Annan was not the first to apply this interpretation to Road Map provisions on refugees. His summary is consistent with US President George Bush's April 2004 letter of assurance to Ariel Sharon stating that 'an agreed, just, fair, and realistic framework for a solution to the Palestinian refugee issue...will need to be found through the establishment of a Palestinian state, and the settling of Palestinian refugees there, rather than in Israel.'(3)
Last December Italian Prime Minister Romano Prodi was reported to have also endorsed this interpretation (the first European leader to do so publicly), although Israel's Channel 10 later broadcast footage appearing to show Prime Minister Ehud Olmert 'coaching' Prodi what to say.(4) Later that month the US Congress passed the Palestinian Anti-Terrorism Act formalizing American sanctions on the Palestinian Authority (PA) and calling upon the Hamas-led g5overnment to recognize Israel as a 'Jewish state'.(5)
Anyone listening to Israeli Foreign Minister Tzipi Livni these days cannot help but pick up the same message. A future Palestinian state says Livni is 'the answer for Palestinian refugees - wherever they may be' and if Palestinians are 'unwilling to say this, the world should say it for them.'(6) Of course, Livni's statements are not surprising. Israel's long-held belief that the solution for Palestinian refugees is outside the borders (yet to be established) of Israel is not a state secret.
But Annan's remarks raise a different set of issues, particularly as the Quartet and others attempt to restart a political process to resolve the conflict.(7) Their assertion that the 'broad outline of a final settlement' is well-known is premised on a 'trade-off' between individual and collective rights. In other words 'peace', as defined by the realization of collective rights (statehood), and individual (refugee) rights are irreconcilable.
Is this really how the UN understands the conflict and its solution? This brief article examines some of the defining moments in the UN's treatment of the 'Question of Palestine', focusing on the General Assembly and the Security Council, with special attention to the refugee issue. It concludes with a few thoughts on what we know, or perhaps, what we think we know about the conflict and its solution.
A repository of rights
In the absence of Security Council intervention, the General Assembly has become a 'repository' (in the best and worst sense of the word) for the Palestine question over the past six decades. The Assembly and its subsidiary bodies, including the Council (formerly Commission) on Human Rights, have reaffirmed relevant legal principles,(8) set up mechanisms to monitor and implement those principles,(9) and it has initiated actions - political, humanitarian, and legal - when the Security Council has failed to do so.(10)
Deliberations by the Assembly have generally upheld the essential complementarity of the collective right (to self-determination) and individual rights (of refugees to return, restitution, and compensation) in Israel/Palestine. While this debate is often situated in the post-1948 period, it can be traced back to 1947 when the UN 'inherited' the Palestine question from the British. The 1947 partition plan was the General Assembly's first attempt to address claims of Palestinians and the Zionist movement to self-determination in the same territory. While the recommendation to 'over-ride' the self-determination claims of Palestine's majority (for a single democratic state) was hotly disputed,(11) the Assembly did so only by providing extensive protections for the individual rights of all inhabitants of the country. Citizenship and property provisions essentially affirmed the right of Palestine's inhabitants not to be displaced or dispossessed of their properties.(12) In effect, the Assembly was saying that recognition of the collective right to self-determination (statehood) of each community through partition could not be used to arbitrarily restrict or violate the rights of individual Arabs and Jews.(13)
The same formula can be found in the General Assembly's next major consideration of the Palestine question nearly 30 years later. In a plan put forward in 1976, the Assembly called for the establishment of a Palestinian state in the West Bank and Gaza Strip and provided for a phased return of refugees, first to the Occupied Palestinian Territories (OPT), to be followed by the return of 1948 refugees to their places of origin inside Israel.(14) And it is endorsed in the 1983 Geneva Declaration on Palestine and Programme of Action for the Achievement of Palestinian Rights.(15) The coming into force of the Convention on the Elimination of All Forms of Discrimination (CERD) and the International Bill of Rights(16) further strengthened this approach, although it would be another two decades (3 in the case of CERD) before the UN bodies monitoring the implementation of these instruments would issue substantive rulings on the Palestinian refugee question.(17)
The 'Decider Decides'
But if the General Assembly and its subsidiary bodies are the repository for the question of Palestine, including refugee rights, the Security Council has often been, in the words of George W. Bush, 'the decider'. And it is the decider that has decided the peacemaking agenda. This has taken place through a two-fold process comprised of (1) blocking 'unwelcome' initiatives (28 vetoes, all cast by the United States, since 1973 when the Council first considered the issue of Palestinian rights)(18) and (2) defining the 'principles of peace' that today provide the contours of a final settlement, namely Security Council Resolutions 242 (1967), 338 (1973), 1397 (2002), and 1515 (2003).
