‘The Role of International Law and Human Rights, Overview and Lessons Learned from Comparative Experiences’
Presentation of Working Papers: The three papers summarized below were presented for discussion. Additional input was provided by three more background papers (‘The Right to Housing and Property Restitution in Bosnia and Herzegovina,’ a case study by Paul Prettitore, OSCE; a case study on ‘Land Problems in the Context of Sustainable Repatriation in Afghanistan’ by Reem Alsalem, UNHCR; and ‘Justice Against Perpetrators, the Role of Prosecution in Peacemaking and Reconciliation’ by Alejandra Vicente, ICTY).
‘UN General Assembly Resolution 194(III) and the Framework for Durable Solutions for 1948 Palestinian Refugees’ (Terry Rempel, BADIL) summarized the guiding principles (voluntariness, refugee choice); the specific rights-based solutions for Palestinian refugees (a primary durable solution, i.e. return, housing and property restitution and compensation for damages suffered; a secondary solution, i.e. the choice not to return, restitution and compensation); and the mechanism initially set up for the implementation of durable solutions (the UN Conciliation Commission for Palestine, UNCCP). The specific meaning of the three core rights of Palestinian refugees – return, restitution, compensation – was examined based on drafting history and relevant UN documents.
A ‘Comparative Comment on the Role of International Law and Human Rights in Peacemaking and Crafting Durable Solutions for Refugees’ was presented by Lynn Welchman (SOAS). Based on Christine Bell’s Peace Agreements and Human Rights (2000), it was suggested that resolution of the ‘meta-conflict’, or the ‘conflict about what the conflict is about’ is crucial for the durability of and the respect of individual human rights in peace agreements. As demonstrated by the cases considered by Bell (South Africa, Northern Ireland, Bosnia Herzegovina, and Israel/Palestine), it is particularly the ‘meta-bargaining ‘ over ‘the deal’ on collective rights (to self-determination) that implicates the handling of individual rights arising from past human rights violations. Both the Dayton Agreement and Israeli-Palestinian agreements failed to resolve the respective meta-conflict, and the latter has been relocated, in part, to issues of return and access to land.
The paper also reviews the tension between peace and justice in light of recent debate about the merits of mechanisms of retributive justice (e.g. criminal prosecution) versus restorative justice (e.g. amnesty, truth commissions). It concludes by suggesting that current Palestinian civil society efforts at developing the Palestinian legal narrative with a specific focus on Palestinian refugees and the quest for inclusion and participation of Palestinian refugees are initiatives that may contribute to ending the almost complete divorce between the concept of peace and the concept of justice in Israeli-Palestinian peacemaking.
A plan for ‘Temporary Protection as an Instrument for Implementing the Right of Return for Palestinian Refugees’ was presented by Susan Akram (Boston University of Law). Temporary protection is widely regarded as an international legal norm that is now obligatory on states in certain circumstances with regard to their treatment of a mass influx of refugees, or persons fleeing situations of armed conflict or civil strife. As a recognized status, it is the most recent of the three major possibilities for protection of refugees which a state can offer—the other two being the now-universal obligation of non-refoulement (“non-return”), and the non-obligatory protection of political asylum.The author argues that due to the unique situation (i.e. partial exclusion) of Palestinian refugees under the international protection regime, temporary protection linked with phased return and a system of incentives and disincentives to ensure participation of all stake holding states would permit immediate implementation of rights-based durable solutions based on refugee choice and the right of return.
1. Issues Raised in Response to the Working Papers, Responses by the Speakers
On UN Resolution 194:
- How is UNGAR 194 related to current refugee law and how would this resolution be different, if it was formulated today ? (Mick Dumper): UNGAR 194 is in line with current refugee law. If it was formulated today, legal rights would most likely be further strengthened. For example, the right of return has been referred to as an imprescriptable or unconditional right in recent cases, such as Bosnia and Georgia. Also the right to housing and property restitution has been strengthened.
