No Return, No Refuge: Rites and Rights in Minority Repatriation 9780231526906

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No Return, No Refuge

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No Return, No Refuge Rites and Rights in Minority Repatriation HOWARD ADELMAN AND

ELAZAR BARKAN

Columbia University Press   New York

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Columbia University Press Publishers Since 1893 New York  Chichester, West Sussex Copyright © 2011 Columbia University Press All rights reserved Library of Congress Cataloging-in-Publication Data Adelman, Howard, 1938– No return, no refuge : rites and rights in minority repatriation / Howard Adelman and Elazar Barkan. p.   cm. Includes bibliographical references and index. ISBN 978-0-231-15336-2 (cloth : alk. paper) — ISBN 978-0-231-52690-6 (ebook) 1. Return migration  2. Repatriation  3. Minorities.  4. Ethnic relations. 5. Restorative justice.  I. Barkan, Elazar.  II. Title. JV6035.A34  2011 325—dc22     2011001953

Columbia University Press books are printed on permanent and durable acid-free paper. This book is printed on paper with recycled content. Printed in the United States of America c 10 9 8 7 6 5 4 3 2 1 References to Internet Web sites (URLs) were accurate at the time of writing. Neither the author nor Columbia University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

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For

Muki Barkan

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Contents

Introduction  ix

1.  The Rites of Rights  1 2.  The Right to Expel as an International Norm: 1900–1945  24 3.  Outlawing Ethnic Cleansing: Principles and Practices After World War II  47 4.  Reversing Ethnic Cleansing: Bosnia Versus Kosovo  74 5.  Resettling Refugees from Asia  97 6.  Force and Repatriation in Africa: The Right of Return in Africa  124 7.  From Jewish Messianism to the Law of Return: Antiquity to Modernity  155

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viii Contents

8.  Palestinians and the Right of Return  189 9.  Rights and Return  220 10.  Ethnic Conflict and Nonreturn  237

Notes  259 Index  323

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Introduction

The book coheres around the theme of “return home,” whether regarded as legitimate or illegitimate, realistic or unrealistic, when those seeking to return are refugees or internally displaced persons (IDPs) who fled or were forced to flee ethnic conflict. The notion of return focuses on return to a place memorialized as home. We concentrate on ethnic minority return in Europe, the Middle East, Asia, and Africa to ensure a wide spectrum of cases that include Jews and Palestinians, Kurds and Chaldeans, Sudanese and Somalis, Vietnamese and Rohingas, Kosovars and Bosniacs. Majority and minority repatriation indicate numerical relations in the specific region under discussion. Palestinians were a majority in Palestine before 1948 and remain a majority outside the state of Israel in Gaza and the Occupied Territories, but are a minority inside Israel. Palestinian return to Israel (part of historic Palestine) would be a minority return. Kosovars are a majority in Kosovo, but a minority in Serbia. When the Kosovars refugees returned at the end of the war, this was a majority return to an area controlled by NATO and dominated by Kosovars. Various groups in Southern Sudan are local majorities, but nationally are minorities. The list is long. Empirically, ethnic repatriation succeeds when refugees return to areas where they are a majority or have force behind them if they are a minority.

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x Introduction

Over the last century there may have been two hundred million people displaced from their homes, regions, and countries as a result of political violence. This book focuses on those among the displaced who were uprooted because of their identity—ethnic, national, and religious. Many millions belong in this category, but not all. The common characteristic of the groups discussed is their status as a minority in the country or region to which they desire to repatriate. This desire has been reinforced by the predominant policy developed over the last two decades that privileges repatriation in preference to either local integration in the host or first country of asylum or resettlement in a third country in various situations and different refugee crises. The argument we advance is fairly simple. There is a widespread popular belief that displaced refugees and IDPs have the right to be repatriated. We examine this claim empirically. We conclude that the displaced are divided into two categories: majority and minority refugees. The case studies we examine deal only with minority refugees. Majority refugees often repatriate as a matter of politics, not rights, usually following a political change. As a matter of historical record, most minority displaced never return except as a result of power politics, not rights, whether or not we consider this outcome to be right or just. The rhetorical insistence on rights that have never been implemented is detrimental to refugees and locks them in purgatory. They cannot resettle because they are supposed to be repatriated; they cannot repatriate because they are a minority. This predicament will be explored throughout the book. Whether repatriation of the displaced should or should not be a priority is an important conversation; it should be conducted recognizing political patterns and realities on which we focus. Our concern is those who populate the twilight zone of implausible rights that exist primarily as rites. No Return, No Refuge focuses on the conventional association of return and repatriation with rights and evokes the association to rites. We are acutely aware that words can be equivocal and can be read differently in competing contexts. We examine the juxtaposition of rites and rights in the context in which they emerged, historically developed and in the current contentious political context where words are adopted and utilized to advance a future agenda. The equivocal and historical layers of language are not shells to be discarded in the pursuit of scientific univocal meanings but are themselves sources of insight.

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xi Introduction

It is one thing for a refugee to want to return. It is another for a refugee group to base that desire to return on rights, especially in the face of resistance to return and the record that only recourse to force will bring about that return. Ironically, the rhetoric of rights seems to signal either that violence is not a viable option or a prelude to resorting to violence. The more rights are advocated in the face of demonstrable nonperformance and no adoption of force, the more they turn into rites. Rites are preformed. Rights of return are advocated, by two different constituencies. The first includes international advocates on behalf of refugees who believe that return is the only just solution to the plight of the displaced. The second includes refugees who demand repatriation as a right when a certain combination of the following four conditions are in place: (1) no alternative to return seems readily available; (2) the powers in place in the area from which they fled are opposed to return; (3) the refugees and their leaders are determined to return using force to displace those in power preventing return; (4) the refugee leadership recognizes that calls for universal justice can be a critical ally of the use of force to bring about return. Refugees demanding return forge an alliance with cosmopolitans who advocate on their behalf. Rights are advocated by refugees to justify the use of force or, more often, when force is recognized as insufficient to bring about return and the assistance of the international human rights community is needed. If the implausibility of return becomes apparent, advocacy turns into ritual and rights gradually metamorphose into rites. Among refugees, only some groups integrate return as a ritualistic mantra: Jews, Palestinians, and Sudeten Germans, to name some famous ones. However, many do not. Among international advocates on behalf of refugees, the mantra of return may be repeated by some indifferent to either feasibility or the wishes of the refugees themselves. The latter discrepancy became most evident in the case of the former Yugoslavia, which we discuss in chapter 4. The association of return and rights and then rights and rites is not a necessary byproduct of expulsion or flight by minorities. However, when return is advocated on the basis of rights, rights become a mantra and turn into rites in inverse proportion to the political feasibility of return. Rites can be turned back into a practical program of political action when circumstances change and return once again becomes feasible. This is the attraction of a rite. It offers a way to park a desire that cannot be exercised in reality. A right becomes fully a rite when return is accepted

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xii Introduction

as an unrequited form of love. A rite reverts to politics when the feasibility of its exercise once again enters the horizon of possibilities. Then rites become functional. In exceptional cases, return may even be implemented. However, by and large, rites, until they are purified of possibility and placed on a mantle, that is, until they are recognized as symbolic of national identity, are counterproductive, often the embodiment of an aspiration for a possible world, not a world that is or can be realized in the foreseeable future. In the international realm, rites and rights do not cohere. We discuss the return of refugees and IDPs in the context of international covenants, agreements, and practices. At the heart of the exploration of return lies the fate of the Palestinian refugees, a “core” issue of the century-old Israeli-Palestinian conflict. Return assumed messianic dimensions for both peoples as we discuss in chapters 7 and 8. We attempt to enter empathetically into the hearts and minds of both Palestinians and Jews to understand the spectrum of views members of each polity express about the rhetoric of return and how it has evolved in meaning over the life of the conflict. We try to present the historical spectrum of the representations of the right of return as a guiding principle of various political agendas associated with its adoption, mutation, or proposed abandonment. Neither “the Jews” nor “the Palestinians” present a single national perspective. Before we reach that point, however, we establish our groundwork by surveying policies and practices around the world over the twentieth century. After we describe in more detail the historic and geographic approach in the introductory first chapter, chapter 2 traces the disintegration of the Ottoman, Habsburg, and Russian empires early in the twentieth century during which the established norm of population transfers was not only legitimate and prudent, but also presumed to have represented the perspective of the refugees. Refugees were better off, it was reasoned, since they would not be subject to future clashes and violence. Viewed as a bitter pill, population transfer caused many deaths. But the long-term outcome, it was argued, favored the refugees. One does not have to agree with the judgment in the twenty-first century to recognize that this was the prevailing view in the first half of the twentieth century. The situation, however, was further aggravated by the failure of minorities’ protection and the viciousness of World War II. Needless to say, there were no cases of minority repatriation that took place in that period. Chapter 3 follows the population expulsions in the immediate post– World War II years and underscores the coexistence of ethnic cleansing

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xiii Introduction

and population transfer together with an emerging public commitment to human rights. Though the phrase “ethnic cleansing” was not used until the 1990s, it refers to situations in which the dominant majority stimulates or forces an unwanted minority to flee in order to establish the majority control over a geographical area, often as a means of establishing sovereign rights over the territory. The effort to reverse ethnic cleansing is referred to as “minority return,” which also became a common phrase in the aftermath of the 1990s Balkan crisis to refer to the effort to return a population that had been expelled to a territory now controlled by another ethnic group where the returning population would be a minority even if it once might have been a majority before the forced displacement. The practice of ethnic cleansing, though not the language, took place after World War II at the same time as rights were emerging as foundational norms and when the conflict among competing political, civil, and social rights, between individual and group rights, and between justice based on rights versus peace faced their first serious tests. The results were not pretty. In both Europe and India, millions were expelled in the name of national sovereignty and homogeneity. Expulsions were supported by the international community, by democracies and authoritarian regimes alike. This predicament of the leaders who could, at one and the same time, support both cleansing and rights engages our attention as the background to the rest of the chapter which describes the growing edifice of formal, legal, and rhetorical protection for refugees and human rights more generally as Europe lived through a long, peaceful period. During and after the Cold War, refugee crises largely occurred in Asia and Africa, the subjects of chapters 5 and 6, respectively. But before exploring these regions, chapter 4 describes the situation in the former Yugoslavia, specifically Bosnia and Kosovo. The long durée of peace was suddenly upturned by the fall of the Berlin Wall. Violence broke out with the disintegration of the former Yugoslavia. Following the war and the peace agreement (the Dayton Accords), there emerged a public commitment of leaders in the West to repatriation and reversing ethnic cleansing. The perfect opportunity for the repatriation of refugees seemed to exist. The West backed the process with troops and money. The High Representative was charged with transitioning the country back to political normalcy and, among other powers, could fire noncooperative officials who resisted repatriation. A great deal of effort and capital was invested in the enterprise. Indeed, many see Bosnia as a successful case of minority repatriation; more than

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xiv Introduction

half of the two million refugees returned. We believe this perception of successful minority repatriation is wrong. Most returnees to their original homes belonged to ethnic majorities. Minorities moved to where their ethnic group was the majority or stayed abroad. There was some return to “mixed” cities and of older people, but the numbers were relatively small. The shortcoming of minority repatriation in Bosnia offers a strong case suggesting why minority repatriation should not be considered a preferred solution in situations of ethnic conflict. Chapter 5 reviews five cases in Asia. The first, in the late 1980s, was the repatriation of Vietnamese nationals after the previous decade of very successful resettlement of the Indochinese refugees. The repatriation included only Vietnamese, not ethnic Chinese. Further, return was largely involuntary; the Vietnamese were simply reclassified as illegal immigrants rather than refugees. On the other hand, the return only took place when Vietnam made a commitment, which it kept, not to send the returnees to reeducation camps or otherwise penalize them. In the second case, that of the Bhutanese refugees in Nepal, Bhutan refused to allow their return after the government rescinded their citizenship. In response, after a long protracted period, the international community finally agreed to resettle the bulk of the refugees. In Burma, there were several separate failed repatriations. In the first, the government agreed to repatriate the Rohingas not once but twice. The first repatriation led to widespread abuse of the refugees; other Rohingas refused to follow. Of the repatriated, many fled again. The next effort to repatriate them was a nonstarter. Among the Karen refugees in Thailand along the border with Burma, when return under the banner of military victory receded as a possibility, a new program was recently launched to resettle those refugees while possibly integrating some into Thailand. East Timor offers a fourth case; successful repatriation only followed the withdrawal of Indonesia but at the cost of producing new refugees who fled to Indonesia. Another internal displacement resulted from the riots in 2006 as a result of internal ethnic divisions. Sri Lanka offers a case of internally displaced persons (IDPs) who fled the battle between the government in Colombo and the Tamil Tigers, which the government eventually won. Refugees are being resettled in patterns dictated more by security than by repatriation. Chapter 6 begins with a brief discussion of recent displacement in Kenya and then takes up five cases in Africa—Southern Sudan, Rwanda, the Democratic Republic of the Congo (DRC), Eritrea/Ethiopia, and Darfur. As

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an example, in Rwanda, the Tutsi minority that was driven out or fled in the early 1960s and their descendents did return, but only through the victory of the Tutsi-dominated Rwandan Patriotic Army. Then a new group that belonged to the majority Hutu population fled, most of whom returned when a military force freed them from the control of the previous genocidal military regime that controlled the refugee camps. Those with blood on their hands continued to avoid repatriation if they could, creating a source of instability in the DRC. The internal displacement in the DRC is widespread and complex. A process of repatriating refugees and IDPs within the framework of a peace agreement is underway, but it is one in which every group is a minority. In Ethiopia and Eritrea, there have been no attempts or efforts to allow the return of those forced or “encouraged” to leave in either direction. In Southern Sudan, most of the refugees returned home because the peace agreement terms gave the rebels control and even eventually the option of autonomy or independence. They are minority returns in the context of the whole of Sudan but majority returns in the regional context of Southern Sudan. Yet even in that case, conflicts between different ethnic groups in the south have inhibited return. In Darfur, we find a very different story of internal ethnic cleansing, an effort to transfer water rights from the African agricultural tribes to the nomadic Arab tribes, a shift unlikely to be significantly reversed in spite of the relative intense international attention, the presence of large numbers of humanitarian workers at times, a relatively large peacekeeping force, and the indictment of President Bashir for war crimes, crimes against humanity, and genocide. In addition to the Jews, who occupy an iconic place in the history of the twentieth century, whose “return” to Zion we discuss in chapter 7, the most prominent and protracted refugee crisis is that of the Palestinians, which we discuss in chapter 8. At the core of several conflicts between Israel and Arab states, and part of the wider one between Islam and the West, the conflict that has lasted over sixty years and began even earlier embodies the multiple predicaments and tensions between rights and rites, between conflicting demands for national self-determination, and between national goals and individual well-being. The suffering of the Palestinian refugees is the heart of this book. Showing the diverse and historically contingent Palestinian positions on repatriation is a necessary step to turn it from a messianic idea (as it appeared in Camp David in 2000) into a political debate.

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xvi Introduction

The Jewish claims for repatriation did not stop with the achievement of self-determination but metastasized into occupation and settlements under the rhetorical cover of return and the umbrella of force. From the Palestinian perspective, for historical reasons, although the question of refugee return emerged rhetorically at the heart of the conflict, this position is now widely understood among the mainstream Palestinian leadership to be unproductive to Palestinian interests and especially to the refugees themselves. The rite of return, however, assumed the mythological force that made its contestation unthinkable both for many Israelis and most Palestinians. In the last few years, and we believe increasingly, there is a growing recognition and legitimation of creative solutions to transform the rite of the right of return to the homes from which they were uprooted into a right of return to an independent Palestinian state. This involves the cooperation of Israel, which has to disabuse itself of some of its own sacred rites in ways that have also become self-evident to many Israelis. Many minorities do not envision either self-determination or autonomy, nor are strong enough to formulate their demands in terms of repatriation.  When minority refugees are left in limbo over time, however, and focus on repatriation, rites replace failed rights. There are exceptions, such as when a minority, the Tutsi, was able to return through the use of force. The Palestinians once believed, and some still do believe, they can still return through the use of force. Most focus on rites because of the failure of force as well as the unsuccessful efforts to bring about self-determination. The lack of viable solutions leads to rites. This was most pronounced among Jews with the birth of Zionism. However, the availability of a state or, alternatively, resettlement shifts the attention of refugees from repatriation to rebuilding life. Not all failed repatriation turns into rites. Indeed, most do not once a political solution is found. There are exceptions, however. The Sudeten Germans provide an example where rites remained critical despite successful resettlement. The balance between self-determination and refugeehood, as well as the feasibility of self-determination, provides only a partial explanation for evolving rites. In these historical chapters, we do not examine a large number of other cases—the over half a million in Zimbabwe, the three-quarters of a million in Côte d’Ivoire, and an estimated three million plus in Colombia produced by the civil and narcotic wars. When China launched its major gorges dam project, several million Chinese were forcefully displaced by this development project. Ethnic or national violence is not the only catalyst of internal

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forced displacement. Other IDPs result from natural disasters, such as the 2004 Boxing Day Tsunami (26 December) or Hurricane Katrina in the United States on 28 August 2005. However, we restrict our concern to refugees and IDPs who are minorities and who are uprooted as a result of violence. In chapter 9 we analyze the right of return in its philosophical context. For here we turn from the empirical and historical to questions of justice and rights. We take up the issue of whether minority return should still be advocated in spite of the negative results in the past. In that examination, we clearly differentiate the objections to ethnic cleansing from the efforts to reverse the ethnic separation of populations. The examination begins with an analysis of Arendt’s views of the state and the nature of membership in that state. We compare the emergence of the prevalent doctrine prohibiting forced repatriation against the advocacy of the right to return rooted in references to the Covenant on Civil and Political Rights that specifically provides for return, resettlement, and reintegration in article 12(1), with a basic right of free movement to choose a place of residence. Guiding Principle 28(1) calls on states to provide the means and establish the conditions for IDPs to exercise those rights so that IDPs can return voluntarily, in safety and with dignity, to their homes and places of habitual residence or can resettle voluntarily in another part of the country. In that discussion, we explore different foundations for rights and differentiate between moral affirmation and rights embodied in international law. We then revisit the possibility of return being at least an aspirational right. The final chapter explores the place of rights within the context of the recent refugee crises, Iraq and Georgia. We contextualize the desire to return in lessons drawn from history about clinging to nostalgic attachments. We argue that political failure reinforces escapist dreams. Nostalgia mediates the refugee’s desire for security and improved life conditions compared with the harsh realities of current existence. The ideology and commitment to return conveys the notion of repatriation as a distant, impractical solution in the face of real desperation. The devastation of the political struggle and political resentment, combined with distrust of local, national, and global conditions, subvert any sustainable material and political improvement. Instead, refugees are left to embrace a dream that repatriation will cut the Gordian knot, enable return to the fantasized past, and offer salvation from the jaws of despair. They deserve better.

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Throughout the book we try to demonstrate through the diversity of cases from one region of the world to another that in cases of interethnic conflict and minorities—the most common form of violence that currently produces refugees—not only is return not the preferred solution for these minorities (except in the abstract ideology), but attempted return is unlikely to resolve the problem. In instances where the refugees resulted from ethnic conflict and a solution is found in terms of return, it is result of force and not a right of return. This is the challenge that faces the international community: resolving refugee suffering in the short term rather than hiding behind eschatological promises. The problem of the return of refugees has to be contextualized in terms of the various types of individuals who are forcefully displaced, the different types of refugee situations, the options for resolving their status as displaced persons, and the method and approach adopted in dealing with the problem.

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No Return, No Refuge

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[ 1 ]

The Rites of Rights

Varieties of Return There are different kinds of return. The most contentious claim is put forth by an ethnic minority to return to a country or a territory and to homes from which they fled or were expelled as a result of a conflict. The claim is contentious because it is viewed as one or more of the following: a right; a moral policy; a necessary step to resolve an ongoing conflict. Whatever the perception, return of ethnic minority does not take place. Although the failure to repatriate is seen in each particular case as an exception and therefore a particular, egregious violation, the historical, empirical evidence suggests that such repatriations do not occur. The failure to return is not an exception but the norm; minorities are not able to repatriate. The dissonance between general beliefs and the actual politics creates an enormous political tension. Historically, there have been few cases where a minority has been repatriated; these exceptions will be explained later. But the general phenomenon of the lack of return remains empirically true. This contradicts the international general perspective. It is a reality that once recognized ought to have significant impact on refugee policies, on international humanitarian work, on conflict resolution, and on international diplomacy. But before we get there, we need to explain

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2 The Rites of Rights

why the dissonance and the worldview that return takes place are widespread. We argue that the misconception is detrimental to the well-being of millions of refugees worldwide and ought to be corrected in order to resolve protracted refugee crises. Not all returns are controversial. There are at least two types of return that are not contentious and are widespread. The first is when both the government and the returnees are happy with the outcome and there is no political difficulty. In this type of return, the returnees vary from citizens coming back to their own country for diverse reasons to the return from a diaspora to the “home” country, whether or not the returnees or their recent ancestors ever lived there. Liberia was settled by freed slaves from America in the nineteenth century as an act of repatriation even though most ancestors of the slaves had never lived in that specific region of Africa. Ethnic Germans from Eastern Europe after World War II (beyond the expellees) returned willingly even though they or their parents had not been born in Germany. More recently, the phenomenon has spread from Armenia to Latvia and Romania. Similarly, “expats” who escape trouble spots around the world suddenly return “home,” no matter how long they have been in another country, and leave the locals to fend for themselves. This was the case in Rwanda during the 1994 genocide. None of these types of return raise questions of a profound conflict of rights. Another type of noncontroversial return provides for a solution following a peace agreement. This usually occurs when the refugees share the identity with the majority of the people in the country to which they return. They do not “return” to a minority status where they used to live. The issue raised in these cases is not a right of return but a right not to be forced to return to a situation where they are likely to be in peril. Afghanistan would be a recent example where millions repatriated and millions did not. In contrast to these two types of return, the third type of return is the contentious one and is the subject of this book. It is analogous to the second type, but in this case the conflict is primarily ethnic or religious, and those who are displaced because of their identity demand their right of return. In these cases—where the refugees demand a return to a country in which they would be a minority after an ethnic conflict—the right of return clashes with politics. These refugees are sometimes also unwelcome in the places to which they flee. This aggravates their condition and is where the right

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3 The Rites of Rights

of return becomes especially contentious. This condition is even truer in places where the prospective refugees were once a majority. The claim of the right of return by members of such minority ethnic groups who fled or were forced to flee their homes is often transformed into the core of protracted crises and has, over the last generation, become a major issue of international debate. Within this group of prospective minority returnees, there is a debate whether the right applies whether or not the individual or the group held citizenship in the state that now controls the territory from which the flight took place. The answers proffered differ in various crises. Further, for many the right is also claimed to extend to the progeny of those who fled even though they were not born in this territory or country. This volume is intended to clarify the nature, extent, and applicability of the right of return in cases of ethnic conflict.

Varieties and Extent of Displacement Gross violations of human rights, war crimes, and mass violence have characterized modernization. Over the last two centuries, most countries inflicted violence on foreign and domestic populations leading to uprooting and the mass movement of people. As many as two hundred million refugees have crossed borders in the course of domestic and international political violence. Of those, many millions were repatriated; many millions were not. Most of those who could not return remained displaced for years, at times for decades and generations. From Rohingas who fled Burma to Palestinians in Lebanon, from Sudanese in Kenya to Bhutanese in Nepal, the current list of protracted refugee crises is long. Internally displaced persons (IDPs) are those who have been uprooted but have not crossed a recognized international border and therefore do not come directly under any international treaty that can offer them protection. More often than not in the current context, international agencies and NGOs can and do offer humanitarian relief for IDPs if they are permitted access. In addition to almost twelve million refugees, half in protracted refugee situations (as of 2008), there are an estimated twenty-five million IDPs in fifty-two different countries, over 60 percent of whom are at serious risk.1 A third category of displaced is stateless persons who may be neither refugees nor IDPs. Not all stateless people have been forcefully displaced.

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4 The Rites of Rights

Stateless persons lack citizenship in the state in which they were born and thus birth certificates and travel documents. They do not have the right to vote and often do not have the right to own a home, to receive health care or education, or to be legally employed. To which country can they “return”? “Illegal” (mainly Latino) immigrants in the United States fall in this category. The descendents of Indian Tamils brought to Sri Lanka to work on the tea and coffee estates by the British between 1820 and 1840 were an example of stateless persons. They were granted an opportunity to gain citizenship between 1964 and 1974 as a result of a bilateral treaty between India and Sri Lanka.2 But this is the exception. Another category includes refugees who have been integrated into their national group but retain their status as refugees. Serbia, for example, hosted ethnic Serbs from both Croatia and Kosovo; many maintained their displaced status because of political and property claims even though they were de facto integrated into Serbia.3

International Norms Despite these realities, there is a widespread conviction that all such refugees have and must retain a right to return. The right of return has a solid foundation based on a series of conventions and declarations, first and foremost article 13(2) of the Universal Declaration of Human Rights (UDHR) which states: “Everyone has the right to leave any country, including his own, and to return to his country.”4 Article 12, paragraph 4, of the 1966 International Covenant on Civil and Political Rights (ICCPR) stipulates a “right to enter his own country.”5 Article 1(C) of the Convention Relating to the Status of Refugees (28 July 1951)6 stipulates that it is up to the refugee to freely determine whether or not to return to the country of his nationality or, in other formulations, to the country of his “former habitual residence.”7 Regional human rights laws provide the right to freedom of movement and strengthen this interpretation. Advocates of the right of return view the obligation as wide-ranging, derogable only in an extreme situation, and then only for a limited duration (“in a time of public emergency”). Viewed in an inclusive manner, the moral support for repatriation is not limited to a formal state or nationality, but is rather wide-ranging, extending to what today would be designated by UNHCR as “persons of concern.” To the degree that international law

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5 The Rites of Rights

carries a moral force in the countries concerned, the international legal conviction that there is a right to return is a powerful moral and rhetorical position backed by UNHCR,8 other UN agencies, the General Assembly, and, more rarely, the Security Council. In addition, prevalent civil society endorsements contend that the right to return represents customary international law and applies in cases of mass uprooting since the justifying rationale presumes that there is no distinction between individual and group rights or return for those who were citizens versus those who are not, even though the legal discussion of return focuses on refugees as individuals. The prevailing civil society sense of a right of return makes no explicit reference to the question of nationality or citizenship but deals generally only with freedom of movement. Historically, only in the 1990s did UNHCR interpret the 1951 Refugee Convention as linking the principle of voluntary repatriation with a right of return.9 Previously, voluntary repatriation, though the only type of repatriation that emphasizes the exercise of free will, was explicitly qualified by reference to the disappearance of the causes of flight, thereby requiring full state cooperation in return. Since that time, UNHCR has linked refugee repatriation with the right of return and, more generally, with rights theory, but not with effectiveness in ensuring return. Using the yardstick of “international practice,” Amnesty International succinctly presents the claim: The argument that large-scale displacements are excluded from the right to return is contradicted by international practice, as evidenced in consistent calls by UN bodies for the return of large numbers of refugees and displaced, such as Palestinians, Afghans and Greek Cypriots and, in the case of the former Yugoslavia, by the enforcement of the right to return in the Dayton Agreement.10

“Practice” in this case is identified with rhetorical claims (“calls by UN bodies”) and not with the effectiveness and institutionalization required to deliver actual results. The chapters of this book are devoted to an examination of actual practices rather than to the rhetorical claims that assert what the practice is and should be. Only after we describe the empirical practice of (the lack of) minority return do we revisit the theoretical foundation of the claim and argue that it is far more limited than claimed by Amnesty International.

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6 The Rites of Rights

Repatriation, Property, Restitution, Compensation, and the Pinheiro Principles Return raises questions concerning rights to redeem lost property, the differences between individual and collective rights, the competition between and among different types of rights, the conflict between prioritizing rights or needs, and the more general issue of refugee and IDP protection. The 2005 Pinheiro Principles as presented to the UN Committee on Economic, Social, and Cultural Rights articulated a comprehensive commitment to support the expansive interpretation of rights as a basis for repatriation. According to Pinheiro, refugees alone can give up and abrogate the right to return voluntarily. They also have a right of restitution for their property. All refugees and displaced persons have the right to full and effective compensation as an integral component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when the remedy of restitution is not factually possible, or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.11

Opening the issue of compensation as an alternative to restitution is central to conflict resolution. Provision for compensation diminishes the objections of refugees to a political solution while enabling them to improve their economic situation. It begins the process of rehabilitation. The combination of loss of home and property makes the refugee feel bereft as if she had slipped into an abyss. In the absence of a property settlement and state membership elsewhere, no exit strategy is available; the only choice is to continue fighting. Giving up status as a refugee is perceived as also abrogating property claims. The hope to claim the property keeps many refugees in their dismal status and reinforces resistance to resettlement. The Pinheiro Principles recognize the possibility that the political situation may play a role and that compensation may provide a valid alternative solution. Serbs remained refugees in Serbia because they were afraid to lose their claims to the houses they left behind in Croatia (or the ability to be compensated for them). Such refugees prolong their

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own lack of citizenship and often elevate tensions, not because they are warmongering, but because they do not want to renounce or even appear to renounce property claims.12

The Pinheiro Report opened a meaningful alternative if restitution is not factually possible, though compensation was not presented as a universal principle but a pragmatic alternative to the exercise of a right. In cases where neither return nor restitution of property is feasible, and when the terms of a negotiated peace present the possibility of compensation, this may provide a new possibility to settle the conflict and a channel for the international community to invest productively in resettlement. Though property compensation may be regarded as the third best solution from the perspective of rights, compensation may be the most realistic and viable alternative from a conflict resolution perspective. Although the Pinheiro Report referred to compensation as “exceptional,” the discussion below may persuade the reader that the inability of minority refugees to repatriate and claim restitution of their property and homes is anything but exceptional and that, in cases of minority return, compensation may become the norm in practice.

Collective Versus Individual Rights In the discourse of rights, return and restitution usually are considered individual rights but refugee rights involve collective rights as well. The claim for a right of return is made on behalf of whole peoples and ethnic groups. Individual rights are matters of the relationship between individuals and the state, usually between citizens and the state of which they are members, and are claimed as a universal right, such as the right not to be tortured. Group rights connote two meanings: rights that accrue to members of groups as individuals and rights that accrue to the group qua group. Collective rights that apply to groups of individuals—children, women, manual laborers, foreign domestic workers—refer to them as individuals who belong to a discriminated group. But the right is individual. In contrast, our focus is on the collective right of ethnic groups as groups. Sometimes the collective rights of an ethnic or religious group refer to that group’s right of respect for its identity and ethos. Such demands usually arise with regard to a group’s language or set of practices. When the slights

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are perceived as matters of embedded discrimination, and when the group is of a considerable size and occupies a contiguous area, then the demands are conveyed as a question of self-determination and the group may insist on political autonomy or even secession. In the case of displaced refugees (or IDPs), the claim of return is made both on behalf of the whole group to have a right to return to its original homeland and on behalf of individuals in that group to return to their homes from which members of the group fled. Further, the right is also claimed on behalf of the children of those who fled, who were not even born in the homeland. Which right is superior if the right of individuals to return to the homes from which they fled clashes with the right of the group to return to its homeland when the latter can only be exercised if the individual right to return home is forfeited? The tension between individual rights and collective rights is evident when the formulation allows the individual to choose among various options—compensation, return home, return to the homeland but not home, local integration, or resettlement. Certain choices may undermine the group’s ability to exercise its right of self-determination. In other circumstances, collective rights may trump individual rights, for example when the right to exercise an individual right is qualified and limited by the right of the other community involved to ensure its own legitimate security concerns. At other times, individual rights may trump collective rights, as when some rights organizations insist that, in the final analysis, the choice must be given to the individual, who must be allowed to exercise that choice.13

Conflicts Over Different Rights The challenge is not only the struggle between collective and individual rights, but also among the policies we generally consider as virtuous when pursued by well-meaning people and examined in isolation. When these policies are contextualized, we often find a clash between various human rights, conflict resolution, and humanitarian aid solutions. The clash is manifested most clearly in the alternative ways in which different advocacy communities assist refugees.14 Human rights advocates stress protection of human rights. Conflict resolution analysts see peace as the first priority. Humanitarian aid agencies stress the provision of vital needs. Which should be privileged in a refugee camp? Should humanitarian aid

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be given even when armed militias control the camp and are likely to use at least some of the aid to perpetuate the conflict? Is security the paramount human right? And how is one to think of the multiple violations of rights in a situation where there is no security and widespread hunger prevails? In the absence of any formal authority, rule of law, or camp protection system, where the responsibility for preserving human rights is not assumed by anyone, who guarantees the protection of refugees in camps? Even more importantly, where is the coercive force to ensure protection of those rights? In the absence of functioning society, the right to return is most impractical. In the latter half of the twentieth century, rights advocates have increasingly emphasized the rights refugees should enjoy according to numerous international and national laws, conventions, declarations, precedents, and resolutions, particularly those sanctioned in that period. However, these claims generally lack any guarantee mechanism or authority. In contrast, the humanitarian NGOs and aid groups focus on the well-being of the refugees, their immediate living conditions—from sanitation, water, and food to health and education. As an emergency crisis settles into a protracted refugee situation, the humanitarian NGOs become unintentionally complicit in perpetuating a context in which the refugees enjoy few if any rights. Further, the refugee camps they maintain often serve as the rest and recreation habitat of the reserve army of those who use violence to pursue the political goals, including redress and self-determination. The conflict resolution constituency focuses on the long-term solution, though often divided between those who want to tackle root causes and those who favor more pragmatic solutions. Each of these goals could in principle supplement the others. Immediate assistance would be followed by negotiations where, on the way to peace, the rights of the refugees would be respected. In practice, complementarities are the exception. Usually different groups have alternative claims in each of these areas. Further, there are conflicting rights—self-determination, security, sovereignty, and minority rights—that rival ethnic and national groups prioritize in different ways. The competition for resources is particularly violent in the immediate aftermath of savage civil wars, precisely in the transitional stage where repatriation may still be feasible, before new claims are established in the places where the refugees used to reside. Finally, given impetus by compassion fatigue, the various mediators and conflict resolution theorists postulate that the best interest of all involved is establishing

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peace under sustainable conditions even if it means sacrificing the rights of the refugees. Consider the role of refugee warriors15 in the continuation of violence, both in the states from which they fled and in destabilizing neighboring states in which they find sanctuary. When refugees remain in limbo and live in camps, these camps become a base from which refugee warriors wage war and maintain their demand for political power, oftentimes as a right of self-determination or to fight against the regime in power or both. As will become evident throughout the book, protracted refugee situations often produce refugee warriors who, in turn, aggravate the conflict. More systematic attention needs to be paid to the role of refugee warriors as a critical source of violence and instability in a region, in the countries in which they find refuge, and for the countries from which they fled. In recent decades, rights proliferated and have come to cover all areas of individual and group life. In principle, each of these goals can be articulated separately. At times, there is no need to choose. However, in many situations, the political inability or the unwillingness to choose among these is a choice in itself. Prioritizing the indivisibility of rights— from economic and social to self-determination and redress—creates a discursive context that raises expectations but very often leads to a political dead end and aggravates the conflict. Our concern is focused on the need to articulate the cost of extending a conflict in the name of rights. Demanding an absolute right of return, viewed as the priority and sometimes-exclusive goal for settling the refugee situation, often perpetuates the plight of refugees. In the context of a protracted refugee situation, a peacekeeping agenda may impose a time limit on the provision of humanitarian aid. Both of these agendas can conflict with the rights of the refugees to return and, sometimes, even if inadvertently, the rights of warriors. However, without norms to determine eligibility for aid, refugee warriors flourish and exacerbate conflicts. The activities of the refugee warriors are reinforced by the humanitarian aid available in the refugee camps near the borders of the countries from which they came. These camps provide a source for recruits, an indoctrination center to encourage militancy, a source of material support from the rake-off from “surplus” humanitarian aid, and a place for rest and recreation (R&R) for militants. In addition, or alternatively, refugee warriors are made possible by the support, covert or overt, of other

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governments, in particular the government of the state in which they have found refuge, and from diaspora supporters. The character of camps and their operations may have little to do with the original cause of instability that made the refugees flee, but almost everything to do with the failure to find a solution for their lack of political status, reinforced by their own ideological beliefs and the support they receive or take from the local society and state as well as from the international community. This does not mean that the refugee warriors are not justified in their actions. The regime—as in the case of Burma—may be an oppressive military government that stomps on both individual and minority rights. It is perfectly understandable why humanitarian agencies and human rights NGOs would adopt the cause of the refugees as their own. However, this very same sympathy and identification with a cause, as righteous as it is in the abstract, may add to the problem of protracted refugee situations. Our intention is to highlight the tension among these conflicting commitments and to show that despite the predicaments—which are very real—in each situation one or the other of these three approaches will take priority. In Goma in the Democratic Republic of the Congo (DRC), it might mean the urgency of providing sanitation and fresh water even before disarming the génocidaires, or, alternatively, it might mean that without security and the disarming of the various factions, aid cannot be delivered and the priority must be placed on stopping the fighting and disarming both the Democratic Forces for the Liberation of Rwanda (FDLR), which is still largely made up of the génocidaires that perpetuated the genocide in Rwanda in 1994, and the remnants of National Congress for the Defense of People (CNDP). In Darfur, it might mean getting relief to the refugees even before trying to provide for peacekeepers or it might mean that neither can succeed unless they progress in tandem. There are no known international norms for prioritizing conflict resolution over rights, or humanitarian aid trumping both, notwithstanding the justified frustration rights advocates feel as a result. Human rights advocates obviously have a crucial role continuing to highlight the violations involved in the treatment of refugees. However, concurrently rights advocates must be willing to cooperate with conflict resolution work and to acknowledge that the right to security in some situations may supersede the indivisibility of rights. In this context of prioritizing values, redress for refugee suffering at the individual level may conflict with self-determination and national priorities, a lesson we can learn by analyzing the international beliefs and norms concerning these

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issues and comparing them with the historical and the empirical record to actually see how the tension was resolved.

Rights Versus Needs The international community approach to refugees is most explicit in the work of United Nations agencies. However, the two UN agencies for refugees exhibit in their mission and history very divergent approaches. The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) was established under UN Resolution 302(1) on 8 December 1949, and the United Nations High Commissioner for Refugees (UNHCR) was established in 1951. UNRWA was formed according to the practices extant prior to World War II and was akin in its humanitarian mission to the United Nations Korea Reconstruction Agency (UNKRA), which was set up in 1950 for Korean refugees. While UNKRA was wound down in 1958 after the refugees were integrated in South Korea, UNRWA remained active and grew, providing services even in countries where the Palestinian refugees were given citizenship, as in Jordan. Until 1952, UNRWA serviced both Arabs and Jews who lost both their homes and means of livelihood as a result of the Arab-Israeli 1948 War. When Israel assumed responsibility for Jewish refugees in 1952, UNRWA restricted its operations to Arabs and to Jordan (which had annexed the West Bank), Gaza, Lebanon, and Syria. In 1948, many of the refugees fled from one part of Palestine to another—the West Bank and Gaza. Nevertheless, they were called refugees rather than IDPs even though Palestine was the designated homeland for Arab Palestinians under the partition resolution. Further, UNRWA’s mandate became applicable to the descendents of those refugees. Unlike UNHCR, which was established on a rights-based definition of a refugee, though not, as we shall see, on a right of return, UNRWA was established by defining refugees in terms of needs; it was a relief and rehabilitation agency and initially was designed to focus on the economic integration of the refugees into their host countries, but subsequently developed into the education, health, and welfare agency for Palestinians registered as refugees in 1950, as well as their descendents. Their combined numbers totaled 4.5 million in 2007.16 The organization does not have a mandate to find a durable solution for the Palestinian refugees.

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In contrast, the first item mentioned about UNHCR17 on its website is that it “protects” as well as supports refugees; in addition to facilitating the provision of humanitarian assistance, UNHCR now “assists in their return or resettlement.” This differs from the original fundamental premise of UNHCR when it was founded, which was based on and emphasized the principle that no contracting state may expel or return (refouler) a refugee against his or her will to a territory where he or she fears persecution. The right was a right not to be returned. One of the ironies of the international refugee regime is that the refugees defined by need who fall under UNRWA auspices were given what became interpreted as a right of return, while refugees defined under a rights principle, those under UNHCR auspices, were guaranteed a right not to be forcefully returned. Further, a refugee is defined in terms of fear of persecution. According to article 1(2) of the Refugee Convention, a refugee is any person who was forced to flee across a border because of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

According to the Convention, refugees who voluntarily reavail themselves of the protection of their country of origin or who accept citizenship in a new country are no longer refugees. Thus, convention refugees are defined by subjective fears of persecution that are established as well-founded, and by lacking membership in a state where the rights of the refugee will be protected. However, the vast majority of refugees in the world are not convention refugees but humanitarian ones who have fled to escape violence rather than because they were targeted for persecution. Only some refugees who flee violence are also convention refugees. Convention refugees are frequently referred to as asylum seekers, though self-evidently not all asylum seekers are convention refugees. Further, among those who fled violence, those forcefully displaced who have committed serious crimes or crimes against humanity or who take up arms are not legally classified as refugees.

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UNHCR was given a mandate to seek durable solutions for all refugees who fell under its broader mandate. By the end of the 1980s, return was perceived as the preferred solution and best way of protecting all nonconvention refugees.

Protection One way to protect victims of ethnic conflict who are uprooted is to use diplomatic tools, economic pressure, smart sanctions, or even military intervention to force regimes to allow the forcefully displaced to return to their homes. The object of such action will often include returning the displaced to their homes, as in the Balkans. However, as we shall demonstrate, this was spectacularly unsuccessful except in Kosovo where the Kosovars returned, but then only with NATO’s military defeat of the Serbs. Further, minority protection  has been selectively interpreted. There has been no real pressure by NATO or the United Nations to have the Kosovars reintegrate the displaced Serbs back to Kosovo. Further, protection for the Serb minority remaining in Kosovo has been weak. The appearance of protection may contribute to misleading minorities and serve to encourage them to continue violence in the hope that military intervention from the outside will contribute to their cause and reestablish the status quo ante. The real alternatives, however, are between accepting the results of the crime or conflict and taking the best possible action for the refugees (the realistic and moral choice in most cases), or trying to reverse the results but, most likely, perpetuating the plight of the refugees, leaving them in limbo and in horrific conditions for years and even decades. It is a tough ethical dilemma.

Historical Overview We will examine in detail the issue of a right of return in the twentieth century in chapters 2 and 3, but it will be helpful to provide a brief historical overview before we outline the argument of this volume. The history of the refugee regime in the twentieth century can be divided into three periods: (1) before 1948–1949, characterized by expulsion and no protection; (2) the Cold War, when asylum and resettlement were the main response; and (3)

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since the late 1980s, when repatriation became a privileged policy and, in the absence of implementation, has been formulated as a right. The origin of protracted refugee crises goes back to the mass slaughter in both world wars, the new international refugee regime that emerged out of the demographic and nationalist policies extant in the wake of World War I, and the way these were formalized in treaties. Previously, refugees who fled repressive governments were free to migrate to help forge new states. In the new regime following World War I, passports were introduced, entry was limited, and borders became barriers. Nations were to have their own states. Minorities were afforded protection or moved en masse to polities where they were to be part of the majority. Borders were realigned. The old diplomatic Viennese authoritarian system based on government continuity and preservation of a stable order of states and empires was replaced by a regime of communal rights that favored nation-states, national self-determination, population exchanges, and, ostensibly, the protection of minorities. Nationalism and even racism became the new ordering principle. Individuals who challenged that order were subject to persecution; outsiders could not interfere. Though somewhat inaccurate as a summary depiction, as a broad sweep, it is said that following World War I borders shifted and people were moved; in the aftermath of World War II, people moved and borders were reified.18 During the second phase after World War II, a new regime of international organizations evolved concurrently with the growing nationalistic, exclusionary structure of international politics. The regime was formalized in treaties, international agreements, and conventions that heralded the beginning of human rights, including at their heart the humanitarian care for refugees. This new order failed to prevent widespread bloodshed and sacrifice or to create a new stable polity, but, nevertheless, remained in place in the immediate years after World War II. Under this new dominant regime, changing borders became the exception. The (rhetorical) obligation to protect minorities within states was abandoned. States became self-enclosed, reified entities as the doctrine of nonintervention in the domestic affairs of states ostensibly reigned. The new regime was based on individual rather than communitarian human rights, including the rights of individual refugees not to be returned to a persecutory regime that had targeted them. This was correctly dubbed a revolution in the international regime as states willingly qualified their sovereign authority, created a specific regime of rights for refugees, and allowed individuals

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who legitimately feared persecution to claim the protection of a state of which he or she was not a member.19 States that abused their own citizens became subject to criticism to try to shame them into behaving in accordance with the new rules. Group communitarian rights were upheld as an expression of individual rights. In the new post-1948 evolving regime, refugees who fled en masse from violence and conflict preserved the right of return to once again take up their rights as individual citizens in the polity from which they had fled and in which they had been citizens. But the states from which they fled could not demand their return except if they were charged with a criminal act. The long hand of domestic law was now restricted by international human rights law. However, this left in limbo those individuals who fled but were not members of the successor state that claimed the territory from which they fled. However, the era of sanctioned forced population exchanges that legitimized the realignment of borders was ostensibly over. The sagacity of a system built on the protection of individual rights was offered as the new panacea to prevent mass slaughter and individual persecution. A new system emerged rooted in fears of mass destruction. The downside was that populations remained hostage to the abuses of their rulers mitigated only to the extent that the regime’s oppressive techniques could be softened through international shaming. Though the international system could increasingly insist on a right of return, there was no enforcement mechanism, and the system hit a wall when it came to refugees who had not been citizens of the state formed after a violent conflict. Thus, however significant the shift expressed by the new regime, its limitations are extensive. In response to the exile of millions of refugees worldwide, refugees would only be given protection if they could prove they were individually persecuted. Except for the dissolution of colonialism, the new mantra was individual rights not collective self-determination. Although most refugees were subject to persecution because of their identity and membership in a group, as individuals their recourse was limited. This phase in the development of individual human rights began in earnest in 1948, when the United Nations approved the Universal Declaration of Human Rights and the Genocide Conventions within a day of each other. These accomplishments were quickly followed by the Geneva Convention (1949) and the Refugee Convention (1950/1951). These early days of forming an international human rights regime expressed the politics of hope

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and the development of a European and even an international legal protection regime, a doctrine that became a staple of post–World War I conventional legal scholarship. But the remnants and aftermath of violence haunted the resolution based on individual rights of the refugee problem. This flurry of activity to establish new rights and protections took place as the international community was reeling under the weight of some of the largest ethnic expulsions ever. Tens of millions fled or were forced to flee in Europe and Asia. Most have largely disappeared from global political consciousness. Others, primarily the Palestinian refugees, remain an open wound in international politics. Following World War II, a war that was understood to be the result in part of irredentism, one solution imitating prewar practices set off widespread ethnic cleansing to produce national homogeneity when neither ethnic nor cleansing were yet political concepts. Nevertheless, the expulsions were very much political realities. The norm of the mass transfer of populations faced very little opposition. Many viewed it as preventing future conflict. In addition, revenge may not have been a virtue, but it certainly legitimated these expulsions. The Czech justification in the United Nations for expelling over two million Germans—“we have suffered more than many delegates in this room can imagine”—was given by the representative of a most liberal government. The horrors of the war’s aftermath could only be comprehended against the devastation of the war.20 Even as the new individual human rights regime emerged, the Cold War stalled hopes for a moral world on a global scale, but at least a global conflagration did not take place. Contained violent conflicts continued and the number of refugees escalated. Devastations and even genocides took place from Biafra to Cambodia.21 Committed but detached spectators to these crimes spoke the language of international morality as the language of global human rights evolved in small steps. A few NGOs captured the world’s attention, most notably Amnesty International. The focus was on individual protection. Notwithstanding the rhetoric, the major powers were cautious in their actions and stayed away from promising to protect rights of self-determination except in dismantling the remnants of the colonial world. Western states no longer pushed to defend minorities and only protected the rights of the persecuted not to be returned if they escaped their oppressors. In the intervening decades of the Cold War, the anticolonial struggle and domestic civil rights became the focus of public activism. The human rights regime gained momentum. Aspirations increased. The collapse of

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communist regimes was significantly impacted by human rights discourse and amplified demands within the communist countries for embryonic human rights. The victory emboldened activists and organizations globally and led to new peaks in human rights demands. The third phase began with the accelerated changes in the refugee regime in the 1970s and 1980s. A confluence of events led to the reformulation of the policies of repatriation that began with the dramatic rise in the number of spontaneous arrivals of individuals claiming asylum in Western states. For example, in Canada, which was in some sense at the end of the refugee chain, the number increased from hundreds of asylum seekers in the early 1980s to tens of thousands by the end of the decade.22 This coincided with the growth of the rights regime in the West, which meant increased protection for asylum seekers. The increased protection involved legal procedures that transformed the process of dealing with a refugee claim from an administrative to a quasi-judicial procedure in which the refugees were represented by lawyers or refugee consultants and had a right to an oral hearing. The legal process became exceedingly expensive. The Indochinese refugees fleeing in the 1980s presented the prospect of ever-increasing numbers and a process that only served to attract more refugees. The international community began to view the repatriation of refugees to their home country as the least costly way to resolve the plight of refugees. In the 1990s, the policy was extended to IDPs. The treatment of and response to the Indochinese refugees provided the tipping point from an emphasis on resettlement to a new stress on return. The shift was triggered in part by the belief that the refugee resettlement programs aggravated the refugee flow by providing a magnet for more movement, a socalled pull factor.23 In that context, the multiplication of refugee situations, sometimes on a massive scale in Asia and Africa, made the proposition of resettlement appear unsustainable. Further, with easier communication and transportation, refugees began to use the individual-based refugee protection system developed around the 1951 Convention to arrive spontaneously in Western countries to claim protection as a matter of right, threatening the ability of states to manage and control inflows. Increased numbers and costs led also to fears— subsequently realized—that Western countries would respond by prevention and intervention strategies, including interdiction, the introduction of visas, and the use of detention. A parallel movement among aid and development agencies began to focus on

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economic development in the home country of the refugees as a means of reducing the push factors that impelled them to leave their homes. The most critical question was of permanent settlement in the first country of asylum. This was met with great resistance in most refugee cases, leading to the development of containment strategies that included a vast increase in the creation of refugee camps, new restrictions on entry, the development of a set of interdiction tools to prevent refugees from even reaching a state’s air and sea ports, reinterpretations of the Refugee Convention, and a new emphasis on return. Historically, the predominance of the rhetoric of the right of return in international politics did not result from a philosophical or ethical reevaluation, nor from a structured rethinking of policies or values, but as a stopgap measure and a response to political pressure. The inability to respond to the Indochinese refugee crisis in the late 1980s was turned from a policy failure into a virtuous stance. As this shift was taking place, the end of the Cold War led to numerous changes globally, including new civil wars, easier travel from many previously inaccessible countries, and new flows of people. Academics and high officials tried to shift attention to root causes, a shift that could be linked to the romantic phase of humanitarian intervention. Similar to the first phase of a spate of human rights legislation (1948–1951), the 1990s witnessed increased human rights activism. This took place in the face of a dramatic climb in violence and ethnic cleansing. As genocides became more apparent and ethnic cleansing became a household word, the emphasis on subsuming a solution to the refugee crisis within a language of rights became more insistent. At the same time, the moralist regime championing individual human rights revealed itself as largely impotent in the face of mass persecutions. Under the mantra of individual human rights, refugee return became the desired resolution. The optimal goal was the repatriation of refugees to their place of origin, where they would be protected by the regime under the watchful eye of the international community. This was viewed as the preferred solution, even in cases of minority return. The discrepancy between the moral ideals of repatriation and its implausibility in the real world in cases of ethnic conflict, however, did not lead to any reevaluation of the principles or the language of rights that informed these policies. Instead, repatriation was often seen as resurrecting refugee rights.

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The Failure of Return Physical return, in contrast to rhetorical claims, takes place under two conditions: primarily as majority repatriation and, in exceptional cases, as a result of a military victory. Majority repatriation in general works well and is the best solution for large-scale displacement. Minority repatriation does not work well. In this book we argue that refugees and displaced persons who are minorities and are products of ethnic conflict, do not, in practice, enjoy any right of return. Furthermore, when the right of return is adapted as a slogan or a principle to govern policy, the result appears to prolong misery for the refugees and, in addition, deprives them of their rights to determine their own destinies free of ideology. It is depressing to hear experts discussing the wide-scale displacement in Iraq and declaring that return is the only solution, asserting that resettlement is impossible and allowing the lack of solutions to condemn the refugees to continuous suffering. Further, previous studies have established that there is no correlation between peace agreements and the return of refugees to ensure cessation of hostilities, even when refugee and IDP repatriation are both built in as clauses in the peace agreement.24 The conclusion is unfortunate but has to be faced head on if the challenge of ending displacement is to have a ray of hope. Our empirical conclusion is that, based on rights, we did not find any significant refugee return to an area where that refugee group would constitute an ethnic minority, unless supported by a preponderant use of force. The first challenge is to recognize the dissonance between the belief in the right of return and its lack of implementation in cases of minority displacement. The second challenge is to formulate a policy of rehabilitation. In various ways and guises, the prime bearers of these fantasies of return may, in some cases, be the international agencies even more than any refugee. In Bosnia, the international community invested enormous resources and achieved an underwhelming result; ethnic reintegration was minimal and sparse. The exceptional return, though not based on rights, was used to enhance the mistaken belief in rights. The point is not to discard those beliefs, based more on rites than rights, but to analyze them in relation to reality. In the very few cases when minority returns take place, they result either from force and military victory (Rwanda) or from state population policies, as in the case of the Crimean Tartars’ return as part of the Soviet and post-Soviet policies that involved massive population movements but very few rights.

