Summary of the Technical Meetings on Refugees
Held on August 14, 2008 [4 PM-5:30 PM], King David Hotel, Jerusalem
Palestinian: Dr Saeb Erekat (SE); Zeinah Salahi (ZS); Ziyad Clot (ZC)
Israeli: Tal Becker (TB); Daniel Taub (DT), Israeli lawyer
SE indicated that this was not a negotiation session. The purpose of the meeting was to present the Palestinian proposal on the international mechanism (“IM”) for refugees. As the Palestinian was in the process of sharing its technical work on this issue, SE offered to present it also to the Israeli side.
ZC delivered the standard presentation on the international mechanism which will be in charge of the implementation of Palestinian refugees? rights. The participants showed a deep interest, took notes and were able to ask questions during the presentation. Their main questions are set out below:
TB: Why is rehabilitation not a 3rd program in the structure of the IM? Why is it under return?
TB: What do you mean by compensation criteria?
TB: What is a displacement claim?
It is what we also call refugee claims (“refugeehood”). Refugee rights for NMD as a result of their longstanding dispossession and displacement.
TB: what precedents did you rely on to design the IM?
UNCC for the claims program.
Kosovo, Bosnia, for the return program.
TB: Have you find precedents that involved such a long period of time?
The Palestinian refugee issue is particularly unique and no one minimizes the extraordinary nature of the matter. In South Africa, however, properties were restored more than a century after they were confiscated. We believe that the parties can agree on specific modalities regarding restitution which will take into account.
TB: To what extent have you based this work on the IM on the Is&Ps we are currently negotiating?
SE: Should the compensation for Host States be part of the mechanism?
SE: Why can?t the US led the IM?
The refugee issue has become a multilateral problem. The management of the implementation should therefore rely on the several stakeholders. The resolution of the issue will be long (10 to 15 years)
DT: What do you mean by comprehensive agreement? What are the parties to it?
DT: From your experience in the working groups, do you have an idea of refugees? expectations? What were their reactions to your work on the IM?
Summary of the Technical Meetings on Refugees
Held on August, 2008 [ PM- PM], Hotel, Jerusalem
Palestinian: Dr Saeb Erekat (SE); Ziyad Clot (ZC)
Israeli: Tal Becker (TB),
SE briefs TB on his secret plan which he revealed to the French (if no agreement by the end of the year, a matrix of the positions will be given to the US and the French to enable the possible pursuit of the process). TB seems to agree but insist that this should remain secret.
TB: I hear rumors: - there seem to be some back channels
Rice is apparently under great pressure. She will probably force a deal.
SE: I don?t have any information whatsoever on these.
TB: But you are represented in some track 2 channels and seem to want to upgrade them.
SE: No, J. Rajoub requested that we participate to a meeting. It was a one shot. We will not participate anymore.
[TB passes State to State document to SE. ZC will give to ZS]
TB: Anyways, C. Rice is busy with Georgia. What do you think of Joe Bodin?
SE: He has been my friend for 20 years. He?s the best thing that could happen to us. His experience in the region is unmarked.
[TB begins to discuss the I&P document. SE asks that we begin with his comments on the Palestinian proposal on the mechanism, as previously agreed].
TB: I will only make some general comments at this stage on the model you presented.
On the mechanism, what struck us is your capacity to expose simply an issue that is extremely complicated. I have to say that some of the programs/issues you presented are problematic: our disagreement on substance are reflected in your vision on the mechanism. For example, restitution is totally unrealistic in the Palestinian case.
General speaking the international mechanism raises some tensions on our side. I also feel that there is a tendency on the Palestinian side to insist on individual justice. You put too much focus on the individual. A balance will have to be found between effectiveness and legitimacy. Your model is too individually-based. It is not feasible. Some people will not be happy with the solution on refugees. The Israelis and the Palestinians will have to get prepared for that. We cannot create expectations which will not be met.
These are my personal feelings. They are not the Israeli position on this which is not defined at this stage. Again, you try to make this issue simple. But it is incredibly complex. In this file, the Palestinians are making the demands and the Israelis have to define what could be given.
