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Where will they go?
ABA Journal; Chicago; Dec 2000; Jeffrey Ghannam;

Volume: 86
Start Page: 40-47
ISSN: 07470088
Subject Terms: Refugees
International law
Palestinians
Geographic Names: Israeli occupied territories
Abstract:
The issue of Palestinians' right to return to villages now in Israel has been a growing source of moral, political and legal protest and negotiation from Washington to the Palestinian controlled territories. The Palestinians argue that international law is on their side, saying that the compromise of the rule of law plays into the hands of militants all over the world.

Full Text:
Copyright American Bar Association Dec 2000
[Headnote]
Palestinian refugees say international law is on their side to end their 52-year struggle to go home. But where is home? A resolution could determine their future for better or for worse.

Near a checkpoint between Israel and the West Bank, we prepare to be stopped, questioned, turned back or arrested.

Relative peace prevails on a bright fall afternoon a few days before the outbreak of new violence. Despite the calm on this day, a trip into Israel could lead to a fine and a few days in jail.

The rental car I am driving, carrying three members of a Palestinian refugee family, has license plates bearing a small Israeli flag. Israeli plates spirit a car through that nation's checkpoints. Cars with Palestinian National Authority plates-a symbol of a nascent nation-are restricted to the West Bank and Gaza.

Naji Aodah, 39, his son Mourad, 12, and nephew Atallah Salem, 27, live in the Dheisheh refugee camp near Palestinian-controlled Bethlehem in the West Bank, and they do not have permits to enter Israel. Without permits, which are hard to get, they are restricted to the West Bank and Gaza, though many Palestinians enter Israel illegally as cheap labor.

The dusty, crowded and trash-- strewn alleys of refugee camps in the West Bank and Gaza are where children like Mourad learn to throw stones and risk being killed in outbreaks of violence like the recent clashes between Palestinians and Israeli troops.

When refugees recite their histories, their point of departure is their ancestral village, which may no longer appear as it once did on maps. Mourad points out that while he lives in Dheisheh, his family comes from Deir Aban, once a Palestinian village about 12 miles southwest of Jerusalem but now just rubble in the shadow of towns in Israel.

Mourad is among the refugees who carry on their parents' and grandparents' sense of dispossession. Refugees, who are into their fourth generation, want to return to their ancestral villages and properties.

Up to 3.7 million refugees are registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East, which provides education, training and relief for 1.2 million people in 59 camps in the West Bank, Gaza, Jordan, Lebanon and Syria. These refugees comprise the world's single-largest refugee community.

As we near the checkpoint, Aodah tells me to drive straight ahead unless told to stop-routine checkpoint procedure. Many refugees who venture into Israel say that in times of relative calm, soldiers let them pass, knowing the refugees are going to visit old villages. If they are turned back, the soldiers admonish them, saying, "Just don't let me see you," to suggest the refugees take the circuitous backroads into Israel.

[Map]
Caption: Refugee Relief

[Photograph]
Caption: ANCESTRAL RUINS Mourad Aodah and his father, Naji, enter Israel without permits to visit the rubble that once was their village.

The car glides toward the checkpoint, and the lone soldier looks straight ahead but not at us. We pass and are slightly amazed at our luck. Aodah lets out a cheer. lets out even he can't quite recall the quite recall to his family's former village. After a wrong turn into a stunning 3 former valley of pine and olive trees that resembles parts of central California, the car groans up hills as we backtrack.

We finally find our way to the ruins of Deir Aban.

The Heart of the Issue

The refugees are campaigning for the right of return to villages now in Israel, the Jewish national homeland since 1948. The issue of the Palestinian right of return has been a growing source of moral, political and legal protest and negotiation from Washington, D.C., to the Palestinian-controlled territories.

Diplomatically, the right of return is an issue to be determined in final status talks, along with the borders of a Palestinian nation and the status of East Jerusalem. As part of the interim peace agreement between Israel and the Palestinians, Israel has withdrawn its military from the majority of Gaza, and from seven towns and cities in the West Bank.

