“Palestine Papers” continued (1-4/2008)

Posted: January 28, 2011 by Rex Brynen in Palestine papers, peace process

You’ll find below the major “Palestine Papers” documents on the refugee issue from January through to April 2008. There is quite a bit of there of interest (most notably the NSU’s identification of a $300 billion claim for refugee compensation).

 

2 February 2008: Terms of Reference: Israel’s Ability to Compensate Palestinian Refugees

  • ToRs for an NSU consultant to examine Israel’s capacity to pay for refugee and other compensation. It indicates that a previous study estimated Palestinian property losses in 1948 at $200 billion.

 

11 February 2008: Blueprint For An International Mechanism to Administer the Solution for the Palestinian Refugees

  • NSU presentation on the structure and consideration for an international mechanism for implementing a refugee agreement (rehabilitation, resettlement, and claims).

 

14 February 2008: Palestinian Presentation to Bernard Kouchner on Refugees

  • A very brief Powerpoint prepared for French Foreign Minister Bernard Kouchner. Emphasis (among other things) “A pragmatic solution: distinguishing between the recognition and implementation of refugee rights.” The verbal script for the presentation is also available. A subsequent internal NSU member summarizes the meeting (my favourite part: “Maen suggested that the Brits have a major responsibility in the creation of the issue. The French loved it.”)

26 February 2008: Meeting Notes: NSU and Saeb Erekat

  • Only briefly mentions refugees, but comments by Saeb Erekat makes it clear that the Palestinian side was willing to consider a capped approach to refugees from the outset of the Annapolis negotiations (X refugees over Y years).

 

26 February 2008: Meeting Summary: NSU and Peter McRae

  • Summarizes meeting with Canadian diplomat Peter McRae regarding Canadian engagement and policy research on the issue.

 

12 March 2008: PLO Response to Comments by Jordan on One-Pagers

  • The Palestinian response to Jordanian comments on various Palestinian negotiating positions, including refugees. Earlier internal NSU correspondence on the issue (March 9)is also available.
  • A Jordanian reply to this (and more here) was later received on 30 March, further refining the Jordanian position.

 

16 March 2008: NSU Outline of Refugees Issues

NSU outline of the key elements of the refugee issue and their linkages:

Basic outline of refugee issues

[Note: The right of return is not represented as a separate decidable issue because the principle of return and its implementation is dealt with within other overarching issues.]

Sharing Data and Maps

Numbers of displaced Palestinians

Maps of 1967 border areas / final agreed border (linkage: territory)

Maps of Israel for restitution purposes

Negotiation Guidelines

Application of international laws, including UNGAR 194, to refugee talks

Comprehensive solution on refugees as basis for end of conflict (i.e., end of refugee problem) (linkage: all files: need consensus on what marks end of conflict)

Definition: which Palestinians will be covered by the agreement on refugees?

Destination Options for Refugees

List of return and resettlement locations to be offered to refugees (i.e., repatriation to Israel, return and resettlement to the Palestinian state, local integration in host states, or third country relocation per refugee choice)

Modalities of return to Israel

Annual quota and time frame for repatriation

[Status of returnees to Israel (linkage: settlements)]

Will swapped land be included in the list?

If so, how will the additional territorial swaps be determined? (linkage: territory/settlements/Jerusalem)

Reparations

Acknowledgement of Israeli responsibility/apology (linkage: culture of peace)

Recognition of the right of return, the right to restitution and compensation

Modalities for implementing restitution (linkage: territory/settlements/Jerusalem)

Heads of damages for material and non-material compensation (linkage: compensation for occupation; state-to-state)

What types of property losses should be restituted and/or compensated?

What non-material damages will be compensated? (i.e., pain and suffering and loss of chances due to protracted displacement)

Compensation modalities for material and non-material claims (i.e., how will losses be calculated and distributed)

Eligibility of IDPs in Israel and OPTs for reparations and/or other victims of the occupation

Implementation Mechanism (linkage: compensation for occupation, transitional arrangements, legal)

Creation of dedicated international mechanism to implement agreement on refugees

Blueprint for mechanism, including return, resettlement and rehabilitation program and a claims program for property and non-material damages claims

Contributions to fund for the two programs

Israel’s financial contribution

Third states contributions

Depository for contributions

Schedule of payments

Substantive Assumptions

General

Past talks and proposals (e.g., Geneva Initiative and Clinton Parameters) will form the backdrop to the talks

Palestinian objective on refugees is to agree a comprehensive solution addressing all aspects of the refugee problem in order to reach end of conflict

Palestinian positions continue to be based on international law, including UNGAR 194

Definition

The shared interest is in resolving the refugee problem in its entirety, as Israel will insist on an end of claims clause as part of the agreement. This means that the maximum number of displaced persons should be addressed by the agreement.

