Editorial:Refugee Rights and an Indigenous Agenda for the Promotion of Human Rights and Democracy

Refugee Rights and an Indigenous Agenda for the Promotion of Human Rights and Democracy

Refugee rights and refugee participation are key elements of an indigenous agenda for the promotion of human rights and democratic reforms in the Middle East. An inclusive process that addresses protection concerns and simultaneously works to create the conditions in which Palestinian refugees and internally displaced may freely choose to exercise their right to return and repossess their homes and properties can enhance respect for human rights in the region and pave the way for broad democratic reforms in the Arab world and Israel.

The greater Middle East

Recent U.S. plans to promote political reform and democratization in the Middle East are widely perceived in the Arab world as the second round of an offensive launched after 11 September 2001 to reshape the political landscape of the region. The "Greater Middle East Initiative", apparently inspired by UN Arab Human Development Reports, was tentatively scheduled to be discussed and endorsed by members of the G-8, the EU, and NATO in June 2004. The plan for political, judicial, economic and social reform of Arab states has been met with widespread criticism.

The American initiative advances the notion of a “greater Middle East” that does not exist on the geopolitical map of the region. The initiative promotes partnership even though U.S. officials failed to consult Arab states and civil society about the plan. Special bilateral agreements will continue to shield Israel from legitimate challenges for democratization and respect for rule of law. In both form and content, the initiative appears more concerned with securing new occupation regimes in Afghanistan and Iraq, and the longstanding occupation of Palestine, than real democratic reform and promotion of human rights.

Criticism voiced by many Arab states is motivated by concern about the tightened U.S. grip on oilfields and business interests in the region, and by strong fears of a dramatic rise of popular support for fundamentalist Islam triggered by cultural alienation and the frustration of popular aspirations for freedom and social justice. Arab civil society organizations – unions, associations, political parties and human rights and development NGOs – on the other hand, are deeply concerned about the prospect that the proposed U.S. initiative will strangle their long-standing struggle vis-à-vis authoritarian Arab regimes for respect of human rights and the rule of law, civic participation and democratic reform.

One contributor to the UN development reports likened the U.S. initiative to “a drunkard leaning on a lamppost, to save himself from falling and not for enlightenment.” (“UN report writer rejects US’ Mideast reform plan,” Daily Star, 20 February 2004). Even the European Union has attempted to set some distance between its foreign policy in the region and the approach adopted by the Bush administration. The U.S. plan for a greater Middle East, if implemented, will have especially negative impact on vulnerable populations in the region, among them millions of Palestinian refugees. Stranded in the various Arab countries of exile without perspectives of a political solution to their plight, political and social conflict will further decrease the scope of legal and political protection available for them.

A reformed occupation

U.S. plans for the entire region coincide with Israeli efforts to establish a new security regime in the 1967 occupied Palestinian territories along front lines more favorable to Israeli military control and demographic interests. Ariel Sharon’s proposed unilateral withdrawal from the Gaza Strip (and perhaps from small areas of the West Bank) is being ‘negotiated’ with American officials in return for assurances that Israel will not be forced to withdraw to the 1949 armistice lines (‘Green line’), tacit support for Israeli efforts to crush Palestinian resistance including the use of extra-judicial killings, and support for resettlement of Palestinian refugees in any future Palestinian state.

The contours of Israel’s new occupation regime are rapidly taking shape on the ground: a separation/apartheid wall permitting de facto annexation of large portions of the 1967 occupied Palestinian territories; forced concentration of the Palestinian population in non-contiguous enclaves where humanitarian needs are catered to by international agencies; Jewish development of the Galilee and the Naqab (Negev) to offset Palestinian growth; the expulsion of Palestinians living ‘illegally’ inside Israel; and, the demise of the Palestinian national leadership and the option of a two-state solution in favor of long-term crisis management and containment.

