Peace Efforts and the Right of Return

In the aftermath of the Madrid Conference in 1991, diplomatic efforts were made to initiate peace negotiations between Israel and the Arab countries. As a result, a bilateral Peace Treaty was signed in October 1994 between Jordan and Israel. Article 8 of the treaty concerned refugees and displaced persons and started by recognizing the massive human problems caused to both parties in the conflict. The parties agreed that the problems of displaced persons should be resolved in appropriate forums, in accordance with international law.

In regard to refugees, negotiations would be continued in ‘the framework of the Multilateral Working Group on Refugees’ and ‘through the implementation of agreed United Nations programmes and other agreed international economic programmes concerning refugees and displaced persons, including assistance to their settlement’. In this peace treaty, as in others, Israel obtained recognition, peace and security while the resolving of the refugee problem was postponed to later talks. This peace treaty was interesting because of the events which followed the accords concerning the compensation of displaced Palestinians who became Jordanian citizens in 1949.

Immediately after signing the treaty, Jordan proposed that Israel should pay compensation to Jordanian citizens who owned land in Palestine before the creation of the State of Israel in 1948. The Jordanian logic was that with the signing of the treaty, Jordanian citizens could no longer be considered as enemies of Israel and therefore were no longer subject to the ‘absentees’ laws and regulations enacted by Israel to confiscate their properties after 1948.

The Israeli parliament was not willing to pay this compensation; it subsequently ratified the peace treaty yet at the same time passed a law stating that ‘Jordanian citizens who had been declared absentees prior to the peace treaty would remain classified as such’ after its ratification. The protest of the Jordanian government against this discriminating law that violated Article 11.bis of the treaty meant to abolish discriminatory legislation in both countries, did not bring any change on the issue. According to Fischbach, Israel never sent an official reply to the Jordanian request.

There were two 1978 Camp David agreements: ‘A Framework for Peace in the Middle East‘ and ‘A Framework for the Conclusion of a Peace Treaty between Egypt and Israel’, the second leading to the Israel-Egypt Peace Treaty signed in March 1979. The first part agreed that the ‘basis for a peaceful settlement of the conflict between Israel and its neighbours was United Nations Security Council Resolution 242, in all its parts’.

Resolution 242 and its follower 338 was to be the basis for any peace negotiations between Israel and its neighbours, including representatives of the Palestinian people, to establish an autonomous self-governing authority in the West Bank and the Gaza Strip. The agreement should eventually have led to ‘final status’ talks where the so-called ‘Palestinian problem’ would be resolved. The fate of Jerusalem was deliberately excluded from this agreement. By signing a separate peace deal with Israel (1978), Egypt was accused of allowing the disintegration of a united Arab front disintegrate in opposition to Israel and was expelled from the Arab League.

The PLO rejected the accords, as the parties agreed on autonomy in the occupied territories instead of a Palestinian state. By signing a separate peace deal with Israel (1978), Egypt was accused of allowing the united Arab front vis-à-vis Israel to disintegrate; it was subsequently expelled from the Arab League. Since 1978, opposition leaders in Egypt have repeatedly called for a suspension of the Israel-Egypt Peace Treaty, which they say fails to serve Egyptian and Palestinian interests.

American President Bill Clinton, Israeli Prime Minister Ehud Barak and President Yasser Arafat of the PLO/PNA met at Camp David in 2000 in order to negotiate a final settlement of the Palestine-Israel conflict based on the Israel/PLO Oslo Accords. The Palestinians went to Camp David expecting genuine negotiations about the end of the conflict and envisaged it as the ‘climax’ of the Oslo negotiations, as embedded in the Oslo Agreement. During an interim period of five to ten years, during which Israel would partially withdraw from the Occupied Territories, the essentials of the conflict would be negotiated in a final phase.