UNRWA definition is not exhaustive and should not serve as the basis of the definition

The definition requires expert guidance to deal with the technical nature of the question.

Destination options

The right of return is in essence a right of choice. The Palestinian refugees expect an agreement to honor their right to choose whether to return to their original country or resettle elsewhere. The protracted nature of their exile, combined with Israel’s opposition to return, necessitates that the refugees be presented with as many options as possible.

The primary modality of return has been formulated already through the FAPS. (The underlying assumption is that the refugee issue will be resolved within the context of two separate states. If this assumption is opened up for discussion, for instance, if the issue of residency and dual citizenship options are discussed, then linkages arise with the territory/settlements and security files)

Return should be implemented with the participation of the international community through the international mechanism (linkage: transitional arrangements, state-to-state)

Host states and third countries (e.g., Canada) will be consulted and will agree to absorb refugees

Israel will allow a least some refugees to repatriate (linkage: settlements)

The Palestinian state will have the right to control movement over its borders, including total discretion over repatriating and resettling refugees. (linkage: territory/borders, security)

Compensation payments made by Israel to the Palestinian state may be used for developmental purposes, including rehabilitating refugees.(linkage: compensation for occupation – post-agreement to compensate)

The Palestinian state absorption capacity will be significantly impacted by the nature of the state. (linkage: water, environment, state-to-state, territory, compensation for occupation)

Reparations

Israeli acknowledgement is a form of reparation that will be necessary to reach closure and secure by-in to an agreement. (linkage: culture of peace)

It is preferred if the acknowledgement include an explicit recognition of the right of return; the alternative will be an implicit recognition and allowing refugees to the choice where to live.

Reparations will be made to individuals

Restitution may be pursued separate from return (linkage: territory/Jerusalem, state-to-state)

The Palestinian state may claim for reparations as a result of the loss of public property in Israel (linkage: state-to-state, other-?)

Reparations should be maximized particularly if return is to be curtailed. This entails non-material damages and the full scope of property losses:

Real Estate

Movables

Loss of Livelihood

Businesses

Financial Assets

Implementation Mechanism

The mechanism, once established, may be an appropriate avenue to address claims of IDPs in Israel, the OPT, or other human rights claims stemming from the occupation (linkage: compensation for occupation)

 

18 March 2008: Talking Points for Conference on Palestinian Refugees in Iraq

  • Talking points for Saeb Erekat for a conference at al-Quds University.

 

19 March 2008: Note on Refugee Calculation

  • This appears to be an NSU note on how any framework or outline agreement might address the issue of refugee returns:

Recommendation: Only specify the formula by which an agreed solution will be achieved in the Treaty.

  • This approach is obviously the best political strategic option for the Palestinians, as it does not require relinquishing the option of return for millions of Palestinians, but it is also the most practical approach.
  • The number of returnees to Israel is a question of detail that belongs in a comprehensive peace agreement. The numbers are not a matter of principle but application of the principles.
  • Moreover, the number of returnees to Israel should only be decided in the context of a comprehensive, multi-lateral solution on refugees laying out the full menu of destination options for the refugees so as to ensure that all refugees are offered a solution to their situation (it is unreasonable to assume that all will be able to be resettled in the Palestinian state).
  • At this point, all that is required is a formulation setting out the principle of implementation that any return to Israel will be phased over time and determined in agreement with each side.

Alternative: Specify the numbers according to a methodology that better conforms to Palestinian interests and needs

  • Such an approach may be based on Israel’s actual absorption capacity. Israel’s maximum absorption capacity based on past immigrant absorption is at least 60,927 per year (average number of immigrants over 20 year period).
  • Viewed another way, Israel’s past absorption practice indicates that they have the capacity to settle 1,016,511 million persons over a 10 year period (from 1990-2000).
  • This methodology can be developed and rationalized further upon instructions.

