These two situations contrast sharply with that of the Palestine refugees. No agreement with Israel, the state in control of the territory from which displacement occurred, calls for repatriation. Israel, far from having agreed to repatriation, insists it is not required to repatriate.
Further, Israel has failed to recognize the displaced as entitled to its nationality. Bosnia and Darfur are but two instances of recent international practice relating to conflict situations in which a right of repatriation has been recognized, both as a human right of those displaced, and as a necessary element to resolving an international conflict. The three situations were the focus of analysis last February at the Washington College of Law of the American University in Washington DC. Experts on the three situations examined how repatriation has - or has not - been handled.
Dr. Clovis Maksoud analyzed the Palestine refugee situation in comparison to other refugee situations. Dr. Maksoud, who formerly was Arab League representative to the United Nations and to the United States, and currently is a professor of the American University, pointed to the Palestine refugee situation as unique, and as an exception to the practice followed generally in the international community. In most conflict situations, Dr. Maksoud said, repatriation is accepted as a basic element of a resolution, but the Palestine refugees have had to struggle for over half a century, so far unsuccessfully, to gain an agreement for repatriation, even in principle, from the state of displacement.
The Bosnia conflict was resolved on the basis of a peace agreement concluded in Dayton (U.S.A.) In 1995. The agreement included a series of annexes. Annex 7 was devoted to repatriation. Thousands of Bosnians had fled their homeland during the ethnic cleansing campaign that ravaged Bosnia in 1992-93. The homes they abandoned were for the most part occupied by others in their absence. Hence, provision had to be made not only for repatriation, but as well for ensuring that the new occupants gave way, and that they would be accommodated in some acceptable fashion. Annex 7 declared:
All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them. The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina. The Parties confirm that they will accept the return of such persons who have left their territory, including those who have been accorded temporary protection by third countries.
Annex 7 also addressed the question of safety for returnees:
The Parties shall ensure that refugees and displaced persons are permitted to return in safety, without risk of harassment, intimidation, persecution, or discrimination, particularly on account of their ethnic origin, religious belief, or political opinion. The Parties shall take all necessary steps to prevent activities within their territories which would hinder or impede the safe and voluntary return of refugees and displaced persons.
In addition, Annex 7 provided broad choice to returnees:
Choice of destination shall be up to the individual or family, and the principle of the unity of the family shall be preserved. The Parties shall not interfere with the returnees’ choice of destination, nor shall they compel them to remain in or move to situations of serious danger or insecurity, or to areas lacking in the basic infrastructure necessary to resume a normal life. The Parties shall facilitate the flow of information necessary for refugees and displaced persons to make informed judgments about local conditions for return.
Annex 7 addressed the practicalities of a large-scale repatriation as follows:
The Parties call upon the United Nations High Commissioner for Refugees (‘UNHCR’) to develop in close consultation with asylum countries and the Parties a repatriation plan that will allow for an early, peaceful, orderly and phased return of refugees and displaced persons, which may include priorities for certain areas and certain categories of returnees. The Parties agree to implement such a plan and to conform their international agreements and internal laws to it. They accordingly call upon States that have accepted refugees to promote the early return of refugees consistent with international law.
Financial assistance was to be provided to returnees in need, as follows:
The Parties shall facilitate the provision of adequately monitored, short-term repatriation assistance on a nondiscriminatory basis to all returning refugees and displaced persons who are in need, in accordance with a plan developed by UNHCR and other relevant organizations, to enable the families and individuals returning to reestablish their lives and livelihoods in local communities.
The Bosnia agreement addressed issues that will need to be addressed in a repatriation of the Palestine refugees.
Unlike the Bosnia peace agreement of 1995, the Darfur peace agreement has yet to be implemented. It was concluded between Sudan and one major rebel group in Darfur, at a meeting in Abuja, Nigeria, in May 2006. Many Darfurians have fled to other locations in Sudan, or to neighboring Chad, to escape violence directed against them. Article 21 of the 2006 agreement addresses repatriation, declaring:
Displaced and war-affected persons will enjoy the same human rights and fundamental freedoms as any citizen under the law of the Sudan. In particular, the relevant authorities have a responsibility to ensure that such persons enjoy freedom of movement and of choice of residence, including the right to return and to re-establish themselves at their places of origin or habitual residence.
Like the Bosnia agreement, the Darfur agreement addresses the safety of returnees, stating:
Relevant authorities with the assistance of the African Union and the international community shall assure proper protection and dignified treatment of displaced persons during the process of voluntary return and reintegration or voluntary resettlement at another place of their choice.
Provision is also made in the Darfur agreement to ensure returnees’ access to food and shelter, as well as the means to re-start economic activity. International relief agencies are to have access to assist returnees. Returnees are assured a right to a passport or other identification documentation. They are entitled to compensation, in the following terms:
Displaced persons have the right to restitution of their property, whether they choose to return to their places of origin or not, or to be compensated adequately for the loss of their property, in accordance with international principles. Property claims committees are to resolve disputes over claims to land.
Although the Darfur peace agreement remains to be implemented, it seems clear that when peace is achieved, refugee repatriation will be a central feature.
The Bosnia and Darfur provisions are more elaborate and detailed than those of UN General Assembly Resolution 194, of 11 December 1948, which called upon Israel to repatriate the Palestine refugees. The General Assembly, basing itself on the norm of customary international law that inhabitants of a territory have rights there, stated that repatriation and compensation were required. An agreement providing for actual return and compensation for the Palestine refugees must include the kind of detail that one sees in the Bosnia and Darfur agreements, and that ensures proper implementation of the right of return.
In the Bosnia situation, as indicated, repatriation has for the most part been accomplished. Bosnia experts at the American University program indicated that while difficulties were encountered, the repatriation has been achieved with a large measure of success.
The Bosnia and Darfur provisions call for repatriation and compensation for refugees. The nationality status of returnees is not questioned. The agreements thus provide additional indication that the repatriation called for by Resolution 194 is required under customary international law. Persons displaced across an international boundary are not regarded as losing their right to nationality. They have a right to return to their homes.
John Quigly is an expert in international law and a professor at Ohio State University.