- What does the phrase ‘live in peace with their neighbors’ mean? Is there anything in the drafting history or experience of returns since then? (Glen Rangwala): In fact, the drafting history is unsatisfactory on this issue. On the one hand, the Commission (UNCCP) stated that the phrase imposed limiting conditions on the returning refugees (through waivers or guarantees, for example, that no arms be brought in, etc.). On the other hand, the Commission felt that UNGAR 194 also imposed conditions on Israel to maintain the safety of returnees.
- The reference to international law with regard to refugees’ right to compensation seems inconsistent with the assumption that the principles were already part of customary law in 1948 (Joe Schechla): The inclusion of international law referred to the specific situation of property rights of returnees. The reference was included to strengthen the right of refugees returning to Israel because it was unclear what their status would be under Israel’s domestic law.
- How useful is it to approach UNGAR 194 as a legal doctrine? Wouldn’t it be more useful to develop a broader set of principles, in order to tackle the current political and ideological reality? (Leila Hilal): The purpose of looking at UNGAR 194 serves partly to encourage broader discussion of the resolution and its terms of reference. It should also be noted that in addition to the legal debate, there was also – at the time of its drafting - an ethical or moral discourse and the opinion that an international law-based resolution of the Palestinian refugee issue is a key element of reconciliation in the region. In terms of broader principles today, the demand for implementation of UNGAR 194 in the case of Israel/Palestine can be also be seen as similar to the demand for ‘one person one vote’ in the South African case.
On the Comparative Comments about International Law in Peacemaking:
- Issues of restorative and retributive justice need further clarification (Monique Malha). This includes a more in-depth study of the question whose interests were really served by the South African Truth and Reconciliation Commission (TRC), what lessons can be learned by Palestinians, and who would be taking part in a TRC in Palestine, if it were to take place (Jeff Handmaker).
- Discussion about peace processes driven by third-party intervention versus those driven by local social forces: change in South Africa was very much a locally-initiated, rather than an externally imposed process, and it is argued that this is positively related to the situation of human rights there. Furthermore, a locally-driven peace process gave more space for civil society NGOs to operate (Jeff Handmaker). For locally-driven change, it is important that the appropriate legal narrative is built. There is maybe now a good opportunity for building the Palestinian legal narrative, because of the greater international awareness of international law resulting from the U.S. led war against and occupation of Iraq. (Lynn Welchman)
- What are the criteria for the selection of comparative cases? (Mick Dumper): If we use a legal approach, we compare legal principles across cases. This is very much straight forward. If we are dealing with established legal rights, we compare the treatment of these rights in different cases. This is different from the comparative approach used by political science, where implementation of solutions is the basis for comparison and not the principle. (Lynn Welchman)
On the Proposal for Temporary Protection for Palestinian Refugees:
- There are numerous concerns about TP regimes, because TP is widely seen as undermining the international protection regime. If the proposed TP plan is based on criticism of the UNHCR’s interpretation of the status of Palestinian refugees under the 1951 Refugee Convention, such criticism should take into the consideration the new 2002 UNHCR position, which no longer interprets Article 1D as an exclusion clause for Palestinian refugees. Additional clarification is required. (Monique Malha): Temporary protection is different in the Palestinian case, because the level of protection currently provided to Palestinian refugees is lower than that provided by TP. There is nothing to be undermined. In fact, many states, including the United States and Canada, have not incorporated Article 1D of the 1951 Refugee Convention into their domestic immigration law. And even in states that have incorporated the Article, interpretations of its meaning – i.e. the meaning of ‘Palestinian refugees are ipso facto entitled to the benefits of the Convention’ - vary widely. (Susan Akram)
- How can we link refugee protection with broader protection for the Palestinian people, not only refugees, under humanitarian law? Regarding protection it is also important to refer to UN Security Council Resolution 681 (1990; on enforcement and monitoring of the Fourth Geneva Convention in the 1967 OPT) (Issam Younis) and to look at UNRWA’s role in this context. TP is interesting also in this context, because it can be applied to groups and is not necessarily based on refugee definitions. (Susan Akram)
- Concern was raised about the use of terms, such as temporary or partial, because they may undermine efforts for a solution. Moreover, there is a need to study more the political reality rather than all the precedents. Confronted with issues like the Jewish state, or Israel’s principle of ethnic purity, there seems not much ground for optimism. (Leila Hilal)
2. Topics raised in the broader discussion:
- Relation between law and politics;
- The current gap in international protection for refugees, most of whom live in areas of UNRWA operation and are thus not covered by the 1951 Refugee Convention even under the revised 2002 UNHCR interpretation;
- UNRWA initiatives that aimed to provide some protection by means of field monitoring. In the first intifada, UNRWA could provide some protection to the people in the 1967 OPT by sending more monitoring staff to the field, while in the second intifada this has no longer been possible, and UNRWA has focused on protecting its own operations.