These essentials were: the right of return, the status of Jerusalem, borders, the future of the settlements, and water. The United States and Israel saw the negotiations as an attempt to work out a compromise that would serve as the framework peace agreement for a final status agreement. The peace plan set up by Israel and endorsed by the United States did not offer a solution to the refugee problem and stated that (East) Jerusalem would never be a Palestinian capital. The Palestinian state would be formed on 15 percent of Mandate Palestine, and would be divided into separate cantons including Jewish settlements.

The Palestinians refused to sign this agreement. They made it clear that the issue of the refugees that Israel had expelled from Palestine in 1948 was at the heart of the conflict and that the conflict was not solely about the future of the occupied territories. They restated that a solution could not be reached so long as Israel did not recognize the right of return of refugees. The Israeli Parliament decided that the right of return of Palestinians to the properties they left behind in 1948 was non-negotiable.

Camp David II failed and was followed by a resurgence of the Palestinian uprising or intifada.

While official efforts failed, an informal agreement was announced in December 2003 by Israeli and Palestinian personalities – Yossi Beilin, one of the architects of Oslo, on the Israeli side, and former Palestinian Information Minister Yasser Abed Rabbo on the other. The Geneva Accord had no official status. A significant aspect of the plan was that it reversed the concept of the road map and gave priority to reaching agreement on important issues as a condition for security and peace instead of delaying these issues until ‘final talks’.

A key reason for rejecting the Geneva Accord was that it proposed that Palestinians should effectively give up their ‘right of return’. In Article 7 of the draft plan both parties had to recognize Resolution 194 (III) as well as the Arab Peace Initiative as the basis for resolving the refugee issue. However, the working of this proposal restricted the Palestinians’ rights to ‘compensations for their refugeehood and for loss of property’. States that hosted Palestinians should also be financially rewarded: they had a right to remuneration. As to the refugees’ choice of their place of residence, this was limited to the state of Palestine-to-be and to third countries.

According to the plan, a refugee’s choice to return to Israel should be submitted to ‘the sovereign discretion of Israel’. Priority should be given to the Palestinian refugee population in Lebanon (Article 7, par. 4 of the Draft). The plan encountered strong opposition from Palestinian refugees.

The Madrid negotiations were conducted in October 1991 between representatives of Israel, the host Arab countries for refugees (Syria, Lebanon and Jordan), and the Palestinian leadership (from the West Bank, East Jerusalem excluded). The latter had finally been accepted by the United States and Israel as a partner in negotiations, but only as part of a joint delegation with Jordan. Palestinians and Israelis restated their longstanding positions. The Palestinians argued that Israel bore full responsibility for the creation of the refugee problem because its armed forces had carried out a systematic, planned campaign to expel the Palestinians during the 1948 War.

Referring to Article 11 of United Nations Resolution 194 (1948) they demanded that Israel allow all refugees and their descendants to return as soon as possible if they wished to do so and were prepared to live in peace with Israeli citizens. Moreover, they should receive compensation for material losses. Those refugees who were not interested in returning, should be compensated for their abandoned property.

Israel, on the other hand, refused to admit any responsibility for the genesis of the refugee problem and rejected, as it had done since 1949, any proposal for the return of a significant number of Palestinian refugees within its pre-1967 boundaries. Instead of seeking the right to return and compensation, the Israeli delegation demanded that discussions would focus on the ‘human’ aspects of the Palestinian refugee problem, the refugees’ economic and social welfare.

The working group on refugees first concentrated on humanitarian matters as well as on family reunification, which had a political dimension. Israeli delegates announced that Israel would agree to annually grant one to two thousand permits within that framework. At that moment in the negotiations, Israel and the PLO reached a breakthrough agreement, culminating in the September 1993 signing of the Israeli-PLO Declaration of Principles (Oslo Agreement) in Washington.

The conference established a multilateral working group dealing with the Palestinian refugee problem that included delegates from Israel, Jordan (including a Palestinian contingent), Europe, North America, and Asia.

