COMPENSATION FOR PALESTINIAN REFUGEES: AN INTERNATIONAL LAW PERSPECTIVE

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COMPENSATION FOR PALESTINIAN REFUGEES: AN INTERNATIONAL LAW PERSPECTIVE

in The Palestine Yearbook of International Law Online

References

1 S.C. Res. 242, U.N. Doc. S/RES/242 ( 1967): "The Security Council ... affirms further the necessity ... (b) for achieving a just settlement of the refugee problem." 2 Declaration of Principles on Interim Self-Government Arrangements, 13 September 1993, Government of Israel - Palestine Liberation Organization, reprinted in 7 PALESTINE Y.B. INT'L L. 243 (1992/94). In Article V, the Parties committed themselves to a five-year transitional period, with negotiations for a permanent settlement to begin two years after the Declaration. For various reasons, these negotiations did not begin in earnest until 1999, and have not con- cluded as of January 2001. Article V(3) listed the fundamental issues on which the Parties agreed to postpone any comprehensive discussions, because of their intractability, until the commence- ment of permanent status negotiations: It is understood that these negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbours, and other issues of common interest. 3 Treaty of Peace Between the State of Israel and the Hashemite Kingdom of Jordan, 26 October 1994, reprinted in 8 PALESTINE Y.B. INT'L L 281 (1994/95). See Article 8(2), where the parties commit to resolving the "massive human problems" of the refugees and displaced persons "in accordance with international law"

4 The centrepiece of the right to return is generally cited as Article 13(2) of the Universal Declaration of Human Rights, U.N. Doc. A/811: "Everyone has the right to leave any country, including his own, and to return to his country." See: Quigley, Mass Displacement and the Individual Right to Return, 1997 BRIT. Y.B. INT'L L 65. On the application of the right to the Palestinian/Israeli conflict, see: Quigley, Displaced Palestinians and a Right to Return, 39 HARVARD INT'L L. J. 171 (1998); Lawand, The Right to Return of Palestinians under International Law, 8 INT'L J. REFUGEE L. 533 (1996); and Mallison & Mallison, The Right to Return, 9 J. PALESTINE STUD. 125 (1980). 5 For a contemporary review of the Palestinian position, see TAMARI, PALESTINIAN REFUGEE NEGOTIATIONS: FROM MADRID TO OSLO 44-45 (1996): "The Palestinians have taken a principled, but static, position on the question of return. In the multilateral negotiations, the Palestinian delegation has always insisted that General Assembly Resolution 194 forms the basis of all political solutions to the refugee problem." 6 For a summary of the long-held Israeli position, see GAZIT, THE PALESTINIAN REFUGEE PROBLEM 9-10 ( 1995): "Israel totally rejects 'return' for material reasons. There is no possibility of allowing the refugees to return to their original homes and lands without completely undermining the fabric of Israel's society and people. Many Israeli towns and villages, both rural and urban are built on former Arab-Palestinian land." For the sympathetic articulation of the Israeli position, see: Weiner, The Palestinian Refugees' 'Right to Return' and the Peace Process, 20 B.C. INT'L & Comp. L. REV. 1 (1997); Tadmor, The Palestinian Refugees of 1948: The Right to Compensation and Return, 8 TEMP. INT'L & Comp. L. J. 403 (1994); and Lapidoth, The Right to Return in International Law, with Special Reference to the Palestinian Refugees, 16 IsR. Y.B. ON HuM. RTS. 103 (1986). 7 GAZIT, supra, note 6, at 27: "Within the context of the anticipated bilateral agreements - between Israel and Syria, Jordan and Lebanon - and according to the recommendations of the multilateral Commission on Refugees, each of the host countries would undertake to absorb and integrate the refugees within its borders as normal citizens, or to allow them, at least, permanent resid- ence status." 8 PALESTINIAN NATIONAL AUTHORITY, PALESTINIAN REFUGEES AND THE RIGHT TO RETURN (1995). See also ZUREIK, PALESTINIAN REFUGEES AND THE PEACE PROCESS (1996).

