The Ottawa Process: Workshop on Compensation and Palestinian Refugees

 

With the onset of final status negotiations under the Oslo process, the media and academia--not to mention the refugees themselves--have increasingly focused on the unresolved status of Palestinian refugees. Interest in the issue has moreover been sustained by several regional and international events: media coverage of Israel's fiftieth anniversary celebrations (and, to a lesser extent, of the Palestinian Nakba) and international support for the right of the Kosovar refugees to return to their homes have both drawn attention to the unresolved issue of Palestinian refugees.

Meanwhile, whereas both Palestinian and Israeli officials, who must ultimately reach a negotiated resolution of this issue, appear to remain fixated on interim arrangements, grass-roots refugee initiatives and track-two diplomacy are actively working to place the refugee issue on the public agenda. This article examines the track-two approach and in particular what has come to be known as the Ottawa process. [1] 

The Ottawa process, a low-key, informal Canadian initiative aimed at fostering a just and lasting solution of the Palestinian refugee issue through research and dialogue, grew out of a collective recognition by a group of Canadian academics and the Canadian Department of Foreign Affairs and International Trade (DFAIT) of the potential of track-two diplomacy to advance negotiations on the Palestinian refugee issue. While the Ottawa process is not a direct initiative of the DFAIT, Canada is the gavelholder of the Refugee Working Group (RWG) set up after the Madrid Conference, and the workshops play an indirect role in facilitating the RWG's activities, often hampered by structural ambiguity and political constraints. [2]

While the refugee issue will ultimately be decided by negotiators and refugees, the Ottawa process is a useful indicator of the parameters of any solution. The workshops, attended by Palestinians and Israelis, some of whom hold or have held official positions, along with international experts, [3] reveal much about the positions of the two sides, including the gaps between them and the "elasticity" of the positions (i.e., areas of compromise or trade-offs). The participation as observers of officials from the United States, the European Commission, individual European states, and UNRWA, meanwhile, suggests that the international community also regards the process, in varying degrees, as a gauge for final status negotiations on the issue.

The first workshop of the Ottawa process was held in December 1997 at a time when both the bilateral and multilateral talks had come to a standstill following the May 1996 election of the Likud and the decision by the Arab League in March 1997 to boycott all multilateral activities to protest Israeli settlement activity. [4] Participants were encouraged to "think originally and creatively--to 'enlarge the menu' rather than self-censor" and not to be constrained by "red lines" and taboos. At the same time, participants were reminded that "a certain amount of political realism is also critical if academic musings are to have policy impact." [5] The workshop identified a total of six areas requiring further research, which could serve as an agenda for future workshops: (1) the issue of return of the 1948 refugees to their homes and the various modalities associated with such a possible return; (2) compensation; (3) repatriation; (4) the future of UNRWA; (5) interim measures (such as new development partnerships and the pressing social and economic needs of refugees in Lebanon); and (6) linkages with other final status issues.

Because the issue of refugee return was not considered "on the table" by the Israeli participants, the first item identified by the December 1997 workshop that was dealt with under the Ottawa process was compensation. It was thus that the second workshop on Palestinian refugees, "Compensation as Part of a Comprehensive Solution to the Palestinian Refugee Issue," was held in Ottawa in July 1999. [6] 

Compensation and the Palestinian Refugees

Before exploring the four major components of compensation identified at the July workshop, it is useful to provide a brief background on the issue of compensation with regard to Palestinian refugees.

The right of individuals in Palestine to compensation was recognized by the United Nations well before the massive exodus of Palestinian Arabs in 1948. Under UN Resolution 181 of November 1947, expropriation of land was prohibited except for public purposes. The UN considered "full compensation" as fixed by the Supreme Court as an appropriate standard for compensation in the case of expropriation for public purpose. [7] 

Following the expulsion and displacement of some 750,000 Palestinians from their homes and lands, the right to compensation for Palestinian refugees was codified in UN Resolution 194 of December 1948. [8] Resolution 194 affirms two types of compensation: for nonreturnees and for damages. In order to implement the directives issued in Resolution 194, the UN established the Palestine Conciliation Commission (PCC). [9] 

The property of Palestinian refugees, meanwhile, fell under the control of Israel's Custodian of Abandoned Property. [10] This included the property of Palestinians who remained inside the borders of the new state of Israel, but who were displaced and not permitted to return to their homes and villages. While the Israeli government accepted the responsibility, in principle, to compensate the refugees for their properties, it ruled out returning the properties to their rightful owners.

