This simple assertion has become somewhat of an ‘article of faith’ among seasoned diplomats and policy analysts. Former US Secretary of Defense Donald Rumsfeld might call this assertion a ‘known known’ or something that we know that we know. Annan’s summary of the contours of a final settlement, however, is somewhat more specific than the Road Map, referring specifically to a solution for refugees “consistent with the character of States in the region.”

Annan was not the first to apply this interpretation to Road Map provisions on refugees. His summary is consistent with US President George Bush’s April 2004 letter of assurance to Ariel Sharon stating that “an agreed, just, fair, and realistic framework for a solution to the Palestinian refugee issue … will need to be found through the establishment of a Palestinian state, and the settling of Palestinian refugees there, rather than in Israel.” [1]

Last December Italian Prime Minister Romano Prodi was reported to have also endorsed this interpretation (the first European leader to do so publicly), although Israel’s Channel 10 later broadcast footage appearing to show Prime Minister Ehud Olmert ‘coaching’ Prodi what to say. Later that month the US Congress passed the Palestinian Anti-Terrorism Act formalizing American sanctions on the Palestinian Authority (PA) and calling upon the Hamas-led government to recognize Israel as a ‘Jewish state’.

Anyone listening to Israeli Foreign Minister Tzipi Livni these days cannot help but pick up the same message. A future Palestinian state says Livni is “the answer for Palestinian refugees - wherever they may be” and if Palestinians are “unwilling to say this, the world should say it for them.” [2] Of course, Livni’s statements are not surprising. Israel’s long-held belief that the solution for Palestinian refugees is outside the borders (yet to be established) of Israel is not a state secret.

But Annan’s remarks raise a different set of issues, particularly as the Quartet and others attempt to restart a political process to resolve the conflict. Their assertion that the “broad outline of a final settlement” is well-known is premised on a “trade-off” between individual and collective rights. In other words ‘peace’, as defined by the realization of collective rights (statehood), and individual (refugee) rights are irreconcilable.

Is this really how the UN understands the conflict and its solution? This brief article examines some of the defining moments in the UN’s treatment of the ‘Question of Palestine’, focusing on the General Assembly and the Security Council, with special attention to the refugee issue. It concludes with a few thoughts on what we know, or perhaps, what we think we know about the conflict and its solution.

A repository of rights

In the absence of Security Council intervention, the General Assembly has become a ‘repository’ (in the best and worst sense of the word) for the Palestine question over the past six decades. The Assembly and its subsidiary bodies, including the Council (formerly Commission) on Human Rights, have reaffirmed relevant legal principles, set up mechanisms to monitor and implement those principles, and it has initiated actions - political, humanitarian, and legal - when the Security Council has failed to do so.

Deliberations by the Assembly have generally upheld the essential complementarity of the collective right (to self-determination) and individual rights (of refugees to return, restitution, and compensation) in Israel/Palestine. While this debate is often situated in the post-1948 period, it can be traced back to 1947 when the UN ‘inherited’ the Palestine question from the British.

The 1947 partition plan was the General Assembly’s first attempt to address claims of Palestinians and the Zionist movement to self-determination in the same territory. While the recommendation to ‘over-ride’ the self-determination claims of Palestine’s majority (for a single democratic state) was hotly disputed, the Assembly did so only by providing extensive protections for the individual rights of all inhabitants of the country. Citizenship and property provisions essentially affirmed the right of Palestine’s inhabitants not to be displaced or dispossessed of their properties. In effect, the Assembly was saying that recognition of the collective right to self-determination (statehood) of each community through partition could not be used to arbitrarily restrict or violate the rights of individual Arabs and Jews.

The same formula can be found in the General Assembly’s next major consideration of the Palestine question nearly 30 years later. In a plan put forward in 1976, the Assembly called for the establishment of a Palestinian state in the West Bank and Gaza Strip and provided for a phased return of refugees, first to the Occupied Palestinian Territories (OPT), to be followed by the return of 1948 refugees to their places of origin inside Israel. And it is endorsed in the 1983 Geneva Declaration on Palestine and Programme of Action for the Achievement of Palestinian Rights. The coming into force of the Convention on the Elimination of All Forms of Discrimination (CERD) and the International Bill of Rights further strengthened this approach, although it would be another two decades (three in the case of CERD) before the UN bodies monitoring the implementation of these instruments would issue substantive rulings on the Palestinian refugee question.

The ‘Decider Decides’

But if the General Assembly and its subsidiary bodies are the repository for the question of Palestine, including refugee rights, the Security Council has often been, in the words of George W. Bush, ‘the decider’. And it is the decider that has decided the peacemaking agenda. This has taken place through a two-fold process comprised of (1) blocking ‘unwelcome’ initiatives (28 vetoes, all cast by the United States, since 1973 when the Council first considered the issue of Palestinian rights) and (2) defining the ‘principles of peace’ that today provide the contours of a final settlement, namely Security Council Resolutions 242 (1967), 338 (1973), 1397 (2002), and 1515 (2003).