9 While not an official Israeli view, the comments of retired Israeli General Shlomo Gazit provide a useful overview of the Israeli government's position: Thus, a recommendation to offer such compensation would be possible, from an Israeli point of view, only if: a. The compensation was part of a bilateral political agreement, stating clearly that Israel's decision was ex-gratis. b. Israel's share in compensation was clearly limited in scope, and was made conditional upon the wealthy industrial countries and the rich Arab oil-producing countries participat- ing in financing a 'package' for refugee rehabilitation. GAZIT, supra, note 6, at 21-2. 10 See the writings of Salman Abu Sitta, whose research and views on compensation have influenced the position of the Palestinian negotiators during the recent round of final settlement discussions: ABU SITTA, THE PALESTINIAN NAKBA, 1948 (1998). In a summary paper, "Restitution and Compensation," delivered to the July 1999 Ottawa Workshop on Compensation as Part of a Comprehensive Solution to the Palestinian Refugee Problem, Abu Sitta wrote, at 3: [Compensation] should come from the responsible party as per the terms of Resolution 194. This party is the Israeli government and Jewish groups who are the beneficiaries of the Palestinian property for such a long period. The refugees' land and property have been a key factor in establishing the state and building its economy. It GAZIT, supra, note 6. 12 ALPHER & SHIKAKI, THE PALESTINIAN REFUGEE PROBLEM AND THE RIGHT OF RETURN (1998). " Atif Kubursi, Palestinian Losses in 1948 in 1999 Dollars ( 1999) (unpublished) (on file with author). This paper is an update of the author's book titled PALESTINIAN LOSSES IN 1948: THE QUEST FOR PRECISION (1996). In addition to these recent estimates, earlier global compensation estimates have been made by the United Nations Conciliation Commission for Palestine in 1951 (adjusted for 1998 US$ to be $24 billion) and by Palestinian economist Yusef Sayigh in 1966 (adjusted

continued. for 1998 $US to be 150 billion). See Rempel, The Ottawa Process: Workshop on Compensation and Palestinian Refugees, 24 J. PALESTINE STUD. 36, 44 (1999). 14 For definitions of compensation and restitution, see: Conde, A HANDBOOK OF INTERNATIONAL HUMAN RIGHTS TERMINOLOGY (1999). (Compensation: "Money ... paid ... to extinguish a state's legal obligation by the payment of monetary damages to those whose human rights have been ... violated under international law"; Restitution: "A judicial remedy ... to return property to another person from whom it was unlawfully taken or damaged"). 15 other recent studies of the Middle East final status negotiations on the Palestinian refugees emphasize the same point. For example, see the 1998 report of the Harvard Joint Working Group on Israeli-Palestinian Relations: ALPHER & SHIKAKI, supra note 12, which states that a final agreement, in order to be responsive to the needs and sense of justice of both parties, "... should be consistent with accumulated principles of international law." '6 Unless otherwise noted, this historical precis is drawn from the following: WALID KHALiDi, ALL THAT REMAINS (1992); BENNY MORRIS, RIGHTEOUS VICTIMS (1999); BENNY MORRIS, THE BIRTH OF THE PALESTINIAN REFUGEE PROBLEM, 1947-1949 (1987); ILAN PAPPT, THE MAKING OF THE ARAB-ISRAELI CONFLICT, 1947-1951 (1992); and Avi SHLAIM, THE IRON WALL (1999).

" The 1948 Palestinian refugee figures are highly contested. Official Israeli estimates place the number of refugees at 590,000. Palestinian estimates range from 745,000 to 850,000, while British and American estimates in the early 1950s put the number between 810,000 and 875,000. The United Nations adopted a figure of 726,000 in 1949, and has commonly used figures in that vicinity since. For the purposes of this essay, I rely on the United Nations figure. See ZUREIK, supra, note 8, at 17. ls "Progress Report of the United Nations Mediator on Palestine", GAOR, 3rd Sess., Supp. 11, UN Doc. A/648, at 16 (hereinafter "Progress Report") Bernadotte's report stated: The majority of these refugees have come from territory which, under the Assembly resolution on 29 November [181(II)], was to be included in the Jewish state. The exodus of Palestinian Arabs resulted from panic created by fighting in their communities, by rumours concerning real or alleged acts of terrorism, or expulsion. It would be an offence against the principles of elemental justice 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. '9 See, e.g., MORRIS, supra note 16. 20 Progress Report, supra, note 18, at 16. 21 Id., at 20: The right of innocent people, uprooted from their homes by the present terror and ravages of war, to return to their homes, should be affirmed and made effective, with assurance of adequate compensation for the property of those who may choose not to return.

22 C,,A. Res. 181(11), U.N. Doc. 29 November 1947, Part I, C, chap. 2, para. 8: No expropriation of land owned by an Arab in the Jewish State ... shall be allowed except for public purpose. In all cases of expropriation, full compensation as fixed by the Supreme Court shall be paid previous to dispossession. z3 �d., at 16: There have been numerous reports from reliable sources of large-scale looting, pillaging and plundering, and of instances of destruction of villages without apparent necessity. The liability of the Provisional Government of Israel to restore private property to its Arab owners and to indemnify those owners for property wantonly destroyed is clear, irrespective of any indemnities which the Provisional Government may claim from the Arab States. 24 G.A. Res. 194 (III), 3 U.N. GAOR, pt. 1, Res. at 21, 24, U.N. Doc. A/810 (1948).

