Bosnia and Palestine: So Close, and Yet So Far
Already in 1863, the U.S. Civil War-era Lieber Code, which influenced the subsequent Hague Conventions, instructed that, in our modern age, “private citizens are no longer carried off to distant parts.”(1) That claim now appears majestically naïve and tragically premature. At a time when the UN Subcommission on Prevention of Discrimination and Protection of Minorities was considering the human rights dimensions of “population transfer,”(2)
130 years later, that crime manifested once again in the Balkans and central Africa under a new euphemism: “ethnic cleansing.” The label became synonymous with the international law term “population transfer,” which itself may appear in some contexts as a euphemism for specific practices better described as mass expulsion,(3) deportation, colonization, demographic manipulation,(4) removals(5) and even genocide.(6) However, “population transfer,” also inherent in other 20th Century conflicts with enduring effect, remains the omnibus term of international human rights and humanitarian law, further enshrined as a war crime and crime against humanity in the Rome Statute on the International Criminal Court. Seeking a common definition, the 1997 UN Seminar of Experts on the Human Rights dimensions of Population Transfer drew on over a century of legal opinion and jurisprudence to conclude that population transfer and its cohort, the implantation of settlers, violate international law when they are:
collective in nature, affecting a group of persons, either involving large numbers of people in a single event, or gradual, incremental, or phased;
carried out by threatened or actual force;
involuntary, without full, informed consent of the affected population(s);
deliberate on the part of the government or other perpetrating party, with or without whose knowledge the violations occur;
systematic, forming a pattern of policy or practice;
discriminatory, affecting one or more distinct population;
without due legal process.(7)
Population transfer usually targets national, ethnic, religious or linguistic minorities and, therefore, prima facie, violates individual as well as collective rights that several important international human rights instruments guarantee.(8) These include treaty-law standards such as the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Rights of the Child; and the humanitarian norms of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War; as well as crimes defined in the Rome Statute on the International Criminal Court. The offending practices are clearly incompatible with norms of lex feranda (“soft law”) as well, including multilateral resolutions, opinions of legal authorities and principles of customary international law (jus cogens). Such sources and standards notably include, among others, the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and National Minorities; and the UN Declaration on the Rights of Indigenous Peoples.(9)
Every violation has its remedy in law. The remedy prescribed for victims of gross violations or human rights and/or grave breaches of humanitarian law, including population transfer, is reparation. International norms require no more or less than the formula of reparation for such crimes, whether arising from individual or State responsibility. That formula consists of seven indispensable elements: 1) restitution of the status quo ante; 2) voluntary return of refugees and displaced persons; 3) suitable resettlement, if return is not a physical option; 4) rehabilitation upon return/resettlement; 5) compensation for costs and losses unaddressed by restitution; 6) a pledge of nonrepetition of the violation/crime and 7) the victim’s sense of satisfaction that justice has been served, including the perpetrator’s contrite admission of responsibility.
It is noteworthy—and contradictory—how similar population transfer situations could be treated diversely under a single international law regime. The obvious distinguishing factor of politics, or, rather, political bad faith, can generate inconsistencies that perpetuate—even reward—crime and prolong suffering and loss. With a full decade of hindsight, a glance at the headline-grabbing treatment of the Bosnia and Palestine cases in the 1990s reveals such a problematique; whereas, international law content of their respective framing documents, as well as their productivity, are grossly uneven.
Human displacements in the Bosnia and Palestine cases, however analogous, also bear distinguishing features: One addressing population transfer freshly carried out in an ongoing armed conflictand(2) an ethnic cleansing and belligerent occupation of long duration. Such a typology serves organizational purposes, but is with full recognition that these distinctions—just as the legal distinction between “international refugees” and “internally displaced”—is arbitrary, having little relevance to the victims’ perspective. For the personal loss, injustices, humiliation, palpable suffering and lingering effects are uniformly felt across these imaginary legal lines, geographical distance and over time. At various episodes in the population transfer process, the various sides of both the Bosnia and Palestine cases involve ambiguous relations to a bona fide state. That apparent fact, too, does not affect the legal issues involved or the values at stake, except as a further reason for the international community to engage in good faith toward resolution and reparation. It is important also to recognize that these two cases are by no means unique contemporary manifestations of population transfer, nor are they the only cases that have led to significant international agreements aimed at their resolution.(10)
Bosnia-Herzegovina and the Dayton Accords
The unraveling of Yugoslavia emerged as a case in which, not uniquely in this century, the elimination and transfer of distinct populations formed the principal aim of the conflict and remains the most intractable obstacle to its resolution. All parties to the conflict have been cited as having committed this crime; however, the various Serbian factions have emerged as the most-indicted violators,(11) directing their crimes mainly at the Muslims of Bosnia-Herzegovina. At the end of the war, more than 1 million people (from a pre-war population of 4.4 million) had been made refugees by the war and another million were internally displaced within the country. The conflict there is instructive, particularly since the culminating peace agreements have engaged international humanitarian and human rights law to an exemplary extent, largely due to the response of the international community through the UN.