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Historical forces demonstrate unequivocally that rites, not rights, prevail in the absence of realistic options for repatriation. A group culture privileges the nostalgia for the lost home, and it becomes the core identity of the displaced. In such cases these rites are divorced from reality. Scholarship, though, can demonstrate the increasing political cost of those rites and the chasm between dreams and reality. The impractical prospects of return lead not to increased security and economic improvement for the refugees, but to real despair, continuing political struggle, political impotence, and, even worse, corruption of the body politic and distrust of anything emanating from it at the local and national levels. Thus, we focus on ethics and oppose moralism. Moralism in this context is rooted in abstractions and pure and absolute concepts of rights and the good. Further, moralism, when propelled by self-righteousness and conjoined with nostalgia, becomes a source of alienation and despair. In contrast, ethics is rooted in the need to take principles and apply them to harsh realities. Judgments are necessary. The dilemma is not to find a “good” solution or one based just on abstract, aspirational rights, but to find a solution that is not as bad as other solutions. We look for the least bad option in seeking the way out of a terrible dilemma. At the same time, this allows us to clarify the meaning and applicability of a right of return. The major lesson is that the policy has to focus on the responsibility to prevent. For once suffering occurs, the options available are limited and all are bad. Then we can only choose the least harmful. There is some optimism, however, for various constituencies working with refugees—peacekeepers, humanitarian and rights organizations—are learning to put their particular perspectives to one side and create more coherent responses to the real plight of the refugees. Further, many refugees themselves seem very open to these new solutions that emerge. There are numerous examples. For example, in 2004, Kofi Annan’s plan for Cyprus called for the nonrepatriation of refugees and allowed most Turkish settlers who were brought into Cyprus by Turkey (the occupying power) to remain, despite the long-standing criticism of the population transfer that took place during the Turkish invasion of Cyprus in 1974. The rationale was that too much time had passed to reverse the situation, a position that presented the UN perspective and was endorsed by Greece, Turkey, and the European Union. The Greek Cypriots objected to and rejected the plan, in part because it did not call for full repatriation; Turkish

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Cypriots who objected (a minority) feared creating tens of thousands of their own refugees. The Greek Cypriots were widely viewed as the offending party for rejecting the agreement and insisting on repatriation instead of resolving the conflict. Kofi Annan clearly did not present a claim for a right of repatriation. The specific report included a complex mechanism to redress the losses of the refugees, to facilitate restitution and reparation, and to find a balance between the developments in human rights law—judgments in the European Court, the decisions concerning Bosnia (primarily Dayton), the specific situation in Cyprus—and the time that had passed since the crisis almost forty years earlier. There was neither wholesale repatriation nor a sense that rights should trump security and peace considerations. The international community view, if one reads the Security Council endorsement as a manifestation of the international community, is in support of the principle that the resolution had to be pragmatic. It was neither a rejection of redress nor a statement of supremacy of any one interpretation over a political solution. In making any suggestions I took into account these developments and the positions adopted recently by the United Nations and the international community in the former Yugoslavia, but also the fact that the events in Cyprus happened 30 to 40 years ago and that the displaced people (roughly half of the Turkish Cypriots and a third of the Greek Cypriots) have had to rebuild their lives and their economies during this time.25

The compromise and the property board focused on local individual solutions, avoiding changing the political status quo or remixing populations. The board was strong on attending to the individual disposition and to compensation, but explicitly aimed at encouraging the dispossessed individuals to resort to claiming compensation and not to try to repossess their previous property, even if under the complex system it would have been permissible.26 The European Union was willing to bend its rules and subscribe to the limitation of free movement within the proposed unified Cyprus so as to accommodate the reunification and thus limit the right of the refugees to go back to their homes. This was a pragmatic, negotiated proposal that trumped repatriation and even the more clearly established the right of free movement. The primacy of repatriation and, even more, the notion of

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rights would have suffered a serious blow from the attempted pragmatism in Cyprus had repatriation been considered an absolute principle or right. In the final chapter we will offer a theoretical justification for a limited conception of a right of return. In one other example, Abkhazia’s war of secession from Georgia (1992– 1993) led to the ethnic cleansing/fleeing of over two hundred thousand Georgians and a de facto internationally unrecognized independent Abkhazia supported by Russia. The United Nations, through the Security Council and the General Assembly, has declared on different occasions the refugees’ right of return. Indeed, about sixty thousand Georgian refugees returned, not necessarily to their homes, but to a region in Abkhazia (Gali District) where the Georgian population is a majority, a region not included in the Abkhazia recognized as independent by Russia after the 2008 war. The international declarations did little either to resolve the conflict or to facilitate repatriation. The right of return was seemingly more present in New York than in the region and had no impact on the ability of refugees to implement it, a fact that became very evident following the brief Georgian War in 2008 and the Russian intervention and subsequent recognition of the independence of Abkhazia and South Ossetia. At times, both refugees and international advocates fall into the trap of treating the right of return as a rite. Though only a part of these populations, these voices are certainly prominent in public discourse. This book will document the challenges of a right of return without the use of force in cases of ethnic conflict, explain why this is the case, suggest a more limited conception of a right of return that is not a rite, and explain this conception’s theoretical underpinnings. The ultimate goal is to draw the attention of the international community to the current, misplaced good intentions on behalf of refugees and urge those in positions to make or influence changes to focus on the well-being of the refugees and on rebuilding their lives before resolving issues of self-determination and the identity of groups, so that generations of refugees do not languish in the interim.

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[ 2 ]

The Right to Expel as an International Norm: 1900–1945

This chapter explores the genealogy of the right of return. Some claim the genealogy goes back a century and more. We explore this presumption as well as the claim that the right of repatriation is linked to the right not to be expelled in order to grasp how return came to be established as a right both in terms of policy and as an aspiration. Historically, we examine the claim that since expulsion is now considered wrong, it always must have been wrong; therefore, it must be reversed. We briefly trace the history of ethnic expulsions to show their wide international legitimacy until the post–World War II period. States not only were perceived as having the right to expel their own citizens, but population transfer was presented as contributing to other positive policies such as self-determination, nationbuilding, and the homogenization of the nation. In an era when population transfer has been renamed ethnic cleansing and is regarded as a gross violation of human rights and a kissing cousin of the ultimate evil, genocide, it is critical to remind ourselves and document the period when ethnic cleansing was viewed as a legitimate and beneficial policy. This historical overview is presented neither as a policy recommendation nor as a moral alternative but as a critical context for understanding the genealogy of repatriation.

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25 The Right to Expel as an International Norm: 1900–1945

Repatriation and the Reversal of Ethnic Cleansing Those who like their history stable and linear offer the exceptional claim that the Magna Carta of 1215 contained “a ‘right’ to enter ones’ own country with the concomitant obligation on the government to respect that right.”1 Others, with less expansive vistas, hope to establish repatriation as a right grounded in international custom throughout the twentieth century,2 going all the way back to The Hague Peace Conferences of 1899 and 1907, which first established rules for maintaining peace and minimizing war— even though the topic of refugees was entirely absent from those conferences.3 The lacuna in the Hague documents is sometimes justified by the historical “fact” that deportations were an ancient practice that had ceased to exist. However, this claim seems most improbable and overlooks the massive deportations of indigenous peoples in various imperial colonies in the Americas, Australia, and Africa. Those deportations, it is true, were not likely to have been recognized by the politicians of the day who focused on Europe, not on the “lower” races. But the very belief that deportation was part of the discussion requires an unwarranted leap.4 Another potential precedent for criminalizing expulsion in international law and embedding repatriation as a right is the Havana Convention Regarding the Status of Aliens, 20 February 1928. The Convention, coming soon after the mass population transfer between Turkey and Greece, did not deal with mass ethnic transfers. One cannot find a pre–World War II international instrument upholding a right not to be displaced, let alone a right to be repatriated. What about actual pre–World War II practices? Here the evidence is even greater that there was neither a right not to be expelled nor a right of repatriation. Any attempted repatriation of minorities had been a disaster, such as when the Christian minorities attempted repatriation into Turkey. The 1923 Treaty of Lausanne legitimized Turkey’s refusal to repatriate Christians and its expulsion (and repression) of minorities. This was not the exception but the norm. Ethnic cleansing was legitimized, not the right of repatriation. The prohibitions against expulsion and any right of repatriation were not accepted as norms even by the end of World War II. The historical grounding for the illegality of population expulsions is wrong. So is the logical connection claimed to link the two. If ethnic cleansing is not to be rewarded with success, so the argument goes, not only

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must perpetrators be brought to justice, but the displacement must also be reversed. Therefore, there is not only a right of return, but that return must be enforced to protect and deter. This view is now pervasive; it is argued on the basis of both international norms and historical precedents and practices. The right to return must be defended lest ethnic cleansers be rewarded with victory. The claim that minority return is the general practice is a wishful assertion, not an empirical view. Historically, ethnic expulsion has been reversed only by military force, while the political focus on the right of return has never resulted in a physical reversal of the displacement of an ethnic minority. Thus, the assertion of a right provides, in certain instances, a moral cover and rationale for the use of military force and serves to perpetuate leaving refugees in limbo, waiting for the illusive right to be implemented. The discussion of repatriation or the right of return grows out of the current, widely accepted perceived right not to be expelled. Politically and conceptually, two different rights/claims need to be distinguished: (1) the right not to be expelled and (2) the right of repatriation. (A third issue, the question of redress, is derivative and does not appear in the legal discussions.) Indeed, repatriation was not presented as a preferred policy, let alone a right, until the last half century. So while we discuss the question of when expulsion—population transfer—became illegal, it ought to be recognized that the discussion of repatriation is derivative. It is not a legal conclusion. If people have the right not be expelled, therefore, they have a right to return. This is the presumed logic. However, as we know from criminal and even civil law, the necessary connection between violations and amends is anything but straightforward. This connection between the violation (displacement) and the remedy (repatriation) does not exist in the literature.

Ethnic Cleansing and Genocide The practice of expulsions of whole populations by victors in wars goes back throughout recorded history. In the eighth century b.c.e., the Assyrians forced entire conquered populations to resettle in other regions in the empire. The Israelites vanished from history into the mythology of the ten lost tribes in one of the earliest narratives of ethnic cleansings.5 Many others have suffered a similar fate; often few survived to tell the tale.

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Since the late nineteenth century, the practice has often been viewed as integral to modernity and nation-building. In the twentieth century, the ethnic cleansing of populations, dubbed “population transfer,” took place in various political situations, even during peacetime, and was sanctioned internationally and by mutual agreements between and among states. In fact, there was general positive support of population transfers by most countries and the international order in the first half of the twentieth century. As the policy lost legitimacy in the second half of the twentieth century, its naming has become a question of politics and identity, framing the public understanding of the event. This is particularly true in determining whether the mass violence amounts to ethnic cleansing or genocide. The naming crystallizes the dilemma of whether the historical “event” is defined as a violent massacre (that occurred very frequently), a process of ethnic cleansing (a far less frequent form of violence against a group), or a crime that dare not speak its name, genocide. The fast growing literature on genocide and ethnic cleansing suggests that the application of either category to a particular case can be both difficult and contentious.6 The notion that a single category could provide a litmus test to define all conflicts and violent catastrophes along a single, linear definition may be misplaced. Variations and specific aspects of these catastrophes suggest that it is unlikely that the horrific violations would correspond to one kind of crime in a consistent manner. Further, the eight thousand killed in Srebrenica—adjudicated as genocide by an international court7—is no more or less horrific than the killing of millions in conflicts that certainly do not qualify as genocide. Is Darfur an example of clear and unequivocal genocide or a long-term policy of slow killing (genocide by attrition) or perhaps a ruthless attack on the African agriculturalists in the west of Sudan in a combination of political rivalry and a struggle over natural resources? The definitional issue has become the subject of heated scholarly and political debates. So has the controversy over whether the means of colonial expansion in North America over several centuries constituted genocide or not. The course and resolution of such a debate has a dramatic impact on the role history plays in contemporary politics. Yet, the type of label may or may not have an impact on the international response to crisis situations. The determination of the Sudanese actions in Darfur as a genocide by the United States seems to have made a great (if temporary) difference to the debate over Darfur, but little difference in the resultant actions taken to combat the violations.

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Our focus is on the refugees who result from genocide, ethnic cleansing, or population exchanges. Although we do not imply that these three categories are criminal in the same way, the policies involved are comparable in creating refugee crises. These cases of mass violence are unexceptional, even if genocide is rarer than ethnic cleansing and ethnic cleansing, in turn, is rarer than population exchanges.

Ethnic Cleansing in Historical Perspective Since the Middle Ages, religion has been the primary rationale for expulsion in Christendom. Religious minorities were periodically subjected to forceful displacement and banishment whenever tolerance of other religions waned. An important transition into modernity in Europe was marked in Spain by the mass eviction of the Jews and the Moors in the fifteenth century. In the prenational days of Europe, most refugees were victims of religious persecution. One of the more notable examples is the French Catholics who slaughtered the Protestant Huguenots and then exiled any survivors. This was the first time in modernity where the term “refugee” was applied, hence its French derivation. Expulsions were not new phenomena, certainly not in the New World, where colonialism entailed massive evictions. These were racial expulsions of people viewed as “Other” and who had to be expelled or disposed of in new ways. Racial expulsion was most thorough in the United States, where variations on the Trail of Tears removed whole peoples, freeing their lands for the new settlers. There are numerous examples, including South Africa, where the Afrikaners expelled the Africans and inherited much of the land. In Namibia, Herero were killed and expelled in what is now recognized as the first genocide in the twentieth century.8 Both national and racial animosities were transformed after World War II into ethnic rivalry, but it took until the 1990s for expulsions to be renamed ethnic cleansing. Once the new category came into widespread use, many previous expulsions and refugee movements were renamed. Ethnic cleansing in the modern world was characteristic of political transition, most often of imperial expansion or disintegration followed by the rise of the nation-state. The consolidation of the nation-state and the sorting out of rival ethnic powers led to additional population shifts and expulsions.9 The modernity of the refugee displacement resulted in

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part from technological developments that made the travel and transfer of people easier in the process of the homogenization of the nation-state. The pace and the numbers of early-twentieth-century refugee displacement gave contemporaries the impression that the displacement was unprecedented, though of course there had been earlier instances. The novelty the “modern” refugees faced was not the displacement itself, but rather the increasing lack of alternatives for resettlement. First came the gradual reduction in American immigration starting at the end of the nineteenth century, followed by a dramatic reduction after World War I. This transformed earlier migration trends into refugee crises. The American closure of its borders was followed by the same practice in the British dominions and later in Latin America. Shifting over the decades, the definition of “refugee” differed at that time from our current understanding, but there is little dispute that refugees differ from ordinary migrants because of the abrupt and dire circumstances that force them to leave their homeland as well as their inability to find a new home. As the nineteenth-century havens disappeared, the modern refugee was born. The nation-state was viewed by both contemporaries and historians as the main political culprit of the new refugee crisis. In central East Europe, the process was accentuated with the disintegration of the Ottoman (the Balkans, Anatolia) and Habsburg empires, the transformation of Russia into the Soviet Union, and the violence of Nazism. Each political transformation killed millions and created even more refugees. Thus, for example, the main refugee crises following World War I included Poland, which had about one to two million Polish refugees from other new states, including the Soviet Union; Hungary, which received three hundred thousand refugees; Germany, which had about one million refugees; and Russian refugees, which after the war numbered between one and three million. The list goes on. Before World War I, the consequences of expulsion used to be mitigated because refugees were generally welcomed as assets. As transportation eased, the global population grew and the world became urbanized. This increased pace of change transformed the perceived and the actual population density. Only in the twentieth century did border control become widespread along with immigration restrictions. Despite these early restrictions, Europe remained relatively open for certain refugees compared to the end of the century when limited asylum had become a global fact.

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During the twentieth century, there were close to two hundred million refugees worldwide. We should pause in stating this number: only in the late 1960s did the total US population reach that size. This is five times as large as the total French population at the beginning of the century. This figure should be seen as an order of magnitude rather than a precise statistic. A refugee crisis often takes place in the midst of political anarchy and war, which aggravates both the suffering and the dispute over the number of refugees. Even refugee crises that are spared explicit competition over resources or redress are nonetheless often subject to a dispute regarding the number of refugees. How many refugees were expelled, uprooted, chose to leave, died? The contentious terminology and the issue of numbers permeate most crises. A case in point is the Armenian genocide, where, in addition to the debates over the intentions of the Turks, much revolves to this day around the enormity of the tragedy and its quantification, measured to a great extent by the number of victims. These predicaments remain a subject of continuous political quarrel and bedevil the rehabilitation of the refugees. Furthermore, even in counting, not all refugees are treated the same. The figure of two hundred million does not include refugees from natural disasters, such as Tokyo’s earthquake and conflagration (1923) or the Yangtze floods (1931); those victims numbered in the millions. In addition, many war victims never received recognition, let alone help, and often are excluded from both memory and counting. This was largely the fate of the estimated thirty million Chinese who were internally displaced by the Sino-Japanese conflict between 1937 and 1939 but who were ignored as refugees. During the last century there was a several-fold increase in the number of refugees. In the nineteenth century, refugees in central Europe numbered in the thousands and tens of thousands. The number grew to the hundreds of thousands in the Balkans before World War I. During World War I millions more became refugees, and their number increased further in the aftermath of the war as a result of expulsions that followed civil and local wars, primarily in Russia and in the war between Turkey and Greece. In the 1930s, a constant flow of new refugees, whether from Nazi Germany, Spain’s civil war, or, in even larger numbers, Asia, continued to grow. All previous experience was dwarfed by World War II, the Holocaust, and the immediate postwar years. However, from 1949 until Yugoslavia’s breakup, no major ethnic expulsions appeared in Europe as millions were expelled in other parts of the world.

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The Balkan Wars In hindsight, the century between the end of the Napoleonic Wars and World War I is considered a “peaceful” period in European history, as most of the wars Europeans fought were with the Ottomans or against native populations around the world as empires expanded. Despite the growing Prussian domination of parts of Europe, which included “local” wars, there was no general continental war let alone a “world war.” The Ottomans were defeated for the last time in the Balkans in 1913 by an alliance of states, whose members promptly turned around and cannibalized each other. Those two Balkan wars, involving armies totaling 1.5 million soldiers, produced the first massive refugee crisis in twentieth-century Europe in which refugees numbered in the hundreds of thousands.10 Many fled Europe to Constantinople; others settled in Bulgaria. The twentieth century ended in the (western) Balkans in a similar vein. In 1914, as the “peaceful” century came to a close, the Carnegie Endowment for International Peace published a report about the last of the local and peripheral wars that marked the first disintegration of empires in twentieth-century Europe. The modernity of destruction and national annihilation already characterized the new wars: The local population is divided into as many fragmentary parts as it contains nationalities, and these fight together, each being desirous to substitute itself for the others. This is why these wars are so sanguinary, why they produce so great a loss in men, and end in the annihilation of the population and the ruin of whole regions. . . . The populations mutually slaughtered and pursued with a ferocity heightened by mutual knowledge and the old hatreds and resentments they cherished. The first consequence of this fact is that the object of these armed conflicts . . . was the complete extermination of an alien population. In some cases this object expressed itself in the form of an implacable and categorical “order”— to kill the whole male population of the occupied regions.  .  .  . These documents, though written in our own day, throw back to the time of the Assyrian conquest.  .  .  . “We are”—such is the order—“to burn the villages, massacre the young, and spare none but the old people, children and minors.” Here the intention is clearly to spare none but those no longer capable of carrying on the race and those still young enough to lose their nationality . . . .

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[In other cases,] men, women and children were separated, and all killed without exception. . . . [Where] “Orders of extermination” were not given . . . .in private conversations the same idea is constantly met. Since the population of the countries about to be occupied knew, by tradition, instinct and experience, what they had to expect from the armies of the enemy and from the neighboring countries to which these armies belonged, they did not await their arrival, but fled.11

Following the mass killing and devastation, the Commission saw hope only in national separation: There is thus reason for hoping that the treaty of Constantinople may bring together two governments who have no longer any ground for dispute and who might find themselves in agreement, as regards the rights of their kinsmen. A happy beginning has been made in Thrace. One can not say as much, unfortunately, of the work of the treaty of Bucharest. The lines of demarcation therein laid down are far from being natural or consonant with the national tendencies of the peoples. The third treaty of Bucharest has sown a new seed of discord in its violation of the sentiment of nationality: it divides the Balkan territories on the principle on which the treaty of Vienna divided the national regions of Europe in 1815. This historical example suggests that here, too, national reaction will follow on the work of diplomatic and political reaction.”12

This was the view of a most progressive and international-looking organization on the eve of World War I. The immense suffering—and the Commission was very careful to document it on all sides and refused to fall into the propaganda of any of the parties—was to be avoided in the future, not simply by an interim policy, but by what was perceived to be a long-term and hopefully permanent solution. The Commission endorsed and sponsored the radical solution of ethnic separation. The Commission lauded the first agreement between states over a population exchange that took place between Bulgaria and Turkey as part of the peace treaty of 1913.13 The agreement provided a precedent in another way too: it was both precise and false. While the exchange specified precise numbers (48,570 Turks and 46,764 Bulgarians), it claimed to provide for voluntary population exchange. The precise numbers could do little to hide the fact that the agreement largely legitimized past and

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anticipated expulsions. Though it created a principle for handling property claims through a shared commission, World War I intervened before any agreement was reached on compensation.14 This was one of several population exchanges between the two countries.15 The alternative to minority protection was population exchange. The British were reluctant supporters; they abhorred the method but admired the results, which facilitated assimilation. Notwithstanding the precedent of the Turkish-Bulgarian agreement, which included a rather limited territorial transfer and a “population exchange” (the number of refugees was under one hundred thousand on both sides), the orchestrated expulsions after World War I primarily between Greece and Turkey remain etched in public memory. In 1919, the Turks, facing the total disintegration of their country after their World War I defeat, recovered and invented their modern national identity, replacing an Ottoman with a Turkish identity, and resisted the Greek nationalist attempt to capitalize on their weakness. Under the leadership of Kamal Ataturk, Turkey defeated Greece and followed with massive ethnic cleansing. About 1.3 million Greeks and four hundred thousand Turks were uprooted from their homes in Anatolia and Thrace, expelled, and forced to resettle within more ethnically homogeneous borders.16 The Treaty of Lausanne (1923) largely affirmed the mass expulsion that had taken place. There was no pretense regarding any consent of the expellee. The main purpose was to conclude the war. Turkey was not going to repatriate the Greeks it expelled.17 The rationale: alleviate the suffering of the refugees. The expulsion of the Turks out of Greece was viewed as providing land and resources that would be made available to the Greek refugees. Here was the novel principle of expulsion as compensation. The expulsion was more widespread than expected, including the Greeks from Constantinople, which the international commission in charge of the exchange opposed. International opinion made little difference to Turkey.18 Contrary to public opinion and despite violating the principle of international protection for minorities, Turkey “carried the full sanction of the League.”19 As such, the expulsion was part of international law, not an exception that can be overlooked. This interpretation is strengthened when we recognize that the legitimization was attributed to Dr. Fridtjof Nansen, the embodiment of the international treatment of refugees. Indeed, the 1937 Peel Commission for Palestine asserted that the population transfer was done and a convention was signed on “the initiative of Dr. Nansen.”20

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In public memory, transfers were an achievement of the international system, not its aberration. Not everyone was pleased with compulsory expulsion. Lord Curzon warned that “the world would pay a heavy penalty for a hundred years to come.”21 However, others, like John Hope Simpson, the British representative sent to assist in the Greek Settlement, concluded that by the end of the 1920s, Greece could look forward with confidence because its ethnic homogeneity increased from 80 to over 90 percent. A public discussion in London referred to the expulsion of more than half a million destitute Greeks as a “blessing in disguise”: the minority question was no longer going to bedevil the two countries.22 This was particularly important in specific regions in Greece, like Macedonia, which was almost half Muslim in 1912; no Muslims were left by 1924. The Greek percentage more than doubled, from 40 to almost 90 percent. In Western and Eastern Thrace, similar “homogenization” took place, with Greeks and Muslims becoming dominant majorities, respectively. The analogy can only go so far: there were 1.25 million Greek refugees, 750,000 more than the Turkish half million, a 2.5 to 1 ratio. Greece benefited from the manpower, talents, and education of many of the refugees. Its population increased by 25 percent, while the suffering of the refugees was viewed as temporary. In contrast, Turkey’s economy lost not only the Greek expellees, but also suffered from the extermination of its own Armenian population. The two populations had provided the backbone of much of the Ottoman middle class. NonMuslims were the majority in Constantinople before the Balkan war. The resulting social shift in the makeup of Turkey was fundamental. For contemporaries, there is little doubt that, while regretting the suffering, the model of a homogenous state dominated the judgment. With revolutions and ethnic minorities endangering several states in Europe, Greeks were perceived as a hardened lot; the allure of a stable Greek state overshadowed humanitarian concerns. Consider the explicit calculation of the charity group All British Appeal in October 1922, when the crisis in Greece peaked. Faced with insufficient resources, the aid society decided to switch its help from Russia to Greece, with the expectation that the departure and the agency’s absence would result in between one quarter and half a million deaths in Russia.23 This was the humanitarian response, not that of cynical politicians! The support for the population exchange extended to the assumed perspective of the refugees, who, it was reasoned, were better off since they

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would not be subject to future clashes and violence. Many died taking the bitter pill, but the long-term outcome supposedly favored even the refugees.

The Soviet Union and Its Borderlands During the twentieth century, the vast lands of Russia and the western borderlands that include Ukraine, Poland, Byelorussia, and the Baltic states have been subject to particularly harsh violence. This was the heart of the Holocaust, a region ruled by two of the most vicious dictators of the century and subjected to the most barbaric warfare, several civil wars, ethnic cleansings, and mass refugee movements.24 It would be quixotic to attempt to catalogue this expansive misery in a short space. Aspects of the horror have been told admirably by numerous scholars. Although the following synthesis has been facilitated by burgeoning scholarship, the story itself is far from complete and may change in substance as well as in detail with new research. We do not yet know the full extent of destruction and ethnic cleansing that took place during the last hundred years. We cannot even state the total number of refugees in this region during World War I, the revolution, the civil wars, and the formation of new states after World War I. Refugees in this region, and by extension in the whole of Russia and the Soviet Union, resulted not only from war and a breakdown of order, but directly from governmental policies to move and resettle peoples in different regions. The imperial collapse and turmoil of war were followed by nationalist projects, political and ethnic mayhem, the creation of distanced and adjacent diasporas, the regrouping of nations, and the striving to establish ethnic homogeneity under a new international regime. Following each of the crises between 1914 and 1949, a national effort ensued to transform the refugees through state building to create a strong national entity. Perhaps more than any other factor, the experience of displacement suffered by numerous populations characterized the new states and nations, constructed “new” ethnicities, and consolidated national identities, defining the place of displaced persons within the nation and as part of the international structure. Expulsion itself served as a form of nation building and became a formative force in East European nationalism. The need to attend to the refugees’ communal needs, from health to crime, created an opportunity for

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36 The Right to Expel as an International Norm: 1900–1945

refugee leaders to fortify the diasporic identity, not only among the elites, but also among ordinary folk. Diaspora became a national experience of displaced national populations. The communities were prime candidates for repatriation and prone to embrace the ideology of the nationalist leaders who worked to “arouse the slumbering people,” justifying their own role and programs by appealing to a national destiny manifested in both displacement and repatriation. The politics of repatriation aimed at maintaining the diaspora to ensure that the refugees did not just resettle in new places and lose their identity. Political parties and individuals who themselves had been refugees underscored the role of the refugee population and the memories and experience of displacement as crucial elements in nationalizing the state. The mass refugee flow of national minorities, in a region that was part of a disintegrating empire where many minorities had coexisted, led to a growing national consciousness. In hindsight, national cohesion was said to have always existed. Extensive attention devoted to repatriation in the treaties the Soviet Union signed with its western neighbors bureaucratized the fate of the postwar refugee and led to the repatriation of hundreds of thousands refugees to the Baltic states and over a million to Poland.25 The process of repatriation was based on constructing new categories that defined nationality in places where the murkiness of the borderland previously ruled. For a nation constituted out of multiple origins, including the infusion of refugees expelled by states with different motivations, repatriation served a political purpose, including reinforcing a sense of national identity and reclamation. With the mass movement of peoples, filtering the new populations provided a central tool of nation building. Against the borderland wars, Poland sought to “restore” its historic lands, annexing territories from Byelorussia, Lithuania, and Ukraine, and establishing in those regions large Polish majorities by attracting new Polish immigrants and cleansing other local ethnicities. Nationality became the dominating criterion in refugee policies and nation building in Poland, a process that included the transfer of lands and property to refugees of Polish ancestry. One such policy led to settling ethnic-Polish exsoldiers on nationalized land in Byelorussia. Similarly, the Soviet Union also shaped the policies of repatriation according to ethnic/national considerations. Notwithstanding the nationalist project, the returnees faced states that were subject to economic crises. While the returnees were crucial to the national enterprise, they received less individual attention and welfare than expected. At times,

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37 The Right to Expel as an International Norm: 1900–1945

even the project of assembling the nation had to be relegated to a secondary role to economic recovery. In the midst of this national realignment, Jews found themselves without a territory. The ethnic homogenization unleashed a series of bloody pogroms against Jews. Prejudices were never far from the surface, even among the League of Nations “refugee experts” who supported the nationalization process whereby the states handed out selective citizenship and generally rejected Jewish refugees, who reputedly could not be turned into farmers and were not part of any of the nations. Thus, the refugee experts advocated their resettlement overseas.26 In the debate between repatriation and resettlement, ethnic homogeneity had the upper hand. Repatriation failed in the interwar period. The first plan formulated by Nansen to repatriate refugees to the Soviet Union unraveled, especially in light of the reports by the Russian émigré press of Soviets shooting many of the returning refugees. The forced population expulsions in the Soviet Union outnumbered those of its neighbors and became a cornerstone of the totalitarian and violent ethnic policies based on Stalin’s view of nationalism.27 Even before the ethnic cleansing began, the Soviet Union engaged in “social cleansing,” which led to expelling and killing Cossacks and resettling them in the region of the Don in Southern Russia. Intellectuals constituted another expelled social group; in 1922, they were deported on the “philosophers’ ships.”

The Law: Expulsion and Repatriation in the Interwar Years Pre–World War II history provides a record of ethnic cleansing without even entertaining the possibility of a right of return. The question we face is, were the practices of agencies and institutions at odds with the law of the time so that we can demonstrate at least the presence of an emergent norm even if it was then weak in its actual application? It seems unlikely. In the first half of the last century, international practices explicitly endorsed expulsion. Catriona Drew convincingly shows how the population transfer provisions in international law in the years following World War I “not only formalised past ethnic cleansings but also became an impetus for future cleansings of minorities, above and beyond

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38 The Right to Expel as an International Norm: 1900–1945

the lawful arrangements for population transfer.”28 Furthermore, minority protection was only one half of a system that included “voluntary” and forced population transfers. Indeed, Drew showed that, while in the Paris Peace Conference (1919) population transfer was “supplementary to minority rights,” within four years, in Lausanne, following the Turkish victory in the war with Greece, minority rights had became secondary, while the main policy endorsed population exchange. This history documents the conditions and the lawful rationale for legalized forced population transfers. If the long history of repatriation as a legal standard is very doubtful, the suffering of refugees is as old as war. Attempts to address that suffering on an international level only emerged embryonically following World War I and more systematically in the aftermath of World War II. As such, the international regime for the protection of refugees is a distinctly modern phenomenon. Much of it was created to ameliorate the refugee crisis, but also initially to legitimize the population transfers that brought about the crises in the first place. The central issue for the international refugee regime was humanitarian.29 The policy was not formulated as a question of rights. If any “rights” were to be addressed later in the conventions, those were the rights of states. The exceptional nature of this early humanitarian action to assist refugees ought to be recognized, especially because most humanitarian needs did not lead to international cooperation. During the 1920s, the list of failed international humanitarian efforts included proposals for disaster relief, unemployment support, and the elimination of statelessness. Due to anticommunism, after the war in Russia strong resistance against humanitarian help for the victims of the famine, which threatened thirty million people, emerged. Following the appeal of the famous author Maxim Gorky, and spurred on by the humanitarian pressures of Fridtjof Nansen, Herbert Hoover led an American delegation that agreed to provide relief to the Russians, but only in return for the release of American prisoners of war and the pledge of Russian gold reserves as security for repayment of the costs of the food aid.30 This was a striking example of the limits of the international humanitarian instinct, but also an example of how humanitarianism married to self-interest ended up saving from seven to twenty-one million lives. (The inability to accurately and reasonably assess the scope of the disasters was prevalent, a point we shall come back to repeatedly.)

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39 The Right to Expel as an International Norm: 1900–1945

The so-called humanitarian instincts were really awakened in response to the plight of stateless persons beginning to populate Western European states. The proximity of the humanitarian disaster and the risk that refugees would flood new countries and create new international crises stimulated the international regime to establish mechanisms to address the refugee issue. The impetus came from a combination of humanitarian sentiment and a desire to head off possible new sources of conflict. Those debates were not informed by claims of refugees’ rights. That rhetorical commitment would come only much later.

The Failed Protection of Minorities In the new states created by the peace treaties after World War I, one-third of the population belonged to minorities. There were certainly legal efforts to protect these minorities. Did they include the right of those minorities to be repatriated? Note the treaties were not the result of any humanitarian vision of minority rights; rather, minorities were considered only insofar as their welfare impacted on the stability of the region. The provisions for minority protection were conceived as specific remedies for each state, where the state is the main concern, not individuals, a policy begun in the Berlin Congress of 1878.31 The prevailing worldview included imperial interests infused with growing liberalism. Yet, members of minorities were viewed more as subjects of the state than citizens and were, in the final analysis, at its mercy. The provisions for minority protection were conceived as specific remedies for each state. The state was never an honest broker among its individual members, but it did represent the nation. The protection and articles on nondiscrimination against minorities were imposed on the signatories, who tried and succeeded in avoiding their implementation. That would become the norm of minority protection: it existed in word but not in deed. South East European states that accepted the obligations of upholding rights in return for inclusion in Europe and even to gain territory were not subject to verification. As the situation worsened, the Jews became the canaries in the minorities’ mine: over two million migrated west due in part to increased discrimination. The norm of signing up for what would become known as international “human rights obligations” without ever having the intention of implementing them goes back at least to the 1870s, long before

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40 The Right to Expel as an International Norm: 1900–1945

the human rights regime was ever imagined. The lack of implementation became the norm and none of the signatories were troubled to renounce their commitment when the political constraints changed. The norm was a dead letter. Every one of the new states created after World War I included significant minority populations. The Ottoman Empire in Europe was replaced before the war by Serbia, Greece, Rumania, Bulgaria, and Albania. After the war, Russia’s borders retreated to allow for the new states of Finland, Poland, Estonia, Latvia, and Lithuania. The Habsburgs were replaced by the smaller states of Austria and Hungary along with the new Czechoslovakia and Yugoslavia, the reshaped Serbia, and part of Poland. The dilemmas that confounded the Treaty of Bucharest at the end of the second Balkan war, of how to separate ethnicities without massive expulsions, now faced all of Central Eastern Europe; the trend was toward a nation-state, but population mixture left every country multiethnic. The limitation and risk of a multiethnic state were apparent and informed the attempts of the League of Nations to establish an international law to protect minority rights. The League attempted to combine the establishment of viable states based on national principles with the protection of groups that became minorities within the new borders. As soon as the principle was applied, it was violated. The new treaties imposed on the new states affronted their sense (and the reality) of sovereignty. An ongoing struggle ensued over the implementation of minority protection. As is often the case, good intentions were suppressed by political realities as the states came to dominate the process of complaints to the League of Nations, while the minorities had no standing to bring grievances against the breach of their rights or to insist upon protection. Since the only exception to a state-initiated process was one brought by an individual claimant, it turned minority rights into individual and not group rights. The treaties were never meant to provide autonomy for groups, and they did not. Already by 1922 the status quo seemed to depend on ignoring minority protection as a way to avoid ethnic strife. The debate over the protection of rights stemmed from the reluctance of the new states to recognize limitations on their own sovereignty that were not matched by similar limitations on other states. Poland, for example, was particularly concerned that similar limitations were not placed on Germany at Versailles. The experiment was marked by repeated failures, and the League gave up altogether in the 1930s.32

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41 The Right to Expel as an International Norm: 1900–1945 TABLE 2.1

National Minorities in the East European States, 1919–38* and more recently STATE

CENSUS YEAR

MINORITIES AS % OF TOTAL POPULATION









By census

By estimate

Recent % (by census)†

Albania 1930 22.3 24 (1989) 5   (estimate) Bulgaria

1934

13.3

16

(2001) 16

Czechoslovakia 1921 Undiffer- 52 Czech (2001) 9.6;   entiated   Slovak (2001) 14.2 Estonia

1934

11.8

13

(2000) 32

Hungary

1920

10.4

15

(2001) 7.7

Latvia

1930

26.6

28

(2002) 42.3

Lithuania

1923

16.1

18

(2001) 16.6

Poland

1921

30.8

35

(2002) 3.3

Romania

1930

29.2

34

(2002) 10.5

Yugoslavia 1931 Undiffer- 57 (1981) 63.5   entiated   other nations   36.5 Serbs Source: Raymond Pearson, National Minorities in Eastern Europe, 1848–1945 (London: Macmillan, 1983). * With official censuses tending to underplay the representation of minorities, whether inno-

cently or (increasingly) by design, statistics from the appropriate state census and estimates by reputable contemporary authorities are both cited for purposes of comparison. † Information collated from The CIA World Fact Book, https://www.cia.gov/library/

publications/the-world-factbook/.

Fritjof Nansen and the International Refugee Regime The failure to protect minorities created the refugee crises in the first place. The international community responded to the visible humanitarian crisis rather than the situations that created the refugee flow in the first place. In the wake of accepting the assignment from the League of Nations in the spring of 1920 and his enormous success in organizing the repatriation of 450,000 prisoners of war from Russia and Germany in just over a year,

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42 The Right to Expel as an International Norm: 1900–1945

for which he was awarded the Nobel Prize, Fridtjof Nansen was appointed in 1921 as the first League of Nations High Commissioner for Refugees, beginning new initiatives.33 The original mandate of the High Commissioner was to cover Russian refugees; in 1923 the mandate was extended to include the Armenian refugees. The High Commission attempted to provide material assistance as well as legal and political protection for refugees. It developed the concept of the Nansen Passport, a document permitting stateless persons to travel so they could find a place to settle, not repatriate. Why did states accept the idea of the Nansen passport? Not primarily because they wanted to solve the problem of the refugees, but because the Nansen passport enabled them to get rid of people they wanted to expel. Following the defeat of the Greek army by the Turks in 1922 and the massive flight of Greeks from Asia Minor, Nansen directed his attention as High Commissioner to the refugees from Greece and Turkey. Nansen did not focus on repatriation but instead negotiated a population exchange whereby 1.25 million Greeks who were living or had lived in what was then Turkey were exchanged for a half million Turks living in Greece. This “forced” population exchange was officially sanctioned and endorsed by the League of Nations.34 Similarly, when it came to the Armenians, Nansen focused on finding a stable political solution, not repatriation. In addressing the Armenian survivors of the genocide in 1925, he tried to create a homeland for the refugees in the Russian province of Erivan, now modern Armenia. Lacking League of Nations support, he only succeeded in settling some ten thousand refugees there. He was more successful in resettling forty thousand Armenians in Syria and Lebanon.35 Further, during the interwar years, international action was very limited and directed at specific groups.36 The League’s protection was by no means universal and large numbers of refugees were beyond its purview. The Minority Treaties affected stateless persons only in their capacity as minorities, not because they were stateless. The year 1928, when wars of aggression were outlawed by the KelloggBriand Pact, has also often been cited as the initial point at which deportations were prohibited. Expulsion carried out from wars of aggression followed by the annexation of territory was made illegal, but expulsion in itself was not made illegal. For wars are almost always presented by the initiating government as defensive and preventive and certainly not as aggressive. Thus, the resulting population transfer is presented as a legitimate

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43 The Right to Expel as an International Norm: 1900–1945

defensive action in the name of security, which is allowed by international standards. The prohibition is dependent on the classification of the war as aggressive, a relatively rare assessment in an international order that privileges deference to sovereignty. The post–World War II population transfers made this very clear. Fridtjof Nansen died in 1930. The Office of High Commissioner for Refugees was replaced by the Nansen International Office for Refugees under the authority of the League of Nations. The 1933 and 1938 Refugee Conventions were ratified by very few states.37 Fourteen states signed the 1933 Convention, but only eight ratified it, many with conditions attached, although a few more announced that they would abide by its provisions. In the face of new refugees from Italy, Germany, and Spain, as well as declining revenues, increased costs, and fewer opportunities for resettlement because of the Great Depression, all of which put enormous pressure on the new organization, the Nansen International Office was overwhelmed. By 1938, obligations to refugees had become largely rhetorical gestures without any insistence of refugee rights. In 1939, the Office of the High Commissioner for Refugees under the Protection of the League was opened in London, replacing the League’s organization. The earlier efforts that characterized the refugee regime during Nansen’s time addressed a small minority of the refugees within the category of “rights,” leaving most of the refugees to be assisted by humanitarian aid at best. This international response to refugees remains as true today as back then. There were individuals who were stateless and received Nansen Passports to enable them to travel and seek residence in a country that welcomed immigrants. However, the vast majority of large groups of refugees—Greeks, Turks, Armenians, Russians—were regarded as the flotsam of war. They were not accorded rights, even such minimum rights as the right to travel and find a new home. They were certainly not accorded rights of repatriation. They were treated as a humanitarian problem that at best required assistance. The supremacy of the sovereign nation over its citizens and the right to expel extended also to denaturalization between the world wars. This was not limited to extreme cases such as the famous Nuremberg Laws of 1935, which deprived Jews of many of their rights. France, the state that produced the Huguenots, was also the first state to pass laws permitting denaturalization; it did so in 1915 if those citizens were of “enemy origin.” In 1922, Belgium revoked the citizenship of those who committed “antin-

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44 The Right to Expel as an International Norm: 1900–1945

ational” acts during World War I. Mussolini in 1926 took away the citizenship of those “unworthy of Italian citizenship.”38 Being a refugee seemed a privilege: at least the designation enabled a person to qualify for international protection. The 1933 and 1938 Refugee Conventions, the two major legal instruments of the interwar period, define the term “refugee” according to a specific ethnic group or country of origin, not as a general category. The 1933 Refugee Convention, for instance, applied to Russian, Armenian, Turkish, Assyrian, AssyroChaldean, and Turkish refugees, while the 1938 Refugee Convention applied to “refugees coming from Germany.”39 The main issue during the interwar years was the challenge of refoulement (the expulsion of refugees to places where their lives or freedoms would be threatened). “The 1933 instrument introduced the notion that signatory states were obligated not to expel authorized refugees from their territories and to avoid ‘nonadmittance [of refugees] at the frontier.’”40 A second challenge involved devising appropriate administrative measures against refugees who entered a country illegally. The dilemma was to not expel refugees to places where they would be at risk, while not admitting those who would be difficult to expel. The result placed the refugees in limbo. This was particularly relevant to Jewish refugees. When the thirty-two countries assembled in Evian on 6 July 1938 to address the question of “involuntary migration” and the refugee crisis of Jews from Nazi Germany, they succeeded in organizing a sequence of more meetings but very little relief. Jewish refugees were not admitted even when they managed to get to a border. As revealed much later, the conference was intended only as a public relations exercise.41 The magnitude of the crisis during the war soon dwarfed anything anticipated by those assembled in Evian. That early failure haunted the international response to refugee crises during the war and ever since. One response: the principle of non-refoulement that became part of international law in the Convention Relating to the Status of Refugees (1951) but applied to a very small number of refugees. In contrast, forced transfers of large population groups with the goal of establishing ethnic homogeneity continued to be implemented.42 Although the Convention prohibited states from expelling or refusing entry to refugees authorized to live in the territory, it contained an escape clause: states could violate the rule of non-refoulement if required by “national security or public order.” The state remained all-powerful, the refugee at the mercy of its bureaucracy.

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45 The Right to Expel as an International Norm: 1900–1945

Expelled minorities were viewed as either “dispersed” or “concentrated.” Those who belonged to a “national” movement of refugees were expelled to the home country, such as Magyars into Hungary, various refugee groups into the new Baltic states, Bulgarians into Bulgaria, Turks into Turkey, Greeks into Greece, and Armenians into Yerevan. Then there were Jews from Germany who were sent to various countries (like Poland) whose citizens they had been. They were regarded more as part of “inverted repatriation movements” that offered a solution to the problem.43 The politics of building a national identity in struggle with the minorities was clearest in Czechoslovakia and Yugoslavia. Both attempted to invent a new ethnicity: the “Czecho-Slovak” and “Serbo-Croat,” respectively. The efforts failed repeatedly, though in different ways, until the establishment of separate states in the 1990s. While the centrality of minorities to national politics should not be underestimated, the opposite, namely, the claim that there was a rough correlation between the degree of ethnic violence and the percentage of minority refugees in the country, is too simplistic. The formulation related more to the impact of Nazism, which, in addition to its own political violence, also inflamed ethnic enmity. Those minorities, German minorities foremost but not exclusively, became willing participants in ethnic atrocities.

World War II Destruction during World War II surpassed all previous devastation. Hitler’s and Germany’s crimes have been relatively well studied. The longterm policy was to have one hundred million Germans live in the East. Part of this grand illusion led to the killing of millions, including the Holocaust of the Jews and the exterminatory carnage in the region.44 But Germany began its population transfers by gathering its ethnic Germans in a series of bilateral treaties with the Baltic states, Italy, Romania, Yugoslavia, Bulgaria, and, following the partition of Poland, the Soviet Union. The Allies never objected as they had been and would again be party to officially authorized mass population exchanges as a solution to ethnic social and political problems. Stalin’s ethnic policies extended from the prewar years and are less well known. After the German-Soviet Pact and the division of Poland, a series of deportations attempted to destroy the old elites in the borderlands (the Baltic states and eastern Poland).45

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46 The Right to Expel as an International Norm: 1900–1945

POWs were another large group of refugees subject to repatriation after World War II. They with other Russian forced laborers numbered seven million. The Soviet Union insisted on the repatriation of all Soviet citizens, in part motivated by the urgency not to allow traitors to escape under the guise of refugees. Anyone who was born on Soviet territory was considered a Soviet citizen. This demand forced the repatriation of displaced persons. This led to some diplomatic crises (e.g., with Switzerland). Until the Swiss returned all Soviet citizens, the USSR blocked the return of Swiss citizens. The logjam broke in October 1945, after the Soviets declared their satisfaction with the Swiss actions and resumed the repatriation of the Swiss.46 The disputes between the Soviet Union and the West provided the context for the postwar refugee regime as it graduated from the International Refugee Organization to UNHCR and the 1951 Convention.

Conclusion Before World War II, national homogenization was seen as a positive virtue, and international organizations endorsed and sponsored ethnic separation. Population transfers were thus legitimate and viewed as a necessary price for a stable polity. The notion of repatriation of minorities contradicted the prevailing political worldview and empirically was nonexistent. In the next chapter we shall examine how this situation altered after World War II, in what way, and to what extent.

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[ 3 ]

Outlawing Ethnic Cleansing Principles and Practices After World War II

Post–World War II Ethnic Cleansing Despite the ethnic violence and displacement at the time, the post–World War II years are etched in public memory as a period when the human rights regime became a global system: the Nuremberg trials, the Universal Declaration of Human Rights (UDHR), the Genocide Convention, the Geneva Convention, the Refugee Convention. Each of these instruments is generally believed to proscribe the very violence in the midst of which these tribunals, conventions, and agreements were formulated. Furthermore, for our purpose, a widespread belief prevails that an international agreement on the remedy to displacement, namely, repatriation, both exists and was formulated as part of this new human rights regime. This construction is, at best, partially true. Even this partial truth has to be understood within the context of the new prohibitions as well as the prescribed remedies that emerged in the later 1940s. Broadly speaking, while a general prohibition against ethnic expulsion gradually emerged, no agreement concerning repatriation as a general remedy, either legal or political, was formulated. In fact, in the immediate aftermath of World War II, the pervasive population expulsions during the war continued and spread, leading within

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48 Outlawing Ethnic Cleansing

three years to the worst global refugee crisis of the last century.1 The displaced persons in Western Europe numbered seven million, including forced laborers, prisoners, and deportees. There was a comparable number in the East. Many of those, perhaps save two million, were repatriated very soon after the end of the war. Those who would or could not be repatriated came to populate the DP camps.2 The postwar interethnic violence and fear led to the prevalent policies that combined population transfers, forcible expulsions, “voluntary” escapes, and partitions. In addition to the population transfers within the emerging Soviet bloc, expulsions in central Europe numbered between 10 and 20 million refugees. In the Indian subcontinent, in the nine months after August 1947 somewhere between 10 to 18 million Hindus, Sikhs, and Muslims were forced to flee, while the dead numbered between 200,000 and possibly more than 1.5 million. Decolonization brought its own upheaval. In addition to India, the British evacuation of Palestine was followed by the 1948 war, the displacement of 750,000 refugees, and the ongoing Israeli-Palestinian conflict. A decade later, Cyprus became a flash point. In Africa, the postcolonial period created states that witness ethnic violence and horrific refugee crises through war and violence. The continuity of mass expulsion after the war was not an accident. Nor did it come without planning. In 1942, Herbert Hoover, as coordinator of the European relief effort, empathized with the “hardship” involved in mass expulsion, but found it preferable to ethnic violence, because “it is less than the constant suffering of minorities and the constant recurrence of war.”3 This was a conventional view. British Prime Minister Winston Churchill explained that “Expulsion is the method which . . . will be the most satisfactory and lasting. There will be no mixture of populations to cause endless trouble. . . . A clean sweep will be made.”4 By 1943, Polish and Czech politicians across the political spectrum were convinced of the desirability of the postwar expulsion of Germans. As World War II came to a close, the Allies at the Yalta (February) and Potsdam (July-August) conferences in 1945 decided to redraw the map of Europe by forcibly moving twelve million Germans, more than two million Poles, and hundreds of thousands of Ukrainians, Hungarians, and other groups to create ethnically homogeneous states. The Potsdam Declaration promised that these transfers would occur “in an orderly and humane manner.”5 After 1945, a democratic Czechoslovak government and a communist Polish government pursued broadly similar policies toward their German

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49 Outlawing Ethnic Cleansing

minorities. The early Czech removals of the Germans were dubbed “wild transfers.” The transfers that preceded the “organized” ones that began in January 1946 were anything but spontaneous. As a result of intensive lobbying by the exiled Czech government in London—which, in a perverted way, was obsessed with international law—the transfer of Germans was executed according to what the Czech government (primarily President Edvard Benes, after whom the “Benes decrees” are named) perceived was the law.6 (This included not expelling the Germans to the Soviet zone, because, according to Potsdam, they were supposed to be distributed among the various zones.) In Poland, the violence accompanying the forced migrations reached its height in the war with the Ukrainians, who actively resisted repatriation in 1946 and 1947, using guerrilla tactics to sabotage the migration efforts. The last Ukrainians were transferred only after the Polish authorities suppressed the uprising. In the immediate post–World War II period, the Soviet, Czechoslovak, and Polish governments, among others, were willing to devote substantial resources and effort to expel minority populations. Limitations on personal belongings were strictly enforced. Authorities were equally willing to move people under terrible conditions. Poverty, starvation, and violence characterized the expulsions. The expellees were crammed into railway cars; many had to spend nights in open-air train stations regardless of the weather. Destitution in Europe was widespread. Human misery elicited little sympathy and even less concerning German refugees. In the context of the displaced persons and refugee camps, the German transfer was seen as an investment in future peace and the suffering necessary and unexceptional and even deserved. Policies of assimilation prevailed and were perceived as a crucial goal in stabilizing Europe. The policies were encouraged through incentives—such as economic, educational, and housing construction aid. Attempts to organize the refugees as independent communities were opposed, certainly in the East. In the West, the Allies attempted to disperse refugee populations that had come from a single region. Until 1949, refugee organizations were banned. The overwhelming fear was that nationalist irredentist movements would destabilize the precarious European peace. This changed with the Cold War when communism became the immediate enemy. From an international law and norms perspective, how are we to think about the expulsion and its horrific victimization sixty-five years later? The violence of the expulsion underscored the distinction between high policy and the fate of refugees. The policy of population transfer was planned;

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50 Outlawing Ethnic Cleansing

displacement was the norm. The practical details were often driven by local conditions. But local conditions are not really “local”; the circumstances are characteristic of the process of ethnic cleansing—including the prevalence of revenge and violence—and are repeated in different situations. The formal decisions often came well after expulsions and transfers were in full swing, while local officials, swamped by refugees and a shortage of resources, not only failed to provide protection for the refugees, but often exploited them. The more we learn about the state of refugees, the more we understand that this description was (and often is) the norm; the pretense of policy is often the recognition of an absence of a detailed action plan. The chaos of disinformation (what happened and where) at times is a policy; sometimes it becomes a political issue. These massive deportations and expulsions were carried out with the full support of the international community. This is possibly the last time that Western democracies in Europe explicitly supported massive ethnic cleansing as a policy undertaken (as Benes and others believed) in accordance with international law. More recently, in the former Yugoslavia and in Cyprus, Western countries, which were resigned to expulsion, often denounced the practice. Iraq went through a similar process. The Balkan precedents were set earlier in the century after many of the refugees had already been expelled, but the norm was established and presented as a plan. Furthermore, the confiscation of German property was established in Potsdam and by the Paris Reparation Agreement, which stipulated that each government would choose how to handle German enemy property in its jurisdiction, ensuring that the property would not return to German ownership or control.7 Later, these consciously articulated norms and plans were denounced by some, but were never subject to reversal. From the multiple cases of mass murder, extermination, expulsion, and ethnic cleansing during and immediately following the war in East Central Europe, the clearest outcome, and possibly the most distressing, was the further diminution of minorities, which in East Europe had decreased from 20 and 30 percent before the war (in the 1930s) to less than 10 percent after the war.

