INDIVIDUAL RIGHTS

AND THE

PALESTINIAN QUESTION:

AN INTERNATIONAL LAW PERSPECTIVE

Report of a Workshop held in Oxford on 7-8 October 2000 Organized by the Royal Institute of International Affairs &

The Centre for Lebanese Studies

October 2001

RAED M. FATHALLAH Lincoln College, University of Oxford

TABLE OF CONTENTS PAGE I. INDIVIDUAL RIGHTS AND THE PALESTINIAN QUESTION 1

1. Historical Background 1 2. The United Nations and Palestinian Refugees 2.1 The United Nations Conciliation Commission for Palestine 3 2.2 United Nations Relief and Works Agency for Palestinian Refugees 5 3. Palestinian Refugees in the Context of Peace Negotiations 9 4. The Role of International Law in Reaching a Durable Solution 12 II. LEGAL FRAMEWORK 14

Section A – Palestinian Refugees under International Law 15 1. International Refugee Law 15 1.1 1951 Convention Relating to the Status of Refugees 15 1.2 Special Regime for Palestinian Refugees 16 1.3 Defining Palestinian Refugees in the Peace Process 21 2. International Law Relating to Statelessness (Nationality) 22 3. International Humanitarian Law 26

Section B – The Status of Palestinian Refugees in the Host States 29 Section C – Individual Rights under International Human Rights Law 33 1. The Right of Return 33 1.1 The Right of Return under International Law 33 1.2 Palestinian Right of Return under UNGA Resolution 194 35 1.3 The Right of Return in Peace Negotiations 43 2. The Right to Restitution and Compensation 43

2.1 The Right to Restitution and Compensation in the Context of the Palestinian Question 43

2.2 Treatment of Palestinian Property under Israeli Law 44 2.3 Compensation for Human Rights Violations under International Law 45 2.3.1 Compensation under Treaty Law 45 2.3.2 The Law of State Responsibility 47 2.3.3 Scope of Compensation 49 2.3.4 The Right to Compensation in Peace Negotiations 50 III. INTERNATIONAL MECHANISMS AND IMPLEMENTATION 51 1. Individual Rights Claims in International Law 51 2. State Practice in Implementing Individuals’ Rights 52 2.1 Implementation of the Right of Return/Repatriation 52 2.2 Implementation of the Right to Compensation and Restitution 56 3. Available Legal Mechanisms 59 3.1 The International Court of Justice 59 3.2 International Claims Commissions/Tribunals 61 3.2.1 Iran-United States Claims Tribunals 61 3.2.2 United Nations Compensation Commission 62 3.3 Lump Sum Agreements 64 IV. CONCLUDING REMARKS: PARAMETERS FOR A FUTURE 66

PALESTINIAN-ISRAELI AGREEMENT

LIST OF ANNEXES 71

PREFACE

Individual Rights and the Palestinian Question was the title of a two-day meeting held on 7-8 October 2000 at Woodstock, Oxford. The meeting was organized jointly by the Royal Institute of International Affairs and the Centre for Lebanese Studies, and was funded by the International Development Research Centre of Canada. The purpose of the workshop was to discuss individual rights issues pertaining to Palestinian refugees in the context of the Middle East Peace Process. This workshop followed an exploratory project held in Minster Lovell on 4-5 March 2000 and a scenario building exercise held in Oxford in July 2000. Participants included people with expertise on the issue of Palestinian refugees as well as leading experts in refugee and international law.

The workshop offered an opportunity to review the progress of the peace process, in particular with regard to the refugee issue and the question of individual rights as it could be treated by a potential permanent status agreement as well as the post-peace implications on such rights. The workshop addressed the current legal framework governing the status of refugees and the international law principles as they apply to the present issue. In addition, potential legal mechanisms were explored in order to assess what institutions are available or should be created to deal with the issue of refugees. The role of international organizations and the international community was also discussed and comparisons with other cases were drawn in order to offer recommendations to the case of Palestinian refugees. One of the main assumptions that led to the organization of the workshop is the inalienability of individual rights under international law regardless of a compromise over these rights in a future peace treaty. The main implication lies in the availability of a legal framework and mechanisms for the pursuit of individual rights. Hence, this paper is inspired from the issues discussed at the workshop. The suggestions and recommendations of the participants have offered the author valuable insight into the complex issues that would ensue in future final status negotiations. On this basis, the present paper analyses the individual rights of the Palestinian people under international law and attempts to shed light on the role of international law in ensuring a durable and just peace. The author wishes to express his gratitude to several people for sharing their expertise and for their valuable contribution and advice namely, John Quigley, Susan Akram, Vera-Gowlland-Debbas, Lex Takkenberg, Agnes Hurwitz, Rosemary Hollis and Nadim Shehadi. It should be noted that the ideas represented in this paper are those of the author and not those of any of the participants or sponsoring organizations.

This paper is divided in four parts. Part I begins by offering an overview of the historical events surrounding the Palestinian refugee problem and the role of the United Nations in dealing with the issue. This section also examines the treatment of Palestinian refugees and their individual rights in the current peace process and the potential role of international law in reaching a durable solution to the problem. Part II examines the treatment of Palestinian refugees under international law from the perspective of international refugee, statelessness and humanitarian law (Section A), in addition to their status in

host States (Section B). Moreover, in Section C, Palestinian individual rights are explored under international human rights law. Both the right of return and the right to compensation and restitution are examined under the governing principles of international law and United Nations Resolutions. Part III assesses the implementation of such individual rights through State practice and examines the available legal mechanisms that could offer a potential avenue for the implementation of Palestinian rights. Finally, Part IV of the paper concludes by identifying parameters for a future Palestinian-Israeli Agreement that are deemed crucial for the implementation of individual rights and the realization of a durable and fair peace.

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I. INDIVIDUAL RIGHTS AND THE PALESTINE QUESTION 1. Historical Background

The writing of the history of the Arab-Israeli conflict has triggered major debate among Middle East scholars. While both parties to the conflict have made conflicting historic claims to the land of Palestine, the tragic repercussions these events have had on Palestinian refugees speak for themselves. Although it is not within the ambit of this paper to offer a detailed historical analysis of the events, it is important to briefly examine them in order to understand the historical background of the birth of the Palestinian refugee problem.

Until 1917, Palestine was part of the Ottoman Empire. During the First World War, Britain made incompatible commitments to both Arab and Jewish Peoples: to Arabs, through promises of help in achieving independence made in exchange for their support in the war; and to Jewish peoples, through the Balfour Declaration, in which the British promised to “view with favour the establishment in Palestine of a national home for the Jewish people.”1 While it was attempting to retain control over Palestine, Britain had no clear plan to reconcile these conflicting promises. This lead to civil unrest and clashes amongst the local populations. At the time of the establishment of the British mandate, there were 56,000 Jews living in Palestine, out of a total population of 680,000. In 1937, the British Government’s Peel Commission suggested partitioning Palestine into one Jewish and one Arab State, whilst keeping it under British mandate. This was accepted as a basis for negotiations by the Zionists, but rejected outright by the Arabs. By the beginning of the Second World War, fighting was taking place among Jews, Arabs and British security forces. In 1947, in light of the escalating hostilities, the Palestine situation was handed over to the United Nations. The UN established a Special Committee on Palestine (UNSCOP) to investigate and propose a solution for the crisis. It recommended the partition of Palestine into a Jewish and an Arab state with an international enclave comprising Jerusalem and Bethlehem. The UN General Assembly ultimately endorsed this partition plan in Resolution 181.2 Under the term of this resolution, the Jewish State would comprise 57 per cent of Palestine (or 14,500 square kilometers) and would include a population of about 500,000 Jews and 400,000 Arabs, while the Arab State would comprise 43 per cent of Palestine (or 11,800 square kilometers) and would include a population of around 700,000 Arabs and 10,000 Jews.3 While the Arabs rejected the plan outright, the Zionist leaders accepted it and made the Proclamation of Independence establishing the State of Israel.4 On

1 The Balfour Declaration 1917, reprinted in Walter Laqueur and Barry Rubin (eds.), The Israel-Arab Reader, A Documentary History of the Middle East Conflict, [Hereinafter “the Israel-Arab Reader”) at 16 (5th ed., 1995). 2 Palestine Partition Plan, UN General Assembly Resolution 181(II), UN Doc. A/519, at 131 (November 29, 1947) (reproduced in Annex A). 3 Geoffrey Watson, The Oslo Accords, International Law and the Israeli-Palestinian Agreements, 20 (Oxford, 2000). 4 Israeli Proclamation of Independence, 14 May 1948 reprinted in The Israel-Arab Reader supra note 1 at 107.

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May 15, 1948, the day after the last British troops had left, full-scale war broke out when a number of Arab States joined the conflict. This lead to the UN to propose the Armistice Agreement which divided historic Palestine into three parts. Israel was in control of most of the territory of historic Palestine, Egypt controlled the Gaza Strip and Jordan controlled the West Bank. This lead to the first exodus, where around 750,000 Palestinians fled their homes to refugee camps in the West Bank, the Gaza Strip, Jordan, Lebanon and Syria. This constituted nearly half of the Arab population living in Palestine during that time.5The farms and homes of the expelled Arabs were immediately occupied by newly arriving Jewish immigrants and Holocaust survivors who were living in refugee camps in Europe.

The refugee situation worsened with the successful Israeli offensives of October and December 1948 to January 1949, which resulted in the expulsion and flight of a further 150,000-200,000 Palestinians, most of them to the Gaza area. About 150,000 of the Arab population of pre-1948 Palestine remained behind and became Israeli citizens.

Despite the controversy surrounding the reason for the massive displacement of Palestinians, it is now widely recognized that Israel shares the responsibility for the flight. Several accounts by Israeli ‘new historians’ have challenged Israel’s official position that Arabs fled voluntarily.6 There was also evidence that “Transfer Committees” were set up during the 1948 war in coordination with the Israeli authorities, with the purpose of facilitating the exodus.7 The UN responded to the refugee crisis by setting up the United Nations Relief and Works Agency (“UNRWA”) for the Palestinian refugees and established temporary refugee camps, many of which exist to this day. Moreover, on 14 December 1948, the UN General Assembly adopted Resolution 194 asserting the rights of Palestinians to return to their homes and to be compensated for their losses (this Resolution is analyzed further below).8

As a result of the 1967 Six Day War, Israel occupied the West Bank (including East Jerusalem) from Jordan, the Gaza Strip (together with the Sinai Peninsula) from Egypt, and the Golan Heights from Syria. The UN condemned this action by adopting Security Council Resolution 242 calling for the “withdrawal of Israel armed forces from territories occupied in the recent conflict.”9 More than 115,000 people were displaced in Syria following the occupation of the Golan Heights (including 16,000 Palestinian refugees

5 The number of refugees, and especially the cause of their flight, is a matter of intense disagreement to this day. See Watson supra note 3 at 280, footnote 42. 6 See generally, Benny Morris. The Birth of the Palestinian Refugee Problem 1947-49 (1987) and Righteous Victims: A History of the Zionist-Arab Conflict, 1881-1999 (1999); Avi Shlaim, The Iron Wall: Israel and the Arab World Since 1948 (1999); Ilan Pappe; The Israel/Palestine Question, Rewriting Histories (1999); Nur Masalha, Imperial Israel and the Palestinians, The Politics of Expansion, 2000; Ghada Karmi and Eugen Cotran (ed.), The Palestinian Exodus 1948-1998 (1999). 7 Nur Masalha, Expulsion of the Palestinians: The Concept of ‘Transfer’ in Zionist Political Thought, 1882-1948, 180 (1992). 8 G.A. Res. 194(III)(6), U.N. Doc. A/810, at 21, (1948).[hereinafter “Resolution 194”] (reproduced in Annex A). 9 Security Council Resolution 242, para.1. UN Doc. S/242, 22 Nov. 1967, reprinted in the Israel-Arab Reader, supra note 1 at 217 (reproduced in Annex A).

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who were present there at the time). About 162,500 refugees from the West Bank and around 15,000 refugees from the Gaza Strip fled to Jordan, along with 240,000 non-refugee former residents of the West Bank and the Gaza Strip. The 1967 War was followed by the October 1973 War, known also as the Yom Kippur War, in which Syrian and Egyptian forces simultaneously engaged in an attack on Israel, which was repelled by Israel. The 1973 War led to the adoption of Security Council Resolution 338, which confirms the terms of Resolution 242.10 On 26 March 1979, Egypt and Israel signed a peace treaty in Camp David (the “Camp David Peace Treaty”) which provided, among other things, for the withdrawal of Israel troops from the Sinai.11 It was the first peace treaty concluded between Israel and any of its Arab neighbors. This treaty triggered strong opposition among Arab States. The civil war in Lebanon aggravated the situation of Palestinian refugees there, both because of the hostilities coming from Lebanese militias and the continuous Israeli raids aiming at hitting PLO targets. Their suffering reached its peak with the Israeli Invasion of Lebanon in 1982. As a result of the Lebanese war, many Palestinian refugees became internally displaced and around 100,000 are estimated to have left the country. To this day, there are no exact figures of Palestinian refugees. According to Takkenberg, the number of refugees registered with UNRWA had reached 3.2 million, out of a total number of Palestinians worldwide of approximately 6.9 million (1995 estimates). (See table, reproduced in Annex).12 Today, Palestinian refugees continue to be deprived of their fundamental legal, social and economic rights. Their treatment in host States is continuously affected by regional political events and the attitude of the host States vis-à-vis the PLO (for example, the expulsion of 400,000 Palestinians from Kuwait during the 1990 Gulf war). More than half a century later, the Palestinian refugee problem remains unsolved and it is likely to be the most contentious issue in future settlement negotiations.

2. The United Nations and Palestinian Refugees

2.1 The United Nations Conciliation Commission for Palestine

On 11 December 1948, the General Assembly passed Resolution 194(III) establishing the UNCCP for the primary purpose of resolving the Palestinian refugee crisis and to “take steps to assist the Governments and authorities concerned to achieve a final settlement of all questions outstanding between them,”13 and, most significantly, to ensure the repatriation and compensation of these refugees. Paragraph 11 of Resolution 194(III) provides:

10 UN Security Council Resolution 338, 22 Oct. 1973, reprinted in the Israel-Arab Reader, supra note 1 at 310 (reproduced in Annex A). 11 Treaty of Peace Between the Arab Republic of Egypt and the State of Israel, 26 Mar. 1979, reprinted in the Israel-Arab Reader, supra note 1 at 409 [reproduced in Annex]. 12 Lex Takkenberg, The Status of Palestinian Refugees in International Law 12-18 (1998). 13 GA Resolution 194.

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The General Assembly, [h]aving considered further the situation in Palestine,… [r]esolves that the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property, which, under the principles of international law, or in equity, should be made good by the Governments or authorities responsible.

Paragraph -- Resolution 194(III) also instructed the UNCCP to:

…facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation and to maintain close relations with the Director of the Untied Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations.

The UNCCP was, therefore, entrusted with the essential protection functions normally assigned to the United Nations High Commissioner Refugees (“UNHCR”), but with a very specific mandate concerning the just resolution of the Palestinian refugee problem (in contrast with UNRWA’s mission, which is limited to merely an assistance function). Early in the process, the UNCCP had major difficulties in its efforts to advance the implementation of paragraph 11 of Resolution 194. It was impossible to reconcile the positions of the parties. Arab States and Palestinians demanded full repatriation, whilst Israel refused any repatriation of the refugees.14 The prospects of the failure of the repatriation efforts made the UN consider the alternative of settling refugees in Arab countries. Hence, on 23 August 1949, UNCCP established the Economic Survey Mission (“ESM”) to study the economic feasibility of such an alternative,15 and to make recommendations to UNCCP for an integrated program having the following purposes:

to enable the Governments concerned to further such measures and development programs as are required to overcome the economic dislocations created by the hostilities; to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation pursuant to the provisions of paragraph 11 of the General Assembly Resolution 194(III), in order to reintegrate the refugees into the economic life of the area on a self-sustaining basis within a minimum period of time; and to promote economic conditions

14 See Takkenberg supra note 12 at 25. 15 UNGA res. 194(III), para. 12, authorized UNCCP to appoint ‘such subsidiary bodies…as it may find necessary for the effective discharge of its functions and responsibilities.’ See Takkenberg supra note 12 at 25

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conductive to the maintenance of peace and stability in the area.16

After conducting an assessment of the refugee problem, the ESM recommended the establishment of an agency to direct a program of public works, calculated to improve the productivity of the area and to take over relief efforts. This led the United Nations General Assembly to establish UNRWA on 8 December 1949.

By 1952, UNCCP had ceased all protection functions towards the refugees, and its operations have been limited since then to the collection of records and documentation pertaining to refugee properties in Israel. In its fifth session in 1950, the General Assembly passed Resolution 394(V) concerning the functions of the UNCCP. Noting ‘that the repatriation, resettlement, economic and social rehabilitation of the refugees and the payment of compensation have not been effected,’17 it states that the UNCCP should ‘(a) make such arrangements as it may consider necessary for the assessment and payment of compensation in pursuance of paragraph 11 of Resolution 194(III); (b) work out such arrangements as may be practical for the implementation of the other objectives of paragraph 11; and, (c) continue consultations with the parties concerned regarding measures for the protection of the rights, property and interests of the refugees.’18

This acknowledgment by the UN of the failure of the UNCCP to fulfill its protection mandate, and accordingly the refocus of its task on documenting and collecting property records, serves as evidence that Palestinians were no longer receiving the necessary protection guaranteed under Article 1 of the 1951 Refugee Convention (as discussed later in Section A-1.3)

2.1 United Nations Relief and Works Agency for Palestinian Refugees

(UNRWA)

On 8 December 1949, the United Nations General Assembly established UNRWA, with its mission set out in Resolution 302(IV), to:

carry out in collaboration with local governments the direct relief and works programs as recommended by the Economic Survey Mission; and, consult with the interested Near Eastern Governments concerning measures to be taken by them preparatory to the time when international assistance and relief and works projects is no longer available.

The international community recognized that the urgency of the problem required some temporary emergency relief to those de facto refugees that qualified under UNRWA’s working definition (examined in section 1). This

16 Ibid, citing UNCCP, ‘Historical Survey of Efforts of the United Nations Conciliation Commission for Palestine to Secure the Implementation of Paragraph 11 of General Assembly Resolution 194(III)’, Working paper prepared by the Secretariat, New York, 1961, UN doc. A/AC.25/W.82/Rev.1, 15. 17 General Assembly Resolution 394(V), U.N. GAOR, 5th Sess., Supp. No. 20,at 24, U.N.Doc A/1775 (1950). 18 Ibid.

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was intended to supplement, not supplant, the protective efforts that were already established whilst awaiting a final solution on repatriation or resettlement.19

It is clear, from the recommendations to the UN and the UN Resolutions concerning the Palestinians when the UNCCP, UNHCR and UNRWA were created, that the consensus of the international community was that the resolution of the Palestinian problem was dependent on the realization of the refugees’ right of return to their homes and to appropriate compensation for their losses, in line with international law principles and in accordance with their wishes.20

The language of Resolution 302(IV) affirms that the interim relief provided for by UNRWA was not intended to prejudice the efforts of the international community to negotiate a long-term solution that would include both repatriation and compensation. The first provision of Resolution 302(IV) reads:

The General Assembly, [r]ecalling its resolutions 212(III) of 19 November 1948 and 194(III) of 11 December 1948, affirming in particular the provisions of paragraph 11 of the latter resolution, …[r]equests the Secretary-General to appoint the Director of the United Nations Relief and Works Agency for Palestinian Refugees in the Near East…”21

UNRWA has adopted its own working definition for the provision of assistance to Palestinian refugees. This definition has been subject to several amendments. In 1993, UNRWA issued new eligibility rules whereby ‘Palestine Refuge’ is defined as follows:

Palestine refugee shall mean any person whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948 and who lost both home and means of livelihood as a result of the 1948 conflict. 22

When UNRWA was created, it was mandated to provide assistance to ‘Palestine refugees’, as is also reflected in the name of the organization itself. The choice of the adjective ‘Palestine’ was deliberate. The organization was not aimed exclusively at assisting the main victims of the 1948 war, but also aimed to help others who found themselves in Palestine at the time of the conflict and who were in need of assistance (such as Jewish internally displaced persons and third country nationals, although these parties are not the subject of our study). The term Palestine refers to that part of Palestine that is not Israel.23

19 Susan M. Akram & Guy Goodwin-Gill, Brief Amicus Curiae submitted to the United States Department of Justice, Executive Office for Immigration Review) found on www.badil.org/Publications/Other/Refugees/amicus.pdf, at 7 (2001). 20 See Id. at 8. 21 General Assembly Resolution 302(IV), U.N. Doc. A/1251 at 23 (1949). 22 Takkenberg supra note 12 at 77 referring to Consolidated Registration Instructions, 1 Jan. 1993, para. 2.13. 23 Id. at 78, Consolidated Registration Instructions, para 4.1.2.1.4.1.

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UNRWA’s registration instructions also address the issue of how refugee status is passed from generation to generation. The following descendants are eligible to obtain UNRWA’s assistance:

The descendants [born after 14 May 1948] of fathers [of Palestine refugees]; the descendants [born after 14 May 1948] of fathers registered with UNRWA as “Gaza Poor” in Gaza, “Jerusalem Poor” in the West Bank, “Frontier Villagers” in the West Bank and in Jordan and “Members of nomadic and semi-nomadic tribes” [emphasis added].24

Clearly, the mentioned rules are discriminatory on the basis of gender. Children of a registered refugee woman married to a non-registered man may not be registered as ‘Palestine refugees’ and thus cannot benefit from the UNRWA’s assistance. Meanwhile, registered men who marry non-registered women are entitled to register their children. UNRWA officials took into account the family as a basic unit of registration, focusing on the man as the head of the family taking into account social, cultural and religious considerations. Nevertheless, as will be revisited in this paper, international human rights considerations will require negotiators to remedy such gender discrimination and reflect the current social realities in any framework agreed upon in final status arrangements.

