Abstract: The author looks at the reluctance of negotiators to adhere to the standards of international law with regard to established refugee regimes. In particular he discusses the role of referenda in conflict resolution discourse both popular and political as a means of obviating the inherent moral and legal duty of Palestinian return. The article puts the case that political resolution cannot be at the expense of international norms and that effecting the Return is part of the process of peace: sustainable peace can only be effected in turn by a recognition that international norms trump the politically unequal negotiations between the Israeli state and the PLO.

Human rights advocates and international legal experts share a common vision of a just solution to the Palestinian refugee problem: that it must emanate from the premise of international refugee law and guarantee the universal human rights of the refugees. In practice this entails the repatriation of the refugees to their homes, restitution of property and compensation for decades of loss and suffering.

Wherever there were refugee problems during the last century, refugee law has favoured and upheld solutions based on voluntary repatriation. The exercise of repatriation was deemed so fundamental for conflict resolution that not even the struggle for self-determination was allowed to obstruct or disregard it. This was recently demonstrated in Bosnia where the quest for self-determination did not negate the individual refugee’s right to return to his homeland.

The Palestinian refugee problem has been a salient exception not because of any intrinsic peculiarities to their case but rather because of the unwillingness of mediators to enforce the rules of international law. Regrettably, there has been a tendency throughout the conflict to discount the role of international law and rely almost entirely on security and political solutions.

Since the demise of the late Palestinian President Yasser Arafat, diplomats and emissaries have crisscrossed the region proclaiming a new sense of optimism. At every stop they expressed subtle delight that Arafat, the supposed ‘obstacle to peace’, was gone. While some propose another round of secret talks in Oslo, others call for a conference in the UK. From within these two camps there are yet other brokers who advocate the activation of the October 2003 Geneva Initiative.

None of the above initiatives explicitly call for the right of the Palestinian refugees to return to their homes in accord with UN Resolution 194 and other instruments of international law. On the contrary, they all give preference to a political based solution. This is manifested in recent calls for a referendum among Palestinian refugees on the issue of return.

In July 2003, a poll conducted by the Palestinian Center for Policy and Survey Research (PSR) showed only 10% of respondents wished to rebuild their homes under Israeli rule while more than 95% insisted that Israel recognize the right of return in principle. 17% said they would stay in their adopted homes and 2% expressed a wish to move to a foreign country. 54% said they would be willing to accept compensation.

The hostile reaction to this survey in refugee communities from Syria to the West Bank and Gaza contrasted significantly with the warm manner it was received by Israeli and American officials. In Ramallah, refugees stormed the office of the Director of the PSR, Dr. Khalil Shikaki, and pelted him with rotten eggs. Meanwhile, in Israel, newspapers headlines almost uniformly trumpeted phrases such as; “eminent” pollster says “only 10 per cent of the refugees wish to return.”

Further away in the United States, the Council on Foreign Relations seized the opportunity and suggested that since so few refugees wished to return, the issue should be resolved by inviting the international community to “help fund the permanent settlement of Palestinian refugees either in the new state of Palestine or in third countries”.

The PSR poll was only one in a series conducted in the last decade on the refugee issue. Policy-makers have sought to use the findings of these surveys to bring about a ‘just’ solution to the problem and thus end the century long conflict. This paper seeks to examine the validity of such political solutions that call for final and permanent closure while discounting the fundamental human rights of the refugees.

Motives

Soon after his assumption of office, the new chairman of the Palestine Liberation Organization (PLO) was quoted in an Egyptian magazine as saying any solution that is agreed upon should be subject to a referendum between the two peoples. Such a referendum would in the eyes of its architects constitute the full, final and irrevocable settlement of the conflict in its various dimensions including the refugee issue. No further claims or demands arising from this issue will be made by either party or by individuals on this matter.