Day One, Session Two:
‘Past and Current Diplomatic Approaches to Crafting Durable Solutions for Palestinian Refugees’
Commentary and analysis presented by the speakers
Mike Molloy (Special Coordinator for the Middle East Peace Process, Department of Foreign Affairs and International Trade, Canada) reviewed achievements and failures of the multilateral Refugee Working Group (RWG) over the past decade (1992 – 2003). Key agenda were: improvement of living conditions and family reunification (1992 – 1993); fundraising for UNRWA’s peace implementation program/PIP (1994); and drafting a joint vision paper on Palestinian refugees 10 years in the future (1994). The RWG met for the last time on the plenary level in 1995 and was frozen by decision of the Arab governments following the election of the Likud government in Israel. From 1996 – 2003 the RWG continued to work on a sub-plenary level. It conducted field visits to the region, raised funds for development projects (some US $100 million), educated western diplomats on the refugee issue, achieved a solution for Canada Camp (some 5,000 Palestinian refugees were successfully relocated to the Gaza Strip from the Egyptian side of the border, where they had been stranded following the Israeli-Egyptian peace agreement), and established a university scholarship fund currently supporting 90 Palestinian women at universities in Lebanon. Complementary Canadian initiatives (via the IDRC) included a first stocktaking conference on research on the Palestinian refugee question (1998), a workshop on compensation (1999) and support of research into the parameters of a solution. Major commentary and conclusions:
- The Multilateral process was designed to break away from debate driven by UN processes and to bring the resources, capabilities and political will of the international community on the regional problems. This is why new fora and terminology were created, such as the RWG headed by a ‘gavel holders’ and ‘shepherds,’ etc.
- RWG was never intended to supplant of bilateral, Israeli-Palestinian negotiations. As a forum established to support the bilateral negotiations it could tackle only issues approved by all parties, and some agenda/projects had to be dropped due to objection of one or the other of the parties (e.g. assistance with the search for a comprehensive solution and the 10-year vision document on Palestinian refugees were nixed by Israel; the inclusion of refugee shelter rehabilitation in the RWG agenda was nixed by the PLO).
- With the start of the second Intifada, even informal multilateral activity was frozen by the Amman Arab Summit (October 2000). Following extensive consultations, the Canadians shifted the focus from development support to support of the negotiators, who were defined as the primary clients. Projects are selected for support if they can make a contribution to signing, implementing or marketing ‘the deal.’
- Political will by the parties and the availability of resources are the key to agreements and solutions. International law and principles are secondary factors. If there is political will, the appropriate legal framework can be found.
Christian Berger (European Commission, Political Advisor – Near East) noted that the official European position holds that a solution of the Palestinian refugee question must be ‘fair, just, agreed upon and realistic.’ The EC is aware of the centrality of the refugee issue for a durable solution of the Israeli-Palestinian conflict and is convinced that irrespective of the type of agreement that will be reached, Palestinian refugees must be involved in the process. He also drew attention to the fact that the international community ‘cannot be more Palestinian than the Palestinians’ also with regard to proposed solutions of the refugee question.
While it is true that political will is the key to solutions, we must keep in mind that it is usually the political will of the most dominant party that shapes agreements and the role given to principles and international law. Looking at the past, we can see that solutions were formed by political preferences, and not by universal principles. There were, for example, Greek-Turkish population transfers in the Balkans and the lack of support for refugee return after the beginning of the cold war; in contrast, there has been strong support for refugee return in the Balkans in the past decade. He referred to the EU's role in trying to improve the socio-economic situation of refugees, particularly through its support to UNRWA (EU being the biggest donor) and support to the PA.