Another issue pertains to the 1967 displaced people. In its Resolution 2252 dealing with the effects of the 1967 war, the United Nations General Assembly commended the ‘Commissioner General of [UNRWA] for his efforts to continue the activities of the Agency in the present situation with respect to all persons coming within his mandate.’25 In addition, the General Assembly endorsed:

the efforts of the United Nations Relief and Works Agency for Palestine Refugees in the Near East to provide humanitarian assistance, as far as practicable, on an emergency basis and as a temporary measure, to other persons in the area who are at present displaced and are in serious need of immediate assistance as a result of the recent hostilities [emphasis added].26

Thus, the General Assembly authorized UNRWA to provide assistance to Palestinians not previously coming within its mandate. Although the resolution stipulated that assistance was to be given only ‘on an emergency basis and as a temporary measure,’ the General Assembly has during subsequent years passed resolutions repeating the above formula and thereby de facto including the persons concerned within the Agency’s mandate. Nevertheless, UNRWA has never amended its working definition of a Palestine refugee to include the 1967 displaced people.

It is clear that UNRWA was entrusted with a narrow assistance role that is significantly different from the protection provided under the UNHCR Statute and the 1951 Refugee Convention. UNRWA’s role is limited to the assistance of Palestine refugees by providing their basic daily needs (food, shelter and

24 Ibid., Consolidated Registration Instructions, para 3.1.5. 25 Takkenberg supra note 12 at 82; UNGA res. 2252 (ES-V), 4 July 1967 26 Ibid.

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clothing). Thus, it is not given the authority or mandate to provide refugees with the legal protection otherwise provided by UNHCR and the 1951 Convention. This was clearly due to the intention of the United Nations to entrust the protection role to a separate agency (i.e. UNCCP) created for the sole purpose of resolving the Palestinian refugee crisis.

The drawback of the UNRWA operational definition is that Palestinian refuges include categories of displaced individuals who fall outside UNRWA’s responsibility and definition. For example, Elia Zreik lists some of these categories:

“Palestinian refugees from the 1948 war who ended up in places other than UNRWA’s areas of operations, i.e. Egypt or other North African countries, Iraq, and the Gulf region; Internally displaced Palestinians, who remained in the area that became Israel and were originally acknowledged as UNRWA’s responsibility but who were subsequently excluded from the assumption that their condition would be addressed by Israel; Residents from Gaza and the West Bank (including East Jerusalem) and their descendants, who were displaced for the first time in the 1967 war;

Individuals who, after 1967, were deported by the Israeli occupation authorities from the West Bank and Gaza;

So-called “late comers”, i.e. those who left the occupied territories to study, visit relatives, work, get married, etc., whose Israeli-issued residency permits expired and who were prevented by Israel from returning to their homes;

Palestinians who were outside British Mandatory Palestine when the 1948 war broke out, or those who were outside the territories when the 1967 was broke out and who were prevented from returning by Israel; and Well-to-do Palestinians who sought refuge in 1948 but whose pride prevented them from registering with UNRWA.”27

As adequately put by Takkenberg, the UNRWA’s definition was elaborated solely “to fulfill a condition, not to satisfy a theory”.28 Its purpose lies solely in the determination of eligibility for UNRWA assistance. Its scope does not necessarily coincide with the recognized definition of refugee under international refugee law. Accordingly, it is only normal that it covers only part of the Palestinian refugees who are entitled to protection under international refugee or ‘to return to their homes’ under Resolution 194(III). For the purpose of defining Palestinian individual rights, UNRWA’s working definition could be instructive in determining eligibility, though it should not be

27 Elia Zreik, Palestinian Refugees and the Peace Process, A Final Status Paper, Institute for Palestine Studies, 9 (1996) 28 Takkenberg, supra note 12 at 83.

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considered exhaustive or reflective of international law for that purpose as examined in sub-section A(1) below.

3. Palestinian Refugees in the Context of Peace Negotiations

The current Middle East Peace Process started with the Conference convened in Madrid by the United States and USSR in the fall of 1991. The Madrid Conference set up a framework for peace negotiations with two separate, yet parallel, negotiating tracks - bilateral and multilateral. The bilateral track consisted of separate sets of negotiations between Israel and its neighbors, Syria, Lebanon, Jordan and the Palestinians. While the talks with the three Arab States were aimed at achieving peace treaties, the negotiations between Israel and the Palestinians were based on a two-phased process. In the first phase, the talks were to focus on achieving agreement regarding a five-year interim self-government arrangement. In the second stage, negotiations were to concentrate on so-called permanent status issues.

In 1993, as a result of secret meetings in Oslo, Norway, Israel and the PLO signed the Declaration of Principles on Interim Self-Government Arrangements (the “Declaration of Principles” also known as “Oslo I”). The Declaration of Principles begins with a landmark preamble providing that the parties “recognize theirs mutual legitimate and political rights” and states that the parties’ is goal to “achieve a just, lasting and comprehensive peace settlement and historic reconciliation through the agreed political process.” 29 Article V states that the permanent status negotiations ‘shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and co-operation with other neighbors, and other issues of common interest.’30 The Declaration of Principles postponed the issue of refugees until final status negotiations. However, it allows for additional discussion of the refugee issue at two levels. Firstly, the 1948 refugees are supposed to be discussed during the bilateral status talks between Palestinians and Israelis. Secondly, the 1967 refugees, or so called displaced persons, would be discussed through a Quadripartite Committee composed of Palestinians, Egyptians, Israelis and Jordanians. Although not explicitly stated, the term ‘refugees’ in Article V refers only to the 1948 refugees. This can be inferred from the fact that the Declaration of Principles contains a separate provision dealing with the 1967 displaced persons:

Liaison and Cooperation with Jordan and Egypt: The two parties will invite the Government of Jordan and Egypt to participate in establishing further liaison and cooperation arrangements between the Government of Israel and the Palestinian representatives, on the one

29 Declaration of Principles on Interim Self-Government Arrangements, Israel-Palestine Liberation Organization (hereinafter “Declaration of Principles”), 13 Sept. 1993, 32 I.L.M. 1525 (September 13, 1993), also reprinted in the Israel-Arab Reader, supra note 1 at 599 [reproduced in Annex]. 30 Declaration of Principles, supra note 29, Artilce V (emphasis added).

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hand, and the Governments of Jordan and Egypt, on the other hand, to promote Cooperation between them. These arrangements will include the constitution of a Continuing Committee that will decide by agreement on the modalities of admission of person displaced from the West Bank and Gaza Strip in 1967, together with necessary measures to prevent disruption and disorder. Other matters of common concern will be dealt with by this Committee.31

This Continuing (or Quadripartite) Committee had six meetings since May 1995 until the deterioration of the peace process halted its work. There was an attempt to revive its activity in the Sharm el Sheikh Memorandum in 1999.32

On 29 April1994, Israel and the PLO signed the Protocol on Economic Relations, or the ‘Paris Protocol’ that today still forms the basis for economic relations between the parties. 33 In Cairo, on 4 May 1994, the parties signed the Agreement on the Gaza Strip and the Jericho Area (hereinafter the “Gaza-Jericho Agreement” or “Cairo Agreement”), which established the Palestinian Authority, and called for Israel to withdraw from the Gaza Strip and Jericho and to transfer some civil authority to the Palestinians.34 It stated in Article XVI (2) that, “the Continuing Committee shall decide by agreement on the modalities of admission of persons displaced from the West Bank and Gaza Strip in 1967, together with necessary measures to prevent disruption and disorder.”35

The next major step in implementing Oslo I came on 28 September 1995, when the parties met in Washington to sign the Interim Agreement on Implementation of the Declaration of Principles (hereinafter the “1995 Interim Agreement”, also known as “Oslo II”). The Interim Agreement established important organs of Palestinian self-government. This agreement did not proffer anything new concerning refugees and displaced persons. It merely reaffirmed, in Article XXVII paragraph 2, the text of the Declaration of Principles concerning the persons displaced in 1967.

As for the multilateral track, it consists of five working groups dealing with issues of security, refugees, economy, the environment, and water. The main objective of these groups is to exchange technical information while at the same time building mutual confidence among the parties concerned and preparing the ground for the political negotiation on the permanent peace agreement.

The Refugee Working Group was established on the multilateral level with Canada as its gavel holder. It has had several meetings since its first plenary

31 Id. Article XII. 32 Article 1c, The Sharm el Sheikh Memorandum on Implementation Timeline of Outstanding Commitments of Agreements Signed and the Resumption of Permanent Status Negotiations, 4 Sept. 1999 reprinted in Watso, supra note 3 at 385-389. 33 The Paris Protocol was incorporated by reference into the 1994 Gaza-Jericho Agreement, which was later superseded by the 1995 Interim Agreement (see infra). 34 Agreement on the Gaza Strip and the Jericho Area (hereinafter “Gaza-Jericho Agreement”).[, 4 May 1994, 33 ILM 622 (1994) Articles II(1) and III(1), IV &V.[reproduced in Annex]. 35 Gaza-Jericho Agreement, Article XVI, paragraph 2.

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session in Ottawa in 1992. As envisaged by the sponsors, the work of the RWG is basically technical and intended to suggest practical solutions that will feed into future bilateral negotiations36 The RWG has contributed to introducing programs of humanitarian and practical nature: development of social and economic infrastructure (led by the European Union), family reunification projects (France), public health (Italy), databases (Norway), child welfare (Sweden), human resource development (United States) and, more recently, civil and human rights (Switzerland).

The parallel bilateral talks between Israel and Syria, and Lebanon, respectively, have not reached a concrete outcome to this date. Israel and Jordan, however, reached a peace agreement on 26 October 1994.37 Article 8 of the Peace treaty deals with ‘refugees and displaced persons’:

Recognizing the massive human problems caused to both parties by the conflict in the Middle East, as well as the contribution made by them towards the alleviation of human suffering, the Parties will seek to further alleviate those problems arising on a bilateral level;

Recognizing that the above human problems caused by the conflict in the Middle East cannot be fully resolved on the bilateral level, the Parties seek to resolve them in the appropriate forums, in accordance with international law, including the following:

a. In the case of displaced persons, in a quadripartite

committee together with Egypt and the Palestinians; b. In the case of refugee:

i. In the framework of the Multilateral Working

Group on Refugees; ii. In negotiations, in a framework to be agreed,

bilateral or otherwise, in conjunction with and at the same time as the permanent status negotiations to the Territories [that came under Israeli military government control in 1967];

c. through the implementation of agreed United Nations programs and other agreed international economic programs concerning refugees and displaced persons, including assistance to their settlement.

36 For a discussion of the work and progress of the Refugee Working Group see, generally Rex Brynen and Jill Tansley, “The Refugee Working Group of the Middle East Multilateral Peace Negotiations,” 2 Israel-Palestine Journal 4 (Autumn 1995); reprinted on http://arts.mcgill.ca/mepp/PRRN; DFAIT, Introduction on the Refugee Working Group, http://www.dfait.maeci.gc.ca/peaceprocess/rwg and Zureik, Palestinian Refugees and the Peace Process, supra note 27 at 11-12; 37 Treaty of Peace between the Hashemite Kingdom of Jordan and the state of Israel, singed at the Arava border crossing between the two countries, 26 Oct. 1994, 34 ILM 43 (1995).

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Clearly, the current peace process has failed to grant individual rights their fair share of attention. All interim agreements and declarations signed by the parties to the conflict have failed to address the issue thus far. The framework of the current Middle East peace process is anchored in UN Security Council Resolutions 242 and 338, adopted following the 1967 and 1973 Arab-Israel wars, respectively. Both resolutions fall short of recognizing any Palestinian individual rights such as return and compensation. The fate of the Palestinian individual rights is particularly handicapped by the absence of any direct reference to the General Assembly Resolution 194 (III) of 11 December 1948, clearly stipulating such rights and repeatedly confirmed by the United Nations as the legal basis for a just solution of the Palestine question. These shortcomings will be addressed later in this paper.

4. The Role of International Law in Reaching a Durable Solution

The success and viability of a final status agreement will depend on its conformance with recognized norms of international law. While no practical solution can remedy the prejudice suffered by the Palestinian people, the international community cannot, and should not, acquiesce, or at best disregard, the continuing violation of the fundamental rights of Palestinians. This paper will show that general international law does provide parameters within which negotiations may proceed, and in which a final status agreement can find its basis. Although political considerations will determine the outcome of negotiations, law can have a great influence by providing a common language for negotiation and by setting limits for the parties in its recognized principles. It is important to realize that the practice of international law is intrinsically bound up with diplomacy, politics and the conduct of foreign relations. Thus, non-legal factors will determine the course and result of negotiations. First, the respective bargaining powers of the parties will significantly determine the outcome, as the stronger party seeks to obtain concessions from the weaker party, even to the detriment of its legally protected interests. Second, governments may decide to forfeit the legality of a settlement in favor of self-interest and expediency. This could result in an unbalanced agreement that will violate the rights of one party and contravene fundamental rules of international law. Such an agreement would be likely to be challenged through individual or political action, which will jeopardize the sustainability of any peace framework. This is best evidenced by the reaction of the Palestinian population to the failure of the recent Camp-David talks which lead to the “Second Intifida.” Not surprisingly, the refugee issue was one of the major causes of the deadlock.

Interestingly, while Palestinians and Israelis espouse radically different positions on the various issues, they each attempt to bolster their political position with international law arguments. Also, there is an apparent conflict between a settlement that would be based on the legitimate rights and interests of the parties as embedded in international law on the one hand, and a settlement reached for mere political feasibility on the other.38 In the

38 For an analysis of the role of international law see, Christine Bell, Peace Agreements and Human Rights, Oxford, 2000 and John. Quigley, “The Role of Law in a Palestinian-Israeli Accomodation”, Case Western J. of Int’l. Law (Spring/Summer 1999).

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Israeli-Palestinian scenario, the progress and outcome of negotiations have often been influenced by changes of governments, geo-political considerations and pressure exerted by third parties. This has often marginalized the legal basis surrounding the final status issues (i.e. settlements, Jerusalem, borders and refugees). Principles of international law entrenched in treaties and custom, and clearly reiterated by United Nations resolutions, reaffirm Palestinian rights and favor their implementation. Nevertheless, Israel has consistently denied such rights on both political and historical bases, while disregarding established norms of international law. This paper will focus on the legal aspects of individual rights of Palestinian refugees and displaced persons under the various instruments of international law. It is not the aim of this paper to offer an in depth analysis of the international law principles governing the treatment of individual rights of Palestinians. Nevertheless, addressing the various issues from a legal perspective will shed light on the political implications caused by their complexity. Moreover, this will allow the assessment of the legal parameters that should be followed by negotiators in reaching a political agreement over the final status issues.

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II. LEGAL FRAMEWORK

This section will examine the individual rights of Palestinian refugees and displaced persons under the various aspects of international law such as the right of return, compensation, restitution, and statelessness. This will comprise an analysis of (i) “hard law”, i.e. the legally binding treaties and the generally and consistently recognized customary norms; and, (ii) “soft law”, i.e. the less widely accepted principles deriving from non-binding declarations of international organizations, such as the U.N. General Assembly.

In this perspective, reference will be made to the various sources of international law relevant to the issues at hand, including: international conventions; international custom as evidence of general practice accepted as law; and, international judicial decisions. Reference will also be made to United Nations resolutions as evidence of states’ practice and as a statement of customary international law. It should be noted from the outset that this study is concerned with individual rights of Palestinians (refugees and non-refugees) as the various aspects of international law, not exclusively refugee law, may affect them. The status of Palestinians as refugees has been and will be the dominant aspect of their study within international law. Nevertheless, as seen in this paper, various areas of international law and the remedies provided therein are applicable to refugees and non-refugees alike and should help determine their rights in a future final status settlement.

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SECTION A PALESTINIAN REFUGEES UNDER INTERNATIONAL LAW

1. International Refugee Law

There are no international instruments dealing specifically with Palestinian refugees and thus there is no generally accepted definition of a Palestinian refugee in the legal context. For the purpose of this study, such definition is essential in order to determine the legal entitlements of these individuals. In this perspective, Section 1 will examine the relevant international law instruments relating to status of refugees, as they may be applicable to Palestinian refugees. Section 2 and 3 will respectively examine the treatment of Palestinian refugees under international law on statelessness and international humanitarian law.

1.1 The 1951 Convention Relating to the Status of Refugees The 1951 Convention Relating to the Status of Refugees (hereinafter the “1951 Refugee Convention”) is the principal international instrument governing the rights of refugees and the obligations of States pertaining to their treatment.39 Together with the Protocol relating to the Status of Refugees of 31 January 1967 (hereinafter the “1967 Protocol”), the 1951 Refugee Convention incorporate the most widely accepted definition of refugee. Article 1A provides the general definition of refugee:

[A]ny person who… as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality or being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.40

Persons who are granted de jure refugee status are entitled to certain rights enumerated in the 1951 Refugee Convention. The most significant is the right to non-refoulement, that is, not to be expelled or in any other manner returned (refouler) to the frontiers of the territories where their life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.41 Other rights include: freedom of religion (Article 4); freedom of movement within the country (Article 26); identity papers (Article 27); the issuance of travel documents recognized by signatory States that permit travel outside the territory of asylum and return to the country of issue (Article 28); recognition of the law of personal status (article 12); the provision of administrative assistance (Article 25); the grant of

39 Convention Relating to the Status of Refugees (Hereinafter “1951Refugee Convention”), Article 1D, 189 U.N.T.S. 137 (July 29, 1951). 40 1951 Refugee Convention, Article 1D. 41 Id., Article 1.

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permission to transfer assets (Article 30); exemption from penalties in respect of illegal entry or presence (Article 31); access to courts, own movable or immovable property, basic housing (Article 21); welfare (Article 23); association, employment; public education (Article 22); labor and social security rights (Article 24)..42 In addition to establishing specific rights to refugees pertaining to their status, the 1951 Refugee Convention also prescribes certain standards of treatment of refugees as inhabitants of the country of refuge. The Convention provides, as a minimum standard, that refugees should receive at least “as favorable treatment as accorded to nationals of a foreign country in the same circumstance,” also known as the most-favored-nation treatment. This treatment is accorded to aliens generally in respect of certain rights such as the right to practice religion, right of association, right to housing and the right to engage in wage-earning employment.43 National treatment, i.e. the same treatment as is accorded to nationals, is finally to be accorded in respect of a wide range of issues including: access to courts and legal assistance (article 16); public education (article 22, paragraph 1); artistic rights and industrial property (article 14); rationing (Article 20); public relief (Article 23); labor legislation and social security (Article 24, paragraph 1); and fiscal charges (Article 29).44

Presently, more than 130 nations are party to the 1951 Refugee and its Protocol. Nevertheless, the countries in the Middle East, where large concentrations of Palestinian Refugees reside, for example, in Jordan, Lebanon and Syria, are not bound by the Convention and/or the Protocol.45 Moreover, although Israel is party to both the 1951 Refugee Convention and the Protocol, it is questionable whether these instruments are applicable to the West Bank and the Gaza Strip, where many Palestinian refugees reside.46 Accordingly, Palestinians often find themselves denied their basic rights guaranteed by the 1951 Refugee Convention, such as the right to work, to own property, or access to public education in some of their host countries.

1.2 Special Regime for Palestinian Refugees

Palestinian refugees were distinguished from all other refugees and given special treatment under the principal international legal instruments. This section shows that the combined application of Article 1D of the 1951 Refugee Convention, Paragraph 7 of the UNHCR Statute and UNRWA Statute, clearly places Palestinians in a unique situation and distinguishes them from all other groups of refugees.47 Article 1D of the 1951 Refugee Convention states:

42 See 1951 Refugee Convention, article 33 and 13-24. 43 Id., Article 15 and 17, paragraph 1. 44 Id., Articles 14, 20, 22, 23, 24, 29 45 In fact, in the Middle East and North Africa, only Algeria, Egypt, Israel, Morocco, Tunisia, and Yemen are parties to either treaty. 46 1 Multilateral Treaties Deposited with the Secretary General 259-60, 283-84, U.N. Doc. ST/LEG/SER.E/18 (2000) 47 For a detailed treaty interpretation of the provisions affecting Palestinian refugees discussed here, see Akram & Goodwin-Gill, Brief Amicus Curiae, supra note 19.

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This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.48

Although Palestinians refugees are not specifically mentioned in this provision, it is evident, both from the drafting history and the interrelationship of Article 1D with the relevant instruments, that Palestinians are the only group to which the Article applies.49 In fact Paragraph 7(c) of the UNHCR Statute provides that “the competence of the High Commissioner shall not extend to a person:… (c) who continues to receive from other organs or agencies of the United Nations protection or assistance.”

By the same token, in 1954, a similar provision was also incorporated in the Convention relating to the Status of Stateless Persons (hereinafter the “1954 Statelessness Convention”), examined below:

2. This Convention shall not apply: (i) To person who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance so long as they are receiving such protection or assistance.50

The “other” agencies of the United Nations mentioned in the above provision refer both to the UNRWA and the UNCCP. The significance of the language of these provisions lies in the distinction between “protection” and “assistance,” which are substantially different concepts in refugee law. The UNHCR has a mandate that aims to provide the necessary protection for refugees worldwide. As examined earlier, however, the UNRWA’s mandate is solely one of providing assistance to refugees’ basic daily needs by way of food, clothing and shelter. Accordingly, commentators have often disagreed as to whether the UNRWA’s function was to provide any protection rather than simply mere assistance. Taking into consideration the circumstances surrounding the adoption of the provisions quoted above is important to understand the complexity of the Palestinian issue, as well as the intricacies of these legal provisions that have led to major scholarly and political debate over their interpretation. The rules of interpretation embodied in the Vienna Convention on the Law of Treaties provide that ‘a treaty shall be interpreted in good faith in accordance with the

48 1951 Refugee Convention, supra note 39, Article 1D [emphasis added]. 49 See Akram & Goodwin Gill, supra note 19 at 3. 50 1954 Convention relating to the status of Staless Persons, 360 UNTS 117.

