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“Palestinian Refugee Rights: Part Three — Strategies
for Change,”
This three-part Information Brief focuses on Palestinian refugee rights, particularly as they relate to “final status” negotiations between Israel and the Palestinians. Part one, issued on 28 July, described the failure of international legal protection for Palestinian refugees. Part two, issued on 4 August, discussed Israel’s legal insulation from Palestinian claims. Finally, part three explores strategies for raising Palestinian refugee claims for property losses under international law.
Introduction: 21 August 2000—After 52 years, the status of Palestinian refugees remains uncertain. As discussed in the two previous briefs in this three-part series, Israel has legally insulated itself from international law as it relates to refugees. Strategies are needed to raise significant legal challenges to Israel’s violations of Palestinian rights to return to their homes and lands, their claims to restitution of property illegally taken, and compensation for losses and damages suffered by them. Because of the breadth of the topic, this brief is confined to discussing strategies focusing on restitution and compensation for Palestinian property expropriated by Israel.
Providing Evidence to Convention Committees: In order to keep pressure on Israel to comply with international standards in this regard, the first, and critical, strategy is to continue to submit evidence to the treaty bodies which have already become sensitized to the issues. In 1998, three treaty bodies—or Convention Committees—issued reports criticizing Israel for noncompliance with human rights conventions. These forums were the Human Rights Committee, or the body established to ensure compliance with the International Convention on Civil and Political Rights (ICCPR); the Committee on Economic, Social, and Cultural Rights, the body responsible for the Economic, Social, and Cultural Rights Convention (ICESCR); and the Committee on the Elimination of all Forms of Racial Discrimination, which is concerned with the Convention of the same name (CERD). Significantly, all three reports focus on Zionism as the root of the discriminatory policies—against Palestinians and Israeli Arabs—which violate those Conventions. For example, the ICESCR Committee findings were that Israel was in serious breach of the Convention for the following practices and policies against Palestinians: house demolitions; land confiscation; denial of right to return to their country of birth; denial of right to reunify with families; denial of equal access to resources such as water and electricity; discrimination against Palestinians in all social and economic spheres, from employment access to land policies. Each time Israel is due to submit its regular compliance reports, Palestinian refugee representatives and organizations need to continue to collect and present evidence to these committees of the ongoing systematic violations of their rights. In November of this year, Israel’s next compliance report is due to the Committee on Economic, Social, and Cultural Rights.
Involving the UNHCR: A related strategy could focus on the UN Human Rights Commission (UNHRC), the primary UN body to oversee states’ compliance with internationally recognized human rights. Although the UNHRC, like the treaty bodies, lacks jurisdiction to hear contentious claims and enforce judgments, its decisions have considerable weight in the international arena. Also, the treaty bodies require state signatories to separately submit to the jurisdiction of the individual complaint mechanisms. The UNHRC, however, can hear petitions filed by individuals against any state for violations of internationally guaranteed human rights. The UNHRC can also take its decisions to the General Assembly with requests to pass resolutions requiring a state to comply with a UNHRC decision. Because of its jurisdiction to hear petitions filed by individuals, and its broad powers to bring international pressure against a violating state, the UNHRC is a particularly attractive forum for bringing consolidated claims by Palestinian refugees against Israel.
Raising Concerns with the EU: In order to create a forum for enforceable jurisdiction over restitution claims, a third strategy would focus on the European Union (EU). Israel has successfully lobbied for favored trade status with a number of European countries. Israel also became a member of the United Nations Western European and Others Group (WEOG) this year. This membership gives Israel a special status at the UN which it has been denied—while alone—by virtue of its poor human rights record. The EU should condition Israel’s trade agreements with European states, and its WEOG membership, on its submission to the European Convention on Human Rights. At the least, Israel should be held to those standards that are embodied in the human rights conventions to which it has acceded. To bring this about, Palestinian refugee claimants will need to embark on an aggressive campaign to encourage the EU in this direction. Useful tools in this lobbying campaign are the Euro-Mediterranean agreement with Israel, which requires compliance with human rights standards, as well as the various Convention Committee reports, the UNHRC resolutions, any individual EU countries’ resolutions supporting Palestinian rights, and the resolution passed by the Heads of Parliaments group. This strategy would aim at pressuring the EU to hold Israel to the same conditions of compliance with human rights standards as is required of other states seeking similar benefits, and to insist on recognizing Palestinian restitution claims.
Presenting a Case to the ICJ: A fourth strategy would involve a state bringing a case against Israel in the International Court of Justice (ICJ). This state would demand restitution of property expropriated from Palestinian refugees residing in their country. Individuals cannot bring cases to the ICJ, as only states have standing to do so. Israel is signatory to both the 1951 Refugee Convention and the 1967 Refugee Protocol. Article 38 of the Refugee Convention requires states to submit disputes concerning violations of the Convention to the ICJ. Israel has not submitted any reservation to this clause, and is thus subject to ICJ jurisdiction for Convention violations. Although Israel has never incorporated the Refugee Convention or Protocol into its domestic law, that is irrelevant to its obligations under that Convention on an international level. Although it would be preferable for an Arab state which has hosted Palestinian refugees in large numbers to bring such a claim, it is not necessary. European states are signatories to the Refugee Convention and/or the Protocol. However, of the Arab states hosting large refugee populations, only Egypt is a signatory to the 1951 Refugee Convention or Protocol. As a strategic matter, it might be preferable for a European state to bring such a case on behalf of its citizens or residents of Palestinian origin, in order to use the principles of the European Convention of Human Rights—in addition to the Covenant on Economic, Social, and Cultural Rights, and the Universal Declaration of Human Rights—to define the property rights which are claimed. Such a case can use the recent European Commission and Court case of Loizidou v. Turkey as a principle both to define the property rights involved, and to persuade the ICJ that it can hear such claims despite ongoing negotiations over Palestinian rights. The European Court in Loizidou held that the taking of property of a Greek Cypriot was a violation of international law. It also found that the wrongful taking was imputable to Turkey, and that denying the claimant access and control of her property was a continuing violation of Article 1, Protocol 1. This article prohibits the confiscation of property unless it is in the public interest and in compliance with due process of law.
Where to Begin: Despite the lack of any immediately available forum for filing Palestinian restitution and compensation claims, there are a number of very promising venues for creating such a forum. Palestinian refugees and their advocates urgently need to study these—and other—strategies very carefully. Legal strategies should be implemented as quickly as possible, with coordination and advance planning, to influence the outcome of the current framework of the Israeli-Palestinian negotiations. Most importantly, such strategies must be designed to immediately begin implementing individual refugee rights of return, restitution, and compensation. Otherwise, these rights are in grave danger of being extinguished, at least for the short term, in the final status agreement.
Susan Akram is Associate Professor at Boston University School of Law, teaching Immigration Law, Comparative Refugee Law, and supervising in the Civil Litigation Program. The above text may be used without permission but with proper attribution to the author and to the Center for Policy Analysis on Palestine. This Information Brief does not necessarily reflect the views of the Palestine Center or The Jerusalem Fund. This information first appeared in Information Brief No. 44, 21 August 2000. |
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