International Crisis Group (ICG)                                                                                                      
149 Avenue Louise
Level 24                                                                                                          
B-1050 Brussels
Belgium                                                                                                                                    Date:    24 July 2002

Your Excellencies,

We have read with interest your above report (60 pages).  We also read the OpEd by Chairman Ahtisaari in al Hayat on 16 July 2002 and the press report about your joint press-conference the following day in al Hayat.

We value the efforts ICG is making to resolve the conflict in Palestine which caused so many tragedies suffered mainly by its national people.

The ICG Board members are 54 world luminaries.  The Chairman, Martti Ahtisaari, is a world class statesman.  His efforts, as the head of the UN investigation team of Jenin’s atrocities and war crimes, aborted by Israel, have increased his world stature.  Although ICG Board has about 10 members who are clearly sympathetic to Israel and only 2 Arabs, none of them Palestinian, we are confident that your report on Palestine / Israel aims to be objective and will gain the credibility it deserves.

The importance of the issues discussed in your report and the political weight of ICG Board members compel us to respond to your report.  Our response here is concerned with only one aspect of the issues treated: the Palestinian refugees’ issue.  We have reason to believe that the views expressed here reflect those of the absolute majority of the refugees, notwithstanding statements made from time to time by some PA officials or individuals.

While we greatly appreciate the motive and sentiment of your report, we find that it overlooks the core of the problem and deal with it according to the preferred Israeli position.  Therefore its proposals are not likely to lead to the desired results.

It is a fact, acknowledged by the Israelis themselves, that the Palestinian refugees’ issue is the cornerstone of the conflict.  Without its just solution, there can be no peace in the region.

The reason is simple.  In 1948 (year of al Nakba), a foreign immigrant minority, which controlled 6% of Palestine under British patronage, expelled the population of 531 Palestinian towns and villages, who were the national majority of the country.  These are the refugees of today.  Their plight caused the fall of many regimes and leaders in all countries around Palestine, well before the 1967 war, and the famous 242 resolution, which addressed only the consequences of that war.  The refugees’ issue remains the prime mover of events in the Middle East.

A simple example will illustrate this.  Eighty-eight percent of the Palestinians live in Mandate Palestine and in a narrow band, 100 miles wide, around it in Jordan, Syria and Lebanon.  This is where UNRWA operates its five areas.  If only 1% of the refugees (total 5.2 million, including 3.9 million registered with UNRWA) refuse to give up their Right of Return, this means about 10,000 angry people in each of the five UNRWA areas, who will agitate for their rights by all means.  No body in the area and abroad can ignore this.

The ICG report ignores the Right of Return and seems to address only the after effects of the 1967 war.  Admittedly the report is a political statement, rather than an application of international law.  This is a very critical omission.

The Right of Return is enshrined in the international law of which resolution 194 is an application, not an invention.  The international community at the UN has affirmed resolution 194 about 135 times, a case unprecedented in UN history.  This underlines the determined will of the international community which does not treat resolution 194 as a mere recommendation.  According to the Explanatory Memorandum of resolution 194, the return is to be to the refugee’s “home and land” from which he was expelled, whatever the sovereignty of the place is.  Changing the refugee’s address from one camp to another, even in the West Bank, does not constitute a “return”.

There is often a confusion between the return to the refugee’s home and the sovereignty of the new State of Palestine.  Sovereignty is a political act in which a
state extends its recognized authority over a territory, while the Right of Return is an Inalienable Right applied to a man and his home wherever his home is located.  Regrettably, too often, proposals are made to set-off the sovereignty of a new state against the Right of Return.  The two issues are totally unrelated.  In fact, the Partition Plan of Palestine (resolution 181 of 29 November 1947), on which Israel’s declaration of statehood (and the forthcoming state of Palestine) are based, clearly stipulates the preservation and protection of life, property, civil, religious and political rights of Arabs in a Jewish state and vice versa.

Further, the Universal Declaration of Human Rights and many regional covenants for civil and political rights affirm the right of return of a man to his home.

Also, the Right of Return is derived from the sanctity of private ownership which cannot be diminished by occupation, sovereignty or passage of time.  It will be politically unrealistic and legally invalid to expect or ask the Palestinians to forfeit their plundered property and confiscated land in 531 towns and villages.

The solution is not a question of compensation or a hand-out, certainly not in the way proposed.  All refugees, whether they choose to return or not, are entitled to return AND compensation, as is clearly spelled out in resolution 194.  Those who choose not to return are entitled to more compensation for their abandoned immovable property.  The rest have the right of restitution (return) of their property.

According to international norms applied under UN auspices in the case of Bosnia and Kuwait, or by mutual agreement as in the case of Nazi victims, compensation is payable for material and psychological damages and loss, including loss of revenue, for war crimes, crimes against humanity and for crimes against peace.

Payment of compensation is to be made by “the governments or authorities responsible’ in the words of resolution 194 and in accordance with customary compensation law.  Those “responsible” parties are the Israeli beneficiaries of plunder and confiscation.  How can an ‘international fund’, collected from many countries, be set up to pay a paltry amount (said to be 2% of real value) so that Israel escapes with a free title to the land and property of the Palestinians?  This would be a gross travesty of justice.