Based on his paper ‘Revisiting Israeli-Palestinian Peace Negotiations on the Palestinian Refugee Problem 1991 – 2000’ As’ad Abdul Rahman (former Head of the PLO Refugee Department) raised that the Palestinian position on the refugee issue has always included a realistic element. He held that the Palestinian leadership might have been willing to compromise on the refugee issue, if Israel had agreed to a full withdrawal from the 1967 occupied territories.
Two additional participants were asked to summarize the arguments of their papers. Glen Rangwala of Cambridge University (‘Negotiating the Non-negotiable: the Right of Return and the Evolving Role of Legal Standards’) raised the problematics of negotiations over the right of return, which is outside the realm of the negotiable. Karma Nablusi of Nuffield College, Oxford (‘Popular Sovereignty, Collective Rights, Participation and Crafting Durable Solutions for Palestinian Refugees’) emphasized that when talking about ‘the deal’ in peace agreements, it is important to specify what kind of deal is implied.
The Oslo framework was based on the assumption that postponement of the refugee issue would help build confidence and lower refugee expectations, while in fact the opposite has happened. The narrow focus on the Palestinian Authority has, moreover, led to a total disconnection between the Palestinian people, its body politic, the negotiators and the international community. The findings of a 2000 Joint British Parliamentary Commission of Inquiry, for example, show that Palestinians everywhere agree that the PLO is their representative, but they want more effective representation. She also argued that popular sovereignty, democracy and representation are the components which can resolve the apparent dichotomy between law and politics. Palestinian refugees, if granted a mechanism for participation and representation can take the role of political actors and make law and rights principles matter in future peace efforts.
1. Issues Raised in Response to the Presentations
- An inquiry about the status of ‘Canada Park’ established on the ruins of the Palestinian villages of Emwas, Yalou and Beit Nuba (Mahmoud Issa): Mike Molloy clarified that there is no official Canadian involvement of this park, which was named and sponsored by a private Canadian Jewish group.
- How can Palestinians in Europe be part of the process of integration? (Mahmoud Issa): Palestinians in Europe, at least those who hold citizenship, live in the best of both worlds. They can participate in Europe by virtue of their citizenship and in Palestinian affairs through the PLO. (Christian Berger)
- What is the EU doing to ensure that a solution on the Palestinian refugee issue will be a just solution? (Martin Siepermann)? If a future agreement clearly violates international law, it can be assumed that Europe will not accept it. However, no minimum standards for a just agreement have yet been defined. (Christian Berger)
- It is important to distinguish between the exercise of temporary protection and consequent repatriation f Bosnians from the Palestinian situation. One of the principal incentives behind European support for repatriation of Bosnians came from the fact that large numbers of Bosnian refugees were residing in Europe, and European governments wanted these refugees to return. By contrast, there is comparatively limited political incentive from Europe to support the right of return in the Palestinian case, since only a small number of all Palestinian refugees reside in European countries, the majority residing the Middle East. (Jeff Handmaker).
- The example of the improvement of living conditions in the camps is an example of a process where the RWG engaged the Arab states in order to overcome political obstacles and solved the problem based on principle (Terry Rempel). Why is it then that there is no political will to engage Israel on key issues that matter to refugees? (Ingrid Jaradat) There is a need to engage Israel as well as the United States. (Mike Molloy) The Taba negotiations are proof that there is room for some optimism that the parties can meet on the refugee issues, if there is political will for implementation. (Saji Khalil)
2. General Conclusions, Day One
- There was general agreement on the core rights of Palestinian refugees (return, restitution, compensation), on the fact that rights themselves are outside the realm of negotiations, that solutions should be crafted based on individual refugee choice, and on the fact that international law was subverted by the Oslo process.
- A variety of views was expressed about the relationship between law and politics. However, there was general agreement that international law matters and should matter. Participants generally expressed the view that the degree to which international law is incorporated into the peacemaking process, particularly in the Palestinian-Israeli case, is dependent on the political will of relevant actors.
- Participants agreed that there was a lack of political will to craft durable solutions for Palestinian refugees in conformity with international law and UNGA Resolution 194(III).