According to the Palestinians, the refugees would be several millions. How could this work? We also understand that the compensation should come from Israel. For me, your claim for NMD is not acceptable. We have to focus on providing rehabilitation assistance to refugees. You can think about the best way to market it.
ZC answers on 4 points essentially:
No one minimizes the complexity of the Palestinian refugee issue. However, relying on international best practice is the best way to prepare the resolution as long as the specifics of then Palestinian case are not overlooked. This is our approach. In Irak, the UNCC processed 2.7 millions claims in 10 years. It was a long and tenuous process, but the initial goal was reached.
It is no surprise that the discussion on the mechanism raises the same tensions usually relating to this file since this model is meant to be an implementation mechanism. The comprehensive model presented is adaptable to the parties? policy decision. For instance, it remains pertinent irrespective of what will be the parties? decisions on return and restitution.
The focus on individual justice is totally assumed. As you pointed out, the problem has been ongoing for 60 years. To be frank, a Palestinian refugee from Lebanon, Palestinian refugee in Jordan may not feel represented by the PLO because they have been living in a foreign environment for so many years. Therefore, the only way to facilitate a “buy in” of the various refugee communities is to put the emphasis on individual justice: to the best extent possible, each refugee will have to feel that his/her personal experience is acknowledged.
Palestinian rights for NMD is a right according to IL. It has been recognized in mass claims program. Practically, if it is not recognized, there is a chance that a large proportion of the Palestinian refugee population will be left without any form of compensation.
[Discussion moves to the 1948 narrative]
SE: Recognition of responsibility is a bilateral issue. I don?t want the Americans to be involved in this.
TB: Our respective narratives cannot be reconciled. You think you are the victims. WE think we are the victims.
SE: How can you seriously think you are the victims of the Israeli-Palestinian conflict.
TB: We were invaded by the Arab armies. The Arabs never accepted the partition plan.
[Discussion goes on the narratives without progress. AC stops functioning]
ZC: Let?s consider for one second that our narrative of what happened in 1947-48 cannot be reconciled ?which I don?t believe. I have two questions.
Could the Israelis consider
Summary of the Technical Meetings on Refugees
Held on August 28, 2008 [6:30 PM-7:30 PM],King David Hotel, Jerusalem
Palestinian: Dr Saeb Erekat (SE); Ziyad Clot (ZC)
Israeli: Tal Becker (TB), Daniel Taub (DT)
SE: How was the meeting with Jonathan Swartz?
TB: Good. A bit long but instructive. We gave him our feedback on the US non-paper.
SE: I like J. Schwartz. He is a very decent man.
DT: He knows the history of the negotiations very well. He probably knows the agreements between the Israelis and the Palestinians better than anyone else.
TB: Ziyad, how was your meeting with him?
ZC: Very positive. He showed a lot of interest in our work. He has an in depth knowledge of the refugee issue and asked some very specific questions on the mechanism. The meeting was I think very fruitful for both sides.
TB: I think that in the scope of our discussion on refugees we have been able to bridge a lot of minor gaps. And I am very happy with the efforts showed by both sides. However, she should remain cautious as we seem to create some expectations because of the advancement of our work.
ZC: According to J. Schwartz, Rice?s view is the parties agree on 90% of the issues on refugees. The reality is very different. All main issues remain on the table: return, Israel?s responsibility, restitution, Israel?s financial contribution. Etc. J. Schawtz has a much clearer view of the exact status of the talks.
TB: I agree. C. Rice shows a lack of knowledge of the files. This is the case for Jerusalem. It is also true for refugees.
[TB and SE agree to schedule the next meeting on refugees on Sunday, the 30 at 6:30pm. SE also indicates that he wants to meet on Monday. He also requests that food disappears from the table for Ramadan. TB suggests that the parties could also meet after sunset. SE agrees]
SE suggests to go through the version 5 of the I&P document on refugees.
SE: the Palestinian side can accept to replace [P: Agreement and the Treaty][I: Article] by “Treaty”. The Treaty will be defined in a footnote. We will need you to explain why you can accept the adjective “bilateral”.