The Accords embodied agreement by the Parties (Republic of Bosnia-Herzegovina, Republic of Croatia and the Federal Republic of Yugoslavia, which also was authorized to sign on behalf of Republika Srpska) to conduct their relations “in accordance with the principles set forth in the United Nations Charter, as well as the Helsinki Final Act and other documents of the Organization for Security and Cooperation in Europe” (Article I).(12) In Article IX, the Parties agree to cooperate fully with all the entities involved in the implementation of the peace settlement that are described in the eleven Annexes to the Agreement, or which the UN Security Council authorizes, “pursuant to the obligations of all Parties to cooperate in the investigation and prosecution of war crimes and other violations of international humanitarian law.” (13)
Annex 6: Agreement on Human Rights enumerated the relevant rights and freedoms in its Chapter One. With explicit reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocol, the Annex specifies the rights to be upheld in the process.(14)
Chapter Two of Annex 6 established the Commission on Human Rights under the Agreement. It charged the Commission’s Office of the Ombudsman and the Human Rights Chamber to consider alleged or apparent violations of these and other rights, including nondiscrimination. Moreover, it recognized the right of “all persons” to submit applications to the Commission concerning such alleged violations, and prohibited any of the parties to undertake any punitive action against persons who submit or intend to submit allegations (Part A, Article II). The Annex further authorized the Ombudsman to investigate an allegation directly by any party or group claiming to be the victim of a violation by any other party, or acting on behalf of alleged victims who are deceased or missing (Article V).(15) Any such person, party or group could submit an allegation meeting six criteria directly to the Human Rights Chamber, or through the Ombudsman, under his jurisdiction (Article VIII). Article XII of Annex 6 provided that “Parties shall allow full and effective access to nongovernmental organizations for the purpose of investigating and monitoring human rights conditions.”
Finally, the text of Annex 6 specified also that the international “hard law” norms constitute the framework within which these functions were to proceed. The Appendix: Human Rights Agreements obviated potential ambiguities about the obligations of states parties by citing 16 applicable treaties.(16)
Annex 7 treated both refugees and displaced persons equally, overriding the artificial distinction between those fleeing or transferred across international boundaries (refugees) or suffering similar conditions within a given territory (displaced persons). Its Chapter One affirms their right to return to property of which they were deprived in the course of the hostilities since 1991, and compensation for property that cannot be recovered (restituted). All those who left the territory enjoy the same right, regardless of where they sought refuge or the basis of the discrimination they suffered. That Annex faithfully reflected the inextricable link between ethnic discrimination and population transfer in former Yugoslavia, calling for parties to take all necessary measures to prevent any activities that would impede the return of refugees and persons, and to take positive “confidence-building” measures. These measures elaborated in Chapter One of Annex 7 are consistent with prior obligations of states parties to the International Convention on the Elimination of All Forms of Racial Discrimination, including obliging the parties to take specific steps to end offending practices, in particular, population transfer.(17)
In addition, the Dayton Accords’ Parties were required to create “suitable conditions for return.” That was defined to mean political, economic and social conditions conducive to the “voluntaryreturn and harmonious reintegration of refugees and displaced persons, without preference or discrimination.” These conditions were to be consistent with the UN High Commission for Refugees repatriation plan (Article II).
Chapter Two established a Commission for Displaced Persons and Refugees that has been empowered to receive and decide any claims for return or compensation of real property in Bosnia-Herzegovina of which the claimant does not now enjoy possession and that, since 1 April 1992, has not been sold or transferred voluntarily (Article XI). This Annex also establishes a Refugees and Displaced Persons Property Fund that the Commission is to administer and that may be replenished by direct payments from responsible parties, or from contributions by states, international bodies or nongovernmental organizations.
Implementing the right of return
Regrettably, violations of freedom of movement are reported to be widespread at the hands of all Parties in the areas of former conflict in Bosnia-Herzegovina. The majority of reported incidents have taken place at the Inter-entity Boundary Line under the jurisdiction of the Republika Srpska.(18) The maps agreed—or imposed—in the Dayton agreement also rewarded the acquisition of territory by force, selectively legitimizing some crimes that the parties had committed in the conduct of the war. The peace agreement also established some of the consequences of ethnic cleansing by dividing Bosnia into ethno territorial entities with state-like administrative powers. That created a Bosnia-Herzegovina with a weak governing centre with two strong entities, ten cantons, and a special district under military occupation and international supervision. That resulted in 13 different constitutions, prime ministers, assemblies, and law-making institutions. In retrospect, some have charged that the Dayton Peace Accords created an “ungovernable country,” giving rise to excessive administrative procedures and offices functioning on the basis of patronage, including also officials who allegedly had engaged in the ethnic cleansing.