Day Two, Session Three
‘Law and Politics: How to Put Legal Principles into Action?’
Summary of the Debate and Conclusions
Note: Following is a compilation of recommendations made by the participants of the NGO community and academia during the discussion. The complete set of recommendations was not necessarily endorsed by all participants, and the recommendations do not necessarily reflect the views of the officials who attended the meeting nor the views of the governments of institutions they represent.
1. There is need for a broader message or framework in which to situate the right of return of Palestinian refugees:
- The argument for the right of return must be made as part of a strong and broader message built on basic principles, such as the principle of non-discrimination. This message must include analysis of the nature of the state of Israel, its discriminatory laws and the para-statal organizations used for the dispossession and displacement of the Palestinian people. Moral arguments must be made, and they must include legal authority and details (facts, figures, etc.).
2. A rights-based and durable solution for Palestinian refugee rights must be promoted by means of an interdisciplinary approach rooted in the common message:
- Different types of work must be done in different arenas, political, negotiators, academic, UN agencies, NGO, popular, etc. While each party must operate according to is specific mandate and style, activities should be complementary and done at the same time.
- This Seminar set out to help develop a kit of tools, i.e. strategies and activities, for the promotion of a rights-based approach to the Palestinian refugee issue. The outcome should be that people can act together but also work autonomously.
3. Palestinian Refugees and Broader Palestinian Civil Society must be engaged in debate and clarification of agenda:
- There is not enough Palestinian debate about the rights of and solutions for Palestinian refugees. The broader Palestinian civil society must be engaged, not only refugees themselves. In some areas, for example in the Gaza Strip, there is not a single organization tackling the issue of refugee rights. Ways for developing cooperation between BADIL and Palestinian NGOs in the Gaza Strip should be explored.
- Civil society structures of the Palestinian communities in exile must be re-built and strengthened, in order to facilitate participation and democratic decision making.
4. Intensify Efforts at Alliance-building:
- Recognition and implementation of the right of return of Palestinian refugees cannot be achieved by force of arms. It is vital therefore to find ways to engage the Israeli side. Unless this succeeds, there is little chance for support of a rights-based approach by the dominant political actors (especially since the United States hold that the legal approach is ‘not helpful’ or ‘practical’);
- Develop contacts with media and journalists;
- Identify political leaders from other anti-colonial struggles (e.g. South Africa, Burundi);
- Link with NGOs and anti-colonial movements and build solidarity around specific parallels, e.g. institutionalized discrimination in South Africa.
5. Develop Research and New Tools for the Advancement of Rights-Based Solutions for Palestinian Refugees:
- Advance efforts at developing a common Palestinian and Israeli approach to the Palestinian Nakba of 1948 (e.g. through public debate, visits to destroyed Palestinian villages, meetings between Israelis and Palestinian refugees, panel of historians along the lines of recent work of Karma Nabulsi/Ilan Pappe, Zochrot, a.o.) as a step in advance of more formal means for dealing with the past. Attach a broader framework to existing activities of this kind, in order to raise their profile and draw attention to their political implications.
- Study the current debate about restorative and retributive justice, judicial and non-judicial forms of dealing with the aftermath of conflict. Examine the feasibility of a Truth and Reconciliation Commission for the Palestinian case taking into consideration the criticism raised in South Africa. Other, more technical options (e.g. return commission in Afghanistan) should be explored too.
- NGOs in Europe (Denmark, Italy, a.o.) are contemplating to set up a symbolic, popular tribunal for Israeli war crimes. Testimonies of 1948 refugees would have to be collected, and help from Palestinian NGOs and experts would be needed.
- Systematic research should be done on certain groups of rights, needs and wishes of Palestinian refugees, following the model of existing research efforts on protection rights (Susan Akram, BADIL, a.o.) and popular rights (see, for example, Karma Nabulsi). Working groups could be formed for this purpose.
- There is a need for seminars to examine the notion of the Jewish state. Debate over the Jewish character of Israel is essential, in order to tackle the right to return and property restitution and dismantle Israel’s discriminatory laws.