With the adoption of the Absentees' Property Law in 1950, the Israeli government transferred the property from Palestinian to Jewish ownership by virtue of a government payment to the Israeli Custodian of Absentee Property that replaced the Custodian of Abandoned Property. The Israeli government thus claimed that the property had been acquired legally (i.e., by payment) rather than through confiscation, even though no money ever went to the actual owners. Inside Israel, a series of laws was adopted to provide compensation to Palestinian Arab citizens of Israel so as to validate the transfer (i.e., confiscation) of property owned by internally displaced Palestinians, though the great majority refused to accept payment.

In an effort to protect refugee properties and rights, the PCC called for the abrogation of the Absentees' Property Law, the suspension of all measures of requisition and occupation of Arab houses, and the unfreezing of Waqf property. [11] The UN General Assembly, meanwhile, called for the establishment of a Refugee Office to facilitate the work of the PCC regarding both compensation and return. By September 1951, with little progress on the return of refugees, the commission began increasingly to focus, without prejudice to the right of return, on the issue of compensation.

It should be noted that the UN's initial efforts, through its mediator Count Folke Bernadotte, had focused on facilitating the return of Palestinian refugees to their homes. The principle of refugee return was mentioned no less than nine times in the mediator's first progress report. "It would be an offence against the principles of elemental justice," wrote Bernadotte, "if these innocent victims of the conflict were denied the right to return to their homes while Jewish immigrants flow into Palestine, and, indeed, at least offer the threat of permanent replacement of the Arab refugees who have been rooted in the land for centuries." [12] 

In November 1951, the Refugee Office completed a global identification and assessment of Palestinian refugee losses. The office identified 16,324,000 dunams as refugee property, [13] out of the total area of the new Israeli state of approximately 20,500,000 dunams. [14] The Refugee Office then began work on identification of individual Palestinian refugee property. More than a decade later, the office completed the work, having collected 453,000 records detailing some 1,500,000 holdings. [15] According to a revised schedule of Palestinian Arab land ownership based on Refugee Office records, approximately 19,000,000 dunams in the territory of the new state were owned by Palestinian Arabs. If one subtracts the land of villages some or most of whose inhabitants remained in the State of Israel, the land owned by refugees amounts to some 17,500,000 dunams. [16] 

For an idea of the scope of Palestinian refugee losses, table 1 provides the revised PCC documentation of Palestinian Arab and Jewish land ownership by subdistrict. Despite deficiencies, the PCC documentation remains, to date, the most complete record of Palestinian refugee land. Refugee losses not identified by the commission include compensation for psychological suffering and pain and other material claims such as industrial capital, agricultural capital, commercial and private vehicles, commercial capital and stock, private and personal property, hotels and restaurants, financial assets, infrastructure, and natural resources. [17] Estimates for these losses are examined in the following section of the article.

The Workshop's Components of Compensation

The Ottawa workshop addressed four major components of the compensation issue: (1) the case for compensation; (2) calculating Palestinian claims; (3) finding the resources to fund compensation; and (4) the modalities of a compensation regime. The following section highlights the basic issues raised with regard to each component, as well as the positions expressed by Israeli and Palestinian participants. [18] 

The Case for Compensation

Participants generally agreed that refugees have a right to compensation under international law according to the principle of state responsibility. Writing on the Law of State Responsibility, legal scholar Donna Arzt notes that a "state that has committed . . . an internationally wrongful act is obligated to a) discontinue the act and restore the situation to the status quo ante; b) apply remedies provided under its internal law (if they exist) and to pay appropriate compensation if restoration of the pre-existing status is impossible; and c) provide guarantees that the act will not recur. A state to which a claim is made must negotiate in good faith to resolve it." [19] 