Unlike the General Assembly, the Council has generally promoted collective rights 'at the expense' of individual rights. On three separate occasions - twice in 1976 and again in 1980 - the US vetoed draft resolutions (along with the 1976 General Assembly peace plan) reaffirming the rights of Palestinian refugees to return to their homes and the right of the Palestinian people to self-determination.(19) Resolution 237 of June 1967 reaffirms the principle of return but only in relation to those refugees first displaced in the 1967 war who originate from the OPTs, the proposed self-determination unit for a future Palestinian state. Resolution 242 of November 1967 calls for a 'just settlement' of the refugee issue; it does not address the right to self-determination. It would take another decade-and-a-half before the Security Council finally endorsed the self-determination rights of Palestinians through a two-state solution, although the term 'self-determination' is not used in Resolution 1397.
Resolution 242 also shifted the substance of the peace process in Israel/Palestine from one based on rights to one that relies primarily on a political formula ('land for peace'). In contrast to the clarity found in the General Assembly's approach to the conflict and the refugee issue in particular - i.e., refugees have a right to return to their homes, repossess properties, and receive compensation for damages - the Security Council- driven framework is characterized by 'creative ambiguity' (i.e., what does a 'just settlement' for refugees mean?) befitting a politically-driven approach.(20) But while the Security Council has not reaffirmed the rights of Palestinian refugees, neither has it (yet) endorsed the idea of a Jewish state as defined by Israel and alluded to by Kofi Annan. To do so would put the Council in potential conflict with the UN's human rights mechanisms.(21)
Unlike the General Assembly's 1976 initiative which was drafted in consultation with Palestinians,(22) Council Resolution 242 was adopted in the absence of Palestinian representation and was essentially forced upon the PLO as a condition for political engagement.(23) Thus, while Security Council Resolutions 242 ('land for peace') and 1397 ('two-states' - i.e., the second partition), in particular, delineate the 'broad outline of a final settlement', the extent to which they represent a shared vision of the future - i.e., the known known - must be gaged in light of the fact that the Security Council effectively 'shifted the agenda away from the priorities articulated'(24) by Palestinians. Moreover, recent opinion polls are of little help in deciphering grassroots support for the Council's approach as they tend to exclude Palestinians outside the OPTs.(25)
The Unknown Unknown?
It has become an 'article of faith' that everyone knows what the solution to the conflict is, and increasingly, it has been suggested that this involves a trade-off between individual and collective rights such that refugees will not be returning to their homes of origin inside Israel. The United Nations itself is a 'house-divided' on its definition of the conflict and its solution. The General Assembly and its subsidiary bodies generally affirm the essential complementarity of collective and individual rights. The Security Council has all but sidelined the Assembly, promoting a solution that offers not marriage but rather permanent divorce of the collective from the individual.
As efforts gear up towards renewing political contacts, it might be worthwhile to reexamine whether Annan's 'known known' might in fact be an 'unknown unknown' or, as Donald Rumsfeld explains, something that we don't know we don't know (but arguably really should know). Do the parties, and not just the elites, really accept the contours of a final settlement proposed by the Road Map, as clarified by President Bush and now Kofi Annan? Even Annan seems to hint at some doubt, suggesting that Israel needs to 'grasp' and 'acknowledge' the 'fundamental Palestinian grievance ... namely, that the establishment of the State of Israel had involved the dispossession of hundreds of thousands of Palestinian families, and had been followed 19 years later by a military occupation that brought hundreds of thousands more Palestinian Arabs under Israeli rule.'(26)
One way to find out is to democratize the peacemaking process. As Jarat Chopra and Tanja Hohe observe in a recent article on international peacemaking and global governance: 'What may be feasible is a longer-term transition in which space is provided for local voices to be expressed and for communities to get directly involved in the evolution of their own cultural or political foundations, as part of a gradual integration into the national state apparatus. This means giving time for an indigenous paradigm to coexist with, or to gradually transform during the creation of, modern institutions. Integral to the process is the design of mechanisms for genuine popular participation in administrative bodies at the local level, which can also guarantee representation upward throughout the government-building enterprise from the very beginning to ensure its social viability.'(27)
Terry Rempel is a consultant with Badil and a PhD. candidate at Exeter University in the UK. He is currently working on the participation of refugees in crafting peace agreements.