The “return” remains, however, the first and most basic solution to the refugee problem.  The twenty-first century world, with the ascendance of human rights and the instant transfer of news and views by electronic communications, cannot
tolerate the perpetuation of the ethnic cleansing operation to which the Palestinians were subjected in 1948 and still continues till today.  Ethnic cleansing cannot be rewarded by legitimizing it and making the victim pay for it.

Whatever the reason for the depopulation of Palestinian towns and villages, it is irrelevant; they must be allowed to return, as the case has been in many countries after cessation of war hostilities.  That was the case, under UN or international forceful action, in Bosnia, Kosovo, Kuwait, East Timor, Rwanda and other places.  Regrettably, the case of Palestinian refugees, the largest, longest and most important political issue, remains the only exception.

The argument about the presumed effect of the refugees’ return on Israel’s demography is neither legally valid nor practically feasible.  The refugees are not morally or legally obliged to remain in exile in camps while Russian immigrants are pouring in to live in their homes.  An Inalienable Right to return cannot be sacrificed for racist policies of exclusivity.

On the practical level, the Palestinians are now 48% of the total population in Mandate Palestine and the Jews 52%.  (The percentages will be reversed if the non-Jewish Russians are taken into account.)  Further, the Palestinians in Israel will outnumber Jews there in 40 years.  The Jewish demographic majority can never be attained in the long run, at least not in the territory Israel holds now.  This argument is a time game intended to deny or postpone the Right of Return.

It is ironic to observe, as serious studies have shown, that 78% of Jews in Israel live in 15% of its area, and 19% live in originally Palestinian cities.  This leaves 3% (160,000 rural Jews) who control the land of expelled refugees.

The irony is greater if we observe that the total registered refugees in Lebanon and Gaza are equal in number to the Russian immigrants absorbed by Israel in the nineties.

The largest concentration of refugees camps is in Gaza at 5,500 persons / sq. km.  Their land across the barbed wire, to which they are denied entry, is almost empty at 6 Jews / sq. km.

It is clear therefore that there is no legal, demographic or geographic reason for Israel to deny the Right of Return or for the international community to shrink from its duties towards application of international law.  The only obstacle is 24 Israeli
racist laws which discriminate against the national majority of population in Palestine.  These are the only racist laws left in place after the dismantling of apartheid in South Africa.

Thus we recommend the following course of action for a just and lasting resolution of the refugees question:

1. Repealing the racist laws in Israel as was done in Yugoslavia.  As a first step, the Israeli exclusive Law of Return (1950) should be amended to include “the national and habitual citizens of the country before 1948”.

2. The mechanism for implementing the return and rehabilitation of the refugees is already in place.  The UN created the Conciliation Commission on Palestine (UNCCP) whose offices are still open at the UN.  UNCCP should be reactivated under a different member composition.  UNCCP completed in 1964 a database of 453,000 Palestinian land owners.  Part of UNCCP function is duplicated in the UN Mission in Kosovo (UNMIK).  The suggestion to form “an international commission” to implement a “bilateral agreement” is to undermine applicable international law.

3. Compensation should be paid by Israel for all losses, damages and war crimes, other than immovable property which shall be restituted.  Israel shall allocate 10% of its annual GDP (now valued at $120 billion and projected to be $220 billion in the year 2020) for this purpose.  This is a small portion of the amount that Israel spends on traditional armament and weapons of mass destruction, which should not be necessary when peace prevails.

4. UNRWA shall continue to function and extend its services to the rehabilitation of the returning refugees, taking functions of UNDP.

5. A Palestine Land Commission (PLC) is to be formed as a custodian for Palestinian property.  (There is already an embryo organization.)  Israel Land Administration (ILA) shall hand over the refugees’ property to PLC in a single contract.  It is fortunate that all such property is administered by a single Israeli unit.  There are no claims by individual Jews.  This method of property restoration has been applied in similar situations, for example in Bosnia (the Commission for Real Property Claims), in Tajikstan (the Central Development for Refugees and Forced Migrants), in Guatemala (Comisiones Permenentes) and in Bhutan (Association for Human Rights Activists).

6. The Security Council, or the UN General Assembly under “United for Peace”, shall issue a resolution under Chapter Seven of the Charter to implement resolution 194 with an added paragraph to ensure the refugees’ physical and legal protection from discrimination and persecution.

To be sure, Israel will not willingly accept such arrangement as long as it remains the only country beyond the reach of international law and as long as it remains sponsored, supported and aided unconditionally by certain countries, notably USA.  This unusual situation has wreaked havoc with the Middle East life and people in the last 50 years.  This cannot continue if the peace of the world is to be considered.

On the other hand, the Palestinian refugees, in spite of wars, suffering and persecution, remain determined to defend their Right of Return.  They do not intend to disappear in oblivion or succumb to a new ethnic cleansing, transfer or exile, under any name or pretext.  They will continue to influence events in the Middle East.

Our Committee is fully aware of the refugees’ demands and feelings.  We work with a coalition of refugee committees in almost every one of the 59 refugee camps, in all neighbouring Arab capitals and in many European and American cities where Palestinian refugees reside.  Thus, we can state with confidence that the statements made herein largely reflect those of the absolute majority of the refugees.

It behooves the international community to take action in order to eliminate the refugees suffering and restore their rights in accordance with international law.  Peace can only prevail through justice.  The efforts of ICG in this regard will be highly commendable and will be fitting to its charter.

Yours respectfully,

Dr. Salman Abu-Sitta
Coordinator, the Sponsoring Committee for the Declaration
of the Right of Return