Officially, by 2005, over one million Bosnians have returned to their pre-war homes and, by 1 July 2007, the remaining IDPs numbered 134,200.(19) The apparent inevitability of return under the peace agreement led some ethnonationalist organizations, beginning with Bosnian Croats, to manipulate demography by creating “facts on the ground” that would establish their ethnic dominance in certain localities through strategic land allocations for displaced peoples. This sought to ensure that, even with returns, returnees would never become an ethnic majority in the community again. Obstructionism and violence against returns endures in some parts of Bosnia today, while new demographic manipulation policies across former Yugoslavia have seen the general cancellation of social housing rights for entire ethnic communities.(20)
With the returnee process delegated to local institutions, the Bosnian Ministry of Human Rights and Refugees (MHRR), a Commission for Refugees and Displaced Persons, a Return Fund, and opstina (municipality) commissions face a funding gap. Over 23,000 families registered to return with the MHRR are stranded due to insufficient funds. Unemployment and divergent pension benefits in certain areas also have been a deterrent to displaced persons’ return.(21)
The homes and property of about 82% of displaced Bosnians remains destroyed. Apparently, about 22% live in units owned by others, with some 8% living in collectives and a similar percentage in socially owned housing. Rehabilitation remains incomplete, with only 17% of DPs employed and some 20% without any source of income.(22)
Decades of population transfer in Palestine
The conflict between Zionism and the Palestinian people is one of the richest population transfer cases in history, embodying virtually all of the conditions and consequences catalogued in the UN rapporteurs’ initial report on “the human rights dimensions of population transfer.”(23) It involves a colonial-settler state engaging in a variety of military and administrative methods of dispossession of an indigenous people. These include discriminatory transfer as a function of “development,” removing the indigenous population in favor of an exclusive group of external people, whom the state defined under its law as having “Jewish nationality” (le’om yahudi). Overarching these government practices is a “parastatal” apparatus—consisting of the Jewish Agency, World Zionist Organization and Jewish National Fund and their affiliates—that plans and implements this population transfer policy, just below the radar of public and legal scrutiny.(24) Those parastatals continue to operate on behalf of the state, according to Israeli legislation, but do so in their own names and with claims to charitable, tax-exempt status.
Israel’s transfer of Palestinian population has been carried out on
the basis of domestic laws, including “basic laws,” since the state
emerged in 1948. Motivating this process is a righteous ideology
that bonds the incoming population and rationalizes the government
and state agencies with a claim of superior rights conveyed only to
the “nationals” at the expense of the indigenous Palestinian
people, including over remaining Palestinian “citizens” of the
state. Since 1970, population transfer policy planning and
execution is ostensibly shared between the Jewish Agency’s
responsibility inside the “green line” (1948 borders of
Israel/historic Palestine), and the World Zionist Organization
mainly recruiting and implanting settlers in the 1967-occupied
territory of the West Bank, Jerusalem and, until 2005, the Gaza
Strip.
Israel’s pattern of transferring out the indigenous people with the intensification of the yishuv colonization process in areas under its control since 1947 presaged the fate of the West Bank and Gaza Strip during and since the 1967 war. Adding to an initial 780,000 refugees in 1947–48, the 1967 conflict created at least 300,000 West Bank refugees (some for the second time)(25) and over 100,000 refugees from the Syrian Golan Heights.(26) The West Bank, (East) Jerusalem and the Gaza Strip remain the focus of tepid-but-costly multilateral efforts at realizing a Palestinian self-determination unit. The agreements between Israel and the Palestine Liberation Organization (PLO) since 1991 pertain to the status of these areas and serve as the subject of this search for a legal framework.(27)
The diplomatic consistency of both Israel and its principal ally, the United States, has rejected persistent UN calls for an international conference on the question and, instead, sought to address the various aspects of the Arab-Israeli conflicts by way of direct negotiation, itself requiring implied recognition of Israel, despite its unlawful establishment. It has been the shared position of those two states that, in order to serve perceived interests, the collective role of the international community of states should be held to a minimum. To involve the wider international community necessarily would mean subjecting the process to a framework of relevant international law as developed. For U.S. and Israeli diplomats, not proponents of public international law, separating the issue from its consensual framework, particularly in a contentious Cold War environment, was a precondition to talks. However, the post-Berlin Wall, post-USSR, Post-Gulf War world was transformed by 1991. While political and financial motivations for the eventual Madrid Conference and Oslo Accords have been analyzed elsewhere, sufficient to say that geopolitical factors, rather than legal compunction, enabled the process that has led us to where we are today.
What legal framework?
The principles of international agreement cited in the U.S.-U.S.S.R. invitation letter to the 1991 Madrid Conference are the UN Security Council resolution 242,(28) which, by extension, apply the UN Charter and call for “the withdrawal of Israel armed forces” from the 1967-occupied territories, and resolution 338,(29) which “calls upon parties” to implement “Security Council resolution 242 (1967) in all its parts.” In addition, the “principles” of peace and security for the states and peoples of the Middle East are mentioned. Adopted in the aftermath of the 1967 Six-day War, resolutions 242 and 338 established the principle of Israel’s withdrawal in exchange for recognition of its right to exist within secure borders. At that historical juncture, 242 and 338 also crowned two decades of Israeli dispossession and population transfer policies, implicitly recognizing the integration of all of Israel’s territorial gains by various illegal means up to June 1967. Despite decades of General Assembly resolutions affirming Palestinians’ right to self-determination, neither resolution mentions that people, nor its corresponding right. Although similarly omitting the jus cogens principle of self-determination as such, the Madrid Conference letter nonetheless projects that Israel and the Palestinians (sitting as part of a joint Jordanian-Palestinian delegation) would engage in phased “self-government” talks.