25 For a general history of the UNCCP, see: FORSYTHE, UNITED NATIONS PEACEKEEPING: THE CONCILIATION COMMISSION FOR PALESTINE (1972). zb UNCCP, Historical Survey of Efforts of the United Nations Conciliation Commission for Palestine to Secure the Implementation of Paragraph 11 of General Assem6ly Resolution 194 (III), A/AC.25/W.81/Rev.2, 2 October 1961, at para. 92. The estimates of the UNCCP were calculated from economic surveys conducted by the former mandatory government in 1945. 2' Estimates of the number of Palestinian villages emptied between 1947-9 vary. See: MoRRIS, supra, note 16, at 297-8, who suggests the number 370; KHALiDi supra, note 16, estimates the number to be 418; and PAPPT, supra, note 16, offers a figure of 400. 28 PERETZ, PALESTINIAN REFUGEE COMPENSATION (1995). At 12-13 he notes that: "Abandoned prop- erty contributed greatly toward making Israel a viable state in its early years ... it would have been impossible to double the country's population during its first three years without using abandoned Arab property." 29 PERETZ, PALESTINIANS REFUGEES AND THE MIDDLE EAST PEACE PROCESS 87 (1993), at p. 87. 30 PERETZ, supra, note 28, at 13. See also Lewis, Agricultural Property and the 1948 Palestinian Refugees: Assessing the Loss, 33 Explorations in Economic History 169 (1996). 31 ARTZ, REFUGEES INTO CITIZENS: PALESTINIANS AND THE END OF THE ARAB-ISRAELI CONFLICT (1997). At 16 she notes that:

continued. ... it is indisputable that after the creation of the State of Israel, a series of legal measures were taken that served to institutionalize the blockage of Palestinian return. The Abandoned Areas Ordinance (1948), the Emergency Regulations Concerning the Cultivation of Waste Lands (1949), the Absentees' Property Law (1950), and the Land Acquisition Law (1953) operated to legalize the expropriation of some 3,200 to 4,600 square kilometers of Arab- owned land. 3z Kershner, The Refugee Price Tag, THE JERUSALEM REPORT, July 17, 2000, at 22-3: [T]he Absentee Property Law of 1950 ... provided for all abandoned property to be held in trust by the state and administered by a Custodian of Absentee Property working under the aegis of the Finance Ministry. The letter of the law is draconian. An "absentee" is defined as a person who, at any time between November 29, 1947, and the day on which the state of emergency declared in 1948 ceases to exist, became a citizen or a national of an Arab country, or visited one; or who simply left his place of residence for any place outside Israeli- held territory before September 1, 1948. The state of emergency remains in effect to this day. " Id., at 23: The Custodian, for his part, may hold on to property, sell it to the Development Authority (a branch of the Israeli Lands Authority), or lease it out. Any proceeds from these transactions, minus legal and administrative fees, are to be held in trust by the Custodian in a special fund - presumably for the absentees, until the time when the state of emergency is declared over. See also Rempel, supra, note 13. 34 Benvenisti & Zamir, Private Claims to Property Rights in the Future Israeli-Palestinian Settlement, 89 Atot. J. INT'L L. 295, 300 (1995). See also Rempel, Dispossession and Restitition, in JERUSALEM 1948, 189 (Salim Tamari ed., 1999). 3s PERETZ, supra, note 28, at 7. ARTZ, supra, note 31, at 16, states that while some land was returned to Arab citizens of Israel, it was in the form of leases granted by the Custodian of Absentee Property rather than the restoration of title. Compensation was available, but very little has ever been paid out for the expropriated lands. See also: Kretzmer, THE LEGAL STATUS OF THE ARABS IN ISRAEL (1990).

