Palestinian Refugees and Peace

Far from inaugurating a "new way of working with other nations to deter aggression and achieve peace," [1] the New World Order has on the contrary coincided with a drastic increase in the number of stateless people and refugees in various parts of the world. Rough estimates put their number at 18 million worldwide, [2] and the figure increases almost daily. Eleven million of those refugees originated from the Middle East, Afghanistan, Ethiopia, Somalia, and other third world countries. [3] The Gulf war alone produced in its initial phase five million refugees, including internal refugees in Iraq, the expellees from Kuwait (of whom more than 300,000 were Palestinians), and some 800,000 Yemeni workers expelled by Saudi Arabia. [4] Concerning the Palestinians, more than two-thirds of the close to six million estimated worldwide are refugees and displaced persons (tables 1 and 2), whose refugee status is the result of the 1948 and the 1967 wars, compounded by the 1970 civil war in Jordan, the 1982 Israeli invasion of Lebanon, and the Gulf war.

For two years now, the fate of the Palestinian refugees has been the subject of a Refugee Working Group (RWG) within the framework of the multilateral peace talks set up in the wake of the Madrid Conference of 1991. As envisaged by the organizers of the multilaterals, the man- date of the RWG is basically technical and intended to suggest practical solutions that will feed into bilateral negotiations. The Israeli-PLO Declaration of Principles (DOP) of September 1993 stipulates the creation of an Israeli-PLO committee (with the participation of Egypt and Jordan) to discuss the Palestinians displaced in 1967, while issues relating to the 1948 refugees are to be discussed in the "final status talks." Thus, during the five RWG meetings held so far, the deliberations have focused on ameliorating the conditions of the refugees in their dispersed communities. Programs of a humanitarian and practical nature have been introduced, with the European Union taking the lead in plans for the development of social and economic infrastructure, France concerning itself with family-reunification projects, Italy with public-health projects, Norway with data bases, Sweden with child welfare, and the United States with human-resources development, vocational training, and job creation. Aside from statements by the Palestinian and some Arab delegations, the RWG has not dealt with the larger political issues of either the 1948 or 1967 refugees, and the question of return has been touched upon only within the context of discussions on the "humanitarian issue" of family reunification.

It is, nonetheless, the larger refugee issues that this paper seeks to address.

Definition of Refugee Status

The legal framework for the current definitions of who is a refugee is influenced by the cold war and subsequent human migrations from the third world to the developed countries. Thus, refugee status in the post-World War II period is linked to the need to provide individuals with places of residence other than their own countries on account of war, natural disaster, internal conflict, fear of persecution, and general instability. This is the basis of refugee identification as it appears in the 1950 Statute of the Office of the United Nations High Commissioner for Refugees (UNHCR), the 1951 Refugee Convention, and the 1967 United Nations Refugee Protocol.

Two other sources for refugee definition are United Nations resolutions and agreements concluded by regional organizations. The first category includes UN resolutions identifying refugee groups by name, such as UN General Assembly Resolution 194 (111) of 11 December 1948, which referred to the "refugees of Palestine," and its reaffirmation in subsequent UN resolutions. Identification of specific groups of refugees is also reflected in such specialized agencies as the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), created in 1949, and the United Nations Korean Reconstruction Agency, established in the wake of the Korean war.

As to the refugee definitions provided by regional organizations, Article 1, Paragraph 2 of the 1969 Organization of African Unity Convention states that "The term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of national habitat in order to seek refuge in another place outside his country of origin or nationality." The Organization of American States defined refugees in similar terms in its 1985 Cartagena declaration, while the Covenant of Europe Definition of Refugee Status concentrates on those who are "unable or unwilling for . .. varied reasons to return to their countries of origin." [5] 

The thrust of refugee law in the aftermath of World War II has not been so much on repatriation but on (a) providing new places of residence for displaced persons (i.e., resettlement), and (b) protecting such individuals from persecution in their adopted country or in their country of origin should they be forced to return to it. These are the parameters that informed the debate surrounding the campaign to compel the former Soviet Union to allow Jewish citizens to emigrate to Israel, and which continue to dominate the debates on refugees and immigrants in Western Europe today.