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ordinary meaning to be given to the terms of the treaty in their context and the light of its object and purpose.’51 Moreover, the travaux préparatoires (preparatory works) of a treaty may, where appropriate, be referred to as ‘supplementary means of interpretation.’52

A review of the travaux préparatoires of paragraph 7(c) of the UNHCR Statute and Article 1D of the 1951 Convention shows that there was a general consensus amongst the drafters of the Convention that Palestinian refugees were genuine refugees in need of assistance and protection. 53 It also reveals that the primary concern of the Arab States, based on political rather than legal considerations, was that the Palestinian refugees were not included in the mandate of UNHCR, but that they would remain the responsibility of special United Nations attention. The Arab States believed that the United Nations had played an active role in creating the Palestinian refugee problem by giving its support to the creation of the State of Israel, and that therefore it should bear the burden in solving the problem. In explaining the purpose behind the amendment of paragraph 7(c), the representative of Lebanon stated:

The delegations concerned were thinking of the Palestine refugees, who differed from all other refugees. In all other cases, persons had become refugees as a result of action taken contrary to the principles of the United Nations and the obligation of the Organization toward them was a moral one only. The existence of the Palestine refugees, on the other hand, was the direct result of a decision taken by the United Nations itself, with full knowledge of the consequences. The Palestine refugees were therefore a direct responsibility on the part of the United Nations and could not be placed in the general category of refugees without betrayal of that responsibility. Furthermore, the obstacle to their repatriation was not dissatisfaction with their homeland, but the act that a Member of the United Nations was preventing their return [emphasis added].54

The Arab States were afraid that, when included under the UNHCR Statute, the Palestinian refugees would be treated like any other category of refugees and would lose their importance. Hence, they pushed for a special treatment that would be more favorable to the Palestinian question, as the representative from Saudi Arabia stated:

If the General Assembly were to include the Palestine refugees in a general definition of refugees, they would become submerged and would be relegated to a position of minor importance. The Arab States desired that those refugees should be aided pending their repatriation, repatriation being the only real solution of their problem.

51 1969 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, 81 ILM 679 (1969), Article 31. 52 Id. Article 32. 53 For a detailed analysis of the drafting history of the various refugee-related convention with a particular emphasis on Palestinian refugees see Takkenberg supra note 12 at 54-67. 54 Takkenberg, supra note 12 at 61-62 referring to General Assembly Official Records (GAOR), 5th sess., 3rd comm.. 328th mtg., para. 47.

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To accept a general definition without the clause proposed by the delegations of Egypt and Lebanon, as well as his own, would be to renounce insistence on repatriation.

(…) pending a proper settlement of [the Arab-Israeli Conflict], the Palestine refugees should continue to be granted a separate and special status [emphasis added].55

Article ID is considered by many as one of the “exclusion clauses” of the definition article. Nevertheless, it is arguable that the intention of the drafters was only to exclude Palestinian refugees temporarily.56 It is therefore arguable that the second sentence of Article 1D was added to avoid any misinterpretation concerning the treatment of Palestinian refugees, though in practice, it seems to have caused the opposite. Clearly, as argued by some experts, it may be more appropriate to consider article 1D as a “suspensive clause” rather than an “exclusion clause”.57 As a matter of fact, when the assistance or protection, precluding the application of the 1951 Refugee Convention, ceases for any reason, the refugees concerned ‘shall ipso facto be entitled to the benefits of [the] Convention’. For instance, those refugees for whom UNRWA assistance is no longer attainable, and who find themselves in countries bound by the 1951 Convention, are ipso facto entitled to the benefit from its provisions.58

According to the first sentence, the 1951 Convention is not applicable to ‘Palestine Refugees’ falling under the mandate of UNRWA, who have the possibility of receiving the assistance of that agency, irrespective of whether such refugees individually are, or have been, in receipt of actual UNRWA assistance.59 If, however, the possibility of receiving support from the UNRWA ceases to be available for whatever reasons, affected refugees will ipso facto- that is without any determination as to whether they also meet the criteria of any of the other inclusion clauses in particular article 1A, paragraph 2- be entitled to the benefits of the 1951 Refugee Convention if they find themselves in a state bound by that instrument. Such a situation will occur if the UNRWA ceases to function, either in all or part of its area of operations, but also where Palestinian refugees, after having left UNRWA’s area of operations, are unable to return in a legal manner for reasons beyond their control. This is also the case for those who have left a country that is part of the UNRWA’s areas of operations, and who are unwilling to return there for the reasons mentioned in Article 1A, paragraph 2, or for other compelling reasons that may prompt a State party to that Convention to grant asylum to that person, and who are at the same time unable to reside in any other country where UNRWA operates. By the same token, the acknowledgment of the UN of the failure of the UNCCP to fulfill its protection mandate, and accordingly the refocus of its task on documenting and collecting property records, serves as evidence

55 Id., citing GAOR, 5th sess., 3rd comm.. 328th mtg., para. 52. 56 Id., at 92-93. 57 Id., at 93 citing A. Grahl-Madsen, The Status of Refugees in International Law, vol. i, Refugee Character,, at 243 (1966). 58 Id., at 121-122. 59 Id., at 122; Akram & Goodwin-Gill, supra note 19 at 35.

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that Palestinians were no longer receiving the necessary protection guaranteed under Article 1 of the 1951 Refugee Convention. In other words, even if one considers the language of Article 1D as an exclusion clause applying to Palestinian refugees, the ipso facto language of Article 1D should have been systematically applied, at that point in time, affording Palestinian refugees the protection of the 1951 Refugee Convention. Finally, it is also worth noting that the 1951 Refugee Convention contains cessation clauses spelling out the conditions under which a person ceases to be a refugee given that he does not need international protection.60 One of the cessation clauses is of particular relevance to the Palestinian refugees. According to Article 1C(3), the Convention shall cease to apply to any person falling under the terms of section A if “he has acquired a new nationality, and enjoys the protection of the country of his new nationality.”61 As a result of the acquisition of new nationality, such persons are no longer considered to be refugees for the purpose of the 1951 Refugee Convention. However, for the purpose of eligibility for UNRWA assistance, as well as for the exercise of the so-called ‘right of return’ and the ‘right of self determination of the Palestinian People,’ such persons continue to be considered refugees.

The foregoing overview reveals the importance of legal definitions in determining the outcome of any protection regime provided to Palestinian refugees in the future. As already mentioned, the current provisions - embodied in the 1951 Refugee Convention, UNHCR & UNRWA Statute - have lead to the exclusion of a large number of Palestinians from the basic protection regime. This lacuna should be addressed in the future and negotiators and stakeholders should promote more comprehensive and adequate legal definitions in pursuit of this. For example, a Palestinian negotiator elaborated on the composition of the category of refugees that are covered by the above and subsequent UN resolutions concerning the right to return and compensation:

The Palestinian refugees are all those Palestinians (and their descendants) who were expelled or forced to leave their homes between November 1947 (Partition Plan) and January 1949 (Rhodes Armistice Agreements), from the territory controlled by Israel on that latter date. This … coincides with the Israeli definition of “absentees”, a category of Palestinians meant to be stripped of its most elementary human and civil rights.

This definition does not apply to camp-dwellers, and certainly not only to those recognized refugees who enjoyed formal registration by UNRWA, since the latter never exercised jurisdiction over more than a segment of the total refugee population.

Such a definition does not include emigrants who left Palestine before 1947, but it includes all those displaced, even inside the territory that became the State of Israel in

60 For a detailed analysis of this aspect of the 1951 Refugee Convention, see Takkenberg supra note 12 at 127-128. 61 1951 Refugee Convention, Article 1C paragraph 3.

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the 1948-1949 period. It also includes all the 1967 and post-1967 displaced persons …

It also includes the residents of “border villages” in the West Bank, who lost their agricultural lands in the war of 1948, and therefore the source of their livelihood, but remained in their villages. It includes residents of the Gaza Strip refugee camps who were either relocated to the Rafah side of the Egyptian boundary, or who found themselves separated from their families and kin as a result of border demarcation after the Camp David Agreements between Israel and Egypt. It finally includes Palestinian Bedouins who were forcibly removed from their grazing lands within the State of Israel, as well as those who were induced to abandon the West Bank and relocated in Jordan.

Although some of the above categories may not be regarded as refugees in the technical sense (for example, deportees, or residents of “border villages”), they nevertheless share the hardships and fate of most refugees who fall in the first categories. At the core of their status are land alienation and the denial of return to their country. 62

The above description of the Palestinian refugee status, though not based on any legal principles, provides a thorough description of the various categories of Palestinians whose individual rights were affected by the 1948 war and who are likely to be included in future claims of repatriation and/or compensation during the permanent status negotiations. 63 This serves as evidence for the need for adequate legal definitions in a future peace treaty.

1.3 Defining Palestinian Refugees in the Final Status Agreement

The review of the various international legal instruments reveals that Palestinian refugees were meant to receive a special and heightened protection regime. Nevertheless, the legal definitions and standards applicable to Palestinian refugees have been often misconstrued or, at best, interpreted narrowly to exclude Palestinians from the basic protection of the various international refugee conventions and agencies. Needless to say, if State parties to these international legal instruments fail to adequately interpret their language, or subject them to an artificially restrictive interpretation, they derogate to their duties as signatories to these international treaties. Political and economic considerations, combined with the unwillingness and inability of the concerned parties to reach a fair and durable solution to the refugee issue, has lead thus far to the marginalization of Palestinian refugee rights. Moreover, the treatment of Palestinian refugees by the national courts

62 Statement of the chairperson of the Palestinian side of the joint Palestinian-Jordanian delegation to the Multilateral Working Group on Refugees, Ottawa, 13 May 1992; text in CPAP, Facts and Figures about the Palestinians, Washington DC, 1992. 34, 38 cited in Zreik, supra note 27 at 10-11. 63 Takkenberg, supra note 12 at 85.

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and immigration authorities of the various host States as well as third-country parties to the various refugee instruments, has often been based on misguided interpretation of the special legal regime of Palestinian refugees. Accordingly, unless a new approach is adopted in which clear legal definitions and parameters are set in a practical viable framework, Palestinians refugees will remain deprived of their fundamental rights and the basic protection of international law. Accordingly, it is crucial to establish adequate, comprehensive and fair definitions for the determination of individual rights’ claims in a future final status agreement. This could avoid potential vacuum in a future legal framework governing individual rights of Palestinian refugees and displaced people (as witnessed in the case of the 1951 Refugee Convention definitions). It is important to develop specific working definitions for specific purposes rather than aiming at consensus on one general definition.64 For example, as suggested by one leading expert, “different definitions may be agreed upon for the purpose of negotiating the return to a future Palestinian state (related to future Palestinian nationality legislation); the return to within the borders of Israel (related to the concept of family reunification); compensation (making use of existing UNCCP definitions); etc.”65

2. International Law Relating to Statelessness (Nationality):

In addition to the 1951 Refugee Convention, instruments governing the rights of stateless persons affect the individual human rights of Palestinians. Thus, another relevant topic of relevance to the international legal status of Palestinian refugees is the issue of statelessness (i.e. lack of legal nationality or citizenship). Of all host States where Palestinians reside, only Jordan has granted them citizenship on a wide scale. In addition to the Palestinians who are citizens of Israel and an unknown number in some Western States, only small numbers of Palestinians are citizens of Lebanon, Egypt and Syria. It is estimated that of 6,375,800 Palestinian refugees, only approximately 2,643,764 have been granted citizenship anywhere else in the world,66 which surely makes Palestinians the world’s largest concentration of stateless persons. They are thus rightfully concerned that any final status agreement includes the comprehensive granting of citizenship.

Palestinian refugees have remained, in vast part, stateless for various political reasons. Firstly, Palestinian refugees were admitted to neighboring countries on what was expected to be a temporary basis, and thus host States did not consider the adoption of long-term residency or naturalization schemes necessary. Secondly, Arab States have also resisted the idea of naturalizing Palestinians so that they are not perceived to be advocating this as an acceptable alternative to repatriation and self-determination. Thirdly, Palestinians themselves neither wished to become Israeli citizens nor citizens of their host countries since this could constitute their acquiescence in the legitimacy of the State of Israel. Fourthly, and most significantly, Israel ensured, through its legislative practice, the negation of any possibility of

64 Takkenberg, supra note 12 at 85. 65 Ibid. 66 Donna Arzt, Refugees into Citizens, Palestinians and the End of the Arab-Israeli Conflict, 60 (Council on Foreign Relations, 1997).

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repatriation for most Palestinians. In sum, the vast majority of Palestinians expelled from their homes became stateless whether de jure or de facto.

The proclamation and recognition of the State of Israel and the passage of Israel’s nationality law effectively terminated the citizenship status of Palestinians as a matter of international law. Palestine was a British mandate during the time of the League of Nations. Palestinian citizenship was regulated by United Kingdom statutory instrument, the Palestine Citizenship Order 1925-141.67 Under the mandates system, the local inhabitants were not to be considered as nationals of the administering powers. Palestinian citizens were eligible for British passports issued by the government of Palestine and they might benefit from the exercise of diplomatic protection by Britain. Nevertheless, the termination of the British mandate and the proclamation of the State of Israel on 15 May 1948, together with the passage of Israel’s nationality law in 1952, effectively terminated the citizenship status of Palestinians as a matter of international law. Indeed, the 1952 Nationality Law was enacted as the exclusive law on citizenship and confirmed the repeal of the Palestine Citizenship Orders 1925-42, retroactively to the day of the establishment of the State of Israel.

The argument in support of the categorization of Palestinians as stateless people under international law can be sustained, despite the argument raised by some that the Palestinians are not stateless per se given the proclamation on 15 November 1988 of the existence of the State of Palestine by the Palestine National Council (PNC) and, most recently, after the mutual recognition of the PLO and Israel and the limited self-rule in the Gaza Strip and parts of the West Bank.

Regardless of the political motivations and implications arising from a declaration of a Palestinian State and the recognition of the PLO by Israel and the international community as the representative of the Palestinian people, it is still difficult to contend, under international law, that the entity ‘Palestine’ exists. In its current state, the Palestinian entity does not entirely satisfy the recognized international legal criteria of statehood as stipulated by the 1933 Montevideo Convention on Rights and Duties of States: a permanent population, a defined territory, government, and the capacity to enter into relations with other States.68 Consequently, given that there is no Palestinian state, and thus no Palestinian nationality that can be established under international law, Palestinians refugees who have not duly acquired the nationality of a third State remain stateless for the purpose of international law.69

67 Takkenberg, supra note 12 at 181. 68 Article 1, 1933 Montevideo Convention on Rights and Duties of States, 165 LNTS 19. 69 See Takkenberg at 180-181; the above is accurately by Goodwin-Gill:

Just as Israel has denied citizenship to the majority of Palestinian Arabs, the Arab countries of refuge have, for the most part, consistently rejected local integration and citizenship as a solution to a problem, which, in their view, can only be resolved by repatriation and self-determination. With limited exceptions, Palestinian refugees have not been granted (and for the most part, have not sought) citizenship in the countries of refuge. From the international law perspective, they are therefore stateless persons, notwithstanding the recognition accorded by some

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By the same token, all agreements signed between the PLO and Israel fail to establish or officially recognize a Palestinian State and thus fall short of recognizing a Palestinian citizenship or nationality. For example, the 1994 Interim Agreement only transfers limited powers and responsibilities to the Palestinian Authority and explicitly states that “Palestinian Authority will not have powers and responsibilities in the sphere of foreign relations, which sphere includes the establishment abroad of embassies, consulates or other types of foreign missions and posts or permitting their establishment in the Gaza Strip or the Jericho Area, the appointment of or admission of diplomatic and consular staff, and the exercise of diplomatic functions.”70

This provision makes it clear that the inability of the Palestinian authority to establish foreign relations deprives Palestinians residing in the self-rule area of their right to diplomatic protection while traveling abroad. Accordingly, under international law, Palestinians in the self-rule area who do not possess the nationality of a third state continue to be considered stateless until such time as a Palestinian state has been officially established.

International law recognizes that each State determines who are its citizens, and how such citizenship shall be obtained or transmitted.71 There is in fact no obligation under international law to naturalize a resident non-citizen, even though such non-citizen may over time and for certain international law purposes acquire the effective nationality of the State of residence.72 There remain, however, obligations on States pertaining to the reduction of Statelessness and the treatment of Stateless people present on their territory. There are two major international law instruments relevant the status of Palestinians who are refugees and stateless, but who are unable to obtain the benefits of the 1951 Refugee Convention, and to Palestinians who are not refugees but remain stateless (i.e. Palestinians in Gaza and the West Bank): (i) the 1954 Convention Relating to the Status of Stateless Persons (hereinafter “1954 Stateless Convention”),73 and (ii) the 1961 Convention on the Reduction of Statelessness (hereinafter “1961 Stateless Convention).74 Although only a few States have ratified these Conventions,75 their basic

states to the entity ‘Palestine’, and notwithstanding the United Nations’ recognition of the Palestine Liberation Organization as the legitimate representative of the Palestinian people. For many Palestinian citizens by birth, such citizenship will have lapsed or terminated with the events of 1948; and likewise for many, no other citizenship will have been acquired in the interim.

Guy Goodwin-Gill, The refugee in International Law, 386 (1996). 70 Article VI (2)(a), Agreement on the Gaza Strip and the Jericho Area, signed in Cairo, 4 May 1994, 33 ILM 622 (1994) 71 Goodwin-Gill, supra note 68 at 242, citing Nationality Decrees Case, PCIJ, (1923), Ser. B., No. 4, pp. 23-4. 72 Id., referring to the Nottebohm Case, ICJ Rep., 1955, 4. 73 Convention Relating to the Status of Stateless Persons (hereinafter “1954 Statelessness Convention”), September 28, 1954, 360 U.N.T.S. 117. 74 Convention on the Reduction of Statelessness (hereinafter “1961 Statelessness Convention”), Aug. 30, 1961, 989 U.N.T.S. 175 (entered into force Dec. 13, 1975). 75 To date, forty-two States are party to the 1954 Statelessness Convention (the only Arab States are Algeria, Libya and Tunisia- in addition to Israel). Moreover, only 19 States have ratified the 1961 Convention on Statelessness (Libya is the only Arab State- Israel has signed

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definition of “stateless persons” is now considered customary international law, and therefore binding even on States that are not party to one or other of these Conventions. 76

The aim of the 1954 Statelessness Convention is to improve the status of stateless persons by granting them safeguards of their fundamental rights. The 1961 Statelessness Convention was drafted to supplement the protection of the 1954 Convention by addressing its gaps and to eliminate, or at least reduce as much as possible, the phenomenon of statelessness. In order to be considered a stateless person and thus benefit from the protection of these Conventions, a person must be found to be a ‘person who is not considered a national by any State under the operation of its law.’77 The 1961 Convention expands this definition of stateless persons by stipulating that ‘persons who are stateless de facto should as far as possible be treated to be stateless de jure to enable them to acquire an effective nationality.’78 The 1961 Convention provides that a State “shall grant its nationality to a person born in its territory who would otherwise be stateless.”79 It prohibits depriving someone of their nationality,80 and the denial of nationality on the basis of race, religion or political opinion.81 It should be noted, with particular relevance to Palestinians, that the 1954 Stateless Convention, similar to the 1951 Refugee Convention, contains a clause stipulating that it “shall not apply to persons who are at present receiving protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees so long as they are receiving such protection or assistance.”82 Again, a narrow interpretation of this exclusion-style clause to Palestinians precludes them from receiving the protection afforded to stateless people under the Convention.

Moreover, Article 11 of Resolution 194 provides for the establishment of an agency with authority to protect and assist stateless persons claiming the benefit of that Convention. Accordingly, in 1974 the UN General Assembly entrusted the UNHCR with protection and assistance mandate.83 This provision (similar to the exclusion language in Article 1(2)(i) mentioned above) is of particular importance for Palestinians given that the UNHCR has never exercised this mandate under the 1961 Convention and thus they were left without an agency for the protection of their rights under that Convention.84

Palestinians whose status is excluded, for any reason, from a final peace settlement (that is, they do not or are not able to return to the Palestinian

but not ratified the Convention); See 1 Multilateral Treaties Deposited with the Secretary General 281, U.N. Doc. ST/LEG/SER.E/18 (2000). 76 See Goodwin-Gill, supra note 68 at 243-246. 77 1954 Statelessness Convention, supra note 73, Article 1. 78 1961 Statessness Convention, supra note 74, Article 1. 79 Id., Article 1 80 Id., Article 8 precludes the denial of one’s nationality with some exceptions. 81 Id., Article 9 82 Article 1(2)(i) 83 G.A. Res. 3274, U.N. GAOR, 29th Sess., Agenda Item 99. U.N. Doc. A/RES/3274 (XXIX) (1975). [This mandate was extended indefinitely by G.A. Res. 31/36, U.N. GAOR, 31st Sess., Agenda item 78, U.N.Doc. A/RES/31/36 (1976).] 84 See generally, Akram & Goodwin Gill, supra note 19 at 20-24.