This fall, after Israeli rightwing leader Ariel Sharon's visit to a site holy to Jews and Muslims, several Palestinian protesters died when Israeli troops fired on them. Funerals led to more clashes with Israeli soldiers, who fired to the head and chest, and more deaths. The cycles of unrest have unfolded in the West Bank and Gaza, occupied by Israel since the 1967 ArabIsraeli war.

As part of the current peace process, the Palestinian National Authority controls some areas of the West Bank and most of Gaza. Palestinians view those areas as the beginning of an independent state, and they have been seeking accelerated Israeli withdrawal.

The failures of peace efforts to resolve the daily humiliation of refugees and ordinary Palestinians still living under occupation helped foment the frustration at the lack of progress toward an independent state. Israeli settlements in the occupied territories, contrary to international law, persist.

The vast majority of the people killed and wounded were Palestinians, but Israelis and Israeli Arabs also died. With no end to deadly clashes, the violence expanded to include sniper fire on Jewish settlements, Israeli rocket attacks on Palestinian National Authority sites and Islamic extremist car bombers.

The violence only intensifies the need for lasting resolution. Refugees see the end of their struggle in U.N. Resolution 194 (III) of 1948 as the authority for the right of return. But will the resolution be strictly interpreted or ignored altogether?

At the heart of the issue is the insistence of refugees that they have the right to return to properties in Israel. But Israel says that if they return, it must be to a Palestinian nation in the West Bank and Gaza.

To be sure, some refugees may not want to return, and large numbers have resettled all over the world. Still, the international community has repeatedly reaffirmed Resolution 194. Israel agreed to the resolution as part of its membership in the United Nations. Without a resolution that refugees will accept, their camps will continue to be flash points for militancy in the Middle East fueled by a sense of injustice.

Even if peace negotiations resume in earnest, the character of a resolution will be a sticking point for Israel and the Palestinians for some time.

"For people with a legal interest, this is a matter that should be looked at in its universalism," says Khalil Shikaki, director of the Palestinian Center for Policy and Survey Research in the Palestinian-controlled town of Ramallah. "It's a matter of principle and basic human rights."

Other international efforts on behalf of refugee rights appear to support the claims of the Palestinian refugees. Palestinians point to the U.S.-led international coalition to repatriate Kosovar refugees, and the right of return and restitution for Bosnian refugees under the U.S.sponsored Dayton Accords.

The billions of dollars in legal settlements that Germany, Austria, Switzerland and Belgium have agreed to pay to Holocaust survivors serve as precedent, Palestinians say, for their own claims for lost properties and profits from Israel's use of refugee lands for 52 years. Refugee lands are largely Israeli state property.

"Palestinians are demanding what Jews are doing," says Gershon Baskin, co-director of the Israel/ Palestine Center for Research and Information, a Bethlehem-based independent think tank that develops public policy options. "What the Israelis will try to do as part of a negotiated agreement is to have Palestinians sign a statement that there will be no further claims."

[Photograph]
Caption: CIRCLE OF DEATH Young Palestinians attack Israeli soldiers after the funeral of a boy killed In previous clashes with troops.

Baskin believes that if Israel accepted responsibility for the suffering of refugees and recognized a right of return, it would be saying that it is an illegitimate state. "I don't think Israel will recognize the right of return to Israel."

Any resolution must unfold according to international law, says Hanan Ashrawi, a member of the Palestinian Legislative Council, the legislative body of the Palestinian government. She is also secretary general of Miftah, the Palestinian Initiative for the Promotion of Global Dialogue and Democracy.

"I think any undermining of the Palestinian right of return will be a dangerous precedent globally," says Ashrawi, whose offices overlook an Israeli checkpoint. "Palestinians should be like other people-protected by the rule of law."

Paragraph 11 of Resolution 194 states 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 equity, should be made good by the governments or authorities responsible."

Palestinians rejected the 1947 U.N. partition of Palestine as against the will of the indigenous population. They say 750,000 refugees were created by the panic-- driven or forced depopulation and occupation of village lands in the months preceding and the war surrounding Israel's establishment.