Demands for German Repatriation At the end of the Cold War in 1989, the conversation over repatriation began to change. The Sudeten Germans renewed their demands from

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51 Outlawing Ethnic Cleansing

Czechoslovakia, though the Czech government largely shrugged them off. More than forty years after the transfer, the Czechs viewed the Sudeten Germans—Volksdeutschen, “Germans by blood” or ethnic Germans—as accomplices of Hitler who provided the excuse to invade Czechoslovakia in 1938; they were traitors who deserved their fate. Public opinion denied both restitution and sympathy.8 Since 1989, the Sudeten topic has been the most controversial issue between Germany and the Czech Republic. The political complexity of the expulsion cannot be doubted. Nor is it the question of restitution and repatriation. The attempts by some in Germany to use the expulsion issue in the effort to impede the Czech accession to the European Union failed. Fifty years later, the politics of redress woke the memories of the refugees, who, in the meantime, had ceased to be refugees, and as a community had flourished. In hindsight, the Sudeten Germans were more fortunate than other refugees. They found themselves mostly in Bavaria, better off than those Germans expelled from the East who were spread across Germany and were unable to develop an equivalent coherent unified voice. The Sudeten Germans established a strong political Landsmannschaft (the Sudeten Congress) that has been an active organization since the late 1940s and supported the CDU, a bastion of German conservatives.9 During the early days, the expellees used their impact on German politics to legitimize their repatriation demands. By the 1950s, they demanded the “right to one’s own homeland” (Heimatrecht), a right that did not die with the demise of the refugees but was inherited by future generations. This “God-given basic human right” was conjoined with demands for the right of self-determination. In the post–Cold War years, the Sudeten Germans put forward the most contentious demand; they asked for a restored community. Individual rights of free movement as part of the Czech membership in the European Union were not enough. During the negotiations for Czech accession to the European Union, they demanded that Germans returning to the Czech Republic be treated as an old minority similar to the Danes in Northern Germany instead of merely recently arrived immigrants akin to the Turks. The Sudetens demanded that restitution include the ability to establish German public life and schools, with German an official language. After 2000, attention to the suffering of the German victims, particularly the refugees, became more pronounced, developed into a renewed political issue in Germany, and received extensive sympathetic media attention, a sympathy that even extended outside Germany to “expose” these “ignored”

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war crimes. For a change, Germans and Austrians were eager to be viewed as victims in the role of plaintiffs instead of carrying the Nazi guilt as their predominant identifier. The Sudetens have clearly underscored the rite of return even at the expense of the actual resurrection of the Germans as a recognized community in the Czech Republic. What a dramatic change in fifty years! In the first half of the twentieth century, ethnic (referred to as racial, religious, national, minority) expulsion was the preferred solution for conflicts between peoples. During the following three decades, between 1950 and 1980, expulsion was replaced with a rejection of the legitimacy of expulsion and the goal of resolving the plight of refugees by repatriation, settlement in countries of first asylum, and resettlement via migration elsewhere. Since 1980, repatriation has increasingly grown as the accepted “optimal solution” in international discourse. As politics and moral standards shifted, the past also became subject to moral revisionism. War crimes and gross violations of human rights topped the list of historical wrongs to be redressed. This trend accelerated after the end of the Cold War.10 The increased attention to violence and victimization diminished the value of historical context. If previously the crucial question in defining a “victim” was whether the victims were ours or the enemy’s, in the 1990s the focus shifted from the causes to the fact of victimization. In this context, even Germans were rediscovered as forgotten victims.

Expulsions as Crimes Mass expulsions were viewed for the first time as a war crime in a declaration adopted by the exiled representatives of the nine occupied countries in London in 1942. The declaration stated that the Nazi crimes were products of “regimes of terror in the occupied territories . . . characterized in particular by . . . mass expulsions.”11 The population transfer itself was not the crime; the uprooting as a by-product of state terror was. This was followed by the preparation for the Nuremberg trials, where the notions of crimes against the peace, war crimes, and crimes against humanity were all formulated to provide a legal framework to previously nondefined crimes. Policies that in substance were criminal but had never heretofore been illegal were defined as such for the first time. Thus was born a new category in international law. The German policies of annexing territories and obliterating their former national characters,

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which began after 1938, became a war crime and a crime against humanity.12 The Nuremberg trials addressed deportations and resettlement by German colonists. The principles of the tribunal became part of international law, not as abstractions, but as the distillation and interpretation of particular cases.13 Further, most scholars agree that the Nuremberg trials had little if any impact on international practice in the following fifty years. Only at the very end of the twentieth century and in the twenty-first century have there been criminal indictments for genocide and crimes against humanity. Certainly, no political leader in the twentieth century appears to have been deterred from genocide, ethnic cleansing, or even aggressive war because of any fear of a criminal trial. Nazi crimes of genocide and ethnic cleansing were viewed as distinct from the mass population transfers performed by the Allies. The latter were carried out to homogenize the national character of the newly liberated countries, avoid future ethnic conflict, and ensure long-term peace. Even if misguided, they were organized to help others, not to advance their own nefarious ambitions. Nazis, on the other hand, were indicted for perpetrating compulsory population transfers as part of an aggressive German expansion and consolidation. Nazis were convicted partly on the basis of that indictment. Hans Frank in his testimony at the trial uniquely acknowledged that “a thousand years would not suffice to erase the guilt brought upon our people because of Hitler’s conduct of this war.” At the same time, and just as uniquely, Frank accused the Allies of hypocrisy and a double standard.14 While the Nuremberg trials were taking place, millions of Germans—from East Prussia, Silesia, Pomerania, and Sudetenland—were being forcefully expelled and even compelled to work as slave labor in the Soviet Union as part of the reparation payments. The contradiction in the treatment of the Allies versus the Nazis, however, is more apparent than real. At the time, the Nazi mass expulsions were viewed as distinct crimes because populations were displaced and replaced by Germans to annex territories politically, economically, and socially to the Nazi Reich and obliterate the previous national character of the territories as part of a terror campaign of aggression. The Nazi crimes were not misunderstood by the international community in the late 1940s. In Germany, this has become less true in the last few years. Formal analogies between Allied and Nazi acts of expulsion have begun to overshadow the fading memory of the exceptional brutality of Nazism.

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Few dispute that the Allies’ fight in World War II was defensive. Yet the Allies authorized the deportation of millions at the end of the war to ensure what they believed was future security. It is too simple to suggest that these actions were merely giving in to Stalin’s demands. The Allies were liberators, not occupiers, and the new governments of the liberated Eastern European countries were viewed initially as legitimate regimes, not occupiers. (In the Baltic countries, the situation was different.) The evolving forbidden crime was not the act of population transfer itself. Criminality depended on the existence of an aggressor and an occupation. This relationship of aggression and occupation in the Nazi case made population transfers into a crime. This, at least, is what the defenders of the legality of the postwar transfers argue.15 Others claim that whatever the justification, the forced transfer of the German population in the immediate post–World War II years was illegal under international law.16 Whether legal or illegal in the 1940s, scholars have increasingly accepted the interpretation of illegality for the present. The end of the postwar population transfers in Europe came in 1948 and 1949, concurrent with the first significant international public shift toward human rights. Between 1945 and 1949, human rights discourse remained largely in the domain of experts and activists and did not draw public attention. The public sphere was engaged with establishing postwar security; population transfers were viewed as implementing the concluding chapter of the war. In 1948, both the Universal Declaration of Human Rights and the Genocide Convention gradually became the emblems of the new world order. Ethnic cleansing in the West largely receded from public attention, at least until the 1990s. There were numerous refugee crises in the following four decades, but these were not in Europe and were largely seen in the context of the history of decolonization. Except by the victims, the ethnic cleansings at the end of World War II were criticized by few at the time. This absence of criticism was the culmination of the previous half century, when ethnic separation was the preferred solution to ethnic conflict. Given the ethnic xenophobia that served as the cause of the war, many accepted the expulsions as necessary and, one would dare say, morally right. Avoiding future ethnic feuds was the first order of priority. In this valuation, the experience of deportation established a continuity between pre–World War II, the war itself, and the first years of the postwar period.

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This is a sad historical reminder, but one that is indispensable if we are to try to understand the political context and the circumstances in which forced expulsions of populations constitute a crime. A crucial distinction regarding many of the postwar expulsions is that they were done with the support of and by democracies, by the same countries that established the United Nations.17 Many of the ethnic transfers were carried out within the context of building a better world, a rejection of racism, and establishing the human rights regime that preceded the adoption of the Genocide Convention. The Convention and population transfers at the time did not seem to be contradictory. The postwar international system was invented by the same people who supported the creation of ethnic homogeneity as a condition for safeguarding security. This simultaneity of massive ethnic cleansing and human rights draws our attention as the paradox of positive moral aspirations and a depressing legacy of crimes against humanity, which have come to characterize the postwar international system.

The Geneva Convention Against the background of the clear dichotomy between Nazism, extermination camps, and mass killing, on the one hand, and harsh but not genocidal population transfers, on the other, the Fourth Geneva Convention18 stipulated that mass forcible transfers by any occupying force were prohibited regardless of their motive, but it did so without reference to the Allied-sponsored transfers. The Allies were liberators. If the international prohibition on population transfer was implicit, contextual, and recent, did the objection to population transfers as a principle become a “customary” part of the international system in the Fourth Geneva Convention? That convention is the most frequent referent in the literature. According to the argument, the Fourth Geneva Convention in 1949 purportedly prohibited expulsion through two conflicting rationales. In the first, the convention explicated an older customary international law and, strictly speaking, was not new according to the ICRC which claimed that the Fourth Geneva Convention clarified, amplified, and expanded upon provisions of the 1907 Hague Convention.19 In the second rationale, the Fourth Convention pronounced a new law. Did it articulate an already existing international customary law, or was it establishing a new standard? In any case, why would it matter?

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There are different ways of slicing the analysis. One engages an historical inquiry: how were those rights understood at the time? If the convention only explicated an existing situation, it has to be examined against the historical reality of the widespread ethnic cleansing during and after the war. Surely even hypocritical international politicians in 1949 could not have been so self-deluding as to articulate their opposition to population transfers from a clear “customary” legal position, while their governments were supporting the transfer of millions of people because they belonged to the wrong ethnicity in the wrong country. To declare that expulsion conflicted with prevailing standards and practices, without as much as mentioning the ongoing transfers, and to explain why, despite the general illegality, those transfers were legal, stretches credulity. How then is one to explain this contradiction? The answer may lie in the nature of population transfers and the continuing avoidance of explicitly labeling the principle as an international crime. Population transfers and displacement occur under diverse conditions, ranging from aggressive to defensive wars, from ethnic cleansing to massive political expulsions, from peacetime exchanges to regional developmental policies. The appropriate and distinct legal standards and principles have to be understood according to the circumstances of each case in the context of evolving and changing norms that take into account history, the situation, and the motivation. Population transfers are not abhorred in principle. Nor is repatriation supported as a principle. Rather, the specific cases and the identity of the antagonists and their motivations determine the (il)legality of particular transfers under variable norms to account for differences in motive, context, and outcomes. In 1949, when the Geneva Convention was formulated, the distinction depended on perpetrating a crime and did not simply list transfer per se as a crime, that is, the distinction between the Nazi crimes and the Allied policies, even though, out of context, the actions (population transfers) may seem analogous. In contrast, almost fifty years later the United Nations Special Rapporteur on Population Transfer in his 1997 report declared transfers “prima facie unlawful” whatever the circumstances that led to the occupation of a territory, so long as they are either discriminatory, involuntary, the result of force, or take place without due process. The UN report determined that population exchanges (“in the shadow of inter-State war”) and “having some degree of voluntariness,” arguably served the interest of eliminating

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the source of foreseeable interethnic conflict within independent States. Such exchanges “involve a tragic human rights trade-off which deserves deeper study to guide future practice and provide better protection.” It called for a “deeper study” but made no declaration of outright illegality.20 Whether or not the law evolved through interpretation in the intervening five decades, the law in the 1940s did seem to distinguish between population transfers that took place in territories occupied as a result of a defensive war and those following an aggressive war. That distinction remained legally visible in the late 1990s. Before the year 2000, the right not to be displaced seems to have been established within the context of a war of aggression and under occupation, but not as a general principle. We can criticize the action, but if we consider the international order of the day in the late 1940s, which was determined by the Allies to be the legitimate international legal system, then the deportations have to be viewed as part of the political frame envisioned for the postwar world. Criticizing the system and all of its domestic and international flaws morally is not the same as invalidating its legality. The Fourth Geneva Convention of 194921 established the prohibition on deportation in very specific terms. Article 49 states: 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. (Our italics.)

Yet this was subject to the considerations of “the security of the population or imperative military reasons.” The article went on to state: Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand.

The article excluded “protected persons except if unavoidable.” Protected persons had to be returned after hostilities ceased. Further, the Occupying Power could not transfer part of its own population into that occupied territory. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material rea-

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sons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased. The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

Abstracted from historical context, the reading of the article suggests a straightforward prohibition. However, the convention was formulated during and immediately following the mass population exchanges and deportations of 1945 to 1949. As the postwar international order and the refugee regime were being established, these same countries and individuals pursued policies of ethnic and national homogenization as a precondition for security. Sometimes the agreements were entered into after the fact, such as in the largest exchange of all, the movement of ten (or up to eighteen) million Muslims and Hindus between India and Pakistan, ratified retroactively by the New Delhi Accord signed 8 April 1950.22 Under these circumstances, deportations, expulsions, transfers—whatever we call these forced exchanges of population—were an acceptable policy. Even if the defeat of Nazi Germany was liberation, not occupation, the shifting borders and territories surely would be considered by current standards “occupied.” Determining their legality was dependent upon whether the deportation resulted from (1) war that was not declared to be a war of aggression or (2) agreement between and among states acting on behalf of ethnic or national homogenization.23 What was not allowed was the forcible transfer of a state’s own populations into, or the enemy’s population out of, territories captured in an aggressive war. The Geneva Convention and the principles contained in article 49 can be interpreted as limited to allowing deportation as a defensive, preventive, or retrospective mechanism to ensure security. While the basic guarantee contained in this provision is a prohibition of individual and mass forcible transfers, the breadth with which “imperative military reasons” could be (and often is) interpreted by warring parties leaves doubt as to the de facto protection this article might provide for the vast majority of cases. That also does not mean that eminent jurists and scholars did not pronounce such forced transfers as illegal,

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in violation of human rights, and as a crime against humanity at the time or in retrospect.24 If the Fourth Geneva Convention did not declare an already general international customary law that outlawed population transfers, did it establish a new doctrine? Such a conclusion would be controversial since it would mean, at the very least, that previous population transfers were legal. This would face great political and scholarly resistance internationally. Indeed, the claim of customary law is based on the notion that the convention incorporated and explicated the 1907 Hague Convention. Alas, since the former convention did not deal with civilians, the Geneva Convention could only be said to have updated the convention’s rules of war regarding the military, not civilians. The dilemma is that the Geneva Convention could not both articulate a new international law and codify existing customary law at the same time. The best interpretation is probably that it articulated a limited, new prohibition on “occupiers” expelling local populations. This leaves a wide gap for interpretation, particularly in cases where the question of legitimate government is in question, as in cases of civil wars and IDPs. More clearly, the convention stipulated the right of individuals not to be expelled and to be allowed free movement. It says nothing about the groups that are the victims of such policies. While every group is composed of individuals, the crime of genocide and ethnic cleansing can only be inflicted on a group. The remedies, correspondingly, must also apply to the group, not only the individual. In tracing the genealogy of the legal prohibition of population transfers as a principle (beyond the case of such transfers as a crime in an aggressive war, which is a crime on its own) to the Fourth Geneva Convention, we quote again the UN study conclusion of the need for “deeper study to guide future practice and provide better protection.”25

Institutional Practices Examining institutional practices and not just regal declarations offers another way to look at the emerging regime dealing with population transfers. At the end of World War II, the United Nations Relief and Rehabilitation Administration (UNRRA) was the first organization in charge of responding to the millions of refugees in Europe and was initially set up by European states and the United States to respond to the needs of the thirty

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million people displaced in Europe during the war. Excluding Germans, within a few years, most of the refugees were repatriated or settled, though about one million refused repatriation to the new communist states. These became the charge of the International Refugee Organization (IRO), which, in part, replaced UNRRA and the Intergovernmental Committee on Refugees, and became the major focus of several international efforts that attempted to address the increased tide of refugees. The dispute over repatriation underscored the conflict at the time between the rights of the state and the rights of refugees. At the time the IRO was formed, the Soviets advocated the repatriation of refugees to their country of citizenship and rejected the policy that refugees be allowed to remain outside their country without the permission of their government of citizenship. This demand was directed at Soviet citizens who remained in the West and refused to return. In the mass movement of refugees after World War II, the Soviets viewed refugees from the Soviet Union (including many POWs) as “traitors” and as illegitimate refugees who did not deserve asylum. The Soviet Union demanded the repatriation of “war criminals” and “traitors” and voted against the formation of the IRO. Although the IRO accepted the principle that traitors should not receive international protection as refugees and that no propaganda should be allowed against the home country in refugee camps, these principles remained contentious. Most of the Soviet refugees were similar to other refugee members of minorities, yet the Soviet Union insisted on their repatriation under the guise that they were victims of fascism or subject to pressure and economic exploitation. Repatriation became an obligation, not a privilege. In the Soviet definition, a refugee was a victim of fascism; a genuine refugee from a socialist system could not exist. Therefore, all refugees from communist states were traitors. At the same time, high percentages of them may have been collaborators, and the Soviet refusal to allow traitors to escape was not viewed at the time as unreasonable. Furthermore, the West was giving aid even to refugees and displaced persons who committed war crimes, including many who collaborated with the Germans. The Soviets set up a committee in East Berlin to handle and encourage voluntary repatriation to the motherland. The fate of the repatriated hundreds of thousands to the Soviet Union was not widely known at the time. Indeed, the repatriation was even celebrated, though possibly more out of ignorance than ideological willfulness.26

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As the Cold War evolved, the West allowed anti-Soviet propaganda in displaced person camps and among Soviet refugees. According to international law at the time, the Soviets were correct to criticize the West for the anti-Soviet policies and for rejecting the repatriation of Soviet citizens. The law required simply that a claim be made, not proven, that the refugees were criminals for them to be repatriated. That repatriated refugees would be oppressed and possibly killed did not change the legal situation. The West, accordingly, violated the IRO standards. Legality had little relevance to the political or moral situation. The refusal to repatriate was illegal but legitimate.27 Sending citizens back to the grip of Stalinism might be legal but it certainly was not moral. As a result of this dispute with the Soviet Union, repatriation fell out of favor until the 1980s when other urgent political crises helped bring it back to center stage. Indeed, the principle of non-refoulement (protecting refugees from being returned to places where they “fear persecution” and their lives or freedoms would be threatened) emerged as the most prominent legacy of the 1951 Refugee Convention. There was another focal point in the battle over repatriation, the fight over the constitution of the IRO in the Economic and Social Council (ECOSOC) of the United Nations. On one side were the Arab states and Britain who fought for the repatriation of Jews to their home countries to limit the pool of Jewish refugees pushing for resettlement in Palestine.28 They wanted the IRO to have exclusive authority to settle European refugees, largely through repatriation. In the IRO constitution, a distinction was made between refugees (pre- or postwar victims of Nazi or fascist regimes or of racial, religious, or political persecution) and displaced persons (DPs), who were displaced in the course of or after World War II.29 The Arab states, backed by the British, were defeated in the attempt to make repatriation the exclusive function of the IRO or to include Jews among those slated for repatriation. Even when repatriation was argued on the highest moral grounds of equality, nondiscrimination, and the opposition to a Europe free of Jews, the Arabs and British were unable to succeed in targeting the Jews for repatriation, which would have meant sending them back to the countries where they were persecuted. A host of additional international legal instruments have added to the implied prohibition on population expulsion. In addition to the Geneva Convention relative to the Protection of Civilian Persons in Time of War (12 August 1949), these included the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (26

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November 1968) that generalizes the principles of the Nuremberg War Crimes Trials and removes statutory time limitations to their application, as well as the additional protocols I and II to the Fourth Geneva Convention (1977). Protocol I can be interpreted as supporting the interpretation that the Fourth Geneva Convention was restricted in its applicability to aggressive wars; article I, paragraph 4, of that protocol extended the application to include “armed conflict in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.”30 This implied that such protection had not been the law previously. Article 85 also widened the prohibitions against population transfer to include the transfer by the occupying power “of its own civilian population into the territory it occupies,” irrespective of whether the transfer was carried out coercively or the state merely facilitated it. Thus, although no single code of international law explicitly outlaws population transfers, either in terms of group or individual rights protections, many human rights laws and provisions have been so interpreted, including, as already mentioned, the Convention on the Prevention and Punishment of the Crime of Genocide.31 Additional international instruments interpreted in a similar manner include the United Nations Charter (1945), in particular its nondiscrimination principles; the Universal Declaration of Human Rights (UDHR) (1948); the International Convention on the Elimination of All Forms of Racial Discrimination (1965); the United Nations Laws Concerning Nationality (1954), all of which uphold the principle of the local status of communities of habitual residence as embodiments of the right of nationality; as well as the International Covenant on Civil and Political Rights (1966); the International Covenant on Economic, Social, and Cultural Rights (1966); and the Conventions of the International Labour Organisation. As a result of the above instruments, particularly the UN Charter and the UDHR, the implied rights of refugees and of transferred populations increased, but those rights never fully achieved an explicit unequivocal endorsement of repatriation, a “right of return.” Ultimately, we are left in an interpretive limbo. This is particularly pronounced with respect to the applicability of any kind of customary international law to the wellknown and still-controversial population transfers of the late 1940s: the Palestinians, people across the Indian subcontinent, and ethnic Germans and other Europeans. An even larger number of displaced people exist in

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the former Soviet Union, where some 65 million former Soviet citizens now live outside their republic of origin.32

UNHCR: Convention Versus Humanitarian Refugees The untenability of the IRO was at least partly the reason for its replacement by the High Commissioner for Refugees. In December 1950, the Office of the United Nations High Commissioner for Refugees (UNHCR) was established, and in July 1951 an international instrument to protect the rights of refugees came into effect. As almost everyone agrees, the central issue was the prevention of the forced repatriation of individuals who feared persecution. Significantly, the birth of UNHCR was predicated on the rejection of the then-existing obligation of legal repatriation partly to avoid the obligation of repatriation to the Soviet Union, which did not participate in drafting and signing the charter of the new agency or the 1951 Refugee Convention. In 1967 this prohibition against forced repatriation was supplemented by the Protocol Relating to the Status of Refugees, which extended such protections to all refugees and not just those in Europe. The right not to be repatriated was the core of refugee protection, not the right to return. UNHCR was set up so an international body would assume responsibility for the protection of refugees. Unfortunately, it lacked a police force to provide for their security, an independent source of income to provide for their welfare, and, most importantly, any ability to confer membership in a polity. Furthermore, although the vast majority of refugees suffered as a result of their flight from violence and conflict between groups, the Refugee Convention focused on individuals who fled across borders because they were members of a group—a national, ethnic, or religious minority, or a political party—that had been targeted for persecution. The legal characteristic of the new UNHCR regime was based on the premise that convention refugees were to be treated as individuals and that the international system should attempt to resolve their predicament as individuals by providing them with international protection. The refugee regime did not attempt to address the conflict—ethnic, religious, national—and sought to aid the refugee as an individual. Whatever the national questions or issues of selfdetermination involved in the population displacement, they were not to be addressed through resolving the refugee question.

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The term “refugee” has two quite different referents in contemporary specialist parlance: convention and nonconvention, or humanitarian, refugees. In ordinary language, refugee refers to any person who flees as a result of war, political oppression, or religious persecution. This large group is commonly referred to as “humanitarian” refugees.33 Included within that large group is a relatively small subgroup—individuals who, in fear of persecution from or within their home state, flee across a border. These are called “Convention” refugees. Since World War II, they have been protected by a Convention that legally binds signatories not to return those refugees to the state they fled if the refugee can establish that there is a risk of persecution. But the roots of that definition predate World War II.34 There are also refugees who are displaced within their own country, internally displaced persons (IDPs). They have only been embraced as a responsibility of the international community since the 1990s, forming a larger community “of concern” for UNHCR.35 Consider the complexity of the definitions and the international regime that rules the rights and obligations, as well as the authorities that are responsible for the refugees, compared to the straightforward daily usage of the word “refugee.” At the end of 2008, of the 42 million people of concern to UNHCR, 16 million were IDPs and 15.2 million were humanitarian refugees, while 6.6 million were stateless and 837,000 were asylum seekers aspiring for the status of convention refugees.36 By that time, the Iraq War had added an estimated additional 4.6 million refugees and IDPs.37 Thus, in making a separation between the relatively small number of those claiming convention refugee status on the basis of individual persecution and the 97 percent of other refugees fleeing war, stateless persons, and IDPs, UNHCR divided itself into a large legal branch that provided a legal protection mechanism for the relatively small number of persecuted individuals and a growing branch that provided a humanitarian mechanism for large movements of refugees and IDPs. The vast majority of refugees do not qualify as convention refugees. Nevertheless, this division between convention and humanitarian refugees allowed governments to hold a high moral ground because they were providing humanitarian aid to refugees “over there” and offering legal protection to convention refugee claimants who landed on their doorsteps. One group was dealt with out of the goodness of their hearts and a sense of humanitarian kindness, while the other, much smaller group that fell under the Refugee Convention, imposed a legal obligation on signatories. Though the mechanisms

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and procedures have radically altered, the basic situation and division into different kinds of refugees has changed little over the last sixty years. Most convention refugees have in principle extensive legal protections and rights. They are supposed to receive similar treatment as nationals who are legally in a country, including the same rights to employment, education, access to the courts, and freedom of movement. Though even the most well-established refugee rights are often ignored and abused, the real problem for most refugees who claim convention refugee status is gaining access to the system. To prevent refugees from acquiring protection against forced refoulement—though the motive is stated in terms of managing irregular migration—an increasing number of governments have developed restrictive policies to deny refugees the ability to gain the status of asylum claimants in the first place, thus denying them legal protection. Using interdiction, restrictive visa processes, fines for airlines transporting individuals without proper documents, and other such devices, access to the domestic asylum system is denied. Thus, the principle of non-refoulement is circumscribed earlier in the process. Under the doctrine of sovereign rights, countries that have accepted a modification of that sovereign authority by granting individuals on their territory the rights to entry by claiming refugee status have, at the same time, taken action to prevent those individuals from arriving on their doorsteps. A growing number of countries, therefore, violate the spirit of the law. The denial of access to any asylum system undermines the existence of foundational principles of an international community and makes a mockery of the notion of a common humanity. Although people have the right to seek asylum, they can only apply for asylum at the borders, airport terminals of a state, or internally if they have managed to gain entry by other means, unless they directly apply for refugee status to UNHCR. Further, if they do gain access to the system, granting asylum is the right of the state, and states offer very different degrees of protection to enable refugee claimants to exercise those rights. In the case of large catastrophes, the mass numbers of refugees should at least receive temporary shelter. The burden largely falls on the countries that neighbor the catastrophe, particularly if, as in most cases of cross-border African refugee crises, they cannot stop the influx. Canada, the United States, and Australia, in contrast, are capable of interdicting boats carrying potential refugee claimants. The United States can stop the Haitian boat people; Australia can divert refugees from South Asia from arriving at their

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shores; and Canada seized a vessel carrying Tamils off the coast of British Columbia in 2009. As a rule, the industrialized countries limit the burden of asylum and restrict access to asylum seekers. Outside the industrialized world, partly because the countries lack the resources and partly for less excusable reasons, most governments confine refugees to refugee camps, often in inhospitable areas and under harsh conditions. In part, this is done to inhibit the refugees from coming. Even in Europe, one can find camps that resemble prisons as states attempt to limit the refugee inflow. This fundamental predicament between moral commitment to humanitarian action and privileging sovereignty presents obstacles to international action. The prioritization of states over people relegates refugees to a dependency that requires the assent of the state. Any political resolution requires some initiative by those states. In cases where (civil) war leads to a refugee crisis along ethnic or religious lines, the refugee’s identity as part of the group is sometimes the most dramatic factor in determining the feasibility of a resolution of the crisis. Yet, ethnic, national, and religious groups have no rights per se. Though there are conventions that protect minorities within states—protection that the international community is very ill equipped to provide—the ethnicity of the refugee group does not figure in international law as a variable.

Deportation and Repatriation Although most post–World War II deportations have receded from memory, the prohibition against mass deportation as a principle became acceptable as part of international public opinion and more recently as part of customary international law. However, the prohibition against deportation has not been correlated to a specific remedy and has not been complemented with an explicit guarantee of repatriation. Nor have sanctions been employed against the offenders. Quite the reverse! The emphasis since World War II has always been on ensuring that repatriation remains voluntary. Thus, refugees who flee en masse end up in refugee camps around the world, unable to settle or resettle, but usually fearful of the situation back home and unwilling or unable to repatriate. While for the last generation, UNHCR has advocated repatriation as the preferred solution for most refugees38, any actual formulation of a “right” to repatriation is more complicated. The repatriation argument is often

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based on two rationales: First, individuals have a right to their homes. Repatriation is a condition of exercising that right. Thus, states have obligations to assist refugees to return, and the home state has an obligation to allow the return so they can retrieve their homes. Second, refugees as an exiled population can evolve into “refugee warriors” or a recruiting ground for rebel groups and thus serve as a continuing source of conflict. Repatriation is thus perceived as a precondition to peace. Both assertions are complicated. People have the right to their homes. However, even a broad reading of the right of repatriation recognizes that in many, if not most, cases, there are no homes and at times not even communities to which to return. Thus, advocates replace the concept of the “home” with that of the “home region,” which raises the question of whether this refers to a polity or geography. Since repatriation has not been articulated as a right, its content is at best vague. The claim that repatriation is a precondition to peace, a widely believed assumption, including one once shared by the authors, has since proven to be simply incorrect.39

Reflections on International Instruments and Repatriation In the mid-1960s, the International Convention on the Elimination of All Forms of Racial Discrimination articulated “the right to leave any country, including one’s own, and to return to one’s country.”40 This was formulated as a civil right, without a reference to membership in a group or a minority, and without addressing the question of mass deportation. Some of the regional human rights instruments outlaw group deportation more explicitly. The 1981 African Charter on Human and Peoples’ Rights, for example, states that “the mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.”41 However, even these international instruments only refer to the right of individual return and make no mention of the repatriation of a collectivity. That right is provided within the context of ensuring individual free movement and offers considerable latitude to the government to determine the conditions. The formulation is of a freedom of movement as an individual right, while the praxis is a state responsibility: “Every individual shall have the right to leave any country, including his own, and to return to his country.” The latter right may be subject to restrictions provided for

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by law “for the protection of national security, law and order, public health or morality.”42 Similarly, the 1978 American Convention on Human Rights explicitly and absolutely outlaws expulsion: “No one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it.”43 While the prohibition against expulsion is absolute and unequivocal, the right of return is conditional upon the state’s concern with security and maintaining law and order. The 1963 Fourth Protocol to the European Convention absolutely outlawed the expulsion of individuals or groups that were citizens of the state. The 1963 Fourth Protocol also insisted on freedom of movement for all, but did not introduce an absolute ban on obstacles to return. Given the various prohibitions, one conclusion might be that peacetime transfers are less proscribed than wartime ones. This is particularly true if they do not involve exile nor discriminate on the basis of race. There is an implied permission to transfer populations for economic development and other reasons, and states do exercise that right. Although individuals are protected from expulsions and have the right to enter their own country, and although the American, African, and European conventions see fit to outlaw separately the collective expulsion of aliens, none of these documents mandates (or even mentions) repatriation. This leaves the issue of remedy open and casts a shadow on any claim of an international predisposition to privilege, or even accept, repatriation as a norm. The Universal Declaration of Human Rights asserts that “everyone has the right to leave any country, including his own, and to return to his country”;44 and the International Covenant on Civil and Political Rights states that “no one shall be arbitrarily deprived of the right to enter his own country.”45 In both cases, the explicit reference is to citizens in general, not inhabitants and certainly not refugees. In 1975, Alfred de Zayas wrote that “a very serious challenge to human rights which has not been effectively dealt with in positive law is the problem of mass transfers of population, which may occur within one country, across international frontiers, in time of peace, or in time of war, adding that “convention on the prevention and punishment of this crime against humanity should be adopted.”46 This plea was repeated two decades later. A comprehensive UN brief aimed to substantiate the human rights case against population transfer concluded in the 1990s that no legal code “universally prohibits population transfer as such.”47 The conclusion did not

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mean to minimize the general agreement regarding the prohibition against population transfers, but to underscore the significant fact that the international system has been unable, perhaps unwilling, to outlaw population transfers. Indeed, population transfer has been prohibited only in cases where other human rights violations are involved. Furthermore, major international human rights instruments (except the UDHR, article 9, which prohibits exile) do not prohibit expulsion. The prohibition is even more inadequate because the definition of “exile” is subject to debate. The claim that “exile” applies to both internal and external exiles or that its absence from other human rights instruments is due to its status as a rule of customary international law relies on wishful thinking when compared with widespread international practice. (The narrower interpretation of “exile” as a punishment for a criminal offense would not be pertinent to populations.) In the absence of positive law, the argument against population transfers and, even more so, the argument in support of the right of return are grounded in customary international law. Such international custom is a general practice accepted as law, manifesting the belief by states that the law required them to act that way. Certain aspects of customary law no doubt are shaped by public beliefs as asserted by writers, but the nature of international customary law extends beyond the contention that it is the actual norm in practice. Committed rhetoric cannot simply will a norm or an interpretation of customary international law. The historical records illuminate the discrepancy between our current norms and moral commitments, on the one hand, and the fact that expulsion has long been the norm in times of crisis, on the other. This dissonance between ideal norms and actual norms is bridged through the categorization of expulsion versus transfer and delineating “forced transfers” and “free movement across international borders.” The problem is to ground the “customary” aspect of the prohibition that exists in United Nations declarations and statements into actual international policy and practice. Although the United Nations has issued many statements in relation to the prevention of population transfers over the years, most often these were vintage UN generalities that failed to articulate any specific principled obligations for states, settling instead for vague demands for “international cooperation.” The reason for population transfers varies, ranging from aggressive wars, military imperatives, and violent foreign occupation, to civil wars, the pretext of national security, or even peacetime politics. Transfers include the expulsion and colonization of an area by the

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new population of a different ethnicity from the expellees. Depending on the specific circumstances, each population transfer encounters different legal standards and principles, yet, as de Zayas concludes, “it is difficult to imagine an involuntary mass deportation that would not violate” humanitarian law.48 The rationale is that population transfer and displacement always threaten life, liberty, and security, which are secured in different conventions, including the UDHR and the International Covenant on Civil and Political Rights (ICCPR). Other rights, such as the freedom of movement, are similarly violated. Since the 1980s, the United Nations has focused attention on the link of mass expulsions to human rights violations and has advocated repatriation. But the international efforts have always focused on aiding in crises, not on preventing the crises. These instruments offer relatively weak protection. And the protection of groups is even more limited than of individuals. Even the most explicit document, the ICCPR protection of individuals from expulsion from their own country, allows states to abrogate their responsibility in the face of a national emergency, which is the very essence of ethnic conflict or civil war. While advocates reasonably conclude that a stipulation that applies to every citizen should apply to refugees too, the assertion does not diminish the significance of a lack of an explicit right of repatriation. The suffering of refugees exists precisely because they are not treated as citizens who have rights in the first place. The global inability to provide a clear standard for repatriation cannot be treated merely as an oversight. It is not simply neglect on the part of the international community that has caused this deficiency. The derivative prohibitions on population transfer are based upon resolutions relating to specific cases and have, therefore, limited the formulation of international principles. In turn, this has minimized the impact of criticizing any specific transfer because population transfer has been a constant feature in the lives of so many countries. Constrained by such limited tools, both the United Nations and UNHCR have too rarely managed to intervene and prevent expulsion through diplomacy, conflict resolution, early warning, or human rights policies. Instead, the international community has been limited to postexpulsion aid, delivering assistance to refugees and extending the UN mission in more recent years to internally displaced victims.49 In many conflicts where the United Nations has been involved, population transfer is a permanent feature; such conflicts include many African states, the former Yugoslavia, Afghanistan, Cyprus, Cambodia, East Timor, Haiti, Iraq, Palestine, Bhutan, Myanmar, and Sri Lanka.

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Consider this pitifully modest statement, which was the best a UN report on population transfer could garner in 1993 in the midst of the Balkan ethnic cleansing and on the eve of Rwandan genocide: “Forced eviction may form one of the central mechanisms of population transfer, particularly when applied on a large scale and against a distinct population group. Therefore, it is encouraging that this issue will be considered in the forthcoming report of the Secretary-General.”50 This may sound surprising, but perhaps it should not be, given the sorry history of the United Nations regarding human rights. During the Cold War, the topic never attracted much enthusiasm, particularly when refugee displacement was raised, because it was always bogged down by superpower rivalry. Since the 1990s, the politicization of human rights in the United Nations and the election of some of the worst offenders to the UN Human Rights Commission (e.g., Cuba, Libya, Syria, and China) has only undermined its moral authority. In 2004, for example, Sudan was elected to the Commission during the very week that its domestic ethnic cleansing of a million refugees in Darfur was criticized by the Secretary-General. Though it has significantly improved, the early years of the new Human Rights Council that replaced the Commission in 2006 do not bode well for an elevated moral legitimacy, in spite of some very good work. Only with the International Criminal Court (ICC) coming into force after the Rome Statute did the deportation and forcible transfer of a population become one of the crimes that could be directly prosecuted.51 However, the ICC charge is limited to individuals, so while individuals and leaders can be charged with this crime, it still falls short of creating a mechanism where the responsibility of the state can be adjudicated. The implementation of this prohibition and its impact has yet to be seen. But even this positive development falls way short of speaking directly to repatriation as a right. The negligible international attention given to minority repatriation is evident by the modestly explicit attention given to it by the Security Council. Even in cases to which it does pay attention, repatriation is primarily a derivative of a human rights standard and is rarely explicated as a legal standard. One exceptional case is the demand for repatriation following a substantial outflow of Georgians from Abkhazia in the former Soviet Georgia. The Council called on local authorities to repatriate the displaced Georgians. In 1993 it “urged” the parties “to create conditions for the voluntary, safe and speedy return of refugees to the places of their permanent

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residence.”52 Two years later the Security Council referred to the Quadripartite Agreement on Voluntary Return of Refugees and Displaced Persons signed between the Abkhaz and Georgian sides in Moscow on 4 April 1994 as a basis to reaffirm “the right of all refugees and displaced persons affected by the conflict to return to their homes in secure conditions in accordance with international law.”53 Was it the international law or the Quadripartite Agreement that created the “right”? This is not explicated in the resolution, but it is clear that it was the agreement that ostensibly provided a basis for the call for repatriation rather than a general principle of international law.54 The repatriation did not take place, and the ineffectiveness of the declaration is glaring. Security Council condemnation followed months later, “deploring the continued obstruction of such return by the Abkhaz authorities.” In the same resolution, the Security Council expressed “the need for the parties to comply with international humanitarian law,” but included no reference to any law regarding repatriation.55 The Security Council refers to refugees and displaced persons (by 2006 there were three hundred thousand displaced from Abkhazia and South Ossetia) without distinguishing between the “rights” of each category. In 2008, before the impending summer war in Georgia, the General Assembly took up the protracted refugee crisis in the region and adopted (on 15 May 2008) a resolution recognizing “the right of all refugees” (including victims of reported “ethnic cleansing”) to return to Abkhazia and regain their property rights. It “regretted” the attempts to alter prewar (1992–1993) demographic composition and called for the “rapid development of a timetable to ensure the prompt voluntary return of all refugees and internally displaced persons to their homes.”56 The vote was 14 Member States in favor to 11 against and 105 abstaining. It is hard to imagine the vote as a strong endorsement of repatriation. This was largely a post-Soviet exhibition game, where several of the postcommunist countries poked the Russian bully in the eye. The Russian response came later in the summer. In reaction to escalating tension and a hardto-comprehend decision by Georgia to attack South Ossetia, the prepared Russian army devastated Georgia within days, and thousands of new IDPs and refugees were warehoused in dilapidated buildings in Georgia. Even with these limitations, the UN resolutions regarding Georgia stand out as an exception, not a rule. Given the refugee policies between the world wars, the continuity is evident: ad hoc determinations with little or no impact and without creating even a semblance of universal rights.

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Perhaps the most important international commitment to repatriation has been the Dayton Peace Accord concerning the repatriation in the former Yugoslavia, which we will discuss in full in chapter 4. The centrality of reversing ethnic cleansing and supporting repatriation, including the investment of serious political effort and economic resources, has made it into a potential test case for international resolution under perfect conditions. There was a High Representative in Bosnia who had great latitude in shaping the country’s politics, international force, and economic leverage. The outcome was very clear. Except for three urban areas with mixed populations, majority repatriation took place, while minority refugees hardly ever returned to their previously mixed communities. Of the few who did return, most were old. Some reclaimed property but did not move to reestablish the mixed communities that had existed previously. As will be shown in the following chapter, ethnic cleansing was not reversed. History seemed to teach that ethnic repatriation did not work even under optimal international pressure.

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[ 4 ]

Reversing Ethnic Cleansing Bosnia Versus Kosovo

The Dayton Peace Agreement (DPA) signaled the end of the war in Bosnia in 1995. An intensive international effort to reverse ethnic cleansing followed. The results were generally disappointing. Only after 2000 did the policies appear to bear fruit. According to UNHCR statistics, “the total of registered returns to and within BiH has risen to nearly 1 million people, including some 390,000 so-called minority returns.”1 This claimed success for repatriation of minorities, however, significantly overstated the reality. The majority of the 390,000 were those who only returned to reclaim their homes and promptly resell them. Despite the extensive promotion of a minority return program, the effort was largely for naught. Relatively small numbers returned to reestablish a mixed community by taking up permanent residence in areas where they would be a minority. If the largest international effort to support minority returns following an ethnic conflict led only to very modest repatriation, what are the implications for other conflicts with much less international support? A very different return took place in Kosovo. In 1999, the war in Kosovo was fought in the shadow of Bosnia; the NATO coalition desperately sought to minimize repeating previous mistakes. As in Bosnia, a full-scale war was anticipated well in advance as Michael Ignatieff noted: “in the Spring, everyone expects the fighting to begin again.”2 The explicit aim of the West

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in pursuing the war was to stop the massive expulsions and enable repatriation. If no intervention took place, a near consensus, including most media commentators, concluded that most Kosovars would be resettled in the West: “few of the refugees reaching our shores will ever return to the valleys and mountains of Kosovo.” The West would be “colluding . . . albeit unwillingly and unwittingly” with the ethnic cleansing.3 Consequently, the end of the war appeared dramatically different than the results of the Dayton Peace Accords. The Kosovo war ended with massive “spontaneous returns” of Kosovars. Almost a million refugees returned. However, in the confusion, as the old regime was vanquished, and as the Muslim Kosovar refugees returned, many Serbs and Roma were attacked and an estimated 165,000 Serbs and 23,000 Roma fled Kosovo4 while an estimated 35,000 were internally displaced.5 The majority population that had been expelled by a violent regime was able as a result of the defeat of the regime to return en masse; militant Kosovars then forcefully displaced many of the minority population. That displaced minority became permanently uprooted. The distinction between majority and minority repatriation could not be starker. If repatriation in Bosnia and Croatia raised questions about minority return, Kosovo emphatically offered an answer. Majority return of Kosovars entailed minority expulsion of Serbs and Roma as well as victor’s justice. However, as we shall see, although the differences in empirical reality for Muslims could not have been starker; the principle similarities, which we observe throughout this book, were just as dramatic. In ethnic conflicts, though an ethnic group may be a minority in a state as a whole, people return to areas where they are a majority. This was the case in both Bosnia and Kosovo. In the latter case, NATO was faced with a catch-22. If it had not acted, a million Kosovars would have been ethnically cleansed and the West would have been burdened with their resettlement. But the use of force to enable their repatriation also allowed for almost 225,000 Serbs and Roma to be ethnically cleansed. If NATO failed to act, the West would have been complicit in ethnic cleansing. By acting, the West helped bring about ethnic cleansing.

Bosnia After the end of the Cold War, old communist apparatchiks manipulated ethnic nationalism to consolidate and expand their own power once the

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communist idol had totally disintegrated. Regional and ethnic tensions within Yugoslavia led the Slovenes, Croats, and Serbs—followed by the Bosniaks and later the Kosovars, Macedonians, and Montenegrins—to forge states that would protect and enhance their ethnic nationalism. Once the official ideology of the civic state had become an empty shell without any legitimacy, pan-South Slav nationalism dissolved from the centralized political and civic nationalism of Yugoslavia into its lowest common denominator, the ethnic nationalism manipulated by the purveyors of violence that characterized the conflicts in the 1990s. Extremely violent wars of succession ensued with two initial objectives: First, redrawing the political map of the former Yugoslavia so that the Serbs controlled the political territory in which they were majorities. Second, where they were significant minorities, they would become majorities. In both types of territory, Serbs engaged in ethnic cleansing to remove non-Serb populations that could threaten that power and Serbian political control. Both tasks were accomplished by the war, though not as fully as the Serbs would have liked on the political level, nor, in the end, as extensively on the territorial level as they had achieved at the pinnacle of Serb power. This was particularly true in Croatia, where the Serbs lost all of their initial gains and were forced to flee. Ethnic cleansing was not prevented when it first occurred. During the 1992 American presidential elections, Bill Clinton tried to shame President Bush for his failure to act when the JNA/Yugoslav People’s Army had been used to bolster the Croatian Serb separatists in the Krajina region in order to wrest control of that area, produce eighty thousand Croatian refugees, and declare a separate Serb republic. The West in general, and America as its leader, failed to act on the knowledge that undemocratic leaders, taking advantage of the economic malaise induced by an undefined, inefficient, and overstaffed productivity sector and a dysfunctional state, were manipulating ethnic nationalism to split Yugoslavia apart—not only into different political states, but into political entities within states and even regions inside those entities largely cleansed of ethnic minorities. Once in power, the Clinton administration was torn by the rivalry between the realists unwilling to subordinate ex-Yugoslavia to policies more central to American interests, and the liberal internationalists (Vice President Al Gore and UN Ambassador Madeleine Albright) who wanted to punish or, at the very least, limit the victories of the Serb aggressors. Led by Cyrus Vance and David Owen in January of 1993, the Europeans backed

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a diplomatic initiative for formalizing the process of ethnic cleansing while retaining the semblance of a multicultural, unified state, which divided Bosnia ethnically into ten cantons within a weak central state. Officials of the incoming Clinton administration did not support the Vance-Owen plan initially because it failed to meet the objectives of the liberal internationalists, who wanted ethnic cleansing reversed and its perpetrators punished. On the other hand, the realists were willing to accept ethnic cleansing as a fait accompli in order to prevent or mitigate further conflict and avoid any US involvement; they brought about a reversal in the Clinton position. Serbian President Slobodan Milošević, who had called the initial shots on both Croatia and Bosnia, was not prepared to throw the callow behavior of the Europeans in their faces, and he endorsed the plan. The Bosnian Serbs, however, rejected it. By 1994, the United States assumed a leadership role on Croatia and Bosnia. The Contact Group (diplomats from the United States, the United Kingdom, France, Germany, and Russia) accepted the reality of ethnic division and drew up plans to award the Serbs (34.5 percent of the population) 49 percent of the territory of Bosnia and allot the Croats and Bosniaks 51 percent. In March 1994, the Washington Agreement ended the Croat-Bosniak war and established a Muslim-Croat federation conjoined with a Serb entity within the larger federation of Bosnia. The Serbs had to be brought into the deal. In the summer of 1995, the conflict escalated. Serb nationalists increased their attacks on Sarajevo, to which NATO responded by bombing Pale. This was followed by General Ratko Mladic seizing three hundred UN troops as hostages and the West capitulating temporarily, stating there would be no further air strikes except in response to a strong assault against UN peacekeepers. General Mladic, after releasing the UN soldiers he held captive, immediately launched a full-scale assault on the “safe area” of Srebrenica. Only after its capture on July 11, only after the rape of its women, and only after the massacre of its men and boys were rhetorical gestures that had only been backed by retreats replaced with a political policy backed by force. The balance of power, however, began to shift as the United States embarked on ensuring that the Croats and Bosniaks had the muscle to back the political initiatives with force. The arms embargo against the BosniaHerzegovina government was lifted. NATO responded to the violent attacks by the Bosnian Serbs (and the Serb Army) against the safe areas with an air campaign that lasted three weeks (from August to September 1995).

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This “lift and strike” policy was not intended to reverse ethnic cleansing as much as set the conditions for ending the war, and it did lead to Dayton. The first eight months of 1995 reversed Serb gains in Croatia and offset Serb gains in Bosnia. With a large and reasonably well-equipped army facing the Serbs, who were spread out over the territory of Bosnia, President Tudjman of Croatia in February demanded the withdrawal of the UN troops separating the two sides in the Krajina area. In August, he launched his strike, which quickly recaptured the area and sent approximately 250,000 of its Serb inhabitants into exile in eastern Bosnia and the Federal Republic of Yugoslavia.

The Dayton Agreement With no further gains to be made by war, the presidents of Serbia, Croatia, and Bosnia acceded to the Dayton Peace Agreement (DPA). The Dayton Accords provided a political, military, economic, and demographic solution to the violent conflict begun four years earlier. The Republic of Bosnia and Herzegovina (BiH) remained an intact single country, but one with an extremely weak central government and divided into two entities—the Republika Srpska, an almost entirely Serb area, and the Federation of Bosnia and Herzegovina (the Federation), populated by areas with concentrations of Bosniaks and other areas dominated by Croats. There were few mixed areas. The only places that had a minority population greater than 10 percent were large cities, such as Tuzla or Sarajevo. Minorities existed in the smaller cities and towns, but the populations were not mixed but radically divided ethnically within each municipality. By accepting the results of the ethnic cleansing, reifying them politically, and reinforcing the separation by democratic, ethnic representation, ethnic separation was entrenched. Though the peace treaty provided for reversing ethnic cleansing, this principle of ethnically dominated and virtually ethnically monopolized political entities was not reversed even when Croatia recaptured the territory and 250,000 Serbs were themselves ethnically cleansed from Croatian territory. Bosnian Croat nationalists initially demanded their own independence or at least autonomy, but were forced to share control with the Bosniaks. This resulted in the Inter-Entity Border Line (IEBL), dividing Bosnia-Herzegovina into two entities, Republika Srpska and the Federation of Bosnia and Herzegovina. The international com-

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munity attempted to snatch an ideological and rhetorical victory for their collective belief in tolerance and ethnic pluralism out of the jaws of defeat. US Secretary of State Warren Christopher vowed at the time that “refugees and displaced persons will have the right to return home or to obtain just compensation.”6 The Dayton Peace Agreement emphasized the central role that repatriation and ethnic remixing would play in the rebirth of BiH: “The fundamental principle of the Dayton Peace Agreement is the right of refugees and displaced persons to return to their home of origin.”7 Specifically, annex 7, the “Agreement on Refugees and Displaced Persons,” emphasized the repatriation of refugees to their homes, not merely homeland or region, and compensation for lost property. Article 1(1) states: 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.

Refugees were entitled to choose between repatriation and compensation. Bosnia is one of the few cases where the right of return across the ethnic divide of minorities was explicitly established in an international agreement. If all refugees and internally displaced persons (IDPs) could exercise that right to return to their prewar homes and properties, a right unique to international law,8 ethnic cleansing would be reversed.

The Return Clause in the DPA Rights “given” to refugees without specifying the duty bearers have often limited significance. Within this context, the DPA imposed general guidelines and emphasized the lack of discrimination against returnees. However, the DPA lacked clear, specific duties to foster repatriation. The Federation and Republika Srbska were not obligated to actively pursue minority returns in a specific manner. Rather, the main obligation on the polities was to not “interfere with the returnees’ choice of destination.” Article 1(4) continues: “nor shall they compel them to remain in or move to situations of serious danger or insecurity, or to areas lacking in the basic infrastructure necessary to resume a normal life.” Several conditions were stipulated as antithetical to return, including the risk of vigilantes or

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the lack of infrastructure. The parties were not compelled to provide such infrastructure. If anything, the political entities would be guilty of enforcing return—which the terms of agreement explicitly forbade—before the infrastructure was available. Beyond the declaratory part, the more practical aspects of planning return, such as in the appendix and in its explanation, envision a lack of return. For example, the Commission for Real Property Claims of Displaced Persons and Refugees (CRPC), in its information bulletin on its functions, states that “where claimants cannot or do not wish to return into possession of their property immediately, a CRPC decision gives them authoritative confirmation of their rights in the form of a legally binding document which can be retained for future use.”9 In other words, the CRPC contemplates the inability to exercise the right as well as the desire not to do so and makes provision for the protection of property rights, even when the right to return cannot be protected. Further, article 11 makes the purpose of the certificate clear: to retain the exercise of return at a later date when the security situation is better or where another family in occupancy has been moved out. The article provides that “claims may be for return of the property or for just compensation in lieu of return” (our italics). The DPA gives the CRPC a great deal more power than simply issuing a property certificate that can be used to claim compensation. The Commission was granted the power to facilitate a market for the sale or exchange or lease of properties and had the power to effect property transfers or exchanges.10 Significant attention and explicit text had been built into Dayton to provide for the legal transfer of property or the final settlement of property ownership within a reasonable period of time. What is even more noticeable is the attention to protecting property rights in comparison to the lack of provisions for ensuring the right of return in an effective manner. Although article 1(1) of annex 7 explicitly states that “the early return of refugees and displaced persons is an important objective,” and paragraph 5 calls “upon States that have accepted refugees to promote the early return of refugees consistent with international law,” the details of other articles make provision for filling other mandates, such as relocation rather than return to original homes. Further, the emphasis is on promoting return, but not necessarily to places of origin. In other words, as long as the refugees are back in their home country, even if they have been relocated and have not been able to return to their original homes, states have fulfilled their obligations. Most importantly, this provision opens the gate for

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breaching the non-refoulement provisions of international law, which have been interpreted to mean that states are guilty of refoulement of refugees if they return refugees to their homeland where they are not safe. By this clause, Germany was protected from any accusations of breaching international refugee law and forcing the return of refugees even when the refugees could not return to their homes. Article 1 makes it even clearer that, although return to homes is a goal of the DPA, settlement anywhere in the former Yugoslavia was generally prioritized over return home. The DPA is a framework for relocating and resettling the bulk of the uprooted persons and is not primarily a framework for refugee and IDP repatriation or even return to their homes. Dayton offered a plan to resolve a political/military crisis, not to guard the rights of the refugees. Further, the rhetorical commitment to reversing ethnic cleansing and promoting minority return conflicted with the understandable resistance of Bosniaks to return to a Serb-dominated territory and polity, especially given the actions of Serbs in the Republika Srbska to inhibit return. Consequently, the process of concentrating on minority returns indirectly inhibited the resettlement and reconstruction efforts, where minority return is defined as a return to an area controlled by an ethnic group other than one’s own—even when one’s ethnic group had previously been a majority, and regardless of the demographic makeup of the new minority.