TB: Yes, I will explain this.
SE: You have suggested 2 options. We can live with option 2. It would read as follows: “An international fund shall be established to finance the programs of the international mechanism, including those set out in Article 6.5. and enable it to fulfill its mission.”
However, for us to accept this modification, we hope you can accept our [P: Palestinian] in 6.4. If we get your approval on this P., we will accept your suggested phrasing for 6.6.
[Israelis are writing down Palestinian requests]
SE: In 6.4, we can accept your [I: in respect of claims arising out of the refugee issue]
SE: The article now reads [SE reads the article]. I think the parties can agree to replace [Article] by [Treaty].
[Israelis confirm by nodding]
SE: The “US leadership” you propose is problematic for us. We have not agreed internally to it. There is some debate amongst us: some would favor such leadership; others are much more reluctant.
ZC: this notion, which would have to be defined, raises two sets of concerns:
First, it remains unclear how it would apply: to the preparatory work that will lead to the establishment of the mechanism or/and to the implementation phase of the solution on refugees (by the mechanism, with the US leardship).
Such leadership could alienate some stakelhoders in the resolution of the refugee issue (Syria, Lebanon) and donors.
SE reads the the new Palestinian proposal for 6.5:
TB and DT write down the proposal. But TB but shows signs of disagreement.
SE: I don?t say not to the US leadership. But it remains to be defined and I would need some guarantees. We don?t want to alienate anybody. We met with the French. The EU may offer to contribute financially. The parties can agree on who will drive the IM: the PLO, the US and Israeli will decide. But you have to understand that we are under enormous pressure, especially on this file.
TB: you can take the pressure.
SE: Me, yes. But think about the others.
TB: We have accepted to replace “options” by “choices” in 6.3. We also now agree on the structure of the article you submitted. We have made good progress so far.
SE: We should not be afraid to accept the other sides? proposals when they are fair.
TB: I have one additional suggestion. In the wording of 6.5, we have some problem with the word “repatriation”. The parties can maybe agree on the following:
6.5. … The comprehensive mission of the international mechanism shall include the following programs:
a) to assist in coordinating […]
to resolve all refugee [P: restitution] and compensation claims […]
TB: Could you consider this drafting option? You will note that we agree on the sentence that announces the 2 programs (“the comprehensive mission…”)
ZC: I think we lose a lot of clarity here as to what would be the exact mission of the mechanism. The phrasing of this provision can be changed later once the parties agree on the terms of the mandate.
SE: But we will consider your suggestion.
SE: Let me go back to that question of the US leadership. In our view, the US could be in a good place to act as coordinator.
TB: Let me explain what it our concern here. The burden put on us is too heavy. We will not play an active role in the mechanism. The US should take the lead. I think we can agree on something like this:
“The international mechanism will be established with [I: US leadership], with the agreement of the parties and in consultation with stakeholders…”
I think the two parties already agree on the last part of the sentence (agreement of the parties + consultation of stakeholders)
The idea is that once the Israelis and the Palestinians reach an agreement, the rest of the functions will be left to the leadership of the US, the consultation of host states…
TB: Let me go back to that “bilateral” issue in 6.8. Legally, this does not add anything but I understand that this a requirement from Jordan.
ZC: which is also relevant for Syria, Lebanon.
TB: For an Israeli, the insertion of this word means that we have other obligations whereas we are trying to reach an end of claims in this issue. A way to satisfy both parties would be to say: “I and P agree that they have no further obligations and commitments…”.
TB: one last thing. The reason why we do not agree yet on the [P: Palestinian] in 6.4 is because we need to reassure the Israelis: they will want to be guaranteed that once the Palestinian refugee issue is resolve the next step will be to tackle the question of Jewish refugee claims. This signal has to appear somewhere in the Article. If it?s not in 6.4 maybe the adjective “Palestinian” can be removed in 6.1. “Comprehensive” resolution means that the Jewish refugees should also be included.
SE: The Jewish refugee issue does not fit in this text. I am confident that you will accept our P. for next meeting. And I will be able to accept your 6.6. Don?t play that game with me Tal. I am so angry you already signed peace treaties with Egypt and Jordan.