Some refugee and legal experts noted, however, that in practice compensation has been a difficult principle to raise with the international community. [20] Until the 1990s, only states were able to make compensation claims against other states. As there was no state to press claims for stateless persons, this situation meant that stateless persons such as Palestinians were unable to file claims for compensation. [21] 

   

Over the last decade, however, international practice and UN Security Council resolutions have increasingly dealt with compensation, repatriation, and repossession of property. Legal expert John Quigley cites the examples of Abkhazia, Bosnia, Cambodia, Croatia, Guatemala, Kosovo, and Rwanda. [22] These developments occurred primarily within the realm of human rights law, although Quigley notes that the individual right to compensation and return is also found in law relating to nationality and humanitarian law. The establishment of human rights courts in Europe and the Americas has made it possible for claimants in these areas to pursue individual claims against states. [23] Mechanisms to handle these claims, however, are not well developed, and regional human rights courts do not exist elsewhere.

Concerning Palestinian refugees, many participants recognized the relevance of UN Resolution 194, which identifies both the right of return and compensation for Palestinian refugees. While Israeli participants acknowledged, in principle, the right of Palestinian refugees to receive compensation for their properties, they differed considerably with Palestinian participants regarding the modalities of compensation (see below).

As for future individual claims for compensation, Palestinian participants noted that refugees should be free to reject any deal negotiated by the PLO that does not meet the parameters set forth in Resolution 194. Israeli participants, on the other hand, stressed "conclusivity"--that any bilateral agreement between Israel and the PLO/Palestinian Authority (PA) would extinguish all further claims, including individual claims.

According to a paper submitted by legal expert Luke T. Lee, a government can relinquish collective rights for which it is responsible but not individual human rights. Quigley concurred, writing, "The right of repatriation/compensation, being an individual right, cannot be overridden by intergovernmental agreement. Neither Israel nor Palestine, nor the two in concert, have the legal capacity to extinguish claims of individuals. If a Palestine-Israel agreement makes inadequate provision for repatriation and compensation, the claims of individuals will survive." [24] At the same time, however, the experts noted that the successful pursuit of individual claims would be difficult in the absence of a regional human rights court or international tribunal of which Israel is a member. While individual claims could be made in foreign courts against Israeli assets abroad, the refugee claimant would have to demonstrate that the court had jurisdiction to rule on the matter.

With regard to the issue of responsibility or blame, compensation in general implies the recognition by a state that it committed a wrongful act. Israeli participants echoed a long-held position that while Israel would be willing to pay compensation in principle to Palestinian refugees, it would not be held morally responsible for the refugee issue. Legal experts suggested that international law provides a way around this issue. Arzt argues that while it is necessary to prove a causal connection between the event and a state action, this does not necessarily imply moral responsibility. According to the theory of "objective responsibility," a breach of international law occurs through the result alone. [25] As noted in the workshop summary, "[I]t is possible to accept that compensation ought to be paid because property was seized and refugees barred from returning, irregardless of how blame is apportioned for the events of 1947-48." [26] 

Palestinian participants and researchers also noted that while Palestinian refugees had the right to compensation, this right was not a substitute for the right of return or for the return of properties. "[C]ontrary to widely shared opinion, resolution 194 (III) does not establish a dichotomy between compensation and repatriation. . . . Thus return and compensation are by no means mutually exclusive." [27] As one participant stated, "the homeland is not for sale." Precedents for the return of properties were mentioned, including the Commission for Real Property Claims in Bosnia and the World Jewish Restitution Organization. The idea of a land commission to document, protect, and lobby for the return of Palestinian refugee property was also raised at the workshop in a paper by researcher Salman Abu Sitta. [28] Israeli participants viewed this idea as extremist and impossible to implement and stressed that participants should not return to the past but focus on ideas sufficiently flexible to fit in with a future political agreement.