In addition to the sponsoring states, the U.S.S.R. and United States, representatives of the member states implies a certain United Nations Secretary-General and the Gulf Cooperation Council were invited as observers, and the European Community, Israel, Syria, Lebanon, Jordan and Egypt were invited as participants. The presence and participation of UN consensual framework; however, no “hard law” is cited by the sponsoring states as a basis for the Madrid Conference, nor for the process that was to ensue. That fact remains true today in such evasive post-Oslo diplomatic mechanisms as the lawless Mid-East Quartet.
The Declaration of Principles (DoP), agreed on 19 August and signed on 13 September 1993, did recognize a “Palestinian Delegation” as representing the “Palestinian people.” In addition to reaffirming their consistency with resolutions 242 and 338, the DoP setout to establish agreement on the transfer of powers and responsibilities to the Palestinian Interim Self-governing Authority. It also begins to detail, in the protocols annexed to the DoP, the gradual withdrawal of Israeli forces from the occupied territory (recognizing the West Bank and Gaza Strip as a single territorial unit). The status of Jerusalem, despite established legal status, was deferred.
The DoP recognized that the eventual Palestinian Council would be empowered to legislate, in accordance with the Interim Agreement, within all territories transferred to it. It also sets forth that both Israel and the Palestinian Authority “will review jointly laws and military orders.” However, these legal issues are strictly internal.
The Government of Israel and “the Palestinians” signed the DoP, and the United States and the Russian Federation both witnessed the pact. Before signing, the sponsoring parties and Israel compelled PLO Chairman Yasser Arafat to affirm on behalf of the PLO that the articles of the Palestinian Covenant denying Israel’s right to exist and other “provisions of the Covenant which are not consistent with the commitments of this letter are now inoperative and no longer valid.”(30) No comparable demands prevailed on Israel to repeal its laws dispossessing the Palestinian people or affectively negating its existence as such. Prime Minister Rabin reciprocated only with a one-sentence letter to Chairman `Arafat, recognizing “the Palestine Liberation Organization as the representative of the Palestinian people.”(31)
The Cairo Agreements of February 1994 elaborated on the previous instruments of agreement, regulating movements, passage and conduct of the respective Israeli and Palestinian forces in the Jericho autonomous area and the Gaza Strip. These agreements contain no mention of international law principles or obligations. The 4 May 1994 Israeli-PLO Agreement on the Gaza Strip and the Jericho Area, also signed at Cairo, only projected that “the negotiations on the permanent status will lead to the implementation of Security Council resolutions 242 and 338.”
The May 1994 agreements set the limits of Palestinian Authority jurisdiction in the areas under is control, namely excluding “foreign relations, internal security and public order of Settlements and the Military Installation Area and Israeli, and external security.”(32) The protocol in Annex III details the respective jurisdiction of the Israeli and Palestinian authorities in the two zones; these too, however, are only of internal significance and invoke no international norms.
The February 1994 Cairo Agreement reflected anticipation that Israel’s military government would continue functioning in the interim (preceding final status). In selective fashion, the relevant passage (Article 5) invokes “accordance with international law” in order to validate that arrangement, however vaguely and toothlessly.(33)
This passage, therefore, also qualifies Israel as the belligerent occupier, and constitutes Palestinian recognition of that fact. The international law reference here apparently establishes Israel’s entitlement to rule through its existing functions as the occupier of the West Bank and Gaza Strip at least through the interim phase of the process.(34) Specific reference to humanitarian law is omitted from the entire body of the Israel-PLO agreements. Nonetheless, one might conclude that the reference to international law in Article 5 would suggest Israel’s recognition of the Geneva Civilians Convention,(35) which is the principal instrument applicable to occupying powers, despite Israel reneging on its 1949 signature on the Civilians Convention’s and it refutation of its de jure applicability to its role in Palestine ever since.(36)
The only other reference to international norms in the Agreements is in a passing reference in Article 14 of the 1995 Interim Agreements. It states that the parties “shall exercise their powers and responsibilities pursuant to this agreement with due regard to internationally accepted norms and principles of human rights and the rule of law.” However, this commitment refers only to the parties’ exercise of powers within their respective jurisdictions. It in no way implies that human rights provide a framework or guide the mistitled “peace process” toward its final terms. Even this weak gesture to the rules of the game of nations emerges as disingenuous in light of the contradictions that manifest in the text of the agreements, as well as in their unruly implementation. Article XXII on “Rights, Liabilities and Obligations,” though void of any reference to international legal instruments, nonetheless may be seen as significant in actually derogating the rights of victims to seek remedy and compensation for violations by Israel’s Civil Administration.(37)
Addressing displacements
The Oslo process agreements present a dim prospect for displaced and refugee Palestinians to pin their enduring hope on international law norms, including their right of return. Israeli-Palestinian negotiations on the core problem of refugees began at Palestinian insistence with the first Multilateral Working Groupon Refugee Affairs in 1992. After the 1993 Oslo Accords,a Quadripartite Committee, involving Israel, Jordan, Egypt and the PLO, took up the issue of 1967-refugee repatriation. The international community pledged to continue financial and technical assistance to Palestine refugees in the meantime, but UNRWA was projected to dissolve by 1999, with its functions transferred to the Palestinian Authority. One year ahead of that putative deadline, the Multilateral Working Group was inactive and the Quadripartite Committee has not been able to achieve any tangible results.