Historically, the emphasis in the Palestinian situation is substantially different. Palestinian refugees are not seeking a place of residence other than their country of origin. Their main wish is to be allowed, should they so choose, to return to their own homeland. This is why Palestinian refugees are excluded from protection under the UNHCR and other international bodies. This is also why UNGA Resolution 194, which deals specifically with Palestinian refugees and affirms their right of return, is so important. UNRWA's creation is linked to Resolution 194. According to UNRWA, "'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 his home and means of livelihood as a result of the 1948 conflict." [6] While accepting UNRWA's definition, one should be cautious in endorsing as definitive figures for Palestinian refugees: a classified paper of UNRWA itself estimates the organization's undercount to be 240,000.

The right of return, which is stipulated in Resolution 194 (III), is also affirmed in the Universal Declaration of Human Rights of 1948, a cornerstone of international law. Article 13 states that "1. Everyone has a right to freedom of movement and residence within the boundaries of each State. 2. Everyone has the right to leave any country, including his own, and to return to his country." The 1966 International Covenant on Civil and Political Rights, of which Israel is a signatory, derives its authority from the Universal Declaration of Human Rights. The covenant states, in part, that "(2) Everyone shall be free to leave any country, including his own.... (3) No one shall be arbitrarily deprived of the right to enter his own country." [7] 

Refugee right of return, first enunciated in 1946 by the Economic and Social Council of the United Nations, was reaffirmed in the Council's 1973 draft principle, which states:

(a) Everyone is entitled, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, marriage or other social status, to return to his country. (b) No one shall be arbitrarily deprived of his nationality or forced to renounce his nationality as a means of divesting him of the right to return to his country. (c) No one shall be arbitrarily deprived of the right to return to his own country. (d) No one should be denied the right to return to his own country on the ground that he has no passport or other travel document. [8] 

Since international law is premised on state sovereignty, there seems to be a problem in successfully applying these criteria to the Palestinian case. Thus, the above declarations imply that there is a "country" of which one is (was) a citizen and to which one can return. Clearly, a literal interpretation leads to the conclusion that the Palestinians do not have the right of return, because Israel is not their state. Parenthetically, it should also be noted that according to this interpretation of international law, Jews from the Diaspora do not have an automatic "right of return" either, since they too were not citizens of the state to which they claim the right to return. Drawing upon common law, which is informed by criteria of kinship, family ties, and tradition, Arzt and Zughaib resolve this problem by concluding that "regardless of whether Palestinians have a right to return to Israel, they have a right to return to Palestine." [9] 

Finally, it should be noted that in 1974 the Palestinian right of return was linked, through General Assembly Resolution 3236 (XXIX), to their right of self-determination. The said resolution:

1. Reaffirms the inalienable right of the Palestinian people in Palestine, including: (a) The right to self-determination without external interference; (b) the right to national independence and sovereignty;

2. Reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return. [10] 

United States' Approach

While the United States' approach to the Palestine question has fluctuated over time, salient aspects include its long-standing policy against an independent Palestinian state, its refusal to use the United Nations as a forum for resolving the Palestine conflict, and its repeated rejection of the applicability of UN Resolution 194 in the deliberations of the RWG (even while technically, at least until December 1993, continuing to support that resolution). Indeed, the United States' December vote was important for signalling the Clinton administration's retreat from even formal adherence to the principle of the right of return as enshrined in the resolution. Since 1948, the United States had consistently supported the UNRWA resolutions, including the crucial Paragraph A reaffirming UN Resolution 194, and indeed had regularly introduced these resolutions to the UN General Assembly. For the first time last December, the UNRWA resolution was introduced by the European Union, and Paragraph A was endorsed by 159 states, with Israel and the United States as the only two abstaining countries. No votes were cast against the resolution.