36 Morris, supra, note 16, at 155 states that these developments included: ... the gradual destruction of the abandoned Arab villages, the cultivation and/or destruction of Arab fields and the share-out of the Arab lands to Jewish settlements, the establishment of new settlements on abandoned lands and sites and the settlements of Jewish immigrants in empty Arab housing in the countryside and in urban neighbourhoods. Taken together, they assured that the refugees would have nowhere, and nothing, to return to. 3' The principal Israeli pre-conditions, as summarized in the mediation conferences organized between 1949 and 1952 by the UNCCP, were: (i) compensation must be part of a general peace settlement; (ii) there would be no restitution of property; (iii) compensation would not be paid for individual claimants, but only to a collective fund, which would be utilized for the resettlement of the refugees elsewhere; (iv) Israel would maintain the right to raise its own claims for property damages and losses; (v) its contributions to a compensation fund would be limited by its ability to pay; (vi) it accepted no moral or political responsibility for the creation of the refugee problem; and (vii) the resolution of abandoned Jewish property claims in Iraq, and, subsequently, to Jewish property left behind in other Arab countries. See UNCCP, supra, note 26, at paras. 62-65, 72-75, 99-101; PERETZ, supra, note 28, at 10-11; Zweig, Restitution of Property and Refugee Rehabilitation: Two Case Studies, 6 J. REFUGEE STUD. 56 (1993). '8 At the UNCCP conferences, the position of the Arab states focused on the following: (i) the Palestinian refugees had to be given a free choice about returning to their homes, and only then could compensation be determined as between those returning and those resettling elsewhere; (ii) compensation was to be paid to individual claimants; (iii) compensation should reflect the true value of the property; (iv) Israel bore the principal responsibility for paying the compensa- tion, and if it is unable to pay the full amount, the United Nations also bore responsibility because of its role in the 1948 partition; and (v) the refugees must be represented at the different stages of negotiations. UNCCP, supra, note 26, at paras. 102-105. 39 BUEHRIG, THE UN AND THE PALESTINIAN REFUGEES 21-25 (1971). the United States Assistant Secretary of State, George McGhee, presciently foresaw the con- sequences of leaving the Palestinian issue unresolved, during testimony given to the House Committee of Foreign Affairs in February 1950: The presence of three-quarters of a million idle, destitute people - a number greater than the combined strength of all the standing armies of the Near East - whose discontent increases

continued. with the passage of time, is the greatest threat to the security of the area which now exists. Hearings on Palestine Refugees, Committee on Foreign Affairs, 81st Cong., 2nd Sess. S.J. Res. 153, 16-17 February 1950 (statement of George McGhee). 4' The accepted starting point for the sources of international law is Article 38(1) of the Statute of the International Court of Justice. It directs the Court to apply: (i) international conventions, whether general or particular; (ii) international customary law; (iii) general principles of law, which includes principles commonly accepted by various domestic legal systems, and principles of equity; (iv) judicial decisions; and (v) scholarly views. Other accepted sources of international law include the frequent re-statement of principles by international organizations, particularly by the United Nations. See generally: AREND, LEGAL RULES AND INTERNATIONAL SOCIETY 41-67 (1998); BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 1-30 (5th ed. 1998); HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND How WE USE IT 17-38 (1994); OPPENHEIM'S INTERNATIONAL LAW 25-52 (Jennings & Watts eds. 1992). 42 A. de Zayas, Population, Expulsion and Transfer, in 8 ENCYCLOPAEDIA OF PUBLIC INTERNATIONAL LAw 438 (Bernhardt ed. 1992). ("As a fundamental denial of the right to self-determination and in the light of the Nuremberg principles, the Genocide Convention and the developing body of human rights law, population expulsion must be seen as incompatible with modern interna- tional law:'). " International Law Association, Declaration of Principles of International Law on Compensation to Refugees, Cairo, April 1992 reprinted in 6 J. REFUGEE STUD. 69 (1993). Principle 2 states: Since refugees are forced directly or indirectly out of their homes in their homelands, they are deprived of the full and effective enjoyment of all articles in the Universal Declaration of Human Rights that presuppose a person's ability to live in the place chosen as home.