One source of Palestinian refugees’ vocal frustration—and a great disappointment for the Palestinian people as a whole—is the failure of the two sides to agree even on the definition of a “displaced person. ”The Quadripartite Committee on the Repatriation of 1967 Displaced Persons was based on the Oslo Agreements, and consequently rested on no relevant principles of law. Since the first meetings in Amman in 1995, the Israelis of both dominant parties refused to accede to the Palestinian position that families and descendants, as well as persons evicted in the 29-year course of occupation, constitute displaced persons. The Israelis insisted that only those persons personally evicted during the 1967 War could be so considered. The negotiating gap between the two positions left a difference of 600–700,000 souls, while excluding at least another 4,500,000 Palestinian refugees. The last meeting of that committee took place on 14 February 1996.(38)
Since 1992, the broader, multilateral Refugee Working Group has convened eight plenary sessions and 12 “intercessional” meetings on technical matters such as those related to health, data collection, family reunification. In the multilateral sessions, procedure dictated that decisions be by consensus of the 12 participating delegations. Evidence of progress is lacking and, after the 1996 change of government in Israel over a decade ago, no progress manifested either in negotiations, nor in the diplomatic sphere.
These negotiations appear to have omitted the 1948 refugee from the picture altogether, although the General Assembly has consistently recognized their status and right to return or compensation.(39) As with many other aspects of this negotiation process, matters of law and international consensus are now subject to being negotiated away. It is not insignificant that one of the cosponsoring states now manifests declining support for the rights of 1948 refugees.
The United States, at the political level, has never made a strong statement affirming the Palestinian right to return, but rather couched its support for the peace process in terms of the preferences for one side only. In a parting gesture as Secretary of State, Warren Christopher issued a letter to newly elected Prime Minister Benyamin Netanyahu, spelling out these terms:
You can be assured that the United States’ commitment to Israel’s security is iron clad and constitutes the fundamental cornerstone of our special relationship. The key element in our approach to peace, including the negotiations and implementation of agreements between Israel and its Arab partners, has always been a recognition of Israel’s security requirements to work cooperatively to seek to meet the security needs that Israel identifies.(40)
The dominant Israeli view is that the repatriation of refugees, even to the areas under Palestinian Authority control, is a “security threat.”(41) The current Israeli government 1996 guidelines are more emphatic: it “will oppose ‘the right of return’ of Arab populations to any part of the Land of Israel west of the Jordan River.”(42)
The legal questions surrounding the implantation of settlers in occupied territories have been well elaborated elsewhere.(43) In blinding contrast, the U.S. government’s foreign policy representative, Madelaine Albright, while an engine of the Dayton Process, hypocritically announced in a 1 October 1997 interview that Israeli settlements in the occupied Palestinian territories are “legal”; she would only concede that they are just “not helpful.”(44)
Conclusion
In most cases of population transfer, the affected population’s sovereignty is the intended target, while settlements and settlers form the ordinance of choice. The international community implicitly has acknowledged that fact through various UN resolutions on the Israeli settlements. Recently, the international community also has reasserted general international law principles of reparation and property restitution for victims of human rights violations and humanitarian breaches.(45) Palestinian refugees and displaced persons’ rights and mechanisms for reparation are conspicuous—by their absence—in the multilateral framework of the Israel-PLO agreements since Oslo.
The Declaration of Principles refers to “mutual political rights” and even the “legitimate rights of the Palestinian people”(46); however, it does not explicitly affirm the Palestinians’ right to self-determination and defers—even dismissed—refugee and displaced persons rights and reparations.(47) As noted above, both the DoP and interim agreements provide that the final status negotiations will lead to the implementation of Security Council resolutions 242 and 338. Those two UN instruments may establish a limit to Israel’s encroachment on Palestinian territory, but they are notoriously tacit on the national (i.e., sovereign) dimension of that territory and the indigenous people belonging to it.(48)
Meanwhile, plausible rumors abound about secret arrangements to negate Palestinians’ entitlement to reparations, including the right of return. As early as 1997, reports of Palestinian negotiations with Israel’s former Foreign Minister Shimon Peres have left his Palestinian negotiating counterpart Mahmoud Abbas (Abu Mazen) indelibly on record as agreeing to limit the right of return even for 1967 refugees.(49)
More broadly, the Oslo-era agreements are void of any reference to “hard” international human rights or humanitarian law (lex lata). The framework, if such it is, rests essentially on a series of phased, technical protocols that establish the presence of the Palestinian people’s official representatives within portions of that people’s self-determination unit under unambiguous Israeli control, pending the much-anticipated “finalstatus”arrangements.Thetext of the agreements remain effectively silent on the human rights, humanitarian and other public law conditions of that portion of the Palestinian people, as on the practices of Israel toward that entire people that are at the root of the conflict. Without an international law framework or adherence to their norms, in fact, the Oslo-inspired interim and final-statusarrangements have failed.