Repatriation in Bosnia What are the conditions necessary to foster repatriation? What mechanisms are available to carry it out? What criteria exist to measure success? In evaluating the degree to which the goal of reversing ethnic cleansing and returning the displaced to their homes was achieved, there were three phases of repatriation: 1. The immediate aftermath of the end of the war (1996 and 1997); 2. “The year of minority repatriation” (1998 and 1999); 3. The period of minority repatriation declared successful (post2000). The first two periods were generally regarded as failures in achieving minority repatriation. In contrast, the period after 2000 was heralded as a

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success. To evaluate this “success,” we must critically examine the policy of minority repatriation and the right of return. The first precondition for repatriation is security, both to prevent the intimidation of minority returnees and to end the regime of impunity for criminals who committed gross violations of human rights. To that end, peacekeeping forces had to inhibit and arrest those who continued to use violence against ethnic minorities. Furthermore, physical infrastructure had to be reestablished; macroeconomic polices and investments were needed to build and restore housing stock to sufficiently satisfactory condition in order to accommodate returnees. Educational opportunities were required for minority children with a school atmosphere and curriculum that would not discriminate and scare them. It was up to the Office of the High Representative (OHR) to employ administrative measures to foster return, inhibit spoilers, help ensure that IDPs who occupied the housing of others could move to permanent housing, and promote programs of interethnic reconciliation and understanding.11 The rebuilding efforts began with major capital investment in restoring housing stock and building new housing, and administrative measures were taken to stop the efforts of those determined to sabotage the program of repatriation. These administrative efforts largely failed. The basic requisite, the removal of any violent threat, was not achieved. Peacekeeping forces were rarely used to support the program of repatriation; there was little interest in risking the delicate peace in pursuit of what was viewed by many as an ethereal goal. Refugees and the internally displaced were intimidated by vigilantes supported by the police and the military. In the Zone of Separation (ZOS) between the military forces of the two sides, where one might expect the nationalists to push minorities back to their homes, or at the very least to continue the battle for demographic control of the area, there were very few returns. Finally, efforts at interethnic reconciliation were late in coming and not nearly adequate to reverse the general animosity. In evaluating minority repatriation, different criteria to assess success may be employed: (1) the repatriation of minorities leads to adequate reintegration; (2) refugees and IDPs are adequately compensated for their losses; (3) homes are physically repossessed, a criterion used in the official statistics in the third and so-called successful phase of the repatriation program. No attention was paid to evaluate how long returnees stayed in their homes. Since support for advertising the success of the policy depended

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Source:  UNHCR.

Figure 4.1  IDPs in BiH, 1995–2005.

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on the lack of information, it should be no surprise that we have no data on how long returnees remained repatriated. Instead, success was measured by how many were struck from the list of those dispossessed. When refugees or IDPs received help to reconstruct their homes or to retake possession of their homes, they were struck off the lists of those who were recorded as displaced even if they stayed in those homes for the shortest time. A different criterion for success need not posit reintegration (which is too lofty) but should mean return for some reasonable duration to the homes from which the displaced were forced to flee and the recreation of a renewed mixed community.

Minority Returns During the 1990s At the end of the war in the former Yugoslavia, over half of the population of Bosnia’s 4.3 million had been forcefully expelled, the largest displacement in Europe since the post–World War II years: 2.3 million people were uprooted, divided almost equally between refugees and IDPs; only 1.9 million remained in their homes.12 Of the 1.22 million IDPs, a half million were in BiH while almost 670,000 were spread around other parts of the former Yugoslavia—Croatia (187,000), FRY (450,000), Slovenia (24,000), and Macedonia (7,000). As for the 1.1 million refugees, 700,000 were in other European countries, and the rest were scattered elsewhere. The new reality was one of almost total ethnic segregation. Over 95 percent of the original Croat and Bosniak inhabitants from the regions that became Republika Srpska were uprooted, as were over 90 percent of the original Serb inhabitants in the Federation. Immediately after the end of the war, a further ethnic consolidation took place. More refugees and internally displaced persons were uprooted, and minority returns were relatively small. When they tripled from 1996 to 1997, a significant number were transients who only visited; the figure measured any refugee who returned for any duration, including for twenty-four hours. Many of the returnees returned to establish a possessory claim on their properties rather than to resettle in an area where they would be a minority. The repatriation policies encountered the tension between European governments, primarily Germany, which wanted to see the refugees they had given shelter to being repatriated, and the OHR, which was focused

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on rebuilding the society. Toward that goal, in March 1997, UNHCR began the Open Cities Initiative, even though it was opposed by the European Union because of the recognition that it would primarily appeal to IDPs rather than the refugees in Europe.13 The program offered large financial incentives for return, but conditioned the reconstruction aid on a municipality ensuring and promoting safe minority repatriation. Only four cities in the Republika Srbska (Mrkonjic Grad, Sipova, Laktasi, and Srbac) fit the criteria while eleven qualified in the Federation. The program was disproportionately costly with relatively few results.14 In the second phase of the returnee program, before the alleged successes in the twenty-first century, the Open Cities program attracted less than 5,000 of the almost 130,000 returnees in total who could properly be regarded as returnees to areas in which they were the minority where they reestablished their homes.15 The ratio of minority relative to total returnees, let alone the invested political capital and economic resources, was very low. The international community declared 1998 the “year of minority returns” with the goal of 120,000 and perhaps 200,000 mostly Muslims (and Roma), as well as some Croats, returning primarily to Republika Srbska. The hope that most could return to their homes from Germany was dispelled. In the five years following the Dayton Accords, there was little to show for the enormous effort invested in minority returns; most were unwilling or could not return. Overall, most repatriated refugees were confined to areas dominated by their own ethnicity. In the first five years after Dayton, there was a general consensus that minority repatriation failed and with it the Dayton Accords’ emphasis on repatriation and the objective of reversing ethnic cleansing. Indeed, the sense was that the peace legitimized the ethnic cleansing.

Minority Returns, 2000–2007 The evidence of repatriation is unclear, particularly regarding minority return. Of 300,000 in Germany in 1995,16 by the end of 2000 only 40,000 ex-Yugoslav refugees were left. However, there was no evidence that 260,000 had returned to resettle permanently in Republika Srbska or as a minority elsewhere. Further, in contrast to the declining number of registered refugees, almost 800,000 IDPs remained in Bosnia.

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In 2000, returns unexpectedly surged to almost 100,000; 70,000 were reported as having returned to minority areas. Partially as a result of a re-registration exercise, the numbers of IDPs in 2001 dropped by over 350,000. During 2001 and 2002, recorded minority returns ostensibly averaged 100,000 per year. Finally there appeared to be a semblance of significant minority return—270,000 over three years. After that, the total number of returnees began to drop in 2003 and became insignificant in 2004. Between 2004 and 2005, there was a new surge as almost 125,000 IDPs were registered as minority returnees. Increasingly, returnees were recorded in minority areas. Between 2000 and 2005, an estimated 370,000 were represented as minority returns out of up to three-quarters of a million refugees and IDPs who could potentially have returned to minority areas within BiH.17 Though perhaps not quite reversing ethnic cleansing, had the figures represented a true reality, this could have been legitimately argued as a very significant achievement given the circumstances. That would have meant that of the three-quarters of a million refugees and IDPs between 2000 and 2003, almost half repatriated to minority areas. Did they? The minority returnees were divided into two large categories. The elderly, who constituted most of the real returnees, and the rest—most of whom were taking advantage of aid to rehabilitate their property in order to sell it.18 The IDPs and the refugees who would be minority returnees were mostly concerned with material compensation and issues of legal status, and much less in physical return and living as a minority in a postcleansed community. The return of the elderly is self-explanatory; they were not going to build a new life, worry about education and school for young children, and they were least threatening to the majority as they could not provide the foundation for building a new community. Others who were counted as repatriated were only visiting, checking on their old homes and the status of their property. Though they may have registered and appeared on the municipal rolls, they did not remain in their home of origin but only “returned” to repossess their property in order to sell or rent it. Return was for many a form of compensation rather than repatriation and certainly did not constitute the reintegration of different ethnic communities. The increase in minority return resulted also from some specific factors, such as property legislation that facilitated return. Local officials who obstructed the minority repatriation were subject to pressure by the Office of the High Representative, who reformed the legislation and fired person-

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nel who hindered the implementation of property reforms. The prosecution and delegitimization of the ethnic cleansers was another essential precondition for encouraging return, but those steps faced the counter forces of discriminatory proceedings in the local courts, which aggravated the fear of minorities and dissuaded them from returning. Nevertheless, there is evidence that the ICTY did foster a positive attitude to return. In 2000, only 33 percent of the population surveyed thought the ICTY would have a positive effect, whereas by 2005 74 percent believed it would have a positive effect.19 However, this positive attitude did not translate into significant numbers of actual minority returnees staying. In addition to new property laws, activist administrative procedures, and the use of the ICTY, the overall international oversight and extensive investment of international resources and political capital were essential to stabilize the societies. Certain shifts were at the national level, such as the election of a less nationalistic government in Croatia and a stabilization process in BiH. But the changes took time. Increasing numbers of refugees had reestablished themselves in new places. They may have remained refugees or IDPs in status, but were not in a rush to uproot themselves again. The most successful repatriation took place in ethnically homogenous regions where security ceased to be an issue. In a small number of places, this also encouraged cross-ethnic repatriation, especially in secure places. Indeed, beyond the national considerations of minority repatriation, much was determined locally. For example, in Konjic, the authorities were unthreatened by the return of minorities because, even after the non-Muslim repatriation, the Muslim majority remained dominant. In other words, ironically, perhaps the most important factor facilitating minority repatriation was the very security brought about by a large majority homogenization.20 The local stories in each community help explain the specifics of return. For example, in Kozarac, located in the heart of Republika Srpska, half of the twenty thousand non-Serb population before the war (out of twentyseven thousand total) were registered as having returned by 2003. More likely there were six thousand who remained in the town. Was it a case of successful minority return? Of the returnees who stayed, most were elderly; the rest, the majority, were registered as having returned because they claimed their rebuilt homes. Because the houses had mostly been destroyed, they were not available to be occupied by Serbs and, thus, were rebuilt and could be claimed by the expellees. Furthermore, the location of the town in close proximity to Sanski Most (which housed tens of thou-

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sands of IDPs) allowed the people to move back and forth between the two towns; the rebuilding was well organized by a dynamic and determined leadership. The “return” was more successful as a rehabilitation of the lives of the refugees, less as reversing the ethnic cleansing or building a mixed community. In Prijedor, the larger town in the region, the return was presented as a success, though as news reports described it, the return was also a gesture of defiance for the economic life of the segregated minority remained dependent on the diaspora.21 The number of returnees reported (fifteen thousand out of almost fifty thousand) is illuminating both for being partial and exceptional. As Roberto Belloni described it, the return (which he sees as successful) was due to local conditions, leadership, and, despite international disinterest, the inability to be adequately nimble to take advantage of, or even support, local initiatives.22 This success was mostly measured in the housing reclaimed and the shift to more moderate local politics. Indeed, Prijedor suggests there can be local variation, but the scope remains limited. In contrast to the Republika Srbska, the Federation seemed more promising for minority refugees to return to their prewar homes, especially in the cities. However, attempts to establish a unified multiethnic society fell short despite the international community’s efforts to influence the outcome. For example, attempts to unify Mostar in 2004 through administrative edicts by the OHR were widely criticized as unsuccessful. By 2007, Mostar remained divided between Croats and Bosniaks, each on a different bank of the river, with a small number of Serbs scattered among both populations. The expectations for reintegration largely failed. Nationalists continued to dominate much of the public discourse and remained the strongest political force in each community.

Restitution of Property There are different factors that influence minority repatriation—the removal of illegal checkpoints, interentity transportation without stigmatization, building new homes—none perhaps more important and less subject to public discussion than property laws. The questions of the repatriation of refugees and restitution of property were intimately intertwined, especially for minority returnees. In the former Yugoslavia, not only was the

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return to the homeland linked to the return to home,23 but the return to home was linked to the reconstruction of that home.24 By 2000, IDPs constituted two-thirds of those left to be repatriated or otherwise resettled.25 Though refugees and IDPs in one area often occupied the properties of refugees and IDPs who fled from that area, there was a great deal of asymmetry. The large numbers of refugees outside the country were overwhelmingly Bosniak. At the same time, there were additional Serb refugees in Republika Srbska who came from Kosovo as a result of the 1999 war, and there were no Bosniaks or Croats who had taken refuge in Kosovo. The physical presence of refugees in the property of other refugees remained a major obstacle to repatriation. The repatriation of the former refugees could lead to their own eviction. Thus, many displaced actively opposed repatriation. Squatting was most prevalent in Republika Srpska, where Serb refugees from Croatia occupied the houses of Bosniaks and Croatians who had fled or were forced to flee, but Bosniaks and Croatians also occupied the homes of Serbs who had fled to Republika Srbska. Authorities in Republika Srbska refused to cooperate with population repatriation, and generally local authorities passed laws enabling the IDPs to occupy “abandoned” properties even as some individuals took possession of properties without the sanction of those authorities. During the war, minority residency rights were terminated en masse. Apartments with occupancy rights had provisions that allowed for the forfeiture of these rights should the apartment be unoccupied for six months. While there were refugees in all of the former Yugoslavia states, each state was impacted differently. Structural imbalances and the reciprocity of victimhood did little to alleviate suffering. A crucial factor in determining repatriation for both minority and majority return was the provision of adequate housing. Before the war, there were almost 1.3 million housing units in Bosnia and Herzegovina for its 4.3 million people, almost a 30 percent ratio and considered quite adequate. Further, 80 percent was held with free title and 20 percent was held as an occupancy right; residency was a form of nonsaleable property right that could, however, be transferred to children. The state had the right to terminate residency, but normally did so only rarely. In the cities, property held by means of occupancy rights constituted 50 percent of the housing stock.26 At the end of the war, because of the destruction, the overall housing stock was inadequate; this was a major factor in determining

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the feasibility of repatriation. Insufficient reconstruction assistance also proved a major impediment to return. This shortage of housing reached a crisis in the Federation, particularly in the large cities, where the shortage was exacerbated by an accelerated urban migration that inhibited repatriation. Property repossession faced many obstacles, including the dilemma of what ought to happen to the displaced people currently occupying the properties and what kind of property should be subject to repatriation. There was also the issue of the physical inability to repossess property once it was legally restored to its original owners. By the time other obstacles for minority return began to soften, international donors had shifted their focus elsewhere. Funds had begun to dry up in the face of compassion fatigue. There was widespread disgust with the kleptocratic corruption of a predatory elite,27 which was not aided by obstructionism and the bureaucratic legacy of the communist era of inaction. Above all, programs were politicized by the ethnonationalists who tended to dominate local governing structures.28 The distribution of scarce reconstruction aid provided another tool for discriminatory policies, especially where extensively damaged and destroyed homes presented a serious obstacle to repatriation. These local conditions were aggravated by the new international competition for reconstruction funds and attention in such places as East Timor and, later, Afghanistan and Iraq. In Bosnia, the OHR, with the backing of the CRPC and UNHCR as well as the other international agencies, played a principal role in the repossession of properties. Under intense pressure from the international community, in April 1998, BiH passed new property laws, followed by Republika Srpska six months later. In response to obstruction from the political authorities, in 1999 the OHR introduced the Property Law Implementation Plan (PLIP) and imposed legislative measures to harmonize, centralize, and monitor the enforcement of the new 1998 property laws in accordance with standardized norms and expectations while leaving their administration with the municipalities.29 These Laws on Cessation for the first time obligated political authorities to issue decisions on the rights of owners to repossess their property, but also to inform temporary occupants that once a decision is made on ownership, they would be required to vacate within ninety days, a deadline that was rarely enforced.30 In time, as the administration became relatively neutral and included many international officials, it continued to devise legislation and set in motion practices that helped tenancy rights holders legally repossess their homes.31 This resulted in

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higher repossession rates. Most former tenancy rights holders after 2000 were able to repossess their prewar apartments, qualify for and obtain reconstruction assistance and then sell the property. The goal of property restoration was largely completed by 2006 in the Federation with the implementation by 2004 already estimated at above 90 percent,32 when the responsibility was transferred to the municipalities. This could not be said of Republika Srbska or Croatia. In Croatia, for example, housing reconstruction aid was aimed at ethnic Croats; Serb IDPs were at the bottom of the list. This resolution of the property restitution program after 2000 is viewed by some as a limited but nevertheless significant success for minority returns. We, on the other hand, differentiate between property restitution and minority return. The repossession of property, however valuable and important, is not evidence of repatriation and reversing ethnic cleansing. Repossession was largely an effort to reclaim lost capital, not repatriation. The actual number of minority returnees who stayed after claiming their property needs to be disaggregated from those who, following repossessing their property, sold it. Indeed, many of those who did repossess their prewar homes in Bosnia sold, exchanged, or rented the property. This was both because the challenge of minority existence went beyond security and included problems of schooling for children and because of the fear of future uprooting, even though after 2000 the international administration in BiH had created relatively favorable conditions for ethnic remixing. Further, many of those who were dubbed minority returnees were confined to certain main return areas—Sarajevo, western Bosnia around Prijedor and Banja Luka, Mostar, and the northeast—where populations remained locally divided. This was not reintegration nor minority return, but simply returning to a local rather than a regional divide. There were returns to mixed cities and the ethnic balance shifted, but to call these “minority returns” is misleading. Further, the new demographic makeup did not reverse the ethnic cleansing when a previous majority became a minority. The history, demographic composition (current and past), and political leadership of every local community all shaped the outcome of minority repatriation. The willingness of displaced Bosnians to return depended largely on anticipation and the experience of reception in the areas of return. The role of Bosnian politicians in fostering or resisting policies conducive to return remained crucial. Facing intimidation, many Bosnians of all ethnicities returned to their homes only to flee once again.33

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The large number of refugees and IDPs who have returned, but not to their homes, presents a dilemma for our understanding of return. Refugees who are repatriated elsewhere than their prior homes ought really to be counted as IDPs under the conventional definition. If this definition were applied, there would be many more IDPs and far fewer returnees in Bosnia. Yet, because many of those who were listed as repatriated were resettled in other places than their original homes, they are no longer considered displaced. Reported results indicate many successes as a humanitarian policy and for reconciliation. But the result is misleading: such individuals should be considered to have resolved their displacement, but not counted as returnees. If this more accurate criterion were applied, the repatriation in Bosnia would have comprised far smaller numbers.

Kosovo The Kosovo policy was formulated against the background of Bosnia, which in 1999 was more ethnically segregated and its parts more homogenous than at the end of the war there. The failure in Bosnia turned into policy in Kosovo: After Yugoslav forces withdrew from Kosovo, NATO established a protectorate that enabled the vast majority of Kosovars to return. After the return of the Kosovars, revenge was widespread: violence, harassment, and threats were coupled with the failure of the police to arrest perpetrators of violence against refugees and displaced minorities, both Serbs and Roma. The massive Kosovar repatriation was followed by the lenient policy toward Kosovar crimes of revenge. This was informed in part by the belief that the local Serbs were implicated in the regime’s crimes. However, given the past record of international actors in other areas, this (in)action is more the rule than the exception, although the perception of Kosovars as victims and Serbs as initiators of the ethnic cleansing may have reinforced the inaction. The failure of the justice system to punish those responsible for antiKosovar crimes alienated and radicalized many, while at the same time, Kosovar prosecutors and judges manifested their own ethnic bias against the Serb minority within Kosovo. In Kosovo the returned refugees assumed the power. This time the local Serbs became victims. Many escaped, others were attacked, and some stayed. The liberators from the international occupying force were unable to deal with the local rivalry. Setting up a regime that would both comply with a liberal rule of law under the guise

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of the international community and attend to the violence of a ravished country to control revenge was perhaps wishful thinking in the absence of a detailed plan to prevent further abuses. Instead, local vengeance and the absence of standards, procedural rules, and actual practices and demonstrations on the ground set the tone and proved too much for NATO forces. The broad moral support for the victims and the forgiveness for their vengeance, coupled with the lack of an international tribunal, constructed the new impunity. In those few cases where the system attempted to pursue war criminals, the ethnic bias against the Serbs was reversed by the Kosovo Supreme Court, with an international-majority panel. Similarly, Serbian authorities refused to prosecute war crimes against Kosovars, and there was no investigation into killings of scores of Kosovars in various communities. The repatriation of about a million Kosovars may well be viewed as a successful intervention. Thus, though the NATO forces could force the return of refugees and IDPs who were the majority in Kosovo, they could not protect the minority even when the government of Kosovo was, in effect, a satrap of NATO. Kosovo may represent a successful return, but it was carried out with force and at the expense of the Serb and Roma minorities. It was not an example of a successful return of a minority. Kosovo declared its independence in 2008 but remained under international protection, locked in a political stalemate as Serbia vowed not to recognize Kosovo. The antagonism between the Serbs and the Kosovars remains. The survival of the Serb minority in Kosovo is a major international issue, presenting Kosovo with the challenge of facing a further potential split as the remaining Serb minority in the north threatens to join Serbia. Following its independence, Kosovo, subject to international pressure, committed itself to the protection of the Serb minority. Indeed, there has not been mass uprooting following its independence. This may well be viewed as a successful prevention. Yet, the ethnic antagonism continues, and there is no telling when this will turn violent. One can only hope that political interests shape an agreement rather than an uprooting.

Evaluating the Success of Minority Repatriation By 2004, UNHCR concluded that “the demography of the region, and BiH in particular, has been altered again,” namely, the right of return explicated

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in the Dayton Peace Agreement has been implemented. However, there is no evidence that the data recorded minority returnees rather than restitution of properties. In 2009, UNHCR finally pronounced the immanent end of the program and noted that “a total of some 133,000 refugees still remain displaced” in the region of South East Europe. While voluntary return remains the preferred option among the durable solutions available for them, especially in light of the Dayton Peace Agreement, local integration has in the meantime become an equally pursued option. In the context of the dialogue on the protracted refugee situation worldwide, the UN High Commissioner for Refugees in December 2008 launched an initiative to bring to a humane and dignified end the ongoing displacement of the remaining eighty thousand Croatian refugees registered in Serbia, Bosnia and Herzegovina, and Montenegro, either through return or through local integration. The initiative strives to meet the needs of the refugees, supporting at the same time the sustainable revival of affected communities. In this context and in close cooperation with respective governments, UNHCR is reorienting its programs to complete its involvement in displacement issues, in refugee return, and in reintegration matters in 2010 or at the latest in 2011.34 Strictly speaking, this program supplants the program of minority repatriation with local integration. The victorious sides in the former Yugoslavia were all ethnic nationalists. In Bosnia, the peace accord called for an ethnically integrated state, even if each region was to be dominated by a strong group. However, Serbs opposed ethnic reintegration, not only the reintegration of Croats and Bosniaks into the Republika Srbska, but also the repatriation of Bosnian Serbs back into the Federation. For the international community, minority repatriation was expected to lead to ethnic reconciliation. It did not. The international community and the Serbs in BiH had opposite goals. The rationale for the high stakes of repatriation is not only that justice be done. Idealists believed that repatriation and re-creating a mixed polity would ensure peace in the long run. The return of refugees, in particular return across the ethnic divide, would facilitate the reconstruction of a multiethnic society, which in turn would lead to reconciliation. This is augmented by the pragmatic claim that repatriation also relieves the burden on the host states. Again, whether or not these statements are true, they certainly do not take into account the dire costs involved in repatriation. Further, the conviction ran counter to the fundamental belief in the post–World War I period and immediate post–World War II period that

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unmixing and homogenizing populations in Europe would bring peace and stability. The displaced at times hold on to their refugee status because nothing better exists. It is up to rehabilitation planners to offer this alternative. Sometimes this can be done through compensation of various types. But not always! Consider the Serbs who were displaced from Croatia into Serbia, where reintegration ought to be relatively simple given Serbia’s offer and advertisement of naturalization. After years of strife over property, the prospects of Croatia joining the European Union provide the displaced with a strong reason to maintain their status, which is thought to enable them to receive an EU passport before those with Serbian citizenship. Here, it is not the promise of return but rather the prospect of a new status that serves to maintain the unstable situation. Of all the failed promises of Dayton, compensation ranks near the top. Those who argue against compensation suggest that it posed too many difficulties to be an effective, durable solution for refugees and displaced persons, one such difficulty being the fair valuation of properties. Despite these concerns, compensation is perhaps the easiest form of restitution and return of material losses. Compensation can provide victims with new opportunities. Yet, very little was done to promote it. Unfortunately, it seems that when compensation is involved, people pay more attention to what the victims gain than the alternative costs of the program. Thus, the cost of repatriation is measured in morality and politics rather than in the real cost and currency of compensation. The cost of building a new life for minority refugees was never compared with the cost of attempting to reintegrate members of ethnic minorities into hostile communities. To suggest that the issue has to be determined by cost alone would be wrong. However, ignoring alternative costs has its own consequences, especially in those cases where the refugees continue to carry the burden. If the choice is between compensation and maintaining the right of return as a minority to a hostile community, the choice should be left to the individual. However, individual preferences may not match national priorities. This in itself may not be persuasive enough to exclude it as an option. Nonetheless, few received compensation, and it never materialized as a wide mechanism to rebuild the lives of refugees in the former Yugoslavia. The credo that refugee repatriation fosters both reintegration and the prevention of regional conflict cannot be substantiated empirically in the former Yugoslavia. While it might be impossible to know whether or not

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in the long term repatriation would enable true integration, the long term may be too long when we consider conflict resolution within the scale of human life. If refugees and IDPs are to be assisted through repatriation, they ought to live to see it. This seems a minimum level of success for a program where the international community invests as many resources as it did in the successor states of the former Yugoslavia. If ethnic reconciliation will develop, it can hardly be said to be the result of repatriation. The rite of return in Bosnia was revered more by the international community and international NGOs than by the refugees and IDPs. The latter settled for security in preference to returning home when the two were in conflict. In contrast, the emphasis on repatriation as the supreme goal slowed the rehabilitation of IDPs and refugees and prolonged instability. The rite of minority return was adhered to most closely by the internationals. This is not to say that there are no refugee spokespersons and organizations that prioritize return. Rather, action by the displaced themselves suggest that their own priorities might have been different and would have led to a quicker rehabilitation. The rite of return in this case includes the ongoing international organization mantra that minority return in Bosnia was a success. These international organizations continue to count inflated and misleading administrative numbers as returnees, and do not conduct a study of what minority return actually means in Bosnia. Whatever else it may mean, it does not include the reversal of ethnic cleansing and the reestablishment of mixed communities but rather continued ethnic segregation.

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[ 5 ]

Resettling Refugees from Asia

We now move from focusing on Europe and particularly the former Yugoslavia to refugees from ethnic conflicts across the world and the dilemma of privileging repatriation over other solutions. We cover five refugee/IDP situations in Asia, beginning with the Indochinese refugee movement, the pinnacle of resettlement in the postwar period. Advocates for the Bhutanese in Nepal and Burmese refugees along the Thai border pursued the abstract rights of refugees in the historical absence of return. In the name of principle, rights were divorced from context and not integrated into the specific historical or political situation. In contrast, advocates for Rohingas supported repatriation only in principle in light of the known treatment of returnees to Burma. In East Timor, ethnic divisions were shallow and of relatively recent vintage; extensive support and monitoring programs accompanied the return, providing limited success. In Sri Lanka, diverse groups in different time periods and various localities made the case more complicated. In all cases, the humanitarian costs of misguided policies were prolonged and borne by the ethnic refugees in the region.

The Indochinese Refugees: Vietnamese and Cambodians In the late 1970s, 350,000 Vietnamese and Laotian refugees were scattered in camps from Thailand to Hong Kong. Another half million Cambodians

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were stranded at the Thai border. In 1978, Malaysia, host to 63,000 boat people, began pushing boats out to sea to prevent new arrivals from landing, defining a new effort to deny entry by countries in the region. Pirates exploited and plundered the abandoned refugees. The number who perished in the flight remains unknown, but estimates run to a hundred thousand or more. The plight of the Indochinese stimulated an enormous positive response by the West. On 20–21 July 1979, sixty-five governments met in Geneva and pledged to resettle over a quarter of a million Indochinese refugees. Vietnam promised to try to halt illegal departures and initiate an orderly departure program. Regional reprocessing centers were established in the Philippines and Indonesia. Non-refoulement was reconfirmed by the countries of first asylum on the expressed promise that they would not be left burdened with the refugees. Their shores remained open in return for open doors to the West. In the following two years, a half million Indochinese refugees were resettled. Over the next five years, departures gradually fell to a trickle as Vietnam prevented clandestine departures. However, a new upsurge in irregular Vietnamese departures, which had began modestly in 1987, surged dramatically upward in 1988 as a result of demoralization and stagnation in the economy following an inability to restructure.1 The open door policy was now seen as a magnet for attracting others to flee as humanitarian fatigue set in. The Geneva international meeting in June 1989 signaled a new era. Determined to stop the continuing outflow of refugees and curtail further resettlement, now dubbed “illegal migration,” seventy states adopted the Comprehensive Plan of Action (CPA) determined to allow resettlement only for the few eligible under the very narrow legal definition of a convention refugee.2 Only those who could prove they had a well-founded fear of persecution would qualify.3 Those rejected were to be repatriated. The UNHCR’s mass information campaign to deter flight informed potential departees that the open door had closed. Organized smugglers were pursued. Opportunities for legal migration under an Orderly Departure Program were increased.4 Governments were once again pushing boats back out to sea and reclassifying those who fled as illegal migrants. Those found not to be convention refugees were returned to their home countries. Sergio Vieira de Mello, a dynamic UNHCR professional, was put in charge of implementing the program.5

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At the end of the Cold War, the CPA was part of a more comprehensive strategy to deter asylum seekers and define most of those seeking asylum as illegal immigrants. The organized repatriation of unwanted “refugees,” now defined as illegal migrants, became an integral part of the UNHCR mandate. In 1996 in Sungei Besi, the last Vietnamese boat-people refugee camp in Malaysia, Sergio de Mello in a moment of self-congratulation for himself and UNHCR declared success and the end to “the ongoing tragedy on the high seas.” The CPA purportedly succeeded in preserving “asylum while reducing incentives for further mass outflow.”6 While the exodus from Vietnam formally ended in 1997, as Arthur Helton, who died beside Sergio in Baghdad, noted, the CPA introduced “a repatriation option, including forced return.”7 The CPA ended the outflow of asylum seekers. From 70,000 Vietnamese and 3,300 Laotian asylum seekers in 1989, there were only 41 and 10, respectively, by 1992. “Asylum” had become detention pending forced return. “Success” ignored the forced nature of the repatriation and paid no attention to the ethnic identity of the refugees. The Vietnamese return program was feasible because it did not involve an ethnic minority, which was due to the complete purging from Vietnam of its Chinese minority in the late 1970s and early 1980s. The exodus (and hence returnees) of the late 1980s was ethnically homogenous, consisting exclusively of Vietnamese. The 360,000 Cambodian refugees along the Thai/Cambodian border were also subject to the new repatriation policies. Following Vietnam’s reintegration into the international order as a cooperating partner in the CPA, in 1989 Western states, no longer needing a buffer, reversed their policies and turned against their notorious former ally, the Khmer Rouge. The United Nations Border Relief Operation (UNBRO) was eliminated as the militarized refugee camps were dismantled and a peace agreement signed. In the coordinated return program, under the camouflage that elections meant democracy, refugees were used to provide votes in the political competition for land and control of the labor force.8 In Cambodia as in Vietnam, repatriation was feasible because the returnees were all ethnically homogenous Cambodians. The Vietnamese and Chinese minorities purged in the exodus of the late 1970s and early 1980s had resettled abroad. The first large repatriation program depended on ethnic homogeneity, though this was not part of the public discourse. Neither was the right of return.

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Source:  UNHCR.

Figure 5.1  Nepal and Bhutan Refugee Camps.

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Bhutan Bhutan rarely captures public attention. Many are hard pressed to find it on a map. South of western China, Bhutan is proximate to Nepal but separated by a jut of Indian land immediately north of Bangladesh. Once estimated as having two million people, the census of 2005 confirmed a Bhutanese population of only 672,425, 56 percent under twenty-four years of age.9 The Bhutanese conflict is both ethnic and religious, stemming from identity rivalry and demographic fear. Specific identity markers left Nepalese speakers exposed, unprotected, and literally stateless in the region. The country is divided into three major ethnic groups: in the west, the Drukpas or Ngalongs (the largest ethnic group and the one to which the King belongs); in the east, the Sharchops (whose Ningmapa School of Mahayana Buddhism the King follows); and the Lhotshampas, Bhutanese of Nepali descent who are mostly Hindus living in the south. The latter made up about 30 percent of the Bhutanese population by the mid-1980s. The Lhotshampas began migrating to Bhutan in the late nineteenth century to reclaim farmland in the southern, malarial-infested lowlands and resumed migrating as laborers in 1950, hired first by the Indian Border Road Organization and then the Bhutanese Department of Roads to work on the construction of roads. As an incentive, in return for a decade of service, the Bhutanese government promised land to these guest workers. As the demographic balance shifted, the government feared losing the country’s cultural uniqueness and sociopolitical unity. In 1968, Buddhist Bhutanese from other regions of the country began to be resettled in the south. Bhutanese leaders blamed the annexation by India of Sikkim in 1975 on the migration of Nepali speakers there because of a loss of political identity and independence. As Lhotshampas took jobs in the civil service and as some became politically active, Drukpa feared the loss of their monopoly control of the polity via the absolute rule of King Jigme Singye Wangchuk, who governed with the support of a national assembly and a council of Drukpa Ministers. The 1977 Citizenship Act raised the residency requirement from ten to twenty years. In the 1985 Citizenship Act, anyone born after 1958 with only one Bhutanese parent had to apply for naturalization. Intermarriage was penalized; Bhutanese citizens who married noncitizens lost access to government assistance (land, seeds, loans, and livestock), health, and educational benefits; if civil servants, they were denied promotion and fired

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if they worked in the Ministry of Defense or the Ministry of Foreign Affairs. Lhotshampas were required to wear the Drukpa bakkhoo and speak the Drukpa dialect, Dzonkhat, in public. In 1985, economic development programs were halted. Opposition to the monarchy was suppressed. Television and tourism were banned. After violent protests erupted, the new policy emphasized denationalization. Lhotshampas were classified as illegal migrants if they could not prove they were residents of Bhutan prior to 1958 by showing a Ministry of Home and Cultural Affairs registration, a ministry that did not exist until 1968. “The (1985) citizenship law retroactively stripped citizenship from Nepalese immigrants who could not document their presence in Bhutan prior to 1958, a nearly impossible requirement in a country with widespread illiteracy which only recently adopted administrative procedures.”10 In 1989, under the banner of “One Nation One People” (Driglam Namzha), Lhotshampas, including those who had lived in Bhutan for generations, were deported. Others fled across the mountains of northern India into southeastern Nepal. The crisis reached a peak in the fall of 1990 with hunger strikes, demonstrations, violent clashes, arrests, torture, and killing by the army ordered to quash the protests. “Tens of thousands [of ethnic Nepalese] were forcibly evicted from the country. Still more fled the country voluntarily in the face of officially sanctioned pressure, reportedly including arbitrary arrests, beatings, rape, robberies and other forms of intimidation by the police and army.”11 Government forces physically prevented any return by beating and torturing those who attempted to return. The Indian army piled them into trucks and took them to Nepal. Most of the Lhotshampas, 75 percent of the two hundred thousand, were uprooted and ethnically cleansed. This meant a loss of 30 percent of the Bhutanese population. In 1992, the government of Nepal granted formal refugee status to those who arrived between January 1991 and June 1992, after which status was individually determined when the refugee population in seven different camps in the southeastern Jhapa and Morang districts of Nepal reached over one hundred thousand.12 Other self-settled “Bhutanese” refugees living in both Nepal and India were estimated to number forty thousand. Though the Lhotshampas in the Nepalese camps retained their Hindu culture and Nepali language, they identify themselves as Bhutanese. Informally, a degree of local integration took place in Nepal. The 4,500 Bhutanese refugees who were trained as teachers for the refugees work in the Nepal

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school system. Bhutanese and Nepali students study at the same schools. Younger Bhutanese refugees leave the camps and intermarry with the local population. Refugees who work in Kathmandu wear Nepali clothes, eat Nepali food, and repress their origins since Nepalese from Bhutan are rejected both by Bhutan as Nepalese and by Nepal as un-Nepalese.13 Repatriation proved to be a dead end. After fifteen rounds of bilateral talks between Nepal and Bhutan, no viable regional solution emerged. Bhutan refused to repatriate them. Nepal refused to integrate them. Finally, an agreement in 2000 allowed refugees to be screened on an individual basis to see if they qualified for convention refugee status. After three years of effort to verify the status of twelve thousand refugees in Khudunabari Camp completed on 18 June 2003, 70 percent were declared to be voluntary Bhutanese emigrants. Only 2.4 percent, ninety-three refugees in seventy-four families, were recognized as bona fide Bhutanese citizens with a right to repatriation, but even they were not repatriated. Inauspicious star alignments evidently precluded refugee return. Nepal formally rejected any consideration of local integration even though the refugees are of “Nepalese stock.” The possibility of local integration was complicated by a Maoist rebellion, a February 2005 royal coup, and the King’s unleashing of the army on peaceful protesters in Kathmandu. When the government and the Maoist rebels signed a peace agreement, it was overwhelmed with a huge caseload of internally displaced. There was no sign of considering reintegration in 2010. As the peace process faltered in 2009, the possibility of local integration of the Bhutanese refugees seemed even more remote.14 On 6 October 2006, the Nepalese government, in its new openness to resettlement to third countries, permitted UNHCR to begin profiling and registering the refugees in the camps. Plans were made to resettle twelve thousand refugees per year as part of a multiyear resettlement program, even though several refugee groups rejected resettlement and insisted that they spoke on behalf of the refugees; they intimidated refugees who dissented.15 Tek Nath Rizal16 and other influential refugee leaders, who initially fluctuated in their support for a solution that combines repatriation, local integration, and third country resettlement, have since adopted a steadfast position insisting on repatriation for all refugees. The South Asian Forum for Human Rights (SAFHR) made human rights the foundation for the singular focus demanding repatriation as the proper and just durable solution. SAFHR ran a workshop on the Right to Return in Jhapa (April 2004)

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to provide a comparison, primarily with Bosnia, in order to empower the Bhutanese refugees to reinforce the inhumanness of their forced eviction and document international precedents that support reinstatement as Bhutanese. However, hopes placed on the Joint Verification Team were dashed upon the receipt of the report. In response, SAFHR launched a case study on the process used in the verification of refugees in Khudunabari and “concluded from these studies that a solution to the crisis wholly rests on the political will of the people of Bhutan.” But return was unrealistic. “Contrary to their [the refugees’] belief in the JVT, the harsh conditions of return imposed by the delegation from Bhutan closed all means of return.”17 Further, despite the new coalition in Nepal (2008), the prospects for the formal integration of the refugees into Nepal are also virtually nonexistent. National priorities are focused on peace and democracy. Countries began to consider resettlement because of the impossibility of either local integration or repatriation for the vast majority of the Bhutanese refugees. This reconsideration included an initiative by the United States to resettle some refugees, with Nepalese government support, reinforced by the fact that recognized leaders, excepting Tek Nath Rizal, had migrated to the West.18 The vast majority of the refugees will be resettled abroad over the next five to ten years, mostly to the United States.19

Burma Of the fifty-two million people in Burma,20 68 percent are Burman who live in the central heartland surrounded by a horseshoe ring of mountains hosting over one hundred ethnic subgroups clustered into four main linguistic families: Tibeto-Burma (Rakhoine) (4 percent); Karen or Kayin (7 percent); Mon-Khmer (2 percent); and Shan (Tai) (9 percent). There are also Chinese (3 percent) and Indian (2 percent) ethnic minorities. The other 5 percent include Kachin, Chin, Anglo-Indians, Anglo-Burmese, and other small ethnic groups. The refugees and IDPs are products of waves of repression of cultural and religious identities that, in turn, incited political and ethnic resistance. On 2 May 2008, the devastating Cyclone Nargis hit the Irrawaddy Delta in Burma, killing at least 140,000 and uprooting more than two million people. The catastrophe initially compounded the country’s problem with internally displaced persons and refugees along the 2,300 kilometer Thai border, though, a year later, humanitarian access

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to the devastated country as a result of the cyclone stimulated NGOs to urge taking advantage of the entrée into Burma to service the wider group of displaced.21 Burma has been governed by a repressive, unpopular, deeply corrupt military regime with worsening poverty, a collapsed education, and a health care system that locked up its enemies and lived off opium and amphetamine profits.22 The government engaged in forced relocation, arbitrary detention and arrests, forced labor, and conscription even of minors. In 1995, the Democratic Karen Buddhist Army (DKBA), once an ally of the Burmese military, initiated an insurgency. The military regime targeted entire regions of resistance and forced the relocation and depopulation of its border areas,23 producing at least half a million internally displaced persons along the eastern border area with Thailand and 120,000 refugees in nine UNHCR-run camps on the Thai side, in addition to an estimated five hundred thousand to one million registered and undocumented migrants mixed in with the 6.8 million Thais.24 In October 2004, the State Peace and Development Council (SPDC) junta chair, Senior General Than Shwe, followed the purge of General Khin Nyint and severe crackdown against his former associates (military intelligence, political, business, charities) by moving the Myanmar capital from Rangoon to Pyinmana in November 2005. The campaign to defeat the insurgency also accelerated. With the intensive counterinsurgency operations in northern Karen State since 2006, tens of thousands of ethnic Karen civilians were added to the displaced population.25 UNHCR adopted an extensive plan for repatriation and hosted a reintegration workshop, “Preparation for Repatriation,” to draw lessons for developing successful return/reintegration programs dealing with land issues, access to services for returnees, alternatives in the event that largescale development assistance is blocked, equity issues in provision of services to returnees and local populations, ID cards and registration, and pro­tection.26 UNHCR also entered into an agreement with the SPDC in early 2004 to work with locally active NGOs to prepare for returns and establish a roving presence in Karen State, Mon State, and the Tenasserim Division in order to assess the conditions in anticipation of a future repatriation once conditions allow. However, in practice access has been limited by precarious political and military circumstances.27 At the end of 2006, of 500,000 internally displaced persons in eastern Myanmar, 270,000 were living in temporary settlements, 91,000 in

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hiding, and 118,000 followed orders of the SPDC. The new military offensive started in February 2006 created an even greater humanitarian crisis, threatening livelihoods, crops, and villages. The Myanmar armed forces deployed fifty battalions determined to wipe out the last bastions of rebel strongholds and to destroy any remaining possible use of villages as sanctuaries for the insurgency by moving the population under military control. The aftermath of Cyclone Nargis only exacerbated the already dire situation of internal displacement. Another group of Burmese refugees, the Rohinga, descendants of Arab traders who migrated there centuries ago, were a Muslim minority that once made up one-third of the population of Northern Rakhine State (Arakan) in western Myanmar. When Japan occupied Burma during World War II, twenty-two thousand Rohinga fled with the British, returning after the war to face unfulfilled promises of independence or even autonomy. In 1948, they revolted following Burma’s independence. By 1954, the revolt was suppressed. This was followed by ethnic repression. The Rohinga lost their property and were dismissed from the civil service. After his 1962 military coup, General Ne Win denationalized and issued foreign registration cards to the Rohinga. In 1974, under the Emergency Immigration Act, he restricted their movements.28 In early 1978 in operation “Naga Min” (Dragon King), the Burmese government arrested these “illegal immigrants” and drove more than 200,000 into Bangladesh but in July signed a repatriation agreement with Bangladesh. The 187,250 refugees returned over the following eighteen months, leaving behind 10,000 in camps; 10,000 had died. Landless, subject to discrimination, differential taxation, religious restrictions, arbitrary beatings, rape, and even summary executions, as well as forced labor decrees by another new military government, after they returned, 250,000 Rohinga for the second time in thirteen years fled to Bangladesh between mid-1991 and early 1992 and settled into twenty UNHCR camps. In April 1992, UNHCR once again signed a repatriation agreement between Burma and Bangladesh. Undermined by international pressure, the attempted “forced” repatriation failed.29 In 1994, a “voluntary” repatriation agreement was tried.30 Supposedly, 230,000 refugees returned, leaving behind 28,000 refugees in two closed camps, 16,000 in Nayapara and 12,000 in Kutupalong.31 However, by 2002, 200,000 were living outside camps, including many double-backed Rohingas, refugees who were returned to Burma but fled to Bangladesh a second time.32 In 2006, UNHCR declared the Rohingas

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“in [their] vast majority, stateless and without a clear legal status.”33 Those who remained IDPs were the result of armed conflict, state-society struggle, and economic distress and were relocated into consolidated villages under Burmese military control, heavily militarized ceasefire areas (Kachin and Mon States) with little prospect of reconstruction and rehabilitation, “brown” shared control areas, and “free fire” (black) zones under rebel control.34 In addition, there are many other displacement crises. These displacements include “illegal” migrants and those “not permitted” to be listed as refugees or “people of concern.” Thus, even though a very small number (604) of Shan live in Weng Heng Refugee Camp, since 1966, a much larger number, 200,000 to 250,000 displaced ethnic Shan, moved into Thailand’s northern provinces to work illegally in agriculture, tourism, and construction.35 Because the Burmese military government has immunized itself against outside pressure and no longer recognizes the refugees as citizens, a claim the refugees are unable to refute with documentation, the prospect of repatriation is a nonstarter. Furthermore, cooperation with the Burmese government over repatriation would subject the refugees to manipulation. Currently, political repression overshadows the ethnic component and gives rise to the hope that, with democracy, the alienation of minorities can be overcome. While this suggests that a political change may enable future repatriation, the reality and depth of ethnic strife, a conflict that has been aggravated because of the repression and the pursuit of independence by the Karen, portend a longer and even deeper struggle, making even longterm repatriation unlikely and contradicting the belief by some that repatriation is desirable and inevitable, even if only in the long-term. Of the refugees who were repatriated, the Mon offer a discouraging example. Following Thai pressure in 1966, a Thai/Burmese agreement following a ceasefire between the main insurgent, New Mon State Party (NMSP), and the Burmese government mirrored the Bangladesh/Burmese agreement on the Rohingas. The Mon were transferred to camps just inside Burma. Once repatriated, the Mon were not reintegrated as required in the UNHCR Handbook.36 The Burmese government regarded the refugees as a potentially dangerous fifth column. This suspicion and rejection of returnees served as a pretext to impose further control on the population.37 The Burmese government accused the Thai government of preventing the repatriation of ninety thousand Karen refugees. However, the Thai government was unwilling to cooperate in a “voluntary” return that put the refugees under Burmese military control.38 Repatriation under these

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conditions was clearly not desirable. Burma has yet to provide an instance of minority repatriation where the minority is protected. One potential solution for Burmese refugees is local integration. Legal status in Thailand would at least regularize this migration and could serve as a vehicle for immigration and integration. Thailand adopted a policy of encouraging self-reliance, permitting vocational training and Thai language training for the estimated 700,000 Burmese refugees, of which only 165,00039 lived in the thirteen refugee camps along the Thai border in 2006.40 As part of a nationality verification of Burmese and other migrant workers, a new program required migrant workers in Thailand to register at local administrative offices and pass nationality verification in order to receive a visa to work in Thailand. The costs were initially very high—5,800 to 7,500 baht (US$176 to $227)—though they were subsequently reduced to 3,000 and then 2,000 baht to encourage compliance. However, the process also required an impossibility for the vast majority: that Burmese workers cross into Burma, verify their nationality, receive a Burmese passport, and then cross back into Thailand for a work visa.41 By the end of September 2009, less than three thousand had passed the national verification program, although almost eight hundred thousand Myanmar/Burmese guest workers were registered with the labor department and just over six hundred thousand had received work permits.42 This very low compliance rate was unlikely to regularize the status of Burmese in Thailand, permit them to remain legally in Thailand for up to four years, or allow them to achieve citizenship or even permanent status.43 Since January 2005, Thailand also accepted resettlement “as a viable solution for the refugees.”44 Tens of thousands have been resettled over the last few years.45 However, the resettlement program served as a “pull” factor, drawing both self-settled refugees and IDPs into the camps for registration, ensuring that the camps are unlikely to disappear in the immediate future. The program has also led to skill shortages in the camps, the need to manage expectations among the waiting refugees, and a morale problem for the rebels as well as sympathizers.46

Timor-Leste In the sixteenth century, at the eastern end of the Indonesian archipelago, Portugal colonized the eastern half of the mountainous island of

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Timor, an area 265 kilometers long and 92 kilometers at its widest point, including the Oecussi-Ambeno enclave in West Timor and the small island of Atauro. East Timor was populated by a variety of people of Asiatic and Papuan origin. For four centuries, Portugal refused to accept any responsibilities for decolonization until Salazar died and Portugal itself underwent a democratic revolution. At the Macau Conference in May of 1975, independence was set for 17 July 1975. However, the Timorese Popular Democratic Association (APODETI) supported integration with Indonesia. In May, Indonesia informed the conservative Uniáo Democrática Timorense (Timorese Democratic Union—UDT) that Indonesia would not tolerate an independent East Timor with Frente Revolucionnaria do Timor Leste Independente, or “Revolutionary Front of Independent East Timor” (FRETILIN, or more commonly, just Fretilin) “communist” leaders in government. On 11 August 1975, UDT seized power with Indonesian government backing. In the civil war that followed, Fretilin defeated the Indonesian supported parties; those defeated became refugees in West Timor.47 East Timor declared independence on 28 November. President Ford in Jakarta reassured Soeharto that the United States would not press Indonesia on the issue of East Timor. A day later, on 7 December 1975, Indonesia invaded. Henry Kissinger likened the event to India taking Goa in the normal evolution of the end of colonial rule, though Soeharto’s concerns about the communist threat to Malaysia and ultimately Indonesia if Singapore fell were even more telling. The fear was palpable. South Vietnam had just collapsed; Cuba was supplying Angola with arms.48 In the wake of the Indonesian occupation of East Timor, the refugees who fled months earlier returned when Indonesia overthrew the Fretilin government. The repatriation was a result of political victory, not a case of ethnic return. The question of rights was not raised. In the aftermath of the Indonesian invasion, 450,000 East Timorese fled their homes and became internally displaced. In the Indonesian annihilation campaign against the rebels, strategic hamlets were set up. Famine followed open war. Guerilla war followed a succession of famines in the 1980s. The Indonesian oppression49 and misrule caused a large loss of life, estimated at one-quarter of the population50 during an almost twenty-five year period of rule. Over the years, international support for East Timor independence grew. Four factors in the 1990s revived the East Timor cause: (1) increas-

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ing moderation by East Timorese leaders after Xanana Gusmão adopted a nationalist rather than an ideological independence strategy in the 1980s; (2) television media coverage of the abuses and murder of innocents by the Indonesian armed forces;51 (3) a 1995 International Court of Justice ruling that “the Territory of East Timor remains a non-self-governing territory and its people has the right to self-determination”;52 and (4) the award of the Nobel Prize in 1996 to East Timorese leaders Bishop Carlos Belo of Dili and José Ramos-Horta. Ultimately, the Asian financial crisis precipitated independence. Pressured to conduct a referendum, Indonesia lost.53 When forced to leave in 1999, Indonesia initiated a scorched earth policy before peacekeeping forces could be deployed. The infrastructure was destroyed. A third of the population that had survived Indonesia’s repressive rule was forcefully displaced as Indonesian-supported militias54 killed about two thousand and induced or forced three hundred thousand East Timorese to flee into West Timor. The peacekeeping mission in 2000 facilitated the return of this latest group of refugees and IDPs and reestablished stability and security. The East Timorese began to rebuild the destroyed infrastructure and institutions requisite to a modern state.55 However, many refugees did not return because of myriad reasons: they had been supporters of the Indonesians and feared reprisals; they faced criminal charges; they wanted to protect their pensions; or they feared they would be lowest on the totem pole for getting assistance and new homes. Intimidation by militias who hoped to fight another day, as well as the vested interest of local authorities benefiting from the international and central government financial infusion into the area, contributed to the slow pace of return. Further, economic conditions within East Timor only improved marginally and may have been the most important factor discouraging return. To offset these obstacles, restore good relations with Indonesia, and prevent the creation of a refugee warrior culture in West Timor, the East Timorese leadership, led by personal visits of Xanana Gusmao, offered amnesty to pro-Indonesian militia members and prointegrationists. Ironically, the program’s success exacerbated the economic problems. Thus far, East Timor seems to offer a case of return rather than nonreturn, presumably because the conflict was a struggle for self-determination where the construction of identity was based on “Timorese” versus “Indonesian,” defined in terms of ethnic/national identity linked to an an-

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ticolonial ideology. Return was possible because the struggle ended with independence. Changed sovereignty of any kind, not limited to indigenous ethnic groups in a postcolonial setting, is the most common condition permitting large-scale return. However, the main point of this case focuses on the struggles after independence based on quasiethnic differences within the East Timorese population between the western Loromonu and the eastern Lorosae, who dominate the armed forces.56 These differences became a prime factor in subsequent conflicts in East Timor, fostered continuing instability, and inhibited return in cases of subsequent displacements.57 The differences alone did not account for the outbreak in violence. Frail state institutions, weaknesses in the rule of law, a large number of unemployed, disaffected youth, and ethnic concentrations of one group in the military and of another in the police created, as we shall see, incendiary conditions for opportunistic politicians. Economic conditions worsened with the withdrawal of peacekeepers in 2006.58 Insecurity grew. In January 2006, the old tension between Fretilin and other political parties erupted once again, triggered by conflicts over control of the army and the distribution of military and political positions. In February 2005, the Secretary-General reported serious concerns with the border security and justice administration, fostered in part by a return process that left exmilitia members in charge of the refugee reintegration program in the name of reconciliation. What is more, tensions increased between the Timorese Lorosae-dominated armed forces and the national police; there was a strong ethnic and regional dimension.59 In one prophetic part, the February 2005 UN report alleged that the police employed “excessive use of force, committed assaults, were negligent in their use of firearms, and guilty of various human rights abuses.”60 Human rights organizations also reported allegations of corruption within Government institutions61 as well as political interference in using the national police to target opposition party members.62 Further, as peacekeepers withdrew, jobs were lost, and unemployment increased. The Security Council ignored the Secretary-General’s recommendation to authorize deployment of a backup security force to the new United Nations Office in East Timor (UNOTIL). The dismissal of dissident soldiers from the eastern districts of Timor triggered the crisis created by an underlying predisposition to use violence to resolve disputes, the structural strains over unresolved property claims and unemployment, a focus on specific, believed injus-

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tices based on ethnic and regional differences, and the absence of effective social-control mechanisms. In addition to 38 killed (23 civilians, 12 PNTL officers, and 3 F-FDTL soldiers), 150,000 were displaced and 73,000 were in IDP camps in and around Dili as well as 78,000 in camps outside Dili; 1650 houses were destroyed. Once again, a multinational peacekeeping force of 2,500 troops led by Australia had to be deployed. In spite of the presence of peacekeepers, renewed violence in early 2007 resulted in an additional 8,000 displaced. The announcement of the composition of the new government in August 2007 headed by Xanana Gusmão as Prime Minister excluded Fretilin from the coalition following the election of José Ramos-Horta as President in May with 70 percent of the vote. The 30 June elections triggered another round of violence and displacement. Economic differences coincided with the fault lines between different “ethnic” groups, each having significant disparity in access to land and job opportunities and, hence, in each group’s share of the distribution of income. Politicized economic grievances along ethnic lines significantly increased the risk of violence as well as a longstanding division between firaku (the talkers) and kaladi (the taciturn), between east and west, respectively.63 Fretilin, for example, was dominated by easterners. In post-1999 independence, this difference played out in the organization of different gangs over turf, aggravated by the limited supply of housing stock left after the scorched earth activities of the Indonesian-backed militias. Official government records showing legal ownership were largely destroyed, likening the situation to the one in Bosnia discussed in chapter 4. In the aftermath of the success and recognition of property restitution in BiH, UNHCR developed The Pinheiro Principles,64 a set of UN Principles on Housing and Property Restitution for Refugees and Displaced Persons following evictions of occupiers. However, these principles were not initially applied in Timor-Leste. Although a United States Institute of Peace (USIP) report anticipated disputes over land along “ethnic” lines, rights to temporary occupation were quasi legalized through the use of what were designated as “temporary use agreements,” or TUAs.65 However, a new proposed land law restored rights to title over possession if former landowners could provide documentary proof.66 The ethnic dimension of the conflict was not the only factor ignored. So were the primary interests of the returnees in land, housing, and work. The United Nations repeated similar mistakes in Cambodia, where repatriation

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was subject to contradictory political and humanitarian goals. The United Nations served as both a quasisovereign power engaged in conflict resolution and a humanitarian agency; neither role privileged the rights of the refugees. The primary considerations were political elections, regional security, and diplomacy, and only secondarily questions of redress and repatriation. Without input from the refugees, rapid and ill-advised policies of return ignored human rights considerations and left control in the hands of the militants who held power in the camps.67 In the process, the ethnic dimensions of the violence were either unconsciously or consciously suppressed in the interest of envisioning East Timor as a homogeneous nation-state. In the focus on lofty peacemaking and democracy building programs, the bread and butter issues of who owned property and the assurance of jobs took second place. The complex system of land ownership included communal, family, and individually owned land. Each system of ownership entailed different layered rights. Given the varied land claimants over the years (current occupiers, traditional interests, titleholders), the settlement of land claims was very complicated.68 By 1999, the successive waves of dispossession resulted in 80 percent of Timor-Leste’s housing stock destroyed. In 2006, widespread destruction of property was repeated. Of 150,000 displaced, 14,000 IDPs lacked a home to which they could return.69 The waves of destruction resulted from a series of errors in prevention. The United Nations intervention did not create the conditions for the 2006 eruption of violence, but, in its myopia, the United Nations failed to take the necessary precautions that could have significantly diminished the recurrence of violence in East Timor. At the root of that negligence was a failure to learn the lessons of BiH and recognize the dialectic interaction between ethnicity and material-property ownership. Similar failures would follow in Iraq. This tension and violence is evident in the way ethnicities interact to create incendiary conditions in the mixed populations of cities like Dili, where different groups are jockeying for power and security, not simply as individuals but as communities. The different ethnic make up of the armed forces and the police, which both became identified with their respective ethnic groups, exacerbated the problem.70 Where different ethnic groups make up a polity, there are bound to be tensions over property ownership and political control. In fragile situations, these tensions are tremendously exacerbated. Without the enlightened leadership of many East Timorese leaders, the conflicts in Timor-

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Leste could have been considerably worse. As it was, many politicians tried to politicize these tensions. If international interveners had not failed to take these factors into account, if they had prepared, as part of the repatriation process, systems for sorting out property and economic rights early, the violence that eventually broke out could have been reduced and even forestalled.71 Undoubtedly, the active presence of international actors before and after the violence prevented the situation from spiraling totally out of control. Three and a half years after the 2006 crisis and the displacement of up to 150,000 people in Timor-Leste, the destruction of thousands of homes, and the illegal occupation of others, all sixty-five camps for internally displaced people (IDPs) had been closed by the end of 2009. Inhabitants of the camps had returned home or relocated to other areas of the country, suggesting a positive conclusion to the displacement. “With all 65 of Timor-Leste’s tented IDP camps now closed and most residents returned home, the return process seems to have been reasonably successful.” However, “the precise number of IDPs who have reintegrated successfully is unknown.”72 The question is, where did the returnees end up and why? East-west tensions between Lorosae and Loromonu have emerged since independence as a dominant and self-perpetuating feature of intergroup relations in Timor-Leste. These tensions are manipulated by politicians for opportunistic purposes. In addition, these identities tend to become reified and more antagonistic as they are propelled by fear in the absence of active policies to reverse the trend.73 Given this context, were successful steps taken to return the IDPs to their homes and reduce the ethnic animosity and violence? As of February 2007, forty thousand had been reported as returned but one hundred thousand were expected to remain or resettle in the east. However, 93 percent of those reported as having returned to Dili returned only to transit camps there and repatriating them to their homes has been problematic. “It has proved difficult to encourage people to move, however, as they have felt the new locations were not safe or were too far from public facilities, or they feared they would get stuck there permanently and never get a proper house. Some of the camps and transitional housing have become a burden on host communities, leading to tension.”74 After two years of failure, the situation subsequently improved somewhat.

