The Building Blocks of a Viable Solution for Palestinian Refugees

The Building Blocks of a Viable Solution for Palestinian Refugees

 The Building Blocks of a Viable Solution for Palestinian Refugees

A Reform Agenda for Middle East Peacemaking

The basic principles governing durable solutions for refugees and displaced persons are well-known. All refugees and displaced persons have the right to voluntarily return to their homes of origin in safety and dignity and repossess their properties.(1) Those not wishing to exercise these rights may opt for integration into host countries or resettlement in third countries.(2) Host countries should not push refugees to return; countries of origin should not prevent their return.(3) In other words, the starting point in crafting durable solutions is the wish of the refugee herself. While implementation is often imperfect, these basic principles are sine qua non for the crafting of durable solutions for refugees and displaced persons.

The search for durable solutions for Palestinian refugees and displaced persons, since the beginning of the Madrid-Oslo process, is characterized by a distinct approach. Territorial division of historic mandate Palestine has become largely synonymous with demographic partition.(4) In short, an end to Israel’s protracted illegal occupation in exchange for the extinguishment of refugee rights. The starting point for crafting durable solutions for Palestinian refugees, unlike other refugees, is the ethnic, religious and national origin of the refugee, and not the wish of each individual refugee.(5) “We all know what the solution will look like,” has assumed a mantra-like quality: a Jewish state for the Jews and a Palestinian state for the Palestinians.

This distinct approach also has its own discourse. Terminology and concepts are abstracted and lifted from their common legal and political context and redeployed to provide meaning or significance to a framework that is fundamentally inconsistent with durable solutions applied elsewhere. The aim is to facilitate solutions for Palestinian refugees by constructing a balance of assumed interests: i.e., symbolic recognition of refugee rights and the establishment of a Palestinian state in exchange for actual recognition of Israel as a Jewish state. In practice, however, this discourse
undermines the search for durable solutions. The dissonance created by this discourse further alienates refugees from a peacemaking process in which they already feel marginalized.(6)

This article examines some of the most salient features of this discourse. Reports on the Palestinian-Israeli conflict published by the International Crisis Group (ICG), an independent, non-profit, multinational organization working through field-based analysis and high-level advocacy to prevent and resolve deadly conflict, will be used as a case study to examine this discourse.(7) The ICG has published numerous reports on other refugee cases, which provide a useful contrast to the unique discourse adopted in relation to Palestinian refugees. The article concludes with some thoughts on a reform agenda for crafting durable solutions for Palestinian refugees.

Things are not what they appear to be

One of the primary attributes of the discourse concerning durable solutions for Palestinian refugees is a process that attempts to imbue those terms or concepts, which constitute points of disagreement between Israel and the PLO, with new meanings. These terms or concepts may be considered ‘spoilers’. Inclusion or elimination of such terms or concepts can either make or break a potential agreement on the refugee issue. The most obvious example is paragraph 11 of UN General Assembly Resolution 194(III). Israel officially opposes inclusion of Resolution 194 in any peace agreement because the resolution affirms the right of Palestinian refugees to return to their homes. The PLO favors inclusion of the resolution for the same reason.

Based on bridging ideas introduced at Camp David by then President Clinton(8), recent proposals attempt to resolve this impasse by redefining the meaning of Resolution 194. The International Crisis Group, for example, suggests that the parties agree that “the terms of UN General Assembly Resolution 194 are satisfied by a variety of resettlement options and compensation provisions then spelled out.” This language mirrors earlier U.S. proposals concerning UN Security Council Resolution 242. “The two sides concur that the agreement reached between them on permanent status will constitute the implementation of Resolutions 242 and 338 in all their aspects.”(9) In other words, what is important is not what Resolution 194 means, but rather, the meaning of the resolution as agreed upon by the parties themselves.