Calculating Palestinian Claims

The value of Palestinian refugee compensation claims discussed at the workshop--which ranged from several billion to several hundred billion dollars--reflected the differing perspectives both on what should be included in claims and the criteria for valuation. Concerning the former, Palestinian participants favored inclusion of the range of compensation claims recognized in international law and practice: private and public goods, lost earnings and opportunities, psychological and social damages, as well as depletion or use of natural resources, resulting in claims ranging from $150 billion to $235 billion. The Israeli perspective on compensation claims was confined to compensation (in principle) for refugee property provided that refugees could prove ownership, but excluded other types of compensation except for humanitarian and development assistance.

As for the criteria for valuation, Palestinian participants insisted on the full value of property (and human capital) losses, which, as noted above, is the standard provided for in UN Resolution 181. It was noted that these estimates appear to be consistent with the compensation principle established by the Chorzow Factory case of 1928. The case, cited by all the legal experts attending the workshop, involved Poland's expropriation of German-owned property inside Poland. The Permanent Court of International Justice (precursor to the International Court of Justice) ruled that "reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed." The court then went on to note that if restitution in kind were not possible, "payment of a sum corresponding to the value which a restitution in kind would bear" should be paid, specifying that "the award, if need be, [should be] of damages for loss sustained which would not be recovered by restitution in kind or payment in place of it." [29] 

Israeli participants, on the other hand, favored what could be called "adequate compensation," a term used by the United Nations Group of Governmental Experts on International Co-Operation to Avert New Flows of Refugees. Eyal Benvenisti noted in his paper that adequate compensation takes into account the various interests and constraints involved, [30] which according to Israeli participants include Israel's ability to pay, the ability of refugees to prove ownership, the massive number of Palestinian refugees and the expanding number of claimants, and the long time elapsed since Palestinians were displaced. Under adequate compensation, only a portion of the value of losses is recovered. Some Israeli participants, by way of comment about Palestinian claims, suggested that Israel should seek compensation for investments in the West Bank and Gaza along with costs incurred for past wars. Israeli estimates of compensation for Palestinian refugees thus range from a low of $5 billion to $10 billion mentioned by Shlomo Gazit in his paper on Palestinian refugees, to a high of $15 billion to $20 billion in a joint Israeli-Palestinian project led by Joseph Alpher and Khalil Shikaki. The Israeli participants also noted that it would be easier to gain acceptance of compensation for the refugees among the Israeli public if there were a predetermined ceiling for the amount of compensation to be paid.

Another factor raised affecting the valuation of Palestinian claims was the number of Palestinian refugees returning to their homes and lands. A paper submitted by BADIL Resource Center noted that the amount of compensation to be paid to Palestinian refugees could be reduced if a greater number of refugees were permitted to return to their places of origin inside Israel. BADIL estimates that the total cost of returning all refugees would be $41 billion (1994 US$) as compared to $132 billion in compensation for private and public property. [31] 

Concerning the issue of documentation, while Israeli participants argued that individual evaluation of Palestinian refugee losses would be severely hampered by a lack of adequate documentation, [32] Palestinian participants noted that Palestine is one of the most documented areas of the world, pointing to the existence of hundreds of maps and aerial photographs, which supplement existing records. They also noted that identification of refugee properties should not be held hostage to Eurocentric models of property ownership. [33] Since cadastral surveys did not exist for most of Mandate Palestine, traditional means of land identification must be incorporated.

Table 2 provides estimates of Palestinian refugee losses. The figures do not include compensation for psychological pain and suffering, which would increase the overall figures, according to estimates by Atif Kubursi, by about 20 percent. [34] 

Finding the Resources

Most participants agreed that the range of potential sources available for funding Palestinian refugee compensation would be limited. The sources include the State of Israel, the Arab states, and Western donors.

