One of the most cogent explanations can be found in the verbatim records and summary findings of an all-party British Commission of Enquiry on Palestinian Refugees that held hearings in camps and communities of exile across the Middle East in the weeks that followed the July 2000 collapse of final status negotiations between Israel and the PLO. Describing representation as the most complex yet least studied and understood element of refugee life, the Commission reiterated refugee concerns about the urgent need to address gaps in representation at all levels - political, legal, collective and individual.[ii] A primary demand of those hoping to rectify the crisis and restore the unity of the Palestinian people has been the call for direct elections to the PLO's National Council. A campaign undertaken over the last year aims to make such elections a reality through registration of the majority of prospective Palestinian voters who reside involuntarily or otherwise outside the borders of mandate Palestine.[iii] The enfranchisement of Palestinian refugees in PNC elections draws attention to an issue which has received relatively little attention in the discussion of refugee rights, namely, the right to take part in the conduct of public affairs whether directly or through freely chosen representatives.
Refugee participation in elections
Recent decades have witnessed growing recognition, in principle and in practice, of the right of refugees to take part in elections in their countries of origin. This is not to say that the issue was unheard of in previous decades. Plebiscites during the inter-war period frequently allowed residents residing abroad to take part conditional upon their return. A number of major decolonization agreements in the 1960s and 1970s beginning with Algeria included specific provisions relating to the participation of refugees displaced in the context of struggles for national liberation and independence. While these agreements also made participation conditional on return, more recent referenda - e.g., Eritrea and East Timor - have also provided for out-of-country voting. Rooted in the law and practice of self-determination, growing recognition of the right of refugees to take part in home country elections can be ascribed to the increasingly determinate character of the right to vote under international law, the expansion of liberal democracy and its centrality to contemporary peacebuilding missions, the impact of globalization on practices of political participation and the consideration of forced displacement as a human rights issue. It can also be ascribed, however, as the Palestinian case illustrates, to the participatory demands of refugees themselves.
Articulation of the electoral rights of refugees in the UN High Commissioner for Refugees' (UNHCR) Handbook on voluntary repatriation and in a General Recommendation on article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination by the UN committee responsible for its oversight in the mid-1990s exemplified emerging understanding of refugee enfranchisement as a protection and human rights issue.[iv] The issue has since been taken up at the regional level in Europe where Organization for Security and Cooperation (OSCE) and Council of Europe (CoE) declarations, codes of good conduct and commitments governing democratic elections address the participation of refugees. More recently, the UN Secretary-General has endorsed a "Preliminary Framework" on "Ending Displacement in the Aftermath of Conflict" which calls among others for "[s]pecial efforts ... to develop policies and legislation that allow displaced persons to fully exercise their rights, including the right to participate in public affairs, elections and peace-building processes, and ensuring that their views are sought and taken into account in ongoing peace processes and the development of policies that affect them".[v] Inclusive of elections, the Framework underscores the importance of addressing refugee participation in a range of contexts including the negotiation of solutions to their situation which often precedes the holding of "post-conflict" elections.
Treaties which enshrine political participation as a fundamental human right, however, have yet to address the specific situation of refugees, or more specifically, the situation of citizens who are outside their home countries notwithstanding the fading relevance of residence to the exercise of the right to take part in the conduct of public affairs. Addressing this lacuna, the International Organisation for Migration's (IOM) "Participatory Election Project", which sought to identify relevant obligations, standards and best practices, suggested that the voting rights of refugees under international law may be deduced from the over-arching principle of non-discrimination.[vi] Initial case law in Europe further suggested that a distinction with regard to residence should be made between citizens residing abroad voluntarily and those outside their country of citizenship involuntarily though it did not address the specific situation of refugees.[vii] More recent jurisprudence relying on the CoE's Code of Good Practice in Electoral Matters, moreover, appears to support the assertion that exclusion of refugees from home country elections may comprise an arbitrary and therefore prohibited restriction on the exercise of the right to political participation.[viii] A developing area of law, recommendations that the right to political participation of refugees be enshrined in a binding instrument have nevertheless yet to be addressed.