Given his central role as ‘engineer’ of the Oslo Accords and its subsidiary agreements, it was inevitable that Mahmud Abbas’ call for a referendum would be met with profound scepticism.Many Palestinians in the camps and the national movement as a whole recall that he had in October 1995 finalized with the Israeli minister, Yossi Beilin, a secret document called a ‘Framework for the Conclusion of a Final Status Agreement between Israel and the Palestine Liberation Organization’. The document was never officially signed by the Israeli and Palestinian sides and Abbas frequently denied its existence. A leaked copy of the document did however give an insight on the issue of the Palestinian refugees. Article VII reads:

“Whereas the Palestinian side considers that the right of the Palestinian refugees to return to their homes is enshrined in international law and natural justice, it recognizes that the prerequisites of the new era of peace and coexistence, as well as the realities that have been created on the ground since 1948, have rendered the implementation of this right impracticable. The Palestinian side, thus, declares its readiness to accept and implement policies and measures that will ensure, insofar as this is possible, the welfare and well-being of these refugees.”

Having claimed the impracticability of implementing the relevant international laws and resolutions on the right of return, the Beilin-Abu Mazen Document, as it came to be known, suggested that refugees be “rehabilitated and resettled” in the Palestinian territories or other countries. The document also specified that this would be a “full and final settlement of the refugee issue in all its dimensions,” and that there would be no “additional claims or demands arising from this issue.”

One of the immediate dangers of this proposal is that it creates the impression that there is a contradiction or conflict between the individual Palestinian right of return and the collective right to self-determination. In principle, neither right should be curtailed at the expense of the other. The right of the individual must be preserved irrespective of the outcome of the collective struggle for self-determination.

Null and Void

It is often argued that abnormal circumstances require abnormal solutions. For all its worth this claim does not apply where inalienable rights are at stake. Inalienable rights are not subject to negotiations, review or debate. They are simply upheld, respected and implemented. In the case of the right of return what is most urgently required is a serious discussion about the mechanisms of implementation.

The notion of a referendum implies that there are various options upon which the parties may agree or disagree. It belies the fact that a clear solution has already been established and demarcated by international law and human rights standards within the formula of return, restitution and compensation.1

None of the so-called ‘historic’ accords signed to date have attempted to recognize and preserve Palestinian rights. This includes the Camp David Accord of September 1978 which is widely regarded as the most successful. It provided that Egypt, Israel, Jordan and the self-governing Palestinian authority would resolve ‘by agreement’ how the refugees displaced from the West Bank and Gaza Strip in 1967 would be repatriated. With regard to the refugees who were expelled in the 1948 Nakba [Catastrophe] the Accord left it up to Egypt and Israel to resolve their problem by ‘agreed procedures’.2 The very notion that Palestinian return was made dependent on agreement meant that Israel was effectively granted a veto in this matter.

As a result of this violation, the UN condemned the Camp David Accord and declared it invalid. General Assembly Resolution [34/65, B4, 29 November 1978]:

“Declares that the Camp David accords and other agreements have no validity in so far as they purport to determine the future of the Palestinian people and of the Palestinian territories occupied by Israel since 1967”.

The Assembly adopted this stand after it had previously declared that:

“The validity of agreements purporting to solve the problem of Palestine requires that they lie within the framework of the United Nations Charter and is resolutions on the basis of the full attainment of the inalienable rights of the Palestinian people.” [33/28, 7 December 1978]

In 1981 the Assembly further reaffirmed its rejection of the accords. Resolution 36/120F

“Strongly reaffirms its rejection of those provisions of the accords which ignore, infringe, violate or deny the inalienable rights of the Palestinian people, including the right of return…”

The Assembly further declared that no state has the right to undertake any actions, measures or negotiations that could affect the future of the Palestinian people and its inalienable rights. It also decided that all actions, measures and negotiations to implement or execute such accords and agreements are null and void.