continued. See also: Garry, The Right to Compensation and Refugee Flows: A 'Preventative Mechanism' in International Law?, 10 INT'L J. REFUGEE L. 97 (1998); Lee, The Right to Compensation: Refugees and Countries of Asylum, 80 Am. J. INT'L L. 532 (1986). 44 International Law Association, Declaration of Principles of International Law on Compensation to Refugees, id. Principle 1 states: The responsibility for caring for the world's refugees rests ultimately upon the countries that directly or indirectly force their own citizens to flee and/or remain abroad as refugees. The discharge of such responsibility by countries of asylum, international organizations (eg., UNHCR, UNRWA, 10M) and donors (both governmental and non-governmental pending the return of refugees, their settlement in place, or their resettlement in third countries, shall not relieve the countries of origin of their basic responsibility, including that of paying adequate compensation to refugees. 45 such a principle has been a policy centrepiece for organizations dedicated to the material restitu- tion of human rights victims. For example, a founding principle of the Jewish Restitution Successor Organization, which played a significant role in the recovery of heirless property owned by Jewish victims of the Holocaust, stated: "that a nation may not retain property that it gained by the mass spoliation of minorities whom it persecuted on racial or religious grounds." See KAGAN & WEISMANN, REPORT ON THE OPERATIONS OF THE JEWISH RESTITUTION SUCCESSOR ORGANIZATION, 1947-1972, 6 (1972). '6 While serious violations of human rights such as mass population displacements are, at one level, irreparable, since no remedy can perfectly restore the victim to her or his position prior to the violation, the United Nations Special Rapporteur for Human Rights has nonetheless argued that "reparation for human rights violations has the purpose of relieving the suffering of, and affording justice to, victims by removing to the extend possible the consequences of the wrongful acts." T. van Boven, Special Rapporteur, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, UN doc. E/CN.4/Sub.2/1993/8 (2 July 1993), at para. 137. 47 Lee, supra note 43. 48 MINOW, BETWEEN VENGEANCE AND FORGIVENESS (1998).

49 Treaty of Amity, Commerce and Navigation, November 19, 1794, U.S.-Gr. Brit., 8 Stat. 116. 50 ¡d., Article 9: "It is agreed, that British Subjects who now hold lands in the Territories of the United States ... shall continue to hold them according to the nature and Tenure of their respective Estates and Titles therein, and may grant Sell or Devise the same to whom they please, in like manner as if they were Natives ..." Article 7 also provided for "adequate compensa- tion" which was to be paid by the United States for losses and damages sustained by British merchants. " Schwerin,, German Compensation for Victims of Nazi Persecution, 67 Nw. U. L. REV. 479 (1972), where he cites a restitution provision in the Treaty: ... all the Estates of the Holy Roman Empire who had suffered prejudice or damage ... at the hands of one or the other party, shall in respect of their territories and freedoms be fully reinstated in the Estate and stations which they enjoyed. 52 United Nations, Historical Precedents for Restitution of Property or Payment of Compensation to Refugees, UN Doc. A/AC.25/W.81/Rev.2, March 1950. Article XXI provided that: "All the sub- jects ... both Ecclestiatick and Secular, shall be re-established in the Enjoyment of their Honour, Dignities and Benfices of which they were possessed of before the War as well as in all their Effects, Movables and Immovables and Rents upon Lives seized and occupied ..." 53 Id. Article XVI stated that: "The Sequestrations ... imposed in Belgium during the troubles, for political causes, on any Property or Hereditary Estates whatsoever, shall be taken off without delay, and the enjoyment of the Property and Estates above mentioned shall be immediately restored to the lawful owners thereof." for other historical examples besides the treaties mentioned, see Schwerin, supra note 51, at 488-9, wherein he cites a 1790 French law that restored the properties confiscated from the Huguenots after 1685; another French law in 1825 that indemnified the emigres of the Revolution; and the treaties of Rijswijk (1697), and Utrecht-Rastatt (1714).

ss Geneva Convention relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 U.N.T.S. 287, Article 49 ("Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive"). sb Convention Respecting Reciprocal Emigration, November 27, 1919, 1 LNTS 68. 57 Convention Respecting the Exchange of Populations, July 30, 1923, 2 THE TREATIES OF PEACE, 1919-1923 653 (1924). sa Chorzow Factory v. Poland, (Merits) 1928 P.C.I.J. (Ser.A.), No. 17. s9 Id., at p. 29.

so Id., at p. 47. 6' Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 I.C.J. 184. 61 Valesquez Rodriguez Case (Compensatory Damages), 7 Inter-Am.C. H.R. (ser. C) (1989). s3 T. van Boven, supra note 46, at para 33. ("There is no doubt that the obligation to provide for compensation as a means to repair a wrongful act or a wrongful situation is a well established principle in international law. This principle was reaffirmed many times by international tribu- nals, notably by the Permanent Court of International Justice in the Chorzow Factory Case ..."). 64 Lee, supra note 43, at 829. 65 lee, supra, note 43, at 544 ("Where a resolution restates existing international law, its binding legal force on member states rests not on the resolution qua resolution, but on the declared law, which remains binding on all states, whether or not they voted for that resolution. In its role of progressive development, the resolution contributes to the emergence of new rules by reflecting the views of states.") Fot a comprehensive collection of the relevant UN resolutions on the Middle East conflict, see the five volume series: UNITED NATIONS RESOLUTIONS ON PALESTINE AND THE ARAB-ISRAELI CONFLICT (1975, 1988, 1988, 1993, 1999).