The very aim of a negotiated settlement between the Israeli government and the Palestinian people appears to have been abandoned by the international community. The Sharon plan has quickly overtaken discussion of the Road Map, although American and European officials are anxious to characterize a withdrawal from Gaza as a step towards implementation of the international plan. Talk of unilateral withdrawal has also eclipsed the short but intense focus on the unofficial Geneva initiative, roundly rejected by Palestinian civil society as inconsistent with international law and the inalienable rights of the Palestinian people.

While the U.S. and Europe continue to refer to the importance of rule of law as part of a broader reform program for the region, the search for a comprehensive, just and durable solution to the Palestinian-Israeli conflict is increasingly characterized by a disengagement from international law. American and select European opposition to the proceedings at the International Court of Justice concerning the legal consequences of Israel’s separation/apartheid wall is the latest example. This approach not only undermines a negotiated solution to the conflict, but may also result in a reformed Israeli occupation administered and bankrolled by the international community itself.

An indigenous agenda for reform

Initiatives to promote democratic reform and human rights in the Middle East will only be effective if they are allowed to emerge from within the region. The challenge facing the Arab world is tremendous. If implemented, U.S. and Israeli plans will frustrate aspirations for freedom, human rights, justice and democracy for years to come. Arab civil society can provide alternatives. Successful past efforts include recent revisions to the 1994 Arab Human Rights Charter; sustained organizing of popular support for the Palestinian intifada; public protest and massive demonstrations against the U.S.-led war on Iraq; and a first Arab NGO summit held parallel to the 2001 Arab League summit in Beirut.

Nevertheless, democratic transformation has been slow and without tangible benefits for the people in the region. The unresolved Palestinian-Israeli conflict remains one of the most pervasive obstacles to democratic reform and promotion of human rights. An indigenous agenda that addresses protection concerns and simultaneously works to create the conditions in which Palestinian refugees and internally displaced – the core of the conflict – may freely choose to exercise their right to return and repossess their homes and properties through the development of more robust instruments and mechanisms could enhance respect for human rights in the region and pave the way for broader democratic reforms in the Arab world and Israel.

Civil society initiatives could also strengthen official resistance to political pressure and external initiatives, including U.S. plans for a greater Middle East and Israel’s long-term occupation and denial of the right of the Palestinian people to self-determination. They also provide the most effective response to the traditional mix of authoritarian rule, clientalism/nepotism and populism in the Arab world. Important parallel initiatives could be invigorated in this context, among them lobbying for the reform of personal status and citizenship laws, laws and policies limiting freedom of expression and association, development of domestic and regional human rights instruments and mechanisms, and regular civil society participation in the framework of Arab League summits.

The notion of an indigenous agenda for regional reform beginning with the issue of Palestinian refugees is address in this issue in the summary report of the third BADIL Expert Seminar held in Cairo with the participation of UNRWA, UNHCR, the European Council for Refugees and Exiles (ECRE), and delegates of Palestinian/Arab human and refugee rights organizations from Palestine, Lebanon, Syria and Egypt. The seminar focused on the closing the gap from protection to durable solutions. A feature article on past approaches to crafting durable solutions for Palestinian refugees also draws conclusions about reform of the Middle East peacemaking process.

This issue also provides updates about Palestinian organizing and right-of-return initiatives, including refugee community workshops with Dr. Karma Nabulsi (Nuffield College, Oxford) about rebuilding Palestinian civil society structures and participation in exile, Palestinian responses to the Geneva Accord (in Refugee Voices) and a conference on the right of return and just peace in Haifa on the occasion of the 28th anniversary of Land Day. Protection and assistance issues include updates on the impact of Israel’s separation/apartheid wall, renewed calls for restitution in Iraq and Libya, ongoing dispossession in the Naqab, and a field report about Israel’s massive destructive of refugee housing and livelihoods in Rafah.

“The Palestinian exile community has a right to participation and representation, but most Palestinians have no representation and no voice,” Dr. Karma Nabulsi told two community meetings organized by BADIL in the Dheisheh and al-Amari refugee camps in the West Bank on 15 and 17 January 2004.