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territory, and/or obtain protection from the Palestinian authorities), will likely fall under the protection of article 1D of the 1951 Refugee Convention. If required to leave their countries of habitual residence in the future because their situation would not have been definitely settled in accordance with UN resolutions and principles of international law, they will be entitled to international protection as refugees or, in the alternative, as stateless persons.85

3. International Humanitarian Law

In addition to being refugees and stateless, Palestinians are also persons protected by international humanitarian law, which is the body of law regulating the law of armed conflict and what States are permitted to do during war. There are numerous treaties containing these norms and a consensus exists among jurists that such norms have become part of customary international law: the Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907) and the Regulations annexed thereto (hereinafter “Hague Convention” and “the Hague Regulations” respectively)86; the four Geneva Conventions, (i) for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field; (ii) of the Wounded Sick and Shipwrecked Members of Armed Forces at sea; (iii) relative to the Treatment of Prisoners of War; and (iv) to the Protection of Civilian Persons in Time of War (1949) (collectively referred to as the “Geneva Conventions”)87; and finally the Additional Protocols to the Geneva Conventions (1977).88 These norms cover different subjects including prisoners of war, civilians, wounded personnel, prohibited method of warfare etc. and several rules of particular importance to refugees and stateless persons.89

Refugees benefit from the protection of the Fourth Geneva Convention (hereinafter “the Fourth Geneva Conventions”) given they lack the protection by a national government and thus fulfill the determining criterion of the Convention. Article 4 stipulates that protected persons are those who, ‘at a given moment and in any manner whatsoever, find themselves, in case of conflict or occupation, in the hands of a Party to the conflict or Occupying

85 Goodwin-Gill, supra note 68 at 246. 86 Hague Convention (IV) Respecting the Laws and Customs of War on Land, T.S. No. 539 signed at the Hague, 18 October 1907, entry into force 26 January 1910 [Hereinafter “Hague Convention” and “the Hague Regulations” respectively]. 87 The four conventions were adopted by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War on 12 August 1949; 75 UNTS 31. 88Protocols Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict (“Protocol I”) and Protocol Additional to the Geneva Conventions of August 1949, and Relating to the Protection pf Victims of Non-International Armed Conflicts (“Protocol II”), both adopted at the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian law Applicable in Armed Conflict on June 8 1977. Entry into force: 7 Dec. 1978 . 89 For a detailed discussion of the application of the various Conventions and international humanitarian law, see generally, Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War, An Introduction to International Humanitarian Law, ICRC (3rd ed. 2001); Dieter Fleck, The Handbook of Humanitarian Law in Armed Conflicts (1999)

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Power of which they are not nationals.’90 This is further confirmed in Article 73 of the first additional protocol of 1977 which states:

Persons who, before the beginning of hostilities, were considered as stateless persons or refugees under the relevant international instruments accepted by the parties concerned or under the national legislation of the State of refuge or the State of residence shall be protected persons with the meaning of Parts I and III of the Fourth Convention, in all circumstances and without any adverse distinction.91

Israel is under several legal obligations arising from its belligerent occupation of Gaza and the West Bank. Indeed, the Fourth Geneva Convention, by virtue of its Article 6, continue to apply as long as the occupying power continues to exercise ‘the function of government.’92 Arguably, Israel continues to be legally responsible for upholding the humanitarian standards of the Fourth Geneva Convention in all areas of authority that have not been transferred in full to the Palestinian Authority. In principle, Israel’s control over the occupied territory is governed by various principles of international humanitarian law including: the prohibition of transfer of occupant’s population into the occupied territory (such as settlement building)93; the provision of education to local inhabitants94; supply of foodstuffs and medical supplies95; the duty to respect the existing law (unless absolutely prevented)96; prohibition of reprisals and collective punishment against the civilian population of the occupied territory, wholesale seizure of property and the exploitation of the economy of the occupied territory for the benefit of the occupant’s own economy.97 It is important to note that the prolonged aspect of the occupation by Israel over the Palestinian occupied territory raises certain questions as to the sufficiency of the applicable international humanitarian law rules in case of prolonged military occupation. Accordingly, Takkenberg supports the view that the protection provided under the Fourth Geneva Convention is insufficient in situations of prolonged occupation and ‘that the application of international human rights instruments to occupied territory is in line with the ongoing evolution of international human rights law, in which increasing emphasis is being placed on the State exercising (territorial) jurisdiction, rather than on the traditional concept of territorial sovereignty.’98 Cohen adequately supports his view:

90 Geneva Convention (IV) Relative to the Protection of Civilians in the Time of War, 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950 [hereinafter “Fourth Geneva Convention”], Article 4. 91 Protocol I, Article 73 [emphasis added] 92 Fourth Geneva Convention, Article 6. 93 Id., Article 49. 94 Id. Article 50 95 Id. Article 55. 96 Id. Article 64 para. 1, and Hague Regulations, Article 43. 97 For a detailed analysis of the aspects of international humanitarian law affecting specifically Palestinian refugees see Takkenberg, supra note 12, Chapter VI; C. Greenwood, ‘The Administration of Occupied Territory in International Law,’ in Playfair 241, 244 (1992). 98 Takkenberg, supra note 12 at 206-207.

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Further protection is called for. It is submitted that the Universal Declaration and the International Covenants on Human Rights may be used to guide the belligerent occupant in the administration of the territory occupied, just as civilian governments may be guided by these laws in the administration of their own territories.

Thus, in certain areas not covered by the Convention, such as economic rights, which involve a certain dynamism and initiative in order to avoid the stagnation which would result in their violation, the concept of human rights can serve to breathe new life into an otherwise stalemated situation. 99

An analysis of the application of international humanitarian law to Palestinian refugees and stateless persons is not within the ambit of this paper. Nevertheless, the foregoing discussion is helpful to shed light on the applicable legal standards and obligations as they may and should be taken into account by negotiators and analysts in proposing a durable framework for the rehabilitation, compensation of Palestinian refugees and, most importantly, to remedy the injustices they have suffered and continue to suffer.

99 Takkenberg, supra note 12 at 206-207, citing E.R. Cohen, Human Rights in the Israeli-Occupied Territories 1967-1982, 29 Manchester (1985).

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SECTION B THE STATUS OF PALESTINIAN REFUGEES IN THE HOST STATES

The Palestinian Diaspora has been largely concentrated in the countries bordering historical Palestine (in which UNRWA provides assistance). The significant number of Palestinian refugees has often had political, economic and even security implications in the host States. Moreover, the fluctuating policies of the respective host government vis-à-vis the PLO has influenced the attitudes and legislation of the host States toward Palestinians. While Israel’s position regarding the rights of the Palestinians has been consistent in systematically rejecting the recognition of their individual rights, the attitudes of the Arab States towards Palestinians have been influenced by two conflicting factors. Firstly, Arab solidarity and sympathy towards the refugees has resulted, at least on paper, in some declarations and resolutions by the Council of the Arab League to grant Palestinian refugees residency and the right to work on the same footing as citizens of the member states. Secondly, the wish to preserve the Palestinian identity has pushed Arab States to put emphasis on maintaining the Palestinians’ status as refugees, so as to avoid providing Israel with an excuse to evade its responsibility for their plight. For example, Arab governments refused, as a matter of principle, to contribute to the budget of UNRWA and they resisted resettlement or naturalization as a way of resolving the refugee problem (except Jordan).100

On September 11, 1965, in a meeting of the heads of Arab States held in Casablanca, the Protocol on the Treatment of Palestinians in Arab States (known as the “Casablanca Protocol”) was adopted.101 The Casablanca Protocol widened the scope of Palestinian rights in Arab countries by granting them several safeguards including: (i) national treatment with regard to the right to engage in economic activities (Article 1); (ii) the freedom to travel from the country of residence and return to it (article 2) although the right to enter does not lead to the right of residence (Article 3). Article 4 affirms the obligation of member States to provide documents to Palestinians residing in their territory (i.e. the state of refuge). Finally, Article 5 provides that Arab States shall accord the holders of Palestinian travel documents equal treatment with respect to visas and residence, as accorded to nationals of other Arab League States. Only Syria and Jordan fully ratified the Casablanca Protocol, whereas Kuwait and Lebanon never implemented its provisions. Also, national legislation was never harmonized to implement such principle. 102

More recently, in a meeting held in Cairo in 1991 under the auspices of the UNHCR, experts representing Arab states adopted the Arab Declaration on the Protection of Refugees and Displaced Persons in the Arab World aiming at widening the scope of refugee protection in Arab countries. Although this declaration was non-binding on the Arab governments, it reiterated several

100 For a detailed discussion over the status of Palestinians in Arab Country and Casablanca Protocol, see, Zreik, supra note 27 Chapter 2 and 30-37; and Takkenberg, supra note 142-143. 101 Ibid. 102 Zreik, supra note 27 at 31.

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important principles regarding Palestinian refugees, including the right to return to Palestine.103 In part, the resolution stipulates that it:

Strongly emphasizes the need to ensure international protection for Palestinian refugees by competent international organizations and, in particular, by the United Nations, without in any way prejudicing the inalienable rights of the Palestinian people, especially their right to repatriation and self-determination.104

A succinct description of the treatment of Palestinian refugees in the various host States is useful to assess the treatment of Palestinians and the legislative changes needed to ensure their safeguard.

Jordan: Since the influx of Palestinian refugees following the 1948, Jordan has had a policy favoring integration by granting refugees citizenship rights in accordance with the 1954 Jordanian Nationality Law. Thus, Palestinians on the East and West Banks of the Jordan River were given Jordanian Citizenship.

The 1954 law provided West Bank Palestinians full citizenship rights and obligations, such as those enjoyed by other Jordanian nationals. This evidently contributed to the prosperity of Palestinians in Jordan and allowed them to play a dominant role in Jordan’s economy and society. Nevertheless, it should be noted that Palestinians who took refuge in Jordan after 1954 are not treated in the same way and are thus are not considered Jordanian citizens (for example, Palestinians from Gaza who fled in 1967).

In 1988, however, King Hussein reacted to the Intifada and the wishes of the Palestinian people to secede by renouncing his legal claim to the West Bank. That resulted, for West Bank Palestinians, in the loss of their Jordanian citizenship. Nevertheless, Jordan has allowed Palestinians from the West Bank to continue using their Jordanian passports, which are being issued on a two-year term basis. Moreover, they are no longer entitled to permanent residency in Jordan, or to visit it for more than 30 days at a time.

Lebanon: Of all Arab States, Lebanon has had the most stringent policies toward Palestinian refugees. Since their arrival in 1947-48, with Palestinians constituting roughly 10 per cent of the total population, they have been viewed by the Lebanese ruling establishment as a threat to the delicate religious balance in the country, and hence, to political stability.

On 3 November 1969, Lebanon and the PLO entered into an agreement mediated by Egyptian President Nasser (“the Cairo Agreement”) aiming at calming the tensions between the Lebanese authorities and the PLO, as well as ‘regulating’ the operations of the PLO inside Lebanon. More importantly for Palestinians refugees, it guaranteed Palestinians the right to employment, residence and movement in Lebanon. In reality, this agreement did not help

103 Kathleen Lawand, “The Right of Return of Palestinians in International Law,” International Journal of Refugee Law, Vol. 8:4, 532, 546 (October 1996) and and Zreik, supra note 27 at 31 both referring to Khadija Elmadmad, “An Arab Declaration on the Protection of Refugees and Displaced Persons in the Arab World: Report on the Cairo Seminar, 19 November 1992,” 6 JRS 173 (1993). 104 Ibid.

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improve the living conditions of Palestinians in Lebanon and was abrogated by the Lebanese Chamber of Deputies in 1987.

In principle, only Palestinians who took refuge in Lebanon during or in the aftermath of the 1948 war are considered legal residents. The rest (those who came later or from third countries) are considered illegal residents. As a result, most Palestinians in Lebanon continue to be denied access to public services, public education and social security. Lebanon granted its citizenship to a relatively small number of Palestinians (around 50,000 Palestinians between 1952 and 1958 -mostly Christians and a small number of affluent Sunni Palestinians- in order to keep the religious balance in the country). Hence, most Palestinians in Lebanon remain Stateless.

For various reasons, all political and religious factions in Lebanon, together with the government’s official policy, seem to agree on a categorical rejection of the settlement of Palestinian (Tawteen). Presently, Palestinians in Lebanon have the least favorable treatment of all the major host States. The fragile political environment in Lebanon has consistently led to the deprivation of Palestinians of their most fundamental rights (work, education and ownership of land etc.)

Syria: From the outset, Syria dealt with the presence of Palestinians in a very different way from Lebanon and Jordan. Of all the countries where the UNRWA operates, Syria received the smallest number of refugees. Palestinians in Syria enjoy equal access to government social services, education, employment and limited ownership of property, though they remain deprived of political rights.

Indeed, the Syrian government has amended several laws and adopted a series of legislative measures aiming at facilitating the equal treatment of Palestinians and their economic integration in Syria. It established the Palestine Arab Refugee Institution and its successor organization, the General Authority for Palestine Arab Refugees. Meanwhile, the Syrian government kept a strict control over matters pertaining to refugees (cooperation with UNRWA, administration of camps and assistance to refugees).

Israel: Early in the process, Israel attempted to preclude the largest number of Palestinians who remained on Israeli land from getting its citizenship. Israel enacted two laws governing citizenship. First, the 1950 Law of Return, provides automatic Israeli citizenship for any Jew in the world who wishes to immigrate to Israel.105 For obvious political reasons, this law is aimed at granting Israeli citizenship to the largest possible number of Jews.

Second, the 1952 Nationality Law was narrowly drafted to grant Israeli citizenship to the smallest number of Palestinians. Former Palestinian citizens of Arab origin are eligible for Israeli nationality provided they meet the conditions of section 3 of the 1952 Israeli Nationality law:

105 4 Laws of the State of Israel 114 (1950) (Section 1 of the law provides: “Every Jew has the right to come to this country as an oleh [Jewish Immigrant]”). See, Gail J. Boling, The 1948 Palestinian Refugees and the Individual Right of Return: An International Law Analysis, 14 BADIL Resource Center for Palestinian Residency and Refugee Rights 26-27 (January 2001).

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(a) a person who, immediately before the establishment of the State, was a Palestinian citizen and who does not become an Israel national under section 2, shall become an Israel national with effect from the day of the establishment of the State if:

(1) he was registered on the 4th Adar, 5712 (1st March 1952) as an inhabitant under the Registration of Inhabitants Ordinance, 5709-1949; and (2) he is an inhabitant of Israel on the day of the coming into force of this Law; and (3) he was in Israel, or in an area that became Israel territory after the establishment of the State to the day of the coming into force of this Law, or entered Israel legally during that period.

(b) a person born after the establishment of the State who is an inhabitant of Israel on the day of the coming into force of this Law, and whose father or mother becomes an Israel national under subsection (a), shall become an Israel national which effect from the day of this birth.

These strict requirements (i.e. physical presence inside the 1949 armistice lines between certain dates) meant that the vast majority of the population displaced outside the territory of what became Israel following the 1948 war was actually denied Israeli citizenship. This Israeli law is discriminatory in nature and thus violates various principles of international law (i.e. human rights and succession of states laws). Such practices have further contributed to the deprivation of Palestinians of their fundamental rights and contributed to the aggravation of the refugee problem.

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SECTION C INDIVIDUAL RIGHTS UNDER INTERNATIONAL HUMAN RIGHTS LAW

Paragraph 11 of Resolution 194 sets forth the framework for a durable solution to the predicament of the 1948 Palestinian refugees. Paragraph 11 (1) of Resolution 194 by its express terms identifies three distinct rights that all Palestinian refugees are entitled to exercise under international law – return, restitution, and compensation. Paragraph 11(1) further affirms that those refugees choosing not to exercise their priority rights of return and restitution are nevertheless also entitled to receive full compensation for their losses (and, as is delineated in the following subparagraph 11(2), to be resettled elsewhere).106 After extended debate, the General Assembly selected the following language to enumerate these three separate, but interrelated, fundamental rights of the 1948 Palestinian refugees, stating that the General Assembly:

Resolves that refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible” (emphasis added)107

This section will examine the rights affirmed in the above resolution in light of the relevant international human rights law principles.

1. The Right of Return

1.1 The Right of Return under International Law

The right of return is one of the key principles of international human rights law and is universally recognized as a customary norm in international law. It is embodied in Article 13 of the Universal Declaration of Human Rights which states that “everyone has the right to leave any country, including his own, and to return to his country.”108

Moreover, the International Covenant on Civil and Political Rights (hereinafter “ICCPR”), the treaty which gives legal force to many of the rights proclaimed in the UDHR, codifies the right to return, affirming in Article 12.4 that “No one shall be arbitrarily deprived of the right to enter his own country.” Israel,

106 General Assembly Resolution 194, in paragraph 11(2), then instructs the UNCCP to facilitate implementation of the complete set of solutions to the plight of the refugees. These include, in order of reference, repatriation, resettlement, compensation, and economic and social rehabilitation. 107 General Assembly Resolution 194, para. 11(1) 108 Universal Declaration of Human Rights, adopted December 10, 1948, GA Resolution 217A, UN Doc. A/810 at 71 Article 13 (1948) [Hereinafer “Universal Declaration of Human Rights”].

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Jordan, Lebanon, Egypt and Syria are all parties to the ICCPR and none of them have made reservations to Article 12(4).109 Another major international human rights convention, the Convention on the Elimination of All Forms of Racial Discrimination110 (hereinafter “CERD”), similarly incorporates the individually-held right of return in its Article 5(d)(ii), and lists it as an enumerated right subject to the categorical non-discrimination rule of the opening paragraph of Article 5: “…States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights’,111 which includes, in Article 5(d)(ii) the ‘the right to leave any country, including one’s own, and to return to one’s country’.112

The right of return is also incorporated in various regional human rights treaties: the American Convention on Human Rights [Article 22(5)];113 the African (Banjul) Charter on Human and Peoples’ Rights [Article 12(2)] 114; and the European Convention for the Protection of Human Rights and Fundamental Freedoms [Article 3(2) of Protocol No.4].115

In addition to being a right under international human rights law, the right of return is also enshrined in international humanitarian law. Both the Hague Regulations annexed to the 1907 Hague Convention (IV) Respecting the Law and Customs of War on Land,116 and the 1949 Fourth Geneva Convention provide for the right of return of displaced persons to their homes following the cessation of hostilities.117 The right of return is a ‘general’ right applying to all displaced persons, irrespective of how they came to be displaced during the period of conflict. For example, if persons came to be displaced because they were temporarily

109 International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976, G.A. Resolution 2200A, U.N. Doc. A/6316 (1966), 999 UNTS 171, Article 12(4).. [Hereinafter “International Covenant on Civil and Political Rights”] 110 See, Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 December 1965, entered into force 4 January 1969, 660 UNTS 195 (hereinafter the “Convention on the Elimination of All Forms of Racial Discrimination”) (ratified by Israel on 3 January 1979) 111 Id., Article 5. 112 Id., Article5(d)(ii). (Jordan, Egypt, Lebanon, Syria and Israel are all parties to this Convention and have made no reservation to this article.) 113 See the American Convention on Human Rights, signed 22 November 1969, entered into force 18 July 1978. OEA/SER.L/V/II.23, doc.21, rev.6 (1979), art.22(5): “No one can be expelled from the territory of the State of which he is a national or be deprived of the right to enter it.” 114 See African (Benjul) Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 October 1986, OAU Doc. CAB/LEG/67/3 Rev.5, art. 12(2): “Every individual shall have the right to leave any country including his own, and to return to his country.” 115 See European Convention for the Protection of Human Rights and Fundamental Freedoms. 213 UN Treaty Series 221, signed 4 November 1950, entered into force 3 February 1953; Protocol No. 4 (Protecting Certain Additional Rights) to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 46 European Treaty Series, adopted 16 September 1963, entered into force 2 May 1968, art.3, para.2: “No one shall be deprived of the right to enter the territory of the State of which he is a national.” 116 Hague Convention, supra note 86. 117 Fourth Geneva Convention, supra note 90.

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away from their homes on a holiday during the period of conflict and then were barred re-entry, they would still have an internationally guaranteed right of return under humanitarian law.118 The right of return also applies when persons have been displaced through a “forcible expulsion” (for example, at gunpoint, under threat of fire or through the deliberate military “stampeding” of a population out of its place of habitual residence). Deliberate, forcible expulsion – especially when carried out on a “mass” scale – is expressly prohibited under humanitarian law.119 The prohibition is even stronger against mass forcible expulsions carried out on a discriminatory basis, given that such practice is categorically prohibited under customary international law, including human rights law.

