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BADIL Occasional
Bulletin No. 09 A Two-State Solution and Palestinian Refugee Rights – Clarifying Principles This Bulletin aims to provide a brief overview of issues related to Palestinian Refugee Rights In late September 2001
US officials confirmed that a new diplomatic initiative was being prepared by the Bush
administration to nudge Israel and the PLO back to the negotiating table. The details of
the initiative have yet to be released, however, information in various press reports
provides a sketch of the broad outlines for a final status agreement. While available
information on the initiative excludes reference to the refugee issue, other aspects of
the initiative give rise to concerns, which require further clarification regarding
Palestinian refugee rights. This bulletin provides a short overview of information
published in the press about the Bush initiative and examines, in particular, the
potential impact for Palestinian refugees. Background Unlike ideas and
proposals presented by former President Clinton, the Bush administration appears to be
staying away from details, focusing rather on a broad framework for a final status
agreement between Israel and the PLO. According to various press reports, the initiative
is based on principles set forth in UN Security Council Resolutions 242 and 338 (often
referred to as the “land for peace” formula), and consists of two main
objectives: 1) two states for two peoples; and, 2) Jerusalem as the capital of both
states. The initiative includes the standard reassurances concerning Israeli
“security” (there is no mention of Palestinian security) and is linked to the
implementation of the Mitchell Committee recommendations of May 2001. If the press reports
are accurate, the framework is essentially consistent with the foundations of the Oslo
process. The only thing new about the initiative, revealed on the heels of US-led efforts
to bring Arab and Muslim states into the “coalition against terrorism,” is that
it represented the first time that a Republican president had endorsed the creation of a
Palestinian state. International support for the creation of a Palestinian state was
subsequently echoed by British Prime Minister Tony Blair who endorsed the creation of a
“viable” Palestinian state. While it remains to be
seen whether the delayed Mitchell Committee recommendations, which contain the same
fundamental flaws as the Oslo process (i.e., lack of reference to international law and no
implementing mechanism), will provide a path back to political negotiations, the real
question is whether this “new” initiative provides a formula for a just and
durable solution to the Palestinian-Israeli conflict. More specifically, does the
initiative address the root causes of the conflict, namely, the denial of the right to
self-determination, and the mass expulsion/exodus and dispossession of the Palestinian
people from their homes of origin? The “Bush
Initiative” and Root Causes of the Conflict To date, there are no
indications that the Bush initiative represents a major shift in US policy regarding the
right to self-determination of the Palestinian people and the right of return and
restitution of property for Palestinian refugees. While the real meaning of the initiative
will only become apparent with a formal announcement by administration officials, press
reports indicate that the initiative only provides for negotiations based upon UN Security
Council Resolutions 242 and 338, rather than the implementation of these resolutions. The ambiguity of this
formula provides a basis for Israeli claims to retain control over key areas of the
occupied territories, rendering Palestinian sovereignty in these areas bereft of any
substance. Reflecting on the impact of Israel’s Camp David II proposal with regard to
the right to self-determination, the Palestinian negotiating team noted that, “In a
prison […] 95% of the prison compound is ostensibly for the prisoners – cells,
cafeterias, gyms and medical facilities – but the remaining 5% is all that is needed
for the prison guards to maintain control over the prisoner population.”
(“Palestinians Answer Frequently Asked Questions About Camp David” 12 July 2001)
It was precisely this formula that led, in part, to the collapse of the final status
negotiations at Camp David II over one year ago. As regards Palestinian
refugees, the details of the initiative are troublesome not only because of what is so
studiously avoided – i.e., reference to UN General Assembly Resolution 194 and the
right of Palestinian refugees to return, restitution, and compensation – but also
because of what the absence of any reference to Palestinian refugees appears to imply
within the context of a two-state solution. First, the absence
implies that the place of return for Palestinian refugees is the proposed state of
Palestine rather than their villages and cities of origin that are located inside Israel.
