Ways Forward

 

The final seminar was based on the assumption that analternative model for just and durable peace between Jewish Israeli society and the Palestinian people must be built on recognition of Israeli responsibility for the forced displacement and dispossession of the Palestinian people, recognition of basic human rights, and implementation of related remedies (return, housing and property restitution, compensation) in accordance with international law and best practice.

 

The seminar aimed to clarify principles and concrete initiatives for the promotion of rights-based durable solutions for Palestinian refugees in Palestine/Israel; and identify actors and agenda for follow-up. In particular, the seminar examined how civil society, including Jewish-Israeli civil society, could play a key role in building and promoting such a rights-based approach, if concrete and practical initiatives are developed and implemented in a systematic fashion.

 

The fourth and final seminar of the expert series was held in Haifa, 1-4 July 2004, in cooperation with the Emil Touma Institute for Israeli and Palestinian Studies (ETI) and the Association for the Defense of the Rights of the Internally Displaced (ADRID). The seminar was sponsored by ICCO and Stichting Vluchteling (Netherlands). More than thirty local and international experts and activists participated in the discussions.

 

Stocktaking and Analysis

 

Session one provided a basic legal framework for subsequent discussions about different approaches to peacemaking and current civil society initiatives. Two contrasting but complimentary approaches were presented by legal experts residing in the region. Gail J. Boling, a senior researcher at Birzeit University, Institute of Law, spoke about state and individual responsibility to remedy violations against Palestinian refugees and internally displaced persons.

 

Two main problems arise in establishing state and individual responsibility for violations of international law that occurred in 1948. Under international law one must apply the law in force at the time of violation (intertemporal doctrine). The problem for Palestinians is that major violations occurred before the development of human rights law. One can use the current body of law, however, if one is able to establish that the original violation has been ongoing (continuing violation doctrine).

 

The second problem is the absence of a court with procedural jurisdiction. Most Palestinian refugees do not have access to Israeli courts, individuals cannot file petitions at the International Court of Justice (ICJ), while the newly-established International Criminal Court (ICC) does not accept petitions for violations that occurred before the court came into being. Palestinians can raise claims against Israeli violations, however, under UN human rights treaty mechanisms. They can also invoke universal jurisdiction under the grave breaches regime established under the Fourth Geneva Convention.

 

While Palestinian refugees thus do not yet have a directly accessible legal forum for claims against Israel, the law is steadily becoming stronger. The 2001 UN Draft Articles on Responsibility of States for International Wrongful Acts, for example, sets standards for what states may/must do, if a violation of international law by their actions can be established. The Articles provide for responsibility of the successor state for actions of paramilitaries that preceded its establishment; recognize ‘continuing violations’; and require states to make reparations (restitution, compensation, satisfaction) where a violation has been proven. These Articles have been endorsed by the UN General Assembly, but have not yet been codified as a treaty.

 

An alternative but complimentary legal approach, presented by Michael Kagan, a refugee lawyer based in the region, focused on the question of whether or not the rights of citizens of Israel conflict with the right of Palestinian refugees to return to their homes. This analysis could shift discussion about refugee rights away from the current collective/demographic argument (where Jewish-Israeli and Palestinian refugee rights are mutually exclusive) towards a more technical, and less frightening, debate over possible solutions to conflicting rights of individuals in specific circumstances.

 

Four sets of conflicting rights/claims were identified and examined under international law: (1) the Jewish collective/national right to exercise the right to self-determination in 1948 by establishing a ‘Jewish state’ in Palestine; (2) the Jewish-Israeli collective right to maintain a ‘Jewish state’ today, even if a right to establish such state did not exist in 1948; (3) the individual right of Jewish Israelis to housing and property; and, (4) the right of the state of Israel to avoid intolerable political, social and economic disruption by denying return and restitution to Palestinian refugees.

 

According to Kagan’s initial research, individual rights of Jewish Israelis to housing and property are more strongly protected than collective claims for a Jewish state. There is no evidence that international law permitted the violation of collective (self-determination) and individual (residency and property) rights of Arab Palestinians for the sake of collective Jewish rights. While states are allowed under international law to determine who their citizens are, Israel is also a successor state of Mandatory Palestine and denationalization (by means of Israel’s nationality law) is expressly prohibited.

 

Long term residents and private investors do have protected property rights (‘acquired rights’) under common law. Restitution to original owners of property could be blocked if it caused disproportionate hardship to the current owner.In the case of Broniowski vs. Poland, the European Court of Human Rights supported the argument of Poland that 80,000 restitution claims would threaten national stability and order. Israel could argue the same against massive Palestinian restitution claims. Poland was not the original perpetrator (the land was confiscated by the former Soviet Union). In the case of Israel, there is direct responsibility and obligation.The scope of housing and property rights also depends upon the question of whether property was purchased/rented in good faith. Israel did not acquire Palestinian refugee property through a regular commercial dispute between bona fide purchasers/users. While Palestinian refugee rights to restitution have not weakened over time, individual Jewish Israelis may have acquired certain rights to property.

