What Role for Refugees in an Agreed Upon Solution?[1]

In recent years it has become increasingly common to emphasize that any solution to the Palestinian refugee question must be agreed upon. The Arab peace initiative and the Road Map both call for an agreed upon solution. This appears to be a common sense approach to resolving what the Office of the UN High Commissioner for Refugees (UNHCR) describes as “[b]y far the most protracted and largest of all refugee problems in the world today.”^[2] Solutions that are agreed upon, in contrast to imposed ones, are widely seen to be more durable, not least of which is due to the broad ownership that such approaches tend to generate.^[3] The question is: agreed upon by whom? What role, if any, do refugees themselves have?

Participation is not only a right in itself, but also “a means towards the ends of protection and durable solutions.”^[4] Literature on political participation similarly describes participation as a pre-condition to the enjoyment of all other rights.^[5] Agency handbooks and guidelines underline the importance of refugee participation at all stages of a refugee crisis. The Global Consultations on International Protection, an international effort to improve refugee protection worldwide, explicitly recommend that UNHCR “[f]acilitate the participation of refugees, including women in peace negotiations.”^[6] Yet there are few apparent examples where refugees have actually participated in the negotiation of their own solutions, the most visible being the direct participation of the camp-based Permanent [refugee] Commissions in the Guatemalan peace process during the mid 1990s.^[7]

The absence of refugees from the negotiating table may be explained by a number of factors: insecurity related to the fact that one’s negotiating partners may be those responsible for policies and practices that led to displacement, lack of trust or cynicism about the political process, insufficient skills, knowledge and/or resources to participate, disagreements among refugees about who should represent them and/or the refusal of elites to open up the peacemaking process. In some cases, refugees may simply not wish to participate. Others may have a direct voice in determining their own futures, but their methods of participation may be overlooked or made “invisible” by western-oriented models of political participation. At the same time, refugees face a number of obstacles to participation in peace negotiations that are inherent in the international human rights and refugee regimes.

To begin, international law is not altogether clear on the extent to which the individual right to participate in the political affairs of one’s country applies to peace negotiations.^[8] Human rights instruments simply affirm that refugees have a right to participate in the “public affairs” of their country after they return.^[9] In other words, the individual right to participation “kicks in” presumably after a peace agreement has been struck. Repatriation operations, for example, often ensure that returning refugees are able to vote in post-agreement elections. Aside from provisions for electoral participation, the law itself is indeterminate on the mechanism through which individuals may participate in the public affairs of their country. The law on self-determination, meanwhile, would only appear to provide for participation in referendum and plebiscites in cases of decolonization.

International law thus appears to give state actors relatively “broad discretion” over the “modalities of [the individual right to] participation” in public affairs, including the participation of refugees in peace negotiations to craft durable solutions.^[10] While UNHCR policies and guidelines (i.e., “soft law”) refer extensively to refugee participation, the right itself is not enumerated in any of the refugee law instruments. At the same time, the state, which has the primary duty under international law to respect, protect and promote the right to participation, is often responsible for the displacement of its own population. In conflicts of an ethnic or national character, it is the very exclusion of individuals and communities from the political decision making process that often gives rise to forced displacement. Relying solely on the state then to include refugees in the political decision making of a peace process may be too much to expect.^[11]

Efforts by international institutions like UNHCR to facilitate refugee participation in negotiations are similarly constrained by the nation-state system. UNHCR may encourage states to involve refugees in peace talks, but it has no means to ensure their participation. The agency has discussed, but not adopted, the idea of including refugees in tripartite commissions (comprising UNHCR, the country of origin and host state) to facilitate repatriation. At the same time, some researchers question whether “it is even possible, given the dominant organizational culture of UNHCR, to establish conditions for meaningful refugee participation.”^[12] A 2004 UNHCR evaluation described “refugee participation itself [as having been] largely been marginalized or treated as a kind of occupational therapy to keep refugees busy while real decisions are taken elsewhere.”^[13]

What does all of this mean for an agreed upon solution to the Palestinian refugee question? The fact that the law is less than clear about the right of refugees to participate in peace negotiations means little in a situation where international law itself has been excluded from the peace making process.^[14] Neither Israel and the PLO nor the international community, generally, have actively encouraged the participation of refugees. As Haifa Jamal, a refugee from Shafa Amr in the Galilee, and the director of Association Najda in Lebanon, remarked to a British Commission of Enquiry on Palestinian refugees in 2001:

[E]very year we hear more stories and scenarios about what might be the solution for the refugees. We hear that no one considers solving it based on UN Resolution 194. They talk about this resolution, but in reality they don’t discuss it to solve our problem. Sometimes we hear that they will send us to Canada, Australia or to London. Really, we hear different things every day. But no one comes to ask us our opinion and point of view. […] Always we said: “We are human beings. You should ask us.”^[15]