(1) 'Secretary-General Tells Security Council Middle East in Profound Crisis, Calls for "New and Urgent Push for Peace"', UN Doc. SG/SM/10796, SC/8897, Dec. 12, 2006.
(2) See, e.g., 'Remarks by Gareth Evans, President, International Crisis Group, to Concluding Plenary Session, Madrid +15 Conference, "Towards Peace in the Middle East: Addressing Concerns and Expectations,"' Madrid, Jan. 12, 2007 (desribing the 'huge and depressing gap' between 'the collective awareness of what needs to be done' and 'collective impotence when it comes to doing it.') See also, Robert L. Rothstein, How Not to Make Peace. Washington, DC: US Institute of Peace, March 2006, p. 5 (stating that the 'general outlines of a painful but bearable compromise solution - some details aside - had been apparent for many years').
(3) Letter from President Bush to Prime Minister Sharon, Apr. 14, 2004 <http://www.whitehouse.gov/news/releases/2004/04/20040414-3.html> (last visited Jan. 30, 2007).
(4) 'Prodi pushes for Jewish Israeli state', Jerusalem Post, Dec. 5, 2006; 'Channel 10 showed footage of Olmert apparently leading Prodi into endorsing Israel's view', Dec. 14, 2006.
(5) Palestinian Anti-Terrorism Act of 2006 (requiring Presidential certification to ensure that no assistance shall be given to a 'Hamas-controlled Palestinian Authority' unless it has 'publicly acknowledged the Jewish state of Israel's right to exist').
(6) See, FM Livni speaking to the 61st session of the UN General Assembly. UN Doc. A/61/PV.13, Sept. 20, 2006. See also, Ari Shavit, 'The Livni Plan', Ha'aretz Magazine, Dec. 29, 2006; and Aluf Benn, 'Analysis/Two-state deception', Ha'aretz, Apr. 14, 2003.
(7) See, e.g., Akiva Eldar, 'Arab League floats initiative for resuming the peace process', Ha'aretz, Aug. 31, 2006; International Crisis Group, 'Towards a Comprehensive Settlement', Press Release, Sept. 22, 2006; AP, 'Mediterranean leaders to push for relaunch of peace process', reprinted in Ha'aretz, Oct. 27, 2006; Nathan Guttman, 'State Department Weights Plan for Palestinian State', Forward, Dec. 22, 2006; 'MacKay to launch Mideast diplomatic initiative', CTV, Dec. 24, 2006; 'Abbas to Mubarak: PA ready for 'backdoor' talks with Israel', Ha'aretz, Dec. 27, 2006; 'Peretz calls for final status talks within six months', Ha'aretz, Jan. 8, 2007; 'French president calls for Middle East peace conference', Reuters, Jan. 5, 2007; and 'EU supports shifting to "end game" in Israeli-Palestinian peace talks', Ha'aretz, Jan. 18, 2007.
(8) These include: the right to return, restitution, and compensation (Res. 194 (III), Dec. 11, 1948); the inalienable rights of the Palestinian people (Res. 2535 (XXIV) C, Dec. 10, 1969); and the right to selfdetermination (Res. 2672 (XXV), Dec. 8, 1970). These rights are consolidated in Res. 3236 (XXIX), Nov. 22, 1974.
(9) Subsidiary bodies relating to the Palestine question include: the UN Conciliation Commission for Palestine (Res. 194 (III), Dec. 11, 1948); the Advisory Commission on the UN Relief and Works Agency for Palestine Refugees in the Near East (Res. 302 (IV), Dec. 8, 1949); the Ad Hoc Committee for the Announcement of Voluntary Contributions to UNRWA (Res. 1729 (XVI), Dec. 20, 1961); the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of Occupied Territories (Res. 2443 (XXIII), Dec. 19, 1968); the Working Group on the Finance of UNRWA (Res. 2656 (XXV), Dec. 7, 1970); the Committee on the Exercise of the Inalienable Rights of the Palestinian People (Res. 3376 (XXX), Nov. 10, 1975); the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967 (Res. 1993/2 A), Feb. 19, 1993); and the Register of Damage (Res. ES-10/17, Dec. 15, 2006).