Given the trend of shrinking foreign aid budgets combined with increasing demands for foreign aid, the likelihood that Western donors would increase aid to the Palestinians was rated by some researchers as low. The redirection of some foreign aid to Kosovo has apparently already led to the delay of some projects by the PA. Researcher Rex Brynen indicated that donor aid would not likely increase beyond the average level--$500 million--awarded annually over the past ten years to the West Bank and Gaza Strip. [35] According to the workshop summary, this "might be seen as a rough indication of how much peace is 'worth' to the international community." It was further noted that international donors would be less willing to fund compensation than to consider additional funds for repatriation and development projects. [36] 

 

As for Arab states, researchers also felt that increased aid for compensation was an unlikely scenario. Brynen emphasized that while Arab states are among the most generous donors on a per capita basis, aid for compensation of Palestinian refugees would be constrained by their stagnant economies. [37] It was also noted that Arab states would be less amenable to providing financial assistance if an agreement did not provide for a significant return of Palestinian refugees to their homes and lands inside Israel.

Palestinian participants and some international researchers stressed that monetary compensation was not a substitute for the return of properties and refugees. Some Israeli participants reiterated that the transfer of Israeli capital stock in the West Bank and Gaza Strip (i.e., settlements and roads) could be in lieu of compensation, but most argued that capital stock would not be appropriate as compensation: not only was it far from clear that Israel would relinquish control over the settlements, but for Palestinian participants the settlements cannot count because they are illegal in the first place. Researchers also noted that Israel's willingness to pay compensation would be limited by Israeli public perceptions that Israel is not responsible for the refugee issue; by military expenditures, which would likely increase rather than decrease; and by Jewish claims from Arab countries. [38] Brynen estimates that compensation in the range of $6.7 billion to $27.3 billion would be economically feasible for Israel, but that only $1 billion to $5 billion would be considered politically sustainable. [39] 

Modalities of a Compensation Regime

Apart from accepting the general principle of compensation in international law, there was little agreement between Palestinian and Israeli participants on the modalities of a compensation regime for Palestinian refugees. Modalities identified in the workshop included categories of claimants, types of formulas for calculating Palestinian claims, mechanisms of compensation, and processes for adjudicating and delivering compensation.

Claimants: 1948 property owners and their heirs; the extended family (hamula) or villages; all refugees (and their descendants) regardless of property ownership; a collective claim made by a Palestinian state and collective claims by host governments.

Formula: claims-based systems where compensation is based on the value of lost property (or a portion thereof); modified claims-based systems in which claimants are slotted in various "categories" (based on estimated claim size) and receive standardized payments; per capita payment systems in which all refugees receive equal payments; and modified per capita payment systems in which classes of claimants receive different levels of compensation on a per capita basis.

Mechanism: cash payments to individuals; services/vouchers/entitlements for individuals and families; investments in community development; equity (refugee ownership of an investment/development corporation or similar collective entity).

Process: binational commissions; trilateral commissions; international commissions; a UN commission; UNRWA or UNRWA successor agency; and leaving determination of amounts, modalities, and mechanisms to future Palestinian-Israeli negotiations.

Based on discussions at the workshop, a greater degree of refugee satisfaction would be generated by a regime that handles individual claims under a claims-based system, with payments made to individuals. A regime that handles per capita payments along with a collective payment paid on a lump-sum basis was seen to be more acceptable to Israeli concerns and political constraints. In general, participants felt that a successful, strong compensation regime should deliver a high degree of refugee satisfaction, facilitate easy documentation of losses, and provide equitable distribution of compensation sensitive to gender bias and poverty levels. A strong regime would also be simple and able to handle claims quickly and efficiently. Participants examined several models for compensation regimes, including the tribunal established to adjudicate U.S. claims for losses in Iran, the Commission for Real Property Claims in Bosnia, and the UN Compensation Commission for claims against Iraq.

The role of UNRWA as a potential compensation regime was also addressed. While Israeli participants stressed that the termination of UNRWA would be an important indicator that the refugee question had been resolved, other participants felt that UNRWA could play an important transitional role in facilitating compensation and return given the agency's long institutional memory, experience, and ready administrative structure. The preservation of UNRWA during a transition period was also thought to minimize the potential reduction of donor funding for a refugee solution.

