and proposals for the improvement of refugee protection in exile as advanced by international agencies (UNRWA, UNHCR) and NGOs, and on ways in which such protection could serve to enhance the durable solution rights (return, restitution and compensation) of Palestinian refugees. It also raised the broader question of regional approaches to durable solutions and highlighted the severe deficit in related legal instruments and mechanisms in the Middle East.

 

“Rights-based Durable Solutions for Palestinian Refugees – Ways Forward” (Haifa, July 2004) is the fourth and final BADIL Expert Seminar. It is designed to ‘bring the issues back home,’ i.e. to present to the local expert and activist community some of the major findings of the 2003 – 2004 Expert Forum, and to explore – with the help of international experts – effective ways for building support for a rights-based solution for Palestinian refugees in Palestine/Israel.

 

Overview – Major Findings/Initial Recommendations

 

What are some of the initial findings and recommendations from the BADIL Expert Forum following the first three seminars? These can be categorized as specific and more general cross-cutting recommendations. Specific recommendations are addressed in the conference summaries prepared for each seminar. The remaining section of this paper addresses more general themes raised in the context of the first three seminars.

 

International Law and Peacemaking

Comparative study of other refugee cases, and regional protection regimes demonstrates that international law has played a marginal role in the practical search for durable solutions for Palestinian refugees.[52] The almost complete disconnect between international law and the search for durable solutions for Palestinian refugees and displaced persons arguably undermines parallel efforts to strengthen rule of law in the region. While other refugee cases also exhibit a tension between international law and realpolitik this tension rarely, if ever, justifies the total exclusion of international law from the peacemaking process. Comparative study also demonstrates that implementation of international law is dependent on political will.[53] Bosnia is a case in point. Without heavy international pressure, few refugees and displaced persons would have been able to exercise their right to return to their homes of origin. Alternatively, implementation of international law may also be effectuated through internally-mediated processes, such as South Africa, addressed below. It is in this context that there is a need for more thorough discussion of restorative and retributive justice and the role of civil society in this process.

 

Civil Society

 

One of the clear themes running through the first three expert seminars was the role of civil society and externally imposed versus internally mediated (including bottom up) approaches to peacemaking. Civil society – Palestinian, Israeli and international – was identified as a key player in the search for durable solutions for Palestinian refugees. What kind of structures are available and what kind of structures are necessary for greater civil society participation in the peacemaking process? To date, the search for solutions has largely been a top-down, elite driven process. While the international has refused (and is unlikely to do so) to impose a solution on the parties, international endorsement of a process driven by realpolitik has had the same effect. Other cases raise important questions that have received little attention in the Palestinian case. The solution in Bosnia was imposed by the international community, but there are lingering questions about whether or not the process will hold once the international community departs the country.[54] The solution in South Africa was mediated locally, however, the role of international civil society and later by states was deemed to be critical in creating the environment for successful local initiatives to dismantle apartheid. The more recent case of Cyprus was externally mediated by the United Nations, which attempted to strike a compromise between legal obligations and political constraints. Failure may be due, in part, to the exclusion of a parallel bottom-up approach.

 

Understanding the Conflict

 

A third theme that emerged from the first three seminars was the need for a broad and inclusive message in which to situate a rights-based approach to the refugee question. Participants also felt that more significant efforts are needed to understand and explain linkages between current issues, such as the separation wall, etc. with the question of Palestinian refugees. In other words, what is the conflict all about? Christine Bell, in her comparative study of human rights and peace agreements identifies this problem as ‘the conflict about the conflict’ or the meta-conflict. As long as the meta-conflict remains unresolved, it is difficult if not impossible to resolve outstanding issues of disagreement between the parties. Do Palestinians and Israeli Jews share a common understanding about the very nature of the more than fifty year old conflict? The Oslo process was based on the assumption of ‘land for peace.’ This very assumption, whether it is correct or not, however, immediately excludes the human rights discourse common to the majority of Palestinian refugees. As noted by the former UN High Commissioner for Refugee in a conference on refugees, reconstruction and reconciliation:

 

When societies have been fundamentally shaken by conflict and group co-existence is at stake, peacebuilding requires an agreed concept of society. Perhaps even when one party totally defeats the other, there must be a minimum common understanding of the causes of the conflict and a genuine compromise on the main features of the future society. … The international community can help to overcome difficulties in implementation, but it cannot substitute for the essence of a common concept of society. That concept must be owned by the people, not by the international community.[55]

 

Conclusion – “What next?”

 

Seminar four concludes the BADIL expert forum. One of the aims of this final seminar, in addition to looking at existing local initiatives, is to begin the process of thinking where to go from here and how to face the challenge of bridging the divide between ‘apology and utopia.’[56] While the shift towards globalization and geogovernance governed by realpolitik has blocked a rights-based approach to the Palestinian refugee question, the local civil society initiatives hold the potential for change by creating, in Richard Falk’s words, a “globalization from below.”[57]

The forum process was originally designed to conclude with a wide-ranging conference bringing together civil society, academic experts, and policymakers to launch initiative. In 2003, however, the conference was put on hold recognizing that more work needed to be done in terms of identifying agenda, procedures, partners, and building networks to maximize the impact and success of such an initiative. Findings and recommendations from this Expert Forum process will subsequently serve as the basis for BADIL consultations with regional and international partners. They will be documented in a policy paper to be prepared at the end of this process.