(10) Pursuant to Res. 377 (V) of November 1950 the General Assembly may take action in situations where there is a threat to peace, breach of peace or act of aggression if the Security Council fails to do so due to the negative vote of a permanent member. The General Assembly has launched several efforts to resolve the Palestine question, including the 1947 Partition Plan (Res. 181 (II), Nov. 29, 1947); the 1976 Recommendations by the Committee on the Inalienable Rights of the Palestinian People (Res. 31/20, Nov. 24, 1976 and 35/169, Dec. 15, 1980); the Geneva Peace Conference (Res. 36/120, Dec. 10, 1981; the call for a meeting of the High Contracting Parties to the Fourth Geneva Convention (Res. ES-10/2, Apr. 25, 1997), and the request for an International Court of Justice Advisory Opinion on the Wall (Res. ES-10/14, Dec. 8, 2003), among others.
(11) For a summary see, Terry Rempel, 'From Mandate to Partition, Lessons Learned or Mistakes Repeated - The United Nations and Palestine', al-Majdal 8 (December 2000), pp. 30-37.
(12) For a contemporary perspective see, the UN Guiding Principles on Internal Displacement. Sec. II - Principles Relating to Protection Against Displacement (Principle 5 stating 'All authorities and international actors shall respect and ensure respect for their obligations under international law, including human rights and humanitarian law, in all circumstances, so as to prevent and avoid conditions that might lead to displacement of persons'; Principle 6(1) stating 'Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence').
(13) See, e.g., Michael Kagan, Do Israeli Rights Conflict with the Palestinian Right of Return? Identifying Possible Legal Arguments. Working Paper No. 10. Bethlehem: BADIL Resource Center for Palestinian Residency & Refugee Rights (August 2005), p. 10 (stating 'Self-determination in international law is meant to facilitate the enjoyment of other rights, not to negate them').
(14) Report of the Committee on the Exercise of the Inalienable Rights of the Palestinian People. UN GAOR, 31st Sess., Supp. 35, UN Doc. A/31/35, July 21, 1976.
(15)Geneva Declaration on Palestine and Programme of Action for the Achievement of Palestinian Rights, Annexed to Letter dated 10 October 1983 from the Chairman of the Committee on the Exercise of the Inalienable Rights of the Palestinian People addressed to the Secretary-General, UN Doc. A/38/497, S/16038, Oct. 12, 1983.
(16) Comprised of the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic and Cultural Rights in addition to the Universal Declaration of Human Rights. In a recent book on the drafting of the Declaration, author Mary Ann Glendon suggests that the second clause of art. 13(2) on the right to return was specifically included to address the situation of Palestinian refugees. Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House, 2001, p. 153. See also, Human Rights Committee General Comment No. 27, Freedom of Movement (Art. 12), (Sixty-seventh session, 1999), UN Doc. CCPR/C/21/Rev.1/Add.9 (1999), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 at 174 (2003); and Committee on the Elimination of Racial Discrimination, General Recommendation 22, Refugees and Displaced Persons (Forty-ninth session, 1996), UN Doc. A/51/18, annex VIII at 126 (1996), reprinted ibid.
(17) See, Concluding Observations of the Committee on the Elimination of Racial Discrimination: Israel. UN Doc. CERD/C/304/Add.45, Mar. 30, 1998, para. 18 (calling upon Israel to rectify policies prohibiting return and repossession of homes). CERD's finding and recommendation followed on a 1996 'general comment' by the committee clarifying Article 5(ii) of the Convention prohibiting discrimination with respect to the right to leave and return to one's country as it relates to refugees. Supra, note 16. See also, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel. UN Doc. E/C.12/1/Add.27, Dec. 4, 1998, para. 13 (calling upon Israel to review re-entry policies to allow refugees wishing to do so to return); and Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel. UN Doc. E/C.12/1/Add.90, May 23, 2003, para. 18 (noting that the status of 'Jewish nationality' results in 'discriminatory treatment against non-Jews, in particular Palestinian refugees'.) It also lent new impetus to 'flesh out' Palestinian rights vis-a-vis Israel with new studies – for and against - the rights of Palestinian refugees. In the early period see, e.g., Kurt Rene Radley, 'The Palestinian Refugees: The Right to Return in International Law', The American Journal of International Law 72/3 (July 1978), pp. 586-614; The Right to Return of the Palestinian People. New York: United Nations, 1978; W. Thomas Mallison and Sally V. Mallison, An International Law Analysis of the Major United Nations Resolutions Concerning the Question of Palestine. New York: United Nations, 1979; and Ruth Lapidoth, 'The Right of Return in International Law, with Special Reference to the Palestinian Refugees', Israel Yearbook of Human Rights 16 91986), 103-25.