 

Participants also discussed how Zionist para-statal organizations (‘national institutions’), such as the World Zionist Organization (WZO), the Jewish Agency (JA), and the Jewish National Fund (JNF), function as perpetuators of institutionalized discrimination in Israel.  These institutions operate as tax-exempt charitable organizations around the world. In addition to the state of Israel, they must also be held responsible for violations against Palestinian refugees. The UN Committee on Economic, Social and Cultural Rights has called on Israel to end the special status of these organizations under Israeli law.

 

New and Evolving Approaches to Conflict Resolution

 

New and evolving approaches to conflict resolution and their relevance for Palestine-Israel were examined in the second session. Transitional justice deals with responses by governments and civil society to past and present human rights abuses during transitions from war to peace and from dictatorship to democracy, although it has also been used in situations that are not typical cases of transition.This includes the African American demand for reparations for slavery, the tribunal for women sexually abused by Japanese forces during WWII, and the ongoing truth commission concerning the 1979 massacre in Greensboro, USA. Mechanisms can be judicial or non-judicial, based on models of retributive or non-retributive (restorative) justice, including war crimes tribunals, truth commissions, legal and institutional reform, museums of memory, etc.

 

Jessico Nevo from Bat Shalom, who recently completed a degree in Transitional Justice, summarized various arguments for and against the relevance of transitional justice in the Palestinian-Israeli context. On the one hand some argue that the Zionist-Palestinian conflict is unique; the effectiveness of restorative justice is grounded in the discontinuity of the ruling political regime which has not happened; these mechanisms apply better to situations of a former dictatorship or totalitarian regime; the process is effective if taken on as official initiatives involving a government; they can only be effective when the beneficiary, i.e., Israeli Jews, realize that ‘something is wrong’; and, the situation in Palestine-Israel is far from being a situation of post-conflict or transition.

 

At the same time, however, some elements of transitional justice can be – and in fact already are – employed, irrespective of the fact that Palestine-Israel is not in a post-conflict situation. Nevo argued that the feeling that ‘something is wrong’ – essential as a starting point for transitional justice is found among some sectors of Jewish-Israeli civil society – e.g., conscientious objectors and Zochrot. Efforts should focus on two objectives: a demand for an official commission of inquiry to investigate the 1948 state policies related to the creation of the Palestinian refugee question; and, a civil strategy of transitional truth telling/dealing with the past, hearing the stories of the victims and testimonies of perpetrators and thus enabling a process of acknowledgement, recognition of responsibility, and expression of apology.

 

Celia McKeon from Conciliation Resources, a London-based NGO that supports civil society organizations working to bring about transition from conflict situations, provided an overview of public participation in peace process. The right to political participation is enshrined in international human rights law. In practice, however, public participation is often deferred in top-down and elite pact-making approaches to negotiations, which is the dominant paradigm for peacemaking. International intervention by means of pre-set peace plans usually hinders public participation, while offering capacity building for local communities encourages participation.

 

Comparative study of public participation in six peace processes (South Africa, Northern Ireland, Guatemala, Philippines, Mali and Colombia) demonstrates that people’s participation makes an important contribution to the process: it facilitates inclusion of a large number of actors and issues; allows deliberations about the root causes and development of the conflict; improves transparency of negotiations; and, employs unique local capacities and resources for conflict resolution – all factors which contribute to the sustainability of a settlement.

 

Modes of public participation include: (1) representative: delegates to negotiations are selected from a wide spectrum of public constituencies. This requires a well developed multi-party system, a legitimate procedure for selecting delegates, and understanding that agreement cannot be reached by two parties alone; (2) consultative: civil society organizations discuss possible solutions and issue recommendations to official negotiators. Recommendations are not binding and may not be taken into consideration; and, (3) direct: usually limited to local conflicts. Change starts locally within civil society. Agreements reached can then be taken into consideration by official negotiators.

 

Existing Civil Society Initiatives in Palestine-Israel

 

The final session focused on three existing civil society initiatives working to build participation and rights-based solutions for Palestinian refugees. Civitas aims to help Palestinians rebuild civic structures in refugee camps and exile communities. “We have democracy – we don’t need to import it, but we need to rebuild our structures,” said Karma Nabulsi, director of the project.

 

Civic structures are the foundation of democracy. They include associations, unions, societies, political parties and movements, etc. When the Palestinian leadership moved to Gaza Strip and West Bank in the 1990s to oversee the building of a Palestinian state, it led to a situation in which the majority of the Palestinian people, who were residing in exile (mostly as refugees), were excluded from the political process. Palestinian refugees became seen as an obstacle to peace and the process was structured to exclude them.

