From Rights to Reality

An Introduction to Mechanisms for Return and Restitution
Since the first popular refugee conference was held in 1996 (Deheishe refugee camp) – delineating the broad outlines of an agenda for the defense of Palestinian refugee rights – grassroots mobilization and lobby efforts have focused predominantly on raising awareness about the right of return, restitution, and compensation, as affirmed in UN General Assembly Resolution 194 and international law. The success of these efforts can be measured in the clarification of terminology, deeper understanding of basic rights, unification of language at all levels of Palestinian society (i.e., grassroots, media, leadership, etc.), development of a global right of return network, as well as increasing awareness and support for Palestinian refugee rights at the international level among non-governmental organizations (e.g., Human Rights Watch and Amnesty International), United Nations and governmental officials.

Over the past year it has become increasingly evident, perhaps spurred on by the experience of the complete absence of a protection mechanism (i.e., international body) in the 1967 occupied Palestinian territories in the context of the al-Aqsa intifada, that there is an increasingly urgent and timely need to begin examining mechanisms to facilitate implementation of Palestinian refugee rights – i.e., return, restitution and compensation. The need for information resources and discussion/debate was illustrated in several responses from the refugee community during hearings conducted in the region in September 2000 by the British (Parliamentary) Commission of Inquiry into refugee choice. When refugees were asked about what type of mechanisms would be needed to implement the durable solution set forth in UN General Assembly Resolution 194, some responded that the ‘mechanism’ was simply the right of return. Others stated that the United Nations and the international community provided possible mechanisms, as had been the case in Bosnia. Few, however, were able to provide a more detailed response.

The first indication of the official position of the Palestinian leadership as regards mechanisms for the implementation of the right of return, restitution, and compensation came several months later when the Paris-based newspaper Le Monde Diplomatique published a draft proposal for a resolution of the refugee issue presented by the Palestinian negotiating team during the last round of final status negotiations at Taba, Egypt (January 2001). (See al-Majdal, Issue No. 12) The proposal was circulated widely in the refugee community. More recently, Palestinian refugee activists participating in the second annual meeting of the Coalition for the Right of Return (see page ?) participated in a lecture and discussion with an expert on Bosnia concerning mechanisms for return and restitution applied in the case of Bosnian refugees.

Tasks and Types of Mechanisms

The return and restitution of refugees, particularly in the case of mass exodus, is a complex process. Numerous mechanisms – i.e., institutions or bodies – are required to facilitate implementation of hundreds of tasks that transform return and restitution from a right to reality.

Mechanisms for return, for example, facilitate a wide range of tasks from determination and registration of refugee choices, creation of demographic and socio-economic profiles of the refugee community to assist in crafting plans for return and reintegration of refugees in their home communities, development and implementation of the return (i.e., repatriation) plan, provision of personal documents, basic relief and health assistance, monitoring of human rights and reintegration programs, and socio-economic rehabilitation.

Mechanisms for restitution carry out an equally wide range of tasks from property documentation, creation of profiles concerning land use and housing stock, legislative analysis, identification of problems relating to secondary occupation of refugee homes, development and implementation of restitution procedures, creation of a new property database, mediation and/or adjudication of property claims, repeal or reform of discriminatory property legislation, and reconstruction of refugee homes.

In both cases – i.e. return and restitution – mechanisms may include UN agencies, independent multilateral institutions, state bodies, as well as international and local non-governmental organizations. Refugee problems are too complex to be solved by a single mechanism. In Bosnia, for example, over 100 international organizations have participated in the implementation of the return process.

The primary UN mechanism mandated to facilitate solutions for refugees is the Office of the UN High Commissioner for Refugees (UNHCR), often working alongside numerous other UN agencies, such as the UN Development Program (UNDP), as well as UN peacekeeping operations such as the UN Mission in Kosovo (UNMIK). In many cases, UNHCR plays the role of ‘lead agency’ providing a focal point for the coordination of multi-agency programs to facilitate return and real property restitution.

In other cases new institutions, often multilateral in character, may be established to facilitate return and/or restitution. In Bosnia, for example, the international community established the Commission for Real Property Claims (CRPC) to implement the right of refugees and displaced persons to real property restitution as affirmed in the 1995 Dayton Agreement. The Commission is composed of 9 members, including three that are appointed by the President of the European Court of Human Rights, and has a staff of over 300 working in its Executive Office in Sarejevo and in a network of regional offices. The CRPC works in partnership with numerous other bodies, including the Office of the High Representative (OHR), the Organization for Security and Cooperation in Europe (OSCE), UNHCR, and the UN Mission in Bosnia-Herzegovina.

Many states often set up their own mechanisms to coordinate implementation of the various tasks associated with return and restitution with UN and other international partners. In Tajikistan, for example, the government established a Central Department for Refugees and Forced Migrants in 1994 to act as UNHCR’s main domestic partner in charge of returning Tajik refugees and internally displaced persons from abroad as well as resolution of property issues.

In other cases refugees may establish their own organizations to not only lobby for but also participate in the design and implementation of return and restitution. In Guatemala, for example, refugee leaders formed Comisiones Permanentes and negotiated the terms of collective repatriation directly with their own government. Bhutanese refugees who are still struggling to return to their homes have engaged in a documentation project, through the Association for Human Rights Activists (AHURA), as an advocacy tool to authenticate the refugee’s nationality status and property rights and promote their right to return and property restitution.