(18)In addition, the United States has pledged to block all competing or parallel initiatives in the Security Council as long as the peace process is 'actively ongoing'. US Letter of Assurances to the Palestinians, Oct. 18, 1991, in Palestine Yearbook of International Law 6 (1990-91), 281-2 cited in John Quigley, 'The Role of Law in a Palestinina-Israeli Accommodation', Case Western Reserve Journal of International Law 31 (1999), 351-82, pp. 356-7. This was followed by a short-lived and unsuccessful initiative to 'expunge' all resolutions relating to the conflict, including those on refugees, from the General Assembly's record. See, Ambassador Madelaine K. Albright, Letter to Ambassadors to the United Nations, New York, Aug. 8, 1994, in Journal of Palestine Studies 24 (1995), p. 153 (stating 'We believe that resolution language referring to "final status" issues should be dropped, since these issues are now under negotiation by the parties themselves. These include refugees...'). See also, 'American and European Initiatives to Cancel the Right of Return', al-Majdal 20 (December 2003), p. 41.
(19) See, S/11940, Jan. 23, 1976 (9 in favour, US veto, 3 abstentions - Italy, Sweden, UK. China and Libya did not take part in the vote; S/12119, June 29, 1976 (10 in favour, US veto, 4 abstentions - France, Italy, Sweden, UK; and S/13911, Apr. 28, 1980 (10 in favor, US veto, 4 abstentions - France, Norway, Portugal, UK).
(20) The Road Map, calling for an 'agreed, just, fair, and realistic' solution is characterized by the same ambiguity. On the question of Israel's withdrawal from the 1967 occupied Palestinian territories, slight differences in the English and French versions have given rise to questions by Israel and the United States about the extent of the required withdrawal. For an overview see, Donald Neff, 'The Clinton Administration and UN Resolution 242', Journal of Palestine Studies 23/2 (Winter 1994), pp. 20-30.
(21) See, e.g., Concluding Observations of the Committee on Economic, Social and Cultural Rights: Israel (1998), supra note 17, para 10 (stating 'The Committee expresses concern that a excessive emphasis upon the State as a "Jewish State" encourages discrimination and accords a second class status to its non-Jewish citizens').
(22) See, e.g., 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, Mar. 9, 1976.
(23) The PLO initially opposed Resolution 242 because it did not recognize Palestinians as a people with the right to self-determination and because it failed to explicitly recognize the right of refugees to return to their homes. For an explanation see the PLO's 10-point program adopted at the 12th meeting of the Palestine National Council.
(24) See, comments on the role of international actors in Owning the Process: Mechanisms for Public Participation in the Peacemaking Process, An Accord Programme Joint Analysis Workshop Report, Old Jordan’s, Buckinghamshire, UK, 1-3 February 2002, p. 5. Also see, former UNHCR High Commissioner Sadako Ogata, 'Healing the Wounds: Refugees, Reconstruction and Reconciliation', Report of the Second Conference at Princeton University, 30 June – 1 July 1996 (stating 'When societies have been fundamentally shaken by conflict and group co-existence is at stake, peacebuilding requires an agreed concept of society. Perhaps even when one party totally defeats the other, there must be a minimum common understanding of the causes of the conflict and a genuine compromise on the main features of the future society. ... The international community can help to overcome difficulties in implementation, but it cannot substitute for the essence of a common concept of society. That concept must be owned by the people, not by the international community').
(25) See, e.g., Roee Nahmias, 'Poll: Most Israelis, Palestinians in favor of comprehensive agreement', Yediot Aharanot, Dec. 25, 2006; James A. Baker III Institute for Public Policy, Rice University, 'Survey: Majority of Israelis and Palestinians Support Peace Proposal,' Press Release, Nov. 24, 2003.
(26) Supra, note 1.
(27) Jarat Chopra and Tanja Hohe, 'Participatory Interventions', Global Governance 10/3 (2004), 289-306, p. 289. See also Barnes stating 'As leadership systems vary between societies, there is a need to understand existing societal structures of authority and decision-making. Several suggested that it is important to involve traditional leaders or authority figures as they can help to ensure legitimacy of process as well as its accessibility in the communities where they are rooted.' Barnes, supra note 23, p. 5.