1.2. Palestinian Right of Return under UNGA Resolution 194

Paragraph 11(1) of Resolution 194 states the right of return unambiguously, in the phrasing “the refugees wishing to return to their homes … should be permitted to do so at the earliest practicable date.”120

The UN Mediator, Count Folke Bernadotte, whose thinking greatly influenced the General Assembly in drafting Resolution 194, clearly regarded the right of return as the most appropriate remedy to correct the mass expulsion of the 1948 Palestinian refugees and the resulting massive violation of their fundamental human rights:

It is, however, undeniable that no settlement can be just and complete if recognition is not accorded to the right of the Arab refugee to return to the home from which he has been dislodged by the hazards and strategy of the armed conflict between Arabs and Jews in Palestine…The exodus of Palestinian Arabs resulted from panic created by fighting in their communities, by rumors concerning real or alleged acts of terrorism, or expulsion… There have been numerous reports from reliable sources of large-scale looting, pillaging and plundering, and of instances of destruction of villages without apparent military necessity…. It would be an offence against the principle of elemental justice, if these innocent victims of the conflict were denied the right to return to their homes while Jewish immigrants flow into Palestine, and, indeed, at least offer the threat of permanent replacement of the Arab refugees who have been rooted in the land for centuries121

The General Assembly made Israel’s admission as a member to the United Nations conditional upon its implementation of Resolution 194.122 This clearly

118 Boling, supra note 105 at 28 and 32-26. 119 Ibid. 120 G.A. Res. 194, para. 11(1) 121 See, Mediator’s Progress Report, part I (“The Mediation Effort”), sect. V (“Refugees”), subsections 6 & 7 (containing the quoted language) 122 See G.A. Res. 273 (1949) of 11 May 1949 (admitting Israel to the United Nations). This resolution contains the following relevant points:

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indicates that the General Assembly considered Israel to be fully bound by Resolution 194 which imposes an unqualified obligation upon Israel both to readmit the Palestinian refugees and to create the circumstances enabling their safe return. Reviewing the meaning of the phrase that refugees wishing to return to their homes “should be permitted to do so”, the UN Secretariat noted that the Resolution imposed an obligation on Israel “to ensure the peace of the returning refugees and protect them from any elements seeking to disturb that peace.”123

It is important to note, at the outset, that Resolution 194 emphasized the right to repatriation – i.e. implementation of the right of return – as the preferred resolution for Palestinian refugees reflects several customary norms of international law that existed in 1948.124 This is reflected in the UN Mediator’s recommendations for a solution to the plight of the refugees – subsequently incorporated into Resolution 194 – which acknowledged the fact that no new rights were being created: 125 “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 …”126

Since 1948, UN Resolution 194 has acquired even greater weight under international law, not only because it affirmed then-binding principles of customary international law, but also because the rights affirmed in paragraph 11 have remained consistent with developments in international law over the past five decades. Furthermore, the resolution has been reaffirmed annually (and more than one hundred times) by the UN General Assembly ever since.127

First, in the fourth preambular paragraph, the General Assembly expressly “Not[ed]… the declaration by the State of Israel that it ‘unreservedly accepts the obligations of the United Nations Charter and undertakes to honour them from that day when it becomes a Member of the United Nations. Second, in the fifth preambular paragraph, the General Assembly expressly ’Recall[ed].. [G.A.] resolution… of 11 December 1948, “i.e. Resolution 194, regarding repatriation, restitution and compensation for all displaced Palestinians (i.e. the 1948 Palestinian refugees and the internally displaced Palestinians).

123 See Analysis of Paragraph 11 (the third paragraph of Part One, section 5 containing the quoted language). 124 See generally Boling, supra note 105 and Lawand, supra note 102 ,at 545 & note 60. 125This interpretation is amplified by Akram and Goodwin-Gill supra note 17; See, also, Takkenberg, at 243 (similarly noting that “Count Bernadotte was apparently of the opinion that the right of refugees to return already formed part of existing international law”.) 126 See, Mediator’s Progress Report, part I (“The Mediation Effort”) sect.VIII (“Conclusions”), no.4 (“Specific Conclusions”), subsection (I) (containing the quoted language). See also, Mediator’s Progress Report, part I (“The Mediation Effort”), sect.V (“Refugees”) subsection (5) (wherein Bernadotte reviewed his position, stated in a report to the Security Council (UN doc. S/948) which he made following receipt of a letter dated 1 August 1948 from the Provisional Government of Israel regarding Israel’s view of the Palestinian refugee problem, that “it was (Bernadotte’s) firm view that the right of the refugees to return to their homes at the earliest practicable dated should be affirmed”) (emphasis added). 127 See, e.g., GA Res. 393(V) (Dec. 2, 1950); GA Res. 1604(XV) (Apr. 21, 1961); GA Res. 2452B (XXIII) (Dec. 19, 1968); GA Res. 2535A (XXIV) (Dec. 10, 1969); GA Res. 2672A (XXV) (Dec. 8, 1970); GA Res. 2792A (XXVI) (Dec. 6, 1971); GA Res. 2963A (XXVII) (Dec. 13, 1972); GA Res. 3089B (XXVIII) (Dec. 7, 1973); GA Res. 38/83A (Dec. 15, 1983); and GA Res. 39/33A and H (Dec. 14, 1984).

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Furthermore, the right of Palestinians to return continues to be recognized by authoritative bodies within the UN system for the protection of human rights. In March 1998, the Committee on the Elimination of Racial Discrimination (“CERD”) examined the report presented by Israel. In its Concluding Observations the CERD was unequivocal about the obligations of Israel in relation to the right of return of the Palestinians. It stated:

“The right of many Palestinians to return and possess their homes in Israel is currently denied. The State party should give high priority to remedying this situation. Those who cannot repossess their homes should be entitled to compensation.”128

The UN General Assembly affirms in its Resolution 51/129 of December 1996 that “Palestinian Arab refugees are entitled to their property and to the income derived therefrom, in conformity with the principles of justice and equity”. It “requests the Secretary-General to take all appropriate steps… for the protection of Arab property, assets and property rights in Israel and to preserve and modernize the existing records.” 129 As for the displaced Palestinians since the 1967 war, the General Assembly resolved in Resolution 52/59 of December 1997 that it: “reaffirms the right of all persons displaced as a result of the June 1967 and subsequent hostilities to return to their homes or former places of residence in the territories occupied by Israel since 1967.”130

It is important to note that Paragraph 11(1), which delineates the rights of the refugee, does not include resettlement. Resettlement is only included in Paragraph 11(2), which instructs the UNCCP to facilitate implementation of the rights affirmed in Paragraph 11(1) according to the choice of each individual refugee. As mentioned earlier in this section, Resolution 194 placed the emphasis on repatriation. This emphasis was consistent with the mandates of several international agencies established prior to 1948 to facilitate solutions for other groups of refugees.131 Nevertheless, some analysts support Israel’s refusal to repatriate by contending that the UN shifted its effort to find a solution from repatriation to resettlement. They based their arguments on UNGA Resolution 513 ‘emphasizing public works projects by which refugees might be resettled and reintegrated into the Arab communities where they were.’132 This interpretation, however, fails to take into account the various considerations taken by the United Nations in suggesting resettlement including the fact: that not all refugees will exercise their ‘choice’ of return; that some would opt to

128 1998 CERD, Concluding Observations, Israel 30/03/98. CERD/C/304/Add.45); Amnesty International, The Right to Return: The Case of the Palestinians, Policy Statement 30/03/2001, found on www.amnesty.org. (Al-Index: MDE 15/013/2001). 129 Resolution A/RES/51/129, December 1996. 130 Resolution A/RES/52/59 of December 1997. 131 These include, for example, the Office of the High Commissioner for Russian Refugees (established by the League of Nations), the UN Relief and Rehabilitation Administration, and the International Refugee Organisation. For information on the mandates of these respective organisations, all three of which were founded prior to 1948, see, generally, Louise Holborn, Refugees: A Problem of our Time, the Work of the UNHCR, 1951-72 (2 volumes, 1975), passim. 132 UN General Assembly Resolution 513, U.N. GAOR, 6th Sess., Supp. No. 20, at 12, U.N. Doc. A/2119 (1951).

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remain in their state of refuge; and that the United Nations expected the Arab host States to assume some of the financial burden of the United Nations in caring for these refugees. This is expressed in General Assembly Resolution 393 in 1950, which states:

Considers that, without prejudice to the provisions of paragraph 11 of General Assembly Resolution 194 (III) of 11 December 1948, the reintegration of the refugees into the economic life of the Near East, either by repatriation or resettlement, is essential in preparation for the time when international assistance is no longer available, and for the realization of conditions of peace and stability in the area.133

It is clear from the language of General Assembly Resolution 393 (‘without prejudice to the provisions of paragraph 11 of General Assembly Resolution 194’) that resettlement was perceived as a complement, not an alternative, to repatriation in order to address the basic needs of Palestinians.134 This argument is further confirmed by Resolution 237, adopted by the UN General Assembly in 1967 in the aftermath of the displacement of Palestinians in 1967, which calls on Israel to ‘facilitate the return without delay of those inhabitants who have fled the areas since the outbreak of hostilities.’135

Furthermore, given that the 1993 Declaration of Principles does not mention explicitly Resolution 194, some analysts interpreted this as if Resolution 194 was not part of the terms of reference of the Oslo Accords. In fact, the 1993 Declaration of Principles states that ‘negotiations on the permanent status will lead to the implementation of Security Council Resolution 242 and 338.’ Hence, some argue that Resolution 194 has somehow been “superseded”, “amended” or “annulled” by Security Council Resolution 242, which calls for “a just settlement of the refugee problem” without specifying exactly what would constitute a “just settlement”.136 The obvious response here is that Resolution 194 – since it preceded Resolution 242 and because it spelled out in such specificity exactly what legal remedies would be required for a “just settlement of the refugee problem” (i.e. return, restitution and compensation) – is necessarily incorporated by necessary reference into S.C. Resolution 242 and must be read as part of it. Certainly Resolution 194 has never been annulled, repealed or overturned in any way. On the contrary, Resolution 194 has been reaffirmed annually by the United Nations every year since it was initially passed in 1948.137 Also, given the binding customary status of the legal norms contained in Resolution 194, it is logically impossible to attempt to argue that ignoring its terms could somehow constitute a “just settlement of the refugee problem”.

133 UN General Assembly Resolution 393, U.N. GAOR, 5th Sess., Supp. No. 20, at 22, U.N. Doc. A/1775 (1950) (emphasis added). 134 Ibid. 135 S.C. Res. 237, U.N. SCOR, 22d Sess., at 5, U.N.Doc S/INF22/Rev.2 1967. 136 Security Council Resolution 242 [Reproduced in Annex]. 137 LAW, The Palestinian Society for the Protection of Human Rights & the Environment, The Dormant Right, The Continuing Violation of the Right of Return at 8-9, found on http://www.lawsociety.org/Reports ( January 2001)

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Moreover, Security Council Resolution 242 must be seen within the context of other U.N. resolutions on the rights of the Palestinian refugees. For example, General Assembly Resolution clearly indicates that the term ‘just settlement’ in Resolution 242 refers to the legal provisions of Resolution and the rights conferred therein:

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(III) of 11 December 1948, which has been repeatedly reaffirmed by the Assembly since that date, is indispensable for the achievement of a just settlement of the refugee problem and for the exercise by the people of Palestine of its right to self-determination.138

Further proof that Resolution 194 has not been supplanted is evidenced by the strong parallel which exists between the remedies articulated in Resolution 194 (return, restitution and compensation) and the very same remedies which have been articulated in the1995 Dayton Accords (return, restitution and compensation) and other peace agreements negotiated under the auspices of the international community (examined in Part III of this paper), and specifically under the auspices UNHCR. State practice over the past five decades has only solidified the binding force of Resolution 194 (as discussed above).

Resolution 194 clearly sets out several extremely important principles the implementation of which is required for the full and legal realization of the Palestinian refugees’ right of return under international law. The following comments can be made with regard to the interpretation of the terms of Paragraph 11, for they have been the subjects of scholarly, legal, and political debate:

a. Return to their homes: Resolution 194 clearly identifies the exact place to which refugees are entitled to return – i.e. to their homes. This principle can also be interpreted whereby the right to restitution has been incorporated into the right of return and these two rights are now, accordingly, inseparable.139 The drafting history of Paragraph 11(1) of Resolution 194 is instructive. In choosing the term “to their homes”, the UN Secretariat stated that the General Assembly clearly intended to describe the specific right of each refugee to return to “his house or lodging and not [just generally to] his

138 Security Council Resolution 242. 139 Boling supra note 105 at 12 note 27 referring to Historical Precedents for Restitution of Property or Payment of Compensation to Refugees, Working paper prepared by the U.S. Secretariat. Geneva March 1950, UN Doc. A/AC.25/W.81/Rev.2 (Annex I) (1950). Paragraph 1 of the paper support the view that the right to restitution should be included in the right of return:

1. The underlying principle of paragraph 11, sub-paragraph 1, of the resolution of the General Assembly of [11] December 1948, is that the Palestine refugees shall be permitted either to return to their homes and be reinstated in the possession of the property which they previously held or that they shall be paid adequate compensation for their property. The purpose of the present paper is to furnish some background for this principle and to recall similar historical situations where claims of restitution of property or payment of compensation where put forward.

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homeland.”140 In drafting the language of Paragraph 11(1), the General Assembly specifically rejected two separate amendments that had referred more generally to the refugees’ right to return to “the areas from which they have come”.141

By the same token, the Human Rights Committee, which monitors implementation of the ICCPR, has given authoritative interpretation to the meaning of the phrase “own country”, which clarifies who is entitled to exercise the right to return. The Committee asserts that the right applies even in relation to disputed territories, or territories that have changed hands. In General Comment 27 (1999, paragraph 20) the Human Rights Committee determined:

“The scope of ‘his own country’ is broader than the concept ‘country of his nationality’. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them.”142

b. At the earliest practicable date: Resolution 194 identifies the time frame for the return of refugees – i.e. “at the earliest practicable date.” Based on the drafting history and debate, the UN Secretariat concluded that:

The [General] Assembly agreed that the refugees should be allowed to return “when stable conditions had been established.” It would appear indisputable that such conditions were established by the signing of the four Armistice Agreements [in 1949].143

Clearly, therefore, the chosen language of paragraph 11(1) indicates that the General Assembly intended Israel to repatriate the Palestinian refugees immediately, and without waiting for any final peace agreement with the other parties to the conflict.

140 See, Analysis of Paragraph 11 of the General Assembly Resolution of 11 December 1948, United Conciliation Commission for Palestine, Working Paper Prepared by the UN Secretariat, UN Doc. A/AC.25/W.45 (Restricted) (Original English) (15 May 1950), available on the UNISPAL website [hereinafter referred to as “Analysis of Paragraph 11”] (the opening sentence of section 3 containing the quoted language) as cited by Boling supra note -- at 13 141 Id. 142 ICCPR, General Comment 27 (1999, paragraph 20) cited in Amnesty International, The Right to Return: The Case of the Palestinians, supra note 128 at 1. 143 See, Analysis of Paragraph 11 (the concluding paragraphs of Part One, section 6 containing the quoted language). See also John Quigley, “Displaced Palestinians and a Right of Return”, 39:1 Harvard International Law Journal, 171, 188 (Winter 1998) for a detailed discussion of the drafting history of the phrase “at the earliest practicable date”, reaching the same conclusion.

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c. Refugee Choice: Resolution 194 affirms that return must be guided by the individual choice of each refugee.144 According to the UN Mediator’s report, the refugees’ “unconditional right to make a free choice should be fully respected.”145 Reviewing the drafting history of Resolution 194, the UN Secretariat stated that in selecting the language of paragraph 11(1), “the General Assembly intended to confer upon the refugees as individuals the right of exercising a free choice as to their future.”146 The legal advisor to the UN Economic Survey Mission reached the same conclusion: “The verb ‘choose’ indicates that the General Assembly assumed that the principle ‘the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so (i.e. the right of return) would be fully implemented, and that all the refugees would be given a free choice as to whether or not they wished to return home.”147 It is essential for the right of return to be explicitly recognized in a peace agreement, in order to allow the voluntary character of return, i.e. refugee choice. 148 Without legal guarantees for the 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, the recognition of the right of return and provisions for its implementation must precede the exercise of the refugee choice to ensure the respect of the will of the individuals. Numerous recent peace agreements affirm the principle of refugee choice. Article 1 of Annex 7 to the 1995 Dayton Agreement, for example, affirms the right of refugees and displaced persons from Bosnia-Herzegovina “freely to return to their homes of origin”. The parties to the Agreement, moreover, “undertake to create in their territories the political, economic, and social conditions conducive to the voluntary return and harmonious reintegration of refugees and displaced persons.”149Another example, the “free will on the

144 For more on refugee choice see BADIL Bulletin No.4. (E/10/2001) found on www.badil.org (February 2001) 145 See Mediator’s Progress Report, part I (“The Mediation Effort”), sect. V (“Refugees”), subsection 8 (containing the quoted language). 146 See Analysis of Paragraph 11 (the opening sentence of section 2 containing the quoted language) 147 See, Paolo Contini, Legal Aspects of the Problem of Compensation to Palestine Refugees (dated 22 November 1949), attached to Letter and Memorandum dated 22 November 1949, Concerning Compensation, Received by the Chairman of the Conciliation Commission from Mr Gordon R Clapp, Chairman, United Nations Economic Survey Mission for the Middle East, United Nations Conciliation Commission for Palestine, UN Doc. W/32 (Restricted) (Original: English) (19 January 1950), available on the UNISPAL website (the opening paragraph to section I containing the quoted language). The Economic Survey Mission was established by the UNCCP in August 1949 as a subsidiary body of the UNCCP to examine the economic situation in the countries affected by the conflict in Palestine and to make recommendations for economic programs to address the existing, and future economic aspects of a solution to the conflict. 148 BADIL, The Right of Return and the Meaning of Refugee Choice, Occasional Bulleting No.4, BADIL Resource Center, 1 February 2000 found on www.badil.org/Press/2001/press10-01.html 149Bosnia And Herzegovina-Croatia-Yugoslavia: General Framework Agreement For Peace In Bosnia And Herzegovina (Dayton Accords), Article II , 35 ILM 75 (1996); The Dayton Agreement is reproduced from United Nations Document A/50/810-S/1995/1021, Annex, of December 8, 1995. It can also be found on http://www.nato.int/ifor/gfa/gfa-an7htm .

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part of each refugee” to exercise their right of return to Rwanda, is affirmed in article 2 of the 1993 Protocol of Agreement Between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on the Repatriation of Rwandese Refugees on the Resettlement of Displaced Persons.150

It is possible to proceed with the determination of refugee choice only once a final agreement is in place, the appropriate conditions for making a free choice exist in the host country and country of origin, and refugees are supplied with adequate information. In order to carry out these procedures there must be an international protection body responsible for the refugees. Such a body must be assured access to refugees in host countries to verify and facilitate refugee choice and it must have access to the returning refugee population in the country of origin to ensure that the rights of refugees are respected and the obligations of the country of origin fulfilled. In the case of Palestinian refugees, however, there is no international agency that currently provides this international protection (as examined in the discussion over Article 1D of the 1951 Refugee Convention and the role of UNCCP, UNHCR and UNRWA).

d. Return of all ‘refugees’: Resolution 194 was drafted to apply to all persons displaced from their homes of origin during the 1948 conflict in Palestine. While the first two drafts of paragraph 11(1) used the term “Arab refugees”, the final draft approved by the General Assembly on 11 December 1948 only used the term “refugees”. The discussion in the General Assembly concerning the draft resolutions indicates that the term “Arab refugees” was initially used simply because most of the refugees were in fact Palestinian Arabs. By using the broader term “refugees”, however, the General Assembly indicated that the rights affirmed in paragraph 11(1) were to be applied on a non-discriminatory basis.151

The right to return applies not only to those who were directly expelled and their immediate families, but also to those of their descendants who have maintained what the Human Rights Committee calls “close and enduring connections” with the area. Lasting connections between individuals and territory may exist independently of the formal determination of nationality (or lack thereof) held by the individuals. General Comment 27 (paragraph 19) explains that:

The right of a person to enter his or her country recognizes the special relationship of a person to that country… It includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person’s State of nationality).152

International law provides a standard for measuring the existence of a “close and enduring connection” between a person and his or her “own country”

150 1993 Protocol of Agreement Between the Government of the Republic of Rwanda and the Rwandese Patriotic Front on the Repatriation of Rwandese Refugees on the Resttlement of Displaced Persons, Article 2, found on http://www.incore.ulst.ac.uk/cds/agreements/pdf/rwan1.pdf 151 GA Resolution 194, Part One, section 1 152 Amnesty International, The Right of Return: The Case of the Palestinians, supra note 128.

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through a set of criteria established by the International Court of Justice in 1955. In the landmark Nottebohm case, which focused on the determination of nationality, the Court held that “genuine” and “effective” links between an individual and a state were based on “… a social fact of attachment, a genuine connection of existence, interests and sentiments…”.153 The Court also noted that: “Different factors are taken into consideration, and their importance will vary from one case to the next: there is the habitual residence of the individual concerned but also the center of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.” Other criteria suggested by the Court include cultural traditions, way of life, activities, and intentions for the near future. The criteria established by the Court are likewise appropriate when determining a person’s “own country” in that they are regarded as a standard measure of the effective existence of ties between the individual and the State.154

1.3. The Right of Return in Peace Negotiations

It becomes abundantly clear from the foregoing analysis that the 1948 Palestinian refugees’ right of return has not diminished since the adoption of Resolution 194 in December 1948 but rather has, on the contrary, gained even greater weight over five decades since the refugees’ initial displacement. The right of return as articulated in Resolution 194 has remained, in the succeeding five decades since its initial promulgation, entirely consistent with binding norms of customary international law. 155 This fact only strengthens the relevance of Resolution 194 in establishing a framework for a durable solution for the problem of the 1948 Palestinian refugees

Accordingly, the full implementation of the right of return – and the other associated rights enumerated in Resolution 194 (i.e. restitution and compensation) – is clearly a logical necessity for both a just and legal peace agreement between Israel and the Palestinians, under international law.