Conclusion

While the second Ottawa workshop addressed many of the technical aspects of refugee compensation, it was unable to bridge the fundamental conceptual difference between Palestinian and Israeli participants. The Palestinian position is characterized by a rights-based approach. Palestinian participants emphasized that compensation is an entitlement codified in international law and UN resolutions--namely UN Resolution 194--and complements but does not substitute for the right of return. Palestinian refugees, moreover, would be free to pursue individual claims against Israel if they were not satisfied with the negotiated solution. Israeli participants, on the other hand, subscribed to the humanitarian-based approach whereby compensation facilitates the economic and social development of refugees but does not entail recognition of responsibility.

Israeli participants also emphasized that the return of refugees, apart from a small number of individuals on humanitarian grounds (i.e., family reunification), is not negotiable. Refugees residing in neighboring countries would be compensated by infrastructure development, housing construction, and employment-generating schemes in the respective host countries. Finally, for Israeli participants, compensation would extinguish the refugees' right to properties, restitution for other losses, as well as refugee status.

With these basic conceptual differences and given the current balance of power, it would appear that the best deal that the PLO/PA could negotiate would be to delay the issue of refugees. It is unlikely that the PLO/PA would sign an overall agreement without significant concessions on the right to return and without significant refugee support (unlikely given the strong opposition to forced resettlement and the possibility of individual claims). At the same time, Israeli domestic political opposition to a refugee return makes it unlikely that Israel, even with the balance of power in its favor, could reach a conclusive agreement on the issue.

In this context, it is critical that political issues, most fundamentally the right of return, be addressed in forums like the Ottawa process. There is a critical absence of substantive research about the right of return. A brief bibliographical survey on Palestinian refugee research generated for the RWG by FAFO, the Norwegian Institute for Applied Science, for example, reveals only a handful of articles and monographs dealing with the issue of refugee return, and most of these examine legal arguments.

A second and related issue is the absence of grass-roots refugee participation. It is unlikely that political issues such as the right of return can be addressed effectively without the participation of refugee activists and camp leaders in generating research, ideas, and dialogue.

Unfortunately, it is not clear that the Ottawa process will be able to overcome the political constraints that have hampered the RWG. If the process is conditioned on dialogue, and dialogue is construed to mean consensus, the difficult political issues such as the right of return will continue to be thrown out the window. Israel's refusal to deal substantively with the right of return in effect becomes a de facto veto over the agenda of the process. As such, the menu of discussion is shrunk, rather than enlarged.

Yet another issue that threatens to derail the Ottawa process is the concept of "policy relevant" research, introduced at the first workshop in 1997. If not interpreted liberally, the concept has the potential of creating the very same red lines and taboos that the process seeks to avoid. In the absence of a clear definition, "policy relevant research" can easily become a euphemism for research constrained by the status quo or current balance of power. This inevitably militates against the critical need for substantive research and dialogue on key political issues like the right of return.

The ability of the Ottawa process to address these outstanding issues will, in large part, determine the robust character of the process and its genuine ability to generate ideas for a just, lasting, and negotiated solution to the refugee issue.

 

Research and scholarship requires investment. Generous contributions from people like you allow us to provide invaluable resources as a public good. Make a tax-deductible donation today!

 

Terry Rempel is coordinator of research and information at BADIL Resource Center for Palestinian Residency and Refugee Rights in Bethlehem. His recent research includes contributions on Palestinian restitution in Jerusalem for the book, Jerusalem 1948: The Arab Neighborhoods and Their Fate in the War (Institute for Jerusalem Studies and BADIL, 1999).

1. For more on grass-roots refugee initiatives, see for example, the Campaign for the Defense of Palestinian Refugee Rights. Details have been published by BADIL Resource Center in its quarterly magazine, al-Majdal, no. 1 (March 1999), and on the Internet (http://www.badil.org).