67 it., vol. 5, at 211-2. 68 Sloan, General Assem6ly Resolutions Revisited (Forty Years After), 58 BRIT. Y.B. INT'L L. 39 (1987); CASTANEDA, LEGAL EFFECTS OF UNITED NATIONS RESOLUTIONS (1969); Bleicher, The Legal Significance of Re-Citation of General Assembly Resolutions, 63 AM. J. INT'L L. 444 (1969); Falk, On the Quasi-Legislative Competence of the General Assem6ly, 60 AM. J. INT'L L. 782 (1966); Higgins, The Development of International Law through the Political Organs of the United Nations, in PROCEEDINCS OF THE 59TH ANNUAL MEETING THE AMERICAN SOCIETY OF INTERNATIONAL LAW 116 (1966). 69 See in particular the oft-cited dissenting opinion of Judge Tanaka in the South West Africa Cases (Second Phase), 1966, ("What is required for customary international law is the repetition of the same practice; accordingly, in this case resolutions, declarations, etc., on the same matter in the same, or diverse, organizations must take place repeatedly."), reproduced in BASIC DOCUMENTS ON HUMAN RIGHTS 575 (Brownlie ed., 3rd ed. 1992). See also: Military and Paramilitary Activities in and against Nicaragua, 1986 I.C.J. 99-100; Namibia Advisory Opinion, 1971 I.C.J. Rep. 50. 70 statute of the International Court of Justice, Art 38(1)(c). " The Roman lawyer and legislator Pomponius stated in the 2nd century A.D. that: "For this by nature is equitable, that no one be made richer through another's loss," quoted in DowsON, UNJUST ENRICHMENT : A COMPARATIVE ANALYSIS 3 (1951). 'z [1943] App. Cas. 32, 61. In the Third World, a similar view was stated by Mr. Justice Guha Roy of India in 1961:

continued That a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable. Roy, Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?, 55 Ami. J. INT'L L. 863 (1961). ). 73 RESTATEMENT OF THE LAW OF Restitution, QUASI-CONTRACT AND CONSTRUCTIVE TRUSTS 12 (1937). 74 A recent report to the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities has stated that: In accordance with international law, States have the duty to adopt special measures, where necessary, to permit expeditious and fully effective reparations. Reparations shall render justice by removing or redressing the consequences of the wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations and the resulting damages and shall include restitution, compensation, rehabilitation, satisfc- ation and guarantees on non-repetition. T. Van Boven, Revised Set of Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law, U.N. Doc. E/CN.4/Sub.2/1996/17, 24 May 1996. 'S Universal Declaration of Human Rights, supra, note 4. '6 G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, Art. 2(3)(a). " G.A. Res. 2106 (XX), B, 20 U.N. GAOR, Art. 6. 'e O.A.S., Treaty Series No. 36, 1144 U.N.T.S. 123, Art. 10. 79 Id., at Art.21(2).

8° O.A.U. Doc. CAB/LEG/67/3 rev.5, Art. 21(2). 81 Supra, note 76, at Art. 9(5). 8Z Article 5(5), E.T.S. No. 5, Rome, 4.XI. 1950. 83 Article 75, [1998] 37 I.L.M. 999. e° Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 97, Article 14(1) ("an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as pos- sible") ; Declaration on the Protection of All Persons from Enforced Disappearance, G.A. Res. 47/133, 47 U.N. GAOR Supp. (no. 49) at 207, Article 19 ("the victims of acts of enforced disappearance and their families shall obtain redress and have the right to adequate compensa- tion, including the means for as complete a rehabilitation as possible"); Convention Concerning Indigenous and Tribal Peoples in Independent Countries, (I.L.O. No. 169), 72 I.L.O. Official Bull. 59, Article 16(5) ("full compensation for any loss or injury"). 85 Supra, note 46. eb Id., at para. 45. e' Id., at para. 131. 88 Id., at para. 137. g9 Id., at para. 137. 90 ¡d., at para. 135.