 

Under the project Palestinian exile communities everywhere will assess tools and mechanisms needed for communication with their leadership – i.e., the PLO – and compile lists of issues theywould like to raise. Findings will be processed in a central database. A report to donors will include a request for funding of identified tools and structures. A second report will go to the PLO. This report will basically say: ‘Here are your people, here are their issues. You need to talk to them.’ Activities among the Palestinian exile will be accompanied by seminars and workshops aimed at educating academics and policy makers about the Palestinian refugee question which they have very much ignored so far.

 

Eitan Bronstein provided an overview of the working of Zochrot,which focuses on awareness-raising about the Palestinian Nakba and refugee question among Jewish-Israeli society. Born in Argentina, he came to live in a kibbutz not far from the West Bank city of Tulkarem. “As children, we loved to play in a place called Qaqun, a hill with some remains of what I knew then to be a crusader fortress. A few years ago, while searching the internet for 1948 depopulated Palestinian villages, I checked the district of Tulkarem and saw the name ‘Qaqun’. I clicked on it and was shocked and offended. This was my childhood, what did it have to do with Palestinians?”

 

“This click of the mouse opened a whole world for me: Qaqun was a Palestinian village until 1948, with some 2,000 people, and there was even an important battle between the Iraqi army and Zionist forces. This ‘click’ is in a sense what Zochrot is all about, i.e. to open the story of the Nakba for Jewish people in Israel.” For two and a half years, Zochrot has been posting signs in 1948 depopulated Palestinian communities. Israeli Jews are invited to join guided visits in order to learn about the Nakba. Sign posting brings back the Palestinian space, causes disorder in the Jewish space, and raises the question of belonging to space.

 

Zochrot also attempts to protect sites of Palestinian memory. In the Galilee, a group of residents of Moshav Ya'ad, members of Zochrot, and former Palestinian residents of the depopulated village of Mi’ar presented coordinated legal objections to the expansion of the moshav that would cover the central area of the village, including its graveyard. The regional planning council eventually agreed to leave open space by removing 12 planned houses. The organization also facilitates discussion between displaced Palestinians from a particular village with Jewish Israelis living on its land today in order to deal with what happened in 1948, and see how to change space and bring about change that allows a better life for all.

 

In May 2004, seven members of Kibbutz Bar’am in the Galilee and five people from the depopulated village of Bir’im formed a group to talk about a local approach to resolving the problem of displacement from the village. Einat Luzati and Shlomit Kafri, members of Kibbutz Bar’am in the Galilee, and Nahida Zahra, a second-generation internally displaced Palestinian from Bir’im talked about the experience. The first meeting of the group focused on what happened in the past; the second on options for the future.

 

During the third meeting of the group, the group produced a list of basic principles for a solution, including the re-establishment of the village, compensation for built-up areas and land cultivated by the kibbutz and for those choosing not to return, return of both internally displaced and refugees from Bir’im, and joint efforts to prevent further confiscation of land. Based on these principles, displaced persons from Bir’im displaced would be restituted of some 10,000 dunums of land, while 2,000 dunums would remain with Kibbutz Bar’am, Kibbutz Sasa, and Moshav Dovev. The Israeli government had previously offered to lease (not return) 600 dunums of land.

 

 

Future activities may include an exhibition about the circumstances of depopulation and destruction of Bir’im and Israeli polices preventing the return of its residents; a summer camp for the children of both communities; a meeting for Bir’im displaced with the Secretary of Kibbutz Bar’am; posting of signs in the village and cleaning of village paths; a meeting between members of Kibbutz Dovev and displaced people from the village of Sa’sa; public memorial events to commemorate the history of Bir’im; awareness-raising about the plan to rebuild the village; and a film about the second and third generation of both communities.

 

The final presentation focused on the role of boycotts, divestment and sanctions. Ilan Pappe, professor of history at Haifa University, reminded participants that these types of campaigns against the Israeli occupation are not new. At the same time, it was assumed that the end of the occupation would create the necessary conditions for ending the conflict, including a solution for Palestinian refugees. “Today we face the paradox of a so-called two state solution without an end to occupation,” explained Pappe.

 

“We must understand that occupation will end only after, or simultaneously with, de-Zionization.” This means fusing together the struggle to end the occupation and the struggle for return. The Israeli peace camp failed to end the occupation; the anti-wall movement will not stop the wall; and, the sacks of flour of Tayyush will not stop Palestinians from starving. Education about the Nakba and restitution is necessary and should be linked to reconciliation, but no one should fool him/herself that this will fundamentally alter Israel's nature. Boycotts, divestment and a campaign for sanctions must therefore be an important part of the new struggle.

 

Pappe argued that the one-state solution must be transformed into a relevant political agenda, in Israel, in the 1967 occupied territories, in the camps in Lebanon, among Palestinian exile communities in Detroit, and everywhere. The task is to transform an intellectual discourse or exercise into a concrete platform. The call for boycotts, divestment and sanctions will cut all lines with Zionist Jewish society. But it is important to remember that no power from within can change the current reality, neither from within Jewish society, nor from within Palestinian society in the 1967 occupied territories.