16 March 2008: Talking Points for Meeting with Tal Becker Re: Recognition of Refugees’ Rights

  • Talking points for Saeb Erekat – Tal Becker meeting that outlines decidable issues relevant to recognition of refugees’ rights.

The relevant decidable issues are as follows:

1. Reparations

– Acknowledgment of Israel responsibility/apology

– Recognition of refugee’s rights: the right of return, the right to restitution and compensation

  • Palestinian and Israeli leaderships have a common interest in resolving the refugee issue in a just and reasonable manner because:
  • They agree that they will be no peace without a just resolution of the refugee issue which has been standing at the heart of conflict since 1948;
  • It is their common interest to reach a satisfactory closure of the matter: since individual rights are at stake (rather than the national rights of the future Palestinian State), the risk of future potential (thousands, perhaps millions) law suits filed by unsatisfied refugees against Israel and/or Palestine cannot be overlooked;
  • Both States have a right to peace and security and the satisfaction of refugees is crucial in this regard. This advocates for the establishment of a comprehensive resolution of the refugee issue which would facilitate their rehabilitation and empowerment after years of suffering.
  • Thus, a just resolution of the refugee issue can provide Israel and the future Palestinian State with a historic opportunity to achieve a “true” peace for two reasons:
  • By recognizing the injustice caused to refugees (which constitutes today the majority of the Palestinian population), Israel would be in position to ask for refugees’ forgiveness and put an end to  the corresponding Arab resentment;
  • Since the refugee issue has also become over the years a regional matter involving in particular Lebanon, Syria and Jordan, it also provides Israel with the historic chance to normalize its relations with other Arab countries (i.e. Arab peace initiative).
  • On the other hand, if refugees’ rights are not duly recognized, and if the adequate legal remedies are not provided to them, the refugee issue may lead to the failure of the whole process. Ultimately, it is the risk of destabilizing already fragile and hopeless refugee camps which is at stake (both in the West Bank and Gaza, and in the neighboring countries) which is here at stake. In fact, refugees will be the ultimate judges of the fairness of the agreement, since the options agreed upon by both parties will be submitted to their choice. Also, Arab host states will only accept to collaborate and regularize the situation of refugees currently present within their borders if Israel endorses its share of responsibility in the matter and show a sincere commitment and efforts to its just resolution.
  • Israelis and Palestinians also have respective objectives and concerns:
  • Israel is concerned with its Jewish identity and demographics. Since 60 years, it has also been pursuing a normalization of its relations with the surrounding Arab state. Israel’s recognition and acceptance as a legitimate state by Arab surrounding countries has been a continuous objective over the years.
  • The PLO will pursue the recognition of all refugees’ rights and their satisfaction with particular care, especially since these are individual rights. The Palestinian leadership is however ready to negotiate their implementation in order to accommodate to the two-state solution. The resettlement of some refugees to the Palestinian State will greatly depend on its future resources, borders etc. Such option can therefore only be considered as one amongst others.

Following the discussion held by the Plenary Committee on Tuesday, 24 March, and in consideration of past talks on the issue, it appears that two obstacles may have to be overcome at this early stage:

  • Practically, if Israel only accept a limited number of returns, this is very likely to cause profound dissatisfaction/resentment amongst refugee communities. It is therefore crucial that this number remain substantial in order to respect the choice of the {limited number of} refugees who may want to come back to Israel. Additionally, in order to secure the success of the process, the negotiators should ensure that all other options are appealing to refugees and that the recognition of Israel’s responsibility/right of return is strongly affirmed to convince refugees of Israel’s sincerity in the acknowledgement of their rights, history and suffering.
  • At first sight, Israel’s narrative of 1947-1948 seems difficult to reconcile with the Palestinian “Nakba”:
    • Apparently, there is a perception among Israelis that acknowledging the truth regarding events which took place in 1947-48 and the Palestinian right of return will de-legitimize their state.
      • The Palestinian leadership believes the opposite since it is convinced that recognizing its own mistakes will help Israel become a State amongst others in the international community, integrated in the region, and willing to comply with international standards. Examples of (major) countries which recognized that they committed legal wrongs in the past -without jeopardizing their own existence/identity- are numerous and should be an encouragement for Israel (US, France, Germany, Australia…).
  • However, the Palestinian leadership wishes to offer a solution that would also accommodate to this Israeli concern, recognizing that discussions on 1947-48 events may be counter-productive (see Camp David). Therefore, the main guidelines of the Palestinian proposal are the following:
  • Israel’s acknowledgement of responsibility/apology
  • We can submit to the Israelis the following :
    • Option 1: re-initiate the discussions on the basis of the document presented by the Israeli delegation at Taba on 23rd January 2001 (see Israeli-Palestinian joint statement of 27 January 2001). While this document is not, as such, acceptable by the Palestinians, it has the merit to insist on the centrality of the refugee issue and specify that “a comprehensive and just solution is essential to creating a durable and morally scrupulous peace”. It incorporates only limited historical references, in order to be acceptable by both parties. It also distinguishes between the principles and the implementation of the solution, and addresses in a subtle way the question of the responsibilities for the creation of the issue. If we want real peace to be achieved, this document can be used as a framework for discussion.
    • Option 2 (only if the Israeli counterpart refuses option 1): if Israel is not ready to recognize its moral responsibility in the creation of the issue and its inability to resolve it (with the international community), we can rather suggest to have their legal responsibility recognized as a result of the various statutes passed by the Knesset since the late 1940s-early 1950s by which the Palestinians were legally disposed from their lands and prevented from returning to their homes. This option will enable to avoid any discussion over the 1947-1948 period. Legally, it should be emphasized that the original cause of the Palestinians’ displacement is irrelevant. It should therefore not blur the discussion between both parties. Anyone who leaves his home/country is entitled by law to return to it, irrespective of the purpose of his absence (forced displacement, holiday etc.).
  • In addition to the recognition of the moral/legal responsibility, Israel should officially apologize directly to the refugees since:
    • refugees have endured extraordinary suffering because of their losses, longstanding displacement and miserable conditions of living.
    • for Israel, the resolution of the issue aims at getting refugees’ forgiveness which is a central condition for the establishment of a durable peace in the region:
    • Israel refuses to enable the implementation of their right of return, in violation of international law and most recent practice (Bosnia, Kosovo, South Africa).
    • the right for an apology is an element of refugees’ rights for reparation (satisfaction) according to international standards.

[NSU can provide with different proposals of formulation for both Israel’s recognition of responsibility and apology, upon instructions.]

  • Recognition of refugees’ rights: the right of return, the right to restitution and compensation
  • A clear distinction has to be set here:
    • the recognition of refugees’ rights which are in fact non-negotiable since they are individual rights of each refugees.
    • the implementation of these rights (essentially the right of return, and to some extent, the right to restitution) which has to be adapted to the parameters of the two-state solution; Israel, homeland of the Jewish people, Palestine, homeland of the Palestinian people.
  • This distinction is the main guarantee for the success of the process. Thus, Israel must first acknowledge the existence and validity of each of refugees’ individual rights.

The right of return

  • Option 1: we recommend an explicit reference to the principle of the recognition of the right of return to ensure that the refugees “buy into” the agreement. However, the provision referring to this right would also stress that the desire for return will have to be adapted to current realities and the objective of the two-state solution. In practice, returns would be limited to Israel’s absorption capacity.
  • Option 2: if Israelis oppose an explicit reference to the right of return in the peace agreement, reference to UN GA Resolution 194 could be used as an indirect mention of the right of return. This resolution is in fact an affirmation of Palestinian refugees’ right of return, and reparation as found im international law.

[NSU can provide with different proposals of for the drafting of such a provision.]

The right to restitution

  • According to international law, all Palestinians who lost properties have a right to their restitution, unless such restitution is practically impossible. This right should also be recognized.
  • Its implementation should be discussed in the scope of these negotiations with the view notably to define when restitution is indeed impossible (in which case, full compensation for the loss will have to be allocated to the individual)

The right for compensation

  • Refugees have a right to full compensation for their losses. This means that each refugee has an individual right to obtain the indemnification corresponding to:
  • his lost properties, including immovable and movable assets (if restitution is impossible), but also
    • non-material damages relating to the extended displacement, moral suffering etc.

[NSU has accomplished a comprehensive work on this to assess the value of refugees’ different categories of losses.]