91 Velasquez-Rodriguez v. Honduras (Compensatory Damages), 7 Inter-Am C.H.R. (ser. C) (1989), at para. 25. See also, SHELTON, REIvIEDIES IN INTERNATIONAL HUMAN RIGHTS LAW (1999), ch. 8. The UNCHR Special Rapporteur (van Boven) study, ibid, notes, at para. 81, that the European Court had, by 1993, awarded "just satisfaction" of a pecuniary nature in far over 100 cases. 91 Velasquez-Rodriguez v. Honduras, (Merits), 4 Inter-Am C.H.R. (ser. C) (1988); (Compensatory Damages), (1989), id; (Interpretation of the Judgement on Compensatory Damages), 9 Inter-Am C.H.R. (ser. C) (1990). 93 Supra, note 78. 94 Velasquez-Rodriguez v. Honduras, (Merits), 4 Inter-Am C.H.R. (ser. C) (1988) at para. 26: "Reparation for harm brought about by the violation of an international obligation consists in full restitution (restitutio in integrum), which includes the restoration of the prior situation, the reparation of the consequences of the violence, and indemnification for patrimonial and non- patrimonial damages, including emotional harm." 95 Velasquez-Rodriguez v. Honduras (Interpretation of the Judgement on Compensatory Damages), 9 Inter-Am C.H.R. (ser. C) ( 1990) at para. 27.

96 see Shelton, Reparations in the Inter-American System, in THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS (Harris & Livingstone eds., 1998). 9' Supra, note 82, Article 8 states that: "Everyone has the right to respect for ... his home." Article 1 of Protocol 1 states that: "No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law." 9s Loizidou v. Turkey, 23 Eur. Ct.H.R. 513 (1997). 99 Loizidou v. Turkey, 26 Eur. Ct.H.R.5 (1998). '00 Cyprus v. Turkey (Application 25781/94) (8 September 1999). 101 rid., at para. 321: "Nor does the fact that a global solution to the Cyprus question, including the compensation of property owners on both sides and a possible return of some of them, is being sought in the framework of the inter-communal talks justify such total denial of rights in the meanwhile. The inter-communal talks have gone on now for decades without producing any tangible results, although they should be the instrument for putting an end to the human rights

continued. violations occurring in Cyprus. As long as this aim has not been achieved, the Commission cannot refrain from denouncing the said violations if they continue." l02 Mickletz, An Analysis of the $1.25 Billion Settlement Between the Swiss Banks and Holocaust Survivors and Holocaust Victims' Heirs, 18 DICK. J. INT'L L. 199 (1999); Denburg, Reclaiming Their Past: A Survey of Jewish Efforts to Restitute European Property, 18 B.C. THIRD WORLD L. J. 233 (1998); ZWEIG, GERMAN REPARATIONS AND THE JEWISH WORLD: A HISTORY OF THE CLAIMS CONFERENCE (1987); Schwerin, supra, note 51; BALABKINS, WEST GERMANY REPARATIONS TO ISRAEL (1971). ). '03 Luxembourg Agreement [1953] BGB1. II 3S. See generally Schwerin, supra, note 51. 104 According to Balabkins, supra, note 102, at 153, the primary German legislation, the Federal Indemnification Law of 1953, provided for "compensation for loss of life, damages to body and health, including medical costs, reduction of income, loss of freedom, incarceration, arrest, prop- erty losses, capital losses, discriminatory taxes, impairment of economic and professional advancement, etc." ios Conference on Jewish Material Claims against Germany, Restitution Guide www.claimscon.org/CC_content.html; last checked 26 November 2000. Also see the testimony of U.S. Deputy Treasury Secretary Stuart Eizenstat to the U.S. Senate Foreign Relations Committee, 5 April 2000, available at www.usis.it/wireless/wfa00405/AO040508.htm, last checked 26 November 2000.

restitution Guide, supra note 105. As well, the issue of compensation for confiscated Jewish properties has become a live issue in France; see Wartime France stripped Jews of 1 Billion Pounds, THE INDEPENDENT OF LONDON, 18 April 2000: ("Property and cash approaching 1 billion pounds at modern values were systematically and 'savagely' stripped from French Jews during the Second World War, an official inquiry [the Matteoli Commission] reported yesterday."). 107 POGANY, RIGHTING WRONGS IN EASTERN EUROPE (1997); HENRY, THE RESTITUTION OF JEWISH PROPERTY IN CENTRAL AND EASTERN EUROPE (1997). '°8 Restitution Guidelines, supra, note 105. '09 The General Framework Agreement for Peace in Bosnia and Herzegovina, 35 I.L.M. 1171 ( 1996). 110 it. Annex 7, Article I: "All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them." Further, Article XII(5) permits all refugees and displaced persons the choice between return and compensation, and ensured that the owner has the right to compensation in lieu of return. "' Id. Annex 7, Article XI. 111 Cox, The Right to Return Homey International Intervention and Ethnic Cleansing in Bosnia and Herzegovina, 47 INT'L & Comp. L.Q. 599 (1998).