Contrastingly, the Dayton Accords reflect the theoretical application of relevant international law. That fact appears to be the consequence of a concerted effort among many nations, particularly European states and the active involvement of the United Nations, but engaging also the involvement of other states in the Mediterranean region and North America. At the same time, certain aspects of the Accords themselves and their implementation, as discussed above, contradict the very framework that the Accords explicitly contain. Other obstacles remain, while new forms of housing discrimination also have emerged. For all their flaws, the Dayton Accords are not perceived as a set of agreements dominated by one state, or cartel of overwhelmingly dominant states with a common ideological predisposition contrary to the relevant legal norms. Human rights and humanitarian law guarantees lie at the very heart of the Dayton Accords and contribute a basis for protection and leverage pertaining to noncompliance. The Israel-PLO agreements contrast with the Dayton Accords in all of these respects. This comparison demonstrates that there is much to learn, and even more to repair.
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Joseph Schechla is the Cairo-based coordinator of Housing and Land Rights Network, a specialized group Member organization of the Habitat International Coalition promoting the human right to adequate housing and land.
Endnotes
(1). Article 23. Lieber Code (Washington, 24 April 1863). L. Friedman, ed., The Law of War ,Vol. I (New York: Random House, 1972).
(2) In resolution 1992/28 of 27 August 1992, the Subcommission entrusted Mr. Awn Shawkat al-Khasawneh and Mr. Ribot Hatano as special rapporteurs. In 1993, Mr. al-Khasawneh assumed the mandate alone until 1997.
(3) See, Jean Marie Henckaerts, Mass Expulsion in Modern International Law and Practice (The Hague: Martinus Nijhoff, 1995).
(4) See Joseph Schechla, “Forced eviction as an increment of demographic manipulation,” Environment and Urbanization vol. 6, no. 1 (April 1994), 89–105.
(5) The term of art applied to population transfer policies affecting indigenous populations in North America, particularly under the President Andrew Jackson Administration (1929–37), and in South Africa subsequent to the 1922 Stallard Commission.
(6) The International Law Commission has determined that changes in the demographic composition of an occupied territory seem "to be such a serious act that it could echo the seriousness of genocide." (International Law Commission, Commentary on article 21 of the Draft Code of Crimes against the Peace and Security of Mankind, article 2, section 2 [b]).
(7) The Expert Seminar on Population Transfer met at Geneva from 17 to 21 February 1997. Its deliberations are reported in the special rapporteur’s final report “Freedom of Movement: Human rights and population transfer,” UN Doc. E/CN.4/Sub.2/1997/23.
(8) See conclusions of the special rapporteurs Awn al-Khasawneh and Ribot Hatano, “The human rights dimensions of population transfer, including the implantation of settlers and settlements,” UN document E/CN.4/Sub.2/1993/17 of July 1993, at XX–XX.
(9) E.g., resolutions 1992/28, 1994/24, 1995/13 and 1996/9.
(10) In fact, this review represents part of a broader textual comparison that covered other agreements coinciding with the UN Subcommissions independent initiative, including the International Conference on the Victims of War (Geneva, 1993) and the German-Czech Reconciliation Protocol, concerning the post-WWII Sudetenland expulsions of Germans. See Joseph Schechla, “Legal frameworks of Recent International Agreements pertaining to Population Transfer,” UN Doc. HR/SEM.1/PT/1997/WP.2, 13 February 1997. Expert Seminar on the Human Rights Dimensions of Population transfer, including the Implantation of Settlers and Settlements, Geneva, 17-21 February 1997.
(11) ...Tadeus Mazowiecki, special rapporteur of the UN Commission on Human Rights on the human rights situation in the former Yugoslavia, UN Doc. E/CN.4/1992/S-1/9; Amnesty International, Bosnia-Herzegovina: “You Have No Place Here”: Abuses in Bosnian Serb-controlled Areas (London: Amnesty International, June-July 1994); and Elisabeth Rehn, special rapporteur of the UN Commission on Human Rights on the human rights situation in the former Yugoslavia, UN Doc. E/CN.4/1997/9, at 6.
(12) ...“General Framework Agreement for Peace in Bosnia and Herzegovina,” initialed at Dayton, Ohio on 21 November 1995 and signed at Paris on 14 December 1995. Citations here are from the text released by the OfficeoftheSpokesman,1December1995,UnitedStatesDepartmentofState(website).
(13) Chapter Three, Article XIII of the Agreement on Human Rights (Annex 6) invites the United Nations Commission on Human Rights, the OSCE, the United Nations High Commissioner for Human Rights and other intergovernmental or regional human rights missions or organizations to monitor closely the human rights situation in Bosnia-Herzegovina,” including also the International Tribunal for the Former Yugoslavia and any other organization that the Security Council authorizes with a mandate concerning human rights or humanitarian law.