 

25 March 2008: NSU Draft Outline of Refugee Issues

  • A later and much briefer outline of key elements of a refugee agreement.

 

1 April 2008: Terms of Reference: Research in Israeli Law

  • NSU ToR for a consultant study on “Israeli law toward enabling Palestinian officials to advance claims for material and non-material damages for Palestinian refugees in permanent status negotiations with Israel.”

 

2 April 2008: Terms of Reference: Israel’s Capacity to Absorb Palestinian Refugees

  • NSU ToR for a consultant study on Israel’s ability to absorb Palestinian refugees.

 

4 April 2008: Negotiating Refugees: Principles, Issues, and Approaches

  • Short NSU Powerpoint presentation on key issues.

 

6 April 2008: NSU Email Re: Israeli Refugee Proposal

  • Internal NSU email on Palestinian response to Israeli proposals cites Erekat as saying “Key is to specify the number over X years.  No one will discuss return to Palestinians except Palestinians.  Compensation for host countries.  194/242 as the reference point.”

 

6 April 2008: Negotiating Refugees: A Strategic Approach Based on International Law

  • An NSU Powerpoint presentation on the legal underpinnings of the palestinian position on refugees. Cites compensation claims of up to $300 billion.

 

8 April 2008: Israel and Palestine Refugee Proposal

  • Extensive NSU commentary on Israeli proposal, including suggested alternatives. See also a similar document dated April 8, suggested revised language.

 

8 April 2008: Non-Paper on Palestinian Refugees

  • NSU non-paper on refugee component of agreement.

 

13 April 2008: The Palestinian Proposal For Resolving the Palestinian Refugee Issue: The International Mechanism

  • NSU Powerpoint presentation on an international mechanism. This is also accompanied by talking points:

Talking Points

Implementation Mechanism

Purpose, mandate and structure of mechanism

  • Purpose and mandate: we agree that there should be a comprehensive international mechanism, covering both return/resettlement/rehabilitation and reparation claims.
  • This includes returns to Israel as well as restitution. Return and restitution are the principle rights contained in UNGAR 194 and relevant international laws. Compensation for individuals should also be made available to individual refugees.
  • The purpose of the mechanism is to implement the terms of CAPS – so it is essential that we settle the principles and remedies of the solution on refugees before finalizing any agreement on the details of the mechanism. Toward that end, we present our non-paper.
  • Structure: In addition, we have a blueprint of a mechanism that we are prepared to handover as a basis for discussing the mechanism.

Exclusive forum for claims

  • Our agreement to any clause limiting the mechanism as a forum for Palestinian claims is contingent on the eventual agreement. It is something to table for future discussion.

Termination of UNRWA

  • UNRWA has an important role to play in assisting the international mechanism in implementing the agreed solution. To terminate it prematurely would be inefficient.
  • We propose working on the future role of UNRWA in a peace agreement and phasing its transition within the implementation context.

Israel’s contribution to fund

  • It is important symbolically to the Palestinian people that Israel be the primary contributor to the reparation program.
    • We ask that Israel cover all property claims, including loss of livelihood, businesses, movable assets and land.
    • Non-material damages can be supplemented by the international community, who can also cover the return/resettlement and rehabilitation program.
    • But Israel should pay for property losses because it is responsible for those losses and directly benefiting from the properties. We are prepared to present our claims on property/material and non-material damages in more detail, along with an argument as to how Israel can cover the full scope of claims.

 

14 April 2008: Review of the Analysis on Refugees Provided in the Aix Group Report

  • Critical commentary on the refugee component of a recent Aix Group report, expressing concern that “The numbers that the Aix study proposes will get significant attention in terms of setting benchmarks for evaluating the reasonableness of Palestinian estimates put forward in the negotiations with Israel. Thus, NSU’s concern is that Aix group’s work may preempt more just or full numbers, included those being assessed by us.”

 

18 April 2008: Palestinian Losses in 1948, Compensation Valuations, and Israel’s Ability to Pay

  • Study by Atif Kubursi on Palestinian property losses and Israel’s ability to pay, based on a total of $300 billion in palestinian property losses from 1948 (in 2007 dollars).

 

30 April 2008: Talking Points for Hind Khoury – UN Conference on Refugees

  • Talking points that were prepared for Hind Khoury’s speech at the UN Conference on Refugees

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