That U.S. policies on the Palestine question do not necessarily reflect the attitudes of the American public is clearly demonstrated by a national opinion survey conducted by Gallup in November 1992, which showed that 57 percent of Americans polled believe that the Palestinians should have a state of their own, with only 18 percent op- posed. Finally, close to two-thirds of the American respondents endorsed the right of the Palestinian refugees to return to their homes in accordance with UN resolutions. [11] 

Israeli and Palestinian Approaches

Predictably, Israeli and Palestinian views with regard to refugees di- verge on everything from the original number of Palestinian refugees created in 1948 (table 3) to the means of resolving the impasse. Until recently, the Israeli government and a large body of academics in Israel and the West subscribed to the notion that the Palestinian exodus in 1948 was either voluntary or largely instigated by the leaders of neighboring Arab countries. There is no point in rehearsing the debate surrounding this discredited view. Israeli researchers in the last decade have uncovered a substantial body of information largely affirming the refuges' own version of their nonvoluntary exodus, now acknowledged at least in part to have been engineered by the fledgling Israeli state and provoked by acts of terror. In his opening presentation at the second RWG meeting in November 1992, the first attended by the Israelis, the head of the Israeli delegation repeated the official position by calling a "travesty" the proposition that the "Palestinian refugee problem [was] the result of mass expulsion." But he went on to say that "the Palestinian refugee problem was born as the land was bisected by the sword, not by design, Jewish and Arab. It was largely the inevitable by-product of Arab and Jewish fears, and the protracted bitter fighting." [12] This language, echoing Israeli historian Benny Morris's well-known formulation that the refugee problem was "born of war, not of design," represents an important departure in Israeli official thinking, even though it is overladen with the symmetry of culpability and will likely not impress those who have languished for generations in camps, whether they were expelled from their homeland by design or whether they left out of fear for their lives. Still, the statement does acknowledge some Israeli responsibility in what the head of the Israeli delegation to the RWG called "the inherent immorality of war." [13] 

Subsequent to the 1948 war, Israel offered to take back 100,000 Palestinian refugees, [14] a fraction of the more than 750,000 who fled or were driven from their homes during the fighting. Any hopes that Israel would repeat the 100,000 offer, much less apply even so modest a percentage to today's refugees and their descendants, appear to have been nullified through Israel's enactment of a series of laws that served, in the words of Arzt and Zughaib, to "institutionalize the blockage of Palestinian return." [15] While these laws deal primarily with the confiscation of Arab land and property, a central component of the "block- age" is the 1952 Nationality Law and subsequent amendments to it. In interpreting the law, David Kretzmer, an Israeli lawyer and academic, notes that "Arabs cannot acquire Israeli nationality by way of return; they must do so by residence, birth or naturalization." [16] Prior residence, then, does not qualify the Palestinians for citizenship or return to their homes. Indeed, built into the law are clauses specifically designed permanently to prevent any return. For example, to qualify for residency under Section 3 of the 1952 Nationality Law, one must prove that one was present in the country on 1 March 1952 (later amended to 14 July 1952), in the state after it was established, or in any territory declared thereafter as part of the state. Section 3(A), Clause 5 of the amendment to the Nationality Law introduced in 1980 states that a person is entitled to Israeli citizenship if "he is not a citizen of a country listed in the Prevention of Infiltration Law." [17] This would include, at least up until Jordan and Israel signed the "Washington Declaration" ending the state of belligerency in July 1994, some two million Palestinian refugees living in Jordan; it is not yet clear how the change in Jordan's status as an "infiltration" state will affect the refugee issue. What is clear is that there is no mention in the Israeli-Jordanian agreement of Palestinian refugees, even though the Jordanian delegation to the RWG repeatedly and regularly raised the issue of the return of close to 50,000 Palestinian holders of Israeli residence cards and (like all residents of the West Bank) of Jordanian passports who left the occupied territories for reasons of work, study, marriage, and so on and who have not been permitted to return.

Publicly, Israel is seeking to address its responsibility toward the Palestinian refugees in familiar ways. First, it has declared itself prepared to compensate Palestinian refugees so long as Jews from Arab lands are also compensated for their property and other losses. When passing reference to this element was made at the second RWG meeting, the Palestinian delegation categorically rejected it: no court of law could ever uphold the proposition that Palestinian refugees should be made to pay the price of Jewish dislocation from Arab countries. Moreover, while the Palestinians support the right of displaced Jews from Arab lands to return to their countries of origin and compensation for those not wishing to return, such compensation must be paid by the concerned Arab governments.