The U.N. Conciliation Commission for Palestine was created in 1948 to effect the return of refugees, as well as to facilitate restitution of refugee properties and compensation for losses and damages, reports Badil, a Bethlehem grassroots advocacy group for refugee rights. But international efforts to resolve this refugee issue have focused on resettlement outside Israel, an option Palestinian refugees reject.

Jonathan Kuttab, a Palestinian human rights lawyer who once worked on Wall Street, says, "Many Palestinians insist on the right of return for the moral and legal aspects of it rather than out of any desire to return. Who's going to deny me that right to go home? It's my decision. It's my right."

Israel rejects responsibility for the plight of Palestinian refugees, saying they fled at the commands of Arab armies that attacked the newly declared nation in May 1948. Israel blames refugee suffering on Arab host nations that have, aside from Jordan, largely refused to fully integrate Palestinians.

Further, Israel argues that 600,000 Jews lost property when Arab nations expelled Jewish citizens upon Israel's establishment. An Israeli Foreign Ministry spokesman calls the refugee issue one of a regional population transfer, in that Palestinian claims are offset by Jewish property losses in Arab nations.

It's a theory Palestinian negotiators in the peace talks reject, saying Israel's counterclaims must be taken up separately with those Arab nations. Further, the Palestinians say, Jews from Arab nations went to the Jewish national homeland to become citizens, not refugees.

Neither Israel nor the Palestinians want to commit to accepting a set number of refugees who may return. Israel has considered allowing a limited number of refugees to return, 100,000 for instance, in a symbolic gesture or as part of family reunification over several years.

But the Palestinian leadership is unwilling to accede to such a number or commit itself to accepting a share of refugees because doing so would compromise its position that they should return to Israel under Resolution 194, Shikaki says.

The refugees fear that their rights will be cut short in a political compromise between Israel and the Palestinian Liberation Organization, which is conducting the peace talks with Israel.

Both Israel and the Palestinians have recognized the other's right to exist. At issue is the nature of that existence: Where do all sides go from here?

Two Different Worlds

To refugees, crossing into Israel from the and West Bank is like leaving a prison. Suddenly, the picture turns from black and white into color. The air is fragrant, and the hills undulate. The Green Line, the border separating Israel and the West Bank, is a few miles from the Dheisheh refugee camp but is, in every sense of the term, a world apart.

Atallah Salem has spent his life in Dheisheh, and he cites Resolution 194 for legal footing despite its failure to include a mechanism to guarantee its implementation. He says he has an individual right to return to his lands apart from what is negotiated collectively for refugees.

The specter of a sellout underlies the campaign in support of the right of return, which is aimed at the PLO as much as Israel and the international community.

Grassroots efforts in the West Bank and Gaza are in response to a sense that refugees' rights have been marginalized in the peace process, says Ingrid Jaradat Gassner, executive director of Badil. "Nobody really knows what goes on in the negotiations," she says.

[Photograph]
Caption: HANAN ASHRAWI
`Palestinians should be like other people-protected by the rule of law.'

The 1993 Oslo Declaration of Principles does not refer directly to Resolution 194, even though the fate of the 1948 refugees is to be discussed in final status talks launched in 1996. The future of refugees from the 1967 Arab-Israeli war is to be resolved separately among a four-nation committee. Refugees wonder whether

they will be victims again as they find themselves caught in the middle between Israeli and PLO negotiators.

Though PLO officials say publicly such a right cannot be negotiated away, the refugees fear it. That reality bleeds through remarks by refugee activists, who say compromises on sovereignty over Jerusalem and the borders of a Palestinian nation should be accepted before any compromise on the right of return.

Salem scoffs at the visits to Dheisheh camp by Yasser Arafat, the Palestinian leader, who tells camp residents to keep multiplying. "He just ignores us," Salem says. "He has lots of slogans, but that's all. Whenever the moment comes that he will compromise on refugee rights, he will become nothing."

Salem recognizes his plight is not about to change overnight. So he raises awareness as a volunteer for Badil. "We were the victims in 1948. We were the victims in 1967," he says. "We're not going to be the victims again."