In the Declaration of Principles, signed by Israel and the PLO on 13 September 1993, the two parties recognized one another and declared that they were prepared to negotiate directly. The agreement provided that talks over the political aspects of the 1948 refugee problem would take place later, in direct Israeli-Palestinian negotiations on a permanent settlement. Three ‘interim’ agreements were reached between September 1993 and September 1995. At the secret discussions held in Oslo, the parties agreed that the refugee issue, together with Jerusalem, the settlements, security arrangements and final borders, would be discussed later during negotiations on a permanent settlement.

After the Madrid negotiations, the multilateral working group on refugees continued discussions on humanitarian aspects of the refugee problem, including the improvement of the life of Palestinians in the refugee camps. In March 1997, the Arab League decided to boycott all multilateral talks, including the working group on refugees, in protest against Israeli residential construction on the West Bank and Gaza, plus the general negotiating deadlock. The short life of the refugee working group had ended. Although the working group did not contribute tangibly to resolving the refugee issue, it succeeded, according to Yosef Toby, an Israeli of Yemeni origin, in bringing the question of the Palestinian refugees to the top of the agenda of an official international forum for the first time in forty years.

In July 1999, Israeli Prime Minister Ehud Barak, who had succeeded in bringing his Labour Party to power, rejected any reference in the negotiations to a Palestinian ‘right of return’ and was only willing to discuss the return of some refugees to the areas administered by the Palestinian National Authority (PNA), and possibly later to a future Palestinian state. The Palestinians reiterated their standpoint that Israel should accept moral responsibility for the creation of the refugee problem and in principle accept the ‘right of return’. Should Israel not implement this right in full, it would have to compensate the refugees in full. Refugees would be free to move – without restriction by Israel – to the Palestinian state, which would include all the territories of the West Bank and the Gaza Strip, as well as its capital of East Jerusalem, including the part sacred to Jews and Muslims alike (Temple Mount/al-Haram al-Sharif).

Representatives of the members of the Quarter meet in Moscow in 2010: Quartet Representative Tony Blair, US Secretary of State Hillary Clinton, Minister of Foreign Affairs of the Russian Federation Lavrov, Chairman of the United Nations Ban Ki-moon, and the High Representative of the Union for Foreign Affairs and Security Policy of the EU Catherine Ashton / Photo HHThe Roadmap was a plan drawn up by the so-called Quartet (the United States, the European Union, the Russian Federation, and the United Nations). It did not lay down the details of a final settlement, but suggested how a settlement might be approached. While the plan proposed ‘a performance-based and goal-driven roadmap, with clear phases, timelines, target dates, and benchmarks aiming at progress through reciprocal steps by the two parties’, solutions were presented in phase I for an ‘unconditional cessation of violence’ and for ‘normalizing Palestinian life and building Palestinian institutions’, including the drawing up of a constitution and holding elections. The Israelis would stop settlement activities and act with ‘military restraint’. Also, in this phase, both sides should issue statements supporting the two-state solution.

In the second phase the Palestinian state would be created with ‘provisional borders’. It was only in the third phase that final agreements would be reached. The roadmap was silent on the refugee issue, including the question of whether any refugee might return to Israel. Both prior to its publication and afterwards, the government of Israel sought to obtain an explicit Palestinian renunciation of the right of return.

The Israeli government included, in a list of fourteen remarks to the United States, a request that ‘in connection to both the introductory statements and the final settlement, declared references must be made to Israel’s right to exist as a Jewish state and to the waiver of any right of return for Palestinian refugees to the State of Israel’. The Palestinians refused the Israeli requirements as well as the suggestion of US Secretary of State Colin Powell to leave the issue for later negotiations rather than make it a prerequisite for accepting the plan.