Unlike the General Assembly, the Council has generally promoted collective rights ‘at the expense’ of individual rights. On three separate occasions - twice in 1976 and again in 1980 - the US vetoed draft resolutions (along with the 1976 General Assembly peace plan) reaffirming the rights of Palestinian refugees to return to their homes and the right of the Palestinian people to self-determination. Resolution 237 of June 1967 reaffirms the principle of return but only in relation to those refugees first displaced in the 1967 war who originate from the OPTs, the proposed self-determination unit for a future Palestinian state. Resolution 242 of November 1967 calls for a “just settlement” of the refugee issue; it does not address the right to self-determination. It would take another decade-and-a-half before the Security Council finally endorsed the self-determination rights of Palestinians through a two-state solution, although the term ‘self-determination’ is not used in Resolution 1397.

Resolution 242 also shifted the substance of the peace process in Israel/Palestine from one based on rights to one that relies primarily on a political formula (“land for peace”). In contrast to the clarity found in the General Assembly’s approach to the conflict and the refugee issue in particular - i.e., refugees have a right to return to their homes, repossess properties, and receive compensation for damages - the Security Council- driven framework is characterized by ‘creative ambiguity’ (i.e., what does a “just settlement” for refugees mean?) befitting a politically-driven approach. But while the Security Council has not reaffirmed the rights of Palestinian refugees, neither has it (yet) endorsed the idea of a Jewish state as defined by Israel and alluded to by Kofi Annan. To do so would put the Council in potential conflict with the UN’s human rights mechanisms.

Unlike the General Assembly’s 1976 initiative which was drafted in consultation with Palestinians,(22) Council Resolution 242 was adopted in the absence of Palestinian representation and was essentially forced upon the PLO as a condition for political engagement. Thus, while Security Council Resolutions 242 (“land for peace”) and 1397 (“two-states” - i.e., the second partition), in particular, delineate the ‘broad outline of a final settlement’, the extent to which they represent a shared vision of the future - i.e., the known known - must be gaged in light of the fact that the Security Council effectively “shifted the agenda away from the priorities articulated” [3] by Palestinians. Moreover, recent opinion polls are of little help in deciphering grassroots support for the Council’s approach as they tend to exclude Palestinians outside the OPTs.

The Unknown Unknown?

It has become an “article of faith” that everyone knows what the solution to the conflict is, and increasingly, it has been suggested that this involves a trade-off between individual and collective rights such that refugees will not be returning to their homes of origin inside Israel. The United Nations itself is a “house-divided” on its definition of the conflict and its solution. The General Assembly and its subsidiary bodies generally affirm the essential complementarity of collective and individual rights. The Security Council has all but sidelined the Assembly, promoting a solution that offers not marriage but rather permanent divorce of the collective from the individual.

As efforts gear up towards renewing political contacts, it might be worthwhile to reexamine whether Annan’s ‘known known’ might in fact be an ‘unknown unknown’ or, as Donald Rumsfeld explains, something that we don’t know we don’t know (but arguably really should know). Do the parties, and not just the elites, really accept the contours of a final settlement proposed by the Road Map, as clarified by President Bush and now Kofi Annan? Even Annan seems to hint at some doubt, suggesting that Israel needs to “grasp” and “acknowledge” the “fundamental Palestinian grievance … namely, that the establishment of the State of Israel had involved the dispossession of hundreds of thousands of Palestinian families, and had been followed 19 years later by a military occupation that brought hundreds of thousands more Palestinian Arabs under Israeli rule.” [4]

One way to find out is to democratize the peacemaking process. As Jarat Chopra and Tanja Hohe observe in a recent article on international peacemaking and global governance: “What may be feasible is a longer-term transition in which space is provided for local voices to be expressed and for communities to get directly involved in the evolution of their own cultural or political foundations, as part of a gradual integration into the national state apparatus. This means giving time for an indigenous paradigm to coexist with, or to gradually transform during the creation of, modern institutions. Integral to the process is the design of mechanisms for genuine popular participation in administrative bodies at the local level, which can also guarantee representation upward throughout the government-building enterprise from the very beginning to ensure its social viability.”[5]

Footnotes

[1] Letter from President Bush to Prime Minister Sharon (14 April 2004

[2] See, FM Livni speaking to the 61st session of the UN General Assembly. UN Doc. A/61/PV.13, Sept. 20, 2006. See also, Ari Shavit, ‘The Livni Plan’, Ha’aretz Magazine, (29 December 2006); and Aluf Benn, ‘Analysis/Two-state deception’, Ha’aretz (14 April 2003)

[3] See, comments on the role of international actors in Owning the Process: Mechanisms for Public Participation in the Peacemaking Process, An Accord Programme Joint Analysis Workshop Report, Old Jordan’s, Buckinghamshire, UK, 1-3 February 2002, p. 5. Also see, former UNHCR High Commissioner Sadako Ogata, “Healing the Wounds: Refugees, Reconstruction and Reconciliation”, Report of the Second Conference at Princeton University, 30 June - 1 July 1996 (stating “When societies have been fundamentally shaken by conflict and group co-existence is at stake, peacebuilding requires an agreed concept of society. Perhaps even when one party totally defeats the other, there must be a minimum common understanding of the causes of the conflict and a genuine compromise on the main features of the future society. … The international community can help to overcome difficulties in implementation, but it cannot substitute for the essence of a common concept of society. That concept must be owned by the people, not by the international community”).

[4] Supra, note 1.

[5] Jarat Chopra and Tanja Hohe, ‘Participatory Interventions’, Global Governance 10/3 (2004), 289-306, p. 289.

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