Re-claiming Palestine: The Legal Basis for Rights of Return and Restitution
For the Record No. 231 / 2 August 2005
Palestinians constitute one of the largest and longest standing unresolved situations of displacement. About one in three refugees in the world is Palestinian and more than two-thirds of Palestinians are refugees. Less than 1 percent of Palestinian refugees, said Susan Akram, associate professor of law at Boston University, has been able to return to their places of origin according to conservative estimates. Even fewer have received restitution for their material or social losses, concurred sociologist and development consultant Souad Dajani, author of two recent studies on Palestinian refugee rights.
Palestinians' Right of Return and right to housing and property restitution are "integrally related to each other, yet quite distinct as a legal matter," said Akram during a Palestine Center symposium on 18 July 2005 entitled "Re-claiming Palestine: Palestinian Losses, Exile, and Diaspora." Akram addressed the legal aspects of these issues as part of a panel with Dajani and Bret Thiele, coordinator of the Geneva-based Center on Housing Rights and Evictions (COHRE)'s Economic, Social and Cultural Rights Litigation Program. The symposium focused on Dajani's studies, "The Untold Story: The Cost of Israel's Occupation to the Palestinians in the West Bank and Gaza Strip" (Washington, DC: The Palestine Center, February 2005) and "Ruling Palestine: A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine" (Geneva: Center on Housing Rights and Evictions, May 2005).
Akram said that the legal basis for a refugee's Right of Return is established in three main bodies of law: the law of nationality and state succession, human rights law, and humanitarian law. In all three, explained Akram, the Right of Return is both "a rule of customary international law and codified in international treaties." Pointing to numerous treaties that Israel has ratified, which bind it to recognize and implement this right, Akram argued that Israel is the state entity responsible for creating the refugees and is thus held responsible for the implementation of Palestinians' Right of Return.
Under the laws of nationality and state succession, newly-created states are obligated to grant all persons found within the territory the nationality of the new state, and are forbidden from arbitrarily denationalizing or expelling persons found therein on the basis of race, religion or ethnic origin. Residents expelled during conflict are also entitled to return to their places of habitual residence under these laws, explained Akram. She said that Israel is a party to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and is a member of the Committee on the Elimination of Racial Discrimination (CERD), each of which prohibit denationalization, expulsion, and the denial of the Right of Return on the basis of race, religion, or ethnic origin.
Akram said that Israel maintains that it is not responsible for creating the refugee problem and that it is, therefore, free from any obligation. She explained that Israel argues that Palestinians' Right of Return would threaten its "Jewish character" and that it would be committing "political suicide" if Palestinians were allowed to return to their homes. In addition to denying responsibility for creating the refugee problem or causing Palestinians to leave, Israel maintains that the Right of Return is an individual right that is not available in mass refugee situations. However, in the last 40 years, the Right of Return has been "firmly embedded" as a core obligation of nation-states. "State practice includes the incorporation of Right of Return in peace agreements, such as in Indochina, Cambodia, Mozambique, and Rwanda," Akram said, noting that in the 1990s, an estimated 12 million refugees were repatriated around the world. The Palestinian Right of Return is further codified by numerous U.N. resolutions that refer to it as unconditional, inalienable and imprescriptible, Akram said.
Turning to the issue of restitution, Akram said the basic rule is that the state responsible for the illegal expropriation must reverse the effect of that violation through full property restitution. She drew on the general law of state responsibility to based legal recourse for housing and property restitution. Akram pointed to Bosnia, where more than 50 percent of all property claims have resulted in the restitution of the homes and lands to their owners after the conflict ended. "Most remarkable in the Bosnia case is that restitution has been the goal of the reconstruction process and not a penny has been paid in compensation as an alternative to restitution," Akram said.
While millions of refugees throughout the world have returned to their original homes, Bret Thiele argued that based on the research of COHRE, Israel continues to violate Palestinian refugee rights to their land, housing, and property restitution. He noted that approximately six million Palestinian refugees are prevented by Israel from returning to their homes and recovering their land and property in what is now Israel.
"If Israel were willing to return confiscated land to Palestinian refugees, this could be a comparatively simple process because most of the land remains under the public control of the Israeli government and has not been transferred to private hands," Thiele said. He argued that restitution of Palestinian claims would be less complicated than in other places where COHRE has been active, such as Bosnia, Kosovo, Mozambique, and South Africa, based on the fact that in the Occupied Palestinian Territories, "large portions of land confiscated since 1948 remain empty and almost all Palestinian refugee families retain their original land and property titles which prove ownership rights," he said.