[TB and SE agree that both parties will come back with a version 6 of the I&P for next meeting]
TB: You know. No disrespect for the previous negotiation teams on refugees. But, Ziyad, I really think that you make a big difference on this file. There has never been in depth discussion on refugees in the past and my feeling is that the Palestinian refugees have never been so well-defended.
[SE & ZC remain silent]
TB (smiling): To speak frankly, when I see this, I wish I were a refugee.
ZC: I don?t think you meant what you just said.
TB: I was joking. Sorry.
Summary of the Technical Meetings on Refugees
Held on August 30, 2008 [6:30 PM-5:30 PM],King David Hotel, Jerusalem
Palestinian: Dr Saeb Erekat (SE); Ziyad Clot (ZC)
Israeli: Tal Becker (TB), Daniel Taub (TB)
[Both sides updated the I&P document according to the discussions held in the last meeting. The parties started the meeting by reviewing the other side?s updates document]
TB: I think we have done a lot of progress. The following issue still divide us: responsibility, return, restitution and compensation.
Let?s go through the I&P document together:
I believe that 6.1 will be agreed at the end. Saeb, you told me that if we accept the reference to the Arab Peace Initiative here, you would be ready to remove the reference to 194.
SE: I told you that we might consider it.
TB: This will be also discussed later.
ZC: The parties might want to keep in mind that Israel?s recognition of responsibility can take to different forms. This would be the first one. Another alternative would be to agree on a more substantial preambular draft which would try to reconcile refugee experience with the Israeli narrative. I think that the attempts made a Taba may be of some interest for us.
TB: Are you referring to the document put forward by Y. Beilin on refugees? This would not be acceptable by us as it does not reflect the Israeli position.
ZC: the Israeli non-paper does not reflect the Palestinian position either…
TB: I would like to come back to Abu Mazen?s statement in Lebanon. He said “all refugees will have to return to their homeland”; “no definitive settlement of Palestinian refugees is Lebanon”. What are we supposed to understand?
SE: We have agreed with the Lebanese that not Palestinian refugees will be definitively settled in Lebanon.
SE: we have accepted the new draft of 6.8. We need to fix this “bilateral” issue.
TB: I will discuss it with T. Livni and will come back to you.
SE: In 6.6, I agree to accept the wording you suggest for the international fund. I expect you to accept my [P: Palestinian] in 6.4.
TB: I am not sure I understand…
ZC: Well, we offered to you last meeting to accept your modification of 6.6 in exchange of your acceptance of our P. in 6.4…
TB: But do you see any connection between the two provisions?
ZC: Obviously. We can agree to adopt a looser wording for the mandate of the international fund only if we have the insurance that the fund will only serve to gather funding directly relating to refugees? compensation and rehabilitation
[TB and DT discuss in Hebrew and write down notes]
DT: I wish to suggest simplifying the drafting of the second part of provision 6.5. We could try to adapt to our concern regarding the mandate of the international mechanism by suppressing the title of the two programs.
SE: I have learnt from TB that, legally, there is not interest in repeating the issues. Once an issue is written down in the text of the article, there is no need to repeat it again and again.
DT: the idea would be to remove the titles (refugee repatriation and resettlement and integration program; program for refugee claims for restitution and compensation), refer explicitly to article 6.3 and 6.3. an beging the a) and b) by the rest of the text which is agreed by the parties.
ZC: At some point, we will hopefully agree on the core mandate of the mechanism. In my view, the time will be then appropriate to agree on the definitive phrasing of this article on the mechanism. By trying to avoid the policy issues, we taking the risk of creating ambiguity in the text.
SE: We took good note of your proposal. We will consider it.
TB: On 6.5, my feeling on your proposal has not changed. Your suggestion would put too much burden on Israel. I suggest we put “US leadership” into brackets. We can agree on the rest (“with the agreement of the parties, in consultation with host states”)
ZC: Actually we have another draft to suggest which may accommodate to your concern.