Dr. Nabulsi, a former PLO representative and currently a fellow at Nuffield College, Oxford University, is engaged in preparations for an initiative seeking to explore needs, civic structures and mechanisms that would allow for more active participation by Palestinian civil society in exile and improve communication with each other and their legitimate leadership. She was invited by BADIL to present her ideas and initiative to local Palestinian refugee community organizations.

Dr. Nabulsi reminded participants of the fact that the Palestiniancommunity in exile has not been consulted on initiatives such as the Geneva Accords nor did they have any role in the 1996 Palestinian elections. She called for an inclusive process and told her audience that Palestinians in the 1967 occupied territories should reject further elections if the exile community is not included.

There is external pressure, she said, to fragment the Palestinian people and make its leadership unrepresentative. To remedy this, the people have to pressure and encourage the PLO leadership to represent all Palestinians, and this can best be done through civic structures that should be created by the people themselves.

It won't be easy, she said, but there is a need to create civic structures in the exile community where they can better communicate with their legitimate leadership and each other. The fragile political structures that exist are under siege, so we need to become unified. This can be done by connecting through structures that link Palestinians in the occupied territories and those outside.

Dr. Nablusi’s proposal for an agenda of civil society participation and democracy led by the authentic Palestinian need for unity and representation was enthusiastically received by local community activists. Participants expressed their dissatisfaction with prevailing projects of ‘civil society and democracy building,’ which tend to be donor-guided and ignore Palestinian refugee rights and needs. They expressed their eagerness to participate in follow-up once this initiative will be launched.

Dr. Nabulsi's presentation was based on her paper "Popular Sovereignty, Collection Rights, Participation and Crafting Durable Solutions for Palestinian Refugees" presented to the BADIL Expert Forum at Ghent University in May 2003. The paper is available in English and Arabic print versions and on BADIL's web site www.badil.org/Campaign/Expert_Forum.htm.

The right of return was ‘affirmed’, not ‘created’ by UN General Assembly Resolution 194, Gail Boling, on behalf of BADIL, told a recent conference of Israeli Jews and Palestinians in Haifa. Ms. Boling said that if legal language were used correctly, it would not be difficult to refute the commonly expressed challenges to the right of return.

The right of return, she said, is enshrined in international treaty and customary law and therefore binding. Israel is not permitted to ‘opt out’ of its obligations to Palestinian refugees, because their displacement and dispossession entailed violations of norms which all states must respect under international law (e.g. right to self-determination, prohibition of the use of force, prohibition of crimes against humanity, a.o.).

The common argument, she continued, that strong human rights law developed after 1948 is not applicable to Palestinian refugees, because ‘law cannot be applied retroactively,’ can be negated by at least two legal doctrines (intertemporal doctrine; continuous violation doctrine), if the case of Palestinian displacement and dispossession is presented as ongoing.

Haifa chosen for symbolic reasons

The choice of Haifa as the site of the first Right of Return and Just Peace Conference in Israel and late March as its date was meant to convey a political message: 70,000 Palestinians were expelled from the city in March 1948 and the conference was held on the eve of the 28th anniversary of Palestinian Land Day.

It was jointly organized by Ittijah (Union of Arab Based Community Organizations), Emil Touma Institute, Association of the Defense of the Rights of the Internally Displaced in Israel and the Zochrot Association, considering it time to transform the right of return from a dream into a major item on the public, civil society and policy making agenda in Israel and internationally.

The conference began on a pessimistic note with Palestinian historian Sharif Kan’ana (Birzeit University) declaring: “There is no place for debate about the right of return in this time, because we must speak about genocide. The experience of American Indians might well represent what is at stake for the Palestinian people.” This was later disputed. “Zionism,” argued one participant, “has been unable to defeat the Palestinian people; the South African model might be much more appropriate to describe the post-Oslo reality in Palestine where struggle is rapidly being transformed into a fight to end Israel’s form of apartheid.”