The rationale commonly cited for enfranchising refugees extends beyond widespread recognition of voting as a fundamental human right. Documentation and registration of refugees, campaign activities along with the act of voting itself provide means to renew communication and re-establish connections between refugees and their communities of origin. The inclusion of refugees in home country elections may also contribute to national reconciliation and help to ensure their involvement in national reconstruction and development. Enfranchising refugees can also rectify and guard against demographic gerrymandering by ensuring their participation regardless of their displacement. The legitimacy of an election may also hinge on whether refugees are allowed to take part particularly when they comprise a significant sector of the population at the national or constituency level. Finally, in situations where elections precede the conclusion of a peace agreement, the participation of refugees can also help ensure that official negotiators represent their rights, interests and aspirations.[ix]
The participation of refugees in post-conflict elections in Cambodia and Mozambique in the early 1990s arguably influenced UNHCR's subsequent elaboration of policy. With enfranchisement largely conditional on refugee return, elections in Bosnia and Herzegovina and in Kosovo in the latter half of the decade established new standards governing the electoral participation of refugees through out-of-country voting procedures. In all four cases, peace agreements included explicit provisions relating to the inclusion of refugees in post-conflict elections. The enfranchisement of refugees appears to be addressed more commonly, however, through agreement provisions relating to the timing of return and human rights guarantees from which the electoral rights of refugees may be inferred. In other cases, such as Croatia, refugee enfranchisement has been addressed in the rules and procedures governing elections. In most cases, enfranchisement takes place through the return of refugees prior to the holding of elections with out-of-country voting procedures in cases like Bosnia and Herzegovina, Kosovo and more recently in Afghanistan and Iraq the exception rather than the rule. Practice is nevertheless inconsistent, varies widely across regions and falls well behind the elaboration of principle.[x]
This has been attributed in part to the fact that the electoral rights of refugees have yet to be codified in a binding instrument. It is only in the last decade, moreover, that relevant bodies like UNHCR and IOM have begun to elaborate standards and best practices to guide humanitarian and political actors.[xi] The participation of refugees in home country elections also raises a host of challenges including reform or repeal of discriminatory legislation; identification, documentation and registration of voters; provision of adequate and timely voter information; establishment of conditions for safe and voluntary return of refugees to facilitate in-country voting; the added complexities and costs of out-of-country voting; and the opposition to or limitations imposed on out-of-country voting by countries of asylum.[xii] There is also the broader danger that if not well-designed elections can be a trigger for renewed conflict or a source of new disputes with the potential for new waves of displacement. Thus, while elections continue to be a central pillar in transitions from war to peace, there is also growing recognition of the importance of additional or supplementary mechanisms which enable the participation of a broad range of stakeholders in peacebuilding processes.
Enfranchising Palestinian refugees
A brief comparison with the Palestinian experience underscores the importance of recent calls for direct elections to the PLO's National Council as a starting point for addressing the aforementioned crisis over representation that is now at least two decades old. The idea of holding a referendum to enable Palestinians to determine their own future, for example, has been set aside repeatedly since the early days of the conflict in favor of mechanisms which provide little opportunity for participation. When raised, moreover, the parties have been unable to agree on the inclusion of refugees who comprise the majority of the Palestinian people.[xiii] The enfranchisement of refugees who originate from areas inside Israel has yet to be addressed while those who originate from the West Bank, East Jerusalem, and Gaza Strip have been excluded albeit "temporarily" from the Palestinian Authority's legislative and presidential elections.[xiv] Initially sidelined in favor of a quota system due to the non-cooperation of Arab host states, the subsequent focus on statebuilding along with disagreements over reforms to facilitate the participation of Islamist groups have further militated against direct elections for the PLO's National Council.
The holding of direct elections for the PNC, notwithstanding legal, political, administrative and logistical challenges, nevertheless provides one of the most immediate or realistic and comprehensive mechanism to enable Palestinian refugees to have a say in decisions that affect their lives including their future. Such elections would appear, among others, to provide a mechanism to enhance communication and strengthen connections between refugees and their leadership, facilitate national reconciliation, and help to ensure that negotiators represent the rights, interests and aspirations of refugees. Enfranchising refugees through PNC elections, however, would also appear to break new ground in comparison to refugee situations elsewhere. Conducted in the absence of a state or an agreement ending the conflict with civil society taking a significant role in its organization and refugees comprising the majority of the electorate such elections suggest a need to fundamentally rethink past approaches to resolving the conflict, including the situation of Palestinian refugees, as well as the application and sequencing of conflict resolution methodologies used elsewhere.
Baumgarten, Helga. "The Three Faces/Phases of Palestinian Nationalism, 1948–2005," Journal of Palestine Studies 34/4 (2005): 25-48.
Case Studies on the Participation of Conflict Forced Migrants in Elections, Participatory Elections Project (Geneva: International Organization for Migration, 2003).
Ellis, Andrew, Carlos Nevarro, Isabelle Morales, Maria Gratschew, Nadja Braun (ed.), Voting from Abroad, The International IDEA Handbook(Stockholm: International Institute for Democracy and Electoral Assistance and The Federal Electoral Institute of Mexico, 2007).
