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Compensation for Palestinian Refugees: Law, Politics and Praxis

  • Rex Brynen (a1)
Abstract

The question of Palestinian refugees has long been recognised as one of the core issues that would need to be addressed in any eventual Israeli-Palestinian peace agreement. This article examines compensation for property seizure and forced displacement, an aspect that has figured in every round of major peace talks on permanent status issues for the past quarter of a century. Drawing upon research, informal ‘track two’ discussions and official negotiations, it highlights the challenge of crafting arrangements that would be both politically and practically feasible.

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References
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1 UNGA Res 194(III), Palestine – Progress Report of the United Nations Mediator (11 December 1948), UN Doc A/RES/194(III), para 11.

2 ‘[Affirms further the necessity …] For achieving a just settlement of the refugee problem’: UNSC Res 242 (22 November 1967), UN Doc S/RES/242, para 2b.

3 ‘During the transitional period, representatives of Egypt, Israel, Jordan, and the self-governing authority will constitute a continuing committee to decide by agreement on the modalities of admission of persons displaced from the West Bank and Gaza in 1967, together with necessary measures to prevent disruption and disorder. Other matters of common concern may also be dealt with by this committee. Egypt and Israel will work with each other and with other interested parties to establish agreed procedures for a prompt, just and permanent implementation of the resolution of the refugee problem’: Framework for Peace in the Middle East agreed at Camp David (entered into force 14 June 1979) 1138 UNTS 39, 42.

4 ‘It is understood that these [permanent status] negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest’: Declaration of Principles on Interim Self-Government Arrangements (signed 13 September 1993), art V.

5 Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan (signed 26 October 1994), art 8.

6 The Arab Peace Initiative, Council of the League of Arab States at the Summit Level, 14th Ordinary Session, 27 March 2002.

7 For an overview, see Brynen, Rex, The Past as Prelude? Negotiating the Palestinian Refugee Issue (Chatham House 2008).

8 For discussion of these linkages, see Brynen, Rex, ‘Palestinian Refugee Compensation: Connections and Complexities’ in Brynen, Rex and El-Rifai, Roula (eds), Compensation to Palestinian Refugees and the Search for Palestinian-Israeli Peace (Pluto Press 2013) 263.

9 The practical complications of designing a refugee agreement were brought home by simulated refugee negotiations organised in 2008 by Chatham House. These found that, despite years of talks, there remained serious gaps of policy analysis and ‘[m]ore work is needed on implementation issues’: Brynen, Rex, The Regional Dimension of the Palestinian Refugee Issue: Simulation Exercise Report (Chatham House 2008) 11. Similarly, a workshop held in December 2013 to inform the ongoing Israeli-Palestinian negotiations at the time underscored the immense practical difficulties of designing a compensation regime: Rex Brynen, ‘Compensation Complications’, PRRN – The Blog of Palestinian Refugee ResearchNet, 23 December 2013, https://prrnblog.wordpress.com/2013/12/23/compensation-complications.

10 Gal, Orit, Israeli Perspectives on the Palestinian Refugee Issue (Chatham House 2008) 1. This point has frequently been made to the author by current and former US and Israeli officials too.

11 The best overview of this is provided by Takkenberg, Lex, The Status of Palestinian Refugees in International Law (Clarendon Press 1998). A revised and updated version of this study will be published soon.

12 Israel Ministry of Foreign Affairs, ‘Israel, the Conflict, and Peace: Answers to Frequently Asked Questions,’ 30 December 2009, http://mfa.gov.il/MFA/ForeignPolicy/Issues/Pages/FAQ_Peace_process_with_Palestinians_Dec_2009.aspx#Refugees1.

13 Convention relating to the Status of Refugees (entered into force 22 April 1954) 189 UNTS 150, as amended by its Protocol (entered into force 4 October 1967) 606 UNTS 267 (Refugee Convention).

14 UNRWA, ‘Palestine Refugees’, https://www.unrwa.org/palestine-refugees.

15 ‘Exploding the Myths: UNRWA, UNHCR, and the Palestinian Refugees,’ 27 June 2011, https://www.unrwa.org/newsroom/features/exploding-myths-unrwa-unhcr-and-palestine-refugees. Indeed, UNHCR has registered stateless, subsequent-generation Palestinians as refugees in Iraq and elsewhere.