Challenge Israeli denial

Israeli historian Dan Yahav (Holon and Lod Colleges) focused on the importance of remembering the fate of the Palestinians in the region in order to challenge ongoing denial and the notion of ‘demographic threat’ to the Jewish state. He underlined the fact that Israel’s laws and demographic policies since 1948 have resulted in one-sided immigration: Israel’s Jewish population has grown by 1:100 while its Palestinian population has no more than tripled.

Professor Yahav denied that the Palestinian refugee issue was ‘an unfortunate result of war’ unable to be resolved because, ‘the wheels of history cannot be turned back’, and highlighted the responsibility of Israeli labor Zionism for the past and ongoing expulsion of the Palestinian people. Sari Hanafi of the Ramallah-based Shaml Center rephrased the continuing Nakba of the Palestinian people in post-modernist sociological terms arguing that ‘spaceocide,’ rather than genocide was Zionist Israel’s ultimate aim in Palestine.

Presentations by historians and sociologists were followed by a lively debate among the some 300 participants, about half of them Jewish Israelis eager to move on to a more activist approach to the right of return.

The difference between being defeated and being realistic was raised and participants noted their awareness of the Zionist movement’s efforts since Herzl’s days to enlist Palestinian academia and middle class, economically, politically and ideologically. They agreed that historical analysis should serve the struggle for just peace rather than providing more and more ‘de-construction’ of past and current disasters.

Res. 181 as advocacy tool

A legal reading of UNGA Resolution 181 (UN Partition Plan) provides useful tools for right of return advocacy in the international arena, Uri Davis (Al-Beit Association) told the conference in his presentation ‘Ten Theses for the Right of Return.’ Resolution 181, he pointed out, includes guiding principles for the constitutions of the proposed ‘Jewish’ and ‘Arab’ states which clearly affirm that all 4-5 million Palestinian refugees of 1948 are entitled to Israeli citizenship. Current Israeli citizenship law provides for ‘apartheid citizenship,’ because the law establishes different types of citizenship for Jews and non-Jews, he emphasized. Based on the argument that citizenship and nationality are two different concepts, he encouraged Palestinian refugees to claim Israeli citizenship and concluded by calling on right-of-return advocates to base their argument on all UN resolutions, not only UNGA Res. 194, and to develop initiatives of mass non-violent action.

Advocate Usama Halabi (Mada) provided conference participants with a detailed account of Israeli laws enacted to denationalize Palestinian refugees, confiscate their properties and prevent the enforcement of return and restitution. He noted that cancellation and/or reform of these laws is, as in the case of the Bosnia-Herzegovina peace agreement, a condition for implementation of adequate remedies in the future.

The conference session on Law and Advocacy concluded with a legal critique by Marwan Dalal (advocate, Adalah) of the moral arguments promoted by Sari Nusseibeh in the framework of the ‘Nusseibeh-Ayalon Plan’. The plan, he said, presents the right to freedom (sovereignty in the West Bank and Gaza) and the right of return as conflicting rights, holding that for ethical reasons the right of return must be relinquished for the sake of freedom. Dalal argued that legal analysis does not support this conclusion, because the two rights are neither opposed nor mutually exclusive. The assumption that it was more likely or possible to achieve right to freedom than the right of return, moreover, has been refuted by realpolitik based on the prevailing balance of power.

The conference agenda included presentations of historical and sociological research about 1948 displaced Palestinian villages and internally displaced Palestinians in Israel and Salman Abu Sitta’s ‘Return Plan.’ Poetry readings between sessions and Palestinian films screened parallel to the conference gave an insight into the emotional dimension of the Palestinian Nakba and its artistic expression by Palestinian artists of all ages.

A joint statement from the organizers, read in the closing session, affirmed the organizers’ commitment to sustained follow-up and right of return advocacy.
Planning is already under way for a second conference in March 2005.

A bus tour to six Palestinian villages depopulated in 1948, guided by the Association for the Defense of the Rights of the Internally Displaced in Israel after the conference ended, provided, in words of a Jewish Israeli visitor, an opportunity to “see what could not be seen in other visits to the Galilee.”

The final statement issued by conference organizers is reprinted in ‘Documents’ in this issue.