Print this page
Editorial :Restitution – Making Return a Reality

Restitution – Making Return a Reality

When Palestinian refugees and internally displaced talk about the right of return they speak about return to a specific place – a village, a piece of land and a home. No one really knows how many refugees would choose to return if given the chance to do so. There are simply too many factors to consider. But like refugees from Guatemala, Bosnia, Kosovo and elsewhere, displaced Palestinians that wish to return to homes, lands and properties should be allowed to do so.  The new international Principles on Housing and Property Restitution for Refugees and Displaced Persons endorsed by the United Nations Sub-Commission on the Promotion and Protection of Human Rights in August (reprinted in this issue of al-Majdal) provide a universal set of guidelines to resolve Palestinian claims. Prepared by the UN’s Special Rapporteur on Housing and Property Restitution, Paulo Sergio Pinheiro of Brazil, the ‘Pinheiro Principles’ provide the first consolidated global standard on the housing, land and property rights of the displaced.


The Pinheiro Principles will come as no surprise to Palestinian refugees and internally displaced. The UN enunciated the same general principles in 1948 when the General Assembly reaffirmed (Resolution 194/III) that all persons displaced as a result of the conflict in Palestine should be permitted to return, not just to their homeland, but to their homes. The General Assembly reiterated the right of the refugees to restitution in 1974 (Resolution 3236/XXIX) and again in 1981 (Resolution 36/146C) when it also said that they have a right to the revenues from their properties.


Land is still the issue...

The loss of home, land and property is not a mere incident of history for Palestinians. It has continued for more than fivedecades.Eventodaythousandsofdunumsoflandarebeingexpropriated,propertiesdamaged and homes destroyed as Israel continues to build Jewish colonies and the Wall in the West Bank in contravention of international law. In August Israel began to expropriate more than 1,800 dunums of land to extend the Wall around Ma’aleh Adumim (E-1 Plan) effectively annexing the Jewish colony to Israeli-occupied eastern Jerusalem. Moreover, in September Israel’s Supreme Court ruled that the Wall was legal.

At the same time, Israel’s redeployment (disengagement) from the Gaza Strip and small parts of the northern West Bank over the summer means that Palestinians will, for the firsttimeinnearly60years,face the challenge of sorting out restitution claims to land that Israel expropriated to build Jewish colonies and military bases. The Palestinian Authority issued a Presidential Decree and has compiled a draft law to deal with the land question in Gaza and the northern West Bank, including restitution of privately-owned property. It remains to be seen how this law will be enacted in practice.

While Israel was returning Palestinian land in the Gaza Strip, however, parallel plans to strengthen Jewish settlement in predominantly Palestinian inhabited areas of the state, especially in the Galilee and in the Naqab, heightened concerns about unresolved Palestinian housing, land and property claims and the transfer of remaining Bedouin into designated ‘concentration points.’ The US administration has said financialaidtoIsraelshould serve all sectors of the Israeli population, but American support for Jewish restitution, including the establishment of a special office during the Clinton administration, standsinsharp contrast to the complete lack of support for outstanding Palestinian claims.

... and it just won’t go away

Ariel Sharon reminded the United Nations of Israel’s position on land rights of Palestinians when he spoke to the annual meeting of the UN General Assembly in September. “The right of the Jewish people to the Land of Israel,” said Sharon, “does not mean disregarding the rights of others in the land.” [Emphasis added] In other words, Palestinians may have rights, but this does not include a right to land. Sharon’s language mirrors that of the infamous 1917 Balfour Declaration recognizing Zionist demands for a Jewish national home in Palestine. The grave implications of this position for a solution to the conflictextendtoallPalestinians- those in the OPTs, inside Israel, and in exile.

In contrast, Majdi al-Khalidi, chief policy analyst at the Palestinian Foreign Ministry has said that, “If individual Jews can prove ownership of land [in the Gaza Strip] before Israel’s creation in a Palestinian court, their claim will be recognized. Israeli law is different in this respect.” (“Palestinian Jewish Settlers?” al-Jazeera, 5 June 2005) While it is unclear who would be responsible for such restitution claims since Palestinians did not expropriate the property and Israel did not raise the issue when it left the Gaza Strip, it is likely that the silence of the Israeli government on this issue is related to fears about creating precedents for restitution of Palestinian refugees.

Israel and the Jewish Diaspora, which set some of the most important precedents for restitution in the 20th century, should be the firsttorealizethattherestitutionissuewillsimplynotgoaway. As then Secretary-General of the World Jewish Congress, Israel Singer, told the US Congress, Sub-Committee on Foreign Affairs in 1994, “The return of that which was his, and which belonged to his and her community is a human right which every man deserves.” Restitution is not about trying to ‘turn back the clock’; like Jewish restitution in Europe, addressing the right of displaced Palestinians to housing, land and property is the remedy which can allow both Palestinians and Israelis to take the firststeps to build a new future.

A forward-looking strategy

All refugees and displaced persons have the right to return to, recover and reside in their original homes, lands and properties. Palestinians should be afforded equal treatment. Allowing those Palestinian refugees and internally displaced wishing to do so to repossess their homes, lands and properties, while protecting the legitimate rights of Israelis, in a manner consistent with the new Pinheiro Principles, is essential to the resolution of the conflict, post-conflict peace-building, safe and sustainable return and the establishment of the rule of law.

Unfortunately, there is little prospect of an immediate rights-based intervention by the international community to apply the Pinheiro Principles to the Israeli-Palestinian conflict. As the UN Special Rapporteur on the situation of human rights in the 1967 OPTs observed in his last report, “Recent interventions suggest that the Quartet and the road map process to which it is committed are not premised on the rule of law or respect for human rights. If this is so, the road map runs the risk of repeating the failures of the Oslo process which likewise took no account of human rights considerations.” (UN Doc. A/60/271, 18 August 2005)

Palestinian, Israeli and international civil society can help pressure states to uphold international law and human rights through boycotts and divestment. And they can campaign for state sanctions against Israel until it complies with international law. But Palestinians and Israelis can also begin to prepare for future restitution. There is no need to wait for a peace agreement. They can raise awareness of the basic rights to restitution, organize needed documentation, and they can begin to explore practical programs for restitution. These activities can help begin to forge a solution regardless of inaction at the international level.