The problem is that refugees themselves understand very well the meaning of Resolution 194. Moreover, the drafting history of the resolution and various interpretative working papers prepared by the Secretariat of the UN Conciliation Commission for Palestine (UNCCP) provide a concise interpretation of the intent and purpose of the resolution.(10) In brief, Resolution 194 affirms three separate rights – i.e., right of return, right to real property restitution, and the right to compensation – and two distinct solutions (i.e., return, restitution and compensation or resettlement, restitution and compensation) governed by the principle of individual refugee choice.(11) In contrast, the new meaning given to Resolution 194 merely offers refugees resettlement options but no right to return to their homes of origin inside Israel.

In other words, the new discourse retains Resolution 194 in name, but the new meaning assigned to the resolution deprives it of its original intent and purpose. It is not the name that makes Resolution 194 significant to Palestinian refugees, but rather, the actual intent and purpose of the resolution – i.e., its substance, which is the affirmation of the right of refugees to return to their homes. Depriving Resolution 194 of its original intent and purpose therefore also deprives the resolution of its significance to refugees. It is a bit like trying to convince a hungry man that sand is wheat. Perhaps he can summon his imagination to do so, but all the powers of imagination will not resolve his actual need for food. This discourse thus undermines refugee support for the proposed agreement.

Rights, rejectionism and imposed solutions


A second feature of this unique discourse is the construction of an alternative value system for durable solutions for Palestinian refugees. Refugee rights, including return and housing and property restitution, may be viewed generally as either value-neutral or value-positive. In other words, these rights are the commonly-accepted building blocks for durable solutions. The inclusion of rights-based language in the Palestinian case, however, creates a political impasse, given the lack of sufficient political will to enforce international law. Israel continues to argue that Palestinian refugees do not have rights or that these rights lead to a political outcome unacceptable to Israel. The PLO argues the opposite. Refugee rights are therefore viewed as value-negative.

Proposals, like that of the ICG, attempt to resolve this impasse first by suspending Palestinian refugee rights – “the right of return is not mentioned, meaning that formally it is neither recognized by Israel nor renounced by Palestinians” – and then by constructing an alternative value system consonant with the assumption that rights are not applicable or at least not useful to the Palestinian case. The ICG thus characterizes the right of return as “orthodoxy”, and alternatively describe rights-based positions as “uncompromising,” “sentimental,” and “hard-line” – i.e., rights as value-negative. By inference, the approach presented by the ICG is seen to be flexible, rational, and accommodating or value-positive. The proposal therefore draws a very clear characterization of rights-based approaches to the Palestinian refugee issue as rejectionist – i.e., opposed to peace with Israel.

This is further elaborated by drawing a distinction between refugee rights and a negotiated solution to the Palestinian refugee issue. Refugee rights and negotiated solutions are presented as mutually exclusive concepts rather than a legal framework – i.e., a ‘road map’ – for negotiations. The ICG suggests, for example, that Resolution 194, which affirms the right of Palestinian refugees to return to their homes of origin “has been invoked to insulate the refugee question from a negotiated political compromise.” In other words, those who advocate for refugee rights are seen to be in favor of an imposed solution or fundamentally opposed to peace with Israel while the approach advocated by the Crisis Group is characterized as more consistent with a negotiated solution.

The problem with this discourse is two-fold. On the one hand, it is self-evident to refugees that the right of return and restitution are commonly-accepted building blocks for durable solutions. Despite problems with implementation, they are viewed elsewhere as either value-neutral or value-positive, but certainly not value-negative. Most peace agreements that prescribe durable solutions for refugees recognize their right to return and repossess their properties.(12) This includes agreements in Macedonia, Kosovo, Croatia, Bosnia-Herzegovina, Tajikistan, Georgia, Burundi, Rwanda, Liberia, Sierra Leone, Mozambique, Cambodia and Guatemala. On the other hand, Palestinian refugees do not consider their demand for their rights as hard-line, sentimental or rejectionist. It is, rather, consistent with the promotion of human rights and rule of law. This discourse, therefore, has the effect of further alienating refugees from peacemaking process.