Judging from the Camp David experience it is clear that according to accepted standards of international law relevant provisions of existing international law and UN resolutions can only be replaced by political agreements whose provisions grant rights that are equal to or more extensive than those already guaranteed by law.3

Refugee Choice

As one of the central pillars that protect the Palestinian right of return, Resolution 194 grants to every individual refugee a choice to remain abroad or return to his home/land from which he was expelled. The drafters of the resolution recognized that some of the refugees may not choose to return. Hence, they made sure that the principle of voluntary repatriation was upheld in the resolution. They were especially careful to protect the individual choice because in the immediate period after the Second World War they had witnessed disturbing cases where refugees were forced to repatriate to communist countries against their will.

In order to avoid situations where the Palestinian refugees were either forced to return or denied the right of return, Paragraph 11 of Resolution 194 emphasizes the role of refugee choice. This Resolution embodies some of the most salient principles outlined in the Progress Report which the first UN Mediator in Palestine Count Folke Bernadotte submitted to the General Assembly in September 1948. He insisted that it was an “unconditional right” of the refugees “to make a free choice [which] should be fully respected.” The report added, “The right of the Arab refugees to return to their homes in Jewish controlled territory at the earliest possible date should be affirmed by the United Nations….”4

When the General Assembly finally adopted Resolution 194 on 11^th December 1948 it “Resolve[d] that refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so…” In the light of this it has been subsequently recognized that in order for the right of return to have any meaning, each Palestinian refugee must be given a free choice about where to live.5

Although the principle of choice is inherent in the 1948 Resolution 194 and remains the cornerstone of a durable solution to the Palestinian refugee problem there has been a growing tendency since Oslo to manipulate opinion polls in order to exploit the absence of an agreement that recognizes and grants this freedom to return. Consequently, the need for sound knowledge of the issue of refugee choice has become ever more imperative.

Under refugee law and guidelines laid down by the UNCHR, the exercise of free choice requires the fulfillment of certain conditions. A recent study undertaken by the Badil Center for Palestinian Residency and Refugee Rights aptly summarizes these conditions;

“Determination of refugee choice cannot be undertaken prior to a peace agreement, which explicitly recognizes the right of refugees to return to their homes and provides guarantees for the voluntary character of return – i.e. refugee choice. Without guarantees for implementation of the right of return as codified in a peace agreement, refugees cannot make an informed, free choice about whether they wish to return. In other words, refugee choice cannot precede recognition of the right of return by the country of origin, and provisions for its implementation.”6

The calls for a referendum on Palestinian return have been accompanied by a campaign of disinformation from Israel suggesting that there is no such thing as a ‘right of return’ to Israel. In the weeks leading up to the October 2003 Geneva Initiative Israel’s Foreign Ministry had notified its diplomats around the world to refrain from using the expression ‘right of return’ and to speak only of ‘those wishing to return.’ In the light of such policies a referendum on Palestinian repatriation could unwittingly serve Israel’s political interests if it is not preceded by an explicit recognition of the Palestinian right to return.

Apologists for Israeli policies maintain that Resolution 194 makes no mention of Palestinian return as a matter of right. Notwithstanding, the ambiguities that seemed to exist in this regard were clarified in subsequent resolutions. Thus, while Resolution 194 made no reference to an ‘inalienable right’ of return, Resolution 3236 [22 November 1974] ‘reaffirms the national inalienable rights of the Palestinian people in Palestine, including the right to self-determination without external interference.’ Paragraph 2 of this resolution ‘reaffirms also the inalienable rights of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return.’