2. The Right to Restitution and Compensation 2.1.1 The Right to Restitution and Compensation in the Context of the

Palestinian Question In addition to the right of return or repatriation, Resolution 194 enumerates another closely related right, the right of restitution, i.e. the right to regain possession of private property belonging to the returning 1948 Palestinian refugees. in 1974, the General Assembly reiterated the right to restitution in the Palestinian context, in resolution 3236, referring to the “inalienable rights of the Palestinians to return to their homes and property from which they

153 Nottebohm case, 1955 ICJ Reports 1, 23 (stating the principle that a state’s determination regarding conferral of nationality status can only be recognised by other states if the determination has fallen within international standards regarding the existence of a ‘genuine link’ between the individual and the State). 154 Amnesty International, Policy Statement, supra note128. 155 The Right of Return – An Analysis of Recent Debates in the Israeli Press, Occasional Bulletin No.5, Published by BADIL Resource Centre, (April 2001) found on www.badil.org

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have been displaced and uprooted”.156 At present, it is not clearly established whether the right to restitution (or repossession) is recognized as a customary rule in human right law.157 Nevertheless, many UN resolution, peace treaties and legal scholars confirm the existence of such right in international law.158 Instead, the focus of international law is on the provision of compensation rather than repossession. Therefore, the remainder of this section will namely focus on the right to compensation, though the right to restitution should be kept on the agenda as one of the essential remedies for the Palestinian question. Resolution 194 provides for the right to compensation on two levels. First, refugees who might chose to exercise their right of return are entitled to receive full compensation for all private property which has been damaged or destroyed, because this is property which these refugees would otherwise be entitled to regain repossession of under the second enumerated right – the right of restitution – if the property had not been damaged or destroyed. Second, (non-returning) refugees who might voluntarily choose not to exercise their priority rights of return and restitution. This group of non-returning refugees is also entitled to receive full compensation for all of their property, irrespective of whether it has been damaged or destroyed, because they had been wrongfully displaced from it in violation of international law. 159

The two existing Peace Treaties between Israel and Egypt and Jordan respectively have not dealt with the issue of compensation of individuals, despite broad references to the concept. In Article VIII of the Egypt-Israel Peace Treaty of 1979, the parties establish a ‘claims commission for the mutual settlement of all financial claims.”160 However, to date, such claims commission has not been established. The 1994 Israel-Jordan Peace Treaty provides in Article 8 that the issue of private property will be deferred to further discussions.161 The principle that refugees are entitled to compensation for their lost property is increasingly gaining support in international law (see Section 2.3). In 1992, the International Law Association adopted the Cairo Declaration of Principles of International Law on Compensation to Refugees, which aimed to reflect customary international law. Principle 4 of the Cairo Declaration provides that “[a] State is obligated to compensate its own nationals forced to leave their

156 G.A. Res. 3236, UN GAOR, 29th Sess., Supp. NO.31, para.2, UN Doc. A/9631 (1974) 157 Eyal Benvenisti and Eyal Zamir, Private Claims to Property Rights in the Future Israeli-Palestinian Settlement, 89 American Journal of International Law 263, 325-326 (1995). 158 For a detailed analysis of the issue of compensation of refugees, see, Luke Lee, “The Right to Compensation: Refugees and Countries of Asylum2, 80 AJIL 532 (1986), also by the same author “The Issue of Compensation for Palestinian Refugees” International Development Centre’s Workshop on Compensation for Palestinian Refugees, Ottawa July 14-15, 1999 reproduced on Palestinian Refugee Research Net website http://www.arts.mcgill.ca/MEPP/PRRN/prcomp3.html#papers 159 Donna Arzt, “The Right to Compensation: The Right to Compensation Basic Principles Under International Law”, International Development Centre’s Workshop on Compensation for Palestinian Refugees, Ottawa July 14-15, 1999 reproduced on Palestinian Refugee Research Net website http://www.arts.mcgill.ca/MEPP/PRRN/prcomp3.html#papers 160 Treaty of Peace, March 26, 1979, Israel-Egypt, 1138 UNTS 59, 72-75. 161 Israel-Jordan Peace Treaty, supra note 37, Article 8.

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homes to the same extent as it is obligated by international law to compensate an alien.”162

2.2 Treatment of Palestinian Property under Israeli Law

Palestinian refugees who fled Israel following the establishment of the State of Israel left an enormous amount of property behind them.163 Additionally, many Palestinians who remained inside the borders of Israel were expelled from their homes or found their property occupied by Jewish settlers. To regulate the administration of all this property, the government of Israel enacted special property laws. The 1950 Absentees’ Property Law defines an ‘absentee’ as a “person who, at any time after November 29, 1947, was a national or citizen of the one of the Arab countries fighting against Israel, or was in one of those countries, or had left his or her ordinary place of residence in Eretz Yisrael (Palestine) of a place outside Eretz Yisrael or for a place in Eretz Yisrael held at the time by forces that were fighting against the State of Israel.” 164 This exhaustive list also ensured that many Palestinians who later returned to become Israeli citizens were considered ‘absentees’ according to this law.

This law severed the proprietary link between absentees and their land and vested these lands in the Custodian of Absentees’ Property who, in turn, was authorized to transfer the ownership of absentees’ land to the Development Authority, which is registered as the legal owner of the land. Clearly, this legislation embodies the rationale and spirit of legislation dealing with the administration of enemy property during wartime. The application of this law to Arab citizens who became Israeli citizens and the residents of East Jerusalem were clearly viewed as unlawful taking, and therefore the Israeli parliament enacted in 1973 the Absentees’ Property (Compensation) Law to compensate the now Israeli citizens whose property was vested on the Custodian of Absentees’ Property. In practice, however, the compensation of these rights has yet to be realized.165

Moreover, many Palestinians abandoned their properties in the West Bank and Gaza Strip. The Israeli military government handles this property according to special orders issued in 1967. The Order Concerning Abandoned Assets defines ‘abandoned property’ as private property whose rightful owners and possessors have left the territory.166 Such property is automatically vested in the Commissioner of Abandoned Property, who has the role of keeping and managing the property for its rightful owner. The order provides for the release of the property and its proceeds to its owners or rightful possessor upon their return.167

2.3 Compensation for Human Rights Violations under International Law

162 Luke T. Lee, “The Cairo Declaration of Principles of International Law on Compensation to Refugees”, 87 American Journal of International Law 157 (January 1993). 163 For an in depth analysis of losses incurred by Palestinians in 1948, see Sami Haddawi, Palestinian Rights & Losses in 194:8 A Comprehensive Study (1988). 164 Benvenisti & Zamir, supra note 157 at 300. 165 Id., at 301. 166 Id., at 308 footnote note 77. 167 Ibid.

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2.3.1 Compensation in Treaty Law

The right of individuals to receive compensation for injuries resulting from the violation of human rights has been increasingly gaining unanimous support and recognition in international law. A number of both universal and regional human rights instruments contain express provisions relating to the right of every individual to an "effective remedy" by competent national tribunals for acts violating human rights, which are granted to him by the constitution or by law. Such formulation is contained in Article 8 of the Universal Declaration of Human Rights;168 Article 2 (3) (a) of the International Covenant on Civil and Political Rights;169 and in Article 6 of the Declaration on the Elimination of All Forms of Racial Discrimination.170

Some human rights instruments refer to a more precise "right to be compensated in accordance with the law" (Article 10 of the American Convention on Human Rights)171, or the "right to an adequate compensation" (Article 21 (2) of the African Charter on Human and Peoples' Rights).172 Speaking of "compensatory damages" (Article 68), the American Convention on Human Rights provides that the consequences of the measure or situation that constituted the breach of the right or freedom "be remedied" and that "fair compensation be paid to the injured party" (art. 63 (1)).173

Article 9 (5) of the International Covenant on Civil and Political Rights, and Article 5 (5) of the European Convention for the Protection of Human Rights and Fundamental Freedoms are more specific in referring to the "enforceable right to compensation".174 Similarly, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment contains a provision that provides the victim of torture with a redress and "an enforceable right to fair and adequate compensation, including the means for as full a rehabilitation as possible" (Article 14 (1)).175 Also, the Declaration on the Protection of All Persons from Enforced Disappearance provides that the victims of acts of enforced disappearance and their families shall obtain redress and shall have the right to adequate compensation, in order to allow as complete a rehabilitation as possible (Article 19).176

In some instruments, a particular provision is contained indicating that compensation is due in accordance with international law or with national law (Article 14 (6) of the International Covenant on Civil and Political Rights and Article 11 of the Declaration on the Protection of All Persons from Being

168 Universal Declaration of Human Rights, supra note 108, Article 8. 169 International Covenant on Civil and Political Rights, supra note 109, Article 2 (3) (a). 170 Declaration on the Elimination of All Forms of Racial Discrimination, supra note 110, Article 6. 171 American Convention on Human Rights, supra note 113, Article 10. 172 African Charter on Human and Peoples' Rights, supra note 14, Article 21(2). 173 American Convention on Human Rights, supra note 113, Article 63(1) & 68. 174 ICCPR, supra note 109 Article 9(5). 175 European Convention for the Protection of Human Rights and Fundamental Freedoms, supra note 115, Article 5(5) 176 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984, in force 26 June 1987, U.N.G.A. 39/46 Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 at 197, 23 I.L.M. 1027 (1984). See, Article 14(1).

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Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).177

Finally, Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination provides for the right to seek "just and adequate reparation or satisfaction for any damage suffered". The International Labor Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries also refers to "fair compensation for damages" (Article 15 (2)), to "compensation in money" and "under appropriate guarantees" (Article 16 (4)), and to full compensation "for any loss or injury" (Article 16 (5)).178 Clearly, the right to reparation (restitution and compensation) for victims of violations of human rights has gained significant importance and practice with the arrival of the multitude of regional and international human rights conventions and tribunals. One of the most authoritative bodies in international human rights law, the Human Rights Commission, published a “Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms.”179 In addition to offering an in depth analysis of the various treaty provisions mentioned above, the Study clearly emphasizes the imperative need for redress and reparation to victims of violations of human rights.180

2.3.2 The Law of State Responsibility

In international law, State responsibility arises from an internationally wrongful act of a State. State responsibility refers to the liability of States for conduct in violation of the rules of international law and resulting in injury to other States. The International Law Commission (ILC) Draft Articles on State Responsibility represent an authoritative statement of the principles regulating this area of international law, which have been in the process of being drafted by the ILC for several decades now.181 Although these Articles have not been adopted yet, most of the principles contained therein have already been confirmed by international courts and UN Resolutions, and are therefore considered customary international rules. It is important to note that the law on State responsibility governs the liability of States vis-à-vis other States, not individuals per se. Nevertheless, States represent the interest of their subjects and pursue claims on their behalf based on these principles (see the principle of espousal examined in section

177 International Convention on the Elimination of All Forms of Racial Discrimination, supra note 110, Article 6. 178 International Labor Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries, I.L.O. No. 169, 27 June 1989, in force 5 September 1991, 28 I.L.M. 1382 (1989), Articles 15 & 16. 179 Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study Concerning The Right To Restitution, Compensation And Rehabilitation For Victims Of Gross Violations Of Human Rights And Fundamental Freedoms, 45th Session, E/CN.4/Sub.2/1993/8 (2 July 1993). 180 Id. p.53 181 International Law Commission Draft Articles on State Responsibility, Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 May – 26 July 1996 (A/51/10). [Hereinafter “ILC Draft Articles on State Responsibility”] (The ILC is a UN body composed of geographically diverse legal experts.)

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III(1) below). Putting aside the procedural characteristics of claims under State responsibility, the principles embodied in this area of law are relevant in this context given that they represent the substantive rules establishing the liabilities and remedies between States. According to the International Law Commission (ILC)’s 1996 Draft Rules on State Responsibility, every wrongful act of a State under international law entails the international responsibility of that state (Article 1). International wrongful acts of a State occur when conduct consisting of an action or omission which: (a) is attributable to the State under international law; and b) that conduct constitutes a breach of an international obligation of the State (Article 3).182 It does not matter whether the international obligation is found in customary law or treaty; nor does it matter whether the same act is considered lawful by the state’s own internal law (Article 4). However, a breach only occurs “if the act was performed at the time when the obligation was in force for that State”. 183 In Chapter II of the Second Part of the Draft Articles pertaining to remedies, Article 42 entitled “reparation”, provides that an injured State is “entitled” to obtain as remedy for an internationally wrongful act “ full reparation in the form of restitution in kind, compensation, satisfaction and assurances and guarantees of non-repetitions, either singly or in combination.”184 From the outset it is clearly established that the injured state is entitled to obtain reparation and thus makes the discharge of the duty of compensation conditional upon a corresponding claim on the part of the injured State.185 Article 44, entitled “compensation”, provides that the injured State is entitled to obtain compensation, “if and to the extent that the damage is not made good by restitution in kind.” It specifies that compensation “covers any economically assessable damage sustained by the injured State, and may include interest and, where appropriate, loss of profits.”186 International law does not require that a state be found to be at fault in order to make redress for injuries. In other words, according to leading jurist Ian Brownlie, international tribunals usually follow the theory of “objective responsibility”, i.e. provided that agency and causal connection (“attribution”) can be established, a breach of international law occurs through the result alone. 187 Even where a state’s agents have acted beyond their authority (ultra vires) or in the absence of intention to harm (dolus malus) or even in the presence of good faith on behalf of the State, the latter will bear

182 ILC Draft Articles on State Responsibility, supra note 181, Article 3. 183 Id., Articles 1, 3, 4, 17, 18(1). The state seeking redress has the burden of proving these factors, while the respondent state has the burden of establishing any defenses; these burdens may shift to the party that has control over the evidence. Thus, in the case of the Palestinian refugees, the relevant questions would be a)whether, in 1948 and 1949, the flight of Palestinians from their homes was attributable to the acts or omissions of the State of Israel; and b) if so, whether the obligation not to cause persons to become refugees was in force for Israel at that time. 184 Id., Article 42. 185 Id., Comment No. 8 186 Id., Article 44. 187 Ian Brownlie, Principles of Public International Law, Chapter XXI at 440-444 (5th ed. 1998),

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responsibility for all its acts that fail to conform to international legal standards.188

With regard to human rights, the issue of State responsibility comes into play when a State is in breach of the obligation to respect internationally recognized human rights, which the State is bound to respect and ensure with respect to all persons. Such obligation has its legal basis in international agreements, in particular international human rights treaties, and/or in customary international law, in particular those norms of customary international law, which have a peremptory character (jus cogens). Also, it is generally accepted that States do not only have the duty to respect internationally recognized human rights but also the duty to ensure these rights, which may imply an obligation to ensure compliance with international obligations by private persons and an obligation to prevent violations.189 If Governments fail to apply due diligence in responding adequately to or in structurally preventing human rights violations, they are legally and morally responsible.190

2.3.3 Scope of Compensation

In the landmark 1928 Chorzow Factory Case involving Polish expropriation of German-owned industrial property inside Poland, the Permanent Court of International Justice (predecessor to the ICJ) stated: “[R]eparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.” 191 The Court then ruled that this can be accomplished through restitution in kind, or if that is not possible, through just compensation, meaning “payment of a sum corresponding to the value which a restitution in kind would bear”, and “the award, if need be, of damages for loss sustained which would not be recovered by restitution in kind or payment in place of it”, such as lost profits.192

The PCIJ set forth two standards for compensation: (i) for an illegal taking, the “payment of a sum corresponding to the value which a restitution in kind would bear”; and (ii) for other takings, “the value of the undertaking at the moment of dispossession, plus interest to the day of payment.”193

As for the ILC’s 1996 Draft Rules on State Responsibility, they provide that that compensation “covers any economically assessable damage sustained

188 Brownlie, supra note 187 at 444. Brownlie does cite a few examples to the contrary where, for instance, losses caused by acts of rebellion or by private individuals were held not to give rise to state responsibility. Also, in the author’s view, this approach may prove helpful in convincing Israel that it can provide compensation without having to admit fault. 189 See further Theodor Meron, Human Rights and Humanitarian Norms as Customary Law, 1989, pp. 165; Naomi Roht-Arriaza, "State responsibility to investigate and prosecute grave human rights violations in international law", California Law Review, vol. 78 (1990), pp. 451, 471.

190 See Meron 171 & Roht-Arriaza at 471. 191 Chorzow Factory Case (Germany v. Poland), 1928 PCIJ (Ser. A) No.17 (Judgement of 13 Sept.1928) 192 Id. 193 Id., at 47.

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by the injured State, and may include interest and, where appropriate, loss of profits.”194

Arguably, “economic assessable damage” should be interpreted to include material damage caused to the State as well as “moral damage” to the persons of the injured State’s nationals or agents as human beings (the point being that moral damage to the injured State and moral damage to the injured State’s nationals or agents receive different treatment under international law).195 With regard to refugees, there is no clear international legal norm identifying the standard of compensation. This has often been set up by international agreements between the States concerned, by national courts and legislation or arrangements sponsored by international organizations (such as the case of Yugoslavia).

2.3.4 The Right to Compensation in Peace Negotiations In principle, Palestinians can seek reparation for the violation of their various human rights resulting from their expulsion from their home area, regardless of whether a person owned real property, and regardless of whether the person elects to be repatriated. Under international human rights law, arguments can also be raised for compensation for loss of wages, moral damages and ill treatment. As for material losses, individuals can seek restitution in kind of their property (homes, lands etc.), if such restitution is feasible. In the event the restitution is impossible, they should be entitled to compensation for the full value of the property. Some would argue, under general principles of law, that compensation should also include the value of lost use and enjoyment (or rent earned by violator), physical damages to the property itself, loss of investment and accrued interest. In addition to real property, some commentators argue that compensation is due for loss of personal property as well as any deprivation of access to financial resources, for example, funds Israel withheld from bank accounts of Palestinians before the banks remitted funds to account holders.

It is clear that there is a vast array of compensation claims that individuals can claim under international human rights law. Given the passage of time and the magnitude of the losses incurred by Palestinians, the task of determining these claims and proving them with accuracy and fairness will be an impossible one. Moreover, in the case of refugees, international law does not provide a clear formula for compensation. Commentators often argue on whether refugees should be given full or adequate compensation, and whether refugees should also be entitled to moral damages etc. State practice, however, reveals that solutions are often found when governments agree on the kind of admissible claims and the mechanisms for their implementation within a framework agreement (see Section III 2.2).

194 Article 44 Draft Article on State Responsibility, supra note 181. 195 Id., Comment No. 19.

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In summary, compensation in lieu of repossession of property is viewed as an alternative in the international efforts to resolve the refugees’ problem (such as in Cyprus and Bosnia). In the case of Palestinians, the prospect of a full return scheme seems increasingly unlikely and thus many refugees would have to settle for compensation instead. Compensation would undoubtedly play an important role in finding a solution for Palestinian refugees (returning and non-returning). Therefore, carefully designed procedures to process claims to compensation are the key to providing an effective compensation scheme.

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III. INTERNATIONAL MECHANISMS & IMPLEMENTATION

Having examined the legal basis of Palestinian individual rights, it is clear that the moral, political and legal recognition of such rights is crucial for the realization of such rights. Nevertheless, it is insufficient in itself for the implementation of such rights unless it is supported by appropriate legal mechanisms for the establishment and processing of ensuing claims. This section offers an overview of precedents established to settle similar claims in various international crises. The parallel should help shed light on potential solutions that could serve to propose a framework for a future Palestinian-Israeli final status arrangement.

The important factors are the processes through which private persons may prove their claims (to a national or to an international institution) and the methods of payments (a direct payment by one state to the claimant, or indirect payment to the claimant’s government or a lump sum payment to an international institution).196 An examination of the possible frameworks will help to identify the most appropriate method in the Israel-Palestinian context. This part of the paper begins by examining the role of individual rights claims in international law (Section 1). This is followed by an overview of State practice in implementing the right of return and repatriation (Section 2.1) and the right to compensation and restitution (Section 2.2.). Section 3 concludes by examining the available mechanisms and fora for the enforcement and implementation of individual rights as they may apply in the Palestinian case.

1. Individual Rights Claims in International Law

Traditionally, international law has applied only to the relation between states. States are deemed injured through injuries caused to them directly, to their agents, or their nationals by other States. 197 Moreover, when a state causes an injury to a private person who is an alien (whether a natural person or a corporation), it is deemed to be an injury to the foreign state of which the alien is a national (or where the company is incorporated). The injury can be to the national’s human rights, personal safety, property or other interests. When a state, for example, expropriates the property of foreign investors, the state of which the investors are nationals has the option to diplomatically espouse the alien’s claim. A state’s “espousal” can take the form of negotiation, mediation, conciliation (including by conciliation commission), arbitration, or adjudication, all of which require the respondent state’s consent, or, under limited circumstances, non-forceful and proportional unilateral counter-measures. In this perspective, the victims themselves have no locus standi (standing) to bring international claims against States. The claimant State maintains control over the espoused claim and decides whether to bring the claim against the offending State, and, in fact, it can waive the claim if it wishes to for political

196 Eyal Benvenisti, “Principles and Procedures for Compensating Refugees: International Legal Perspectives”, International Development Centre’s Workshop on Compensation for Palestinian Refugees, Ottawa July 14-15, 1999 at 2-3; reproduced on Palestinian Refugee Research Net website http://www.arts.mcgill.ca/MEPP/PRRN/prcomp3.html#papers 197 See PCIJ opinions in the cases of Mavrommatis, PICJ Series A (1924), Chorzow PICJ Series No. 17 (1928) and the Serbian Loans case, PICJ No. 20 (1928).

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reasons. If the payment of reparations is made to the State, the latter would normally then turn it over to the injured national.198

Accordingly, most established international tribunals have only allowed access for States. For instance, Article 34(1) of the Statute of the ICJ provides that: “ Only States may be parties in cases before the Court.” This has placed a procedural limitation on individuals seeking compensation against a State for violation of their individual rights, given that they have been traditionally compensated only through the medium of the State of which they are nationals. Moreover, state responsibility has been associated with the protection of aliens injured by a host State. A State is unlikely to exercise the diplomatic protection to make a claim on behalf of its citizens against itself. Accordingly, in the context of reparation for refugees, another limitation exists where the State of nationality of the individual is the cause of its injuries. Nevertheless, the State of Asylum can ultimately adopt the claim of a refugee, given that all States have a vested interest in protecting and enforcing human rights. International human rights law imposes obligations on all states to protect the rights of all individuals, whether nationals, aliens or the stateless. It is generally recognized under international law that an “international wrongful act,” for which a State is held internationally responsible, includes specifically actions in violation of human rights, to nationals or aliens alike. Recent developments in international law have offered numerous judicial remedies to these procedural limitations, whereby individuals are increasingly recognized as actors of international law under human rights treaties and regional human rights courts. 199 For example, regional human rights courts, such as the European Court of Human Rights and the Inter-American Court of Human Rights, have been set up to open up access by individuals to bring actions against States’ courts. Nevertheless, such regional mechanisms remain limited in application and scope, given that they do not exist for persons living outside of Europe and North and South America.