While many Palestinian negotiators are themselves refugees, “the fact of being a refugee,” as one former negotiator has acknowledged, “does not necessarily mean that one represents refugees.”^[16]

Palestinian refugees outside the OPT were also prevented from voting in elections for the Office of the President of the Palestinian Authority and the Legislative Council that was setup in the occupied West Bank and Gaza Strip under the Oslo agreements. According to Israel’s senior legal advisor at the time, Israel was concerned that if it allowed 1967 refugees to participate in PA elections, they may demand to return to the OPT in order to cast their ballots.^[17] Nor have Palestinians been able to hold elections for the Palestine National Council (PNC), the parliament in exile representing all Palestinians, a measure which would allow refugees and non-refugees alike an opportunity to participate in determining their own future. Refugees outside the OPT protested this exclusion by holding symbolic elections for the PNC during the 2006 Palestinian Legislative Council elections.

Meanwhile, the fact that international agencies like UNHCR can do little more than encourage states to involve refugees in peace talks has little relevance in a situation where there is no agency with an explicit mandate to search for and implement durable solutions for Palestinian refugees.^[18] While some have suggested that this role devolved from the UNCCP to the UN Secretary-General, the Secretary-General in his role as a member of the Middle East Quartet has neither promoted refugee participation in negotiations, nor the “essential rights” commonly afforded to refugees elsewhere, namely, the right to voluntary return; the right to citizenship, identity and participation; the right to property; and, general human rights.^[19] Even in the area of elections, which has been central to UN missions elsewhere, the international organization in its role as a member of the Quartet has been silent on the exclusion of the majority of Palestinian refugees from the electoral process.

The political self-organization of Palestinian refugees in the OPT and in other communities of exile further afield beginning in the 1990s provides an important antidote to some of the problems in the international human rights and refugee law regimes that hinder refugees from participating in the negotiation of their own solutions, namely, the lacunae in international law, the predominant role of the state and the limited ability of the international refugee regime to facilitate such participation.^[20] Political self-organization and mobilization are not a means to “replace” the state or to “negate” the role of international actors like UNHCR, but rather, a mechanism to overcome the exclusion that the law, the state and the refugee regime often create.^[21] At the same time, it is a mechanism through which refugees contribute to the development of the law itself.^[22]

The example of the Permanent [refugee] Commissions in Guatemala illustrates how political self-organization and mobilization there enabled refugees to overcome the exclusionary politics of the Guatemalan state, participate in the determination of their own solutions and realize their basic human rights and fundamental freedoms. A tradition of collective organization, the maintenance of community structures in exile, the spatially-concentrated camp environment and physical and material security contributed to their ability to engage in the search for solutions while the support of UNHCR, NGOs and faith-based organizations enabled them to leverage the Guatemalan state’s need for international development assistance and the interests of neighboring states for a solution to the refugee crisis in Central America to “pry open” the peacemaking process. Post return disputes over land rights and the struggle of refugee women to maintain the freedoms they had won in exile provide some important lessons for refugees elsewhere.

Notwithstanding, the obvious differences between the two conflicts and the problems faced by Guatemalan refugees when they returned home, the Guatemalan experience reinforces the importance of self-organization and mobilization among Palestinian refugees. In fact, the assumption of a two-state solution based on ethno-national separation, the limited role of the UN in the peacemaking process, the exclusion of international law, the political and legal deficiencies in the Arab world and the relative weakness of the PLO heighten the role of collective action by Palestinian refugees in securing their basic rights. Palestinian refugees share many of the conditions that enabled the self-organization and mobilization of Guatemalan refugees. The democratic structures proposed by Palestinian refugees for a popular refugee campaign, including an elected General Refugee Council, are not unlike those in Guatemala.

While it is ultimately up to refugees themselves to make these representative structures a reality, the UN, Arab states, the PLO and civil society actors can each play an important supporting role. A description of the role of each is beyond the scope of this short article, however, in comparison to the Guatemalan example, the role of the United Nations in promoting international law and that of the regional actors in creating the architecture for an agreed upon solution to the Palestinian refugee question is weak.^[23] While Israel is relatively strong, calls for boycotts, divestment and sanctions linked to its respect for refugee rights, is an important component in creating the kind of leverage that helped Guatemalan refugees to secure their rights. In the meantime, “forward-looking political acts”^[24] like demonstrations, petitions, commemorations (e.g., Nakba) and other types of demands for the rights of return and restitution have the effect of casting the “shade of the law”^[25] over the negotiation process. While its “shadow” may be short, in terms of the lack of formal enforcement mechanisms, it is broad in the sense that such demands are also expressions of popular sovereignty, that is to say, the will of the people, which is the essence of an agreed upon solution to the refugee issue.