Refugees do not say what they mean

A final feature of this discourse is the interpretation of refugee demands and statements for the right of return and restitution within the contours of a predefined solution rather than within their current political and social context. The purpose is quite straight forward – to explain ongoing refugee demands for basic rights applied elsewhere in a manner that is consistent with the notion of territorial and demographic partition. There is an implicit assumption here that refugees are not independent actors capable of expressing autonomous and/or genuine points of view. If they speak about rights, either they do not say what they mean or they do not mean what they say – i.e, they are being manipulated.

The International Crisis Group, for example, suggests that refugee demands for the right of return are not really about the right of return, but rather an expression of those sectors of Palestinian society that are opposed to the Oslo process. Refugee rights are viewed as a means to “legitimize a variety of agendas, discredit rivals and opponents, mobilize and manipulate any number of constituencies, [and] oppose concessions on the refugee question for reasons that often go significantly beyond or are only tangentially related to the refugee issue itself.” In other words, they are not autonomous activities undertaken by refugees themselves. Selective examples are employed to support this thesis, all of which are oppositional or reactionary in nature. This includes rejection of public opinion polls on the refugee issue and the Geneva Accords.

A related explanatory factor is that refugees continue to raise demands for their rights because the Palestinian leadership is not frank or honest with their constituents. Commenting on the two-state solution, the ICG observes that “the Palestinian leadership has yet to conduct a serious dialogue with its constituents about the implications of its political strategy upon the refugee question.” The assumption is that by accepting a two-state solution the PLO agreed to forego the right of return. PLO acceptance of the two-state option, however, was done so within the context of UN General Assembly Resolution 181.(13) Resolution 181 recommended territorial partition of historic mandate but concluded that demographic partition was impossible.(14) The question of how the right of return would be implemented within a two-state solution was clearly laid out by the PLO at the United Nations in 1976.(15)

This discourse is problematic because it is fundamentally anti-democratic. It is based on the premise of refugee participation without representation. Refugee views are instrumentalized to support a predefined solution. There is no opportunity for refugees to participate in a process that would actually shape the contours of durable solutions to their protracted exile. While the ICG proposes a dialogue between the PLO and the refugee community, the suggested model is little more than a monologue. “The [Palestinian] leadership and the secular nationalists should explain to the Palestinian people what a two-state settlement would mean for the refugees in concrete terms, and engage other Palestinian political actors in efforts to broaden the national consensus on the refugee question.” The idea that refugees should simply be told that it is in their best interests, despite best practice around the world, to forego their basic human rights provides little incentive to support this approach.

An agenda for reform

With prospects for implementation of the international Road Map rapidly fading into oblivion, what the Middle East urgently needs is less talk about some distant viable Palestinian state, and more action to create a current viable peace process built on respect for human rights and providing for broad public participation. Human rights provide a common framework to regulate relations between former antagonists, mediate future disputes and reconcile past injustices. Public participation strengthens democratic principles and structures, expands the range of solutions to complex issues, lends greater legitimacy to agreements, engenders broad public ownership of the agreement and contributes to its durability.(16)

The basic building blocks for durable solutions for Palestinian refugees are well-known. Reviewing past peace agreements, the Public International Law & Policy Group observes that three components are necessary to create and successfully implement an agreement on refugees.(17)
1) enshrinement of the right to voluntary return, which is the most fundamental right of all displaced persons;
2) creation of a lasting peace, with a commitment to ensure the security of returnees and to produce conditions under which they can successfully reintegrate in their home country; and,
3) establishment of procedures for accomplishing return, including distribution of property and/or compensation, mechanisms for resolving property disputes, and development of infrastructure in returnee areas.