- More comparative studies of return programs, using the vast experience of UNHCR; this may provide new and concrete ideas for the Palestinian case.
- The Temporary Protection Plan presented to this Seminar by Susan Akram should be critically reviewed and discussed. Incentives and disincentives to ensure participation of key states must be further developed. Such a plan could be an asset for Palestinian negotiators in the future.
6. Education and Lobbying based on international law principles and an inclusive message must be undertaken in all arenas:
- European NGOs emphasize the need for public education; there is a need to popularize the refugee issue, in order to close the gap between the knowledge among politicians and negotiators and the street.
- The media in Europe and elsewhere must be sensitized and educated about the refugee issue and the merits of an international-law based argument;
- European NGOs can support a rights-based approach by recruiting support among the donor community (NGOs and governments). BADIL partners, such as ICCO, Oxfam Solidarity, and the Aprodev Network, have a central role to play in this context.
- UN Fora: Develop a body of lex foranda (soft law) that will eventually be recognized in hard law, for example, by using the UN treaty bodies which issue conclusions that can then be used for public education, in the court system and in the media.
7. Need for a Principled Approach for the Engagement of Israeli Society
- There is an international desire to see Israelis and Palestinians engaged, no matter what they are saying to each other. Engagement on a political level hasn’t been meaningful in the recent stage; there was just pushing for a deal, rather than trying to reach real reconciliation.
- Members of the Israeli political establishment are representatives of institutionalized discrimination. Therefore, Israeli civil society must be the primary target for a rights-based engagement in the Palestinian refugee issue.
- Israeli civil society must be engaged in a principled debate on a human level about core issues, such as institutionalized discrimination, the Palestinian Nakba of 1948 and refugees’ right of return (via workshops, media campaigns, etc.). This will not lead to a quick deal, but it is the only way forward.
- Clarity on the right of return is important, in order to assure Israeli society that something is not lurking. The work of Salman Abu Sitta, for example, is useful in terms of showing the practical aspects, including planning for return. In terms of dialogue, there is a lot of comparative experience we can learn from, and one of the lessons learned is that without repentance, there is no going forward.
- Meetings and debate with Israeli civil society should in principle be held in Palestine/Israel, in order to avoid the atmosphere of ‘quasi-negotiations’ often triggered by meetings abroad. However, European civil society organizations can facilitate this Palestinian-Israeli dialogue by affirming a rights-based approach to the refugee issue with their Israeli partners.
8. Need for Popular Mobilization inside Palestine, Europe, the United States and elsewhere
- The Palestinian campaign for the right of return must be strengthened. This campaign was launched as a result of Palestinian community conferences held after the Oslo Accords in Palestine, Europe and the United States. It has been able to show a way forward to many Palestinian community activists in exile and in Palestine, and it has succeeded to set up a global coalition and recruit international NGO partners who were initially very hesitant.
- The promotion of rights-based solutions for Palestinian refugees depends very much on the amount of pressure that can be exerted by civil society, including Israel boycott initiatives, divestment initiatives, etc.
9. The Role of BADIL and this Expert Forum
- This Expert Forum is designed as a process of four seminars and a closing conference. It is not intended to become a permanent forum for the implementation of BADIL’s program, but rather an effort to bring together experts, policy makers and activists who share the concern for the importance of a rights-based solution for Palestinian refugees and can contribute to this aim in various ways. It is an initiative aimed at encouraging and facilitating identification of needed research, networking and coordination among the numerous players.
- For BADIL, conclusions and recommendations of this and subsequent seminars provide urgently needed feedback and input for the development of its program and partner networks. BADIL considers itself as one of the many actors able to contribute, through its projects, to the strengthening of a rights-based approach to the Palestinian refugee issue. While many of the recommendations issued here are directly relevant for our activities (research, networking and lobbying as part of the Palestine Right of Return Coalition, lobbying for effective protection for Palestinian refugees, engaging Israeli civil society on the right of return, a.o.), BADIL does not have the capacity nor aim to take responsibility for follow-up and coordination of all the valuable recommendations issued by these seminars.
Copies of all working papers submitted to the Seminar are published at: www.badil.org/Campaign/Expert_Forum.html