16 See, eg, the letter from Ahmed Qurei (then head of the Palestinian negotiation team) to US Secretary of State Condoleezza Rice and Israeli Foreign Minister Tzipi Livni, 15 June 2008, in Ziyad Clot, Il n'y aura pas d’état Palestinien: Journal d'un négociateur en Palestine (Max Milo 2010) 270, http://transparency.aljazeera.net/en/projects/thepalestinepapers/201218232924546615.html.

17 Specifically, the Reparations Agreement between Israel and the Federal Republic of Germany (1952): Agreement between the State of Israel and the Federal Republic of Germany (entered into force 27 March 1953) 162 UNTS 206. This point has been raised with the author in a number of workshops on the refugee issue.

18 The best source on this remains Morris, Benny, The Birth of the Palestinian Refugee Problem Revisited (Cambridge University Press 2004). Some have been critical of his work for underestimating the degree of deliberate expulsion: eg, Pappe, Ilan, The Ethnic Cleansing of Palestine (Oneworld 2006).

19 UNGA Res 194(III) (1948) (n 1) para 11 (emphasis added).

20 Fischbach, Michael R, Records of Dispossession: Palestinian Refugee Property and the Arab-Israeli Conflict (Columbia University Press 2003) 91102 .

21 Absentees’ Property Law, 1950 (Israel), art 1(b).

22 ibid art 28.

23 The Negotiations Affairs Department of the Palestinian Liberation Organization (PLO), for example, stresses that ‘[k]ey to the resolution of the refugee issue is Israel's recognition of the applicable principles and rights of the refugees, including our refugees’ right to return to their homes and lands’ – although it goes on to add that ‘Israel's recognition of the right of return will pave the way to negotiating how that right will be implemented’: PLO, Negotiations Affairs Department, ‘Our Position: Refugees – Position’, https://www.nad.ps/en/our-position/refugees.

24 Tamari, Salim, Palestinian Refugee Negotiations: From Madrid to Oslo II (Institute for Palestine Studies 1996) 3840 ; Zureik, Elia, Palestinian Refugees and the Peace Process (Institute for Palestine Studies 1996) 6566 .

25 General Framework Agreement for Peace in Bosnia and Herzegovina (signed 14 December 1995), Annex 7, art.1.

26 Wühler, Norbert and Niebergall, Heike, Property Restitution and Compensation: Practices and Experiences of Claims Programmes (International Organization for Migration 2008) 39.

27 Housing and Property Restitution for Refugees and Displaced Persons: Implementing the ‘Pinheiro Principles’ (United Nations 2007).

28 Palestinian Center for Policy and Survey Research and Tel Aviv University, Tami Steinmetz Center for Peace Research, ‘The Palestinian-Israeli Pulse: A Joint Poll’, December 2016, Question PV11.4, http://www.pcpsr.org/sites/default/files/Table%20of%20Findings_English%20Joint%20Poll%20Dec%202016_12Feb2017.pdf (The Palestinian-Israeli Pulse). This question was asked only of those who would otherwise oppose a Taba-type deal, so the actual number is likely to be higher.

29 The Israeli Draft Framework Agreement on Permanent Status (n 49 below), for example, called for the establishment of an international commission and fund to pay property compensation to Palestinian refugees: Sher, Gilead, Israeli-Palestinian Peace Negotiations 1999–2001: Within Reach (Routledge 2006) 247–49.

30 Clinton Proposal on Israeli-Palestinian Peace, 23 December 2000, https://www.usip.org/sites/default/files/Peace%20Puzzle/10_Clinton%20Parameters.pdf. Neither side objected, although the Palestinian response to the Clinton Parameters insisted on stronger assurances that the refugees’ rights to restitution and compensation will be fulfilled: ‘Remarks and Questions from the Palestinian Negotiating Team regarding the United States Proposal’, The New York Times, 2 January 2001, http://www.nytimes.com/2001/01/02/world/remarks-and-questions-from-the-palestinian-negotiating-team-regarding.html.

31 Brynen (n 7) Appendix 4 (Palestinian Position on Refugees, Taba, 22 January 2001), Appendix 5 (Israel's Private Response to Palestinian Refugee Paper of 22 January, Taba, 23 January 2001), and Appendix 6 (Joint Refugee Mechanism Paper, Draft 2, Taba, 25 January 2001).

