The right of refugees and displaced persons to repossess property they have lost during conflict is also starting to be recognized on a regular basis. Most peace agreements addressing situations of mass displacement in the 1990s, for example, included provisions for housing and property restitution. The Office of the UN High Commissioner for Refugees (UNHCR) and the Commission on Human Rights have also elaborated more detailed policies on housing and property restitution for refugees and displaced persons.
Between 2-4 October 2003, approximately 30 international experts, practitioners, UN and government officials gathered in Geneva to discuss housing and property restitution in durable solutions for Palestinian refugees. The seminar aimed to clarify relevant international law; review the scope of Palestinian refugee claims, the quality of available documentation, Israel's expropriation laws and policies and past Palestinian efforts at property restitution; examine lessons learned from comparative experience, including Bosnia, South Africa, and Cyprus, as well as precedents for restitution before 1948; and, develop a set of suggestions to guide future efforts for the promotion of Palestinian refugees' right to housing and property restitution.
This summary report examines lessons learned from case studies examined at the seminar and strategies for Palestinian refugees. For a complete summary of seminar proceedings and electronic copies of working papers visit the BADIL website, www.badil.org/Campaign/Expert_Forum.htm. The seminar was sponsored by the Swiss Federal Department of Foreign Affairs (PD-IV), Stichting Vluchteling/Netherlands, ICCO/Netherlands and the APRODEV NGO Network.
In the context of other case studies, the Palestinian situation can appear rather hopeless. However, the situation in South Africa was equally bleak and difficult, and yet restitution has been feasible. Implementation of restitution for Palestinians may be difficult but it is doable. There are many issues that require further elaboration in order to ensure that every person who has been arbitrarily deprived of their property has a real chance to repossess that property.
The case studies of Bosnia, South Africa and Cyprus raised a number of important questions. On the one hand, they demonstrate that the right of return and restitution are basic to any agreement. At the same time, it is important to know to what extent states can derogate from the right to return and the right to property. What happens when the right of certain refugees clashes with the rights of other refugees to possess property? In what situations should compensation override the right to restitution? To what extent and when does political will affect the right to return and the right to property?
Peace agreements should be as detailed as possible. A peace agreement should set out expressly the right of refugees and displaced persons to return, to restitution and to compensation. Return and repossession of property must be grounded in the rule of law and not simply on political understandings between the parties. Specific drafts of legislation are needed for the establishment of adequate administrative and/or judicial institutions. They should also provide for an adequate review mechanism. Drafts of domestic legislation attached to the agreement should be as detailed as possible. An agreement’s provisions must stipulate that all discriminatory laws and measures enacted during the conflict must be immediately annulled or amended. It should also specify the rights of secondary occupations. Secondary occupants who are required to vacate a claimant's property should not deprived of basic social and economic rights.
One of the most significant issues that needs to be addressed is enforcement. Peace agreements should also include obligations for the signatories of the agreements. It is important to establish a mechanism to ensure that signatories of the peace agreement respect obligations they signed up to. If the agreement establishes an administrative process rather than a judicial process for restitution, the extent to which the judiciary may get involved to ensure that the administrative process functions efficiently should also be clarified. Political support is very important. Political backing needs to be mobilised. Without such strong political support, the process in Bosnia, for example, most likely would not have worked.
Finally, the financial issue has to be taken into consideration. The entire process can be extremely expensive. In addition to funds for compensation, financial resources are required to set up the restitution process itself, including the establishment of offices, the hiring of researchers and lawyers, and the entire process from the filing of claims through to the issuing of decisions. Compensation itself is also very expensive and complex. It requires substantial funds. Innumerable details must be sorted out in advance including methods of valuation and the source of and guarantee of adequate funds to make the entire process work. It must be clear from the beginning who is going to pay for the process. A clear delineation of tasks must be set out in order to avoid the inefficient use of available resources.
Civil society initiatives are very important. They can contribute to the development of issues that are excluded from official debate. This is especially true with regard to housing and property restitution in the Palestinian case. In South Africa, civil society has played an active role in raising the right to land and restitution. In contrast, civil society has had little impact on negotiations concerning housing and property restitution in Cyprus. Civil society organizations have mostly reacted to the results of political negotiations which are being held behind closed doors. In Rwanda some public debates were organised to discuss land and property issues, however, it is not clear to what extent these activities influenced the political negotiations.