The second-and more important from the Israeli point of view- aspect of the Israeli government's approach is its eagerness to cooper- ate in efforts aimed at permanently settling the refugees by giving them residency and citizenship rights in neighboring Arab countries. There appears to be no opening in the publicly articulated Israeli position acknowledging the legitimacy of a refugee return, although in discussions at the RWG concerning family reunification, Israel has indicated that it may allow the return of limited numbers on purely humanitarian grounds. Even in this limited context, however, reunification would apply to families in the West Bank and Gaza only, and it would appear that potential beneficiaries are not 1948 or even 1967 refugees but recent residents of the occupied territories who were not allowed back after leaving for study or other reasons. If the slow progress on family reunification in the current deliberations of the RWG is any indication, the prospects of resolving the far thornier refugee issues of 1948 and 1967 do not seem bright. [18]

For the Palestinians, the crux of the refugee issue is Resolution 194, and like the other Arab governments involved in negotiations with Israel they insist on strict adherence to it. The Palestinian position on the resolution could be said to reflect the moral outrage-frequently expressed at the popular level-at Israel's willingness and indeed eagerness to absorb millions of Jewish immigrants while rejecting the return of the original inhabitants of the country. But Palestinian efforts to raise the issue of Resolution 194 at the RWG have been met with Israeli admonishments not to "politicize" the meetings and with reminders that the RWG's purpose is to address the refugee issue from a scientific and technical standpoint. The United States, meanwhile, repeatedly pointed out that Resolution 194 has "no place" in the RWG deliberations, although the Palestinians were permitted to enter reference to the resolution into the record. During the last round of RWG meetings in Cairo in May 1994, the head of the Canadian delegation, who also chairs the RWG, referred to the right of return as a "myth." Although under pressure he subsequently retracted this statement, which was not written into the record, it clearly reflects the views of the Israelis and the Americans and, to a lesser extent perhaps, of other members of the working group.

At a more general level, the formulation of a Palestinian strategy on the refugee issue has been overwhelmed by more pressing economic concerns, such as creating a viable economic infrastructure. Little has been done by way of preparation for the final-status talks, and in the meantime the refugee problem, essentially political in nature, is being successfully diluted by other parties and increasingly turned into a solely humanitarian problem.

With their attention directed elsewhere, the Palestinians are likely to be in a state of total disarray when they are finally called upon to put forward a credible scenario at the time of the final-status talks. If and when the deadlock on the right of return is reached, as in all likelihood it will, they will have little leverage to press their case. Unless some- thing is done soon, they will find themselves at the mercy of Israeli dictates, as has occurred in other multilateral working groups.

Several steps, I believe, should be taken if the Palestinians are to avoid total disaster on the refugee issue. First and foremost, the Palestinians must forge coordination on this matter with other Arab countries, particularly Lebanon, Jordan, Syria, Iraq, and Egypt. The Palestinian policy of "going it alone," while originating in weakness and necessity, is dangerous in the long run and must be abandoned. Second, and more importantly, an honest, open debate on the refugee is- sue within the Palestinian refugee communities is absolutely essential. This should involve a free, independent plebiscite to determine how many refugees would actually want to exercise their right of return. In the meantime, part of the coordination with Arab states would have to take the form of negotiations aimed at regularizing the status of Palestinian refugees in host countries who are unable or unwilling to return, if possible through the granting of citizenship. At a minimum, the leadership should be able to guarantee that the refugees, wherever they reside, are granted Palestinian citizenship. Finally, it is essential that the leadership explore possible options and solutions directly with the refugees themselves, and that they neither be faced with a fait accompli nor coerced into accepting solutions not in their interests.

Arab States' Approaches

To begin with, the current position of the Arab states toward the Palestine question must be understood against the background of Arab politics of the region. The Arab defeat of 1967, which culminated in the eclipse of pan-Arabism as a state ideology, signaled the failure of the Arab states to become masters of their economic destiny, improve the lot of their people, and assist in redressing Palestinian grievances and regaining lost homeland. Since that time, the Arab world has been marked by increasing economic disparities between the oil and the non-oil producing states (less than 10 percent of the Arab world's population-primarily the oil producers-receive about 40 percent of the total Arab GNP [19]) and crushing foreign debt-at least $70 billion as far back as 1986. [20] Since the Gulf war, the oil producers themselves are indebted, and in any case, their full integration into the interdependent world economy assures that their revenues are invested in the developed world. At the same time, it has become increasingly apparent that in no other sphere has the Arab state failure been so pronounced as in its inability to build legitimate political institutions capable of ensuring political succession by democratic means.