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The government’s initial strategy expecting IDPs to return once the security situation had stabilized was mistaken. The community dialogue program (Simu Malu) to restore security and trust between communities proved inadequate and ineffective.75 Follow-up threats by the government to cut off assistance had no effect. A comprehensive assistance package consisting of food, shelter, construction materials, and transport was offered to IDPs agreeing to leave the camps. By July 2007, however, only 4,800 IDPs had taken advantage of government assistance to move out of the camps. As in Bosnia in 2000, after two unsuccessful stages a combination of factors helped propel a more successful program beginning in 2008. Already in October 2007, a new program, Hamatuk Harii Uma (Building Houses Together), had been launched.76 Certainly, the death in February 2008 of the renegade Reinado marked the beginning of an increased rate of return as confidence increased, though the attack and serious injury to President Ramas-Horta in that same month may have reduced that benefit. More generous recovery packages distributed to IDPs to induce return were initiated in April 200877 along with a reduction of food rations by one half intended to encourage return. Community policing began in earnest. By July 2008, the return rate was significantly and measurably higher. By October 2008, there were only thirty-five to forty thousand still displaced. Though the new government measures had encouraged about nine thousand families to move out of the camps by that time, there was no documented evidence that large numbers had returned to their homes. Successful repatriation took place only in a small number of cases where the monitoring, mediation, and negotiation process had been intensive. 78 Overall, those successes were misleading. Certainly, by the end of 2008 most IDPs in camps had left. By 22 August 2009, all camps had been closed. But as ICG reported, the Anjelina story was typical. A civil servant who fled home in the suburbs of Dili, she attempted to return in May 2006 but “Irak” (a derisive term for easterners) was scrawled across her house. She was threatened by Loromonu neighbors if she returned again.79 Despite government policy requiring IDPs to return to their damaged property to be eligible for the recovery package,80 many were dropped off on the way to their supposed final destination or relocated days after their arrival.

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This suggests that the decision to return was not informed and voluntary for some. Further, although in September 2008 the government estimated that close to 90 percent of those who had received the recovery package had been able to return to their original homes,81 the Norwegian Refugee Council (NRC) estimated that return rates were lower, with 70 percent of families returning to their homes and 17 percent to relatives. However, no counts were made of those who stayed in those homes for a significant period after they received their grants. As in Bosnia, there was a similar lack of follow-up studies necessary to evaluate the true impact of repatriation policies. There were many obstacles preventing IDPs from going home: (1) insufficient preparatory time; (2) protection concerns and the fear of further violence upon return; (3) the exacerbation of these concerns by the even greater distrust of the politicized security sector purportedly in place to guarantee the safety of the returnees;82 (4) legal disputes over the status of land and property; (5) the persistent instability and the impunity of those who perpetuate violence;83 (6) the institutional and operational inadequacy of the program generally; (7) the lack of houses due to the slow pace of rehabilitation; and (8) the totally inadequately resourced Mautuk Hari’l Futuru program.84 The East Timor case suggests that the question of ethnic rivalry and violence presents a spectrum of cases and intensity. In some cases where the divides are less clear (for example, shorter duration, less clear divisions in language, religion, cultures), under the right conditions, reversal may take place. A critical mass of returnees to a particular area might possibly have returned had enough resources been invested and had sufficient monitoring and significant structural changes been reinforced by adequate incentives, ensuring both security that assuages community fears and the application of the rule of law. At the moment, the international community seems not to be quite primed to learn from the experience in Bosnia or Timor. Clearer information about the extent of the “reintegration” and its limitations has to be available so that successful humanitarian and reconstruction policies will not take years to relearn as inadequate measures are applied in the interim. Not only does the lost time inflict hardships all around, but by the time the lessons are recognized, compassion fatigue has set in and the willingness of the international community to fund an adequate program has withered away.

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Sri Lanka Sri Lanka offers another case of the return of IDPs where ethnic differences go far deeper. The majority of Sri Lankans are Sinhalese Buddhists with a significant minority of Tamil Hindus (18 percent of the population) who are the majority in the north and were the majority in the northeast. There are also Tamil Muslims—perhaps up to 7 percent of the population—who are largely neutral or loyal to the government in Colombo. Alienation of the Hindu Tamils began with the change of the name of the country from Ceylon to Sri Lanka (a Sinhalese name) in 1970. This was followed by making Sinhalese the only official language of the country. Policies aimed at ensuring that the places available in universities were in proportion to their population (thus reducing Tamil access) were introduced. Sinhalese were resettled in areas of reclaimed land south of Elephant Pass in a territory with a large Tamil majority. As a result, Hindu Tamils began to push for autonomy and even the independence of an envisioned Tamil Eelam in the Tamil-dominated areas in the north and northeast.85 The rebellion that began in the early 1980s resulted in an estimated sixty to sixty-five thousand dead and as many as one million internally displaced at any one time (not counting the one million displaced by the tsunami of 2004).86 The war continued, though the government in Colombo offered autonomy and reversed its language policy. Unlike in East Timor, in Sri Lanka the ethnic nature of the conflict and its translation into disputes over land and forced transfers of ethnic groups are the focus of most studies. However, as in Timor-Leste, ethnic problems are linked to the inadequacy of political and legal institutions to deal with them on a much greater scale.87 The conflict’s ethnic dimension resulted in many being “trapped in decades of forced displacement.”88 Civilians became the target and the instruments of the conflict, exploited and displaced by both sides over the last two decades. The majority of the displaced were from the north and east, the contested regions where most of the fighting took place and where the vast majority of Tamils are concentrated.89 In some areas forced displacement allowed resources to be accessed for military needs. The Sri Lankan army (SLA) was accused of relocating IDPs to provide a civilian buffer in villages between it and the Liberation Tigers of Tamil Eelam (LTTE).90 When the LTTE forced the Sri Lankan army to

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retreat from the Jaffna Peninsula in May 1996, the LTTE forcibly evacuated 280,000 people. Considerable displacement took place in the 1980s when the civil war began between the Tamil militants and the Sri Lankan security forces (SLA). The forced movement of people escalated dramatically after the intervening Indian peacekeeping force left in 1990 and civil war resumed.91 In the aftermath, the Tamil independence movement was radicalized and became more chauvinistic, less concerned with representing the cause of all Tamil speakers and more focused on Hindu Tamil solidarity. Triggered by an LTTE attack in August 1990 that killed 250 Muslims during prayer in mosques at Kattankudy and Eravur,92 seventy thousand Muslims in the north fled and made up a significant part of the forcibly displaced.93 Fear became a permanent feature of life: “fear of LTTE attacks on Muslims, Tamil fears of reprisals by Muslim home guards, directly or indirectly backed by the Sri Lankan armed forces.” In the “rice bowl” of the nation, fields remained untended; villagers dared not look for their milk cows.94 By 1995, there were one million IDPs in Sri Lanka, though that number came down to three quarters of a million by 2002 at the time of the ceasefire between the LTTE and the government. Tamils also fled LTTEcontrolled areas to escape intimidation and coercion by the Tamil Tigers led by Velupillai Prabhakaran. This insecurity escalated significantly in 2004 after the LTTE split with the breakaway of the Karuna faction95 and a fight began between the followers of Colonel Karuna and the LTTE. Matters were made much worse in December 2004 after the Indian Ocean tsunami killed thirty-five thousand and displaced over half a million, many in the north and eastern coastal areas.96 This forced displacement resulting from a natural disaster was exacerbated by the creation of posttsunami buffer coastal zones that displaced even more and greatly enhanced the competition over land. At the same time, half of the displaced population was resettled and moved for security purposes to ensure that Hindu Tamils no longer were the majority population in contested strategic areas in the northeast. However, when the ceasefire broke down and war resumed, even though peace talks continued until October 2006, the violence further escalated in the beginning of 2006, resulting in “an estimated 3,300 people having been killed and over 200,000 internally displaced.”97 Fullscale war resumed, resulting in the government defeat of the Tamil Tigers in May of 2009.

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UNHCR and other agencies generally pushed for and supported the repatriation of the IDPs to their homes.98 During the ceasefire agreement that began in February of 2002,99 almost four hundred thousand returned home, but, as indicated above, many were subsequently displaced again with the resumption of the conflict in 2006 and the new hard-line policy of the Colombo government led by President Mahinda Rajapakse. The Sri Lankan Army, as noted above, designated some areas as High Security Zones (HSZs). On the other side, the LTTE seized other areas and forcibly recruited young people. Land mines in many areas still prevent return. In addition to security problems, there were also problems of proving legal entitlement to property and dealing with squatters. Faced with ongoing displacement in the midst of the conflict, UNHCR pushed for repatriation to homes after the ceasefire, while in other areas, such as with Muslim Tamil displacement, UNHCR opposed forcible return in 2007 and accused the government of engaging in such practices.100 Since 12 March 2007, the government has been returning people from at least six internally displaced person sites in eastern Batticaloa district. At least 771 individuals have been sent to Trincomalee district farther north as part of a plan to return approximately 2,800 internally displaced persons. To pressure individuals to return home, government officials and military personnel have threatened to withdraw humanitarian aid, food, and other essential supplies. Some officials have threatened families that they would revoke their family cards, which entitle them to food rations. In some cases, the security forces have said that they would no longer be responsible for the security of the displaced persons who stayed behind.101 The government blocked Hindu Tamil return after the defeat of the LTTE in May 2009 and defined areas as HSZs, but forcibly moved Muslim Tamils back to Mutur after they fled. Population movements were by-products of government and LTTE geostrategic goals as international agencies and NGOs protested helplessly on the sidelines, complaining of a lack of will to do the “right thing” when a clear political will was being demonstrated to do the opposite. The UN Guiding Principles on IDPs might dictate a right to liberty of movement, a right to seek safety in another part of the country, a right of voluntary return, and a right to be protected against forcible return where those returning perceive themselves to be at risk; but in the name of geopolitical goals, both the LTTE and the government of Sri Lanka ignored these rights or selectively acknowledged them when forcing populations to return or to remain when it suited their strategic goals. If

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the government did not act directly, it used the breakaway Karuna faction to infiltrate the Tamil refugee camps and intimidate the IDPs to do the government’s bidding.102 As the Sri Lankan government closed in on the LTTE in the Vanni heartland of the Tamil Tigers in 2009 in attacks against their final redoubt on the northeast coast in the Mullaitivu District, the LTTE held 350,000 Tamil civilians as hostages to serve as a buffer from the Sri Lankan army bombardments. Organizations sympathetic to the Tamil cause organized Canadian HART (Canadian Humanitarian Appeal for the Relief of Tamils) and accused the Sri Lankan government of genocide against the Sri Lankan Tamil population though the army had established a 12.4 square mile safe zone northwest of Puthukkudiyiruppu. 103 At the same time, Lakhdar Brahimi, the world-renowned UN official and humanitarian leader, accused the Tamils of shooting their own numbers if they tried to escape, while accusing the government of indiscriminate use of fire power.104 Hillary Clinton also warned the Sri Lankan government in a call to President Mahunda Rajapakse on 13 March 2009 to try to minimize any harm to the trapped Tamil civilian population. On 26 March 2009, the Internal Displacement Monitoring Centre (IDMC) noted that fifty-five thousand civilians had managed to flee the war zone. The remaining trapped IDPs became symbolic of the entire problem. They were unable to flee abroad to seek new lives, caught between their own warrior leaders and the armies of the state of which they were citizens. The LTTE used them as shields; the government used them as canon fodder. At least 15,000 to 20,000 were killed. An estimated 275,000 remained displaced at the end of the war in May of 2009. The government denied access to the surviving IDPs until they checked out LTTE members, made plans for IDP return, and checked the return areas to ensure they were free from mines. NGOs accused the government of creating concentration camps, even though on 7 May 2009 the government announced plans to resettle 80 percent of the IDPs by the end of 2009. A breakthrough came several months later and the government was well on target to achieve its announced resettlement program after those with LTTE affiliation had been separated out. However, IDPs could not yet return to areas where mine clearances had not been completed, as in Vavuniya. Human rights groups had complained that the IDPs were being detained indefinitely without charge or trial, in contravention of articles 9

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and 12 of the International Covenant on Civil and Political Rights, guaranteeing the rights to liberty, freedom from arbitrary detention, and freedom of movement. However, on 1 December 2009 the camps were opened up and IDPs were granted limited freedom of movement though still required to register their travel plans and return to camp within fifteen days. The predicament of rights, repatriation, and security becomes apparent as human rights advocates push for repatriation in the face of ethnic violence while states push relocation in the ostensible name of safety for the displaced. On the other hand, human rights advocates opposed the forced repatriation of the Muslim Tamils while the government defended their rights to return to homes in order to prevent Tamil Tiger control of an area. Amnesty International approached the problem as one of individuals with the right to be treated in a nondiscriminatory way by authorities, with the right of those individuals not to be arbitrarily displaced, and the right to return to their homes should they wish to do so. In contrast, the government policy was to ensure it kept control over the coastal areas from Trincomalee to Batticaloa by ensuring the majority of the population located in those areas could be counted on to support the government.105 Only when the war was over and the combatants were confined was return and freedom of movement gradually restored. In the context of such a violent conflict, is it realistic to focus on the various international instruments that provide for a host of individual rights to not be displaced and to be repatriated? Does the discourse on rights of repatriation or rights of return help the displaced, not in the sense even of being achievable, but in providing any measure of protection, or in being pertinent to the stakeholders in the crisis, or even in reinforcing an emergent standard for the future that lacks any track record in the past? Again, those who were caught in between exemplify the dilemma. Muslim Tamils, including those displaced by the tsunami, were trapped in between and forced to move according to the politics of the controlling power. Muslim Tamils were caught up in the geostrategic and demographic warfare of the conflicting sides. They were forced to return by the government in order to ensure the area was not recaptured and populated by Hindu Tamils. As The Hindu reported, in the Kanthale area of Trincomalee, at the beginning, immediately following their displacement, fifty thousand Muslims from Mutur saw “no hope of their return” (25 August 2006) in the face of what they regarded as a “diabolic” plan for ethnic cleansing, a view caused by the distribution of pamphlets by the LTTE in

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advance warning the population to leave. The SLA, in response, insisted the Muslim population was absolutely secure, but did virtually nothing to ensure their security. However, a month later, the Sri Lankan security forces, largely by preventing humanitarian assistance from reaching them, made them return.106 The Hindu107 noted that since the resumption of hostilities, “the conflict has led to a ‘large scale shifting of population’ that has become vulnerable to machinations of several actors in the field.” Further, in the north, “there is no prospect of significant numbers of displaced Muslims returning home, as ‘home’ as they once knew it no longer exists.”108 Nonetheless, nostalgia centered on historical and cultural attachments maintained a reified identity for the displaced and kept dreams alive in the midst of this violence. As Amnesty International correctly observed in 2006, “all parties are manipulating issues of return or resettlement for military or political gain and this, combined with the constantly changing security environment, has resulted in many conflict-displaced people spending years in welfare centres.”109 The alternative of accepting the de facto demographic alterations on the ground and thus working toward resettling the displaced while pointing out human rights abuses was not entertained by Amnesty, given its emphasis on rights principles. At the same time, Amnesty criticized the forced return by the SLA. The government defended these actions, arguing that it would be a disgrace to maintain the displaced in limbo away from their homes. The choice seemed not between upholding or violating rights, but which rights are violated. Amnesty recognizes that “IDPs have been reluctant to return home . . . because they are from an ethnic community that is a numerical minority within their own area and feel they may suffer harassment or violence from the majority ethnic community that surrounds them.”110 Thus, Tamil IDPs living in Mullaitivu and Kilinochchi were afraid to return to their home areas in the east where they would be a minority. The same is true of Muslims whose homes were in LTTE-controlled territory. In this context, the emphasis on rights—especially individual rights—seems particularly aspirational and possibly counterproductive. Although Amnesty accepts resettlement for those in high security zones as long as those people retain the right to return to their homes of origin or places of habitual residence, such a condition was irrelevant since, with the end of the war, all noncombatants after they were cleared were able to move anywhere. As a matter of policy, however, the question of return to homes or compensation could be

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supplemented. In addition to the restitution of property and the fair treatment of squatters in accordance with The Pinheiro Principles, the sale of property could be facilitated so former homeowners could relocate to safer areas given their group affinity. Whether analyzing the situation of the Bhutanese refugees in Nepal, the Rohingyas in Bangladesh, the Burmese refugees along the Thai border, the refugees and internally displaced in Timor-Leste, or the internally displaced in Sri Lanka, one finds protracted refugee situations aggravated because of the hope and efforts to prioritize return without adequate resources or a timely strategic plan to make return effective in the face of ethnic animosity. Such advocacy tends to privilege principles divorced from reality. The challenge for NGOs and UNHCR is to formulate policies that privilege the well-being of the displaced with effective and especially timely programs.

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[ 6 ]

Force and Repatriation in Africa The Right of Return in Africa

Africa, with almost a billion people in over fifty states and wide variations in composition and wealth within and among them, has been riddled with conflict and displacement. Of the seventy-three civil wars worldwide in the last third of the twentieth century, overwhelmingly most were in African countries dependent on the export of a few basic commodities. Our focus, however, is not on the causes—such as economic factors, colonial and neocolonial exploitation, or the political manipulation of ethnic differences— but on the results, especially of ethnic conflict. What is the prospect of refugee and internally displaced return in the aftermath of violence and war? On 10 September 1969, the Organization of African Unity (OAU) passed its Convention on Refugees.1 The Convention included those who flee aggression, occupation, foreign domination, or disturbances to the public order in addition to those with a genuine fear of persecution, excluding only criminals and those who acquire membership in a new state. Echoing the non-refoulement provisions of the 1951 Geneva Convention, the voluntary repatriation of the refugees was emphasized, requiring the country of asylum to facilitate safe return in cooperation with the country of origin.2 Further, the OAU Convention requires that the person be a national or citizen of the country of origin. The 1981 African Charter on Human and Peoples’ Rights further amplified the right of refugees by providing that

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“every individual has the right to leave any country including his own and return to his country” (Article 12[2]).3 The right to return extended only to citizens of that country and did not apply to the territory of birth, let alone heritage. If the country of origin denied or effectively took away the citizenship of those who flee, the refugee cannot insist on repatriation under the Convention. Even the right of citizens to return was conditional and highly circumscribed: “this right may only be subject to restrictions provided by law for the protection of national security, law and order, public health, or morality.”4 Statements of high principle almost invariably accompanied failures in practice. In the early 1980s, following the failure of the International Conference on Assistance to Refugees in Africa (ICARA II) to promote extensive repatriation, the OAU passed a Resolution on the Situation of the Refugees in Africa commending countries that facilitated voluntary return.5 The OAU reiterated “the fundamental right of the individual refugee to return to his country of origin in peace and dignity” and called “upon member states to fully observe this right by creating conditions conducive to the attainment of voluntary repatriation of refugees by assuring and by ensuring full reintegration in the socio-economic fabric of their national society.”6 Again, “country of origin” did not mean the territory of origin. Repatriation was for those recognized as citizens. Notwithstanding the rhetorical principles, the conflicting perspectives of development, security, and rights often undermined policies promoting return: “it is critical that enthusiasm to promote return—whether on the part of host countries, countries of origin, or actors in the international community—is not allowed to jeopardize the safety and protection of refugees, a fragile emerging peace, or violate the principle of non-refoulement.”7 Return was not even to be promoted if it risked jeopardizing a peace agreement. The African NGOs Forum went on to state: “While voluntary repatriation does remain the preferred option for many refugees, a comprehensive approach is essential. This is particularly so where exile has been protracted and the turmoil that gave rise to flight is complex.”8 This type of realism was evident in the declaration of Ruud Lubbers (the UN High Commissioner for Refugees 2001 to February 2005) that finding durable solutions for protracted refugee situations started with resettlement. Lubbers’s multidimensional approach replaced idealism and privileging return over any other durable solution: “We have to become a little bit realistic  .  .  . looking to other permanent solutions. So

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local integration  .  .  . And you never know some resettlement.” 9 The difficulty is not the rhetorical denial of the right, but rather the inability to facilitate return in safety and dignity. In a dramatic shift from the primacy of repatriation, Lubbers suggested granting citizenship status to refugees in the Mano River region—including Liberia, Côte d’Ivoire, Guinea, and Sierra Leone (where refugee repatriation was considered a “smashing success”)—when individuals have been in a country ten years: “If you have lived in a country a certain number of years—let’s say 10 years to be on the safe side—then you can acquire citizen rights.” The primary problem for refugees has been the loss of citizenship as well as rights even more than acquiring a new citizenship. In the end, the rhetoric did not accord with actual practice. The OAU offers no guidelines to host states for either integration or resettlement. The difficulties of returning not only refugees but also IDPs to their homes “voluntarily” and without the backing of military force will become apparent in the discussions later of recent forced displacement in Kenya, of the aftermath of a peace agreement ending the north-south war in Sudan, of the return of refugees to Rwanda, of IDPs and refugees in the Democratic Republic of the Congo (DRC), and of expellees and the induced flight of refugees from Ethiopia and Eritrea. Return in Darfur needs to be considered in this context. Where refugees and IDPs were repatriated, the right of return was not paramount. Rather, military force was the main determinant. As we describe each case—moving from the macro to the micro—ethnic rivalry shapes the return at the very local level; in particular, what appears to be minority return at the macro level turns out to be majority return on the micro, local level.

Kenya With a population of thirty-five million, Kenya is central to peace in Africa.10 But it is on a precipice as it tries to ward off disintegration from the festering ethnic violence fostered by politicians.11 At the same time, Kenya is renowned for its relative stability as an African democratic and economic success story made up of forty-eight different ethnic groups. The seven major ones are Kikuyu (21 percent), Luhya (14 percent), Luo (12 percent), Kalenjin and Kamba (11 percent each), Kisii (6 percent), and Maru (5 percent). Kenya also hosts several hundred thousand displaced Sudanese and

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Somalis as well as 350,000 pre-2007 IDPs left from previous bouts of election violence and unresolved land and even intratribal disputes.12 Parties that received their major strength from different ethnic groups contested the December 2007 Kenyan election. Politicians were often backed by armed gangs.13 When those elections were widely perceived as stolen after President Mwai Kibaki’s ostensible victory over his rival Raila Odinga, the leader of the Orange Democratic Movement (ODM), the builtup tensions exploded. Among the causes were Kikiyu political and economic domination, the need for legal, institutional, and land reform, the lack of transparency and accountability, poverty and youth unemployment, and inequity and regional imbalances that disproportionately impacted other groups.14The result was riots, murder, and the ethnic cleansing of Kikuyu in both western Kisumu, the heart of Luoland, and in the Kalenjin Central Province in the Rift Valley. At least one thousand lives were lost and a half million people were driven from their homes.15 A power sharing agreement on 28 February 2008 installed a coalition government on 17 April 2008 that launched Operation rudi nyumbani’ (Operation Return Home) on 5 May 2008 to resettle the three hundred thousand in camps. The rest, called “relocatees,” such as the thousands displaced from western Nairobi, were “returned” to live with relatives in their ancestral homelands.

Figure 6.1  Total IDP Camps in Kenya. Source:  OCHA Kenya.

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Figure 6.2  Total IDPs in Camps in Kenya.

The success of the operation seemed dramatic and irrefutable. Kenyan government officials claimed success as early as 22 July 2008, announcing that 350,000 had returned to their homes and farms. The charts (figs. 6.1 and 6.2) indicate that the vast majority of IDPs had either returned or been resettled by September of 2008.16 The results were surprising. Given the depth and extent of the violence, which far surpassed the chronic clashes that had been part of previous Kenyan history, and given that the Luo and Kalenjin seemed determined to prevent a reversion to the status quo ante,17 and given that the Kikuyu had responded in kind,18 the immanent or even medium term voluntary return of most of the IDPs seemed unlikely. Why would people return when the coalition was so fragile, while armed militia groups proliferated and arms increased,19 and as the belief spread that the police were behind a raft of extrajudicial killings?20 According to the Kenya Red Cross Society (KRCS), only 68,500 IDPs were left on 1 July 2008. How had so many been resettled when initial anticipations had been pessimistic? Government figures of those in camps tended to be lower than other estimates since those without property were not recog-

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nized as IDPs. Secondly, some believed there would be peace and returned voluntarily. Third, coercion was also used to move some IDPs back to their home areas. Although “the military was on hand to transport those who were willing to go home,”21 Martin Muteru, the Kenya Red Cross Central region’s relief field officer, noted that there were claims of forced returns, especially early on when a majority of IDPs were not ready to go back at all to their farms in the Rift Valley.22 The Assistant Minister for Special Programmes, Mohamud Ali Mohamed, insisted that “nobody is going to be forced to resettle unless it is verified in consultation with the local communities that the situation is peaceful.”23 The implication: if the situation in the places from which they fled were peaceful, then the IDPs could be forced to return. More importantly, IDPs were listed as resettled when they were transferred back to the areas from which they fled, not their homes. Thus, at the end of June 2008, close to one hundred thousand had been registered in 134 transit sites, each near the original places from which the IDPs fled. Finally, everyone had a vested interest in believing in the success of the return process. But by the summer of 2009, there were widespread fears of new eruptions of violence. The underlying problems beneath the corrupt election and resultant violence remain in place. A peace agreement alone is insufficient to induce large-scale returns. Given the deep suspicions and fears, a political agreement at the top could not guarantee peace on the ground, especially when corruption remains rife, political and legal reforms are blocked, and politicians in the Rift Valley continue to strengthen their private militias. Though government inducements played a role in fostering return, they had only limited impact due to a lack of adequate resources.24 The reluctance to return was mainly due to the “fear of attacks should they return home and the hope of receiving compensation from the government.” The IDPs hoped for “compensation for property lost or destroyed during the violence and an assurance that their property would be safe once they resettle.”25 Assurance about security was needed, not only because the security personnel, including both the regular and the administration police, had failed to offer protection at the time of the riots, but also because many of the police had backed the rioters. Rhetorical assurances were forthcoming, but there was only minimal financial help. The IDPs were only offered interestfree loans and 25,000 shillings (US$416) for shelter support. Paradoxically, the lack of government assistance motivated some return. The lack of alternative land forced farmers to return to their original land.26 Returning

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farmers, though, had difficulty getting funds to buy seed, fertilizer, and replacement farm equipment. However, if they did not return, the farmers feared the prospect of permanent loss of their land. Business owners fared even worse than farmers. They were only offered 10,000 shillings (US$150) to start over. Many of them remained in the camps in hopes of a better deal. The inadequacy of the compensation package can be gauged by the loss by Jane Wanjiru Maina, a mother of seven, of property worth 485,000 shillings (US$8,000).27 Many never even received the minimal compensation. Rhetorical solutions could not provide security or adequate compensation or induce return given the immediacy and intensity of the violence. When the issue was long-term security, very strong inducements were required. With the announced plans to close camps, the IDPs were given little choice, even though IDPs were concerned about security in the areas of return and had received negative reports about the treatment of returning IDPs. A major reason for the rapid resettlement process was government pressure accompanied by the clear message that any alternative would be worse than the risk of return. IDPs returned neither because they were citizens of Kenya with rights to home and property nor because they were members of a group with a right of return. They certainly did not return because they had effective protection by the armed forces. The IDPs returned because those same armed forces and the government “induced” return in a context in which ethnic cleavages were relatively shallow and extremists were not in the driver’s seat. In a few cases, return was even successful where local interethnic protection measures were instituted, indicating, as in East Timor, that the voluntary return of IDPs is possible if adequate resources and proper monitoring are put in place.

Sudan Sudan has come to the attention of the public in the West almost exclusively through reports of ethnic war and genocide. The ethnic war in Southern Sudan ended in January 2005 with the Comprehensive Peace Agreement

Figure 6.3  Map of Sudan.

adel15336_cl.indb 130

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4/7/11 5:02 PM

20°0'0"N

15°0'0"N

14,203

10,992

19,224

Zalingei

Wadi Salih

Mukjar

Ed al Fursan

Kass

Jebel Marra

Kebkabiya

Kutum

Mellit

Southern Darfur

Nyala

Sheiria

El Fasher

El Fasher D

Northern Darfur

25°0'0"E

Nyala D

Libya

Western Darfur

El Geneina

El Geneina D

Kulbus

Chad

Habila

31,336

5,000 10,000 15,000 20,000 25,000 30,000 35,000

1,779

Blue Nile

4,003

1,730

0

6,366

5,085

El Gezira

Kassala

Khartoum

Northern Kordofan

Red Sea

Sennar

Southern Kordofan

White Nile

Beneficiaries (Total 94,718 HHs) served within the Rest of North Sudan (Except Darfur)

IMU - OCHA Sudan Main Office: Khartoum, Sudan [email protected] http://ochaonline.un.org/sudan

Adila

Umm Keddada

Ghebeish

El Salam

Delling

Sharg En Nile

Shendi

SC-US Kauda Warehouse

Baw

Geissan

Port Sudan D

2007 Flood Beneficiary 6,366 HH

SRCS

Sennar

2007 Flood Beneficiary 1,730 HH

SRC

El Gezira

Eritrea

2007 Flood Beneficiary 4,003 HH

GOAL SRCS SP IRC

Kassala

Oxfam South Tokar Warehouse Tokar

Kassala Kassala D

Blue Nile

El Galabat

Red Sea

ACORD IRC OXFAM SP SC-UK SRCS 2007 Flood Beneficiary 5,085 HH

Hamashkorieb

El Fashga

DGedaref Gedaref

Gedaref

Ed Dinder

Blue Nile

Singa

El Rahd

Singa D

Sennar

Sennar

Medani

El Faw

SRCS Damazine Ed Damazin Dabouk DEl Roseires Warehouse UNHCR Warehouse

El Jabalian

Rabak D

Janub El Gezira

White Nile

Kosti

Gezira Umm El Gura

El Hasaheisa El

DWad El Managil Sharg El Gezira

El Gutaina

Nahr Atbara

Kassala

El Gash

Sinkat

Goal Warehouse

Seteet

Atbara

Ed Damer D

Barbar

Port Sudan

Halayeb

35°0'0"E

Red Sea

Khartoum Umm Badda Jabal Aulia El Kamlin Shamal El Gezira

SC-US Abu Jibayah Rashad Warehouse

Umm Rawaba

Bara

El Matammah

Ed Damer

Nile

Abu Hamad

Khartoum Bahri Umm Durman

Karary

Merawi

Ed Douiem

Jebrat El Sheikh

El Dabbah

El Obeid D Sheikan

Care Warehouse Kadugli

En Nuhud

Northern Kordofan

2007 Flood Beneficiary 14,203 HH

CARE Programme SRCS Sowdari SUDO

Northern Kordofan

Dongola

Dongola D

Egypt

Northern

2007 Flood Beneficiary 15,503 HH

Al Manar CRS FAR MedAir Solidarite SUDO UNICIEF CARE Programme Halfa IOM

Khartoum State

30°0'0"E

UNJLC ROS EP&R MAP

ma zin

Da

adel15336_cl.indb 131

15

10°0'0"N

5°0'0"N

Wadi Salih

Sheiria

Tullus

Raja

Abyei

Aweil East

Tambura

Wau

Ezo

D

D AweilAweil South

Western Bahr El Ghazal

Aweil West

Lagawa

D

Care Warehouse Kadugli

Mayom

Maridi

Yambio D

Western Equatoria

Yambio

4/7/11 5:02 PM

Printed Date: 20 April 2008 File: SU-Plan-07_A3_20April08_UNJLC ROS EP&R Map

25°0'0"E

0

115

230

30°0'0"E

Jonglei

Wuror

Waat

Nyirol

Juba

Juba

El Kurumuk

Kapoeta

Budi

35°0'0"E

Eastern Equatoria

Pibor

Geissan

IRC Bakori Warehouse

Pochalla

Akobo

Latjor

Uganda

Magwi

Torit D

Torit

Diror

460 Kilometers

Kajo Keji

Central Equatoria (Bahr El Jabal) Yei

D

Terekeka

Bor South Bor D

Renk

Baw

El Fashga

2007 Flood Beneficiary 6,366 HH

SRCS

Sennar

2007 Flood Beneficiary 1,730 HH

SRC

International Boundaries line

State Boundaries line

Locality_County_Boundaries_line

Major River / Wadi

River Nile

Primary Roads

ROS Warehouses coordinates

State Capital

Capital (Khartoum)

The boundaries and names shown do not imply offical endorsment or acceptance by the government of Sudan or the United Nations.

This map is a work in progress. Please contact the IMU/UNOCHA as soon as possible with any corrections to the names, locations, or Roads.

Kenya

D

Legend

2007 Flood Beneficiary 10,992 HH

ADRA FAR Plan Sudan SRCS WFP

White Nile

Ethiopia

2007 Flood Beneficiary 768 HH

IRC NGO CONSORTIUM WVI SRCS UNHCR IOM

Blue Nile

El Galabat

DGedaref Gedaref

Gedaref

Ed Dinder

Blue Nile

Singa

El Rahd

Singa D

Sennar

Sennar

Medani

El Faw

SRCS Damazine Ed Damazin Dabouk DEl Roseires Warehouse UNHCR Warehouse

El Jabalian

Rabak D

Janub El Gezira

DWad El Managil Sharg El Gezira

Upper Nile Sobat

Malakal D

North Bor

Atar

Tonga

Awerial

Ayod

Yirol

Mundri

Lakes

Rumbek

Panyijar

Leer

Koch

Guit

Unity

DBentiu Old Fangak

Rubkona

D Rumbek-Cueibet

Warrab Warrab D Tonj Wau

Gogrial

Twic Twic

Ruweng

Talodi Fashoda

Abu Jubaiyah

SC-US Abu Jibayah Warehouse

SC-US Kauda Warehouse

Rashad

Kosti

Gezira

Umm El Gura

El Hasaheisa El

White Nile

Ed Douiem

SC-US Talodi Warehouse

Kadugli

Southern Kordofan

El Salam

Delling

Democratic Republic of Congo

Data Source: Political Boundaries: UNMAS, SIM Roads: UNJLC & SIM Settlements: SIM ROS Warehouses: UNJLC

³

Ghebeish

Bara

Umm Rawaba

El Obeid

D Sheikan

Northern Kordofan

En Nuhud

SC-US Warehouse Aweil North

Ed Daein

Adila

Umm Keddada

Northern Bahr El Ghazal

Southern Darfur

Nyala

Nyala D

El Fasher

El Fasher D

Central African Republic

2007 Flood Beneficiary 9,006 HH

SC-US(Abyei) IAS MedAir NCA CARE Programme GOAL(Abyei) IOM

Buram

Ed al Fursan

Kass

Jebel Marra

Rahad el Berdi

Mukjar

Western Darfur

Zalingei

Kebkabiya

Southern Kordofan

Habila

El Geneina

El Geneina D

Kulbus

El Gutaina

ma zin

Da Ed

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133 Force and Repatriation in Africa

(CPA). As a result, the repatriation of millions of refugees and IDPs was expected.28 Many did return. New forced displacement also took place. The details of the repatriation and renewed fighting illuminate the question of rights versus politics and minority versus majority repatriation. Sudan, a country that achieved independence in 1956, reaches the Red Sea south of Egypt and borders Eritrea, Ethiopia, Kenya, Uganda, the DRC, the Central African Republic (CAR), Chad, and Libya—nine countries in all. Occupying 2.5 million square kilometers (or almost a million square miles), Sudan is not only larger than all its neighbors, it is the largest country in Africa, comparable in size to Europe or to the United States east of the Mississippi River. Sudan’s over forty million people consist of fifty-six different ethnic groups, 39 percent of whom are Arab and 52 percent of whom are referred to as black, an identity designation rather than a reference to skin pigment. Many Arabic-speaking Sudanese have black skin, particularly northern pastoralists, such as the 6 percent of the population (1.5 million) living in the northeast who are Beja. Since independence, Sudan has experienced almost continuous warfare and numerous coups. In addition to the twenty-year-long Southern Sudanese war with the north,29 a tribal war persisted within Southern Sudan. Two million died; 4.5 million (half a million refugees and 4 million IDPs, 2 million around Khartoum alone) were displaced. The entire South, including resource-rich Abyei, was destroyed. Organized repatriation began in January 2006 when the first two thousand UNHCR-assisted refugees returned by air and road to different villages in eastern Equatoria, Upper Nile, Unity, Jonglei, and the Lakes States of Southern Sudan. An additional 70,000 refugees were supposed to return in 2006, including 10,000 from Kenya. However, assisted returns in 2006 and again in 2007 fell far short of expectations because of financial constraints.30 Of 500,000 returnees expected in 2007, UNHCR managed to repatriate only 169,000 by the end of 2007, 10 percent of the 1.6 million IDPs who returned.31 Most IDPs and refugees returned spontaneously. Long lag times between planning and execution in addition to funding shortages plagued the assisted repatriation. Thus, spontaneous returns constituted the bulk of returnees. Impelled by the referendum planned for 2011 in Southern Sudan, which will determine both the future independence of the region and the relative political power of the various parties and ethnicities within the area, each group tried to increase the number of its own supporters to be counted in the census initially planned for 2007 and finally begun in 2008.32

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Assistance was applicable to only a small percentage of the returnees, so the return tested efforts to bridge humanitarian relief and development, to achieve minimum protection, especially for vulnerable groups such as women, and to ensure that IDPs as well as refugees benefited from return programs. The UNHCR “cluster approach” was intended to facilitate voluntary repatriation, promote community-based reintegration, and provide protection for refugees in countries of asylum.33 However, repatriation often stirs up ethnic conflict and raises issues of security, as exemplified in the repatriation from Uganda to Sudan in 2007.34 Violence was initially blamed on the Lord’s Resistance Army (LRA) in northern Uganda, but was subsequently proven to be the result of interethnic Sudanese conflicts. In addition, the process displayed numerous normal predicaments of repatriation, such as refugees who because of ill health cannot make the trip back or refugees who choose not to return out of concern for the education of their children. Further, as the camp leadership tended to leave first, and as the Refugee Welfare Council responsible for dispute mediation withered away, organizational support weakened for those remaining who were subject to assaults by the robbers who infiltrated the camp.35 Upon returning, new security problems surfaced, including the need for mine clearance. Returning refugees competed with demobilized soldiers for land, housing, and employment.36 Planners and leaders also faced sensitive land issues; property had to be reallocated since others had occupied the land previously held by those who had been displaced. Peace also had to be secured. Five hundred kilometers south of Khartoum, the political tension overshadowing repatriation has been evident in Abyei, which marks the boundary between Southern Sudan and the north. Although Abyei is located in Kordofan, an Arab-dominated province of Sudan, it is physically in the south and had been populated with mostly Southern Sudanese, especially the Ngok Dinka, who aligned themselves with the southern rebels since the first 1956 civil war began. At the end of that civil war in 1972, Abyei was promised a referendum as an independent administrative district but with no defined borders. However, the political struggle over economic resources undermined the referendum and the prospect of peace and forestalled repatriation, especially when the second civil war (1983–2005) ended.37 When the Sudan People’s Liberation Movement (SPLM) rejoined the Government of National Unity (GNU) on 21 December 2007, the implementation of the CPA had been agreed upon, except in reference to Abyei. That dispute was delegated to a binding boundary commission. In 2005,

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President Bashir rejected the commission results. Nevertheless, to prevent the renewal of war, both sides agreed to a joint integrated military patrol force in Abyei. However, tensions continued over the number of troops Khartoum stationed in Abyei and over specific incidents. The crisis came to a breaking point when the Sudanese Armed Forces (SAF) razed Abyei (May 2008). The civilian population as well as the UNMIS forces fled. The conflict seemingly came to a close in July 2008 when northern troops withdrew from the Abyei region under an agreement to jointly govern the area. Nevertheless, by the end of 2009, no significant return movement was underway. In fact, ethnic conflict within the south increased; well-armed Nuer clans attacked Dinka groups and produced more displacement. As UNHCR framed the problem in its distinctively understated way, “security conditions are not ideal in the South, given the ethnic mosaic, historical tribal conflict and tenuous peace with the North.”38 The census, the first in four decades, aimed to document the religion of those living in the south and those among the six to sixteen million of Sudan’s population of forty million who consider themselves southerners in order both to conduct the referendum in 2011 and to plan the allocation of educational and health services as well as infrastructure from bore holes to sanitation facilities and roads. However, the November 2009 registration process itself became a serious source of conflict as each group focused on maximizing the registrations of its supporters. “Acknowledging” the will of the people became a competition between different peoples. Minority or majority return is determined by very local differences. There are strong tribal distinctions within the South, such as between the Murle and Dinka.39 In the violence of 1991, two thousand Dinka were slaughtered by a Nuer faction in Bor. In addition to Dinka/Nuer clashes, there are tensions between different subgroups of Nuer over land, water, cattle, and grazing rights, such as between the Luo and Jikany Nuer, especially around Akobo. In spite of Luo fears about both the Jikany Nuer and the Murle, they did disarm their militias and began to move back to western Gambella, and the Jikany began to reclaim their land lost during the civil war. However, in many cases, as we have already documented, the situation was not resolved peacefully. In 2009, violence escalated once again.40 As the presidential, legislative, and local elections in April 2010 approached— the first multiparty election in twenty-four years—the surge in violence led to displacement, such as when 2,500 fled their homes and 350,000 were displaced, largely in Jonglei State (Sudan’s largest state).41 There was

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little capacity to manage the impending crisis, given the pervasive tribalism, proliferation of weapons, perceptions of governmental bias, absence of roads and infrastructure, food insecurity, land disputes, limited access to justice, and disputes over water. Repatriation exacerbated tensions as refugees from Kakuma camp in northern Kenya streamed home.42 Lacking sufficient reintegration support, clashes over land and water rights as well as competition for access to schools and health services were frequent. Thus, as we have seen, the fluid situation of the return process aggravated the tensions between the Luo and the Jikany Neuer, especially in the border areas in Tiergol in the Gambella region of Ethiopia, even before the refugees crossed the border. Sudan offers a case where refugees have returned to their land and homes not because of a right of return, but because the returnees were supported by the Sudan People’s Liberation Movement (SPLM), which negotiated the peace agreement and won effective autonomy from the central government. Tribes that made a separate peace with the North, such as the Luo Nuer, had to surrender the land they had seized and return to their original areas. Power and rights went to the victors. Though not the only cause, the 2005 peace accord had the effect of creating the real prospect of Southern Sudan imploding into civil war both within and with the North again, even though, on 13 December 2009, the SPLM and the National Congress Party (NCP) in Khartoum resolved their major differences over the details of the 2011 secession referendum, which was successful.43

Rwanda Divisions within the Banyarwanda, specifically between the Tutsi and the Hutu, have been devastating, even though they have a common culture, speak the same language, and share the same religions in roughly the same proportions. In both Rwanda and Burundi, the Hutu constitute about 85 percent of the population and the Tutsi 14 percent, though these percentages have varied dramatically because of large-scale slaughters and refugee flows. In addition, there were over two million Banyarwanda in the surrounding states of Uganda, the DRC (then Zaire), and Tanzania. The terms “Hutu” and “Tutsi” designate peoples descended from cultivators and pastoralists respectively, the latter allegedly arriving later than the former, though still many centuries ago. The Tutsi used to rule over the

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Hutu. In Rwanda, one Tutsi clan, the Nyiginya, achieved predominance in central Rwanda and, in a few generations, expanded its rule to cover the territory of what is now Rwanda. Nevertheless, significant intermarriage and movement between the two groups took place. The divisions were first reified under the German and then Belgian colonial masters, who actually gave out identity documents stipulating that a person was either a Hutu or a Tutsi. This administrative move destroyed much of the fluidity that had previously existed with respect to the two designations. The identities were then further reified and entrenched into each group’s history and identity when, on the eve of Rwandan independence in 1959, the Hutu overthrew the Tutsi ruling class, killing an estimated ten thousand and producing the first of several exoduses following large massacres. The Tutsi refugees, branded as Inyenzi (literally, “cockroaches”), formed guerilla bands and attacked Rwanda from bases in Burundi, Zaire, Tanzania, and Uganda. On 21 December 1963, thirty years before another turning point in Rwandan history, another ten thousand Tutsi were killed in “popular” slaughters with an additional twenty thousand executed by the government as traitors, following an Inyenzi attack from Burundi. Another orgy of violence occurred in 1973 in an effort to ethnically cleanse the Catholic seminaries of the Tutsi-dominated clergy and educational establishment. This orgy ended when a Hutu, Juvénal Habyarimana, pulled off his coup d’état. Then Hutu-Tutsi relations calmed down. Nevertheless, by the end of the 1980s, the refugee population, almost thirty years after the first flows, stood at 550,000 according to UNHCR figures, and up to almost a million according to some Tutsi; 350,000 lived in Uganda alone. In addition to the identity division between the Hutu and the Tutsi, and the existential division between the Tutsi refugees and those Tutsi who remained in Rwanda, other divisions among the Banyarwanda included regional rivalries between groups and clans located in both the north and south-central areas of Rwanda. Habyarimana’s 1973 coup was a victory for those from the northwest over the previous Hutu rulers who came from the central region of the country. Since the Hutu and Tutsi are divided into clans, which are regionally based, regional and clan rivalries overlap. The most important division in recent Rwandan (and Burundian) history is a threefold division between the extremists (whether Hutu or Tutsi) who root their actions in an ideology of ethnic homogeneity to the exclusion of the other, those who base their ideology on a pluralist system in which all citizens of Rwanda (or Burundi) can be equal while taking pride in

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their Hutu, Tutsi, or Twa (a third, smaller group) identities, and those who believe that the only way to overcome conflict in the area is to supercede Hutu, Tutsi, and Twa identities in favor of a larger national Rwandese (or Burundian) identity. A new five-year plan announced by President Habyarimana on 15 January 1989 claimed to accept with good grace the verdict of democracy. He thanked his fraternal states for giving his compatriots the chance to become citizens, contribute to their economic development (only Tanzania had in fact granted full citizenship to the Banyarwanda), and provide a permanent solution to the refugee population. The return of individual refugees would be considered on humanitarian grounds, but massive return was excluded. The refugees had other ideas. They were never integrated in Uganda. Although the Tutsi had helped Museveni overthrow Milton Obote, key senior officers in the Ugandan army were Tutsi, and a new decree permitted them to become citizens. But the citizenship law did nothing to pierce the armor of prejudice directed at the Banyarwanda in Uganda since their independence. In the 1962 Ugandan constitution, individuals could become citizens only if they were born in Uganda prior to 9 October 1962 and only if one of their parents had been born in Uganda.44 Though a provision of the constitution allowed application for citizenship for Banyarwanda children with one Ugandan parent within two years, the Banyarwanda were not informed of the provision. Thus, the constitution effectively barred from citizenship not only the Tutsi refugees who had fled Rwanda, but also many Banyarwanda who had migrated to Uganda after 1926. The internal politics in Uganda and the anti-Tutsi policies pushed the Tutsi to be more militant in their pursuit of return, especially since being called “Munyarwanda” was associated in Uganda with suspicion, prejudice, discrimination, ridicule, hatred, and even persecution. Under the circumstances, 95 percent of the Tutsi refugees as well as other Kinyarwanda did not, and could not, become citizens. Most had become convinced there was no secure future for them in Uganda.45 The Rwandan refugees in Uganda were on a collision course with the Habyarimana government. Following a Tutsi diaspora conference in Washington in 1988, the option of returning by force came more and more to the fore. At the same time, Habyarimana was in serious trouble domestically for the first time. The price of coffee, the major foreign exchange earner for Rwanda, had crashed on the international market, impoverishing many of the peasants. The World Bank responded by ordering a severe structural