New initiatives are required in order to raise awareness among Palestinian refugees, Israelis, and the international community about basic principles of housing and property restitution. Most refugees suffer from the lack of information about their legal or elementary rights. Basic principles on the right to housing and property restitution should be circulated as widely as possible through public education. Comparative and experiential learning (e.g. study visits) are also important. Initiatives should engage Israelis to recognize that a durable peace agreement must be consistent with international law and practice, including the right of refugees to return to their homes of origin. Little has been done in this area.
At the regional level there is less awareness of relevant legal conventions and mechanisms that exist for the p
|House Demolitions in Rafah
The year 2003 witnessed another severe rise in Israeli violations of the right to housing in 1967 occupied Palestine. According to figures compiled by UNRWA, Israel demolished an average of 73 Palestinian homes per month during the first six months of 2003, a rate which was double that of 2002.
From 9-11 October 2003 alone, Israeli military forces destroyed some 200 refugee shelters in Rafah in the southern Gaza Strip leaving homeless some 1,900
Palestinians. In a statement released by the United Nations on the 6 November, the Special Rapporteur on adequate housing restated that "house demolitions, confiscation of land and destruction of property and other actions by Israel breach international human rights and humanitarian law, including the human rights instruments Israel has ratified, the Geneva Conventions and Hague Resolutions as well as various binding UN resolutions." The Special Rapporteur further called upon the international community "to act decisively to protect Palestinians by taking urgent steps to remove the impunity that Israel enjoys."
At the end of October, UNRWA estimated that Israel had destroyed some 2,130 refugee shelters since the beginning of the second intifada at the end of September 2000 leaving more than 16,000 Palestinians homeless. The escalation in house demolition in 2003 comes at a time when UNRWA facing increasing donor shortfalls leaving it unable to keep pace with both regular shelter rehabilitation and reconstruction of destroyed shelters.
Efforts must be made to link current issues (new occupation policies, economic issues, international reaction toward apartheid, etc.) to Palestinian refugee rights. A number of advocacy topics as well as existing advocacy campaigns were identified: use of refugee lands by foreign companies operating inside Israel; the naming of parks and forests planted by Zionist organizations on refugee lands after third countries (e.g. 'Canada Park' on the lands of Emwas, Yalo and Bayt Nuba, or the ‘South African Forest’ on the land of Lubya); access of individual refugee claimants to the United Nations property database on Palestine; the destruction and abuse by Israel of Palestinian religious sites; and, for restitution of religious (waqf) property to the respective Palestinian religious community in Israel.
Legal strategies can strengthen civil society initiatives. Actual restitution and compensation can only be obtained via mechanisms for direct claims. Unfortunately such mechanisms are not readily available for Palestinians. There might be possibilities for Palestinian refugees living in Europe who are able to convince their governments to apply pressure against Israel by diplomatic means. However, the most interesting would be the establishment of a ‘UN Claims Commission’ for Palestine. Regional courts may also receive claims, particularly the European Court of Human Rights and the Inter-American Court. The European Court already has developed jurisprudence and has interesting precedents relevant for the Palestinian case. The Inter-American Court has not yet issued similar decisions. Claims could be filed with the International Court of Justice based on a legal opinion holding that the PLO could file a claim on behalf of Palestinians before the ICJ.
Injured parties may use indirect claims mechanisms to obtain declaratory rulings and perhaps some form of indirect compensation. Restitution or full compensation is not available under this category. Indirect claims mechanisms are claims filed with domestic courts under universal jurisdiction legislation available for prosecution of international treaty violations. Current examples include: the Alien Tort Claim Act (ATCA) and the Tortured Victim Protection Act (TVPA) in the United States and the notion of universal jurisdiction for international crimes (war crimes, genocide, crimes against humanity) developed by some states (e.g. Belgium, UK, Spain, Switzerland). Based on the Rome Statute, the International Criminal Court (ICC) has jurisprudence over international crimes committed after the cut-off date of 1 July 2001, however, the ICC cannot enforce its jurisdiction against non-signatory states, among them Israel.
Update on Palestinian Refugees from Iraq
Most of the Palestinians have Iraqi resident documents. Fourteen hold Egyptian papers and three have Lebanese travel documents. None have so far expressed a desire to return to Iraq. UNHCR does not consider Iraq to be conducive for return. Many have expressed a readiness to go to the West Bank and Gaza, as well as to Israel.
(UNHCR Briefing Notes, 28 November 2003 ).
There are also various mechanisms for laying the legal foundation for future Palestinian claims. This category includes UN Treaty Body reporting mechanisms (e.g., UN Committee on Social, Economic and Cultural Rights) in which there has been significant civil society reporting. Treaty body 'concluding observations' are moving in the right direction. Special Complaint Procedures (1230, 1503) of the UN Human Rights Commission have not yet been used extensively and should used, in order to strengthen UN principles on the Palestinian right to restitution.