Fischer, Jeff. "The Political Rights of Refugees and Displaced Persons: Enfranchisement and Participation," in Voting from Abroad, The International IDEA Handbook, ed. Andrew, Ellis, Carlos Nevarro, Isabelle Morales, Maria Gratschew, Nadja Braun (Stockholm: International Institute for Democracy and Electoral Assistance and The Federal Electoral Institute of Mexico, 2007), 151-71.
Goodwin-Gill, Guy. Free and Fair Elections (Geneva: Inter-Parliamentary Union, 2006).
Grace, Jeremy. The Electoral Rights of Conflict Forced Migrants: A Review of Relevant Legal Norms and Instruments(Geneva: International Organization for Migration, 2003).
Grace, Jeremy and Jeff Fischer. Enfranchising Conflict-Forced Migrants: Issues, Standards, and Best Practices. Discussion Paper No. 2(Geneva: International Organization for Migration, 2003).
Jeremy Grace and Erin Mooney, "Peacebuilding Through the Electoral Participation of Displaced Populations," Refugee Survey Quarterly28/1 (2009): 95-121.
Handbook, Voluntary Repatriation: International Protection(Geneva: United Nations High Commissioner for Human Rights, 1996).
Hilal, Jamil. "The PLO: Crisis in Legitimacy," Race & Class37/2 (1995): 1-18.
Liebler, Anat and Daniel Breslau. "The Uncounted: Citizenship and Exclusion in the Israeli Census of 1948," Ethnic and Racial Studies 28/5 (2005): 880-902.
Long, Katy. Voting with Their Feet: A Review of Refugee Participation and the Role of UNHCR in Country of Prigin Elections and Other Political Processes(Geneva: United Nations High Commissioner for Refugees, 2010).
Mandal, Ruma. Political Rights of Refugees(Geneva: United Nations High Commissioner for Refugees, 2003).
Nabulsi, Karma. "Being Palestinian," Government and Opposition 38/4 (2003): 479-96.
Nabulsi, Karma. "Popular Sovereignty, Collective Rights, Participation and Crafting Durable Solutions for Palestinian Refugees," in Rights in Principle, Rights in Practice: Revisiting the Role of International Law in Crafting Durable Solutions for Palestinian Refugees, ed. Terry Rempel (Bethlehem: BADIL Resource Center for Palestinian Residency & Refugee Rights, 2010), 71-87.
Palestinian Notables, "Statement Opposing 'Gaza-Jericho First', Amman, Sept. 1, 1993," reprinted in, Journal of Palestine Studies 23/2 (1993): 130-1.
Palestinians Register: Laying Foundations and Setting Directions, Civitas Project Report(Oxford: Nuffield College, University of Oxford, 2006).
Right of Return: Joint Parliamentary Middle East Councils Commission of Enquiry - Palestinian Refugees(London: Labour Middle East Council, Conservative Middle East Council, Liberal Democrat Middle East Council, 2001).
Roberts, Hannah. FMO Research Guide: Forced Migration and Electoral Participation(Oxford: Forced Migration Online, 2003).
Singer, Joel. "The Emerging Palestinian Democracy under the West Bank and Gaza Strip Self-Government Arrangements," Israel Yearbook of Human Rights 26 (1996): 313-65.
* Terry Rempel is an independent researcher and consultant. A founding member of BADIL Resource Center, his research interests include ongoing work on durable solutions for Palestinian refugees and legal and comparative aspects of refugee participation in peacemaking contexts.
[i] Palestinian Notables, "Statement Opposing 'Gaza-Jericho First', Amman, Sept. 1, 1993," reprinted in, Journal of Palestine Studies 23/2 (1993): 131. The origins of this "crisis" can be traced to the adoption of a quota system in the absence of an environment conducive to the holding of direct elections for the PNC. The bureaucratization of the PLO, the failure of the organization's leadership to rely on its popular institutions to advance Palestinian rights and the PLO's relocation to Tunis in the 1980s which separated the leadership from the people, as others have pointed out, contributed to the growing crisis over representation. Hilal, Jamil. "The PLO: Crisis in Legitimacy," Race & Class37/2 (1995): 1-18; Helga Baumgarten, "The Three Faces/Phases of Palestinian Nationalism, 1948–2005," Journal of Palestine Studies 34/4 (2005): 25-48; and, Karma Nabulsi, "Popular Sovereignty, Collective Rights, Participation and Crafting Durable Solutions for Palestinian Refugees," in Rights in Principle, Rights in Practice: Revisiting the Role of International Law in Crafting Durable Solutions for Palestinian Refugees, ed. Terry Rempel (Bethlehem: BADIL Resource Center for Palestinian Residency & Refugee Rights, 2010), 71-87. While the majority of the 1993 Declaration deals with the future status of the 1967 occupied Palestinian territories, the inclusion of solutions for 1948 refugees who originate from areas inside Israel on the agenda of final status talks meant that the Declaration essentially addresses the future of historic Palestine as a whole.