2. Since the RWG operates on a consensual basis, input and output are often reduced to the lowest common denominator, i.e., those areas where there is some agreement between the parties. As such, the RWG has focused predominantly on development and humanitarian aspects of the refugee issue while major political obstacles remain unaddressed. See Rex Brynen, "Much Ado About Nothing? The Refugee Working Group and the Perils of Multilateral Quasi-Negotiation," International Negotiations 2, no. 2 (November 1997), archived at the Palestinian Refugee Research Net (PRRN) Web site at http://www.prrn.org.

3. For a full list of the participants, see the summary of the workshop on the PRRN Web site at http://www.prrn.org.

4. The workshops are jointly sponsored by the PRRN and the International Development Research Center (IDRC), a Canadian government-funded research institution that informs Canadian foreign policy. For more on the IDRC and the Palestinian refugee-related projects it supports, see the IDRC Web site at http://www.idrc.ca.

5. Opening session of the 1997 workshop. For a summary, see the PRRN Web site.

6. An interim workshop, sponsored by Warwick University, the UK Foreign and Commonwealth Office, the UK Department for International Development, the French government, and the European Commission, had been held in March 1998 to examine the role of the international community in the resolution of the Palestinian refugee issue.

7. A/RES/181, Part I, Section C, Chapter 2 (8). Also see chapter 3 on citizenship, international conventions, and financial obligations.

8. A/RES/194, Paragraph 11. "Refugees wishing to return to their homes and live at peace with their neighborshould be permitted to do so at the earliest practicable date [while] compensation should be paid for the property of those choosing not to return and for loss or damage to property which, under principles of internationalaw or in equity, should be made good by the Governments or authorities responsible."

9. The UN further provided the commission with two working papers dealing with the legal interpretationf the operative paragraph 11 of Resolution 194 concerning compensation and historical precedents for compensation.

10. According to the Abandoned Areas Ordinance 1948. Authorized translation from the Hebrew in Laws of the State of Israel, Vol. 1: Ordinances 5708-1948, pp. 25-26.

11. UN Document A/922, 22 September 1949.

12. UN Document A/648, 16 September 1948.

13. The figure was arrived at by subtracting all villages outside the territory controlled by Israel (including the demilitarized areas and Jerusalem's "no-man's land") and subtracting urban areas and villages where land continued to be held by the original Palestinian inhabitants. See Evaluation of Abandoned Arab Property in Israel, Annex A, UN Document A/1985, 20 November 1951. Subsequent research that adjusts for problems in the PCC assessment give a total figure of 17,178 km2 of refugee lands. Salman Abu Sitta, The Palestinian Nakba (London: Palestinian Return Center, 1998), p. 7.

14. The original document gives the area for the whole of mandatory Palestine, or 26,323,000 dunams, but since there was no "refugee property" except in the area that became Israel, we are using the 20,500,000 dunam figure.

15. UN Document A/5337, 7 December 1964.

16. The land in villages part of whose inhabitants remained in Israel amounted to 1,178,415 dunams, not including public lands; see Sami Hadawi Palestinian Rights and Losses in 1948: A Comprehensive Study (London: Saqi Books, 1988), p. 245. The office did not identify land by refugee status but only as being either Arab- or Jewish-owned. The following criteria were used in Hadawi's revised schedule: (1) The inhabitants of Arab villages and Jewish settlements were considered owners of the lands thereof, held in individual and collective ownership. (2) Where a wholly Arab town or village, or a wholly Jewish town or settlement, contained land registered as state, public, or government domain, these lands were entered as part of the Arab village or Jewish settlement, asthe case may be. (3) In the case of mixed urban areas, land recorded as state, public, or government domain was divided between the two communities in proportion to their numbers. (4) In the case of an Arab village containing Jewish holdings, land classified as common or communal land and state domain was considered to belong to the original inhabitants. (5) Land held under government lease by the two communities was entered as Arab or Jewish, as the case may be. (6) Roads, waterbeds (wadis), cemeteries, etc., were included in the lands of the respective Arab village or Jewish settlement; ibid., 112.

