The Palestinian Refugees, International Law, and the Peace Process

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Abstract

The article reviews recent Israel-Palestinian negotiations on the issue of the Palestinian refugees. It examines legal aspects of the major issues that were involved in the negotiations including who was responsible for the plight of the refugees, the definition of who is a refugee, the existence of a right of return, and the question of restitution and compensation. The article reaches the conclusion that, in the context of the Arab-Israeli conflict, no legal "right of return" exists, implementation of such a right would be impracticable and UN General Assembly Resolution 194 does not impose such a right. The article shows, however, that despite deep differences on legal positions, the parties have endeavoured to draft language that will enable them to proceed with a practical solution.

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The continuing plight of the Palestinian Arab refugees is a human tragedy that has lasted for more than fifty years and it is clear that without a resolution of the issues involved there can be no final settlement of the Arab-Israeli conflict.

At the Camp David talks held in July 2000 and in talks held at Taba in January 2001, Israelis and Palestinians for the first time attempted to negotiate a solution to the refugee problem. There had been innummerable previous polemic exchanges but here, for the first time, the parties attempted to reach an agreed-upon solution. The negotiations, however, did not reach a successful conclusion. The various reports and accounts of the discussions (1) show that there were five major areas of disagreement, namely: who was responsible for the plight of the refugees, the definition of who is a refugee, the existence of a right of return, the question of restitution and compensation, and the relevance of the issue of Jews who fled Arab States.

The Arab-Israeli conflict, although minuscule on a world scale, nevertheless has captured the attention of world opinion, and the international press follows with fascination the minutiae of the conflict. The fact that the land is the land of the Bible and the presence of sites holy to Christianity, Islam, and Judaism no doubt are factors in the world's fascination with the issue.

International law continues to play a major role in all attempts to resolve the Arab-Israeli conflict. This role can be attributed to a number of factors. Both the Arabs and the Jews come from societies based on written legal codes (the Koran and the Bible), and the obligation to comply with legal norms permeates their everyday life. The League of Nations and its successor, the United Nations, have been actively involved in Arab-Israeli affairs in their legal context since the 1923 Mandate for Palestine called for the establishment of "a Jewish national home" in Palestine. (2) Both Israelis and Palestinians attempt to buttress their respective positions by recourse to legal arguments. (3) World public opinion will not support a position that is regarded as illegal under international law and hence both parties attempt to brand the other side's positions as illegal. Agreement between the parties, if reached, will take the form of binding agreements that will then themselves be subject to the international law of treaties.

Both sides had their international lawyers involved in preparing papers for their negotiators and, in most cases, the lawyers participated in the actual negotiations. An assessment of the legal aspects of the four issues involved is therefore germane both to examining what went wrong and to possible future solutions.

Responsibility for the Refugee Problem

During the Camp David and Taba talks, Palestinian negotiators demanded that Israel accept responsibility for the creation of the Arab refugee problem. The Palestinians have stated that it was the issue of East Jerusalem "... and Israel's refusal to accept legal and moral responsibility for turning more than 3 million Palestinians into refugees that brought the summit to an end. …