In Balata refugee camp, Ruqaya Jibrin sits on a stoop where she has a view of a cement wall. Many like her and her husband were made refugees before the Arabs attacked the new Jewish state. Jibrin and her husband hail from Beit Dajan-now Beyt Dagan in Hebrew-established six months after Jewish forces conquered the Palestinian village in April 1948, according to Walid Khalidi, a former senior fellow at Harvard's Center for Middle Eastern Studies. He edited a 636-page tome, titled All That Remains, about the Israeli occupation and depopulation of more than 400 Arab villages. The book is published by the Institute for Palestine Studies in Washington, D.C.

Jibrin has visited her former home, now inhabited by Israelis, five times in 52 years. "Every time we go, we sit and we cry," says the woman with cloudy blue eyes. "We should go to our land. We don't want compensation." But, she adds, "Our land, our groves-they're gone."

She has spent 50 years in Balata. She is asked whether she would accept a home outside the camp in Nablus in a Palestinian nation. "I won't accept it," she retorts.

Another refugee, Jamela Qasim, holds the skeleton key to the home in a village near the Mediterranean Sea that her family fled when she was 12. She and other refugees have returned to the ruins of their former village's mosque on Fridays for prayers. She says the situation is too complicated for negotiations. "Only God can fix this."

Familiar Confines

Refugees nearly re-create their communal ties in the camps by living in clusters that correspond to their villages of origin. While the camps are depressing and drab, they are familiar. Many refugees face discrimination from the wealthier, town-- dwelling Palestinians. Fathers reluctantly let daughters marry men from the camps, where the couples will make their homes.

[Photograph]
Caption: OUTCAST BUT TOGETHER The family of Khalil Abu Laban (rear, second from left) lives In a refugee camp home shared by 20 people from five families.

On the walls of a small refugee camp home shared by 20 people from five families are photos of Khalil Abu Laban's daughter, whose age he struggles to recall.

The family reminds him that the girl, Rufaida, was "martyred" at 13. She was shot in the head by Israeli troops when she went outside during a curfew in the 1989 uprising. A photo from her funeral hangs on the wall. So does a poster from Pope John Paul II's visit to Dheisheh earlier in the year, when he recognized the refugees' suffering.

Born in 1948, Abu Laban lived in several camps before settling in Dheisheh, where he owns a billiard hall. He says no peace agreement will be durable without recognizing that refugees have a right to return to their villages of origin. Most important in his mind is to have that right; less vital is what he does with the choice. He adds that compensation cannot supplant it.

Last summer, his son, Jalal, 26, visited the site of Zakariyya, where he met several Israeli youths who told him he was welcome to return. But even if Israel accepts some refugees, it flatly rejects their claims to their villages, which it says may involve displacing Israelis. Palestinians say many village sites lie empty.

Both Zakariyya and Deir Aban were conquered early in 1948 by the Haganah, the underground Jewish militia, well before the Arab attack on the newly established Israel, according to Khalidi's book.

The remaining residents of Zakariyya were evicted in 1950, and most were transferred to Al Ramle, another depopulated and occupied Arab city that is now Israeli, according to Khalidi, who cites Israeli historian Benny Morris.

Abu Laban has two brothers who are Israeli citizens in Al Ramle. Years ago, he tried in vain to be reunited with them. Today, he would seem to reject the idea of living anywhere but Dheisheh or the ruins of Zakariyya.

Jalal, who has no work permit, earns $10 a day when he can sneak into Israel or work on Israeli settlements in the West Bank. He is among those who live in the crowded home with his wife and baby girl, who is named Dunya, meaning "world." Playing with his daughter, Jalal says, "Maybe her world will change."

Israel says the right of return for Palestinian refugees could forever destroy the character of the Jewish national homeland.

"Israel is not going to change the makeup of the population of Israel by accepting large numbers of refugees," says Washington, D.C., lawyer Joel Singer, who gave his gave his views as a former legal adviser to the Israeli Foreign Ministry and an Israeli peace negotiator under Prime Minister Yitzhak Rabin.