17. Atif Kubursi, Palestinian Losses in 1948: The Quest for Precision (Washington: Center for Policy Analysis on Palestine, 1996). Other losses include some 150,000 homes, more than 800 enterprises (not including small enterprises such as printing and publishing firms, garages, laundries, and small workshops) that were predominantly Arab-owned, and 1.2 million head of livestock. Hadawi, Palestinian Rights, pp. 151-52.

18. A summary of the discussion in each of these areas is available on the PRRN Web site.

19. Donna E. Arzt, "The Right to Compensation: Basic Principles Under International Law," background paper prepared for the IDRC Workshop on Compensation for Palestinian Refugees, Ottawa, 14-15 July 1999. The principle is also addressed in workshop papers by John Quigley, "Compensation for Palestinian Refugees," and Luke T. Lee, "The Issue of Compensation for Palestinian Refugees." Papers presented at the workshop are available on the PRRN Web site.

20. One legal expert noted that despite lobbying, a compensation clause was not included in the recent treaty on land mines. However, a detailed plan for compensation was included in the 1995 Dayton Accord, a document drawn up by U.S. State Department officials.

21. In such a case, however, it is argued that international bodies responsible for stateless persons, like UNRWA, have not only a responsibility but a duty to advance claims of stateless persons. UNRWA, for example, filed claims for Palestinians displaced from Kuwait with the UN Compensation Commission. Lee, "The Issue of Compensation," provides a good summary.

22. Quigley, "Compensation for Palestinian Refugees."

23. Ibid. Quigley cites two cases. One is that of Sudetan Germans expelled from Czechoslovakia in 1945 and 1946 whose claims were extinguished in a 1997 joint declaration between Germany and the Czech Republic. The European Parliament, however, has supported the individual claims of Sudetan Germans and has made the repeal of the 1945-46 expulsion decrees a condition for Czech membership in the European Union. The other is that the 1996 ruling by the European Court of Human Rights in favor of a Greek woman denied access to her property in northern Cyprus by Turkey is also cited.

24. Quigley, "Compensation for Palestinian Refugees."

25. Arzt, "The Right to Compensation."

26. See summary of the workshop on the PRRN Web site.

27. Jalal al-Husseini, "Observations on Compensation in the Palestinian Refugee Case," paper presented to the July 1999 IDRC workshop. See also Daoud Barakat, "Composition Position Paper," presented to the July 1999 IDRC workshop.

28. Salman Abu Sitta, "Restitution and Compensation," paper presented to the July 1999 IDRC workshop.

29. Cited in Arzt, "The Right to Compensation."

30. Eyal Benvenisti, "Principles and Procedures for Compensating Palestinian Refugees: International Legal Perspectives," paper presented to the July 1999 IDRC workshop.

31. BADIL Resource Center for Palestinian Residency and Refugee Rights, "The Impact of Return on Compensation," paper presented to the July 1999 IDRC workshop.

32. This is related primarily to the lack of cadastral surveys in Palestine and problems arising from collective ownership of property.

33. BADIL, "The Impact of Return," states that the experience of land restitution in South Africa provides some lessons for dealing with this issue in Palestine.

34. Kubursi, Palestinian Losses in 1948.

35. Rex Brynen, "Financing Palestinian Refugee Compensation," paper presented to the July 1999 IDRC workshop.

36. According to the paper submitted by BADIL, the return of refugees would not only reduce levels of compensation, as noted above, but would provide an incentive for donor investment and contributions, giving donors the best return on their investment.

37. Brynen, "Financing Palestinian Refugee Compensation." Brynen notes that "Relative to GNP, Arab countries have proven between three and fifty times more generous than the U.S."

38. With regard to the latter constraint, workshop participants agreed that the issue of Palestinian compensation should not be linked to the issue of compensation for Jews from Arab countries.

39. Brynen, "Financing Palestinian Refugee Compensation."