Approaches to crafting durable solutions for Palestinian refugees, like the one advocated by the ICG, have merely created further confusion and alienation of refugees from the peacemaking process. On the one hand, the Crisis Group observes, that the “refugee question is fundamentally a national and political one, neither monopolized by the refugee community nor susceptible to resolution by satisfaction of their immediate material needs.”(18) And yet, it recommends that refugees should be persuaded to forego their rights based on the conclusion that “support for a pragmatic solution will depend as well on whether refugees are provided with satisfactory outcomes that respond to their material needs.” “Where there is law and principle so there is strength and capacity to oppose,” observes refugee expert Guy Goodwin-Gill.(19) “Where there are merely policies and guidelines,” a refugee is in danger of becoming merely a “unit of flight, a unit of displacement, to be contained and thereafter channeled down whatever humanitarian corridor leads to whatever political end.”

Ironically, the components of a reform agenda, supplemental to the principles outlined by the Public International Law & Policy Group and in international law and best practice in general, can be found in a follow-up report by the ICG on Palestinians inside Israel.(20) In broad terms, the Crisis Group recommends that Israel should become a state of all its citizens in order to address the longstanding problems of its Palestinian citizens.(21) The report, however, fails to draw or understand the linkage between this recommendation and the crafting of durable solutions for Palestinian refugees. Recommendations relate to the two fundamental features of the Palestinian refugee condition – denationalization and dispossession. They include measures to abolish discriminatory Israeli laws and practices related to acquisition of nationality, distribution of state resources and services, planning, and representation and, more equitable distribution of land through ending the official roles assumed by quasi-state statutory bodies such as the Jewish National Fund. It is only when this kind of reform begins to take place that it will be possible to speak about a viable solution for Palestinian refugees.