32 Minutes from Berlin Meetings Post Annapolis, 24 June 2008, http://www.ajtransparency.com/files/2797.pdf (Berlin Minutes).

33 These included, among others, Harvard University, the ‘Ottawa Process’ sponsored by the Canadian government in the 1990s, the Economic Cooperation Foundation, the Minster Lovell series of workshops organised by Chatham House in the UK, the Aix Group, and the Geneva Initiative.

34 For a summary of some of this, see Dumper, Michael (ed), Palestinian Refugee Repatriation: Global Perspectives (Routledge 2006); Dumper, Michael, The Future for Palestinian Refugees: Toward Equity and Peace (Lynne Rienner 2007); Arnon, Arie and Bamya, Saeb (eds), Economic Dimensions of a Two State Agreement between Israel and Palestine (Aix Group 2007); Brynen, Rex and El-Rifai, Roula (eds), Palestinian Refugees: Challenges of Repatriation and Development (IB Tauris 2007); Arnon, Arie and Bamya, Saeb (eds), Economic Dimensions of a Two State Agreement between Israel and Palestine, Vol II: Supplementary Papers (Aix Group 2010); Brynen and El-Rifai (eds) (n 8); Brynen, Rex and El-Rifai, Roula (eds), The Palestinian Refugee Problem: The Search for a Resolution (Pluto Press 2014).

35 Chatham House, ‘Israeli Perspectives on the Palestinian Refugee Issue’, March 2014, https://www.chathamhouse.org/event/israeli-perspectives-palestinian-refugee-issue. This point has also been made to the author by both senior Israeli and US officials.

36 Fischbach (n 20) 129.

37 UNRWA, ‘In Figures’, 1 January 2016, https://www.unrwa.org/sites/default/files/content/resources/unrwa_in_figures_2016.pdf. The UNRWA registers refugees for the purposes of service eligibility, and not to establish any kind of legal status. It also only registers refugees in its areas of operation (West Bank, Gaza, Jordan, Syria and Lebanon), so the global number is likely to be higher.

38 Heike Niebergall and Norbert Wühler, ‘Implementation of an Agreed Solution for Palestinian Refugee Claims: Learning from the Experience of Other Claims Mechanisms’ in Brynen and El-Rifai (n 8) 177, 193–97.

39 Ghabra, Shafiq, ‘Palestinians in Kuwait: The Family and the Politics of Survival’ (1988) 17(2) Journal of Palestine Studies 62, 66.

40 ‘Israel, Private Response to Palestinian Refugee Paper of 22 January, Taba, 23 January 2001 (Draft 2)’, art 10, in Brynen (n 7) 18.

41 Geneva Initiative, Annex 7: Solution to the Problem of the 1948 Palestinian Refugees (2009).

42 Khalil Shikaki, ‘Managing Refugee Expectations’ in Brynen and El-Rifai (2014) (n 34) Table 10.12.

43 ‘Joint Refugee Mechanism Paper (Draft 2), Taba, 25 January 2001’, arts 19–20, in Brynen (n 7) 19.

44 According to Palestinian minutes of a trilateral meeting with Israeli and Palestinian negotiators in Berlin on 24 June 2008, US Secretary of State Condoleezza Rice raised concern about the precedent that would be set if countries were to be compensated retroactively for hosting refugees: Berlin Minutes (n 32).

45 For a comprehensive overview, see Fischbach (n 20).

46 ibid 276–77.

47 Here I have used historical data on US inflation rates to make the adjustment.

48 Thierry J Senechal, ‘Valuation of Palestinian Refugee Losses’, PLO Negotiations Support Unit (NSU), 18 June 2008, 17–40, http://www.ajtransparency.com/files/2767.pdf. See also Thierry J Senechal and Leila Hilal, ‘The Value of 1948 Palestinian Refugee Material Damages: An Estimate Based on International Standards’ in Brynen and El-Rifai (n 8) 132.