Discriminatory application of legal principles by Israeli authorities on both sides of the 'green line' should also be highlighted in order to raise Palestinian refugee rights. Zionist-Israeli quasi-state agencies operate openly all over the world as charitable institutions. Their activities contribute to the dispossession of Palestinians and refugees. The possibility of claims against these Zionist organizations and their activities based on the jurisdiction of the states where they operate should be explored and pursued. Any legal strategy can be effective only if accompanied by political and media work. No legal strategy can work and succeed alone. An effective strategy depends on assembling all these ideas and creating a grass-roots/civil society movement that can garner international political support.
A list of outstanding research topics related to the Palestinian right to restitution should be developed for circulation among students and scholars. Specific topics for further research, in addition to legal strategies, could include: the relation between the right to restitution and lapse of time; retroactivity and the right to restitution; pre-1948 precedents for restitution; specific legal doctrines, including the inter-temporal doctrine, the Stimson doctrine and the persistent advocate/objector doctrine; the rights of Jewish Israeli secondary occupants of Palestinian refugee properties; gender and restitution of individual and communal property; return of Christian waqf as a precedent for restitution; how to resolve clashes between individual and communal property claims; and precedents established by Jewish restitution claims. A schematic model for restitution of Palestinian land should also be developed. Such a framework/outline will be a useful tool for engaging people (Israelis and others) and advocacy work. Support of Palestinian researchers and academic institutions must be a priority of the international academic community.
As winter sets in across the Middle East, an estimated 1,800 people who fled Iraq are living in refugee camps in eastern Jordan. This include more than 400 Palestinians who had previously lived in exile in Iraq. Throughout the winter the refugees will remain sheltered under canvas tents and will have to rely in simple cooking and heating stoves for warmth.
Most of the Palestinians have Iraqi resident documents. Fourteen hold Egyptian papers and three have Lebanese travel documents. None have so far expressed a desire to return to Iraq. UNHCR does not consider Iraq to be conducive for return. Many have expressed a readiness to go to the West Bank and Gaza, as well as to Israel. UNHCR's primary focus is the lasting solution of returning to their homeland in safety and dignity.
UNHCR has also called upon other states in the region to help find a place for the 427 Palestinian refugees remaining at the border camp. The UNHCR has appealed specifically to Egypt and Lebanon to grant individuals holding travel documents issued by these two states to permit them to reenter. It has also suggested that other Arab and non-Arab countries share the burden by offering Palestinian refugees temporary residency so that they might get employment and access to social services until a more durable solution is found.
(UNHCR Briefing Notes, 28 November 2003 ).
American and European Initiatives Attempt to Cancel the Right of Return
Over the past several months American actions at the UN General Assembly, and individual American and European legislators have adopted new initiatives that aim to undermine the basic human rights of Palestinian refugees to return to their homes and repossess their properties.
At the United Nations, the US delegation sought to take advantage of the annual adoption of UN General Assembly resolutions relating to Palestinian refugees to consolidate existing resolutions and further remove all references to international law and UN Resolution 194. Based on a draft resolution proposed by the United States (A/C.4/58/L.9, 31 October 2003) and the revised draft resolution (A/C.4/58/L.9, 7 November 2003) submitted by Australia, Canada, Dominica, Palau, Uganda and the US, the United States introducted a consolidated GA resolution on Assistance to Palestine refugees and Support for the United Nations Relief and Works Agency for Palestine Refugees in the Near East (Res. 58/95, 17 December 2003). Unlike the non-consolidated resolutions (Res. 58/91, 17 December 2003 and Res. 58/93, 17 December 2003), the US-sponsored resolution excludes, for the first time, reference to GA Resolution 194, reference to the UNCCP (mandated to facilitate implementation of the right of return, restitution and compensation), and expressing the concern of the General Assembly that the repatriation and compensation of Palestinian refugees has not yet been effected.
The measure follows efforts by the former Clinton administraton to remove all references to UN resolutions. Since 1993, the United States has voted against UNGA Resolution 194(III). Explaining the US vote, then Ambassador to the UN Madelaine Albright stated, “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…” (Letter to Ambassadors to the United Nations, New York, 8 August 1994).
