Excerpts on
restitution from BADIL Working Paper No. 10 (August 2005)
by Michael
Kagan
In this working
paper, refugee law expert Michael Kagan develops the idea of conflicting
rights as a means of addressing Israeli objections to Palestinian refugee
return. Rather than explore Palestinian arguments for the right of return,
this paper starts from the assumption that the right of return exists and
must be accepted by Israel in order to reach a just peace that complies with
international law. Instead, this paper aims to identify and assess separate
claims by Jews or Israelis that cannot coexist with refugee return. Without
this separation, any assertion of Palestinian rights may be misunderstood as
a denial of Israeli interests, and vice versa.
Because
Palestinians base their right to return in international law, many Israelis
may assume that international law leaves no room for their concerns. By
looking at separate, conflicting rights, the interests of both sides can at
least be acknowledged in the discussion, and both assessed through the lens
of international law. This offers a channel of dialogue for Israelis and
Palestinians who want a just solution to the conflict, and responds to
Israeli intellectuals who have sought to acknowledge the justice of
Palestinian claims while finding alternative reasons for opposing the full
implementation of the right of return.
Kagan attempts
to articulate the best case arguments that can be made under international
law for different Israeli claims, and then assesses the relative strength of
each argument. He concludes that Israelis can make serious arguments to
resist specific cases of property restitution, and perhaps certain methods
of refugee return. But he concludes that the frequently asserted claim that
Jews collectively have a right to separate, exclusive self-determination in
a state where they are the dominant majority has little merit in law.
Observations on
the restitution problem
First of all,
secondary occupants’ rights would not block all refugee return, and it would
have little effect in areas of the country that are sparsely populated.
Recent research by scholar Salman Abu Sitta has noted that the majority of
Israeli Jews live in the central region of the country where much of the
land was Jewish-owned before 1948. While much urban refugee property was
transferred to Jews, the majority of confiscated land remains vacant or
sparsely populated. Hence, even if a final settlement took a very lenient
approach toward Israeli property rights, the majority of Palestinian
refugees would likely be able to return to their homes.
Second, not all
Israeli property rights are equal. International law is most protective of
residences and the right of people not to be displaced from their homes;
commercial, industrial and agricultural property will be subject
to much less
protection. In such cases, there is far less harm in displacing the
secondary occupants, who at most should be able to claim compensation for
their investments in the land. This compensation could come from the state,
which is responsible for having misallocated the land, not from the
returning refugees.
Third, the
means by which various Israeli individuals and institutions acquired and
used land may be an important consideration limiting defenses to
restitution. The purpose of protecting secondary occupants is to avoid
disrupting the lives of innocent persons. But where the secondary occupants
were responsible for the original confiscation or for racially
discriminatory allocation of land, it may not bee quit able to protect their
rights over those of return refugees. Proposed UN Principles on Housing and
Property Restitution for Refugees and Displaced Persons state: ‘The
egregiousness of the underlying displacement, however, may arguably give
rise to constructive notice of the illegality of purchasing abandoned
property, preempting the formation of bona fide property interests in such
cases.’
The Jewish
National Fund (JNF) in particular acquired a great deal of confiscated
refugee property in the late 1940s and 1950s through land sales that were
illegal even under Israeli law, and insists to the present day that its
property can only be used for the benefit of Jews. A number of powerful
Israeli constituencies lobbied the Israeli government to distribute
particularly valuable homes to them, and to give lower standard
accommodations to new Jewish immigrants. In such cases, Israeli secondary
occupants may not be able to legitimately block property restitution to
returning refugees.
Fourth, even
where secondary occupants acquired property in good faith, some authorities
state that it is the secondary occupant, not the returning refugee, who
should accept compensation, at least where the original buildings are still
in existence.
Finally, it
remains open to Palestinians to argue that they were victims of a
state-sponsored discriminatory land regime that was inseparable from a
larger campaign of ethnic cleansing. Palestinians can argue that they were
victims of Israel, and have a right to restitution from Israel. If this
requires the state to evict other individuals, then arguably the secondary
occupants should seek compensation or alternative property, rather than
place the burden of compromise on people who spent decades as refugees in
exile.
Since
international law remains ambiguous about how refugees and secondary
occupants’ rights should be balanced, this is an area where Israeli and
Palestinian negotiators may have substantial flexibility to design a
solution. In other conflict resolution settings, the negotiated settlement
prescribed general rules governing restitution along with an individual
claims mechanism to resolve specific cases over the ensuing years. However,
the precise rules varied considerably, especially on the question of how to
weight the rights of secondary occupants.