SE: We can offer this new draft:: “The parties agree to the establishment of an international mechanism which will be carried out as defined by them, in coordination with the international community and in consultation with host countries and other stakeholders. Once established, the mechanism shall implement all aspects of the agreed solution in accordance with the principles set out in Article 6.3 and 6.4 and as detailed in the Treaty, bringing an end to the Palestinian refugee status and enabling the phased termination of UNRWA in parallel with the implementation and coordination with the international mechanism.”
[TB and DT write down the proposal]
ZC: This proposal, I think, resolve your concern and is a text of compromise.
[SE leaves the room]
TB: Did we agree to “as detailed in the Treaty”?
ZC: No. We added it. It is in line with you demand to have the “Article” or the “Agreement” replaced by the “Treaty” elsewhere. The Treaty being the comprehensive instrument, we have to refer to it.
TB (showing signs of irritation): So you have inserted a reference to the Treaty without our agreement?
ZC: This is just a proposal…
TB: All our obligations [meaning Israeli obligations] relating to refugees will be included in this Article. We are not going to discuss refugees further after that. This is what we have agreed with Saeb.
ZC: I am not sure I get your point.
TB: This article deals with all the issues that are bilateral. The Israelis will not have any further involvement in the refugee file after that. The process will become multilateral after that. This is why we want the US to be involved. They will then lead the process.
ZC: I thought the common understanding was that we were currently discussing the framework/the principles of the agreement on refugees and that a negotiation round on the details of the agreement would follow?
TB: No, this is unrealistic. We have agreed on this with SE.
ZC: Well, if this is the case, it doesn?t make any sense. The current document we are discussing is totally irrelevant without a complementary agreement on the details. All the commitments that Israel would take in this document are agreement on the principle. How could I know on the basis of this document what will be Israel?s financial contribution? You will agree to pay some money, without taking any commitment as to amount and then the international community would be to cover most of the expenses, Is it the idea? You will have a bilateral declaration of principles that will be imposed on the participants of a multilateral. Have you thought this thoroughly?
TB (annoyed): The next process could also be trilateral.
ZC: If the two parties are serious about this option they should start thinking about the technical, legal, and practical implications of this choice. We should list all issues that are clearly bilateral and make sure they are agreed on before any next step is taken.
[SE comes back in the room. ZC explains what the Israelis have just explained and asks if we have agreed on their view regarding the process. No clear answer]
TB: Ziyad, we have asked you during the next meeting what are the legal sources or precedents on which your claim for non-material damages is based and you have mentioned in particular a declaration from the ILC…
ZC: I have prepared a short note which just lists the legal sources as well as the relevant precedents. You may want to have a look at it.
[TB and DT take a look at the note]
TB: But this is misleading, you write that NMD have been awarded in many circumstances in the scope of mass claims programs. But I only see the UNCC listed here.
[ZC looks at the document]
ZC: No, the title of the paragraph is “NMD have been awarded in many circumstances by international courts and in the scope of mass claims programs to redress in particular suffering, isolation, humiliation, loss of enjoyment of life etc.” Rights for non-material damages have been recognized by international courts as well as mass claims programs.
TB: You problem is that you convince yourself that the Palestinian refugees have all the rights according to international law and build your case on this belief. Have refugees ever been entitled in the past non-material damages because of their refugeehood? Yes, no? Many refugees never get a penny because of their forced displacement. Have you looked into these cases? My grandmother was a refugee…
ZC: Tal, the question is not: Does being a refugee give you an automatic right to compensation for non-material damages? I am aware of the fact that most of forced displacement situations never gave birth to just compensation programs. The question that should be rather asked is the following: Does the extraordinary suffering endured during 60 years by the majority of the Palestinian population generate rights to non-material damages according to international legal principles? The answer is “yes”: the distress, the anxiety, the isolation and humiliation which result from their situation is a source of rights according to international law. I should add that practically…
SE: I know that I should not interrupt in the middle of an argument between two lawyers but, please, let?s discuss this later.
[SE gives paper to TB on health. TB is not happy with the paper. SE takes the paper back and says that he will come back with another paper]
[2 new meetings are set for next Sunday]