This formula contradicts the principle of the right of return in international law, the
provisions of UN Resolution 194, which specifically affirm the return of refugees to their
homes, and the concluding observations of UN human rights committees, which have noted
that Israel “discriminates against Palestinians in the diaspora [due to] restrictive
requirements that make it almost impossible to return to their land of birth.” (1998
Concluding Observations of the Committee on Economic, Social and Cultural Rights) Secondly, if press
reports are accurate in suggesting that the initiative will recognize the national
character of each state, the formula will potentially support the discriminatory practices
applied by the Israeli state against its non-Jewish, i.e. mainly Palestinian, citizens and
residents since 1948. The formula “a Palestinian state for Palestinians and Israel
for Israelis” is misleading, because it suggests that there is an Israeli
nationality, while in fact Israel continues to define its national character as Jewish and
not Israeli. In practice, this formula effectively excludes all Palestinians and other
“non-Jews” living in Israel, and, as noted by the UN Committee on Social,
Economic and Cultural Rights, “encourages discrimination and accords a second class
status to [Israel’s] non-Jewish citizens.” (1998 Concluding Observations of the
Committee on Economic, Social and Cultural Rights). The transformation of
Israel into a state of its citizens has been a long-standing demand of the Palestinian
anti-discrimination movement in Israel. Until this goal is achieved, support for
“Israel as Israeli” will mean support for Israel’s ethnically-based
displacement, dispossession, discrimination and rights violations. These violations affect
some one million Palestinian citizens, including some 250,000 internally displaced, as
well as the 1948 externally displaced refugees, who are entitled to return, restitution
and Israeli citizenship under international law. In other words, the
Bush initiative appears to incorrectly perceive the Palestinian refugee issue as an
“explosive” political issue, rather than as a legal issue with clearly defined
parameters for a durable solution. In this respect the initiative is not so different from
efforts by the Clinton administration in 1994, through then ambassador to the UN Madelaine
Albright, to cancel all UN resolutions affirming international law, including Resolution
194, that relate to final status issues. The lack of reference to international law sets
up the Bush initiative for the same kinds of problems and failures as the Oslo process. Root Causes, US
Policy and the Historical Record While the Bush initiative does not appear to represent any great shift in US policy towards addressing the fundamental root causes of the Palestinian-Israeli conflict, the historical record indicates that the lack of a shift continues to stem from a lack of political will and geopolitical interests that override concern for the basic human rights of the Palestinian people, rather than a lack of understanding of the root causes of the conflict and the required remedies. In this context, the initiative also raises questions about the seriousness of the Bush administration in treating the conditions that give rise to frustration and anger with US policy across the Middle East and Islamic world. Writing in early 1948, as the UN General Assembly’s recommendation to partition Palestine into two states against the wishes of the majority of the inhabitants of the country began to unravel, George Kenan, then director of Policy Planning at the State Department stated: “Any assistance the U.S. might give to the enforcement of partition [i.e., denial of the right to self-determination] would result in deep-seated antagonism for the US in many sections of the Moslem world over a period of many years…As a result of US sponsorship of UN action leading to the recommendation to partition Palestine, US prestige in the Moslem world has suffered a severe blow and US strategic interests in the Mediterranean and Near East have been seriously prejudiced.” (Cited in Donald Neff, Fallen Pillars, US Policy towards Palestine and Israel Since 1945 [Italics added]) The study was seconded by the CIA and the Pentagon. By the spring of 1948, the US government attempted to back-pedal from the partition plan, but by then it was too late; military operations by Zionist/Israeli forces had resulted in the expulsion and dispossession of more than half of the Palestinian Arab population of Palestine, some 750,000 refugees. Similarly, in the following
year, the United States recognized that unless principles of international law as affirmed
in UN resolutions were applied to resolve the refugee issue it would be a source of
instability in the region and further cause for antagonism towards the United States. A
Policy Paper prepared by the State Department in March 1949 outlined US efforts to resolve
the refugee problem. “With respect to the attitude of the Israeli government towards
the question of repatriation, we have undertaken and are undertaking action on the
diplomatic level in two respects: (1) with the underlying purpose of safeguarding Arab
absentee property interests in Israel against application of the Israeli ordinance of
December 12, 1948 authorizing sale of such property, we are urging Israel not to take
unilateral action which would prejudice achievement of an agreed settlement on the return
of refugees to their homes and return of property to refugee owners; (2) we are urging
Israel to implement the purposes of the December 11 resolution [i.e., right of return,
restitution, and compensation], as a means of facilitating political settlement of the
Palestine problem and preparing the way for a modus vivendi with the Arab states.”