The plan’s call for an ‘agreed, just, fair, and realistic solution to the refugee issue’ has been interpreted by Palestinians as a refusal by the Quartet of acceptable solutions for the Palestinians, and in particular as a refusal of large-scale implementation of the refugees’ right of return to their former homes in Israel in conformity with Resolution 194 (III). The Roadmap was based on UN Security Council Resolution 242 of 1967, which, with regard to refugees, simply calls for a ‘just settlement of the refugee problem’. The plan was also criticised for not addressing the status of Palestinians displaced after the June War of 1967. At the same time, the Roadmap considered the Declaration of March 2002 of the Arab League as one of its foundations in which ‘a just solution to the Palestinian refugee problem to be agreed upon in accordance with UN General Assembly Resolution 194’ was proposed.

The omission of an explicit mention of the ‘right to return’ of Palestinian refugees led to increasing mistrust among Palestinians, even when the plan referred to Resolution 194 (III), since its terms could be interpreted differently by Palestinian and third parties, whether Israeli or Arab. The Roadmap was not implemented. Its timetable called for the final agreement to be reached in 2005.

At the height of the Second Intifada in 2002, the Saudi King Abdullah presented a peace plan at an Arab summit in Beirut in March 2002. The plan called for full Israeli withdrawal from all the Arab territories occupied since June 1967 in accordance with Security Council Resolutions Resolutions 242 to 338. A Palestinian state would be set up in the West Bank and Gaza with East Jerusalem as its capital. Regarding Palestinian refugees, the plan called upon Israel to affirm the ‘achievement of a just solution to the Palestinian refugee problem to be agreed upon in accordance with UN General Assembly Resolution 194‘.

Officially the plan was endorsed by the Arab League’s 22 members during the summit. However, this is disputed by some sources. According to al-Jazeera, the plan failed to gain the full diplomatic backing of the Arab League countries as only 10 of the 22 heads of state were able to attend the Beirut summit. The plan was opposed by some Palestinian factions and by Israel. It was followed by a suicide bomb attack in Netanya (Israel). Israel retaliated, occupying Ramallah, Jenin and Nablus. More than 500 Palestinians and 29 Israeli soldiers were killed in the four-week military operation.

The Saudi-initiated peace plan did not resurface as a viable deal until the Arab League summit in Riyadh in March 2007. This time, 21 heads of state attended the summit (Libya did not send a delegation) and fully re-endorsed all the proposals. Israel rejected the plan, and was particularly opposed to the mentioning of Resolution 194, granting the right of return to Palestinian refugees and their descendants.

On 21 January 2001 the Palestinians submitted a position paper insisting that Israel acknowledged moral and legal responsibility for the refugee problem and its responsibility for preventing a solution in accord with UN Resolution 194. Israel, continued the Palestinian paper, should admit any refugee willing to return to actual Israeli territory as long as that person was willing to live in peace with Israeli citizens. Furthermore, all refugees without exception should be compensated by Israel for their abandoned property and for the suffering inflicted upon them as refugees.

Collective compensation should be paid to the future Palestinian State for public lands and buildings appropriated by the State of Israel. Finally, Israel should pay compensation to the Arab states for their expenses as hosts for the refugees. International bodies would be set up in order to implement and supervise the repatriation and compensation operations.

In an internal working draft the Israeli team proposed a resolution of the refugee problem in all its aspects through an international effort with the participation of Arab countries, the European Union, the United States and the rest of the international community, while Israel would ‘take part in this effort’. The team admitted a ‘possible’ return of the refugees to the future State of Palestine only, if ‘integration within the host countries and immigration to other third countries’ were impossible.

The draft agreed to the establishment of an international fund for compensation payments to Palestinian refugees and to pay for their rehabilitation. According to Israel, the calculation of the compensations would be based on a macro-economic survey to evaluate their assets in order to reach a fair value.

The Palestinian side, however, asked that the sum be calculated based on the records of the UNCCP, the Custodian for Absentee Property and other relevant data with a multiplier to reach a fair value. The Taba negotiations failed since ‘sizable gaps’ existed between Israel and the Palestinians. In particular the refugee and Jerusalem issues were as far from a resolution as they had been previously.

Common to all the mentioned peace plans is the following: