Over the past ten days, while Palestinian and Israeli negotiators have been sequestered at Camp David, Palestinians from all political factions have taken to the streets calling upon the Palestinian leadership and the international community to uphold refugee rights, foremost being the right of return. In the last several days, Palestinians have staged public sit-ins at the Palestinian Legislative Council in Ramallah (July 19) where refugees from Balata camp presented the Council's First Deputy, Ibrahim Abu Naja with a memorandum calling upon the negotiators to uphold UN Resolution 194 as the basis for a solution to the refugee issue. In the north, refugees from the Tulkarem and Nablus area camps held a sit-in at the Tulkarem checkpoint (July 18). In the south, refugees from Aroub and Fawwar camps marched towards Hebron (July 19), holding signs with names of the destroyed villages and banners calling upon the negotiators and international community to support the refugees' rights. Tomorrow (July 22), demonstrations in support of right of return and Palestinian rights in Jerusalem are being organized by Hamas in the West Bank and in Gaza.
While a durable solution for Palestinian refugees - and the Arab-Israeli conflict in general - must be based on international law, press reports have suggested that what is being pushed by Israel, and through American bridging proposals, is an arrangement based on subjective political factors - namely Israel's refusal to allow refugees to return. This framework, which would supposedly include provisions for family reunification of between 10 and 100 thousand Palestinian refugees, focuses predominantly on compensation as a "substitute" for return (President Clinton is expected to press for international financing of such a scheme at the G8 Economic Summit in Okanawa, Japan). The vast majority of Palestinian refugees would be involuntarily resettled in their current places of exile. Implementation of this framework would be deemed as the implementation of UN Resolution 194 (III).
In fact, such an agreement would neither be consistent with the meaning of Resolution 194 and intentions of those who drafted the resolution, nor would it be consistent with international law. The internationally recognized framework for a resolution of the Palestinian refugee issue, set down under 194, lists four components for a durable solution: repatriation, resettlement, social and economic rehabilitation, and compensation. Importantly, the paragraph also set down a preferred solution, comprising return and compensation based on the wishes of each individual refugee.
According to the UN Secretariat, and based on the text of committee debates, the resolution intended to confer upon the refugees as individuals the right of exercising a free choice as to their future. The choice was between repatriation and compensation for damages suffered, on the one hand, or no return and compensation for all property left behind, on the other hand. "There is no doubt that in using this term the General Assembly meant the home of each refugee, i.e., his house or lodging and not his homeland," wrote the Secretariat. "This is indicated by the fact that two amendments using the term 'the areas from which they have come' were rejected."(1)
The Secretariat also stated that the Resolution affirmed two types of compensation: payment to refugees choosing not to return to their homes, and payment for the loss or damage to property, including looting, pillaging, plundering of private property, and destruction of property and villages without military necessity. Draft resolutions by the United States and others were rejected, as they did not include reference for loss of or damage to properties. The Secretariat also noted that while ordinary war damage was excluded from the resolution, the language of the resolution did potentially provide for a broader set of claims based on international law.(2)
This framework set down in UN Resolution 194 (III) is fully consistent with international refugee law, which provides three options for durable solutions for refugee flows: repatriation, host country absorption, and third country resettlement. Of these three options, the international community has recognized repatriation as the preferred solution for refugees.(3) More importantly, each of these options is governed by the fundamental principle of voluntariness, i.e. refugee choice. In other words, a refugee cannot and must not be forced into any option not of her/his choosing. Resolution 194 was also remarkably forward-looking, stipulating that refugees should also receive compensation and that social and economic rehabilitation would be necessary in order to stabilize the situation and prevent future flows of refugees.
The framework is also consistent with the wider body of international human rights law including the Universal Declaration of Human Rights, which recognizes the right to return to one's country, as defined by habitual residency, property, family ties, center of interests, attachment, and expressed intentions, and the right not to be arbitrarily deprived of one's property.(4) Various United Nations human rights bodies have subsequently reaffirmed the applicability of these rights for Palestinian refugees. In 1998, the Committee on the International Convention on the Elimination of All Forms of Racial Discrimination noted that "The right of many Palestinians to return and possess their homes in Israel is currently denied. The State Party [Israel] should give high priority to remedying this situation. Those who cannot re-possess their homes should be entitled to compensation."(5) In the same year, the Committee on Social, Economic and Cultural Rights "strongly recommend[ed] a review of re-entry policies for Palestinians who wish to re-establish domicile in their homeland, with a view to bring such policies to a level comparable to the Law of Return as applied to Jews."(6)
A durable solution for Palestinian refugees and long-term peace and stability in the Middle East must be based on universal principles of international law, including those affirmed in UN Resolution 194 (III). According to the Preamble of the Universal Declaration of Human Rights, adopted one day before UN Resolution 194 (III), it is the recognition of "the equal and inalienable rights of all members of the human family [that] is the foundation of freedom, justice and peace in the world" - not the subjective political factors and the unequal balance of power of Camp David II. Reflecting the universality of the right of return outside the closed doors of Camp David, nearly three quarters of Americans polled in a recent survey agreed that Palestinian refugees have the right to return to their homes.(7)
In this context a durable solution would include several components: 1) recognition of UN Resolution 194 (III) and the rights affirmed therein; 2) gathering of technical data, including a determination of the choices of each individual refugee, means of livelihood, and place of origin, for the design of a durable solution; 3) a comprehensive plan of action, with multi-agency participation, to facilitate implementation of the durable solution. Any agreement which does not afford recognition and implementation of Resolution 194 will not only be a violation of international law, but will be a recipe for ongoing conflict in the region.
(1) UN Document W/45, 15 May 1950. Analysis of paragraph 11 of the General Assembly's Resolution of 11 December 1948. United Nations Conciliation Commission for Palestine.
(2) Legal Aspects of the Problem of Compensation to Palestine Refugees, Paolo Contini (22 November 1949), appended to UN Document W/32, Letter and Memorandum dated 22 November 1949 Concerning Compensation. United Nations Conciliation Commission for Palestine. UN Document A/AC.25/W.53, 13 September 1950, Note on the Problem of Compensation. United Nations Conciliation Commission for Palestine.
(3) UNHCR, Executive Committee Decisions No. 18 (XXXI) - 1980 Voluntary Repatriation, and No. 40 (XXXVI) - 1985 Voluntary Repatriation.
(4) For more on the meaning of "one's own country" based on a comparative and contextual meaning of the Article and the travaux preparatoires, see Kathleen Lawand, "The Right to Return of Palestinians in International Law," International Journal of Refugee Law, Vol. 8 No. 4 (1996).
(5) Concluding Observations: Convention on the Elimination of All Forms of Racial Discrimination, 1272nd Meeting, 19 March 1998.
(6) Concluding Observations: Covenant on Economic, Social, and Cultural Rights, 31st and 33rd Meetings, 17 and 18 November 1998.
(7) Arab American Institute/Zogby International poll conducted from July 14-17, 2000 nationwide of 890 likely voters with a margin of sampling error of +/- 3.4 percent.