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adjustment program, which exacerbated the problem. To strengthen his government, Habyarimana committed himself to multiparty democratization in July 1990 but rejected the demands of Tutsi refugees to return. To some interpreters, this economic and political weakness precipitated the war as the Tutsi tried to take advantage of Habyarimana’s vulnerabilities. For others, Habyarimana’s rhetorical opening toward democracy was interpreted as an incentive to invade, since the Tutsi in Uganda were afraid that Habyarimana would regain the moral high ground then held by the Tutsi in exile with their platform of national reconciliation and democratization. In fact, the collision course had been set earlier. The resistance to return was reinforced by the arrival in Rwanda of Hutu refugees from Burundi. Meanwhile, the determination of the Tutsi refugees to return to Rwanda, by force if necessary, was reinforced by the rising criticism within Uganda of Museveni for his allegedly pro-Tutsi policies and by the rise in prejudice against the Banyarwanda. Further, the return of the refugees to Rwanda would solve an important domestic problem for Museveni. Did Habyarimana’s reopening of the negotiations with the refugees, under UNHCR pressure, serve as a trigger for the October invasion? Or alternatively, was the offer too late in coming, with the inertia of the secret planning for an invasion already well underway? Or were the Tutsi suspicious that this was just another stalling tactic of Habyarimana? Perhaps the invasion was motivated by all three factors. In any case, the Tutsi-led Rwanda Patriotic Front (RPF) invaded Rwanda on 1 October 1990, precipitating a civil war that lasted almost four years. In between cease-fires, a military advance would be followed by a localized slaughter of domestic Tutsi and then negotiations, though the slaughters became progressively worse as the war dragged on. With the final breakthrough in negotiations for implementing a new broad-based government on 5 April 1994, an extremist army coup took place after the mysterious shooting down of Habyarimana’s plane. The Hutu extremists murdered the moderate Hutu ministers, resumed the war against the RPF, and commenced the slaughter of 800,000 Tutsis within Rwanda in an extraordinarily organized genocide.46 The victory of the Tutsi-led RPF invasion force over the extremists led to the return of a large number of Tutsi refugees who had been living in exile for up to thirty years. It also resulted in the flight into exile of at least 1.3 million Hutu (500,000 into Tanzania and over 800,000 into Zaire).47

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The ex-FAR, former members of the Forces armées rwandaises (Armed Forces of Rwanda [FAR]), and the interahamwe, the former extremist militias set up by the government, had entered Zaire through Bukavu and boasted a troop strength of fifty thousand in more than a dozen camps by early 1995.48 They had not been disarmed at the border, though others who crossed into Tanzania and at other Zairian entry points were asked to hand over their weapons in front of international observers. “When the remnants of the defeated FAR poured into Zaire, they brought with them tons of machine guns, grenades, mortars, and other light weapons.”49 The ex-FAR received arms shipments in the camps via two sources: the Zairian army of the Mobutu government and direct purchases and transportation by air into Zaire.50 The ex-FAR conducted military training exercises, recruited combatants, and planned a “final victory” and a definitive solution to Hutu-Tutsi antagonisms. The genocidaires openly declared their intent to return to Rwanda and exterminate all Tutsi. This threat from yet another group of refugee warriors sitting on the borders of the country from which they fled should perhaps make it even more clear that we need to develop a greater understanding of the responsibilities and obligations of foreign states in dealing with refugees who demand a right of return and, more seriously, resort to the use of force to obtain that right. However, the situation was somewhat different in the case of the Hutu; they were not a minority. Further, although some refugees feared returning, the new RPF-dominated government did not deny the refugees a right to return. The government promised that upon their return, exrefugees would be allowed to live in safety—except those guilty of participating in the genocide, who would face prosecution. Because of ignorance of the history of the conflict and the nature of the media coverage, many media watchers instinctively identified the refugees as victims who had fled to escape the genocide.51 The militants continued their control over the Hutu refugees, indoctrinating them with the fear of return, using them as recruits for reconstructing their forces, and taxing them as well as taking a percentage of the relief supplies to help finance the rebuilding of their army. The refugee camps, supported and supplied by the international humanitarian community, were being used as safe havens by the genocidaires to escape from justice, regroup, and restart war and genocide. The Rwandan government was clearly determined to do something once and for all against the threat on their western border and on behalf of the Tutsi Banyamulenge. On 15 July 1996, Joel Boutroue, head of the UNHCR of-

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fice in Goma, warned that “we are headed for surge of violence and destabilization in the Goma region . . . .Conditions are ripe for a disaster.”52 UNHCR, supported by the international community and some Zairian officials, persisted in its efforts to organize the repatriation of the refugees, prevent the immanent resumption of conflict, and close the camps.53 The efforts failed. As the diplomatic track collapsed, militants on both sides organized. War erupted in October 1996. By November 1996, the battle of the camps in eastern Zaire was over as Zairian rebels backed by Rwandan and Ugandan forces “liberated” the camps. Immediately, about 540,000 Hutu returned to Rwanda, following the path of the 15,000 who had been forcefully repatriated by the Congolese just months before.54 Over 200,000 others, mostly ex-FAR, interahamwe, and their families, fled the camps and moved westward, deeper into Zaire. The refugees were victims of violence, hunger, and disease. Perhaps forty thousand died.55 The international community stood out as a source of hypocrisy and impotence. UNHCR repeatedly professed the importance of both protecting the refugees and returning them to Rwanda. But without removing the refugees from Hutu-extremist control, protecting refugees meant providing succor to the warriors. The rearming and reequipping of the ex-FAR and interahamwe took place not only under the very noses of UNHCR, but also indirectly with UNHCR’s financial support. Every principle of the operation of refugee camps ever formulated had been abrogated. The bountiful amount of aid pouring into the refugee camps, compared with the relatively paltry amounts given to Rwanda to rebuild, exacerbated Rwandan paranoia. President Kagame viewed NGOs as bleeding hearts that fed the genocidal killers as those same NGOs attacked Rwanda for its human rights abuses. The United Nations, the international NGOs, and most Western states continued to refer to all the Rwandese in the camps as refugees, disregarding the presence of armed militants and genocidaires. Coercion did not force the refugees to return as was the case in Tanzania, where Tanzanian forces pushed a half million Rwandese Hutu back into Rwanda. However, coercion was a necessary prerequisite for allowing the repatriation to take place. We have a clear and unequivocal case, not of a right to return, but of Tutsi refugees who forced their own return in the 1990–1994 war. The subsequent “voluntary” return of Hutus in 1996 took place after the new Rwandan government military forces freed the refugees from the coercive, military control of the extremists in Zaire. In Tanzania, the Hutu refugees were coerced to return by the government of Tanzania.56

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In the Congo, after both Operation Umoja Wetu (United We Declare), the joint operation of the Rwandan armed forces and the DRC, and Operation Kimia II (ongoing joint offensive by the Congolese army and United Nations peacekeepers) were completed against the FDLR militia, branded by the United Nations as a terrorist organization and largely composed of ex-FAR and interahamwe responsible for the genocide in 1994 against the Tutsi, Rwandan troops finally withdrew entirely from the DRC in March 2009. In the first three months of the year, at least five thousand mainly civilian Rwandans held hostage by the FDLR militias were repatriated. In Uganda, the deadline for the remaining five thousand Rwandan refugees to go home voluntarily was extended to a final date of 31 August 2009, after which their refugee camps in Uganda would be closed even though they remained reluctant to return. The end of the Rwandan refugee crisis was in sight. In December 2009, UNHCR began to consider revoking the refugee status of the up to sixty thousand Rwandese remainin1g in the DRC and elsewhere by invoking the “ceased circumstances” clause in the 1951 Refugee Convention, which allows refugee status to be lifted if the conditions in a country that led to mass exodus are deemed to have changed in a fundamental, durable, and effective way. If UNHCR and Rwanda develop and meet the conditions of a road map of activities and benchmarks, their fulfillment would allow the invocation of the cessation clause by 31 December 2011. For the Rwandan refugees who are unable or elect not to return, UNHCR would either regularize their stay in the DRC or, alternatively, confirm their need for continued international protection. Though never returned under a principle of rights, the Hutu refugees would certainly not have a right of return once the cessation clause is invoked.57

The Democratic Republic of the Congo The Rwandan refugee crisis and subsequent conflict in eastern Zaire set in motion the collapse of the Mobutu regime and a continental war focused on Zaire, a war that involved states from Libya and Morocco in the north to Angola, Zimbabwe, Namibia, and, to some degree, South Africa. Ninety times the size of Rwanda, the Democratic Republic of the Congo (DRC), called Zaire at the time of the Rwandan genocide, is the fourth most populous country in Africa with sixty-six million people. Rwanda has virtually

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no natural resources; the DRC, in contrast to its poverty, is rich in natural resources. The DRC holds half the world’s proven cobalt reserves and abundant proven reserves of diamonds, copper, manganese, tin, uranium, silver, tungsten, cadmium, zinc, and gold. Arguably, the DRC has the worst record of bad governance in Africa, including the horrific treatment of the Congolese by King Leopold of Belgium, the instability after its sudden independence in 1960, its role as a center of Cold War proxy battles, secessionist movements, and ethnic tensions, and the murder of its popularly elected president, Patrice Lumumba. When General Joseph-Désiré Mobutu (Mobutu Sese Seko) seized power in 1965 with Western backing, a long period of relative “stability” followed as state resources were stolen by the most kleptocratic government in Africa, consisting of corrupt and vicious army officers, as well as the regional semiautonomous governors who ran their own fiefdoms.58 In the post-Rwandan genocide period, the refugee and IDP crisis in the DRC was multidimensional and included humanitarian, economic, demographic, political, and security aspects. For refugees, the humanitarian services entailed providing food, shelter, and health services until they could be repatriated in safety, locally integrated, or resettled. However, refugees competed for resources with indigenous populations as refugee camps provided sources of income for locals. In the DRC, the economic competition was exacerbated because Rwandan refugees upset the local demographic balance. Extremist Hutus influenced local and regional political alliances. The refugees were used to arouse the fears of domestic constituencies. Finally, although most of the refugees were victims, they were also a source of recruits for the military and a means of financing perpetrators of banditry, rape, and murder. The ex-FAR and interahamwe, which metamorphosed into the Forces démocratique pour la libération de Rwanda (FDLR) based in the eastern DRC, initially cooperated with the Zaire military and attacked local Tutsis, the Banyarwanda in North Kivu, and the Banyamulenge in South Kivu. The local Zairian Tutsi Banyamulenge, descendants of early Rwandan immigrants, some of whom had resided in that country for several hundred years and many of whom had intermarried with Hutu Banyamulenge, had been targeted by the Mobutu regime before.59 However, on 29 June 1995, legislation rather than decrees were used to denationalize the Banyamulenge; the Congolese government ratified a law canceling their citizenship rights, but applied it selectively to the Zairian Tutsi. This law required

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proof of ancestry, casting the legal citizenship of the vast majority of Tutsi in Zaire in doubt as Zairian Tutsi were branded as strangers in a country where many Tutsi families had resided for at least two centuries. In 1994, the Zairian military allied with the genocidaires in the continuation of the genocide and the murder of Tutsi Banyamulenge, an action fostered by the Mobutu forces and the local governor for economic gain and to garner support for the coming elections.60 As killings escalated, the surviving Masisi Tutsi fled to Rwanda as refugees. The Zairian army even charged the fleeing Tutsi transportation fees.61 By mid-1996, the entire Tutsi population of North Kivu had been ethnically cleansed.62 There were four civil wars underway in Zaire in the fall of 1996—the Rwandan, Burundian, and Ugandan ones as well as the Zaire civil war. The Rwanda civil war came to a climax on Zairian soil, the final phase beginning on 13 October and ending on 14 November 1996. A week earlier, the Rwandan- and Ugandan-backed liberation forces, the Alliance of Democratic Forces for the Liberation of Congo/Zaire (ADFL), “first attacked the Burundian Hutu refugee camps. 60,000 were forced to ‘repatriate’ and were turned over to the Burundian army.”63 In November, a third war, the Ugandan civil war, shifted to Zairian soil and continued there for some years. Finally, these exported civil wars served together as the catalyst for the Zaire civil war, which lasted six months, until the fall of Kisingani in March 1997 and Laurent Kabila’s assumption of power. For the next thirteen years, the DRC continued to be plagued with alternating war and scattered militia attacks with little protection for civilians. The remnants of the civil wars in Rwanda and Burundi and the continuing Ugandan civil war fought on DRC soil, as well as the new Zairian civil war that broke out in August 1998 after Kabila broke with his Rwandan and Ugandan backers, resulted in a decade of violence in the DRC. Millions were killed or died because of hunger and disease and perhaps as many as four million more were displaced in the First Congo War of 1996–1997 and then the Second Congo War of 1998–2003.64 Though many returned home between 2004 and 2007, up to a half million refugees and an estimated one million IDPs had still not returned.65 Peace only ensued after Laurent Kabila was assassinated by his personal guard in 2001 and his son, Joseph Kabila, assumed power and actively pursued a peace agenda. After a three-year relative pause in violence following the signing of the peace agreement in 2002 in Sun City, South Africa, and after the presidential, legislative, and provincial elections in 2006 brought a specter of

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electoral democracy to the Congo, the country was once again plunged into the worst violence since the period between 1996 and 2003. In August 2007, a democratically elected government took power under Prime Minister Antoine Gizenga to “unify the divided country and improve security.”66 However, the governing institutions remain weak, abusive, or nonexistent, and the national army continues to be the country’s worst human rights abuser. In the latter half of 2007, 370,000 civilians were displaced.67 Some IDPs became refugees.68 At one point, 150,000 were once again cut off from humanitarian aid.69 Finally, a peace brokered by the United States, the European Union, the African Union, and the United Nations took effect in January 2008. After fighting joint military operations with the DRC armed forces against the FDLR, which continued its numerous attacks in Masisi, Lubero, and Walikale, displacing 3,000 from Remeka village alone,70 Rwandan troops withdrew from North Kivu and 5,000 Rwandans were repatriated to Rwanda and 7,634 to Uganda in the first two months of 2009, though an estimated 50,000 remained integrated with the local population.71 Even though the FDLR was no longer an effective fighting force, sporadic violence continued to occur after a decade of ethnically charged conflict that victimized civilians and tore apart communities.72 With the significant diminution in violence at the end of 2009, a concerted effort took place to lure the 51,000 Congolese refugees in camps in northern Zambia and the 30,000 living outside the camps to return through an “information campaign” combined with offers of monetary assistance. (Over 13,000 had returned since voluntary repatriation began in 2007.) At the same time, the DRC was forcefully expelling Angolan refugees and receiving thousands of undocumented Congolese migrants from Angola.

Ethiopia/Eritrea The Ethiopian civil conflict between 1974 and 1991, as well as the thirty-year struggle for Eritrean independence which began in 1962, resulted in more than half a million civilian deaths and millions displaced. With 95 percent support, Eritrea became independent of Ethiopia in 1991 and a separate, internationally recognized state in 1993 after a referendum. The Ethiopian and Eritrean governments were the traditional warrior successors of the old Derg regime. The Eritrean leadership in Asmara led the defeat and allowed

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their junior allies, the Tigreans, to assume power in Addis. In 1991, Issayas Afewerki, the leader of the Ethiopian People’s Liberation Front (EPLF), became the president of Eritrea. Meles Zenawi, the leader of the Tigrayan People’s Liberation Front (TPLF), became Prime Minister of Ethiopia. In 1991, a full demarcation of the Ethiopian/Eritrean border was not regarded as a high priority. Both countries used the Ethiopian birr as a common currency until 1997, when Eritrea introduced the nakfa. The subsequent switch to hard currency transactions between the two countries brought other economic policy differences to the fore and strained relations. On 6 May 1998, fighting erupted over disputed border areas. There had been an earlier agreement to disarm the militias that had supported each country’s liberation fronts during the long war. Eritrea disarmed its militias; Ethiopia did not. The military imbalance along the border led to a creeping invasion and ultimately to the outbreak of armed conflict as the Eritrean army crossed the “border” to retrieve territory it claimed was occupied by Ethiopia. The fighting caused a wave of displacement, bringing the total number of IDPs to over 250,000 by the end of 1999. On 12 May 2000, Ethiopia initiated a major military offensive deep into Eritrea. Thousands fled the artillery and aerial bombardment; the original IDP population fled even further from the border. Over a million were displaced by June in a classic but increasingly rare form of war over boundaries and territory, complicated by other contentious issues between the two previous allies.73 In addition to the initial primary wave of three quarters of a million along the border as well as the older displaced populations, two other new forms of forced displacement took place. There were those who opposed the war and its conduct and fled. Further, during the war each state expelled or facilitated the departure of “nationals” of the other country, the expellee group on which we will focus. One thousand Eritreans expelled from Ethiopia arrived at the border town of Zalambessa, bringing the total number of Eritreans deported from Ethiopia to 14,350 by the summer of 1998.74 In the first months “since the outbreak of hostilities in May 1998, ethnic Eritrean citizens and residents of Ethiopia, mainly males of retirement age, were deported to Eritrea at the rate of about 7,000 persons per month.”75 Over 83 percent were Ethiopian citizens of Eritrean descent; 12 percent were Eritreans married to Ethiopian women, others were the offspring of such marriages. Many expellees had voted for the ruling party in Eritrea; 20 percent had provided financial sup-

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port.76 A very small number were members of the ruling party. Not one was found to have been engaged in espionage, though security reasons were offered as the rationale.77 Prime Minister Meles Zenawi defended the deportations as legal. He claimed that “it is the right of the Ethiopian government to expel Eritreans living in Ethiopia at any time” and that these actions were in accordance with international law. His justification belied that claim: “If we say, ‘Go, because we do not like the colour of your eyes,’ they have to leave. . . . Nobody can prevent us from expelling them because we do not like them. It is our right. It is the right of every country.”78 This was a unique interpretation of international law! There was no due process. Families were broken up—45 percent of the deportees were forced to leave their spouses behind; 19 percent of families were forced to leave their underage children behind. Little time was allowed for the disposal of the expellee property. The expulsion took place under inhuman conditions with respect to access to food, water, medicines, exercise, and toilets. There was no equivalent in Eritrea to the cruel and inhuman mass expulsions perpetrated against ethnic Eritreans by Ethiopia. Although the Eritrean security forces ill-treated some Ethiopians, Eritrea did not adopt a systematic policy of deliberate expulsions or widespread ill-treatment of ethnic Ethiopians.79 At the same time, the whole of the ethnic Ethiopian population was induced to leave Eritrea. Their former jobs in the Eritrean port, through which goods arrived for Ethiopia, vanished with the war. There was no employment. The ethnic Ethiopians feared both retaliation and Ethiopian bombing. To leave they had to pay an exit visa and any outstanding bills and debts, but without work, they had to sell their possessions for next to nothing to get the funds. In September 1998, regulations to leave were relaxed; The International Committee of the Red Cross (ICRC) assisted twenty-two thousand Ethiopians to return to Ethiopia. By the end of January 1999, forty thousand ethnic Ethiopians in total had returned. Other ethnic Ethiopians detained by Eritrea were allowed to go back to Ethiopia after the peace agreement.80 After absorbing enormous casualties as well as loss of territory to Ethiopia, Eritrea signed an Agreement of Cessation of Hostilities in Algiers on 18 June 2000. The Algiers Peace Agreement was signed on 12 December 2000, establishing a twenty-five kilometer temporary security zone (TSZ) separating the two armies. On 15 September 2001, the Security Council

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authorized deployment of 4,200 troops for the United Nations Mission in Ethiopia and Eritrea (UNMEE) with a mandate to monitor the cease-fire.81 What stance did the international community take to the refugees? According to UNMEE, “repatriation of people across the disputed border should be done with full respect for international humanitarian law and human rights, and in accordance with the terms of the Algiers Agreement. We note with serious concern that a recent movement of some 700 persons from Ethiopia to Eritrea across the Mereb Bridge on 25 June . . . was undertaken without participation of the ICRC.”82 The Algiers Agreement imposed obligations under humanitarian, human rights, and refugee law. Eritrea largely obeyed the law but managed to have 100 percent of the Ethiopians leave. Ethiopia dramatically disobeyed the law, but only a relatively small percentage of Eritreans in Ethiopia were expelled, though the numbers exceeded the Ethiopians “induced” to leave Eritrea. Politics, not rights, determined the outcome. Further, the international community focused on the over 1 million displaced rather than on the over 100,000 who were physically or de facto expelled. The displaced included 345,000 who crossed borders in the Tigray and Afar regions as well as 85,000 Eritreans who fled into Sudan to join the old caseload of 160,000 Eritreans who fled during the independence struggle. No effort was made to repatriate the expellees—71,450 ethnic Eritreans from Ethiopia and approximately 50,000 ethnic Ethiopians from Eritrea—who had been denaturalized. Most of those forcefully expelled or induced to move by the governments of Ethiopia and Eritrea had spent most or all of their lives in the respective countries. There is no sign that they will ever be allowed to return. Is one’s home country the country where one’s ethnic group predominates? Or is it the country where one was born and where one lived most of one’s life? The dilemma is that “from a liberal, human rights approach . . . the fundamental wrong done to a refugee as a denial of their right to live freely in their home countries .  .  . [and expulsion] violated the internationally recognized right of citizens to return to their countries of origin.”83 The meaning of “origin,” however, is not clearly aligned with international law. Is the country of origin the country in which an individual enjoyed citizenship or membership and from which one was expelled, or is it the country of ethnic affinity even if one never lived there? Guy Goodwin-Gill suggests it refers to nationality: if “return is the objective to which international law aspires, it derives from the conception of nationality in international law,

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being coterminous with the notions of attachment and belonging.”84 But one can be attached to an ethnic homeland and never have lived there. One can be attached to a land where one has always lived even if not part of the dominant ethnic group. These ambivalent attachments are not recognized in prioritizing refugee return. Policy related to this area has been largely dominated by three assumptions: first, that repatriation is the optimum solution for refugees; second, that when refugees do not return home they focus their energies on integration in host societies; and third, that the best way that refugees can contribute to postconflict reconstruction is through returning permanently.85 As Koser et al. went on to write, “[the] majority of Eritreans in the diaspora outside Africa did not return . . . for a wide variety of reasons. . . . despite their decision not to return, the majority did not sever links with Eritrea . . . [and]  the Eritrean diaspora was centrally involved between 1991–1998 in post-conflict reconstruction in Eritrea.” However, Eritreans who were expelled from Ethiopia were not permitted to return to Ethiopia. International response to this denaturalization process was marked by deafening silence.86 Implicitly the Algiers Agreement, by ignoring the question of repatriating the expellees, sanctioned the norm of expulsion. And there were no efforts made to compensate either ethnic Eritreans or ethnic Ethiopians for their property losses. The unfulfilled peace agreement and the free movement of the peacekeeping forces preoccupied the international community. Very little attention was even paid to the increasingly repressive measures adopted by both countries to their own citizens. Further, denaturalization was subsequently applied to other citizens with impunity in both Eritrea and Ethiopia.87

Darfur We began this chapter talking about a half million internally displaced in Kenya. We end with a discussion of over two million displaced in western Sudan. Of the almost forty million Sudanese, about six million people live in the three states of North, West and South Darfur. Two hundred thousand of them are refugees in Chad. Over two million are IDPs. Concerned with being left out of the wealth and power sharing of the nearly concluded peace treaty with the Southern rebels, in February 2003 the Darfur Liberation Front (DLF) attacked the Government of Sudan (GoS)

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military installations and the provincial capital of Al Fashir. In March 2003, the DLF became the Sudan Liberation Movement/Army (SLM/A) with a strength of four thousand. The Justice and Equality Movement, established in 2002, had less than one thousand rebels and joined the SLM/A in several campaigns against GoS forces in spite of deep differences. Their alliance was both opportunistic and precarious from the start, though they were frequently united by the continuing marginalization of Darfur by Khartoum. The most violent attack against the GoS occurred in April 2003 on a military/police base; a general was captured, one hundred policemen were killed, and two andropov bombers and three helicopters were destroyed. Alex de Waal, a renowned Sudanese expert, presciently predicted the result in a May 2003 report: The Sudan army had only two possible military responses, “the use of air power (already impaired by the loss of four aircraft in the el Fashir raid) . . . [and] the familiar ‘divide and rule’ approach of arming local militia (commonly called marahiil). The latter has been canvassed. If followed, it would run the risk of creating a vicious internecine war targeting civilians.”88 As de Waal anticipated, the GoS responded by recruiting local Arab militias to reinforce the federal government forces. Supported by air power, the GoS attacked not only the rebels, but the villages where they allegedly received sanctuary. The depredations of the militias were numerous. After peace talks broke down in December 2003 and thirty thousand people fled to neighboring Chad, the militias raped women, killed boys and men, and burned and looted their villages. Although admitting that it backed the militias to fight Darfur’s two rebel groups, the government adamantly denied sanctioning actions against civilians. President Umar Hasan al-Bashir repeatedly insisted that the government, the armed forces, the police forces, and the justice and executive organs were ready to help Darfur “come out of its current crisis” and called on the IDPs and refugees to return home. However, such assurances only worked to enhance the fear of a forcible mass return of some 1.2 million IDPs in Darfur at the time. A full four months after Jan Egeland, the UN Emergency Relief Coordinator, filed a devastating report on Darfur on 2 April 2004, the Security Council adopted nine major resolutions on Darfur beginning in July 2004 with Resolution 1556, which imposed a token arms embargo and required that the GoS disarm the Janjawid militias or face sanctions. Sudan was given an ultimatum to make substantial progress in providing protection for the people of Darfur and to facilitate the distribution of humanitarian

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aid for the stricken. The sanctions and arms embargo have been systematically ignored. China supplied military trucks and trained Sudanese pilots. A series of mutual revenge or tit for tat attacks continued throughout the following four years. On 10 May 2008, the Justice and Equality Movement (JEM) rebels attacked Omdurman, a northern city suburb of Khartoum adjacent to the army headquarters near the president’s residence. The rebels were repelled, but the attack left the rights of residents in grave doubt.89 Nevertheless, despite the fears of the refugees and IDPs as well as those of humanitarian agencies that anticipated fatal consequences for the returnees, and despite the complete lack of adequate infrastructure in Darfur, the United Nations focused on facilitating the repatriation of the IDPs and refugees in Chad to their homes, but only, they stipulated, if the returnees are assured that they can live in safety and security. In other words, repatriation was endorsed but not implemented because the refugees and IDPs could not return in safety.90 The pattern was established—verbal support of repatriation but no implementation and no action to prepare the area for repatriation. Development, perceived to be possible only at the end of the conflict, was absent even in the areas of relative calm. By August 2004, the GoS deployed 4,500 additional police to enhance IDP security. Although all new police were required to receive human rights training, some IDPs alleged that many were converted militia who refused to follow up on complaints about unnamed perpetrators. In spite of these criticisms, UN Special Envoy Jan Pronk reported that humanitarian access, though short-lived, improved. By November 2004, several instances of forcible clearances of IDP camps took place under the ruse that the IDPs were being moved to better locations. The number of IDP registrations increased by sixty thousand over the summer, in part the result of greater coverage of humanitarian agencies as well as the common practice of local townspeople to register as IDPs to gain access to rations and health services. The major cause of displacement, however, remained conflict and instability: Janjawid attacks, clashes between government forces and rebels, and tribal conflicts. It took four years for the GoS finally (in February 2008) to agree to facilitate the deployment of a hybrid or joint UN/AU peacekeeping force in Darfur known as the UNAMID with over twenty-three thousand troops and police.91 By then the military situation was much more complex than it had been; the UNAMID faced combatants from the Sudanese army, local

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militias, and an increased number of different rebel groups, the result of numerous splits. This situation was further complicated by the civil war in neighboring Chad, which resulted from attempts by various rebel groups to depose the Deby regime. Chad suffered its own ethnic conflict in the east between “Arab” and “non-Arab” Chadians. At the end of 2007, there were approximately 140,000 Chadian IDPs and some newly displaced who fled to Darfur.92 Though quite dissimilar, there are many echoes of Rwanda in the Darfur crisis. One is the failure of the United Nations to supply its peacekeepers not only with adequate supplies such as helicopters, but also with basic needs such as boots and rations. The inadequacy manifested itself tragically when peacekeepers were attacked near Al Fashir on 8 July 2008, with seven killed and twenty-two injured, while a rapid deployment force could not be sent. The convoluted politics were apparent in the May 2006 Security Council Resolution 1679 which required the makeup and operation of the peacekeeping force to be approved by Khartoum. More than 200,000 people died and more than 2.2 million were forced from their homes, including 200,000 as refugees in Chad, as a result of a conflict that started over the competition for water resources between Arab nomads and African agriculturalists as desertification pushed the nomads further south, and which was exacerbated by the further marginalization of Western Sudan by the north/south peace agreement and complicated by ethnic tensions between the Fur, Masalit, and Zaghawa, and an assortment of Arab tribes and between “Black” Africans and Arabs. Over two thirds of the population, 4.2 million Darfuris, became dependent on humanitarian assistance, the cost of which reached almost a billion dollars in 2008.93 The UNAMID’s mandate as a civilian and humanitarian protection force included the protection of humanitarian convoys to “contribute to the restoration of necessary security conditions” for both humanitarian assistance and the civilian populations.94 However, the United Nations was not mandated to enable civilians to return to rebuild their homes and villages, a limitation that was bound to disappoint the Darfurians who had high expectations from the United Nations and did not understand its limited mandate. Although in August 2009 Martin Luther Agwai, the commander of the joint UN/AU UNAMID force, which had grown to over fifteen thousand troops, declared that Sudan’s Darfur region was no longer in a state of war and that the conflict had descended into banditry and “very low intensity” engagements, a panel of the UN Security Council on Darfur in November

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2009 reported that all armed groups continued to violate a UN arms embargo as well as international humanitarian and human rights law, finding the rebel group JEM to be the worst violator. At the same time, instead of the actual prosecutions of alleged war criminals, the result is a declared prosecution so that actual legal impunity is added to humanitarian impunity as NGOs push for justice even at the cost of increased violence, which Mahmoud Mamdani depicts in Saviours and Survivors. Mamdani tries to explain why Darfur became such an important focus for international activists who bleach the politics out of conflict altogether. The extensive violence received more international attention than any other conflict in Africa and was officially designated “genocide” by the US government. But as efforts at peace in Darfur move “one step forward, two steps back,” the stalemate is slowly being overshadowed by the increasing violence in Southern Sudan. It is unclear how the impending secession of the South will influence the violence in Darfur.

Conclusion A xenophobic rampage took place in South Africa in May 2008 that killed over forty-two “refugees” or “illegal immigrants” and displaced tens of thousands. The refugee right to asylum was seriously breached—assuming those killed were genuine refugees.95 Of course, if they were illegal immigrants, the South African government would have been entitled by international law to send them back, even if it meant extreme hardship and perhaps starvation. Many of the conflicts in Africa intertwine economic and political causes, a trend that is accentuated when the conflict is intrastate. Often economic and ethnic refugees share a close affinity, yet refugees have no rights to migrate when faced with general oppression or natural disasters. If asylum is denied to economic refugees, repatriation is denied to ethnic refugees, despite rhetorical commitments in international documents. The exception occurs in areas where the ethnic group is a majority. When a minority repatriates, it is only under the protective umbrella of force. In both Kenya and Sudan, the issue was whether the time was ripe for return, not the right of return. When there were issues of rights to land and homes, the predominance of force decided the issue. In Rwanda, the Organization of African Unity (OAU) never took up the case of the Tutsi

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refugee right to return; they did return, but by force of arms. The OAU and the United Nations did not protest the denaturalization of the Kinyarwanda in the 1980s in Zaire and later in the DRC; the issue became how to return the genocidaires who fled so that they face justice. In Ethiopia and Eritrea, the nonreturn of the refugees who were forced or induced to leave from their respective countries was allowed to continue with no one taking up the cause of a right to return. In Darfur, it has been different. Following the pattern of Bosnia and Herzegovina, the return of the refugees and the internally displaced has become a central cause of a number of NGOs. Force is the key determinant in repatriation, not rights. Although money and power dominate the fortune of repatriation, international ethics as a normative basis for working out policy for the displaced plays a role as well. But if a norm in the context of ethnic conflict does not seem to be implementable, what standing does it have? The cases of ethnic displacement we examined in Africa present force and ethnic affiliation as the key factors in return. The right to return seems primarily a rhetorical device rather than an ethical principle upon which actions can be based and policies developed. The fact that the principle is used so selectively and was not used, for example, by the international community on behalf of the expelled Eritreans and Ethiopians induced to leave by other means seems to reinforce such a conclusion.

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[ 7 ]

From Jewish Messianism to the Law of Return Antiquity to Modernity

Jewish repatriation to the Holy Land is both a messianic and a political project. In the late nineteenth and early twentieth century, non-Zionist religious Jews envisioned the return to Israel (Zion, Jerusalem) in metaphysical terms; the coming of the messiah was a prerequisite to return and national revival. In contrast, secular Jewish Zionists viewed self-determination as a political goal achievable by an act of collective human will rather than through divine intervention.1 For secularists, the state, defended by the Israel Defense Forces (IDF), provides the physical security as well as the salvation of Jews, not only Israeli Jews but Jewish people in general.2 In both messianic and political visions, redemption remains public and historically significant. In the marriage of mysticism and messianism that began with the onset of the modern era, both eschatological visions and teleological goals began to permeate the secular Jewish polity.3 Christian Zionists preceded the Jewish secular Zionists. For them, the return to Zion combined politics and religion as a precursor to the second coming. These Christian Zionists included members of the Knights Templar, which was revived in the nineteenth century, as well as many British politicians. Lord Shaftesbury’s initiative to establish the British consulate in Jerusalem in 1838 was followed by the Bonar/M’Cheyne Report on “Restoration of the Jews to Palestine” in 18404 and the “Damascus Affair”;5 In

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1856, Christian Zionists influenced the provisions in the Treaty of Paris that granted Jews the right to settle in Palestine. The first doors to modern Zion were opened by Christians who combined theological goals with securing the lifeline of the British Empire to the Far East. In the words of Barbara Tuchman, Shaftesbury’s “motives were religious, the Foreign Secretary’s [Palmerston] imperial. Shaftesbury represented the Bible, Palmerston, so to speak, the sword.”6 In fact, the two motivations were intimately intertwined.7 In the United States, William Blackstone’s petition supporting Jewish “restoration” followed.8 However, most of the international community, especially in the aftermath of World War II, viewed the re-creation of Israel pragmatically, largely from a humanitarian and resettlement, rather than a political or metaphysical, perspective. Jewish repatriation to Palestine, and then to Israel, over the last century mainly consisted of refugees, though many Jewish migrants were motivated primarily by national aspirations. From the Jewish political perspective, refugees in the story of return were secondary to national self-determination, both historically and more recently. In that sense, this chapter refocuses attention from Zionism as a long-term national movement in recreating Jewish identity to Zionism as a story of people returning because of desperation rather than ideology. Although Jewish return has never primarily been a refugee narrative, at crucial moments refugees played a pivotal role in shaping the attitudes of the international community to Zionism and its realization of national self-determination. This chapter is also a prelude to the Palestinian refugee crisis that energized and gave force to a vision of Palestinian self-determination and repatriation. Palestine has been a place of return for clashing and warring peoples over the last three millennia, perhaps more than any other territory in historical consciousness. That return has been etched in popular culture, from biblical narratives to contemporary Palestinian representations. The commonplace contemporary Palestinian construction views the Zionist invasion of Palestine as a modern Crusade. Similar to the fate of the apparently invincible Crusaders who sojourned temporarily in Palestine for two hundred years, in this narrative the end of the Zionist chapter of Palestine will come within the foreseeable future. One distinction stands out between the images of both “incursions”: the Crusaders’ goal was to repatriate the land to Christianity, while the Zionist aim was to repatriate the Jews to the land. The Crusaders were not the first to attempt a repatriation both political and religious. The biblical story of Ezra and Nehemiah recounts a provisional

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Jewish return that lasted between six and seven hundred rather than two hundred years.9 Although the Exodus and the return from Egypt could be considered the very first vision of repatriation of Jews to Canaan, the first formal, internationally and politically sanctioned repatriation took place under Cyrus, King of Persia (559–530 b.c.e.). Following his conquest of Babylon in 539 b.c.e., Cyrus, in “a declaration of good kingship,” repatriated a host of peoples and gods that had been captured and brought to Babylon. Repatriation, reparation, and restitution were intended to ensure the loyalty of his new subject peoples. Although the Jews are not mentioned on his famed cylinder, that general policy led to their repatriation to Jerusalem as recounted in the books of Ezra and Nehemiah.10 The historical veracity of the biblical narratives is secondary to the power of this narrative in Jewish identity.11 The returnees had been exiled following the downfall of the kingdom of Judea in 587 b.c.e. The first return, reputedly supported by Cyrus, included more than forty thousand individuals with notable capital, including treasures (the sacred vessels) from the old temple that provided the religious meaning for the repatriation. Several waves of repatriation followed, leading to the rebuilding of the temple in Jerusalem and the city walls. Jewish life was reconstituted in what is known as the Second Temple period. The story of the returnees includes all the components of the modern Zionist narrative. The returnees articulated their identity in terms of their experience of exile. The alienation from those who lived in Judea during the intervening half century of exile provided the formative experience for many returnees. The “homeland” for the returnees remained the Babylonian diaspora; even after the temple was rebuilt, many remained in the diaspora in outlook if not physically. They separated themselves from the peoples of the lands living in and around Judea. In Ezra’s narrative, the returnees maintain their contacts with the Babylonian diaspora while segregating themselves from the local population. Other sources, including Isaiah, report a more congenial encounter. Not only can coexistence between the groups be surmised from the lack of any description of conflict, but both returnees and the existing inhabitants participated actively in rebuilding the temple.12 In the period between the early Zionism and the mid-1930s, Ezra’s and Nehemiah’s story of Cyrus was certainly more important as a historical analogy than Isaiah’s version and even more important than the Exodus from the Egypt story. The reliance on the imperial power provided a close analogy for the Zionists. Ezra and Nehemiah provided an explicit model for the role of the Balfour Declaration

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and served as such until the British disappointed the Zionists by reneging on their promise in the 1930s. Second, the description of the land as barren, including an especially desolate Jerusalem, legitimized the need for revival to redeem the land. The discursive construction of memory through an ideological structure explains the neglect (rather than negation) of the Palestinian Arab population and why the local Palestinian Arab population was almost politically invisible.13 Indeed, the infatuation of many Zionists leaders with the Orient, with the romanticism of the Palestinian peasants and Bedouins, while ignoring the issue of political and cultural collision, can be understood in part through the Ezra and Nehemiah story. Of course, the Zionists saw that people inhabited the land and that, although it was not densely populated, it was also not empty. Rather, the emptiness was a political marker, a European depiction of the invisible Other. This myopia was not a Zionist idiosyncrasy. The myth of the empty land was a colonial trope that served Europeans in various contexts, nowhere perhaps more explicitly than in Australia. The Ezra and Nehemiah story provided an additional prism to allow Zionists to make the existing inhabitants invisible, thereby supplementing the fin de siècle European worldview. On the other hand, returnees from Babylon described the return as Aliya—“going up,” the Jewish term for being called to read a portion of the Torah in public in the synagogue—a term that remains to describe immigration to Israel. Despite the seeming priority of the diaspora as a source of power and authority, as a financial, political, and religious center that shapes and even dictates the life of the returnees, the place of return became the center of national life. The duality between the center and the periphery characteristic of diasporic communities, especially in the Jewish case where diasporic roots had been the center for millennia, persisted but was superseded by a political narrative; the redemption of the land by the diaspora is followed by and makes possible the self-determination of the returnees. In the religious narrative, the miraculous return itself redeems the people. In this alternative political vision of self-determination—alternative to both the messianic and the political vision that simply transferred the diaspora worldview to Palestine—the diaspora became a wasteland for the Jewish people, a scene of continuing persecution and suffering. The return to Zion provides the salvation. A plausible version of the continuity of Jewish diasporic historical suffering collided with political and social agendas as well as with reality over

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the last two millennia. Since the Second Temple period, most Jews lived in the diaspora.14 Though the fall of Jerusalem led to the expulsion of Jews from that city and the transfer of an unknown number of its population as slaves, the same happened in the diaspora when, in the Diaspora revolt of 114 to 117 c.e., the Jewish populations of Alexandria, Cyrene, and Cyprus were captured, enslaved, and dispersed. In contrast, other than expulsion from Jerusalem, there are no descriptions of large massive expulsions of Jews from Judea/Palestine during that period or later. Yet, in the popular imagination of Jewish history, in contrast to the accounts of historians or official agencies, there is a widespread notion that the Jews from Judea were expelled in antiquity after the destruction of the temple and the “Great Rebellion” (70 and 135 c.e., respectively). Even more misleading, there is the widespread, popular belief that this expulsion created the diaspora. The historical demographic reality is that the bulk of the Jewish diaspora resulted from emigration and conversion to Judaism rather than from expulsion. Jews were indeed sporadically expelled from different places, and the popular view of history as a serial, periodic wandering and a series of expulsions is mostly informed by the repeated medieval banishments of various European countries, including England, France, and the Habsburg lands (Austria, Hungary, Czech), and most famously Spain. These forced “wanderings,” however, were largely stopped by the sixteenth century until anti-Semitism was resurrected in an even more virulent secular, materialistic xenophobia and racism in the nineteenth and, especially, the first half of the twentieth century. Notwithstanding these expulsions during almost two millennia, exiled Jews did not search for return, but rather accepted exile as a norm, as a life and a home away from “home.” Religious beliefs framed repatriation as a messianic drive, which meant it would take place only with the arrival of the messiah. This made the Holy Land an object of desire, of unrequited love. Jewish identity was embedded in exile and diasporic existence. The expelled, wandering Jew provided a foundational myth of the diaspora. But the wandering Jew is the exception; the diaspora has had an independent, normalized existence. The routinized exile meant that the diasporic Jew is always both at home and away; rootedness is grounded in uprootedness. At one psychocultural level, the diaspora is an external state enveloped by a “metaphysical” existence of a memory of homeland—a rootedness that has never disappeared. In our contemporary culture, the experience of diaspora is shared by numerous peoples, including refugees. Diasporic life is the prime manifesta-

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tion of the contemporary global identity and is not considered a temporary experience. Diasporic existence is best represented by the experience of immigrants in countries of resettlement, such as Australia, Canada, and the United States. They keep their attachment to the home country and become hyphenated citizens. In the last few decades, this experience has spread globally. Jews are a nonparadigmatic diasporic community. Although they possess many of the characteristics of any diasporic community, they do not provide a yardstick to define a diaspora. This is most evident in the distinction between Galut (exile) and diaspora. The Galut is a state of alienation, a deprivation, while the diaspora is a neutral term of existence in relation to a homeland. Diaspora does not build in a desire of reversing that relationship. In the Jewish perspective, the emphasis on Galut has had a political as well as metaphysical and messianic meaning. In the latter, only the messiah would bring an end to the Galut; return would be a religious rather than primarily a political homecoming. Indeed, most of Orthodox Judaism before the Holocaust rejected the political (Zionist) interpretation of Galut. In contrast, the secularization of Galut and the national response characterized Zionism and the return to Jerusalem. The secularization transformed Aliya from the synagogue to a political movement. Though rarely inspiring any action, over the centuries the memory of Jerusalem clearly served as a focal point in Jewish life. The few cases of return and the small Jewish population in Ottoman Palestine in the nineteenth century underscore that return was an exception. Zion as a physical entity did not play a central role in Jewish life before the twentieth century though it did as a cultural one. Visual images in synagogues and public places displayed the Babylonian exile as representing the Pale itself, while Jerusalem and Zion remained objects of mythical yearning.15 However, even when return gradually garnered political force, it was mostly fueled by external pressures. In this context, Zionism evolved and was transformed.16 The rise of Zionism aimed to reconnect the nation to the ancient Israelite life in Canaan and, hence, to construct a desire to return, a desire that was both religious and tribal. Self-declared rational, secular Jews manifested the desire more than religious Jews. In a way, Zionism became a religious core for secular Jews: a national ideology based on a rejected religious belief. The correlation of Exodus to the Promised Land has been part of a long textual history and has helped define the national ideology and the connection of salvation and

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liberation to Palestine. If the European tradition was filled with tropes of oppression, flight, liberation, and the establishment of a home, the Exodus story also includes the “new home” as a revival and a return.17 However, actual return was underpinned by a third humanitarian motif in contrast to the messianic and political ones. Jews went to Palestine because they had nowhere else to go. Zionism became a fusion of three tropes—a messianic vision of return, a political view of redemption, and a claim for a physical refuge for existential salvation. Zionism has been and continues to be a modern, nationalist vision of self-determination and a transformation of a religious ethnicity into a “secular” national history made possible by the real persecution of Jews. Though not a “natural” outcome of the ancient religious yearning for Zion, Zionism was consistently represented as such. The biblical story may have served as a blueprint for colonialism in general, though one suspects that it was one among many. In this colonial aspect of Exodus, Zionism as a revival is unexceptional. But Exodus is also, and some would say primarily, a story of liberation and social justice. The classic narration of Exodus as inspiration may not be the whole story, yet it is certainly representative of the self-understanding of a long list of liberation movements that were motivated by it. Zionists had a close affinity to the Exodus story. The story of the Exodus has grown in importance as an integral part of the selfperception of the movement. Its role became especially strong for Zionists when Israel became a state. Jewish tradition views return as reclaiming the deed to the land given by God to Abraham. The Passover story was at the core of the religious Jewish identity, which was secularized in Zionism. The land of “milk and honey” was there, “barren” but available. In addition, the geographical discourse displayed the old biblical names, evoking the return of the new society in a most tangible way.

A Zionist Return The initial Zionist drive was directed toward Palestine for historical reasons and because of a desire to establish a national state. Most Jews lived in the Pale (the borderlands in Eastern Europe between Russia, the Baltic, Ukraine, Poland, and Romania) where they were a minority, although they constituted a large plurality in the new urbanized centers of Vienna, Warsaw, and other Eastern cities. They could not imagine establishing an inde-

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pendent state there. The place of Zion (Palestine) in early political Zionism was as much metaphorical as physical. To read Herzl’s early ignorance of his intellectual forerunners or to peruse his writings and his catchall approach that saw every mention of Jews and Zion as cumulative but never contradictory underscores the degree to which, by the early twentieth century, Zionism was a utopian ideology that included both a religious legacy and a secular, national aspiration but had yet to be translated into a practical economic plan. In hindsight, the metaphorical component of the religious longing might be difficult to recognize since so much of the dreaming materialized within a short time. Only under Herzl’s short leadership (seven years) did the Jewish rite of return become transformed from the domain of obscure activists largely in the Pale, with few representatives in Palestine, into a European diplomatic agenda, turning Zionism into a modern national movement. If the Jewish national aspiration to achieve independence similar to other European nations in the nineteenth century was to be achieved, it had to be done outside Europe. While it was impossible to imagine a new Jewish sovereignty in Europe, realization of that dream was viewed as feasible in the colonial world of the time. Further, imagining a new state in various places of the world, from Latin America to Africa, was acceptable as well as possible. Indeed, many new countries were established. The centrality of Palestine, in contrast to any other plan, provided an ideology of return, even though it seemed impractical as a resettlement plan for millions of destitute Jews from Europe. Several alternatives were proposed. One developed by the Jewish philanthropist Baron de Hirsch planned to settle large numbers of Jews in Argentina. Another envisioned establishing a “night shelter” (emphasizing its temporary nature) in Uganda. This was almost concurrent with an ElArish plan in northern Sinai (1903) and the Russian pogroms (in Kishinev), which created an urgent need for a solution. In the end, the religious longing, the centrality of a national identity around Zion, determined the focus of the Jewish national experience. No matter how constructed or invented such continuity might seem when subject to historical, empirical research, the priority of Palestine became a fundamental credo of the movement, determined by the popular sentiments among Jews in the Pale. This priority became clear when Zionism faced its greatest internal turmoil over the proposal in 1903 to establish a Jewish temporary shelter in Uganda. At the time, Palestine had several drawbacks for Zionists. Not only

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was it undeveloped. Not only did it lack resources. For some (Herzl included), Palestine was too close to Europe, which meant that Zionism would likely be embroiled in European military conflicts. Under British colonialism, Uganda, presented as a plausible immediate proposition, seemed to provide many advantages for Jewish nationalism. For one, Uganda was rich in resources compared to the desert in Palestine. However, even a temporary solution was viewed as too much of a break with the dream of return. The alternative faced by the Zionist movement in 1903 was striking: national salvation through settlement in Uganda or dreams and aspirations to repatriate in Palestine that were unlikely to be fulfilled. What is even more telling, from this book’s perspective, about the real suffering of refugees in the name of long-term national self-determination is that the Zionist dispute over Uganda has a very contemporary tone.18 Although a significant segment of the Zionist movement supported the Uganda proposal, it was not to be. The rites of return proved stronger than political pragmatism or even the fear of ongoing pogroms. The Zionist movement emerged from its most difficult ideological controversy adhering to a dream of return and turned down the proposal for a supposedly realistic humanitarian plan that might have even lead to a nation-building project. The internal divisions within the Zionist movement anticipated future debates over the sanctity of the land, the religious and secular components in Jewish identity, and the synthesis of pragmatic politics and political messianism.19 Whether Palestine or Uganda, the question of the feasibility and suitability of a place did not consider the attitudes of the local population. This obliviousness was characteristic of colonialism. The natives were ignored, in part because of Orientalist thinking, in part because the belief in progress was so entrenched that it was inconceivable to the Europeans (Jews and non-Jews) that the natives would not be enchanted by the modern benefits and would not become advocates of colonialism. The Jewish colonization of Palestine, in the language of the early twentieth century, would bring prosperity to the local population. Colonization was viewed as settlement, even if in practice that settlement could only take place within the frame of military control. Unlike colonial enterprises but similar to other national movements, Zionism constructed its ideology on the trinity of descent, language (culture), and a homeland. Do contemporary Jews share common descent from the ancient Hebrews? Similar to other descendants of ancient peoples, Greeks

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or Egyptians for example, the biological continuity has never been questioned among the people in spite of a record of considerable intermarriage with surrounding populations. Even more tenuous, the ethnic diversity among Jews challenged the anthropological argument at the time of being a single race. Herzl, in acknowledging the obvious Jewish diversity, challenged the racial argument and replaced it with historical unity: “we are an historical entity, a nation made up of diverse anthropological elements. This also suffices for the Jewish state. No nation has uniformity of race.”20 For its time, this racial openness and distance from biological determinism was exceptional, even among liberal scientists, as most peoples were constructing narratives of biological and historical homogeneity. This was a bold thought because lineage meant a homeland—ancient Israel, where Jewish national identity had been formed—and a common culture for a people that belonged to many cultures and spoke a diversity of languages, none of them Hebrew. Hebrew was the language of the Bible, preserved as the language of religion and prayer. Religion and language as national components provided the glue, even if somewhat tenuously and irrationally since they were applied to people who did not know Hebrew as an everyday spoken language and who were turning secular. Further, they did not live together in their shared land. Inventing an old-new national language was anything but obvious. Yiddish seemed to have been the only viable spoken language, yet many rejected it because Yiddish was the diaspora’s language and represented everything despised by Zionists of the Galut, especially the poverty. Most of all, it was disconnected from a new beginning and from ancient Israel. German was considered a popular alternative because it was the most cultured language of the time and a plausible shift from Yiddish. Hebrew, like Zionism, seemed an unlikely rite of return. However, Zionism (and modern Hebrew) married modernization with romanticism, transforming religious identity into nationalism through reterritorializing national Jewish narratives. In this synthesis of revolutionary conservatism, Zionism followed in the footsteps of other European national movements.21

Jewish Migration to Palestine This nationalism evolved as a small part of a large movement of wandering and migrating that began at the end of the nineteenth century, encouraged

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by improved transportation systems and the fear of the increasing physical violence due to anti-Semitism in Eastern Europe. A vast migration movement west was directed toward Germany and Western Europe as an initial stop on the way beyond Europe, foremost to the Americas. Between 1880 and World War I, more than two million Jews migrated west, motivated both by economic opportunities and fear rather than ethnic cleansing or expulsion. The fear was invoked by real, though limited, violent persecution. This was not quite the medieval image of the expelled Jewish community that was forced to move. Yet, the growing tenements on the Lower East Side of New York and the East End of London strengthened old stereotypes. Contemporaneous with this massive migration, a small number of emigrants chose Palestine as their new home. But even most of these migrants were motivated largely by economic considerations. The trip from Russia to the Americas was often too expensive for many, and Palestine was relatively a cheap destination. Yet, among those who migrated to Palestine before World War I and in its immediate aftermath, there were also a few thousand “avant-garde pioneers” who led a national movement that, under external pressures, transformed migrants into a nation and turned repatriation into the rite that glued together the national mythology. Many of those later became the leaders of Zionism and Israel. Only in retrospect did all Jewish immigrants of the period become Zionist pioneers.22 Zionist return was a combination of tribal nationalism and enlightenment principles. The popular drive came from the emotional Eastern European poor, whose own salvation was on the line. The leaders, and the public face of the movement, looked to Western Europe and progressive European nationalism as an example of rational enlightenment. Theodor Herzl believed that the nation had to have a territorial base and political independence. Eastern European Zionists synthesized the two desires of nationalism and social justice into a socialist Zionism and a romantic longing to return physically to the land. Colonization, therefore, had to be based on physical contact with and the agricultural cultivation of the land. Informed foremost by ignorance, only a people that had little experience of working the land could imagine a modern renaissance through physical tilling of the land. Ideology won out. Since the second wave of Jewish settlers in Palestine at the beginning of the twentieth century, mainstream agricultural work came to embody the return to the homeland. The ideology had to be made practical through efforts such as those of Arthur Ruppin.