49 Israeli Draft Framework Agreement on Permanent Status (2000), arts 77–90, in Brynen (n 7) 13; ‘Israel's Private Response to Palestinian Refugee Paper of 22 January’ (n 40) art 10e. See also ‘Current P/I Positions Reflecting Discussion up to May 23, 2008’, leaked from the archive of the PLO NSU to al-Jazeera, http://www.ajtransparency.com/files/2627.pdf.

50 ‘Palestinian Position on Refugees, Taba, 22 January 2001’, art 35, in Brynen (n 7) 16. The Palestinian first preference, of course, was that of restitution.

51 Based on multiple conversations with US and European officials over the period 2000–14.

52 Palestinians, of course, would further note that settlement activity is considered illegal under international law, while Palestinian refugees are themselves the victims of forced displacement, making the difference in compensation levels even more difficult to swallow.

53 Chatham House, ‘The Palestinian Refugee Issue: Compensation and Implementation Mechanisms’, 18–19 December 2013, 9, https://www.chathamhouse.org/sites/files/chathamhouse/field/field_document/20131218PalestinianRefugeesCompensationImplementation.pdf (The Palestinian Refugee Issue). For an assessment of this same meeting, see ‘Compensation Complications’, PRRN – The Blog of Palestinian Refugee ResearchNet, 23 December 2013, https://prrnblog.wordpress.com/2013/12/23/compensation-complications.

54 UNSC Res 692(1991), 20 May 1991, UN Doc S/RES/692(1991), Preamble.

55 United Nations Compensation Commission (UNCC), ‘The Claims’, http://www.uncc.ch/claims.

56 Chatham House (n 53).

57 For a much more detailed discussion of this issue see Niebergall and Wühler (n 38).

58 For a summary of some of this research, see Rachelle Alterman, ‘Land and Housing Strategies for Immigrant Absorption: Lessons from the Israeli Experience’ in Brynen and El-Rifai (2007) (n 34) 163; Nick Krafft and Ann Elwan, ‘Infrastructure Scenarios for Refugees and Displaced Persons’ in Brynen and El-Rifai (2007) (n 34) 132; Rex Brynen, ‘Refugees, Repatriation, and Development: Some Lessons from Recent Work’ in Brynen and El-Rifai (2007) (n 34) 102.

59 Niebergall and Wühler (n 38) 177.

60 See, eg, ‘Palestinian Position on Refugees, Taba, 22 January 2001’, art 9, in Brynen (n 7) 15.

61 ‘Israel's Private Response to Palestinian Refugee Paper of 22 January, Taba, 23 January 2001’, art 16, in Brynen (n 7) 18.

62 ‘Talking Points for Meeting with Tal Becker regarding the Recognition of Refugees’ Rights’, memo from the PLO NSU to Saeb Erekat, 26 March 2008, 1, http://www.ajtransparency.com/files/2370.pdf.

63 Michael Molloy and others, ‘Intangible Needs, Moral Acknowledgement and the Palestinian Refugee Issue’ in Brynen and El-Rifai (2014) (n 34) 189.

64 Jeremy Ginges and others, ‘Sacred Bounds on Rational Resolution of Violent Political Conflict’ (2007) 104 Proceedings of the National Academy of Sciences 7357; Scott Atran and Robert Axelrod, ‘Reframing Sacred Values’ (2008) 24 Negotiation Journal 221.

65 ‘The Precondition of Recognizing Israel as a “Jewish State”’, Memo to Palestinian Drafting Team from the NSU, 13 November 2017, http://www.ajtransparency.com/files/2234.pdf.

66 The Peace Index, ‘The Peace Index: January 2014’, 8 April 2014, http://www.peaceindex.org/indexMonthEng.aspx?mark1=&mark2=&num=273.

67 Fischbach, Michael R, Jewish Property Claims Against Arab Countries (Columbia University Press 2008) 177.

68 ‘Israel's Private Response to Palestinian Refugee Paper of 22 January, Taba, 23 January 2001’, art 15, in Brynen (n 7) 18.

69 Zamkanei, Shayna, ‘Justice for Jews from Arab Countries and the Rebranding of the Jewish Refugee’ (2016) 48 International Journal of Middle East Studies 511.

70 The Law for Preservation of the Rights to Compensation of Jewish Refugees from Arab Countries and Iran, 2010 (Israel), art 3.

71 ‘The Palestinian-Israeli Pulse’ (n 28) Question IV11.8.

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