Endnotes
(1) See, e.g., United Nations High Commissioner for Refugees, Executive Committee Conclusion No. 18 (XXXI) Voluntary Repatriation (1980); United Nations High Commissioner for Refugees, Executive Committee Conclusion No. 40 (XXXVI) Voluntary Repatriation; International Convention on the Elimination of All Forms of Racial Discrimination, General Recommendation XXII, Article 5 and refugees and displaced persons, 24 August 1996; UN Sub-Commission on Human Rights Resolution 2002/30, The right to return of refugees and internally displaced persons, 15 August 2002; UN Sub-Commission on Human Rights Resolution 2002/7, Housing and property restitution in the context of refugees and other displaced persons, 14 August 2002; and, Housing and property restitution in the context of the return of refugees and internally displaced persons, Preliminary report of the Special Rapporteur, E/CN.4/Sub.2/2003/11, 16 June 2003.
(2) See, e.g., United Nations High Commissioner for Refugees, Executive Committee Conclusion No. 67 (XLII) Resettlement as an Instrument of Protection (1991).
(3) United Nations High Commissioner for Refugees, Handbook, Voluntary Repatriation: International Protection. Division of International Protection. Geneva (1996), p. 10.
(4) See, e.g., statement by U.S. Secretary of State Powell stating that “Palestinians must eliminate any doubt, once and for all, that they accept the legitimacy of Israel as a Jewish state.” U.S. Vision for the Middle East, 19 November 2001.
(5) This reflects Israel’s early position that “the refugee question was not simply one of individual rights but one effecting the fate of countries and peoples and the desirability of achieving demographic homogeneity.” Quoted in UNCCP, Analysis of Paragraph 11 of the General Assembly Resolution of 11 December 1948. UN Doc. A/AC.25/W.45, 15 May 1950. The Israeli delegate to the UN rejected the principle of refugee choice because “[w]e fear that there can be little doubt that [the refugees] would so opt.” Quoted in UNCCP, Historical Survey of Efforts of the UNCCP to Secure the Implementation of Paragraph 11 of General Assembly Resolution 194(III), The Question of Reintegration by Repatriation or Resettlement. UN Doc. A/AC.25/W.82/Rev.1, 2 October 1961.
(6) Marginalization from the peacemaking process has at least two dimensions – procedural (i.e., exclusion from the peacemaking process itself) and textual (i.e., exclusion of refugee rights, concerns and demands from the text of the agreements).
(7) International Crisis Group, Middle East Endgame II: How a Comprehensive Israeli-Palestinian Settlement Would Look. Middle East Report No. 3, 16 July 2002; and, Palestinian Refugees and the Politics of Peacemaking. Middle East Report No. 22, 5 February 2004. Citations in this article are extracted from the February report.
(8) For a summary see, Transcript of Clinton Remarks at Israel Policy Forum Gala, 7 January 2001 (www.arts.mcgill.ca/MEPP/PRRN/papers/clinton_remarks.html).
(9) U.S. Draft of an Israeli-Palestinian Joint Declaration of Principles, Washington, DC, 30 June 1993, reprinted in Mahdi F. Abdul Hadi (ed.), Documents on Palestine, From the Negotiations in Madrid to the Post-Hebron Agreement Period. Jerusalem: Palestinian Academic Society for the Study of International Affairs, p. 134.
(10) For an overview see, Terry Rempel, UN General Assembly Resolution 194(III) and the Framework for Durable Solutions for 1948 Palestinian Refugees, May 2003 (www.badil.org/Campaign/ExpertForum/SeminarOne.htm).
(11) Ibid.
(12) For an overview and summary of key rights see, e.g., Public International Law & Policy Group, Resettlement of Refugees and Internally Displaced Persons. Prepared by Jesse T. Travis, Sukhman Dhami, Nathan P. Kirschner, Roger Lin, and Alexis McGinness(www.publicinternationallaw.org).
(13) See, e.g., Palestinian Declaration of Independence, Algiers, 15 November 1988 stating that “Despite the historical injustice inflicted on the Palestinian Arab people resulting in their dispersion and depriving them of their right to self-determination, following upon UN General Assembly Resolution 181 91947), which partitioned Palestine into two states, one Arab, one Jewish, yet it is this resolution that still provides those conditions of international legitimacy that ensure the right of the Palestinian Arab people to sovereignty.” Reprinted in Documents on Palestine, supra 9, p. 331-32.
(14) The UN Special Committee on Palestine, which drafted the recommendations that became the basis of UN General Assembly Resolution 181 concluded that it was impossible to create two viable demographic states – one Jewish and one Arab – in Palestine due to the dispersion of the two populations throughout the country. Resolution 181 thus recommended the territorial partition of Palestine into an Arab state with an Arab majority and a Jewish state in which Jews and Arabs comprised nearly equal parts of the total population – i.e., a binational state.
(15) For a clear formulation see, Statement by the Acting Permanent Observer of the Palestine Liberation Organization at the fifth meeting of the Committee on the Exercise of the Inalienable Rights of the Palestinian People, UN Doc. A/AC.183/2, 9 March 1976. The Committee approved the formulation presented by the Acting Observer. When the matter was brought before the UN for endorsement by the Security Council the United States vetoed the proposal.
(16) “Owning the Process: Mechanisms for Political Participation of the Public in Peacemaking,” An Accord Programme Joint Analysis Workshop Report, Old Jordan’s, Buckinghamshire, United Kingdom, 1-3 February 2002.
(17) Supra 12.
(18) This is similar to conclusions drawn by the UN Secretary General in 1959 after the failure to integrate refugees within Arab host states through economic rehabilitation programs. “No reintegration would be satisfactory, or even possible, were it to be brought by forcing people into new positions against their will.” Quoted in N. Boqai and T. Rempel (eds.), Survey of Palestinian Refugees and Internally Displaced Persons 2002. Bethlehem: BADIL Resource Center, 2003, p. 117.
(19) Guy S. Goodwin-Gill, “Refugee Identity and Protection’s Fading Prospect,” Refugee Rights and Realities, Evolving International Concepts and Regimes. F. Nicholson & P. Twomey (eds.). Cambridge: Cambridge University Press, 1999, p. 246.
(20) International Crisis Group, Identity Crisis: Israel and its Arab Citizens. Middle East Report No. 25, 4 March 2004.
(21) For more on refugees and multi-ethnic states see, e.g., Report of the Expert Seminar on Racism, Refugees and Multi-Ethnic States, World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, UN Doc. A/CONF.189/PC.1/9, 15 March 2000.