It is thus not surprising, in the absence of democracy in the Arab world and with the continuation of an inegalitarian economic order, that the Arab governments' tolerance of the Palestinians in their midst has declined over time, particularly after the Gulf war. Citizenship and residency rights have been denied to Palestinian refugees everywhere in the Arab world except Jordan, the initial rationale being solidarity and the affirmation of the Palestinians' right of return to their homeland. With the decline of pan-Arabism and more recent events, such as the Gulf war and the resurgence of nativist movements, the rationale has become more state-centered, the Palestinian presence being viewed as a political and economic threat to the stability of the countries concerned. Except for Jordan, as noted above, and Syria, which grants equal rights to Palestinians in health, education, employment, and property ownership, Lebanon, Egypt and lately the Gulf countries deny Palestinians the right to work, free education, health, and freedom of movement. [21] There is no sign that these official attitudes will change as long as the Arab state system continues to be besieged from within by demands for economic equality and greater political participation, and as long as the pro-Western political elites believe that the West will come to the rescue if they are threatened.

Liberal versus Collective Models

From a policy standpoint, the dominant model concerning refugee rights is shaped by political liberalism, the philosophy that defines rights on an individual basis. It is this individualist approach that in- forms state policies regarding the status of refugee admission and exclusion. Thus, each refugee case is treated individually, without considering the relevance of group membership to refugee rights. When refugee rights clash with state rights, the liberal model accedes primacy to the state. [22] 

In contrast to the liberal model, the communitarian model acknowledges that one's identity is derived from membership in a group. This is quite different from the liberal model which assigns a utilitarian, individually-based conception to the individual. In the communitarian model, the collectivity precedes the individual. [23] Thus, refugee rights are best protected when the refugees are considered as members of a community. In Hathaway's words,

the community to which the refugee seeks to return is the one from which she came. Rather than continuing the refugee Convention's emphasis on facilitating the permanent exile of a narrowly defined subset of refugees, I believe that the international protection system should be easily accessed by a broadly defined group of involuntary migrants, but should direct itself ultimately to the refugee's right to be restored to membership in her community. [24] 

Clearly, the approach adopted by Israel, the United States, and their supporters toward Palestinian refugee rights is informed by a limited application of the liberal model. Thus, Israel is willing to entertain a small number of applications for family reunification on an individual, humanitarian basis, without addressing the political issue in a collective manner under the right of return provision of relevant UN resolutions. The larger issue of Palestinian refugee rights stemming from the 1948 and 1967 wars is left untouched, and Israel is unwilling even to open the subject for discussion at the present time-except, of course, when it is a question of refugee resettlement in neighboring Arab countries. The DOP of September 1993 provides for "discussion" of the refugee issue once the interim period of self-rule gets underway. Barring the unforeseen, the most that can be expected from the Israeli side is a recapitulation of its long-standing position with regard to the 1948 refugees. Significantly, Israel's own right of return legislation ("the Law of Return") is based on a collective-exclusive national model. In other words, Israeli law bestows collective-communitarian criteria for one group (Jewish immigrants) and individualist-liberal criteria on a selective basis for another group (Arabs). [25] 

UN General Assembly Resolution 194 is crucial for the Palestinian case precisely because it defines Palestinian refugee rights collectively and calls for their right of return as a national group. By accepting the Madrid formula for the Middle East peace talks, which excludes the United Nations as the structure for resolving the Palestine refugee problem, the Palestinians have seriously weakened their demand for the implementation of the right of return. The current forum for Middle East peace talks is unlikely to acknowledge Palestinian collective rights along the lines suggested here, especially at a time when the Palestinians are engaged in internecine ideological warfare, when their leader- ship is ambivalent if not hostile to democratic norms of participation, and when the Arab world is fragmented, its pro-Western governments eager to embrace the New World Order in the interest, however illusory, of self-preservation.