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The Zionist adherence to socialist ideology meant turning the newcomers into agricultural workers. Under a different dominant ideology, such as the revisionists, Zionists might have created a class of colonizers and employers of the local population (as they did in the earlier Rothschild settlements). Instead, many became agricultural workers themselves. The romantic return heralded the “conquest of the land” together with “Jewish Labor” as the only way to implement a true repatriation. The Zionist idealization of agricultural work as the outstanding feature of the return to the land imported their infatuation with the Tolstoyan peasant lifestyle. Their model, the Narodnaya Volya—the Russian revolutionaries who joined the peasants—was another form of a socialist rite of return that gloriously failed. In the words from A. D. Gordon’s famous poem, “Tolstoy in Palestine,” “You wanted to remake the Jew into a farmer. Your weapon against history was the hoe.”23 This particular form of return to the land resulted in increasing segregation between the Arab-Palestinian and Jewish economies as well as in immediate exploitation by colonial settlers similar to other colonial enterprises. The result was an economic structure that enhanced the partition of the two societies. The rite of Jewish return was not a façade for external consumption but a deeply embedded credo. In today’s terms, the credo was understood by the existing agriculturally based community as the takeover by immigrants who rely on the global economy. The romantic Zionist streak of the “return to the land,” in the practical manner of engaging in agricultural work, which was meant to create a national, economic, and cultural renaissance, validated the Arab fear of competition over limited resources. Ironically, this locally rooted, national, cultural, and economic Zionist renaissance imitated decisions made in London to determine the fortune of regions around the globe. Zionist resistance to recognizing the political rights and claims on the land of the local population was in line with contemporary norms at the time. The notion that a land is relatively empty, that its local people do not count as a political force, may seem an alien concept today, appearing to the modern reader as a willful, self-serving invention. However, it was then an unexceptional claim. In 1917, the Balfour Declaration gave international recognition to the Zionist dream while paying minimal attention to the local population. The world was not ready in 1919 to recognize non-European nations as equal. The League of Nations invented the mandate system of “nurturing” coun-

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tries to independence. In Palestine, it was to do so through repatriating Jewish nationalism. Zionism was a central ideology but a marginal migration movement among Jews before immigration restrictions in America limited other options. During the 1920s, the possibilities of global migration were dramatically curtailed, foremost to the United States. As the alternatives disappeared, Palestine became more central to the Jewish experience. The collision between expulsion and persecution on the one hand and the lack of alternative migration havens on the other hit European Jewry most violently in the 1930s as Nazi Germany began to expel its own Jews. The Great Depression closed other economic prospects and borders. The opportunities to migrate even to Palestine diminished quickly with the growing Arab resistance. The lack of havens was followed by the almost total extermination of European Jewry in the Holocaust. Although Zionists ignored the Arabs in Palestine politically as a community, they certainly noticed them as individuals and as inhabitants of the land. The general consensus among Zionists toward Arab individuals in Palestine began with a declaration that the Jewish state would guarantee equality to the Arabs. This began with Herzl and was characteristic of Zionist diplomacy. If repatriation was the sine qua non of Zionism, international support was also crucial, maintained by the conviction that the local population would either benefit, or at least not be harmed, by Zionism. At the same time, Zionists rallied international support by promising to resolve the Jewish question in Europe through repatriation. A conceptual leap is required to recognize the reality of the pre-Holocaust days. Israeli settlements and the confiscation of Arab land in the West Bank in the past few decades, together with the demographic growth among Palestinians, have fostered the belief of many Palestinians and others that, leaving “natural” trends on their own, Jews cannot maintain a demographic majority in Israel without employing force against the Palestinians. By implication, they could never have achieved majority status in Palestine. Therefore, the Zionist policy is to expel the Arabs and discriminate against them, policies that have persisted since the movement started. This, however, allows contemporary perspectives to dominate the historical evidence. Rather, the mainstream Zionist movement believed that the demographic balance would be in their favor once the millions of Eastern European Jews migrated to Palestine. In any case, the movement was too weak at the time even to contemplate an expulsion. Finally, Zionism

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viewed itself, and needed to be viewed globally, as an ethical movement. The Arab population would become a minority and benefit from modernity. Given this context and perception, Zionist leaders believed in repatriation and future Zionist sovereignty, while nonetheless promising equality to and progress for the Arabs, without judging themselves as either unrealistic or dishonest.24 Would a Jewish entity in Palestine mean the end of the Galut as Herzl imagined? Or was Zionism to be a symbolic and cultural return, since most Jews would stay in the diaspora? In the latter vision, the main purpose of Jewish return would be to establish a cultural secular center as Ahad Ha’am had argued. The more extensive the Zionist existence in Palestine became, the greater the Arab opposition. The demand for both Zionist and Arab national independence grew. In the two decades after 1929, the central issue in the politics of Palestine focused on the right of Jews to immigrate. This was accentuated after 1933 when the conflict shifted to the rights of Jewish refugees fleeing persecution to seek a safe haven in Palestine. The “Great Arab Rebellion” (the “Riots”) of 1936, which became a full-scale revolt in 1937, was in part motivated by the fear that the plight of the Jewish refugees in Europe and the reluctance of other countries to take in those refugees would, through mass migration, inevitably result in the Jewish minority becoming a majority.25 The Peel Commission provided the British investigative response, recommending freezing immigration at twelve thousand per year for five years, as well as the partition of Palestine. The partition envisioned population transfer.26 The Jews of Germany were being forced out of Germany and there was nowhere for them to go. The Jews in the rest of Europe were threatened by a rising tide of anti-Semitism. The problem was no longer the right to immigrate and the realization of a national rebirth. Instead, the problem became the plight of Jewish refugees and was about to become the very survival of the Jewish people. Faced with Nazism in Europe and an Arab rebellion in Palestine, the Zionist Congress in 1937 agreed to accept the principle of partition, but only on condition that the area allocated to the Jews would be sufficiently large. In fact, based on an agricultural model, the size of the proposed state was small. The new policy presumed a constraint on future immigration. Even then, the British Government rejected the Peel Commission recommendations on partition and in the 1939 White Paper restricted Jewish immigration, stipulating that only seventy-five thousand Jewish immigrants would be allowed to enter Palestine

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over a five-year period. Any subsequent increase would require the acquiescence of the Arabs. Jewish migration to Palestine was essentially stopped. The British invested resources in blocking illegal migration. Refugees were forcefully repatriated. In this, Britain was not fundamentally different from other nations, many of whom gloriously assembled in Evian in 1938 in a conference to address the refugee crisis. There, the international community failed to offer any hope to Jewish refugees. Without a haven, European Jewry was doomed. Illegal immigration to Palestine, supported by widespread international criticism of the British blockade, continued until the end of the British mandate and sustained much of the Zionist national fervor in the desperate effort to save fellow Jews. The goal of a Jewish state as a haven for persecuted Jews reached its apex just before, during, and in the aftermath of the Holocaust. In each of these periods, the attitudes and policies of the Zionist leaders toward diaspora Jews privileged the establishment of an independent state over an exclusive focus on saving the victims, since those selected to be saved were the young and the strong, chosen to participate in the building of a national state. The defenders of the policies, at the time and ever since, argue that there was little that could have been done (and what was possible was done). In the larger context, the impending and actual destruction of European Jewry provided overwhelming proof that a solution could only be found within an independent state. Relative to saving any and all victims equally, the Zionists prioritized self-determination and creating a long-term stable polity. Zionism achieved self-determination but not a universally recognized and secure state. Middle Eastern wars and enmity replaced European persecution. For critics, the ambivalent tension of Zionism to the diaspora went deeper than merely privileging self-determination. Zionist leaders were criticized for a condescending attitude to the diaspora and for covering up information about German crimes during World War II, mostly by inattention, and failing to pressure public opinion concerning the destruction of European Jews.27 Zionists were charged with using their energies to lobby and organize American Jews to support the independence of a Jewish state. The more irresponsible arguments included claims that the Zionists “allowed” the destruction with the expectation that it would lead to support of a Jewish state by the Allies. This critique was made by ultra-Orthodox and non-Zionist left-wing Jews alike and was revisited in the 1990s by histori-

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ans. The dilemma was whether promoting Jewish migration to Palestine diverted attention from other potential rescue efforts or whether, given the inability to save European Jewry, the Zionist leadership acted reasonably within the given constraints.28 The emerging consensus: Zionists were governed by a mixture of motives, ideological and pragmatic, emotional and blinkered.29

Holocaust Survivors, Humanitarianism, and National Ideology Roughly 100,000 Jews were left in the Nazi concentration camps at the war’s end; there were another 100,000 to 150,000 Jews in Eastern Europe who were fleeing violent pogroms and impending Soviet control. The clash between the view of these refugees as suffering individuals and the view of the refugees as participants in the national saga was polarizing and very intertwined and interwoven with the whole process of migration. Similar to much else related to the Holocaust, Jewish diaspora life was riddled with competing political agendas. In the circumstances, the Zionist project had become the only realistic option at a time when obstacles existed in all other directions, given the rising anti-Semitism in the communist East and the Soviet Union as well as the closed doors in the West that the refugees encountered. In that context, the subjugation of the refugees’ needs to the Zionist national agenda, originally constructed on a marriage of myth and fantastical hope, proved to be the most plausible ordering of priorities, at least between 1945 and 1948. Notwithstanding these attitudes, Zionist leaders believed that the only way to have a viable free state was to bring every possible Jew to Palestine: first, the survivors, no matter their state; second, the Jews from the Islamic world.30 At a time when no country accepted Jewish refugee survivors, the Jews in Palestine constituted the only political entity eager to receive them as immigrants. There is a widespread belief that guilt over the Holocaust was a motivating factor internationally in the support for Zionism and the refugees.31 In reality, those who died in the Holocaust did not obsess the international community after World War II. Rather, the living remnant of two hundred thousand Jewish refugees captured the attention of political leaders, for though the Jewish refugees were but a small portion of the displaced after World War II, everyone else had a place to go. Whatever compassion existed, however, it did not persuade the nations of the world to open their

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borders to resettle Jewish refugees. For example, Canada’s doors remained as closed to Jews in the immediate aftermath of World War II, as they were before the war.32 So were the doors of the United States.33 Britain, which admitted tens of thousands in spite of its own economic woes, was really only interested in the best and the brightest. However, against the wishes of Britain, some prominent players were motivated by compassion for the refugees and insisted that the Jews be settled in Palestine. The AngloAmerican Committee, for example, recommended that one hundred thousand immigration certificates be issued immediately so that the refugees could go to Palestine. The recommendation reflected a determination to resolve the refugee problem, not guilt over the Holocaust.34 What was to be done with these refugees? The Jewish refugees with Zionist convictions believed that Zion was the only place where they would be both safe and fulfilled. Palestine was the obvious destination. Practically speaking, given the reluctance of Western countries at that time to resettle Jews, Palestine was also the only option for most Jewish refugees who were not ardent Zionists. The only other option, an unacceptable one, was repatriation to the countries from which the Jews had fled. The Arabs, assisted by the British, used the international diplomatic arena to resist the pressure to permit the entry of Jewish refugees from Europe into Palestine. For example, they pushed for the repatriation of the Jews to their countries of origin in Europe and tried to prevent Jewish resettlement in Palestine in the discussions of the Economic and Social Council (ECOSOC) over the draft constitution of the International Refugee Organization (IRO).35 A distinction was made between refugees—pre- or postwar victims of Nazi or fascist regimes or of racial, religious, or political persecution—and displaced persons (DPs) forced to move in the course of or after World War II. The IRO was “to encourage and assist in every way possible their [the IDPs] early return to their countries of origin.”36 If Jews were classified as DPs, that classification would direct the IRO to arrange for their repatriation. However, if Jews were classified as refugees, then Palestine was the reasonable place for them to be resettled, given the terms of the mandate and the limitation of other options.37 Whatever the IRO’s classification, until a solution could be found, the Jews were held in a vast network of DP camps but were treated as refugees.38 Arab countries, led by Egypt, attempted to set repatriation as the goal of the IRO for all those who had been displaced.39 To dry up the source of Jewish immigration to Palestine, the United Kingdom opposed the provision

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defining German and Austrian residents of Jewish origin as “refugees” on the ostensible high ground that this would merely clear Europe of its Jews, in other words accomplishing Hitler’s goal of making the Germanspeaking parts of Europe “Judenrein.” Though the British acknowledged the difficulty Jews would have living in places where they had been persecuted, they admitted their real motives when they declared their “fear that the new provision might well involve the new IRO in schemes for Jewish immigration into Palestine, a matter which is being separately dealt with by bodies specially concerned with that problem.”40 Against UK and Arab objections, the Jews were defined as refugees, not DPs. In another attempt to prevent the resettlement of Jews in Palestine, efforts were made to place specific conditions on resettlement. Dr. Malik of Lebanon, a central figure in drafting the Universal Declaration of Human Rights, attempted to qualify where the IRO could resettle refugees. He proposed that refugees could not be resettled where they “will create political difficulties in the countries of resettlement or in neighboring countries” or “without the consent of the peoples of the countries of reception and without full consultation with the member States of the United Nations most directly concerned.”41 These and other similar efforts were defeated. However, Britain was in power in Palestine and controlled the gates of entry. Whatever sympathy existed for the Jewish refugees internationally, Britain stubbornly clung to its commitments of the White Paper restricting Jewish entry into Palestine. Power, not law, and certainly not moral principles, seemed once again to determine the fate of the remnant of European Jewry. Following Britain’s referral of the problem in Palestine to the United Nations for its advice, the United Nations Special Committee on Palestine (UNSCOP) was established in May 1947 to formulate a proposal to resolve the political impasse. The majority report of UNSCOP recommended partition; the minority advocated a federal solution. In the interim (conceived to be a few years at maximum), the British could continue to administer the territory but henceforth under the auspices of the United Nations. The Arabs rejected both the majority and minority reports and demanded an Arab state be immediately constituted in Palestine. In the minutes of UNSCOP, there is no mention of the Holocaust or of sympathy for the Jews because of the Holocaust. There is extensive admiration for what the Jews had created in Palestine, even among the minority who voted against creating a separate Jewish state. There was a

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more extensive concern over what to do with two hundred thousand Jews who no one else wanted and who by 1947 overwhelmingly wanted to go to Palestine, even though only a small minority of the refugees were Zionists immediately after the war. The majority became Zionists as other resettlement options evaporated. The commission report was strongly influenced by the flight of the Jewish refugees. Several members witnessed the refugee ship Exodus being hauled into Haifa harbor, its hull smoking and broken, with 4,500 Jewish refugees aboard, including the dead and wounded from a battle with the British navy.42 Some of the members also travelled to the DP camps in Europe. The committee came to two clear conclusions: Britain could not maintain its mandate and the refugees had to be settled. By accepting the principle of a linkage between Jewish refugees in Europe and the future of Palestine, the pressure on resolving the problem of the Jewish refugees through migration to Palestine was clear. The committee concluded that even if there were alternatives, 75 percent of the Jewish refugees would choose to go to Palestine. Against the background of the atrocious conditions in the camps two years after World War II had ended, the inability of Jews to resume life in a Europe haunted by the Holocaust, the fear of rising anti-Semitism, and the absence of other options, the choice of Palestine was inevitable.43 The UNSCOP majority recommendation limited Jewish immigration to 150,000 persons for a two-year transition period.44 Thereafter, if independence had not yet been achieved, 60,000 Jews would be allowed to immigrate yearly. On achieving independence, the Jewish state would determine the number of immigrants it could absorb. The minority recommended that the United Nations control Jewish immigration; thereafter, it would be the responsibility of a federal government in Palestine that was expected to limit immigration severely. Given the realistic need for self-defense, Zionist priorities were evident in those given priority for repatriation. Though refugee suffering was prominent in international appeals, youth and strength were priorities in those brought first to Palestine. The process of self-determination was already at work in the camps as the Zionists within the camps, who were initially a small minority, organized politically and won electoral control over other civil polities within the camps.45 The situation changed somewhat when the refugees arrived in Israel. Though the Zionists made strenuous, heroic efforts to get the refugees to Israel and help them settle, their personal attitudes to the refugees as

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individuals were another matter. The survivors themselves, the refugees, found little public space and hardly any private space in the new Israeli state. The personal space for recovery and rehabilitation that refugees and survivors need had no place in Israel’s heroic national culture. The British tried to stop the migration to Palestine at least until its troops left. Immediately following the end of the British mandate, the refugees found their way to the new state. Many died fighting for it in the 1948 war; others fought with the state to maintain their identity, to try to commemorate their families, their memories, and their lives. David Ben-Gurion described the survivors as “a mob and human dust, without language, without education, without roots and without being absorbed in tradition and the nation’s vision.”46 The survivors accepted this hostile climate, some for lack of choice. Others embraced the possibility of starting a new life, convinced that repressing the memory was the only option.47 Aharon Appelfeld, the prominent survivor and author, observed on the fiftieth commemoration of the war, “whoever survived and came here brought with him much silence. It was tacitly accepted not to speak about certain matters and not to touch certain wounds.”48

Repatriation Policies in Israel Following Israel’s independence, the new state began implementing a series of legislative acts and policies that created the framework for ensuring that Israel would be a Jewish state. This involved both strengthening the Jewish population and limiting the Palestinian population. The rites of repatriation and dispossession mirrored one another. The state also opened its border to Jewish refugees primarily from the DP camps in Europe and from Cyprus, where the British held illegal immigrants in camps. Following the cease-fire with the Arab States in 1949 and the first wave of immigration, Israel legislated perhaps its most important law, the Law of Return. Israel’s founding Declaration of the Establishment of the State of Israel narrates Eretz Israel as the birthplace of the Jewish people. “After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom. Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient homeland.”

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Though lacking any evidence to support the assertion that Jews of every generation strove to return, this conviction has remained the central national dogma. National revival seemed almost preordained by this narrative of the continuity of tradition. Israel’s Declaration of Independence, however, anchored the rite of return in legal rights and a legal rationale that underscored independence both as the natural right of self-determination and as the product of international legitimacy bestowed in the implementation of the UN decision to establish a Jewish state in Palestine. Following independence, through domestic legislation making Jewish return into a state program and the Law of Return into a central dogma of the national ideology, Israel implemented the Zionist program. If earlier in the century the question for many Jews was one of living outside history, this option evaporated by the two momentous events of the Holocaust and of the independence of Israel. The return to history, to Zionism, is viewed as the negation of the Holocaust.49 The “right of return” was codified in the 1950 Law of Return which entitles “every Jew” to become a citizen and live in Israel. This is considered a foundational right in Israeli law and codifies the essence of Zionist nationalism—to reunite Jews in their ancient homeland. The new returnees—olim, “immigrants”—are entitled to immediate and full membership in the community. Citizenship is granted because membership precedes migration, which is, after all, a return. The law has been the subject of numerous controversies, the foremost being about the priority given to Jews (and the definition of who is a Jew) in obtaining membership in the state and the corollary discriminatory treatment against non-Jews in applying for the same membership.50 Raising the question of discrimination is used to challenge the notion of return, a principal concept of Zionism.51 Over the years, the implementation of return raised the specter of an unintended multiethnic identity as well as anti-Arab discrimination. The issue became prominent in the inclusion of many non-Jews, primarily from the former Soviet Union, under the law of return.52

Sephardic Refugees If the mainline Zionist story before and immediately following independence focused on Ashkenazi Jews, it was the Sephardic Jews who migrated

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in large numbers during the 1950s to Israel. Their status as refugees and the relation of their migration to the Palestinian refugees has received less international attention, but more recently their refugee status has become an aspect of peace negotiations, an issue to which we will return after we attend to the role of Jewish refugees from Arab countries and other parts of the Middle East. In the Arab narrative, these Jews were not refugees on a par with the Palestinians. For their flight was provoked by the “expulsion” of the Palestinians. There are more Jews in the Arab world outside of Palestine than there are in Palestine . . . Harmony prevails among Moslems, Christians and Jews. But any injustice imposed upon the Arabs of Palestine will disturb the harmony among Jews and non-Jews in Iraq; it will breed interreligious prejudice and hatred . . . A Jewish State breaks that [Arab] unity and endangers the peace and security of the Arab States.53

On the eve of Israeli independence, there were 850,000 Jews in Arab countries; in 2008, there were at most 8,000. In response to the establishment of Israel, Jewish life in the Arab world ended. This was anticipated, indeed threatened, during debates over partition of Palestine at the United Nations. As the Egyptian delegate declared, “the proposed solution might endanger a million Jews living in the Moslem countries.” The intimidation was explicit: “partition of Palestine might create in those countries an antiSemitism even more difficult to root out than the anti-Semitism which the Allies were trying to eradicate in Germany” and “it might be responsible for the massacre of a large number of Jews. . . . Nobody could prevent disorders. Riots would break out in Palestine, would spread through all the Arab states and might lead to a war between two races.”54 Although these Arab representatives argued that the Jews were members of a religion and were not a people requiring a state, Arab countries, in addition to threatening the new state of Israel, concurrently threatened Jews in their own countries who had almost nothing to do with Zionism in general or with the anticipated state in particular. They thereby contradicted their claims that Judaism was just a religion, since they treated Jews as belonging to a people. Furthermore, the Arab threats were issued before any Palestinians were expelled or fled and before the war broke out. In comparison to the violence against Jews throughout European history or in the Arab world since Israel’s independence, the expulsion of

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the Jews took place against the legacy of a relatively peaceful Arab-Jewish coexistence for more than two millennia, notwithstanding various pogroms over a thousand years or the near destructions of particular communities in the nineteenth century or the fact that Jews lived in ghettos in North Africa. During the 1940s, the intensity of violence against Jews spread, but these were isolated incidents at a time when European Jewry was being exterminated. The Jewish situation in Arab states, though varied in degree and intensity among them, deteriorated in the following two decades. In several countries, Jews were expelled or had their citizenship revoked, while in other countries they faced discrimination, threats of violence, and rioting. In Egypt, although there was some violence against Jews as a result of the 1948 war, most Jews in Egypt initially remained. Only in 1956, as a response to the Sinai War, did the Egyptian government enact anti-Jewish policies and expel over twenty thousand. Many others left because of discrimination and intimidation. The new legislation made it illegal for “Zionists” to have Egyptian citizenship. All Jews were considered Zionists, though not officially declared so. Various administrative and legal measures were taken to confiscate Jewish property, making their terms of employment harder or outright impossible. In Syria, anti-Jewish measures began in 1945. The 1947 pogrom in Aleppo destroyed the country’s largest Jewish community. Although discrimination increased, the Jews were not expelled; in fact, emigration to Israel was forbidden. It took years for the community to dwindle from its height of thirty thousand during World War II, and only a minority ended up in Israel. The violence had a more immediate impact in Yemen, where practically all Yemenite Jews—almost fifty thousand—emigrated to Israel between 1949 and 1950. In French North Africa, the colonial control delayed the anti-Jewish measures until the postindependence period. In the late 1950s, Jews from both Tunisia and Algiers emigrated mostly to France and to Israel. Morocco had the largest Jewish population in the Arab world. Anti-Jewish rioting and policies induced emigration, which accelerated in the mid-1950s. Following Moroccan independence in 1956, rioting against Jews stopped but began again in 1963. In some respects, the old and prosperous Iraqi Jewish community is most pertinent for the refugee discussion. The Iraqi Jewish community traced its roots to Babylon in the sixth century b.c.e. Before Iraqi independence in 1932, it faced little discrimination, but the pro-Nazi coup of

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Rashid Ali led to anti-Jewish riots, which were repeated in the years 1946 through 1949. Zionism became a crime in 1948. Anti-Jewish legislation, such as the Denaturalization Law (March 1950), gave Jews “permission” to leave the country while most of their property was confiscated. The Zionist movement and Israel, in cooperation with the Iraqi government, organized the departure. Over 140,000 Jews were displaced from Iraq by 1951; most ended up in Israel. After 1952, the few thousand Jews left were barred from emigrating. Over the years, they were subject to increasingly repressive measures. In 1949, discussions had already taken place about the idea of Iraq absorbing a couple of hundred thousand Palestinian refugees in return for the Iraqi Jews, who would migrate to Israel.55 Iraq’s Prime Minister, Nuri Sa’id, reputedly discussed the plan with Western, Arab, and Palestinian leaders even before anti-Jewish legislation was passed.56 Palestinians allegedly objected to the expulsion of Iraqi Jews ostensibly on the grounds that the expulsion would complicate the Palestinian refugee issue. Iraq ignored Palestinian objections. The plan for Palestinian resettlement was also stillborn.57 Did premeditation characterize these anti-Jewish policies? Was there a coordinated persecution against Jews in Arab countries? Some Israeli leaders claim that evidence points to a shared pattern of conduct among a number of Arab regimes that was intended to coerce Jews to leave (or to keep them as political hostages).58 However, the anti-Jewish atmosphere permeated Arab states to different degrees. Each acted independently.59 In time, measures by one government were emulated by others. The overall discriminatory actions were usually coupled with violence and repression that forced Jews to leave while making the life of those who remained unbearable. But it took time (for instance, in North Africa it was spread over a decade), and it is hard to see it as a predetermined, premeditated plan. Israeli leaders regarded the displacement of Palestinians and of Sephardic Jews as a population exchange: the 850,000 Jews forced to leave Arab counties (including about a quarter who did not end up in Israel),60 combined with the 37,000 Jews displaced in the 1948 war, in exchange for the 720,000 Arab Palestinians who fled or were forced to flee from the territory that became Israel. Following the Jewish migration/expulsion from Iraq, mostly in 1951 and 1952, the Israeli government also began to refer to the property of Jews from Arab lands as a quid pro quo for the

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Palestinian refugee property. One critique of the Israeli position called it a cynical policy, because, while the Iraqi Jews lost their private property, Israel gained the Palestinian property and turned it into a national resource without compensating the Iraqi Jews. The World Organization of Jews from Arab Countries (WOJAC) estimates the lost property, including personal (e.g., homes, businesses, land, pensions, and benefits) and community (e.g., schools, synagogues, hospitals, and cemeteries), at well over $100 billion.61 If Arab counties took no responsibility for forcing the Jews to leave, the new Israeli state reciprocated by treating the Jewish refugees from Arab countries as immigrants (olim) who were coming to Israel to implement the Zionist ideology. The de facto expulsion of the Jews from most Arab states and questions concerning the property they left behind became a contentious point between Israel and Arab states and was directly connected to the issue of the Palestinian refugees. In expelling the Jews and encouraging anti-Jewish policies, the Arab states played into Israeli nationalism, strengthening the young state, improving its economy, and providing the young polity with a large number of new citizens. Post-Zionist sociology in Israel raised many issues concerning government discrimination against Sephardic Jews after their arrival in Israel. Sephardic Jews were confined to the lower rungs of society by exclusionary social networks. Yehuda Shenhav argues that the Iraqi Jews were not Zionists and that their leaders rejected the national ideology. To counter the resistance from the traditional leadership, Zionist representatives in Iraq collaborated with young members of the Jewish community to take over the community leadership and enable the young leadership to advance their own Zionist national ideology.62 As in Europe, and similar to the generational conflicts in other nationalist movements, Zionism among Sephardim was a youth rebellion that led to a continuous conflict between the traditional, Orthodox leadership and the modern. The hegemony of Zionism was based on modernization, which in the case of the Sephardim can be represented as orientalist policies or, alternatively, can be viewed as demands by the new Iraqi Jewish leadership to be included in the Zionist narrative. The authenticity of Sephardic Zionism is significant both to the internal Israeli story as well as to understanding the tension between Jews and Palestinians over the refugee issue and property. We will discuss the latter and then return to the issue of the treatment of Sephardic Jews by successive Israeli governments.

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The Laws of No Return As we described above, Zionist ideology believed that the return to Eretz Israel was closely associated with the physical return to the land. The Law of Return was one manifestation of the new state’s legal transfer of the land to Jewish ownership. Although Israeli control of the land is mostly attributed to the Palestinian loss in 1948 through war and exile, a critical part of the land was transferred earlier through legal instruments and later in a judicial process that “judaized” land ownership. Before the independence of Israel, purchases of land from Arab landlords and peasants were rationalized by the desire to return not only to the country but also physically to the land. Jewish exile was not only to end geographically but also to transform Jews from small-town dwellers to agricultural workers, a return to their biblical heritage. With sovereignty, these ideological aspirations together with realpolitik informed the policies and legislation of land expropriation that put almost all the land under Jewish control. The return was to be achieved through physically and legally “judaizing” the land itself, making it the property of the nation, of the Jews as a group. Consequently, much of the land came into the ownership of legal bodies that represented the Jewish nation rather than individual Jews or even the state. Semigovernmental organizations, such as the Jewish Agency and the National Jewish Fund, became the main instruments that owned and developed the land in the name of the Jewish people. The invention of a renewed national identity implemented the ideology of return through immigration and professional/occupational transformation, creating both a new past and a new future. These policies of ethnic partiality resembled states like Australia, New Zealand, and Canada in the preference given to settlers over natives. Only decades after independence, and only then under a political and demographic structure that ensured the permanent marginalization of natives, have those former colonial powers offered minimal restitution. In other words, only when repossession (or repatriation) was impossible, and only when the national existence could not feasibly be undermined or the selfidentity of the nation be significantly changed, were the excolonies willing to provide limited restitution. Over the last few years, Israeli judaizing policies have come under legal scrutiny by the Israeli Supreme Court for violating nondiscriminatory legislation and human rights. Through a combination of legislation and court rulings, Israel has been moving from callous policies that were entirely subjugated to the Jewish national interest

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to principles of equity that make land accessible to non-Jews in Israel in accordance with international standards of nondiscrimination. The sincerity and effectiveness of these policies are subject to politics. It has yet to show any macro impact. Similar to those former British colonies, Israel is a self-defined liberal democracy. However, proportionately, it has a larger native population that is non-Jewish. In addition, Israel is at war with its neighbors who share an identity with Arab-Israelis. Unlike the other excolonies, Israel has not reached a stage at which its existence is noncontroversial. Israel lives in tension between a liberal tradition and a preference for the dominant ethnic group. This tension defined Israel’s ethnic policies concerning its Arab citizens. Concurrently with the legislation of the Law of Return, the Absentees’ Property Law (1950) came into force. This law defined “absentees” as people who became refugees, for whatever reason; those uprooted (through escape or expulsion) included those who attempted to return to their homes after a cutoff date, even if they became Israeli citizens. It might well have been named the law of no return. In the formal rationale of the law, those who cooperated with enemies of the state and fought against Israel were punished and had their property expropriated. The implementation of the law, however, belied both the “absentee” rationale in the title of the law and the enemy rationale since the law applied to Israeli citizens. The true aim of the law was to appropriate as much Palestinian land as possible and transfer it to Jewish ownership by giving control of the property to the Custodian of Absentee Property, who, in turn, converted the property into national land. The implementation of the law took decades and brought about continual litigation by several property owners who tried to claim their land back from Israel. Almost without exception, these difficult appeals failed. As a national policy, the sweeping appropriation was an overwhelming success. Similar to other ex-British colonies, the modern state was efficient in utilizing law as a mechanism to dispossess the natives who were left with ownership of a small portion of the land. By relying on modernization and the limited applicability of legal ownership in traditional law, the legal process paralleled that of other excolonies. Israel was more constrained in appropriating the land because, although the national ideology declared the land empty, Israel never constructed a legal emptiness comparable, for example, to the way white Australian settlers defined the land terra nullius. The Aborigines had less protection than the Palestinians whose property in part was vested in the Ottoman

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legal system. But in both cases, modernization moved fast to make the traditional system obsolete. The various categories of land under Ottoman law, the interregnum of the British mandate that required land registration but hardly implemented it, and the struggle of peasants and Bedouins to avoid the army draft and taxation and to resist state bureaucracy and modernization, all translated in the long run into a system that left very few obstacles to the Israeli mass appropriation of land. Modernity and ethnic policies provided a two-prong appropriation tool. Whatever wiggle room might have been possible was taken care of by a formal legal system that subscribed to and implemented the national ideology and system of ethnic preferences.63 Repatriation implicitly conveys a state of transition. Israel as a transitional society employed diverse laws and practices, including the Law of Return, to transform the part of the British mandate it ruled into a Jewish state. Early on, the state focused almost exclusively on strengthening and improving the status of Jews in the state. In time, Israel has slowly moved toward implementing greater democratic equality regarding its Arab citizens. This has meant diminishing the place of semistate bodies that privileged Jews, such as the Jewish Agency. Abolishing formal privileges is an important step in creating a more even legal playing field, yet political ideology, public opinion and practices, and the enormous disparity of resources continue to privilege the Jewish majority.

The Occupied Territories Following the 1967 war, Israel began to settle Jews in the West Bank, Gaza, and East Jerusalem (the latter was annexed), informed by an ideology that was a mixture of messianic return and security justification. The clearest manifestation of the rite of return was explicated by the Gush Emunim, a group of religious fundamentalists led by Rabbi Levinger. They were committed to the settlement of Greater Israel by Jews. For the “bloc of the faithful,” the imminent Coming of the Messiah was to be achieved by the settlement of the land of Israel, which included at the very least all the occupied territories. Settlements in the West Bank and Gaza became a political agenda, supported by all Israeli governments. Labor governments argued political expediency and security needs while the right wing included the religious-political agenda. The popularity of Gush Emunim

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until 2000 (diminished since the Second Intifada) was based on both the religious ideology and a political project imagined to be feasible. The settlements became a manifestation of the Jewish implementation of God’s will. By analogy to the Calvinist view of the elect, the settlers sought to show God’s grace manifested through a political project and personal behavior. Through returning to the ancient land and the revival of biblical names and places, these settlements proved the imminent “arrival” of the Messiah. Politically, pushing the government to adapt policies of expansion, which occasionally involved physical struggle, made the “struggle” more meaningful. Here was a rite of return pure and simple, a political action viewed as religious salvation. This was represented within the Israeli discourse as being in direct continuity with the pioneering activity of the early Zionists. Though the claim was domestically controversial within Israel, it played a legitimizing role.64

Sephardic Property Claims Just as the Israeli government nationalized absentee Palestinian property, one controversial claim arose within Israel. The government was accused of using the Iraq government’s confiscation of Sephardic Jewish property to “nationalize” that property a second time, only this time as a virtual confiscation by Israel. In this context, nationalization means that Israel recognized de facto the exchange of populations and rationalized holding onto Palestinian refugee property as an exchange for the Jewish property in Arab lands. The Israeli “nationalization” amounted to the rhetorical claim of reciprocal de facto exchanges, not to any actual act of nationalization. Israel was not in control of any Iraqi or other Sephardic Jewish property that could be nationalized. By turning the dispute into an internal Israeli matter (i.e., how Israel should have compensated the Sephardic immigrants/ refugees, while excluding the Palestinians), this argument can be viewed as strengthening the Israeli claim. The official Israeli position is that the state did not exploit the Sephardic Jews but resettled all Jewish refugees and invested in them equally. The argument does not hold up under close scrutiny. There is little contention that there was discrimination against the Sephardic Jews or that the payments of reparation from Germany to many Ashkenazi Jews facilitated social and economic differentiation in Israel, among other effects. The government

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clearly did not invest similar resources in refugees from different countries. These two major structural components of the makeup of Israeli society are generally accepted today. On the narrower question of whether Israel ought to have compensated the Iraqi Jews from the property of the Palestinian refugees, Israel argued that resettlement had to be handled on a national level and not as a question of individual compensation. Prominent Iraqi-Jewish politicians in Israel agreed with this position, suggesting that it was not necessarily a cynical or implausible position. The community, as represented by its leadership, bought into the government program and the Zionist ideology. In hindsight, this may have been a raw deal. Opposition to the arrangement came from Iraqi Jews outside Israel who did not subscribe to Zionism. Their chance of gaining reparation depended on the Iraqi government payment of reparations. In later years, Iraqi Jews in Israel joined the critique. Should Israel have given the Palestinian property to the Iraqi Jews? Was Israel in a position to disburse the Palestinian property? This was never discussed as a real option, though in hindsight it might be viewed as either an illegal or progressive social policy. Israel rejected the proposal to exchange Jewish-Iraqi property for Palestinian property as an extortion that would lead to further anti-Jewish acts in other Arab countries. This may have been a self-serving opposition, given the criticism that Israel colluded with the expulsion of the Sephardim, a criticism that would have been amplified had Israel accepted such a plan—not least by Palestinians. The Israeli Foreign Minister Moshe Shertok denounced the Iraqi confiscation in the Knesset and appended property claims to the “accounts” Israel had to settle with the Arab world to offset Palestinian property claims. That formal linkage was interpreted differently by various parties. Iraqi Jews hoped that they would be compensated from the Palestinian property. For Israel, it meant that the two issues were linked and would be addressed only with the achievement of peace. The accounting had to be national and communal, not individual—neither on the Palestinian nor on the Sephardic side. That is, individuals would not get any compensation. Each side would take care to compensate its own citizens, which, from the Israeli side, had been achieved by resettlement. Having been handed one hundred thousand Iraqi-Jewish refugees, who were actually “coming home,” Israel linked its claim to compensation with an outstanding obligation recognized by both Israel and the international community. Israel and the Palestinians disagree on the linkage of the two issues. Whatever the political outcome, it seems historically clear that the Jews in

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Arab countries suffered as a result of the Jewish-Palestinian conflict. At the time, the conflict was viewed as a Jewish-Arab conflict not confined to the territory of the British mandate. To that degree, the conflicts were intertwined. However, the Jewish refugees ceased to be refugees; their resettlement has been successful. With the exception of Jordan, the Arab countries did not generally give the Palestinians citizenship. Internationally, the Palestinian refugees have been at the center of world politics more than any other group. They have been the subject of hundreds of UN debates, resolutions, international conferences, and have been provided with billions of dollars in humanitarian aid. In contrast, the Jewish refugees from Arab countries have been the subject of occasional perfunctory comment at the United Nations and of several unsuccessful attempts by UNHCR between 1957 and the 1970s to facilitate the restitution of confiscated property.65 In the last few years, mostly as a result of activism by Israel and various organizations such as the World Organization of Jews from Arab Countries (WOJAC) and Justice for Jews from Arab Countries (JJAC), the issue has received greater attention. The World Jewish Congress organizes conferences with the explicit agenda of establishing an analogy. But there is a difference in the narratives. Jews experienced systematic persecution and discrimination in Arab countries, including physical persecution and even hanging. A comparison was even made to the extermination of the Jews in the 1940s. The performance in these conferences recall phenomenon witnessed among Holocaust survivors—the need of the refugees to recount and share their memories after many years of repression. Family members heard these stories in full for the first time. The repressed victim’s memory is a well-established trope. In this case, its aim was stated clearly: “while one can explain the repression of painful personal memory, it is more difficult to understand the silence of Israel’s governments and society on an issue that touches the very heart of the Israeli-Palestinian conflict and demonstrates, in fact, that the Middle East saw a process of population exchanges”; the story of Jewish victims “gives rise to a moral and just argument against the Palestinian demand for ‘the right of return.’”66 The analogy between the Holocaust and the persecution of the Sephardic Jews is not new. Shenhav traces the comparison all the way back to the pro-Nazi coup in Baghdad in 1941. According to him, the Zionists tried but failed to turn the Iraqi-Jewish community into Zionists in response to the violence. As Shenhav sees it, “the invocation of the Holocaust analogy is not accidental. It reflects the deep desire of the Mizrahim [Sephardim] to

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be admitted to the Israeli civil religion in which the Holocaust plays a crucial role.”67 From this perspective, although the analogy might be wrong, it is nonetheless authentic. In past years, the implicit population exchange in the Middle East was viewed as the Sephardic contribution to the legitimacy of the establishment of Israel, which was analogous to the Ashkenazim contribution through the Holocaust and the reparations. There is an almost mirror image of the region by both the Arab leaders, who view the Zionists as disrupting the Arab cohesion, and the Israeli elite, mostly Ashkenazi, who view themselves as a European outpost in the Middle East, in contrast to the Sephardic tradition and roots in the region. Shimon Ballas, the JewishIsraeli-Iraqi writer, described his move from Baghdad to Tel Aviv in 1950: “I came from the Arab environment, and I remain in constant colloquy with the Arab environment. I also didn’t change my environment. I just moved from one place to another within it.”68 This was meant as a critique of the Zionist lore, but in the moral economy of the rites of refugeehood, it actually has a contrary meaning. The rationale had its weak echo among Palestinians. Isam Sartawi became one of the first Palestinian leaders to re­nounce violence when he realized that Israel was the haven for expelled Jews from Arab countries and, consequently, that Palestinians would have to coexist with the Jewish state.69 In the conception of a Zionist as an active agent, the Zionist claimed that longing to migrate to Palestine/Israel led to return. Repatriation is the result of an act of self-will and self-determination. This thesis contradicts the identity of the newcomers as refugees. The former vision shaped the national narrative for much of the last hundred years. But this story has been revised on multiple levels, including on the level of the relationship of Zionist ideology to the economic migration among the Jews who migrated to Palestine since the time of the mythological Second Aliya of the pre– World War I years. Since the 1990s, when more nuanced history took over the national narrative, the Sephardic story of a Zionism linked with forced movement and refugeehood. The Zionist narrative now carries much less heretical weight as it is offset by the refugee story. Being a refugee is no longer a shame and has taken a much more central role in the Sephardic self-perception and is seen as promoting national interests. It is worthwhile to note that the internal struggle of the Sephardim in Israel has been transformed into the negotiations with the Palestinians over the right of return. Each side has its own displaced population. The

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analogy should not be overstated in the current context for the purpose of scoring political points. The Sephardim are not interested in any right of return to Iraq. Notwithstanding the Iraqi government declaration following the war in 2004, which declared Jews to be eligible for repatriation and restitution of property, Jews from Arab countries have never voiced any desire to repatriate. Thus, the analogy has a limited political goal: to counter and balance demands for reparation or restitution and, foremost, for the Palestinian right of return. Activism in the name of Jewish refugees from Arab countries began to have a public impact particularly in the United States and was even recognized by President Clinton in his comments about Camp David.70 The US Congress, especially since 2003, has declared a parity by calling on “the international community” to “recognize the plight of Jewish refugees from Arab countries and that the United Nations Relief and Works Agency for Palestine Refugees in the Near East should establish a program for resettling Palestinian refugees.” Furthermore, the section on “Limitation on Assistance to a Palestinian State” in a Department of State appropriation bill requires the president to certify to Congress that a peace agreement between Israel and Palestine would provide “a permanent resolution for both Palestinian refugees and Jewish refugees from Arab countries.”71 The nature of these formulations is self-perpetuating, copied from one resolution to the next. Although at present, this is the sum total of international attention, the US Congress resolutions may signal greater attention to the topic. It could demand that the US president instruct all official representatives of the United States that any “explicit reference to Palestinian refugees be matched by a similar explicit reference to Jewish and other refugees, as a matter of law and equity.”72 Was the historical victimization of the Jewish refugees from Arab countries on par with the continuous deprivation of the Palestinians? While even partisans might hesitate to formulate it in such terms, the nature of negotiation and reconciliation may yet bring more attention to the Sephardic case. The international community clearly does not see the parity in the cases, though the politics of negotiation may lead to an agreement between the sides that will create some linkage, particularly if the Arab initiative becomes the umbrella for a general agreement. The congressional formulation—“both Palestinian refugees and Jewish refugees from Arab countries”—may become an accepted construction in the peace agreement, when and if it is negotiated.

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Conclusion The Zionist story of return wove together messianic religious visions with a political nationalist ideology and was determined in practice by forces outside of Jewish control that ethnically cleansed the Jews from both Europe and the Arab states at a time when other countries did not want Jews. The fact that the messianic dreamers of return largely evolved first into supporters of Zionism and then into the most extreme and ardent advocates of expansionism in the developing settlements on the West Bank and Gaza only after the messiah arrived raises questions about the importance of rites. Zionist political ideologists were initially divided between the dominant left, with their romantic vision of redemption through attachment to the soil and privileging nation building, and the revisionists, who viewed the Zionist enterprise through diaspora glasses. In the end, though least important in the construction of the national narrative, perhaps the most important factors were external forces that produced the refugees at a time when Israel was the only possible haven for most of them. The rite of return and the right of return both became a need to return. Nevertheless, without the rites rooted in biblical narratives and the rights pushed by a political ideology, there would have been no commitment to Palestine as the place to return. However, narratives leave their own legacy of problems for a modern state, whether dealing with recognizing Palestinian nationalist dreams, Palestinian claims of a right of return, the disposition of Jerusalem, the recognition of a Palestinian state in the West Bank and Gaza, or the heritage of the treatment of European and especially non-European Jewish refugees. Further, the validation of Jewish return as self-determination, as the preeminent rationale for identity formation and justification for both sovereignty and group rights in Zionism, was then mirrored in the Palestinian agenda, which, as we shall see, had its own trajectory of evolution. We have suggested that although both rites and rights were crucial in building the Zionist narrative, unless they give way to reality and pragmatic considerations, they will only lead to prolonged conflicts. In the next chapter we will explore the extent to which the Palestinian narrative has a parallel trajectory.

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[ 8 ]

Palestinians and the Right of Return

The Palestinian right of return and the current state of Palestinian refugees are at the heart of the Arab-Israeli conflict. Exploring the roots of the refugee problem in the 1948 war, this chapter discusses the Palestinian uprooting and the formation of the United Nations Relief Agency for Palestine Refugees in the Near East (UNRWA) to depict the origins of the claim for a right of return for Palestinians, and then traces the evolution of the politics of the right of return into the present. As a redress of historical injustice, the demand for the return of the 1948 Palestinian refugees and their descendants to territory that is now part of the State of Israel, conjoined with financial compensation for both losses and suffering based on rights rooted both in humanitarian ethics and international law, has long been a mantra of the Palestinian cause. Palestinians link their rights claims with the wrongs committed against the refugees when they fled the part of Palestine that became the Israeli state.1 In contrast, defenders of Israel have rejected the claim as tantamount to the demographic subversion of Israel’s right to exist as a Jewish state. Abba Eban famously dubbed refugee return “politicide.” Israeli leaders have insisted that such a right has no standing in general in international law and has no political applicability to the Israeli-Arab conflict.

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Abba Eban, recalling his time in the United States as ambassador for Israel in 1948, wrote that “no such ‘right’ [of return] exists”: “The very term ‘right of return’ has never featured in an internationally binding document.” He added that Israel’s “status is governed by Resolution 273 (III) of the General Assembly (May 11, 1949) dealing with admission to the United Nation and ‘taking note of the declarations and explanations of the representative of the Government of Israel before the ad hoc Political Committee of the General Assembly.’” The “only occasion on which the admission of a state has been related to speeches by an applicant” is when Abba Eban made it clear that “the admission of refugees was a matter for Israel’s sovereign discretion and was not subject to legal constraints” and that Israel’s sovereign authority to control entry was equivalent to that of any other state. The December 1949 General Assembly recommendation about the return of refugees was described as a matter subject to “permission,” not a “right.” Eban also cited the Security Council determination of 24 February 1947 that a General Assembly resolution does not create international obligations.2 The General Assembly may not create obligations, but its resolutions have gone a long way in raising the idea that return, particularly for Palestinian refugees, is a right. UN General Assembly Resolution 194 (III) is often cited as a legal basis for the right of return. But most states do not recognize that resolution as having any status in international law.3 However, Palestinian advocates assert the right of return as unequivocally supported by international law.4 The claim has been reinforced by research showing that many of the refugees were forced from their homes, which has widely been interpreted as ethnic cleansing, another expression lacking a clear foundation in law. The delineation between the prohibition of ethnic uprooting and the right of return is complex. While the former is proscribed, the latter is considered a remedy. However, the connection is not clear and the solution is disputed (as discussed in chapter 3). Political, legal, and moral dilemmas underpin the controversy over the Palestinian right of return. Demands for both the recognition and redress of wrongs committed in the past as well as the need for a political solution are the essential aspects of the dispute.5 Although the conflict is deep, it is anything but static. Indeed, the Palestinian views of the right of return are diverse and have (and continue) to change. Within the last two decades, the right of return has acquired a force as the primarily symbolic core of the Palestinian identity.6 The de-

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mand for the recognition of that right has grown in parallel with the increasing recognition that the right itself will not be implemented. There is a dissonance between the enormous moral force of the right of return and its weak legal status and the even weaker political possibility of realizing the right. The demands for return may be justified as (a) the result of assigning responsibility for Palestinian uprooting in the first place, (b) the consequence of the prohibition of repatriation immediately after the cessation of hostilities, or (c) a humanitarian response to the continuing protracted suffering of the large number of refugees. Separating the moral, legal, and political dimensions, as well as the different causes, conditions, and consequences of the exodus, may help define the issues and perhaps provide a common basis for a discussion of a potential solution. The Israeli-Arab/Palestinian conflict is being fought on symbolic levels and over territory and demography. The claims made by both sides are often seemingly divorced from political reality. Frequently the debate is even constructed in eschatological terms (see chapter 7). Among the Palestinians, the insistence on the foreignness of Zionism has been calcified as a core of national identity, although the largest single source of Jewish Israelis has been from Arab lands. This rejection of Zionism as the national self-determination of the Jewish people and its characterization as an extension of European colonialism have been coupled with a widespread resistance to resolving the conflict. Pragmatically, however, many Palestinians have moved beyond this core belief, which nonetheless remains critical to the nation’s selfperception. This polarized perspective does not make the political conflict into one between peoples and religions, but rather a conflict between polities with an overlay of religious symbolism. As a conflict over rites rather than rights, the outcome depends on power and politics, not on the justice of the cause of each contender. As such, the challenge of transforming the conflict into a political battle divorced from rites faces an enormous hurdle for both sides.7 If Jewish rites contributed to the early settlement of Palestine by Jews, why not reverse those results with the Palestinian refugee rites of return?  The answer lies not in rites, but in power. Rites produce realities, but the power relation at present seems to preclude the implementation of return. A politically peaceful solution for the refugees and the relief of their continued deprivation requires taking into account realpolitik. In the

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moral economy of rites, the early Jewish settlement entailed relatively little dispossession of Palestinians. What followed the 1948 dispossession was quite different. The Palestinian post-1967 dispossession was poles apart from both. Each of these had a component of rites, but each was ethically distinct. Clearly, Israel is responsible for a certain level of expulsion (the extent is part of the dispute), for the destruction of Arab sites (hundreds of villages), and for blocking any return except for an estimated fifty thousand who returned within the context of family reunification. Furthermore, there is little doubt that the Palestinian project of self-determination has been negatively affected by Jewish migration to Palestine and that individual Palestinians have been the greater victims of the clash between the two national movements. On the other hand, Palestinians are myopic if they ignore the responsibility of the Arab states and the Palestinian leadership for the political deterioration and then rejection of the partition plan, which led to the 1948 war. That understanding is central to the conflict and the uprooting of refugees. During 1948, both sides perpetrated violations of human rights and what would now be depicted as war crimes, even if these crimes were relatively unexceptional compared with other civil or ethnic wars where two ethnicities were spatially intertwined, including living in mixed cities. Most significantly, the violence was limited; there was never extensive killing of civilians, though relatively small massacres did occur. From an Israeli perspective, the self-perception of the army’s “purity of arms” and “few against many” was for many years the cornerstone of the national mythology, but has since been shown to be based on self-delusion and, at times, propaganda. On the other hand, where the Arabs won control, no Jews remained and this too needs to be recognized. Although the victor inflicted more damage and greater violations and destruction, the 1948 war has to be recognized as an ethnic/national war, conforming to the pattern of many similar civil wars in the last century, though it was not nearly as violent as most. Would the situation have been different had the Arabs won? Israelis believe that they would have been the victims of a wholesale slaughter. This can be left as a hypothetical since in only a few instances did the Palestinians and Arab armies win in 1948; some were killed, others were taken as prisoners of war. However, the Jews won the war; in a few cases, the killing of civilians occurred; in most others, the result was uprooting and flight, at times out of fear. In other situations, the Israeli armed forces deliberately expelled civilians.