In the US Congress, meanwhile, Rep. Ileana Ros-Lehtinen (Republican) sponsored Resolution 311, 28 October 2003, expressing the sense of the Congress that UNRWA “should establish a program for resettling all of the Palestinian refugees under the authority of UNRWA in the host countries or territories in which they are living, other Arab countries, or third party countries willing to assist, and a timetable for implementing the program within 6 months of the date of the adoption of this resolution.” The resolution appears to be part of a concerted effort by the World Jewish Congress (WJC) and its supporters to undermine Palestinian refugee rights and at the same time weaken US support for UNRWA in the run-up to the renewal of its mandate in 2005. (For more on the attack on UNRWA, see al-Majdal 19). At the same time that the WJC is calling for a change in UNRWA’s mandate to effect resettlement of all Palestinian refugees, including the extinguishment of Palestinian refugee rights, it is also campaigning for international support for the rights, including housing and property rights, of Jews from Arab countries.
Similar efforts were underway in the European Parliament, which adopted a non-binding Resolution on Peace and Dignity on 23 October 2003 calling upon Palestinian officials “to take a realistic approach to the sensitive question of the right of return for refugees, which currently concerns some four and a half million people, so that a fair and balanced solution can be reached between the parties taking into account that not all Palestinain refugees will be able to return to their places of origin and that due weight must be given to Israel’s demographic concerns…”
The resolution also recommends “that the right of return for Palestinian refugees be confined to the Palestinian state, with exceptions that may be freely negotiated, and that the international fund for solidarity and economic aid referred to below should provide a generous and equitable system of compensation for those refugees not wishing to return or unable to do so because their place of origin is located outside of the Palestinian state.” The Resolution was based on a European Parliamentary Report on Peace and Dignity in the Middle East (A5-0351/2003), prepared by Special Rapporteur Emilio Menendez del Valle (Spanish Socialist MEP and Vice-President of the European Parliament Delegation for relations with the Palestinian Authority), of the Committee on Foreign Affairs, Human Rights, Common Security and Defense Policy.
Ironically, the recommendations on Palestinian refugees in the lengthy resolution are contradictory to other sections of the resolution which state that the Parliament “Is convinced that this agreement can only secure a fair, honourable, full and lasting peace that will guarantee stability and security in the region if it is based on: international law and the resolutions of the United Nations Security Council and General Assembly; a commitment from both parties to democracy, the rule of law and human rights, ….” [Emphasis added]
These efforts are inconsistent with American and European policy vis-à-vis refugees and displaced persons elsewhere, including Bosnia, Kosovo, and East Timor, where both the US and the EU have supported the right of refugees and displaced persons to return to their homes, regardless of so-called demographic concerns. The initiatives are also inconsistent with general principles of international law setting out the framework for durable solutions for refugees and displaced persons.
On 31 July 2003, the Israeli Ministry of Defence announced the completion of the first phase of the security barrier [‘Apartheid Wall’], officially launched on 16 June 2002.(1) The first stage comprises a 123-kilometre-long-section extending from Salem checkpoint in the northwest Jenin district, through the Tulkarm and Qalqilya governorates, to Masha village in the Salfit area. In practice, work is still continuing on the southern section of this phase: the pedestrian and agricultural gates are being installed and the electronic "smart fence", the central component of the system, has yet to become operational. The subsidiary barriers, including deep trenches or "depth barriers" have yet to be built, although construction of the depth barrier around Tulkarm appears to be imminent.(2)
Impact of Phase One on Registered Refugees Population statistics are based on mid-2003 projections of the PCBS 1997 census figures. Refugee family numbers are from the Relief and Social Services Department in UNRWA West Bank Field Office.
of the 14 communities isolated between the barrier and the Green Line, there are 13,636 Palestinians, including 374 refugee families or 1,870 individuals.
15 communities will be affected by so-called 'depth barriers' to the east of the fence affecting 138,593 Palestinians, including 13,450 refugee families or
An undetermined number of communities will be impacted through the loss of land, irrigation networks or infrastructure during the construction and experience access problems once construction is complete. This includes at least 33 communities or 69,019 persons of whom 1,467 are refugee families or 7,335 persons.
In total over 220,000 people will be affected including 15,291 refugee families, or 76,455 individuals representing one third of the total population For a list of the individual affected communities see the entire UNRWA report available at www.unrwa.org.