[ii] Right of Return: Joint Parliamentary Middle East Councils Commission of Enquiry - Palestinian Refugees(London: Labour Middle East Council, Conservative Middle East Council, Liberal Democrat Middle East Council, 2001), 17-18. See also, the verbatim records of subsequent deliberations among Palestinians facilitated by the Civitas initiative. Palestinians Register: Laying Foundations and Setting Directions, Civitas Project Report (Oxford: Nuffield College, University of Oxford, 2006).
[iii] Civic Registration for Direct Elections to the PNC <http://palestiniansregister.org/> [visited Mar. 6, 2013]. The registration campaign estimates that 60 percent of eligible voters reside outside the borders of historic Palestine. This includes Palestinians displaced during the major wars of 1948 and 1967 and a smaller number of Palestinians displaced from Israel and the West Bank, East Jerusalem, and Gaza Strip during the almost uninterrupted period of Israeli military occupation that followed. The pool of prospective voters also includes an unknown number of Palestinians who voluntarily relocated elsewhere in the region or further abroad - though the degree of voluntariness is difficult to establish in the context of more than six decades of unresolved armed conflict.
[iv] UNHCR's Department of International Protection and Policy Development and Evaluation Service have also discussed the issue in a number of recent policy papers while United Nations treaty committees in recent years have begun to address the electoral participation of refugees and internally displaced persons in concluding observations on compliance of state signatories. Ruma Mandal, Political Rights of Refugees(Geneva: United Nations High Commissioner for Refugees, 2003); and, Katy Long, Voting with Their Feet: A Review of Refugee Participation and the Role of UNHCR in Country of Prigin Elections and Other Political Processes(Geneva: United Nations High Commissioner for Refugees, 2010).
[v] "Ending Displacement in the Aftermath of Conflict: Preliminary Framework for Supporting a more coherent, predictable and effective response to the durable solutions needs of refugee returnees and internally displaced persons", Decision No. 2011/20; Durable Solutions - Followup to the Secretary-General's 2009 Report on Peacebuilding, Oct. 4, 2011.
[vi] Jeremy Grace, The Electoral Rights of Conflict Forced Migrants: A Review of Relevant Legal Norms and Instruments. Discussion Paper No. 1 (Geneva: International Organization for Migration, 2003),17. The lacuna was identified earlier by the UN Secretary-General's Special Representative on Internal Displacement in his 1995 report which led to the drafting of a set of guiding principles on the rights of internally displaced persons which include reference to the right to political participation.
[vii] The author of the complaint (X v United Kingdom) argued that British legislation which restricted participation in national elections on the basis of residence, with the exception of British diplomats and members of the Armed Forces stationed abroad, violated the prohibition of discrimination under article 14 of the European Convention on Human Rights. The study further observed that since transparency is one of the primary justifications for residence-based limitations, where there are appropriate guarantees residency would presumably be considered unreasonable. Ibid., 22.
[viii]The case (Melnychenko v Ukraine) involved a refugee who alleged that rejection of his right to stand for election in his home country comprised a violation of article 3 of Protocol 1 to the European Convention on Human Right. Guy Goodwin-Gill, Free and Fair Elections (Geneva: Inter-Parliamentary Union, 2006), 64-6.
[ix] The rationale cited in this paragraph are common to the emerging body of literature on the electoral participation of refugees. Dennis Gallagher and Anna Schowengerdt, "Participation of Refugees in Postconflict Elections," in Postconflict Elections, Democratization, and International Assistance, ed. Krishna Kumar (Boulder, CO: Lynne Rienner, 1998), 195-213; Grace, supra n. 6; Jeff Fischer, "The Political Rights of Refugees and Displaced Persons: Enfranchisement and Participation," in Voting from Abroad, The International IDEA Handbook, ed. Andrew Ellis et al. (Stockholm: International Institute for Democracy and Electoral Assistance and The Federal Electoral Institute of Mexico, 2007), 151-71; and, Jeremy Grace and Erin Mooney, "Peacebuilding Through the Electoral Participation of Displaced Populations," Refugee Survey Quarterly28/1 (2009): 95-121.