(14) The right not to be subjected to torture or to inhuman or degrading treatment or punishment; the right not to be held in slavery or servitude or to perform forced or compulsory labor; the rights to liberty and security of person; the right to private and family life, home and correspondence; the right to property; the right to liberty of movement and residence; the right not to be subject to discrimination on any ground, such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
(15) The UN Commission on Human Rights’ special rapporteur has reported that the Federation ombudsman’s work has been greatly encouraging, but also strongly recommended that Republika Srpska authorities establish a similar ombudsman institution. Elisabeth Rehn, “Situation of human right s in the territory of the former Yugoslavia,” UN doc. E/CN.4/1997/56 of 29 January 1997, at 15.
(16) Convention on the Prevention and Punishment of the Crime of Genocide (1948); 1. Geneva Conventions I–IV on the Protection of the Victims of War (1949), and the Geneva Protocols I-II (1977); 3. European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and its Protocols; 4. Convention relating to the Status of Refugees (1951) and its Protocol (1966); 5. Convention on the Nationality of Married Women (1957); 6. Convention on the Reduction of Statelessness (1961); 7. International Convention on the Elimination of All Forms of Racial Discrimination (1965); 8. International Covenant on Civil and Political Rights (1966) and its Optional Protocols (1989); 9. Covenant on Economic, Social and Cultural Rights (1966); 10. Convention on the Elimination of All Forms of Discrimination against Women (1979); 11. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987); 12. European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987); 13. Convention on the Rights of the Child (1989); 14. Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990); 15. European Charter for Regional or Minority Languages (1992); 16. Framework Convention for the Protection of National Minorities (1994).
(17) These included to: “repeal domestic legislation and administrative practices with discriminatory intent or effect; prevent and prompt suppression of any written or verbal incitement, through media or otherwise, of ethnic or religious hostility or hatred; disseminate through the media warnings against, and prompt suppression of acts of retribution by military, paramilitary and police services, and by any other public officials or private individuals; protect ethnic and/or minority populations wherever they are found and to provide immediate access to these populations by international humanitarian organizations and monitors; and protect, dismiss or transfer, as appropriate, person in military, paramilitary and police forces, and other public servants, who are responsible for serious violations of the basic rights of persons belonging to ethnic or minority groups.”
(18) Rehn (1997), op cit., at 5–8; and Rehn, “Situation of human rights in the territory of the former Yugoslavia,” E/CN.4/1998/13, at 13–14 and 36.
(19) Internal Displacement Monitoring Center, “Final review of the registration process indicate that the number of displaced persons has been further reduced to 134,200 (2007),” at: http://www.internal-displacement.org/idmc/website/countries.nsf/(httpEnvelopes)/FF8BD931BDA09AFE802570B8005A7424?OpenDocument.
(20) “Croatia: A Decade of Disappointment, Continuing Obstacles to the Reintegration of Serb Returnees,” Human Rights Watch, Vol. 18, No. 7 (D), at: http://www.hlrn.org/violation/croatia0906web.pdf.
(21) The Bosnian unemployment rate was 45.4% in 2004.
(22) UNHCR, “UNHCR and Displaced Persons in Bosnia and Herzegovina,” at: http://www.unhcr.ba/protection/DPsbackgroundnote.pdf.
(23) “The human rights dimensions of population transfer, including the implementation of settlers and settlements,” E/CN.4/Sub.2/1993/17, 6 July 1993.
(24) For a discussion of the dual nature of civil status under Israeli municipal law, see Roselle Tekiner, “On the Inequality of Israeli Citizens, Without Prejudice vol. I, no. 1 (1987), 48–57.
(25) Janet Abu Lughod, “The continuing expulsions from Palestine: 1948–1985,” in Glenn E. Perry, Palestine: Continuing Dispossession (Belmont MA: AAUG Press, 1986), 17-45, at 21.
(26) The UN secretary-general sited 107,000 from UN sources. UN Doc. S/8158, 2 October 1967. Others have estimated this number as low as 99,000. Colbert C. Held, Middle East Patterns: Places, People and Politics (Boulder: Westview Press, 1994), at 188.
(27) These include the Invitation Letter to the Peace Conference in Madrid, 18 October 1991; the Declaration of Principles on Interim Self-government Arrangements, signed at Washington 13 September 1993; the Cairo Agreement, 9 February 1994; Agreement on the Gaza Strip and Jericho Area, 4 May 1994; the Paris Economic Agreement (1994); the Hebron-West Bank Accord, 15 January 1997. Security Council resolution 242, concerning Principles for a Just and Lasting Peace in the Middle East, 22 November 1967.
(28) Security Council resolution 242, concerning Principles for a Just and Lasting Peace in the Middle East, 22 November 1967.
(29) Security Council resolution 338, concerning the October War, 22 October 1973.
(30) Letter of Chairman Yasser Arafat to Prime Minister of Israel Yitzhak Rabin, 9 September 1993.