Singer says if refugees are accepted, "It will be on an individual basis and not a massive basis. It will be over a long period of time, not one fell swoop. It will be largely symbolic."

Singer believes Arafat will have to sell a compromise to his people as something more meaningful than it really will be. "The refugees are still arguing for the resolution of the refugee problem in its totality," he says.

Singer envisions an Israeli proposal of funds to rehabilitate refugees in locations where they already live, resettlement of some refugees to a Palestinian nation in the West Bank and Gaza, Israeli acknowledgment of-but not responsibility for-refugee suffering, and an Israeli agreement to absorb some refugees through family reunification.

Israeli Peace Now spokesman Didi Remez says, "In terms of historical justice, it would be right that all the refugees return."

But like most Israelis, Remez says it's not practical because of the threats to internal security and to the character of the Jewish state. The solution must be pragmatic, he says. "To do that, you have to put historical injustice aside. There's no way that any Israeli government is going to accept the right of return."

Peace Now supports a return of refugees to an independent Palestinian nation in the West Bank and Gaza with a shared capital in Jerusalem.

Remez sits in Peace Now's Jerusalem office, in the basement of a stone villa in the German Colony neighborhood. It's near similar clusters of artful homes that once belonged to the Palestinian Muslim and Christian elite. The idea of Palestinian owners returning to claim their properties in Israel is unthinkable, he says.

[Photograph]
Caption: KHALIL SHIKAKI
For the legal-minded, this issue `should be looked at in its universalism.'

"People are physically living in these houses," Remez says of the lush neighborhoods where homes have courtyards and red-tile roofs. "For anybody living here, it's just not workable.

"We have Palestinians who say, `Just give us that right,' " Remez says. Even if the Palestinians say they won't use the right, he points out, "The floodgates are open forever and ever. This is not how you build a permanent peace solution."

Remez says he doesn't think compensation for lost properties will equal anywhere near the Palestinian emotional or national loss. "It can't be framed as `We're giving you money now for your losses and lands in Israel! In practical terms, it's never going to make up anything. It's going to be a big compromise."

Palestinian compensation for lost properties in Israel could reach up to half a trillion dollars, according to Gassner of Badil. Figures of $40 billion-$100 billion have also been used.

Privately, Israeli peace activists envision the emergence of a binational union of Israel and Palestine, but only after several decades of Palestinian independence and development. Supporters of this idea believe both Israel and Palestinians can benefit from several decades of separation so that Israel can resolve internal issues of, for instance, religion vs. secularism while a new Palestinian state can develop apart from military occupation on all fronts.

But practical considerations do not sway Palestinians, who say the issue cuts deeper. Spokeswoman Ashrawi says Israel is acting above the law on the issue of Palestinian refugee rights.

"The one reason the Palestinians are not going back to their homes and lands which they own and which they lived in for centuries is the fact that they are not Jewish," she says. "And I think that is totally disregarded. It's not the job of the Palestinian refugees to pay that price.

"If the peace process is to produce a just and lasting peace, it cannot be based on injustice," she says. Palestinian leaders who attempt to pressure refugees to accept a flawed agreement under the guise of pragmatism "are sadly mistaken. They will lose their constituency, and they will mobilize the majority of Palestinians."

Shikaki says, "There has to be a way to satisfy both sides." He envisions a four-pronged approach to be forged in negotiations. "I think a limited number will seek to return to Israel. But if they have the choice to make, then you facilitate closing the file. Only by giving them the choice can you get closure on the refugee issue."

In reaching a resolution, the difficulty lies in determining the number of refugees who would want to return to Israel. The remaining three options include returning to a Palestinian nation, emigrating to the West, or settling in host countries like Lebanon or Jordan.

[Photograph]
Caption: DIDI REMEZ `You have to put historical Injustice aside.' For residents of Jerusalem, the right of return is just not workable.

"The negotiations will focus on who will return to Israel," Shikaki says. "The other three options aren't sticking points."