Addressing why the Right of Return has not been implemented for Palestinians, Thiele noted that despite the basis for Palestinian rights in international law, Israel has enacted its own laws enabling the expropriation of Palestinian land and property. He noted that the 1.2 million Palestinians with Israeli citizenship constitute more than 20 percent of Israel's population yet they own less than 3 percent of the land.
Thiele said that a series of these Israeli laws, which are described in detail by Dajani in the May 2005 study published by COHRE, have been used to "lay legal claim" to the lands and property of "absentee" Palestinians, which he defined as "the Israeli government's euphemism for forcibly displaced Palestinian refugees." He argued that "Israeli law has been fundamental to the expropriation of Palestinian land and property since the declaration of the state of Israel in 1948," by allowing for massive confiscation of Palestinian land and its transfer to Israeli control.
In particular, the CORHE study outlines Israel's use of the 1954 Prevention of Infiltration Law to bar so-called "internal refugees" from returning to their family homes and villages by defining and prosecuting them as infiltrators if caught. Internally displaced Palestinians are those who were declared absent by Israel from their villages at the time of Israel's creation but remained within Palestine. Dajani's study also reveals that Israel enacted land and property laws in the Occupied Palestinian Territory to facilitate its control of 4,700 sq. kilometers of land. The study draws attention to the fact that Israel's current construction of the Wall around the West Bank will reduce it by an additional 15 percent.
Although property losses incurred by Palestinians in 1948 and in 1967 are methodically documented in both of Dajani's studies, she said that what is important is "not so much the data you collect, but rather the principle you start from, the principle of international law." Dajani argued that the starting point for assessing the cost of occupation to Palestinians in the territories Israel occupied in 1967 is the belief that the "whole occupation is illegal" and that Israel is "obliged to withdraw fully from the occupied territories."
Although the study Dajani published through the Palestine Center focuses on restitution and compensation, Dajani stressed that the study does not suggest that the Right of Return "is a matter to bargain over." She maintained that "restitution is not a substitute for return."
Research for "The Untold Story" proved challenging. Dajani found existing records to be incomplete and most data inaccessible. Methods used to measure losses were not comparable throughout the Occupied Territories and were taken at various periods. She said that data collected by international donors was compiled to measure the need for economic aid, not to determine compensation. While detailed records collected by the United Nations Conciliation Commission for Palestine (UNCCP), which relate to the land left behind in Israel by Palestinian refugees in 1948, are housed at the U.N. archives in New York, there are no such records for those made refugees during 1967, explained Dajani. She described the Palestine Center publication as a "useful tool" to use in measuring restitution for the loss of land and livelihood, damaged infrastructure, destruction of homes, lost opportunities, and human suffering incurred over 38 years of occupation.
Through her research, Dajani found that Israel gives legal preference to Jews by enacting laws that "enshrine Jewish privilege and entitlement while legally sanctioning discrimination against Palestinians." She explained that some laws enacted by Israel are designed to "sever the links between the indigenous Palestinian people and the land," while other laws create links between Jews and the land in order to "replace the now-legalized broken bond" of Palestinians toward the land. Dajani said that with U.S. support, Israel has "tossed binding and applicable international laws to the wind as far as the Palestinians are concerned." However, she blamed Palestinian negotiators for "moving away from asserting international law as the basis for a just resolution to the conflict."
Backed by the United States, Dajani said that Israel has refused to address Palestinian rights of return and restitution from a legal basis and approaches the issue as a political matter instead. She argued that Israel expects the international community to assume the financial burden of settling refugee claims and insists that Jews be compensated for property left behind in Arab countries. "The value of Palestinian refugee property from 1948 alone is estimated to be twenty-two times the value of Jewish property in Arab countries," Dajani noted.
Despite almost universal condemnation by the international community, Thiele added that Israel continues to carry out "discriminatory land, housing and property policies, and practices which make a sustainable and just peace a practical impossibility." He argued that a lasting peace between Israelis and Palestinians will only be possible when ordinary Israelis "acknowledge and accept responsibility" for past wrongs, embrace the process of reconciliation and overcome their fear of their historic neighbor. He added, "What little remains of the Palestinian homeland is disappearing in front of our eyes. It is as if Israel is deliberately erasing it from the map."
The above text is based on remarks delivered on 18 July 2005 by Susan Akram, Souad Dajani, and Bret Thiele. The speakers' views do not necessarily reflect those of The Jerusalem Fund or its educational program, the Palestine Center. This "For the Record" summary may be used without permission but with proper attribution to the Palestine Center.
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