In some respects, therefore, General Assembly Resolution 3236 is regarded as one of the most fundamental resolutions passed on the refugees’ right of return. It describes the right of return as ‘inalienable’, meaning that it is an absolute and permanent right that cannot be surrendered or otherwise terminated.7

Given Israel’s refusal to acknowledge the Palestinian right of return to their homes the calls for a referendum could presumably be viewed as an attempt to relieve Israel of its obligations toward the refugees under international law. Accordingly, refugee advocacy bodies point out that Israel should not be allowed to use the façade of sovereignty to renege on its obligations. Resolution 3236 is especially explicit about the geography and destinations to which they should return. When it calls for a return to ‘their homes and property’ it means both the area of the state of Israel, as defined in the partition resolution of 1947, and its de facto boundaries acquired through war in 1967 and after.8

In this context, there must be no confusion between the return of the refugees to their homes and the sovereignty of the proposed state of Palestine. Sovereignty is a political act in which a state extends its recognized authority over a territory. The right of return is an inalienable right applied to man and his home wherever his home is located.9

However attractive it may seem, arguments pertaining to Israel’s domestic jurisdiction and needs should never be used to deny readmission to the Palestinian refugees. The fact is Israel’s international status differs fundamentally from that of other states. Not only was it created by a UN resolution that fixed its territorial limit but it was also subjected to restrictions and obligations which deprived it of any power to enact laws or regulations or take action that might contravene the rights protected by the resolution.10

In the final analysis, the right of return is protected by several international and human rights laws and resolutions. These include; the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil Rights (ICCR) and the Fourth Geneva Convention (FGC)

So profound are the rights granted under the FGC that it prohibits both the beneficiaries and those who act on their behalf from conceding any of the rights it guarantees. Article 7 stipulates: “No special agreement shall adversely affect the situation of protected persons, as defined by the present Convention, nor restrict the rights which it confers upon them.”

Article 8: “Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention.

Article 47: “Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.”

Conclusion

The problem of the Palestine Arab refugees has arisen from the denial of their inalienable rights under the Charter of the United Nations and the Universal Declaration of Human Rights.11 Their return to their homes is not a product of peace. On the contrary, it is a necessary condition for the transition to peace. Toward this end Resolution 3089 D notes the enjoyment by the Palestine Arab refugees of their right to return to their homes and property, recognized by the General Assembly in Resolution 194 is indispensable ‘for a just settlement of the refugee problem.’

As it stands, the injustice of expulsion cannot be rectified by another act of wrong-doing. No opinion poll, survey or referendum can nullify, negate or divest the individual Palestinian of his right of return. At best, these can only be used to obstruct and delay the exercise of this right.

While politics does have a definite role to play in resolving the Palestinian-Israeli conflict, the centrality of international law is even more important role. In the past, the primacy of the law of nations has been subjected to the dictates of international politics and the balance of power in the region. Any further attempts to resolve the Palestinian refugee issue outside the framework of international law would be challenged and ultimately defeated. The post-Oslo period bears significant lessons in this regard.

The issue of the Palestinian refugees cannot be resolved through exclusive “negotiations” between the politically unequal Israel and the PLO. It is only on the level grounds of international, humanitarian and human rights law could the parties attain parity. Then it would be reaffirmed that no agreement or solution can ignore, infringe, violate or deny the inalienable Palestinian right to repatriation, restitution and compensation.

1 . The Palestine Society for the Protection of Human Rights & the Environment [LAW], The Dormant Right – the Continuing Violation of the Right of Return, www.lawsociety.org. [January 2001], p.60
2 . H. Cattan, The Palestine Question, (Saqi Books, London: 2000), p.146
3 . LAW, op.cit., p.61
4 . Cited in Badil Resource Center, The Right of Return and the Meaning of Refugee Choice, Occasional Bulletin No.4, February 2000, p.1
5 . E. Zureik, ‘Palestinian Refugees Must be Allowed to Choose’, Los Angeles Times, Thursday, 10th August 2000
6 . Badil, op.cit., p.3
7 . W. Mallison & S. Mallison, ‘The Right of Return’, Journal of Palestine Studies, Vol. IX, No. 3, Spring 1980, Issue 35, p.133
8 . Ibid.
9 . S. Abu Sitta, Open Letter to M. Atisaaari and G. Evans of International Crisis Group, 24 July 2002
10 . H. Cattan, Palestine and International Law, (Longman, London:1973), p.171
11 . UNGA Resolution 2535 (XXIV) B, 10 December 1969