Even before violence erupted in September, Israeli and Palestine Liberation Organization negotiators remained seriously divided on almost every issue, says Omar Dajani, a 1996 Yale law graduate and legal adviser to the PLO Negotiations Affairs Unit.

"The Palestinian side has pressed for international law to be the primary reference point in the resolution of each issue," Dajani says. But he adds that Israel has resisted and has called for more "practical" solutions based on the current balance of power and the situation on the ground.

"If Israel is genuinely interested in securing its long-term security, it is imperative that it accept the Palestinians' right of return and take concrete steps to facilitate its implementation," Dajani maintains.

"I'm convinced, however, that it is possible to maintain Israel's role as a sanctuary for Jews throughout the world while accommodating religious and ethnic diversity within its borders."

If the tensions between Israel and its 1 million citizens of Palestinian origin are any indication, the future of peaceful coexistence and equality looks grim. Israeli Arabs live in communities that are vastly underdeveloped, and residents suffer from high unemployment. Some rioted this fall against their second-class status.

Hashem Mahameed, an Israeli Arab member of Israel's parliament, the Knesset, is calling for a democracy that includes Jews, Christians and Muslims alike.

The nature of Israel's diversity is much-debated today. Israeli news reports say some Russian emigres to Israel are Christians.

Arab Israelis wage their own campaign for the right of return under Resolution 194 for the 250,000 "internally displaced," citizens who are unable to return to their villages.

"They're refugees in their homeland and in their country," Mahameed says, adding he is certain they can return to villages and lands that are not occupied by Israelis. "We don't want to uproot any Jews."

Uncovering the Path to Peace

The path to peaceful co-existence is elusive in this unforgiving land of competing nationalisms, religions and their manifestations. Can the past, the present and the future be reconciled?

The refugees' future will continue to hang in the balance. Is their future to be forged from a compromise based on pragmatism or international law? Probably both. Israel says only a small number of refugees, if any, may return. And they will not return to their villages because of the changed realities and threats.

The Palestinians argue that international law is on their side. They ask: If the rule of law is compromised here, where will it be followed? And if the rule of law is compromised, does it not play into the hands of militants all over the world who will struggle to restore their losses with the same disregard?

The refugees' hardship would seem to never end. But the character of a resolution could determine the future for this community and region, for better or for worse. Without better lives, the refugees aren't about to forget about the right of return, especially when faced with poverty and camp life.

On a bluff in Deir Aban, or Monastery of Aban, named after a cleric, the traces of a village can be made out. Several Israeli settlements have arisen nearby on village lands.

Last summer, Naji Aodah brought his 75-year-old mother and other elders to the destroyed village. Many elders trickle into Israel to sit amid such ruins, though they can hardly distinguish the sites themselves. He points out tombs. He uncovers water wells and drops a stone to hear its splash deep below the surface.

"I don't want to go back to Dheisheh," Atallah Salem says as he surveys the ruins for the first time, even though he grew up not far away.

These fleeting visits are a tonic for the refugees. The detritus stands as proof that they once had normal lives. Their ancestors lived in stone homes with lands of almond, pomegranate and olive trees.

An ocher sunset is visible from this hillside, unlike the shards of light that barely make their way into the cement and cinder block camps.

Aodah says that he would return to Deir Aban, even in its destroyed state with no plumbing or electricity.

He and Mourad hike through brush and debris. The father shows his son the foundation to the former family home. He points out a cave where a relative was born.

To make the former village live inside of his son, he feeds him cactus fruit, wild thyme and carob from its soil. He removes the dust from a brown carob pod that he gives his son to taste and remember.

"Bitter or sweet?" the father asks his son.

Mourad answers, "It's sweet."

[Photograph]
Caption: OMAR DAJANI
It Is possible for Israel to be both a Jewish sanctuary and an ethnically diverse nation.

[Author note]
BY JEFFREY GHANNAM

[Author note]
Jeffrey Ghannam, a lawyer, is a legal affairs writer for the ABA Journal. His e-mail address is ghannamj@staff.abanet.org.



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