[x] Studies have examined refugee participation in post-conflict elections in a range of cases including Angola, Bosnia and Herzogovina, Burundi, Cambodia, Chechnya, Croatia, Georgia, Kosovo, Liberia, Mozambique, Namibia, Russia and Sierra Leone. For an overview and comparison of cases see, Gallagher and Schowengerdt, ibid.; and, Case Studies on the Participation of Conflict Forced Migrants in Elections, Participatory Elections Project (Geneva: International Organization for Migration, 2003). The latter study also examines provisions for refugee participation in self-determination referenda in the Western Sahara, Eritrea and East Timor.
[xi] The IOM Participatory Elections Project has addressed issues, standards and best practices relating to electoral systems, voter registration and eligibility, election security movement and legal status of displaced persons, voter education and campaigning and ballot transparency and confidence. Jeremy Grace and Jeff Fischer, Enfranchising Conflict-Forced Migrants: Issues, Standards, and Best Practices. Discussion Paper No. 2(Geneva: International Organization for Migration, 2003). A guidance note being prepared by UNHCR's Division of International Protection examines risks, opportunities and logistical and financial challenges relating to the enfranchisement of refugees. Long, supra n. 4, paras. 77-78.
[xii] For additional discussion of these issues see, n. 9 and sources cited. In addition, humanitarian and political bodies with mandates and responsibilities related to refugees and peacebuilding face their own challenges including competing policy options, time constraints and resource limitations. Fischer, supra n. 9, 154. It is nevertheless important to note that such challenges can also be employed by humanitarian and political actors who wish to avoid dealing with the issue or seek to exclude refugees from the political process. Hannah Roberts, FMO Research Guide: Forced Migration and Electoral Participation (Oxford: Forced Migration Online, 2003).
[xiii]The holding of a plebiscite to determine the future of historic Palestine was rejected by the international community in the period leading up to and in the immediate aftermath of the 1948 war out of fear that such a vote would undermine or negate efforts to facilitate the establishment of a Jewish national home in Palestine. The mass displacement of Palestinians during the war led to additional disagreements over who should be included in such a referendum. The 1978 Framework for Peace in the Middle East agreed to by Israel and Egypt at Camp David included provision for a referendum on the outcome of autonomy talks relating to the future of the West Bank and Gaza Strip, however, participation was limited to the elected members of the self-governing Palestinian council to be established under the framework agreement. In the Washington talks that preceded the back-channel negotiations leading to the 1993 Declaration of Principles, Israel rebuffed a Palestinian proposal for the holding of a referendum similar to those held in other countries undergoing decolonization. On the latter point see, Karma Nabulsi, "Being Palestinian," Government and Opposition 38/4 (2003): 490.
[xiv]The citizenship provisions in the UN partition plan (General Assembly Resolution 181, 29 Nov. 1947) aimed in part to prevent electoral gerrymandering through the relocation of members of each community to the proposed state - Arab and Jewish - in which they were a minority. Israel's subsequent decision to carry out its first population census one year later in the context of hostilities, by way of contrast, was informed in part by a desire to exclude as many Palestinians as possible from taking part in the country's first election. Anat Liebler and Daniel Breslau, "The Uncounted: Citizenship and Exclusion in the Israeli Census of 1948," Ethnic and Racial Studies 28/5 (2005): 891-2. Deferral of talks on the future of 1948 refugees to final status talks effectively militated against discussion of the electoral rights of the refugees during the Oslo process. Debate over the inclusion of 1967 refugees in elections for a self-governing Palestinian council in the West Bank and Gaza Strip first arose during the unsuccessful autonomy talks that followed the first Camp David summit. Having initially pushed for the inclusion of 1967 refugees in PA elections during the Washington talks and back-channel talks in Oslo that followed, Palestinian negotiators eventually conceded demands for the inclusion of 1967 refugees in exchange for Israel's consent to the holding of PA elections in East Jerusalem. Israeli officials feared that the refugees would demand to return to cast their votes in advance of an agreed upon solution to their situation in four-party talks involving the PLO, Israel, Egypt and Jordan. Joel Singer, "The Emerging Palestinian Democracy under the West Bank and Gaza Strip Self-Government Arrangements," Israel Yearbook of Human Rights 26 (1996): 333. The "temporary" exclusion (i.e., until the parties reached agreement on "modalities for the admission of displaced persons" to the West Bank and Gaza Strip) of the refugees was subsequently enshrined in the 1993 Declaration and in the PA's first election law. Palestinian refugees residing in the West Bank, East Jerusalem, and Gaza Strip, by way of contrast, were permitted to take part in PA elections.