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Elia Zureik, a professor of sociology at Queen's University, Kingston, Ontario, attended the first three sessions of the Multilateral Refugee Working Group as a member of the Palestinian delegation. An earlier version of this paper was presented in April 1994 at the Council on Foreign Relations in New York. The tables presented here were originally prepared by the author and included in Facts and Figures about the Palestinian People (Washington, D.C.: Center for Policy Analysis on Palestine, 1993). 

1. President George Bush, cited in Michael T. Klare, "US Miliary Policy in the Post-Cold War Era," in Ralph Miliband and Leo Panitch, eds., New World Order? Socialist Register, 1992 (London: The Merlin Press, 1992), p. 140

2. van Loes Willigen, "Health Hazards of Organized Violence in Children: Conclusions and Recommendations of the Advisory Group," Journal of Refugee Studies 6, no. 2 (1993), p. 176.

3. Michael Humphrey, "The Political Economy of Population Movements in the Middle East," Middle East Report 23, no. 181 (March-April 1993), p. 2.

4. New York Times, 16 June 1991, p. E3.

5. Daniel Warner and James Hathaway, "Refugee Law and Human Rights: Warner and Hathaway in Debate," Journal of Refugee Studies 5, no. 2 (1992), p. 163.

6. UN document, Consolidated eligibility instructions [Rev. 7/83, January 1984].

7. United Nations, The Right of Return of Palestinian People, SG/SER.F/2 (1978), p. 6.

8. Ibid.

9. Donna Arzt and Karen Zughaib, "Return of the Negotiated Lands: The Likelihood and Legality of a Population Transfer between Israel and a Future Palestinian State," New York University Journal of International Law and Politics 24, no.4 (1993), p. 1445.

10. See also Antonio Cassese, "Some Legal Observations on the Palestinians' Right to Self-Determination," Oxford International Review 4, no. 1 (1993), pp. 10-13.

11. "Public Attitudes Toward Events in the Middle East" (Princeton, NJ: Gallup Organization, 1992), pp. 1-4.

12. Shlomo Ben-Ami. Opening Remarks, official presentation by the Israeli Delegation to the Refugee Working Group of the Middle East Peace Talks, Ottawa, Canada, 11 November 1992. Mimeo., p. 3. Mr. Ben-Ami appeared at no other RWG sessions.

13. Ibid, p. 5.

14. See Neil Caplan, "A Tale of Two Cities: The Rhodes and Lausanne Conferences, 1949," JPS 21, no. 3 (Spring 1982), pp. 25-26.

15. Arzt and Zughaib, "Return of Negotiated Lands," p. 1423.

16. David Kretzmer, The Legal Status of the Arabs in Israel (Boulder, CO: Westview Press, 1990), p. 36.

17. Ibid, p. 38.

18. Reports have been circulating that in behind the-scenes talks with the PLO the Israelis have expressed a willingness to accept a limited number of refugees within its 1948 borders if the suitable formula can be found. A similar possibility is raised in Donna Arzt, "Turning Refugees into Citizens: A Framework for Resolving the Demographic and Humanitarian Aspects of the Arab-Israeli Settlement." Paper submitted to the Council on Foreign Relations, August 1994.

19. Halim Barakat, The Arab World: Society, Culture and State (Berkeley: University of California Press 1993), p. 80.

20. Yahya Sadowski, "Scuds versus Butter: The Political Economy of Arms Control in the Arab World," Middle East Report, no. 177 (July-August 1992), pp. 2-13, 42.

21. Abbas Shiblak, "In Search of a Durable Solution: Residency Status and Civil Rights of Palestinians in Host Arab States." Refugee Studies Program, Oxford University, 1993. Mimeo.

22. Warner and Hathaway, "Refuge Law and Human Rights," p. 163.

23. Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ.: Princeton University Press, 1990), pp. 42-48.

24. Warner and Hathaway, "Refugee Law and Human Rights," p. 170.

25. In this context see the relevant discussion by Yoav Peled, "Ethnic Democracy and the Legal Construction of Citizenship: Arab Citizens of the Jewish State," American Political Science Review 86, no. 2 (1992), pp. 432-43.