(31) Letter of Prime Minister of Israel Yitzhak Rabin to Chairman Yasser `Arafat, 9 September 1993.
(32) Article V “Jurisdiction,” Agreement on the Gaza Strip and the Jericho Area, 4 May 1994.
(33) “Israel shall exercise its authority through its military government, which for that end, shall continue to have the necessary legislative, judicial and executive powers and responsibility, in accordance with international law.”
(34) See John Quigley, “The P.L.O.-Israeli Interim Arrangements and the Geneva Civilians Convention,” in Stephen Bowen, ed., Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territories (The Hague: Martinus Nijhoff, 1998), 25–46, at 30–31.
(35) The Fourth Geneva Convention relative to the Treatment of Civilian Persons in Time of War of 12 August 1949.
(36) Israel has argued the non-applicability of the Civilians Convention due to the putative absence of the “reversioner,” or sovereign to which the occupied territory would be “returned.” See Yehuda Blum, “The Missing Reversionaer: Reflections on the Status of Judeaand Samaria,”3ISRAEL LAW REVIEW, 279 (1968); and Meir Shamgar, “The Observance of International Law in the Administered Territories,” 1 ISRAEL YEARBOOK OF INTERNATIONAL LAW, 263, at 263–64 (1971). See also W. Thomas Mallison and Sally V. Mallison, The Palestine Problem in International Law and World Order (London: Longman, 1986), Chapter 6: “A Juridical analysis of the Israeli Settlements in the Occupied Territories,” at 240–75.
(37) It reads: “1.a.The transfer of all powers and responsibilities to the Palestinian Authority, as detailed in Annex II, includes all related rights, liabilities and obligations arising with regard to acts or omissions which occurred prior to the transfer. Israel will cease to bear any financial responsibility regarding any such acts or omissions and the Palestinian Authority will bear all financial responsibility for these and for its own functioning….1.e. In the event that an award is made against Israel by any court or tribunal in respect of such a claim, the Palestinian Authority shall reimburse Israel the full amount of the award.” Al-Nidham al-Qadha’i al-Madani fiil-Dhafa al-GharbiyyawaQita` Ghaza: al-Hadhirwaal-Mustaqbal [The Civil Justice System in the West Bank and Gaza Strip: The Present and the Future] (Geneva: International Commission of Jurists, June 1994), at 59–60.
(38) “Political Negotiations on the Palestinian Refugee Question: Interview with Salim Tamari,” Middle East Report (fall 1996), 7–9.
(39) Count Folke Bernadotte, “Palestine - Progress Report of the United Nations Mediator,” General Assembly Official Record, “Resolutions,”at21–25,UNDoc.A/910(21September–12December1948),adoptedas GA resolution 194 (III), 11 December 1948.
(40) Donald Neff, “The role of Dennis Ross,” Middle East International (24 January 1997), 4–6, at 6.
(41) Middle East Report, op cit., at 8.
(42) “Government Guidelines for the Israeli Government Elected on May 29, 1996,” Jerusalem Post (18 June 1996), at 3.
(43) See W. Thomas Mallison and Sally V. Mallison, The Palestine Problem in International Law and World Order (London: Longman, 1986); also “Letter of the State Department Legal Advisor Mr. Herbert J. Hansell, concerning the Legality of Israeli Settlements in the Occupied Territories,” 21 April 1978, ILM (1978), at 777–79. As cited in the progress report of Special Rapporteur `Awn Shawkat al-Khasawneh to the Subcommission, E/CN.4/Sub.2/1994/18, at 19–23.
(44) .Interview with Matt Lauer on the morning broadcast of the Today Show, National Broadcasting Company, 1 October 1997.
(45) “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Human Rights and Serious Violations Humanitarian Law,” UN General Assembly, , A/RES/60/147, 16 December 2005; “Housing and property restitution in the context of the return of refugees and internally displaced persons,” final report of the Special Rapporteur, Paulo Sérgio Pinheiro, submitted in accordance with Sub-Commission resolution 2004/2, E/CN.4/Sub.2/2005/17, 2 May 2005; “Guiding Principles on Internal Displacement,” E/CN.4/1998/53/Add.2, 11 February 1998.
(46) Preamble and Article III (3) of the Declaration of Principles, and Oslo II Article XXXI.
(47) For an erudite discussion of population transfer through the lens of self-determination, see Catriona J. Drew, “Self-determination, Population Transfer and the Middle East Peace Accords,” in Stephen Bowen, ed., Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territories, (The Hague: Martinus Nijhoff, 1997), 119–68.
(48) See discussion in “A Human Rights Assessment of the Declaration of Principles on Interim Self-Government Arrangements for Palestinians” (Ramallah: Al-Haq, 1993). An analysis by Antonio Cassese asserts, however, that the Palestinians’ right of self-determination is implied in resolution 242 by concluding that the DoP “is rounded upon, and logically presupposes the idea of the final attainment by Palestinians of external self-determination.” See Antonio Cassese, “The Israel-PLO Agreement and Self-Determination, EJIL, Vol. 4 (1993), 564, at 569.
(49) Middle East
Report, op cit.