(Cited in Neff, Fallen Pillars) The Policy Paper concludes: “We should use our best efforts, through the Conciliation Commission and through diplomatic channels, to insure the implementation of the General Assembly resolution of December 11, 1948; We should endeavor to persuade Israel to accept the return of those refugees who so desire, in the interests of justice and as an evidence of its desire to establish amicable relations with the Arab world; We should furnish advice and guidance to the governments of the Arab states in the task of absorbing into their economic and social structures those refugees who do not wish to return to Israel.” Faced with Israel’s refusal to recognize the right of return and facilitate the repatriation of Palestinian refugees, as required under international law, however, the US redirected it efforts towards economic rehabilitation (i.e., resettlement) of refugees in exile. Conclusion While further details
about the Bush initiative may offer alternative conclusions, at present there is no
indication that the Bush administration has learned from the failures of the Oslo process,
or from the historical record. The Bush initiative does not provide an adequate framework
consistent with international law nor does it provide mechanisms to ensure consistent and
efficient implementation. Moreover, unlike early efforts by the US in the immediate
aftermath of the failed partition plan and the 1948 war in Palestine, the initiative fails
to recognize the fundamental root causes of the Palestinian-Israeli conflict – i.e.,
the denial of the right of self-determination and the right of refugees to return to their
homes. The establishment of a
Palestinian state as now endorsed by the Bush administration and Blair’s 10 Downing
Street, cannot alone provide for a durable solution to the conflict or for Palestinian
refugees. The foundation of both states must be consistent with international law. As
regards Israel, this means that refugees and internally displaced Palestinians must be
permitted to exercise their right to return to their places of origin inside Israel, be
restituted of their properties, and receive compensation for losses and damages. A
Palestinian state must be based on Israel’s full withdrawal from the territories it
occupied in 1967 with minor modifications of the border based on mutual agreement between
the parties. Moreover, a shared capital in Jerusalem does not negate the right of
Palestinian refugees to return to their places of origin in the western areas of the city
(just as Israel recognized the right of Jews to return to places of origin in eastern
Jerusalem after 1967) and be restituted of their properties, nor does it negate the right
of Palestinians to be restituted of properties confiscated in the eastern areas of the
city after 1967. While the Bush administration has yet to make an official announcement about this initiative, policy statements by leading human rights organizations like Human Rights Watch and Amnesty International provide a basis for acceptable language on Palestinian refugees to be included in such an announcement. “[Any viable final] agreement should recognize [the right of
return] for Palestinian refugees and exiles from territory located in what is now Israel
or in what is likely to be a future state of Palestine. […] Like all rights, the
right to return binds governments. No government can violate this right. Only individuals
may elect not to exercise it. […] The
international community has a duty to ensure that claims of a right to return are resolved
fairly, that individual holders of the right are permitted freely and in an informed
manner to choose whether to exercise it, and that returns proceed in a gradual and orderly
manner.” (Human Rights Watch, December 2000) “With regard to the
specific issue of Palestinian exiles […] durable solutions respectful of their human
rights must be made available to them in any final peace agreement. Their right to return
has been recognized by the United Nations since UN General Assembly Resolution 194 (III)
of 11 December 1948 [… and] continues to be recognised by authoritative bodies within
the UN system for the protection of human rights. Any peace agreement reached should
resolve the issue of the Palestinian diaspora through means that respect and protect
individual human rights. […] There are other considerations that must be addressed in
the negotiations -- the security concerns of both sides, for instance -- but these issues
must be resolved within a framework that does not sacrifice individual human rights to
political expediency. […]” (Amnesty International, March 2001) Moreover, the US would find a framework for resolving
the root causes of the conflict - self-determination and the right of return - in a 1976
plan (A/31/35-21 July
1976) prepared by the United Nations.
During the first phase of the plan, Palestinians displaced
in 1967 would be allowed to return immediately to the occupied West Bank (including
eastern Jerusalem) and the Gaza Strip. At the same time, preparations would be made for
the return of Palestinians displaced in 1948 to their places of origin inside Israel.
These would include designation or creation of a competent agency to be entrusted with the
organizational and logistical aspects of the mass return of displaced Palestinians; creation
and financing of a fund for that purpose;
and registration
of displaced Palestinians other than those already registered with UNRWA. Following the completion of these preparations the
second phase of the plan would facilitate the return of refugees choosing to go back to
their places of origin now inside Israel. Palestinians
not choosing to return to their homes would be paid just and equitable compensation as
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