Another stage, approximately 20 kilometres of the "Jerusalem envelope", has been constructed: in the north four kilometres from Kalandia checkpoint to Opher military camp in the Ramallah area, and the rest from Gilo settlement to Beit Sahur in the Bethlehem area. As work is still ongoing it is difficult to gauge the likely effects of this phase, particularly as residents of these areas already have to pass through the Kalandia and Gilo checkpoints to enter Jerusalem. Affected areas in the northern Jerusalem area include A-Ram, Kalandia, Kufr Aqab, El-Bira and Rafat, and the barrier will eventually extend to the Jaba junction. Kalandia camp residents will end up on the "Palestinian" side of the barrier: according to PENGON, "the northern Jerusalem Wall is isolating 15,000 Jerusalem ID holders, living in Kufr Aqab and Qalandiya Refugee Camp from the city, their familial and social ties, and public services.”(3) Conversely, Abu Dis, el-Azariya, Anata, Hizma and Beit Iksa will lie on the "Israeli side" of the barrier.(4) Although the US administration has objected to the inclusion of Palestinian areas within the "Jerusalem envelope" it appears that the Israeli authorities are prepared to disregard these objections.(5)
In the Bethlehem area, part of the barrier has been constructed from the Gilo tunnel on Route 60, past Aida Camp, Rachel's Tomb and Har Homa settlement to Route 356 past Beit Sahur. The new checkpoint/gate for Bethlehem will be 200 metres south of the current Gilo checkpoint and the route of the barrier around Rachel's Tomb will leave approximately 500 Bethlehem residents on the "Jerusalem side".(6) The barrier will closely abut Aida camp and three houses in the camp will also be isolated on the "Israeli side".(7)
A 40-kilometre section is currently underway in the northern Jenin district from Salem checkpoint to Jalbun, to be complete by 31 December 2003. Here the barrier appears to closely follow the Green Line, although constructed entirely within the West Bank. The overall impact is as yet unclear, but may be less detrimental to the Palestinian communities concerned than in other phases.
The second phase will continue the barrier from the village of Masha in the southern Qalqilya district to join up with the northern Jerusalem section at Ofer Camp near Ramallah. Plans adopted some months ago by Prime Minister Sharon and Defence Minister Mofaz, included a massive detour eastwards to bring the settlements of Ariel, Qedumim and Emmanuel on the 'Israeli side' of the fence. This would have doubled the length of the original route - roughly corresponding to the Green Line - from 110 to 210 kilometres.(8) The US administration's strong objections to these indents - including, most recently, threats to deduct the cost of the settlement diversions from the US$ 9 billion loan guarantees -- has apparently resulted in a revision of this plan. The alternative route, which will avoid encircling Ariel and the other settlements, the will not some 160 kilometres from Masha to Ofer Camp, and may be presented for formal approval by the Israeli cabinet as early as 17 August.(9) However, while this route will adhere closer to the Green Line than the previous plan, it is expected that an unknown number of Palestinian enclaves will be created west of the barrier.
There are plans to extend the barrier from the Bethlehem area to Arad south of Hebron, a distance of some 120 kilometres, although the planning, route, budget and completion date for this section are still vague.
Although the scheme has not been formally approved by the cabinet, it appears that Prime Minister Sharon and Defence Minister Mofaz have also planned an additional barrier down the Jordan Valley.(10) Planning for this stage is apparently well-advanced, with the barrier continuing on from the northern section currently under construction from Salem to Jalbun.(11) The barrier will then run to the settlement of Maale Ephraim, from where it will continue southward, to the northern Dead Sea area. The eastern barrier will not be entirely made up of a fence, but some of it will be based on a natural cliff that descends into the Jordan Valley, along with ditches in several places. According to Ma'ariv the length of the entire barrier, east and west, will eventually extend between 800 and 900 kilometres. The estimated cost of construction is estimated at NIS 10 million per kilometre of fence, so that the entire project is expected to cost between NIS 8-9 billion.
Impact of Phase One on Registered Refugees
Population statistics are based on mid-2003 projections of the PCBS 1997 census figures. Refugee family numbers are from the Relief and Social Services Department in UNRWA West Bank Field Office.
Impact of Phase One on Registered Refugees Population statistics are based on mid-2003 projections of the PCBS 1997 census figures.
Refugee family numbers are from the Relief and Social Services Department in UNRWA West Bank Field Office.
• of the 14 communities isolated between the barrier and the Green Line, there are 13,636 Palestinians, including 374 refugee families or 1,870 individuals.
• 15 communities will be affected by so-called ‘depth barriers’ to the east of the fence affecting 138,593 Palestinians, including 13,450 refugee families or 67,250 individuals.
• An undetermined number of communities will be impacted through the loss of land, irrigation networks or infrastructure during the construction and experience access problems once construction is complete. This includes at least 33 communities or 69,019 persons of whom 1,467 are refugee families or 7,335 persons.
• In total over 220,000 people will be affected including 15,291 refugee families, or 76,455 individuals representing one third of the total population
For a list of the individual affected communities see the entire UNRWA report available at www.unrwa.org.