UNCCP, UNRWA, UNHCR and Others

The issue of mechanisms for the implementation of the right of return, restitution, and compensation would not appear to be an immediate problem in the Palestinian case. After all, the United Nations established a unique institution to facilitate implementation of the durable solution for Palestinian refugees (i.e., paragraph 11, UN Resolution 194), a second institution to provide humanitarian assistance (UNRWA), and, in addition, authorized UNHCR to carry out this mandate in the event that either institution ceased to fulfill its mandate.

During initial years of its existence, the UN Conciliation Commission for Palestine (UNCCP) attempted to carry out many of the tasks identified above, including intervention with state parties to protect and promote refugee rights, collection of basic information for the creation of refugee profiles, and investigation of methods for determining refugee choices. The Commission also created a fairly comprehensive (though not complete) database of refugee properties that is currently stored in UN Archives in New York.

The problem of mechanisms in the Palestinian case arises, however, from the fact that the UNCCP ceased to carry out its mandate to implement a durable solution based on Resolution 194 in the early 1950s (See BADIL Brief No. 5) and UNHCR has not stepped in to fill the gap created by the cessation of UNCCP protection. UNRWA, while it may play a valuable role with respect to a variety tasks associated with return and restitution (See BADIL Brief No. 6), does not have a mandate or the broad experience to facilitate return and restitution. In other words there are no mechanisms currently functioning to facilitate a durable solution for Palestinian refugees.

The Palestinian proposal for a resolution of the refugee issue presented at Taba in January 2001 addresses this problem by proposing the creation of an alternative approach to the regime established by the United Nations. Rather than seeking to revive the UNCCP or request UNHCR intervention, the proposal outlines the creation of several new, independent, multi-lateral institutions. This includes a Repatriation Commission comprised of the Parties, United Nations, UNRWA, Arab host countries, US, EU, and Canada.

The Repatriation Commission is to: verify refugee status, determine priorities for certain categories of refugees and certain areas, determine procedures for repatriation, process applications, repatriate the refugees, provide assistance to returning refugees, and ensure the protection of returning refugees. A Compensation Commission is mandated to evaluate Palestinian material and non-material losses, administer implementation of provisions of the agreement, and administer and adjudicate claims of real property by refugees. The Commission is to be composed of the Parties, US, EU, UN, World Bank and Donor States. Finally, the proposal calls for the creation of an International Fund with a steering committee composed of Palestine, US, World Bank, EU, donor countries with the World Bank and the UN acting as a joint-secretariat. (See BADIL Bulletin No. 10 for further details, analysis and a copy of the proposal)

Palestinian researcher Salman Abu Sitta further suggests that refugees should form a Palestinian Land Commission (PLC) comprised of representatives from the 531 depopulated refugee villages. The PLC would act as a custodian for all properties until individual owners are identified and ownership of property is verified. Abu Sitta suggests that refugee properties should be transferred directly from the Israel Lands Administration (ILA) to the PLC.

Choosing the Right Mechanisms

There is a wide array of choices when it comes to deciding upon the most appropriate mechanisms for the implementation of Palestinian refugee rights, including UN agencies, multi-lateral institutions, domestic bodies, and non-governmental organizations. Choosing the appropriate set of mechanisms is critical to the success of return and real property restitution. The decision making process should pay close attention to legal, political and practical considerations.

For example, potential intervention by the UNHCR should include, among many other issues, discussion of whether the Agency understands the legal obligations imposed by General Assembly Resolution 194 – i.e., return and restitution based on individual refugee choice. The Agency has been criticized for promoting resettlement in some cases where it considers return to be not ‘practical’ or not in the best interests of the refugees according to its own criteria. In a situation where Israel refused to permit the return of refugees, or where the Agency considered it in the best interests of the refugees not to return to places where they would be a minority, would UNHCR promote resettlement?

If the UNCCP were to be revived, would the Commission’s membership, composed of the US, France, and Turkey, militate against objective implementation of Resolution 194? How would the position of the United States vis-à-vis a solution for Palestinian refugees affect the neutral operation of the Commission? What are the practical implications of setting up new multi-lateral institutions which do not have a track record or experience in the design and implementation of durable solutions? Can sufficient resources be seconded from existing mechanisms that have experience in other refugee cases?

Additionally, close attention should be paid to whether mechanisms have adequate financial and human resources (including an on-the-ground presence in host and country of origin). Adequate donor funding is often linked to a detailed implementation plan as well as energetic public information and external relations with donors. Is there sufficient international political support for relevant mechanisms? What is the role of refugees in relation to the mechanisms? Is there adequate attention to monitoring and effective enforcement procedures?

These are only few of many questions, which must be tackled prior to the determination of the proper mechanisms to effectively facilitate return and real property restitution for Palestinian refugees. International experience in numerous other refugee cases, including Kosovo, Bosnia, Guatemala, Mozambique, Rwanda, Cambodia, providing ample experience to study and drawn lessons from, which may be applied to the Palestinian case.

** This article is drawn from a comparative study of return and restitution forthcoming from BADIL (2002).