2. State Practice in Implementing Individuals’ Rights 2.1 Implementation of the Right of Return/ Repatriation

State practice provides rich precedent for, and evidence of, opinio juris ((a sense of legal obligation) regarding the existence of a customary international law rule requiring countries of origin to allow the return of persons displaced or expelled therefrom (which confers upon them the related right of restitution, or repossession, of private property by the displaced original owner). The obligation of states to allow refugees to return to their homes of

198 See Donna E Arzt and Igor I Lukashuk, “Participants in International Legal Relations”, in Charlotte Ku and Paul F Diehl, International Law: Classic and Contemporary Readings (Lynne Rienner Pub. 1998) 199 The UN Commission on Human Rights has noted that “the question of restitution, compensation and rehabilitation of victims of grave violations of human rights and fundamental freedoms has received insufficient attention and should continue to be addressed in a more systematic and thorough way at the national and international levels.” Preamble to Resolution 1997/29. Yet even the Commission is still in the process of investigating this question. See its Resolution 1999/33.

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origin was solidly established well before the events of 1948 and continues to gain greater weight with each additional instance of state practice implementing the right of return.200

The UNHCR recognizes promotes three main durable solutions to address refugee population flows – voluntary repatriation, voluntary absorption and voluntary resettlement – that are to be implemented under its auspices. Nevertheless, in conformity with the trend in international law, UNHCR recognizes that the principle of “voluntary repatriation” (or return to their homes of origin) is the best among the three main durable solutions.201

Bilateral and multilateral mechanisms for repatriation of refugees provide rich evidence of a trend favoring the implementation of the right of return. Returns of mass groups of displaced persons to their homes of origin have occurred with the express acknowledgement of the international community, as well as with the explicit recognition by the parties to the underlying conflict themselves, that the persons returning to their homes of origin are doing so as a matter “of right”. Prominent examples include the 1994 Bosnia Agreement202, the 1995 Dayton Agreement, Annex 7, 203 the 1995 Croatia Agreement,204 and the 1994 Guatemala Agreement.205 All four agreements describe the right of refugees and displaced persons to return to their “homes of origin” (just as the right was phrased in Resolution 194) as being unqualified. Another example is the final peace agreement for Cambodia, which stated that “Cambodian refugees and displaced persons located outside Cambodia shall have the right to return to Cambodia.”206

200 In practice, the right of return has been affirmed in many international peace treaties, including peace agreements in former Yugoslavia (the 1995 Dayton Agreement being the most prominent), Rwanda, Mozambique, Guatemala, and Cambodia among others. Numerous UN resolutions, moreover, have called for and affirmed the rights of refugees to return to their homes, from Algeria and Rwanda in the 1960s (GA Res. 1672, 18 December 1961; GA Res. 1743, 27 February 1962) to Bosnia-Herzegovina (e.g., SC Res. 820, 17 April 1993), Georgia (SC Res. 876, 19 October 1993) and Kosovo (SC Res. 1199, 23 September 1998) in the 1990s, among others. 201 See e.g. Takkenberg, supra note 12 at 233 (stating “(v)oluntary repatriation is considered by UNHCR, as well as by many others, the best of the “three durable solutions” to deal with refugee problems”) (footnote omitted): Id. 320 (stating “(v)oluntary repatriation in peace and dignity is by far the preferred solution to any refugee situation”. (footnote omitted); Id. (stating “(t)he prominent place that voluntary repatriation presently takes in the search for solutions is clearly recognised by the international community,” and citing extensive authority for this proposition). 202 Croat Representative Kresimir Xubak: Confederation Agreement Between The Bosnian Government and Bosnian Croats, Washington DC, March 1 1994 (Article V(2): “All refugees and displaced persons have the right freely to return to their homes of origin.”) 203 See the Dayton Peace Agreement, Annex 7: Agreement on Refugees and Displaced Persons, 21 November 1995 (between the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, and the Republika Srpaka) (Article 1: All refugees and displaced persons have the right to return to their homes of origin…) 204 See the Erdul Agreement, signed in Erdul, Croatia and in Zagreb, Croatia, 12 November 1995 (between Serbian and Croatian negotiators) (Article 4: “The Transitional Administration shall ensure the possibility for the return of refugees and displaced persons to their homes of origin. All persons who have left the Region or who have come 205 See Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict, Oslo, 17 June 1994 (regarding Guatemala). 206 See Final Act of the Paris Convention on Cambodia, art.20.1,pt.V., UN Doc. A/46/608 (1991)

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The case of Georgia is of particular interest to the Palestinian case, given the similarity with Resolution 194. The Security Council specifically stated that the right of the refugees to return to their homes of origin was independent of any final political solution (and therefore could not be conditioned upon political demands made by any of the parties to the conflict):207

Security Council Resolution 1097208 (1996): “reaffirm[ed] the right of all refugees and displaced persons affected by the conflict to return to their homes… in accordance with international law [and]… stress[ed] the unacceptability of any linkage to the return of refugees and displaced person with the question of the political status of Abkhazia, Georgia.” (emphasis added)

Another strong parallel to Resolution 194 is the case of Namibia, where the Security Council affirmed the right of return (repatriation) of Namibians, again independent of any political solution (and, therefore, as an absolute right, which could not be conditioned upon political considerations). Security Council Resolution 385 states that repatriation of Namibians should be implemented by South Africa “pending the transfer of power” without awaiting a political settlement. 209

The Dayton Accord, in particular, offers a striking resemblance to the case of Palestinians. The rights accorded to displaced persons in that agreement reflect the three rights articulated for the 1948 Palestinian refugees in Resolution 194 – namely: (1) the right of return (repatriation); (2) the right of restitution (repossession); and (3) the right of compensation.210 Article VII of the Dayton Accord states:

Recognizing that the observance of human rights and the protection of refugees and displaced persons are of vital importance in achieving a lasting peace, the Parties agree to and shall comply fully with the provisions concerning human rights set forth in Chapter One of the Agreement at Annex 6 as well as the provisions concerning refugees and displaced persons set forth in Chapter One of the Agreement at Annex 7.

Annex 7, entitled Agreement on Refugees and Displaced Persons, provides in Article 1:

Article I: Rights of Refugees and Displaced Persons

207 Boling, supra note 105 at 45-46. 208 See S.C.Res. 1097, UN SCOR, 51st Sess., 3712th mtg. at para.8, UN Doc. S/RES/1097 (1996) 209 See S.C.Res. 385, UN SCOR, 31st Sess., Res. & Decs., 8, para.11(d), UN Doc. S/INF/32 (1977) 210 General Framework Agreement for Peace and Herzegovina (“Dayton Accord”), supra note 149, found on htttp://www.nato.int/ifor/gfa; See, e.g. Eric Rosand, “The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent?”19 Michigan J. Int’l. Law 1091, 1102 (Summer 1998).

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All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them. The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina. The Parties confirm that they will accept the return of such persons who have left their territory, including those who have been accorded temporary protection by third countries.211

This agreement offers an interesting precedent, as it provides for the establishment of an independent Commission for Displaced Persons and Refugees. Annex 7 states, in part:

Article VII: Establishment of the Commission

The Parties hereby establish an independent Commission for Displaced Persons and Refugees (the "Commission"). The Commission shall have its headquarters in Sarajevo and may have offices at other locations, as it deems appropriate.

Article XI: Mandate

The Commission shall receive and decide any claims for real property in Bosnia and Herzegovina, where the property has not voluntarily been sold or otherwise transferred since April 1, 1992, and where the claimant does not now enjoy possession of that property. Claims may be for return of the property or for just compensation in lieu of return.

Also, in the context of the conflict in Bosnia and Croatia, the UN Security Council has unambiguously declared that the right of refugees (and displaced persons) to return to their “homes of origin” (which is strikingly similar to the way the right of return is phrased in Resolution 194) is absolute. The Security Council issued several resolutions affirming this particularly relevant formulation of the right of return.212

211 Dayton Accord, supra note 149, Annex 7 Article I (emphasis added). 212 Some of the relevant examples include:

�Security Council Resolution 1145 (1997): “reaffirming the right of all refugees and displaced originating from Republic of Croatia to return to their homes of origin throughout the Republic of Croatia”, See S.C. Res. 1145, UN SCOR, 52d Sess., 3843 mtg., preamb. & para. 7, UN Cod. S/RES/1145 (1997); �Security Council Resolution 1088 (1996): “[w]elcom[ing] the commitment of the parties to the right of all refugees and displaced persons to return to their homes of origin in safety”, see S.C.Res. 1088, UN SCOR, 51st Sess., 3723d mtg.at para. 11, UN Doc. S/RES/1088 (1996); �Security Council Resolution 1079 (1996): “reaffirm[ing] the right of all persons originating from the Republic of Croatia to return to their homes of origin through the

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Finally, in another significantly important parallel to the Palestinian case, in both the Bosnia and the Kosovo repatriation schemes, devised by the international community, individual and collective rights were jointly protected. In both Bosnia and Kosovo:

The collective rights to an independent entity or statehood were preserved, along with a mechanism for individual refugees to assert their claims to repatriate and obtain restitution and/or compensation. Each of these situations involved the establishment of claims commissions as part of a negotiated settlement, but the right of the individual to assert his/her claim was preserved independently of the outcome of the self-determination issue.213

2.2 Implementation of the Right to Compensation and Restitution

Customary international law has provided rights of compensation to private persons during war against the enemy state, since the end of the Eighteenth Century.214 Even before World War II, claims commissions awarded compensation to survivors of civilians killed during war and for destroyed property.215 The International Criminal Tribunal for the Former Yugoslavia (“ICTY”) provides that, after judgments of conviction, the Trial Chamber may hold a special hearing to determine the restitution of property, and the Tribunal’s judgments as to criminal responsibility of convicted persons shall be considered final and binding in regard to claims for compensation brought by victims in national courts or other bodies.216 Other potential models include German reparations to individual Holocaust survivors and to the State

Republic of Croatia”, See S.C.Res. 1079, UN SCOR, 51st Sess., 3712th mtg., para 4, UN Doc. S/RES/1079 (1996);. �Security Council Resolution 1019 (1996): demanding that the government of Croatia “respect fully the rights of the local Serb population including their right to remain [in] or return [to their homes of origin] in safety”,See S.C.Res. 1019, UN SCOR, 50th Sess., 3591st mtg. Paras.6-7, UN Doc. S/RES/1019 (1995); � Security Council Resolution 947 (1994): “[a]ffirm[ing] the right of all displaced persons to return voluntarily to their homes of origin in safety and dignity with the assistance of the international community.” � Security Council Resolution 820 “[r]eaffirms once again that any taking of territory by force or any practice of ‘ethnic cleansing’ is unlawful and totally unacceptable… insisting that all displaced persons have the right to return in peace to their former homes,” see S.C.Res. 820, UN SCOR, 48th Sess., 3200 mtg. preamb. & para.7, UN Doc. S/RES/820 (1993).

213 See Susan M Akram and Terry Rampel, “Recommendations for Durable Solutions for Palestinian Refugees: A Challenge to the Oslo Framework”, Palestinian Yearbook of International Law (forthcoming volume for 2000-2001) 214 John Quigley, “Compensation for Palestinian Refugees: Initial Comments”, International Development Centre’s Workshop on Compensation for Palestinian Refugees, Ottawa July 14-15, 1999 found on Palestinian Refugee Research Net website; http://www.arts.mcgill.ca/MEPP/PRRN/prcomp3.html#papers 215 Treaty of Versailles, 28 June 1919; and Benjamin Ferencz, “Compensating Victims of the Crimes of War”, 12 Va. J. Intl Law 343 (1972) 216 Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia, as amended, IT/32/, Rules 105 and 106, found on ICTY’s website http://www.un.org/icty/index.html

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of Israel217, as well as recent developments concerning Jewish assets and cultural property taken by Swiss banks and other ostensibly “neutral” Nazi allies.

Recent examples of State practice and UN-sponsored implementation of the right of compensation and restitution include: Hutus repatriated to Rwanda after civil war; Cambodians repatriated under the agreement ending civil conflict; Abkhazia (Security Council and five-nation contact group calling for repatriation of displaced Georgians); Turks repatriated to Crimea after 1944 expulsion; Muslims, Croats, and Serbs repatriated to Bosnia under 1995 Dayton agreement; Serbs repatriated to Croatia; Kosovars repatriated to Kosovo under NATO auspices and UN Security Council; Guatemalans repatriated to Guatemala after civil war; the repatriation/repossession of Greek Cypriots in Northern Cyprus (European Court of Human Rights decision discussed below).218

The case of Sudeten Germans is a recent example of the survival of individual rights following political agreements between governments. Several million Sudeten Germans were expelled from Czechoslovakia in 1945-46. In 1997, Germany and the Czech Republic made respective declarations in which Germany expressed its regret for occupying Czech territory in 1938, and the Czech Republic expressed its regret for expelling the Sudeten Germans. The parties agreed that Germany would not pursue claims on behalf of the Sudeten Germans, and that it would support the Czech application for membership in the European Union.219 Despite these declarations, the European Parliament viewed this as an issue of individual rights and adopted, in 1999, a resolution calling on the Czech Republic to repeal the expulsion decrees of 1945-46 (expelling the Sudeten Germans) as a condition of admission to the European Union. This shows that, although Germany and the Czech Republic may have resolved the issue in their bilateral relations, they did not resolve the problem as a matter of individual rights. Hence, this serves as evidence of the possibility of the survival of individual rights in the event that Israel and the Palestinian Authority agree on a final status agreement that relinquishes the claim of individual rights of Palestinians.

The area of indigenous rights is of significant relevance for the Palestinian case, given recent court decisions and legislation in the area. Canada and Australia have been at the forefront of the effort to make redress for native land confiscation in the distant past. Both countries have enacted legislation and put in place special commissions for such a purpose. For example, in Australia, following the 1992 Mabo v. Queensland judgment of the High Court of Australia, the federal legislature adopted the 1993 Native Title Act, which provides compensation to native title holders whenever a validated past act of the Commonwealth extinguished native title.220 For validated past acts which did not extinguish title, the law provides compensation when the original act was discriminatory, i.e. when it could not have been done over non-aboriginal

217 Agreement Between the Federal Republic of Germany and Israel, 162 UNTS 205, 10 Sept 1952. 218 Quigley, supra note 214 at 2. 219 Id. at 1 220 Arzt, supra note 159 at 6.

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land, or when it constituted an acquisition of property on unjust terms.221 Similarly, Canadian courts have awarded restitution of title and compensation to native nations on the basis of historical title. Interestingly, Canadian courts have even accepted oral history as evidence for establishing historical title to native land.222

In the context of a mass dispossession, the rights of property owners as individual rights have been affirmed by the European Court of Human Rights in the case of a Greek Cypriot woman denied access to her real property in northern Cyprus (Judgment of 18 December 1996, Loizidou v. Turkey). Turkey responded that the matter of property rights in northern Cyprus was being handled at the political level, and that court rulings on the rights of individual owners might interfere with that process. The Court said in this regard, “Nor can the fact that property rights were the subject of inter-communal talks involving both communities in Cyprus provide a justification for this situation under the Convention.” (Judgment of 18 December 1996, Loizidou v. Turkey (merits), para. 64) The European Court of Human Rights said that Turkey was violating the woman’s enjoyment of her rights in property by denying her access to the land she owned and awarded her compensation. Thus, in the Court’s view, individual rights in property subsist, despite dispositions in inter-governmental agreements.

Similar to the case of Israel’s treatment of Palestinian refugees, there were numerous resolutions adopted by the UN General Assembly and Security Council, as well as by numerous other international organizations condemning the Turkish invasion of Cyprus and demanding the return of Greek Cypriot refugees to their homes and calling for the respect of their human rights by Turkey. Nevertheless, Turkey has consistently refused the implementation of UN Security Council Resolution 361 and General Assembly 3395. Therefore, the Loizidou case offers a valuable precedent for several reasons.

First, the Court ordered Turkey to return the property to its owner (Ms. Loizidou) and compensate her for the interference with her right to full enjoyment of her property. The court found that Turkey was in violation of the European Convention for the Protection of Human Rights, which provides that “every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the

221 Id., referring to Sections 17 and 18 of the Native Title Act. See Daniel C H Mah, “The National Native Title Tribunal Compensation Issues – A Discussion Paper” (April 1995), available at http:/www.murdoch.edu.au/law/issues/v2n1/mah.txt. Mah writes: “[C]an indigenous people claim compensation for the loss of their spiritual connection with their land? Established principles of valuation under compulsory acquisition statutes allow compensation to be paid for the ‘special value’ of the land to the owner of ordinary land title. However, this special value is usually limited to value arising from some special feature, or the location, of the land rather than sentimental value… [I]t is at least arguable that failure to compensate for the loss of connection with land would be to fail to justly compensate for the extinguishment or suspension of native title.” Id., citing D. Brown, Land Acquisition (3rd ed., Butterworths, 1991), p.97; Onus v. Alcoa of Australia Ltd. (1982) 149 CLR 27; and Hansard, House of Representatives, 16 Nov 1993, p. 2882 222 Delgamuukw vs. British Columbia, [1997] 3 S.C.R; Supreme Court of Canada Decision reproduced on http://www.scc-csc.gc.ca/

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public interest and subject to the conditions provided for by law and the general principles of international law.”223 Second, this unprecedented ruling has invalidated Turkey’s expropriation laws and opened the door for many Greek Cypriot refugees to claim their right to repossess and enjoy their property in the Turkish occupied part of Cyprus. The court clearly stated that Ms. Loizidou “is still the legal owner of the property, no issue of expropriation arises, … and that her claim is thus confined to the loss of use of the land and the consequent lost opportunity to develop or lease it.”224

Third, the Loizidou case is also illustrative in the standard adopted by the Court to establish the amount of compensation. The European Court of Human Rights confirmed that Compensation is due for the full value of the property, as well as for denial of access to property and for non pecuniary damage for what it termed “the anguish and feelings of helplessness and frustration which the applicant must have experienced over the years in not being able to use her property as she saw fit.”225

Finally, the case establishes a precedent for Palestinian restitution claims to be made even after the conclusion of an agreement between States. The right of restitution, like the right of return, being an individual right, cannot be relinquished in a political agreement between Israel and the PLO.

3 Available Legal Mechanisms 3.1 The International Court of Justice

The International Court of Justice (“ICJ”) is the principal Judicial of the United Nations (UN Charter Article 92). The ICJ has contributed to the settlement of many inter-state disputes and helped avert major political and military conflicts. Many argue, however, that the Court has not yet used its full potential and that it could play a bigger role in the settlement of international disputes. Moreover, its complex mechanisms and role are often misunderstood, and the possibility of bringing a claim before is often misconstrued. Therefore, it would be helpful to briefly examine the functioning of the ICJ in order to assess its potential in a future Israeli-Palestinian arrangement.

Article 93 of the UN Charter provides that membership of the Court is open to: (a) all members of the United Nations, which are ipso facto parties to the Statute; and (b) non-members of the United Nations, which may become parties on conditions to be determined in the case of each State by the General Assembly on the recommendations of the Security Council (for

223 Article 1 Protocol 1, European Convention for the Protection of Human Rights, supra note 115. 224Loizidou v. Turkey, 1995 310 Eur.Ct.H.R. (ser.A), Judgement of 28 July 1998, (Article 50), para. 39; Arjan El Fassed, “Loizidou v. Turkey, A precedent for Palestinian Refugees,” Information Brief No. 69 (23 February 2001) http://www.palestinecenter.org/cpap/pubs/20010223ib.html 225 Id.

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example San Marino and Switzerland).226 By becoming party to the Statute, a State accepts the jurisdiction of the ICJ. However, the mere fact that a State has become party to the Statute does not per se give the Court jurisdiction to adjudicate on a particular dispute to which that State is a party. As explained below, it is necessary that the parties to the dispute have agreed to the Court’s jurisdiction in respect of that particular dispute.

Also, it is important to note that only States may be parties in cases before the ICJ (Article 34). This precludes individuals (and corporations or non-government organizations) from bringing an action before the Court. Moreover, certain international organizations (not states) may request advisory opinions from the Court, though they may not be parties to contentious cases (Article 65). In the context of Palestinian claims, the possibility for a Palestinian participation before the Court will depend on whether and when a Palestinian sovereign state is created and recognized by the world community. Most importantly, the feasibility of this claim will also depend on the consent by Israel to the jurisdiction of the Court, as examined below.

The fundamental rule concerning the jurisdiction of the Court is that it depends on consent, i.e. the parties must have voluntarily conferred jurisdiction on the Court. The claimant State must consent by bringing the case before the Court, but unless the defendant State has given its consent, the Court will still lack jurisdiction to hear the case. There are, in principle, four ways for states to consent to the jurisdiction of the ICJ:

By special agreement: The court plainly has jurisdiction over

cases which the parties refer to it by special agreement, which defines the exact nature of the dispute made between the parties to the dispute after the dispute has arisen (most cases that have been decided by the Court on the merits have come to it this way, such as the case concerning the Maritime Delimitation and Territorial Question Case between Qatar and Bahrain);

By Provision in a treaty: The parties to a treaty may include in

it a provision for reference to the ICJ of any dispute arising out of the treaty (known as the ‘Compromissory Clause’). Examples include the Optional Protocols to the Vienna Convention on Diplomatic Relations of 1961, and that on Consular Relations 1963 which conferred jurisdiction on the Court in The Hostages Case (1980) between Iran and the United States;

Forum prorogatum: This is the name given to the situation

where one State refers the case to the Court and the other commits an act which can be regarded as submission to jurisdiction, such as appearing and arguing the case on the merits (the ICJ has found on several occasions that the consent to jurisdiction can be implied from the conduct of a State, such as responding to a claim on the merits without making any reservations on the issue of its jurisdiction (Haya

226 Article 93, United Nations Charter, June 26, 1945, 59 Stat.1031, T.S. 993, 3 Bevans 1153 (1945).

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de la Torre 1951); and statements made by high government officials (Corfu Channel Case).