I13 Kevesevic v. Federation of Bosnia and Herzegovina, 20 HuM. RTS. L. J. 318 (1998); 20 HuM. RTS. L. J 326 (1999). The Chambers' decision was partly based upon Section 8, and Article 1 of Protocol 1 of the Convention, the same provisions relied upon by the European Court of Human Rights in Loizidou ; see supra, note 97. '14 THE UNITED NATIONS COMPENSATION COMMISSION (Lillich ed., 1995); Beterman, The United Nations Compensation Commission and the Tradition of International Claims Settlement, 27 N.Y.U.J. INT'L L. & PoL. 1 (1994). 115 Wuehler, The Iran-United States Claims Tribunal: Ten Years of Arbitration at Work, 8 J. INT'L ARBIT. 5 (1991); MAPP, IRAN-US CLAIMS TRIBUNAL (1990); 116 Painter, Property Rights of Returning Displaced Persons: The Guatemalan Experience, 9 HARV. HuM. RTS. J. 145 (1996). "' The Civil Liberties Act of 1988, 50 U.S.C. app. 1989 which authorized payments of $20,000 (US) to each person who suffered as a consequence. See also, Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 40 B.C.L. REV. 477 (1998). 118 OMATSU, BITTERSWEET PASSAGE: REDRESS AND THE JAPANESE CANADIAN EXPERIENCE (1992). 119 Newton, Compensation, Reparations, and Restitution: Indian Property Claims in the United States, 28 GA. L. REV. 453 (1994); Ferch, Indian Land Rights: An International Approach to Just Compensation, 2 TRANSNAT'L L. & CONTEMP. PRoBs. 301 (1992). 110 Henderson & Ground, Survey of Aboriginal Land Claims, 26 OTTAWA L. REV. 187 (1994); ABORIGINAL LAND CLAIMS IN CANADA (Coates ed., 1992). 121 Bartlett, The Landmark Case on Aboriginal Title in Australia: Mabo v. State of Queensland, in THE RECOGNITION OF ABORIGINAL RIGHTS 132 (Corrigan & Sawchuk eds., 1996). III Gilling, The Maori Land Court in New Zealand: An Historical Overview, in THE RECOGNITION OF ABORIGINAL RIGHTS, supra note 122, at 121.

123 See generally, TRANSITIONAL JUSTICE: How EMERGING DEMOCRACIES RECKON WITH FORMER REGIMES (Neil Kritz ed., 1995).

124 This part of the essay draws from the papers presented at a workshop held in Ottawa, Canada in July 1999 on the role of compensation as part of a comprehensive solution to the Palestinian refugee issue. For a further review of the shape of these workshop discussions, see Final Report, Workshop on Compensation, www.arts.mcgill.ca/MEPP/PrrN/prcomp3.html, last checked January 2001; and Rempel, supra note 13, at 36. 125 Supra note 4. It is probable that the right to return had already achieved customary status in international law by the time the Universal Declaration was declared. See Boling, Palestinian Refugees and the Right to Return: An International Law Analysis BADIL Brief No. 8 (January 2001). ). 126 united Nations Human Rights Committee, General Comment # 27: Freedom of Movement: Article 12, 2 November 1999, CCPR/C/21/Rev.l/Add.9, para. 21. In para. 19, the Committee states: "The right to return is of utmost importance for refugees seeking voluntary repatriation. It also implies prohibition of enforced population transfers or mass expulsions to other countries."

127 For an articulation of the right in the context of the Middle East, see Human Rights Watch, "Letter to Israeli Prime Minister Ehud Barak," 22 December 2000, www.hrw.org/press/2000/12/isrpabl222.htm, last checked, January 2001: ("As in the cases of all displaced people, those unable to return to a former home because it is occupied or has been destroyed, or those who have lost property, are entitled to compensation. However, compensation is not a substitute for the right to return to the vicinity of a former home, should that be one's choice.") 128 BADIL Resource Centre for Palestinian Residency and Refugee Rights, "The Impact of Return on Compensation," paper presented to the July 1999 Ottawa Workshop on Compensation.

119 IIA'ARETZ, September 21, 2000. The Israeli newspaper published the full text of the October 31, 1995 document, which had surfaced in bits and pieces through the years, but had not, until then, been publicly published in full. On compensation, the document proposed that it be awarded for: (i) Moral losses (ii) Immovable property; and (iii) Financial and economic support enabling resettlement and rehabilitation of Palestinians residing in refugee camps.

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