Optional clause: This ground for jurisdiction is where States

recognize as compulsory, ipso facto, the jurisdiction of the Court without special agreement. Such declaration of consent can be made subject to reservations. Many States that are party to the ICJ Statute have not made an optional clause declaration under Article 36(2), including Israel.227

In addition, as noted above, the ICJ may be asked to give an advisory opinion on any legal question at the request of whatever body that may be authorized in accordance with the UN Charter to make such a request.228 These include, for example, the World Bank, the International Monetary Fund, the World Health Organization, and International Labor Organization, etc. Of course, the legal question must arise within the scope of activities of the concerned agency. Moreover, the advisory opinion is not legally binding, although it will carry significant legal and political weight. Having examined the role and functioning of the ICJ, it is clear that its role will be rather limited in the present context. Its jurisdiction could be obstructed by numerous variables, such as the recognition of a future Palestinian State, the consent to its jurisdiction by Israel, etc. Of course, this could be remedied by an agreement between the parties to submit their legal dispute to the ICJ (on various issues such as borders, settlements and compensation, etc.). Although this is theoretically possible, it is likely that a future peace agreement will negate such a possibility and include a condition that all claims shall be dealt with and thereafter extinguished under the terms of a final status agreement.229

3.2 International Claims Commissions/Tribunals International Claims Tribunals were often set up in the past to settle disputes and claims dealing with the taking of alien property resulting from wars. With a few exceptions, they were imposed by the victorious states on their defeated enemies and thus excluded the possibility of citizens of the defeated State to bring claims.

Although this type of claims tribunal has been rare since the Second World War, some recent examples provide useful lessons for the case at hand, such as the Iran-US Claims Tribunal, and the United Nations Compensation Commission.

3.2.1 Iran-United States Claims Tribunal

The Iran-US Claims Tribunal was established by the Algiers Accords in 1981 as part of the settlement of the 1979 hostage crisis in the US Embassy in Tehran and the subsequent seizure of Iranian assets in the US. The Algiers Accord, mediated by the Algerian government, was signed by the parties on

227 Statute of the International Court of Justice, (“ICJ Statute”) Article 36. 228 ICJ Statute Article 65 (1) and UN Charter Article 96. 229 Susan Akram, For a Available For Palestinian Refugee Restitution, Compensation and Related Claims, BADIL- Information & Discussion Brief, 5 Issue No. 2 (February 2000).

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19 January 1981.230 The Claims Settlement Declaration established the Iran-US Claims Tribunal, with its seat at The Hague, to decide certain claims by the nationals of the US against Iran and Iranian nationals against the US (and contractual claims between the two Governments). Around 4,000 cases have been finalized thus far.

The most particular characteristic of the Tribunal lies in the fact that it opened the door for direct claims by private parties against a government, which is a rare phenomenon in international law as examined in Section III(1) of this paper (hence the descriptions “mixed compensation commission” or “mixed arbitration”). The tribunal adopted arbitration as a procedure for settling the claims. All awards of the tribunal are final and binding, and enforceable in any foreign court in accordance with the local law. An important element in that contributed to the success of the tribunal was that the awards were paid in a relatively short period of time from the sums of money frozen by the US government. Another special characteristic of the Tribunal is the discretion in the choice of applicable law. The Tribunal was empowered to apply rules of public international law and private law as the circumstances of the cases demanded. Article V of the Claims Settlement Declaration states:

The Tribunal shall decide all cases on the basis of respect for law, applying such choice of law rules and principles of commercial and international law as the Tribunal determines to be applicable, taking into account relevant usages of the trade, contract provisions and changed circumstances.231

This choice of law provision has been quite frequent in recent international arbitration tribunal and claims commissions. The application of international law can sometimes remedy the discriminatory provisions contained in the national legislation of the “wrongdoing State and thus rectify past injustices. Again, this can be used as an example whereby international law can rectify the effect of Israel land laws that prejudiced Palestinian rights.

Although it was set in a purely commercial context, the Iran-US Claims Tribunal provides an illustration of the ability of a legal mechanism to settle political disputes and provide a forum for private parties to seek compensation from a foreign State. Several factors, however, may influence the success of a similar mechanism in a future Palestinian-Israeli arrangement, including the high cost of legal proceedings, and the complexity and length of legal proceedings.

3.2.2 United Nations Compensation Commission

In 1991, the United Nations created the UN Compensation Commission (“UNCC”) to deal with claims against Iraq resulting from the 1990-91 Gulf War. The Security Council adopted on April 3, 1991 Resolution 687 affirming that “Iraq is liable under international law for any direct loss, damage or injury to foreign governments, nationals and corporations, as a result of Iraq’s

230 The documents making up the Algiers are reprinted in 20 ILM 224 (1981). 231 Claims Settlement Declaration (1981) 20 ILM 230, Article V.

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unlawful invasion and occupation of Kuwait (paragraph 16).”232 In this connection the Security Council decided to create a fund to pay claims that fall within paragraph 16 above and to establish a Commission that will administer the fund.233 It should be noted that the Security Council’s wording in paragraph 16 of resolution 687 by and large restated paragraph 8 of Security Council Resolution 674 (1990), which reminded Iraq that ” …under international law, it is liable for any loss, damage or injury arising in regard to Kuwait and third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq.”234 The Commission sits at the Palais de la Paix in Geneva, and the compensation funds are collected from a 30 percent levy on the proceeds of Iraqi oil sales authorized by the UN. Although, the nature of the UNCC is specific, it remains quite unusual. The Secretary General commented:

The Commission is not a court or an arbitral tribunal before which parties appear; it is a political organ that performs an essentially fact-finding function of examining claims, verifying their validity, evaluating losses, assessing payments and resolving disputed claims. It is only in this last respect that a quasi-judicial function may be involved. Given the nature of the Commission, it is all the more important that some element of due process be built into the procedure. It will be the function of the commissioners to provide this element.235

Around 2.6 million claims, from over 100 States, were submitted, totaling around $250 billion. Such heavy caseload has been handled in great part by dispensing with some of the usual judicial formalities.236

An important peculiarity of the UNCC lies in the fact that the Security Council imposed this solution upon Iraq. It recalls the old-fashioned type of claims commission imposed by victorious States against defeated States. Thus, unlike the Iran-US Claims Tribunal, which was based on a mutual agreement between the concerned States, the UNCC is not the result of a consensual arrangement. This is reflected in practice because there is no legal argument over liability in the processing of claims. In fact, Iraq has little opportunity to contest claims raised against it.237 Moreover, the UNCC does not deal directly with individual claims.238 The claims are submitted and collected by governments on behalf of their nationals. They are supposed to reallocate these funds to their nationals through nationally established procedures. Be that as it may, the UNCC provides special conditions pertaining to the processing of claims by individuals who have suffered serious personal injury or

232 UN Doc. S/RES/687 (1991), paragraph 16. 233 Id. Paragraph 18. 234 Security Council Resolution 674. 235 UN Doc. S/22559, 2 May 1991, para. 20 cited in J. Collier & V. Lowe, The Settlement of Disputes in International Law, Institutions and Procedures, 42 (1999). 236 Id. 43 237 M. E. Schneider, “How fair and efficient is the United Nations Compensation Commission system? A model to emulate?” 15(1) Journal of International Arbitration 15 (1998). 238 Benvenisti & Zamir, supra note 157 at 333.

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the death of a family member or costs of departure from Iraq or Kuwait. The priority and speedy treatment given to these claims reflects the importance given to individuals in this process.239 It is noteworthy that compensation is not limited to property losses. Indeed, the “Criteria for Expedited Processing for Urgent Claims” stipulates that compensation is “available with respect to death or personal injury, or losses of income, support, housing or personal property or medical expenses or costs of departure, as a result of Iraq’s unlawful invasion and occupation of Kuwait.”240

The UNCC model offers another recent precedent of a legal framework that could be used to deal with compensation claims. Nevertheless, the assumption of responsibility entails recognition of a culpability that Israel is unlikely to accept. It can be used, however, if parties agree to generally acknowledge the right of Palestinians to receive compensation from a fund to which Israel, international donors and international organizations contribute.

3.3 Lump Sum Settlement Agreements

Lump sum settlement agreements usually involve a negotiated solution where States negotiate a settlement of claims on behalf of their nationals (individuals and corporations). The parties agree on a global sum, payment in full settlement of all the claims. At this stage, each State party establishes a national claims commission to administer a process in which claimants must provide full proof of their losses. Normally, once the totality of eligible claims is established, the lump sum is distributed between the individual claimants pro rata. This kind of arrangement has been frequent following large-scale expropriations of alien property in communist countries in Eastern Europe.241 Also, it is being used in the German scheme for restitution and compensation in East Germany.242

The United Nations proposed a plan designed specifically to exchange title to property among the displaced members of both Greek and Turkish communities as means for both resolving the problem of titles to land and for providing fund for monetary compensation. Former Secretary-General Boutros Boutros-Ghali proposed the following provisions as a possible solution of the Cypriot refugees’ claims problem:

76. Each community will establish an agency to deal with all matters related to displaced persons.

77. The ownership of the property of displaced persons, in respect of which those persons seeking compensation will be transferred to the ownership of the community in which the property is located. To this end, all titles to properties will be exchanged on a global communal basis between the two agencies at the 1974 [time of the Turkish invasion]

239 Id. at 333-334 240 For additional information on the UNCC see generally http://www.unog.ch/uncc/htm. 241 Collier & Lowe, supra note 235 at 23-24. 242 See Benevinisti & Zamir, supra note 157 at 334.

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value plus inflation. Displaced persons will be compensated by the agency of their community from funds obtained from the sale of the properties transferred to the agency, or through the exchange of property. The shortfall in funds necessary for compensation will be covered by the federal government from a compensation fund.243

Lump sum settlement agreements offer several advantages. First, the Claimant State receives a prompt final payment while the paying State obtains a final release of its obligations. 244 Moreover, the process allows for eliminating political tensions, given that it prevents any allocation or admission of guilt and allows for the normalizing of relations between the parties.

From a practical point of view, parties are spared the legal cost of bringing claims before international tribunals. Also, the complex identification and quantification of individual claims is replaced by an agreed-upon assessment of the bulk of the abandoned property. The success of the scheme, however, will normally depend on the efficiency of the national claim commission entrusted with the task of redistributing the funds to individual Claimants in the respective States.

In the case of Palestinians, a lump sum settlement may offer a potential solution, given that it will answer Israel’s wishes not to admit any legal responsibility for the creation of the refugee problem. Nevertheless, individual claimants may feel that their rights are being diluted in the mass settlement and that their individual claims would not be fairly processed by the appointed national claims commission created to distribute the funds.

243 Annex to Report of the Secretary-General, of the Security Council, UN Doc. S/24472, Annex, at 18. 244 See, supra note 243.

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III. CONCLUDING REMARKS: PARAMETERS FOR A

FUTURE PALESTINIAN-ISRAELI AGREEMENT

The right of return, restitution and compensation are universally recognized rights in international customary and treaty law (as mentioned above) and apply to all refugees, regardless of their ethnic, religious or national origins and regardless of the reason behind their exodus. UN Resolutions have explicitly confirmed these rights and proposed frameworks for their implementation in the context of Palestinian refugees. International practice also shows that these rights, being individual rights, cannot be overridden by inter-governmental agreement. Neither Israel nor Palestine, nor the two in concert, have the legal capacity to extinguish claims of individuals. Even if an Israeli-Palestinian agreement makes inadequate provision for repatriation and compensation, the claims of individuals will survive. Hence, for a peace agreement to be fair and durable it should re-affirm the individual rights of Palestinians and establish mechanisms and guarantees for their implementation rather than providing a compromised arrangement of such recognized rights. In order for individual rights to be realized, a future peace treaty must contain the necessary substantive and procedural safeguards. Concerned parties can use the present time to reassess the current peace process in order to suggest solutions for the realization of individual rights, an issue that has been neglected thus far. This paper has shown that there are many contentious issues that need to be dealt with, from a legal perspective as much as from a political and socio-economic perspective. In light of the international law principles and precedents examined in this paper, the following conclusions can be drawn with the aim of contributing to the current debate. They are divided in (i) substantive terms that should be explicitly adopted in terms of a future treaty (points 1 through 8), and (ii) procedural terms that should be provided in a future settlement in order to ensure the implementation and safeguard of such rights (points 9 through 13):

1- Restitution/Compensation Should Not Negate Return/Repatriation In accordance with international law principles and Resolution 194, refugees are clearly entitled to return to their homes and the restitution of their property. Return and restitution rights are independent of their right to receive compensation for their losses. Both retuning and non-returning refugees should be entitled to compensation in a final status agreement. Therefore, the implementation of one right is not exclusive of the enforcement of another.

2- Defining Palestinian Refugees This study has shown that the current international legal framework contains flaws and ambiguities relating to the status of Palestinian refugees (i.e. Article 1D of the 1951 Refugee Convention). Now that Israelis and Palestinians have agreed to address the issue of a durable solution of the refugee problem during the permanent status negotiations, a definition for the term “Palestinian refugee’ for the purpose of these negotiations will have to be developed. This is essential in order to establish who is entitled to return as well as who is entitled to repossession/compensation.

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3- Free-Informed Refugee Choice A negotiated agreement must provide guarantees that all Palestinian refugees will be permitted to make a free, voluntary, and achievable choice to exercise their right of return. Arbitrary and discriminatory restrictions and disincentives violate the principle of refugee choice. Similarly, refugees would be able to make a clear choice as to whether they wished to exercise their right of return, opt for resettlement in their current host countries or in any third country, and/or to receive compensation as examined below.

4- Changes in Domestic Laws In the case of refugees choosing to exercise their right to return to their places of origin inside Israel (rather than to an arbitrary plot of land transferred to a future Palestinian state), reform of Israeli citizenship/nationality and land laws will almost certainly be necessary, as has been the case in countries such as Georgia and Bosnia. Also, several UN committees that monitor implementation of human rights treaties have concluded that Israel should reform its citizenship and land laws in order to facilitate the return of Palestinian refugees. By the same token, host States will have to amend their national laws in order to open the doors for naturalization for Palestinians choosing not to return to a future Palestinian State.

5- Determining Entitlements From a legal perspective, the terms of final status agreement should be clear and functional in order to cover the rights of all parties concerned to the largest extent possible. In determining the right of repatriation, legal definitions should not be solely based on political factors. For instance, in deciding who can return and who should be resettled, negotiators should not carve out populations and allocate quotas in a miscalculated way. Here again, it is important to take into account refugee choice (hence, the importance of a census in the population) as well as other elements such as family unity and economic realities. By the same token, the determination of compensation schemes should be well studied. For example, a compensation arrangement should not be limited to the recommendations set forth in Resolution 194(III), namely that compensation should be paid for lost “property”. Such an arrangement would exclude the less privileged refugees who were not land owners at the time and who today constitute the bulk of the Palestinian refugee camp population. Indeed, a compensation scheme should take into consideration the loss of income due to lost employment, business and educational opportunities, in addition to social and moral damages. The latter kind of damages is actually familiar to Israel given that it was included in the German-Israeli compensation program. 6- Gender Consideration In establishing legal definition and parameters, negotiators should take into account the gender implications. For instance, the determination of the right to repatriation or compensation should not use solely be based on the definition of ‘family unit’. Similarly, as discussed with regard to nationality law, the determination of descendants’ eligibility should not depend only on fatherhood. Gender considerations are also important in setting up compensation schemes. Due to cultural and social traditions, title to property used to be

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held in great part by men. Therefore, limiting compensation to holders of titles to real property would prejudice the rights of Palestinian women in seeking redress and compensation for their individual losses. 7- The Scope of Compensation Parties will need to agree on a legal standard of compensation in order to establish a fair estimate of losses incurred by Palestinians. This study has shown that international law recognizes the standard of “full compensation”, although some precedents advocate “adequate compensation” instead. Regardless of the mechanism established, legal parameters explicitly setting up such standards should be provided in a framework agreement. 8- The Need for a Multilateral Approach A comprehensive settlement scheme will allow Palestinians present in host States, Israel and third States to have equal access to the established mechanisms in order to present their claims. This will allow the various stakeholders to present their views and participate in any mechanism affecting the rights of Palestinians residing in their territories. This should include Arab host States, Israel, and the Palestinian Authority, in addition to any third-countries included in a resettlement scheme, as well as donor countries and international organizations. Israel is likely to raise the argument that the compensation of its citizens who left Arab countries following the 1948 and 1967 wars should be offset against claims of Arab nationals who fled Israel. A comprehensive multilateral process involving all parties will allow an adequate forum for such reciprocal claims.

Moreover, the problem with a bilateral process is that it entails a risk of politicization of legal and humanitarian issues and thus hinders the functioning of a claims mechanism. An international body may prevent such deadlock, given that it will include members who are independent of the concerned States (in addition to representatives of both concerned parties). 9- The Need for an International Protection Body An international protection body is necessary to verify refugee choice and ensure its implementation through procedures set forth in an agreement between the host country, the country of origin, and the protection body. This body would supply refugees with information about the conditions in their country of origin, provisions for safety and protection from the authorities in the country of origin, and details about the procedures for repatriation. Most importantly, an international body will, inter alia, oversee the implementation of the return process, set criteria for individual claims, examine and determine claims and disputes, and establish a process for awarding compensation. Here, organizations such as UNHCR and UNRWA can play an important role.

10- Establishing Titles (evidentiary issues) The identification of individual claims after half a century will also require evidence of title (registration of ownership) and a factual legal examination of all subsequent transfers of title (i.e. succession). All this will prove very difficult, given that half a century has elapsed since the abandonment of most of these properties and that accurate records and proof of title may not exist anymore. Here, while UNRWA’s definition of refugee should not be determinative of eligibility for individual rights claims, its expertise, data and archives will prove invaluable in any likely set of compensation arrangements. Similarly, the role of UNCCP can be revived to make use of its available data and resources.

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11- The Need for an “Independent” Claims Mechanism The concerned populations and the Arab States may not agree to entrust the Palestinian Authority with the task of administering funds belonging to the refugees present on its territories. The Palestinian Authority has not had a good track record in managing public funds. On the other hand, there is a risk of unfair treatment of Palestinians by Arab host States if the latter are entrusted with the distribution of funds received on their behalf. Therefore, there is a need for an accountable, transparent and efficient mechanism that would also avoid unnecessary bureaucratic delays or unfair treatment of claims.

12- The Nature of Mechanisms Mechanisms of various natures are available for the determination and processing of Palestinian individual rights. Regardless of their nature, mechanisms in a final settlement should assure individuals due process and fair treatment of their rights. As examined earlier, claims commissions have several advantages (direct access for individuals) and shortcomings (complexity of procedures and evidence). In contrast, lump sum agreements may require fewer resources and judicial formalities (evidence etc.). Nevertheless, individuals may feel that their rights are being diluted and compromised by the control held by their governments over their claims. The choice of a compensation mechanism should be carefully studied in order to ensure its fairness and success.

13- The Role of the International Community The United Nations and its organs, donor-countries and non-governmental organizations can play an important role in ensuring the safeguard and fair implementation of individual rights. The financial and humanitarian contribution of donor countries is necessary for the viability of any compensation scheme. The UN and non-governmental organizations can offer great input in the management and ensure the independence of any established international mechanism (be it a refugee protection mechanism or compensation scheme). So far, International law may have failed, along with international institutions, to prevent the Palestinian tragedy and improve their status. While international law may be unable to undo the wrong done to individuals, it contains the necessary principles and mechanisms to protect their rights and remedy their situation.

Interestingly, the current peace process demonstrates that international law affects the behavior of actors. Israelis and Palestinians now routinely cast their political arguments in legal terms, by reference to international law and the text of the Oslo Accords. Nevertheless, with regard to individual rights, negotiators have failed to, and have often avoided, putting the issue on the negotiation agenda. There is a big risk that political considerations may push the parties to keep on ignoring the issue and reach a political settlement in an attempt to relinquish these rights. Although such settlement would lack legal foundation, it would not negate individual rights, at least from an international human rights law perspective.

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Be that as it may, history has shown, especially in the case of Palestinians, that the recognition of rights is not in itself sufficient for their achievement. Therefore, even if certain actors accept moral responsibility for what happened, and even if parties manage to agree on a compromised legal recognition of such rights in an eventual peace treaty, the real challenge remains in the implementation of these rights, hence the importance of establishing adequate and fair legal mechanisms for the realization of individual rights.

Parties should settle all these legal issues prior to a final status agreement in order to seal a permanent deal that will provide durable and just peace. Individual rights should not be marginalized or compromised. The present time offer the parties and the international community an opportunity to reassess the current peace process and address the shortcomings that have prevented its completion and could result in its absolute failure. Here, the international community, the United Nations, donor countries, civil society and individuals themselves can play a crucial role in keeping these issues on the agenda to ensure that they are treated fairly and adequately. While governments and political parties come and go, the terms of a future deal will affect the fate and well-being of millions of people and future generations. Accordingly, a responsible, fair and durable solution should be enshrined in principles of justice and international law in order to survive any political changes and challenges.

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LIST OF ANNEXES (to be completed) ANNEX A United Nations Resolutions ANNEX B Maps (Mandate Palestine, Palestine under Armistice Agreement,

State of Israel, Israel/Palestine according to Oslo) ANNEX C Table of refugee populations (distribution in host States) ANNEX D Refugees in the Peace Process (Provisions of the various

Agreements relevant to refugees (DOP, Oslo Accords)) ANNEX E Refugees in the Peace Process (negotiated terms in the recent Camp

David/Taba negotiations.) ANNEX F Relevant provisions from international conventions (1951 Refugee

Convention etc.)