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Palestinians perceive themselves as victims of a long colonial process that started with the British in 1917, if not earlier, and continued with the establishment of Israel in 1948. For them, this process of colonization denied them their national existence. Al-Nakba (the catastrophe) has become the most central experience for the Palestinian identity. Abu-Sitta, a leading advocate of return, describes the uprooting as the source of the conflict: The Israeli-Palestinian/Arab conflict has arisen because of the Israeli conquest of Palestine in 1948 and the expulsion of its people in order to accommodate newcomers from overseas. The struggle is therefore about land taken and people expelled. The Palestinian Nakba (catastrophe, holocaust) has no equal in modern history. A foreign minority expels the majority of the inhabitants of a country, occupies their land, obliterates their physical and cultural landmarks in a military campaign that is planned, armed, manned, and is financially and politically supported from abroad.8

Yasser Arafat, the most important Palestinian leader, reflected the mainstream Palestinian perspective and assigned exclusive responsibility for the Palestinians’ affliction to the Israelis. Arafat’s speech on Nakba Day, 15 May 2003, commemorating the catastrophe of the Palestinian people in 1948, asserted a continuity of Zionist aggression: The great imperialist Zionist conspiracy against our Arab nation and against our homeland Palestine began at the 1897 Zionist Congress in Basel and reached its accursed zenith on May 15, 1948. On that cursed day, the State of Israel arose, by means of weapons and imperialistic conspiracy, on the ruins of our homeland Palestine. Our people were expelled from [their] homeland, and [were] slaughtered in exile, dispersion, and the refugee camps.9

Like the Zionist vision, this myth is a construct, a hyperbole that feeds symbolic conflict but does not help resolve it. A large part of the Palestinian refugees of 1948 did not resettle in Arab countries, but instead remained mostly in refugee camps, many within Palestine—in the West Bank and Gaza. In contemporary formal terminology, they were internally displaced. Even when they fled to the east bank in Jordan, Palestinians became citizens who constituted the majority of the state. When they did remain in

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camps, it was because of a lack of political alternatives for other Arab states, who were unwilling to resettle the Palestinians within their borders. However, the popular Palestinian view is that maintaining the status of refugees was a national act of rejecting exile, a political and national stand, not a result of the rebuff and denial of resettlement by the host Arab governments or the international community. The popular Palestinian view is exemplified in one refugee interview: “Refugees have been willing to remain refugees for 50 years and not sell their political right of return.”10 According to this view, the Palestinians represent themselves (at least implicitly) as having full agency in maintaining their national identity and resistance, but not in their victimization. They do not acknowledge the failed leadership that resulted in their historical suffering, even though the issue of return is central to the Palestinian position. As stated by the Palestinian Legislative Council member Jamal Al-Shati, “what will truly decide the future of the region’s security and stability is the refugees’ return to their villages and homes, from whence they were expelled and driven away, in accordance with Resolution 194.”11 The question of “return” is perceived by Palestinians as a moral issue, a right in an abstract sense, rather than a specific set of rights in the contractual sense. While many if not most Palestinian statements on return stress home rather than homeland, in many recent authoritative Palestinian formulations, there is no specific mention of the destination of those exercising their right to return.12 The Palestinian right of return combines two separate claims: self-determination and redress. The first conveys the demand for an independent state, the second repatriation, the right of return, and reparation for refugees. The two are intertwined. The demand for return is not limited to resolving the suffering of the refugees; it is a narration of self-determination. Often the components for the solution of the problem of return are presented as (1) physical return, (2) reparation, (3) resettlement, and (4) the ability of the refugees to choose freely among these options. The inclusion of resettlement as a possible individual solution in this mainstream Palestinian narrative may be seen to contradict the national goal. Yet, Palestinian spokespersons have increasingly sought alternative political solutions to the right of return as a physical return. There is a growing desire among refugees to reach a feasible political solution in a way that would address both the need for self-determination and the goal of return, but each in a distinct manner. These alternatives are mostly explored in academic papers, among peace groups, and at times in working

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groups of peace negotiations, but they have been slower to emerge into public discourse.13 The presentations and prevalence of alternatives appear to have increased since the split between Fatah and Hamas in 2007 and the accession of Hamas to power in Gaza. There may be a sense that the public stigma of exploring alternatives to return is diminishing.14 In the emerging dichotomy among Palestinians, both the ideologues and the pragmatists adhere to repatriation as a legal and moral right and demand that Israel recognize and acknowledge that right. The ideologues argue that implementing the right is a precondition for any peace agreement, while the pragmatists focus on the acknowledgment of the right as part of ending the conflict and as a right to return to a homeland rather than a right to return to individual homes. The distinction between the groups rejecting compromise and those insisting on compromise can be described as a confrontation between prioritizing rights and prioritizing a political approach based on peace and conflict resolution. Before we examine the origins of the right of return and this split as well as the evolution of the approach by Palestinian leaders to the right of return and current statements by members of Palestinian civil society that illustrate the tension between rights and politics, we will examine the current state of the refugees to illuminate these positions.

The Current Situation of Palestinian Refugees In June of 2008, there were 4.67 million15 Palestine16 refugees registered by and under the mandate of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and residing in the countries and territories served by UNRWA.17 Of these, 1,374,000 live in camps. Almost 40 percent are formally internally displaced since they live in the West Bank and Gaza. Almost 81 percent still live in what was once Mandatory Palestine. Almost all are descendants of the approximately 720,000 uprooted refugees of 1948.18 The very definition of who is a refugee is politically contentious. The concept “Palestinian refugee” combines a legal, administrative, and identity description. The administrative category provided by UNRWA identified Palestinians as refugees who lost both their homes and means of livelihood.19 They (and their children) remain refugees even if they acquire citizenship in another country. This differentiates Palestinians from refu-

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gees of concern to UNHCR, where the legal status of refugee ceases upon acquiring a new citizenship and where refugee status is not an inherited trait. Further, Palestinians forced to flee subsequent to 1948 are usually added to the total number of Palestinian refugees because of their identity, but are differentiated from the administrative category of UNRWA registered refugees. This was explicated by UNRWA’s Commissioner-General: “There are significant numbers of Palestinians living in the diaspora, at least four to five million according to some estimates. In spite of some of them acquiring citizenship of other countries, almost all identify themselves firmly as Palestine refugees and share the aspirations of Palestine refugees in the region.”20 Refugee identity becomes, in the more expansive descriptions, synonymous with Palestinian national and diasporic identity. Jordan hosts the most refugees, followed closely by the West Bank.21 In terms of status, the worst situation has been in Lebanon,22 where Palestinian refugees were never given legal status and where many have been living under particularly harsh conditions since the outbreak of the civil war over thirty years ago. The extraterritorial status of the refugee camps made them particularly attractive as recruiting and nurturing spaces for al Qaeda.23 As Lebanon moved from one crisis to the next, the refugees both suffered from the conflicts and served as a destabilizing factor that induced conflict. There is a regional and international consensus that, after the emergency crisis of the Palestinians expelled from Iraq in the last few years, the highest priority among the myriad issues facing the Palestinian refugees from a political, humanitarian, and rights perspective is resolving the status of the Palestinian refugees in Lebanon. In 2010, there was a significant improvement in the status of the Palestinian refugees when the Lebanese legislature decided to permit the Palestinians to work legally in Lebanon; they could obtain the same work permits available to other foreigners.24 Many Palestinians have been subject to further uprooting as a result of both Iraq wars. Following the first Gulf war in 1991 and after the Iraq invasion of Kuwait was reversed, the retaliation against Palestinian support of Saddam Hussein led to the expulsion of about three hundred thousand.25 As Iraq deteriorated into civil war following the 2003 American invasion, Palestinians in Iraq were again subject to ethnic violence, and most were uprooted; fifteen thousand were living in legal limbo in refugee camps along the border as other countries refused to accept them.26 The need to resolve their deprivation immediately and separate from the general Pal-

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estinian refugee question goes further than compensation or the abstract right to return and is increasingly being viewed within both a humanitarian approach that is more political and one that is less rights-based. During the 1990s (before the Second Intifada, after the Oslo agreement), there were a number of returnees to the West Bank, the result of family reunification, the anticipation of an independent state, and the tremendous value of repatriating with foreign currency. There are various estimates but little hard data of the numbers who returned: Estimates of the number of post-Oslo returnees range from 40,000 to 100,000. The two most prominent groups of “returnees” are the “Tunisians” and the Palestinian-Americans. In Gaza, many of the returnees are “Tunisians”: PLO officials formerly based in Tunisia, allowed into the territories to staff the Palestinian National Authority (PNA). In the West Bank, many of the post-1993 returnees come from the United States. Unlike those who returned legally under the provisions of the Declaration of Principles, many of the Palestinian-Americans lost their residency rights while abroad and were able to come back only by skirting Israeli laws. These returnees often have foreign passports and enter with tourist visas or with family reunification papers. While not officially repatriated, many Palestinian-Americans are attempting to re-integrate into Palestinian society and the economy by building houses and investing in businesses, particularly in the restaurant and tourist industry.27

These were not refugees from the camps. In the sense that the Palestinian identity is grounded in the refugee experience, the notion of return encompasses more than the camp refugees. Palestinians often refer to themselves as refugees in the first person and in the present tense, even if they are economically middle class and do not live in a refugee camp. How did the Nakba that we briefly mentioned above end up producing 720,0000 Palestinian refugees whose numbers have grown to over 4.6 million sixty years later, when calling oneself a refugee has become a badge of honor among Palestinians?

Al-Nakba and the Palestinian Uprooting In the immediate aftermath of World War II, the international system failed to solve the Jewish refugee problem (see chapter 7). In addition, the

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United Nations was unable to reconcile the aspirations to national self-determination for both the Zionists in Palestine and the Palestinian Arabs. The Zionist dream of “return” threatened the monopoly of Arabs as successors to the ruling empires in the Middle East. In the face of Arab rejection, the nascent United Nations did not enforce its own effort at compromise. The 1948 war followed, which began in late 1947 between the Zionists in Palestine and local Arab Palestinians and expanded to include Arab states after May 1948 (see chapter 7). Hundreds of thousands of Palestinians were uprooted and fled, some due to force and others to fear. Initially, the refugee and Arab state leadership thought that the refugees would return under the umbrella of victorious Arab armies.28 Arab states and the Palestinian leadership—in the Israeli official interpretation—rejected peace and the recognition of Israel.29 Israel for its part refused to give up territory gained in the war or to allow the return of refugees—with the exception of up to one hundred thousand that Israel offered to accept on humanitarian and family reunification grounds.30 The majority of states that had endorsed the creation of a Jewish state supported its continued independence, but also tried to stop the war by relying on diplomacy. The lack of a political solution meant that no real pressure was placed on Israel to allow the return of refugees. Following the cessation of hostilities in 1949, the international community tried to formulate a realistic solution for the refugees by devising a plan of resettlement in the host states and Iraq. The initiative failed. Instead, a nostalgic view of a natural identification with home and land, which had been formulated by the UN representative Count Folke Bernadotte, was endorsed in a very qualified way, partially as a result of his murder by Jewish terrorists.31 UNGA Resolution 194, where the return is first articulated in an international decision, became a ritual passage parallel to but not integrated into the political process. While Resolution 194 was debated and voted on, the United Nations, supported by the United States, pursued the goal of economic resettlement for Palestinian refugees in host countries and Iraq to resolve the problem. At the same time, the Jews in Israel resettled the relatively small number of Jewish refugees from the West Bank and the old city of Jerusalem and consolidated their state following the defeat of the Palestinians and the Arab armies. The Arabs pursued revenge for their defeat, motivated by a vision of the refugees’ repatriation behind victorious armies. Both visions—the

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Western vision of resettlement and the Palestinian-Arab vision of repatriation through military victory—became chimeras.

Flight, Fright, and Force A critical aspect of the dispute over repatriation is the question of whether the refugees were expelled or fled violence and, if expelled, the degree to which there was a plan for their expulsion. If the Palestinians were expelled as a result of a premeditated plan, their right of return appears seemingly stronger. This rationale is not explicitly stated because its inverse would be rejected, that is, if the Palestinians were not primarily expelled according to a premeditated plan and “merely” fled the violence, with some forced to flee by spontaneous vigilante actions, might this imply that their right of return is more proscribed? Although “expulsion” cannot be the determining variable of repatriation, the conclusion that the Palestinians were deliberately and systematically forced into exile plays a critical role in the unstated moral economy of rites. Indeed, the demand for the recognition of the expulsion is as strong as the demand for the recognition of the right of return. The latter is also to be distinguished from actual return. In the evolving population policies of Israel, there is extensive evidence of the inconsistencies aimed at the Arab population in the part of Palestine allocated by the United Nations to the new Zionist state. Currently, scholars generally acknowledge widespread Zionist writings of the “transfer” of the Palestinian population to facilitate the Jewish state. The historical question is, first, whether this discourse translated into a political plan and, second, whether the discussion ought to be understood in contemporary discourse as ethnic cleansing. The first point to note in this context, and we have stated it throughout the book, is that the language of ethnic cleansing today clearly carries moral condemnations that did not exist in international discourse before 1950, when expulsion was commonplace and an integral part of international moral norms. Concerning the linear connection between discourse and political action, the discussions about uprooting the Arabs in Palestine were most often presented in Zionist writings as a dilemma among those who supported the idea. There were also many who objected to the idea of population transfer. Although political pressures existed to set up a “transfer committee” in May 1948, our conclusion is that these efforts suggest preparations and intentions, but

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we know of no evidence of a premeditated plan or administrative structure to execute such an idea. Nonetheless, except for a small minority who advocated coexistence, most people on both sides as well as independent observers concluded that the clash between Arabs and Jews was inevitable. There remain historical disagreements concerning the Palestinian displacement over the following: to what degree was there an expulsion, to what degree was it explicitly planned, and to what degree did Palestinian refugees flee during the war? Scholars now generally agree that there were many local, specific expulsions of Arabs and that they were the cause of most of the uprooting, though a large number of Palestinians fled to get out of the way of the violence.32 Further, the expulsions expanded and evolved over the course of the war. However, there is no direct evidence of a comprehensive military plan or even orders for a general expulsion. There is evidence of an overall Israeli policy for: (1) the destruction of Arab villages (especially after April 1948); (2) rejecting and denying refugee return for the vast majority of Arabs; and (3) settling Jews in abandoned Arab villages and towns that were not destroyed and on Arab lands, in part to ensure that return would be impossible. This policy succeeded and the “impracticality” of return was recognized early on.33 Similar inconclusive anecdotal evidence, for example, emerges in Golda Meir’s comments about the village Sheikh Munis on whose land Tel Aviv University was built. Meir was surprised that the villagers fled because, in her mind, they were “friendly Arabs.” She argued that the village should be kept secure until the refugees return. Her comments, however, were divorced from reality since Jewish paramilitary forces had “induced” the flight. That her comments were made in a closed party forum nonetheless implies that there was no standing policy to expel.34 Moshe Shertok’s comment about the “miracle” of the Arabs’ escape, leaving the land empty, which he viewed as an even bigger miracle than the founding of the state, offers similar testimony.35 Notwithstanding the increasing pressure on Israel to allow return, the consolidated military gains translated into greater intransigence against return, and, within a short time, the formal Israeli position became one that tied the return to both peace and the fate of Jews in Arab countries. Several times we have cited the most prominent and pathbreaking work on the topic, Benny Morris’s The Birth of the Palestinian Refugee Problem Revisited, which painstakingly details the unfolding of the uprooting of the

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Palestinians. Using archival documents, Morris shows how, in numerous cases, there were local demands and decisions to expel villagers, how the right-wing paramilitary forces (Irgun) were more likely to expel than the mainstream forces (Haganah), and how even members of the left-wing Arab-Jewish pro-coexistence party (Mapam) advocated expulsion in certain cases when they feared for the safety of a particular kibbutz. It is also indisputable that the widely reported massacre in Deir Yassin, though relatively small in comparative historical terms, had an enormous impact in inducing Arab flight.36 The lack of a declared population policy should not be confused with a lack of shared sentiments or an implicit attitude within Israel to the uprooting of the Arabs. One manifestation of this overwhelming consensus was the consistent policy among local military commanders, in the absence of higher instructions, to rule against any return, a rule already in practice during the war that became a formal government decision in July 1948.37 In April 1948, an explicit policy was adopted to destroy conquered Arab villages. Although this was a controversial policy, and Ben-Gurion distanced himself from it, the goal was to deny the possibility of return. Over the next months, Arab land was confiscated, new settlements were established, and, soon after, the new immigrants (many from the DP camps in Europe) were settled. Morris concludes explicitly that “there was no pre-war Zionist plan to expel ‘the Arabs’ from Palestine” and that “a large proportion of those who became refugees fled their towns and villages not under direct Israeli threat of duress.” Given the denial of return to those who fled in panic or to get away from the war as well as the exclusion of those who tried to return, “it may be fairly said that all 700,000 or so who ended up as refugees were compulsorily displaced or “expelled.’”38 Though most of the Palestinians who fled were not explicitly forced to do so, they fled in the face of force and were forced to remain displaced. The peculiarity of the uprooting can be seen from the Zionist leaders’ ambivalence and surprise about it. Avi Shlaim, a well-known revisionist historian and a critic of Israel’s policies, describes how, after September 1948, Israel contemplated the conquest of the West Bank, which BenGurion brought to the government, but the decision was shelved. BenGurion regretted the decision, but did not resurrect it for three reasons: he was worried about British intervention; he hoped for an agreement with King Abdullah of Jordan; “he estimated that the inhabitants of the West Bank would not run away, and he was reluctant to include a larger

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number of Arabs than was strictly necessary within the borders of the Jewish state.”39 At the later stages of the war, the Arab leadership clearly impressed upon the population the duty not to flee, to stay in their communities. Ben-Gurion did not see mass expulsion from the West Bank as a viable policy. Overall, there was much more confusion than planning. Policies evolved with little anticipation of, for example, the discussions of Israel incorporating the Gaza Strip with its 300,000 Palestinians (including 230,000 refugees). The plan did not materialize, but the question—how many Palestinians could the Jewish state include?—elicited a confused response and was subject to many different answers and continuous changes. The inconclusive approach was not resolved for several months even regarding whether to allow the return of refugees. How do we know of something that did not happen? There is indirect testimony about a possible lack of intent. If expulsion was taking place elsewhere, why would expelling the Palestinians from the West Bank be impossible? On the other hand, in the Galilee, although the Israeli Army in October 1948 issued an order to “assist” the inhabitants to “leave,” it was implemented mostly against Muslim Arabs, but not Christians, Druze, or Circassians.40 Another division in the Galilee separated villages conquered after the resistance from those that surrendered without fighting; most of the former were “abandoned,” while the inhabitants of the latter were allowed to remain.41 The distinction between different army commanders and their proclivities to expel, and the difference between largely Muslim (south) and mixed Christian-Muslim areas, constituted factors that determined whether any expulsion took place. In the south, very few were allowed to stay; almost 50 percent remained in the north.42 The last stage of the expulsion was initiated by the Israeli army to clear the regions next to the borders. This followed the termination of hostilities, and Israel as a result came under international pressure. Consequently, the army was often stopped by the civilian authorities. But there is little doubt that the general policy existed, and the limitation was pragmatic. Pressure also came from within the government. Morris estimates that around twenty to thirty thousand were expelled after the end of hostilities, when the efforts of many refugees to try to return were blocked and when the newly established state institutions were working to make more space available to new Jewish settlements.

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The Evolution of the Right of Return As indicated earlier, the formulation of the right of return first appeared in Count Bernadotte’s proposal of 27 June 1948. It was not initiated by the Arab Higher Committee or the Palestine Arab refugee organizations. In it, Bernadotte wrote that refugees should have the “right to return home without restriction and to regain possession of their property.” The proposal was subsequently amended in the Bernadotte plan to add an assurance of compensation if the right of repatriation was not exercised. Very soon, however, Bernadotte recognized that although “the right of return to their homes at the earliest practical date should be established,” the refugees may have nowhere to return to: The vast majority of the refugees may no longer have homes to return to and their resettlement in the State of Israel presents an economic and social problem of great complexity. Whether the refugees are resettled in the State of Israel or in one or another of the Arab States, a major question to be faced is that of placing them in an environment in which they can find employment and a means of livelihood. But in any case their unconditional right to make a free choice should be fully respected.43

Bernadotte, who can correctly be viewed as the father of the right to return, distinguished between the abstract principle of right and a practical alternative. Bernadotte did not have general support from the United Nations, the British Foreign Office, or the American State Department.44 They viewed the solution to the problem of refugees as one of resettlement in Arab countries: “Now that the initial difficulty of persuading the Arabs of Palestine to leave their homes has been overcome by Jewish terrorism and Arab panic, it seems possible that the solution may lie in their transference to Iraq and Syria.”45 But the murder of Bernadotte froze any further discussions on formulating a policy of resettlement. Instead, despite widespread earlier opposition, an amended version of Bernadotte’s formal position was hastily adopted in UN Resolution 194. The tone was hortatory—the refugees should be permitted to return—rather than being worded as an imperative; “practicability” qualified the timing. And international law was only cited with respect to compensation, not return. The resolution did not contain the phrase “right of return.”46

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The Arab rejection of the resolution meant that it remained dormant for a very long time. Instead, the Arab states emphasized the demands for political collective rights. A main concern was that the return of refugees, if there was to be repatriation, ought to be to their own country. For example, the Egyptian diplomat posed rhetorically: “How could those Arabs live in security, however, in a Jewish State which was hostile towards them and sought to be rid of them to make room for Jewish immigrants.”47 The dominant political position of the Palestinian representatives was to subsume the right of return under the demand for the total liberation of Palestine and the rejection of the legitimacy of the state of Israel. Hajj Amin AlHusayni, the Mufti of Jerusalem who was the most prominent Palestinian leader (although with declining legitimacy), opposed the return of refugees until Israel was destroyed.48 There were other Palestinian voices. Muhammad Nimr Al Hawari, who headed the Palestinian refugee delegation in Lausanne, proposed a repatriation of four hundred thousand Arabs who would live in peace with Israel and would be the “peace bridge” to the Arab world. The alternative, he claimed, was to perpetuate the conflict, with many refugees continuing to live next to Israel’s borders. This would play into the hands of the Mufti and the Arab rulers. In the negotiations, both sides refused to compromise. The Arabs demanded the beginning of repatriation before peace talks started; Israel demanded resettlement in the Arab states as a precondition for allowing a small number of refugees to repatriate.49 In the Lausanne conference, most notably, the refugees became the banner to advance the conflicting agendas of the different parties with no attention to the refugees themselves, a situation that changed little even in the Oslo negotiations a half century later. Whether resettlement was rejected to foment conflict (Egypt), or to receive international aid (Syria and Jordan), or to be used as a bargaining chip to demand the acceptance of its territorial gains (Israel), none of the participants really wanted to settle the refugee issue.50 The last hurrah in the conference was the proposal by Israel to accept one hundred thousand refugees, but the offer was rejected by the Arabs.

UNRWA As the number of Palestinian refugees grew, the countries bordering Palestine to which the refugees fled provided shelter and interim relief, but

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it quickly became clear that the relief effort was beyond the economic and structural capacity of these countries. A United Nations relief effort was mounted in November 1948 and became operational in January 1949. The United Nations Relief for Palestine Refugees (UNRPR) was responsible for coordinating the work of the three voluntary nongovernmental agencies, the International Red Cross, the League of the Red Cross Societies, and the American Friends Service Committee, which were appointed as operating arms to deliver the relief in different areas where the refugees were located. Within a year, in 1949, a new organization, the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) was set up and has since become the largest UN agency in number of employees. Because of the creation and continuity of UNRWA, the Palestinian refugees were excluded two years later from the new mandate of the Office of the United Nations High Commissioner for Refugees (UNHCR). “[I]t was both unnecessary and inadvisable” to include Palestinian refugees in the Convention. The delegates pointed to the fact that Palestinian refugees were already benefiting from a special protection regime through their ties with UNRWA and the UN Conciliation Commission for Palestine (UNCCP). They also believed the Palestinian case to be so unique that including Palestinians into general refugee protection policy would actually award them “less protection than they deserved.”51 The intention was to replace interim assistance with development projects with the ultimate goal of economic integration through those projects. The Economic Survey Mission stated that UNRWA should “promote economic development as a basis for permanent resettlement . . . [and] add to the productive economy where the refugees are located.”52 In its original mandate, UNRWA was to provide “temporary direct relief and works” as an interim measure until a permanent solution could be found. During the 1950s, as its mandate was extended, the focus shifted to development projects, but these never came to fruition. UNRWA could not arrange for economic and development projects in the Middle East where the refugees were located. Consequently, the organization metamorphosed into the education, health, and welfare department for Palestinian refugees and has grown steadily to employ over twenty-eight thousand staff.53 The initial organizational structural was aimed at development and resettlement and provides indirect testimony that repatriation was not anticipated or planned. Notwithstanding the relatively large sums per refugee dispensed by UNRWA, most Palestinians are critical of UNRWA and see it

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as a failed organization with minimal benefits for refugees.54 However, in part because of UNRWA, Palestinians’ standard of education is relatively high in comparison to other Arab states.55 From the very beginning, resettlement faced a political stalemate. Despite plans to address, at least in part, the economic deprivation, there was no intention by the Arab states to facilitate resettlement, not least because this was an Israeli demand, which created a fear among Arab states that giving in would instigate Palestinian-nationalist retaliation. It took almost two decades for the Arab League to confront the discrimination the refugees suffered in the host Arab states and to offer greater humanitarian protection. In 1965, the Arab League, in an attempt to ensure a minimum of protection to Palestinians living in Arab states, called for the recognition of the right of refugees among others “to work, to travel freely . . . to unite with family members, to own private property.”56 The rhetoric was never fully matched by action.

Evolving Rights as Politics In the early years, the notion of “return” was not based on UNGA Resolution 194, which called for coexistence with Israel. Rather, return was seen as a “natural” consequence of fulfilling the establishment of the state of Palestine by “armed struggle,” which was the “sole path to liberate Palestine” and bring about the dissolution of Israel.57 Resolutions, as we know, have a life of their own, and 194 came to be interpreted by Palestinians as calling exclusively for the repatriation of the refugees as a matter of right. In fact, the overall resolution focused on the creation of a conciliation commission that would, among its other responsibilities, “facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation.” The resolution also reiterated the view that larger Jerusalem from Abu Dis to Ein Karim and Bethlehem to Shu’fat should remain under UN auspices. The resolution of the refugee problem was to be carried out as part of a peace process. The peace process did not materialize for decades, but the first sentence of paragraph 11 of the resolution that addresses the refugee issue in terms of return was resuscitated to serve as the cornerstone of an international effort to legitimize the right of return, initially within a context of self-determination. The Arab and the Palestinian realization of the illusionary prospect of victory gradually sank in, particularly after the 1967 Six Day War, which led

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to realignment within the Palestinian national movement. It also led to the resurrection of Resolution 194 and the concept of return as central to the Palestinian cause. As Daud Abdullah, a researcher at the Palestine Return Centre in London, has written, “faced with claims that Resolution 194 never mentioned a Palestinian right of return, the Assembly affirmed in 1969 (Resolution 2535 [XXIV] B) that the problem of the Palestine Arab refugees had arisen from the denial of their inalienable rights under the Charter of the United Nations and the Universal Declaration of Human Rights. Resolution 3236 of 1974 reaffirmed the national inalienable rights of the Palestinian people in Palestine, including the right to self-determination without external interference. Paragraph 2 of that resolution also reaffirmed the right of the Palestinians to return to their homes and property from which they had been displaced and uprooted, and called for their return. Resolution 3236 therefore described the right of return as ‘inalienable,’ meaning that it was absolute and permanent and could not be surrendered or otherwise terminated.”58 The new mantra of return as a rite had been codified, reified, and raised to the level of an immutable principle. The 1967 war had the destructive effect of reviving the dream in many Zionists of all of Palestine between the Jordan River and the Mediterranean becoming a homeland for the Jews. Three visions were intimately intertwined. In the first, the Palestinians adopted the right of return as a ritualistic mantra while preparing a revolutionary movement to defeat the Jewish state. In the second, the Jews adopted the messianic vision encompassing all of historic Palestine as a homeland for Jews, a vision reflected in Israeli practices even when couched in the rhetoric of security. In the third, there was an “idealist” vision that framed return within the political resolution of the conflict in a two-state solution, propelled in good part by the failure of a viable alternative. In all three options, rights became ossified as rhetorical rituals increasingly divorced from political feasibility.59 During the 1970s, the UN General Assembly, without surrendering its position on return described earlier, shifted the stress from refugees to the right of self-determination for the people of Palestine. The positions taken can generally be regarded as the same as the position of the Palestinian leadership. In that context, after the General Assembly reaffirmed “the enjoyment by the Palestine Arab refugees of their right to return to their homes and property,”60 the General Assembly the following year established the Committee on the Exercise of the Inalienable Rights of the Palestinian People, conferred observer status for the PLO both in the

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Assembly and in other international conferences held under United Nations auspices, and insisted that “the inalienable rights of the Palestinian people to self-determination could be exercised only in Palestine. Consequently, the exercise of the individual right of the Palestinian to return to his homeland was a conditio sine qua non for the exercise by this people of its rights to self-determination, national independence and sovereignty.”61 In contrast, the Israeli legal interpretation focused on the rejection by the Arabs of Resolution 194, concluding that the position cannot be revived for decades later and, further, that the descendants of the refugees are not subject to the refugee regime.62 The Palestinian view of the right of return displays a diverse position both historically and politically. At the most general level, almost all Palestinians believe, or at least declare, that the right is at the core of the Palestinian political identity. Translating this into specific political demands and policies has led to varied and diverse positions. Although the demand is presented as natural and obvious, in examining it historically we see that the demand for recognition of the “right” emerged twenty years after the conflict. Subsequently, it became more associated with the peace process than with Al-Nakba.63 The first shift from rejecting Israel’s existence as a precondition for return to implicitly accepting a Palestinian entity in part, rather than the whole, of Palestine can be traced to the new Palestinian National Council (PNC) resolution following the 1973 war64 and was coterminous with significant UN support.65 Ever since, the repatriation of the refugees became the foremost goal in the official and often unofficial Palestinian program. These new formulations were challenged and often overshadowed by the concurrent militant language of the Rejectionist Front, which continuously played a central role in Palestinian politics. The more militant notion of “return” was associated with the “liberation” of Palestine, which meant the destruction of Israel. For the following twenty years, the language of the Palestinian National Charter became the focus of the internal Palestinian struggle and the central issue in the dispute with Israel.66 It took another fourteen years, until 1988, before the PLO grounded its demands in “international legitimacy” connected to Resolutions 181 and 194. This shift, and the acceptance of international legitimacy as the basis for an independent state, signaled the beginning of the peace process. Forty years after rejecting these same UN resolutions, the Palestinian formal position embraced those resolutions as the “legal” ground and refrain for

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the demand for repatriation.67 Though it took forty years for the right of return based on Resolution 194 to become a focus for Palestinian demands and justifications, the position has become eternal in public memory. Nevertheless, the Palestinian public discourse still avoids formulating an official, explicit, and substantive statement of the right of return and rejects any concession regarding an absolute full right of return, though more recently, nuanced formulations have been presented.68 Rashid Khalidi articulated a crucial shift in 1992 when he reformulated the return from focusing on homes that no longer exist to homeland, which has more to do with self-determination. This, in part, symbolic nature of return has become central in Palestinian demands. For Khalidi, since the homes have been largely destroyed, focusing return exclusively on homes makes the demand an impossible one. Instead, the shift to homeland expands, rather than diminishes, the possibility of return. Furthermore, the focus on “homes” only encourages Israel to destroy these houses to forestall demands of return. In contrast, the demand for homeland embraces identity and politics. Methodologically, Khalidi carved out a realm of legitimacy to discuss a topic that had largely been taboo by approaching it historically. Declaring that there is no formal Palestinian position, Khalidi’s rhetorical persuasion relied not on a legal (rights) or a moral (rites) argument, but on an empirical and historical (political) perspective. The shift was explicit: “in light of current Palestinian thinking on this subject, it is finally possible to explore the concept of the return of the Palestinians in terms of who might return, to where, when, and under what circumstances.”69 This “current Palestinian thinking” relied on the PLO acceptance of the UN resolutions, which meant an acceptance of Israel, and the possibility of compensation for those refugees who choose not to return to Israel without having them branded traitors. Khalidi viewed the emergence of the demand for the right of return as a form of compromise, of giving up the demand for the exclusive control of Palestine. The refugees have rights, but these will be determined in negotiations: the right of return remains, but it coexists with the absence of return. In 1992, Rashid Khalidi’s search for historical analogies settled on the Jewish claims of return as the cornerstone of his analysis. The analogy is that Jewish Aliya (immigration to Israel) equals “return”; in both cases the attachment to the land determines the rules for population movement as a matter of national definition. He imagined that the implementation of the right of return could primarily be achieved symbolically and “carefully.” Khalidi’s position has since become the primary position in the various peace negotiations.

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Even before the Oslo process, in the 1991 “Framework for a Public Peace Process,” the PLO, represented by Nabil Shaath and Hanna Siniora, agreed to “resettle Palestinian refugees and to provide them with opportunities to live as citizens in permanent residence in the State of Palestine or in agreement with Arab States where they live at present.”70 Originally, the refugee issue was not included in the multilateral talks and presumably would have been part of the bilateral talks on core issues, but after much lobbying by the Palestinians and Arab states, the multilateral refugee track was formally initiated in Moscow in January 1992 with the establishment of the Refugee Working Group (RWG) gaveled by Canada following the launch of the bilateral talks two months earlier in Madrid.71 Initially, the refugee talks were used as a political stalking horse to get the Palestinians recognized as a separate delegation from the Jordanian one, of which they were initially a part, and then to get the PLO recognized as the voice of the Palestinians when it had first been excluded from the talks as a terrorist organization by the Israelis.72 However, the talks eventually focused on the refugee issue even though the Declaration of Principles (DOP) signed between the PLO and Israel on 13 September 1993 preserved negotiations on the refugee issue for the final status negotiations set to begin in May 1996. However, the initial moves were begun in the RWG since article 8 of the Jordan-Israel Peace Treaty recognized the RWG as the forum outside of the bilateral negotiations to initiate the discussions. Eventually, a technical committee related to the talks developed a seven-page non-binding draft agreement based on Palestinian/Israeli informal negotiations. That document set out the principles for resolving the Palestinian issue using the Khalidi formula of a right of return of Palestinian refugees to their homeland in an independent state in the West Bank and Gaza.73 The acceptance of UNGA Resolution 194 meant that any returnees to Israel would have to be acceptable to and accepted by Israel as willing to live in peace and be law-abiding within Israel. For some, that stipulation included not only the recognition of the current laws of Israel, but also included the implicit, or sometimes explicit, recognition of Israel as a Jewish state.74 Some Palestinians were willing to grant this recognition in return for recognition of the Palestinian right to self-determination.75 Resolution 194 came to be interpreted to mean restitution and reparation for the refugees. These claims, however, remained abstract. This has been the general interpretation following Oslo. Although there has been no explicit declaration by the PLO of giving up any actual return, various Palestinians in

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different forms distinguish between the right of return as a principle and actual repatriation. The return would be limited mostly to the Palestinian state, not to Israel proper.

Post-Oslo During the 1990s the Palestinians floated various trial balloons to test and educate Palestinian public opinion concerning the impending shift on the question of return. The first of these political agreements, often between leading politicians and intellectuals out of office, came to be known as the Beilin-Abu Mazen Document in 1995. Abu Mazen (before he became Prime Minister and later President and known as Mahmoud Abbas) formulated, with Yossi Beilin (onetime Israel justice minister and a leader of its dovish party), an agreement whereby the refugees would be “rehabilitated and resettled” in the Palestinian territories or other countries. On other occasions, Abu Mazan argued that, if Israel acknowledged the principle of return, the Palestinians would state their view of how many should be returned.

Camp David Notwithstanding the earlier “softening” of the Palestinian position regarding the right of return, in 2000 the situation was characterized as follows: [While] Palestinian and Israeli negotiators have been sequestered at Camp David, Palestinians from all political factions have taken to the streets calling upon the Palestinian leadership and the international community to uphold refugee rights, foremost being the right of return. . . . While a durable solution for Palestinian refugees—and the Arab-Israeli conflict in general—must be based on international law, press reports have suggested that what is being pushed by Israel, and through American bridging proposals, is an arrangement based on subjective political factors—namely Israel’s refusal to allow refugees to return.76

This in a nutshell was the prevalent public Palestinian position. The interests of the refugees are presented as a violated right of return that ought to be resolved according to international law and, if unresolved, will prevent

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a resolution of the Israeli-Palestinian conflict. Both Israel and the Palestinians were unable to formulate a coherent consensus within their respective societies. While the pragmatists pointed to shifts in the other side as an opportunity, the majority in both societies pointed to the rejectionists as a justification for negating any compromise. The Palestinian opposition to a compromise presented politics based on a lack of transparency (“sequestered at Camp David”) and public democratic action (“Palestinians from all political factions have taken to the streets”), and between objective considerations (“international law”) and Israeli intransigence (“on subjective political factors”).77 Similarly, the rhetoric employed by the Council for Palestinian Restitution and Repatriation (CPRR) appealed to the moral sensibility of the democratic world: “This is a matter that should go to the conscience of the world—and the democratic world especially.” The plea by Haidar Abdel Shafi was directed first to the Palestinian Authority, and then “to all the parties who are involved in peace, especially the United States government and the world democracies in general.”78 The popular Palestinian view merges all Palestinian sorrow into the debate over the right of return. The predicament of some five million refugees, anchored in the memory of massacres, is viewed as the touchstone of the Palestinian nation. As “all Palestinians come together annually to commemorate those who died,” they remember that “the UN resolution that dealt with the urgent refugee crisis, general assembly resolution 194 of 1948, has yet to be implemented: Israel refuses to do so. Every Palestinian refugee today knows this resolution, calling for the return to their homes of those who wish to do so, as well as compensation.”79

Post–Camp David Palestinians officials, excepting Hamas and a few others, in their current position have implied that, while the right of return as a principle is nonnegotiable, the question of physical return is a matter of negotiation with Israel. This was foremost the declaration of Arafat in his New York Times op-ed piece in 2002, where he argued for a “just and agreed solution”: We seek a fair and just solution to the plight of Palestinian refugees who for 54 years have not been permitted to return to their homes. We understand Israel’s demographic concerns and understand that the right

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of return of Palestinian refugees, a right guaranteed under international law and United Nations Resolution 194, must be implemented in a way that takes into account such concerns. However, just as we Palestinians must be realistic with respect to Israel’s demographic desires, Israelis too must be realistic in understanding that there can be no solution to the Israeli-Palestinian conflict if the legitimate rights of these innocent civilians continue to be ignored. Left unresolved, the refugee issue has the potential to undermine any permanent peace agreement between Palestinians and Israelis. How is a Palestinian refugee to understand that his or her right of return will not be honored but those of Kosovar Albanians, Afghans and East Timorese have been?80

Arafat referenced recent returnees according to the conventional wisdom. But as we have shown throughout the book, all of these returnees, and others, were repatriated as a majority group. He did not acknowledge the distinction that Palestinian refugees were demanding, at least ostensibly, a minority return, nor that all the links of the right of return to international rights, treaties, and obligations were based on individual and not communitarian rights. In that, his claims were part and parcel of the public discourse. The representation of a self-evident, “natural” right, the denial of which demands an explanation, characterizes the public understanding of the right of return. Notwithstanding, Arafat made very clear, and in the most official manner, that the Palestinian demands have to acknowledge “Israel’s demographic desires.” Arafat’s dramatic statement made little impression on the political atmosphere. These were the high days of the Intifada, and the Palestinians conveyed at least a double message, with the rejectionist perspective being much more explicit than any implied willingness to negotiate an agreed solution. In various instances, where semiofficial agreements presented the framework for a working solution for the refugees, these were viewed as a betrayal by the rejectionists. Public demonstrations by Palestinians to pressure their own negotiators and leaders to adhere to the more expansive interpretation of the right of return during Camp David II testify to the prominence of the demand as a symbol of Palestinian nationalism. Absolute return has become central to the Palestinian national identity. The reluctance of the Palestinian Authority to outline the content of the demand left the articulation in the hands of nongovernmental individuals and organizations. These include

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the whole spectrum, from Sari Nusseibeh to Hamas. Over the years, however, individual efforts at a political solution have been incorporated into the mainstream. In a split society, mainstream in this case refers to the official Palestinian government in Ramallah, not to Hamas in Gaza, which might be just as or even more “mainstream.” Yet, even Fatah and civil society organizations rejected any statements of compromise about return. These included, foremost, refugee organizations such as the Department of Refugee Affairs of the PLO, the Popular Refugee Committees, the Palestinian Return Centre, and the al-Awda network. The internal Palestinian debate came to a boiling point in response to the Sari Nusseibeh declaration in 2001. At the time, Sari Nusseibeh was the Palestinian Authority’s representative in Jerusalem, and later became the president of Al Quds University. The declaration stated that, in a twostate solution, Palestinian refugees will return only to the future independent State of Palestine and not to Israel. The opposition was vocal; his resignation was demanded and he was branded a traitor. This heated controversy in time died out, primarily because there were no prospects for an internal Palestinian agreement nor for implementation. In September 2002, Nusseibeh reached an “agreement” with Ami Ayalon, the former head of the Israeli intelligence service and a future politician, concluding, as before, that “Palestinian refugees will return only to the State of Palestine.”81 In the eyes of many Palestinians, Nusseibeh has become a persona non grata, foremost for the Al-Awda organization and Salman Abu Sitta, who called for Nusseibeh’s dismissal. But one only has to compare his statement to the language of Arafat’s formal Palestinian vision of peace published a few months later in the New York Times to see the similarities, though in Arafat’s depiction, this revised position was admittedly implied rather than explicit. Nusseibeh’s offense was to express what many understand implicitly to be the eventual outcome but think must be reached through negotiations. One can attribute the vehement opposition to the belief that giving it up before peace negotiations weakens the Palestinian bargaining position. A mirror image of this view is the Israeli intransigence and the belief that Israel will give up many of the settlements in return for peace, but that if it were to do so without the negotiations, it would lose important bargaining cards. In both camps there are true believers who hold the rejectionist positions because of their beliefs, not because of strategic reasons, while the main negotiators continue to bridge their differences, one small step roughly every decade.

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Current Situation Palestinian politics are on the brink. Following the fracturing and deterioration of several years marked by a civil war in Gaza and the division of West Bank and Gaza Strip into two separately governed political entities, the failure to bridge the animosity between Fatah and Hamas suggests little progress in the medium future concerning the formal Palestinian position on the question of return. The mainstream has maintained the trend of moving away from the language of rights in favor of a search for a political solution, but this solution is as elusive as ever. Even before the complexities of the current situation emerged, Sari Hanafi wrote, “it is not sufficient to prove that the Palestinian right of return is enshrined in international human rights law and humanitarian law. Research must also demonstrate that recognition of return is a necessity for regional security and, in some cases, a humanitarian necessity as well.”82 The vagaries of negotiations between the official Palestinian government and Israel point to this clear trajectory. Among the various declarations, one could point to the Palestinian Prime Minister Fayad, who emphasized the acceptance by the Palestinians of the Arab peace initiative, again with the emphasis on “a just and agreeable solution to the Palestinian refugee problem,” to which he added that “the solution must be agreed upon with Israel.”83 The parameters of repatriation include the recognition of the right of return, together with compensation and a symbolic return in the range of up to one hundred thousand to Israel, presumably mostly part of family reunification. That return number may count many who have already returned and may plan for a staggered process subject to Israeli management. This would make the return symbolic with little impact on Israel demographically. Such a privileging of politics over both rights and rites would be unlikely to satisfy many vocal Palestinians, though a majority of Palestinians polled supported the Nusseibeh-Ayalon Agreement. However, such a stance might be sufficient to “resolve” or at least be the basis for an agreement on other aspects of peace on terms including a recognition of Israel’s subjective needs and a measured degree of redress for the Palestinians. While the essence of refugeehood is presented as the core of the clash, without the redressing of which the conflict cannot be resolved, under the above parameters it is much less controversial and more or less agreed upon by liberal moderates, both Palestinians and Israelis.

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The “Palestine Papers,” published by Al Jazeera84 as the book was going to press, confirmed in vivid color the dynamics described here. The Palestinian leadership agreed to the return of up to 100,000 refugees over ten years. The leaders accepted that repatriating 5 or even 1 million Palestinians to Israel was unrealistic. They did demand compensation for the rest. Publications responding to the agreements from the negotiations were even more interesting than the substance of the agreement, since most insiders expected something like those terms. Headlines such as “Palestinian Refugees Rule Out Compromise on Return to Homeland” were the exception.85 There were no widespread demonstrations against the Palestinian Authority, especially notable at the time, given that the Arab world was awash with popular discontent, from Tunisia to Lebanon and Egypt. One might even suspect that the publication was intended to present the Palestinian moderate position as standing in sharp contrast to the Israeli rejectionists.

Redress Not much has been discussed in public about the specifics of redress, though the various negotiations have addressed the issue. In one of the most fair-minded and analytical approaches, Salim Tamari analyzes some of the practical issues that face any repatriation and even more limited reparation and restitution plans.86 He begins with the administrative and social equity difficulties that present a challenge in assessing and compensating the Palestinian refugees. Tamari underscores the changing situation, not only the time lag, but also the personal changes among the Palestinians. Among the issues are the likely conflicting claims among many family members over a small property and the even more unjust situation where the poor cannot be compensated for their suffering when the compensation focuses on property alone. These complexities are not meant to avoid compensation, but, on the contrary, to explain why a fair solution—one that takes into account the changed circumstances and the comparative perspective of changing standards in resolving other refugee crises—ought to lead to a political solution that is real and not only rhetorical. Tamari’s principles aim at avoiding not only most of the political but also most of the bureaucratic hurdles, targeting an equitable solution that would enable the poor to be compensated with relatively few administrative obstacles. His proposal does not accept central Israeli demands, such as bringing into the

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equation the Jewish property lost by Jewish immigrants/refugees from the Arab countries. But the main issue, the question of physical repatriation and corresponding Israeli fears, is addressed by accomplishing it “in territories in Israel to be annexed/swapped to the Palestinian state.”87 Tamari emphasizes the necessity of the “Israeli acceptance of moral culpability for the dispossession of the refugee,” which, given the intellectual and historical study and discussion in Israel, would be very much within an emerging consensus as long as it also took into account the responsibility of the Palestinians and the Arab states for initially rejecting the two-state solution and declaring war on the nascent state of Israel.88 Furthermore, Tamari reiterates the Palestinian response to the Israeli demand to include the lost Jewish property in Arab countries by referring that issue to bilateral discussions between Israel and those countries. Given the centrality of the Arab peace initiative in all formulations in the region, it is conceivable for a nonlinkage formula to be established between the two claims if they proceed in parallel. Besides presenting principles that can be followed in negotiating a settlement, the greatest merit of Tamari’s proposals is his focus on the refugees—their real life, their human frailty, and the need for fairness, as well as the need to accept the principle of redress and devise a system that can work. Another type of differentiation is made by Adel Yahya, a Palestinian refugee scholar and activist who extensively records oral histories of refugees. Yahya concluded that only the first generation of refugees in refugee camps more or less uniformly insist on return. The vast majority of the remainder, while their life was and remains shaped by the Nakba, hold diverse opinions concerning repatriation, especially “the possibility of living with the Israelis and abiding by Israeli rule.”89 For them, rhetorical commitment to repatriation is manifested more as a form of self-definition, but one not backed by political commitment. As a general declaration, the overwhelming majority supports “the proposition of granting all refugees the right of return to their original homes and lands.”90 Many are more settled in their current homes and are foremost concerned by the future lack of security, a fear that overshadows demands for return. This sophisticated distinction underscores the divergence between return as central to identity and the recognition and acceptance of responsibility. While the first generation rejects any responsibility for the flight and denies having agency, “the younger generations were usually quick to lay the blame on their parents and their political leadership for the flight.”91 This urge to

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be more in control of one’s national and personal life is at the core of the distinction in the attitude toward return. In contrast to these pragmatic approaches that privilege politics while recognizing the centrality of rights, there are those who focus exclusively on repatriation as a right, which goes with the politics of rejecting compromise. Such critics object to the notion that the refugees could not return to the homes from which “they were driven.” The physical nonexistence of these homes, mostly destroyed sixty years ago, is not part of the discourse. At the popular level, the murky field between a “right of return” that is limited in scope (yet undefined) and a rejection of the existence of Israel remains central. This suggests to Israelis that the right of return as a focus of Palestinian aspiration has changed little from the time when the ideology of the rejectionist camp was at its height, although in Palestinian politics the debate over the right of return has been radically transformed. Most Israelis, including officials in power, view terror and Hamas fundamentalism as proof that demands for the right of return are meant to destroy Israel, not right a wrong or constitute part of a peace agreement. From certain Israeli perspectives, the Palestinian emphasis on Resolution 194 is not a focus on its “peace” component, but on legitimizing a process of rejecting Israel, in the nature of the Hamas statement following a suicide bombing, which stated that “these attacks will continue in all the territories of 1948 and 1967, and we will not stop attacking the Zionist Jewish people as long as any of them remain in our land.”92 Expressing the same popular notion of complete return, but within a religious frame, the Palestine Ulema (religious scholars) Association issued the following fatwa: The legal religious ruling on any agreement or treaty that does not achieve the complete and unconditional return of the Palestinian refugees to their homeland and houses and properties from which they were expelled—whether through compensation instead of return, resettlement in other countries, postponement or partial and individual return under the family reunion plan or return only to the West Bank and Gaza Strip—the religious ruling is that such an agreement or treaty is null and void and is not binding to our people, nation and its coming generations.93

The religious rejectionists had the support of secularists who continued to privilege the national perspective over individual welfare, rejecting propos-

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als for humanitarian work on the basis that they might ease the plight of the refugees without achieving repatriation. Thus, the Popular Front for the Liberation of Palestine slams the United States for “calling on host states to give Palestinian refugees citizenship.  .  .  . This right cannot be bargained or given up at any cost, because it is the right of every Palestinian.”94 This was a response to the US Congress call on UNRWA to resettle Palestinian refugees in the host countries.95 The US demand was viewed as a pro-Israeli policy and the rejection may not have seemed exceptional. What deserves attention is how the welfare of the refugees in this case is not figured into the debate and is overshadowed by the political struggle. “Every Palestinian” in this demand means the eternal Palestinian identity, not the real living, breathing, suffering refugee whose well-being might be alleviated. The political conflict between Palestinian and Jewish nationalism clearly trumps both peoples’ well-being, the truest sense in which rites and rights trump utility. A Palestinian return limited to the homeland, such as the West Bank, is morally and politically very different than a return to a Jewish majoritarian state within the pre-1967 borders in which Jewish demographic and security fears would be heightened and property repossession may raise the specter of evictions. Timing is also important. After the former foes live side by side in peace for a generation or perhaps two, one could then envision the free movement of the two peoples in both Palestine and Israel. The recognition of the limitations of return must be accompanied by an acknowledgment of the degree of Israel’s responsibility for the uprooting of the Palestinian refugees. Admitting its share of responsibility may offer a catalyst for a potential solution for the problem and help move the issue from one of rites to politics. The specifics of the responsibility would need to be determined.96

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[ 9 ]

Rights and Return

Rights convey alternative and oftentimes inherently conflicting meanings. Moving from the case studies, this chapter focuses on the right to have rights.1 Is there a universal responsibility we bear for others who are human concerning a right of return? If so, which entity is responsible for exercising that responsibility? This should alert the reader to the fact that we approach the discussion of rights from an empirical perspective. Since rights impose duties, some party must be assigned to implement the right. Thus, the right requires an entity to permit or make possible an action that the individual claims to have a right to perform. This is usually considered the central or core meaning of a right. That is, the holder of the right of return imposes an obligation on the state that could prevent that return, not only not to interfere, but to actively facilitate that return. Further, if the right is to have a normative claim, this responsibility must be universal. That in turn raises the dilemma of what is the basis for justifying that universality. And what instrument (or who) has the capacity for implementing that universal right? This chapter tries to answer these questions and contextualize them within the empirical evidence already presented. Rights are purportedly universal. So must a right of return be if it is a right. Paradoxically, however, it belongs to group rights and applies to a specific group and only with respect to a particular space. Further, the

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implementation conflicts with other group rights and needs—usually selfdetermination, sovereignty, and security. So upholding the right falls to the state that is charged with these other duties as well. The state is required to permit the “right” of return to be exercised within a context where the state itself has conflicting duties. The duty to permit return is not simply the correlative claim of a holder of a right of return imposed on any entity that simply has the duty and obligation of implementation, but on a state that has other duties and corresponding rights itself as well as the responsibility for enforcing all rights. The right of return—as far as national and ethnic minorities are concerned—has difficulty gaining universal political backing instead of merely rhetorical support. Why, despite the wide spectrum of declaratory blessings for the right, has there been a dearth of actual practical or legal support for the claim? To grasp the discrepancy, compare the right of return with the related widespread acceptance and implementation of rights of prohibition of denaturalization and expulsion. To clarify the source of the difference in an attempt to answer the puzzle about the lack of implementation, we explore whether the right of return has an agreed-upon substantive content and whether it has been translated into institutionally embedded practices as other rights have been. If the claim of return does not enjoy widespread support in practice, the question remains whether a right of return can be viewed as a universal, indivisible, and undifferentiated human right. We argue that we can find no basis to justify such a claim. Realpolitik equates national interest with an unmitigated calculation of the relative power of different political actors. Thus, there is no right of return if a state power rejects the return of a relatively weak group of refugees. However, if those refugees have powerful state backers, a state may bend even if return is considered not to be in its interests. But they bend before might, not right, either its threat or its use. Generally, populations reject the return of another ethnic group because of their own demographic concerns with remaining a majority, because of a perceived threat, or because return conflicts with their own right of self-determination. These are strong factors when measured within regional security considerations. Realists resist return by claiming that return will promote instability. Return is not considered a virtuous norm but a dangerous action that threatens a demographic “balance” as well as economic, social, and political stability. Forcing return upon a state undermines the most fundamental principles of the modern nation-state system—the right of self-determination, non­

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intervention in the domestic affairs of states, and the commitment to peace and security among states. Further, what has happened cannot be undone. Realpolitik not only governs the actions of the states from which the refugees were displaced but also those of the host states and others where the refugees seek asylum. It certainly governs the decisions of states dealing with the internally displaced when they treat these IDPs as a domestic problem of no concern to outsiders. Realism often pays too little attention to the human suffering of refugees warehoused in camps, at times for a decade or more with minimal rations and inadequate protection from the elements. In that situation, realists may underestimate the political force such deprivation may generate. In Rwanda, for example, it led to civil war. On the other hand, realists well understand the weakness of the claims qua claims, which led the international community and regional powers to ignore the demands of the Tutsis in neighboring countries to come “home.” Realism considers any resort to force by those refugees as an act of political violence against a legitimate and recognized state entity and ignores the emotive appeal of the claims of those refugees on the heartstrings of the world public and the political impact of any pressure they may bring. Sometimes, in blatant contradiction to its own tenets, realism even ignores its usual adherence to the protection of property rights and the principle of compensation for private property taken by the state. From a realist perspective, peace and order in the international arena was once managed by tackling ethno-national conflict through the physical and political separation of warring groups. Refugee advocates also embraced realism as a weapon against the state that denied return, accusing it of ethnic cleansing and declaring that the state would only have peace and stability if it recognized the equality of all citizens, whatever their ethnic or religious character. At the same time, refugees often worked to enhance their own powers and used political violence to threaten the hegemony of the state denying their return and to undermine its claim to be the best defender of national security and of the personal security of its citizens. In the name of a right of return of a specific victimized ethnic group, the refugees practiced realpolitik; they offered the promise of greater security for all in a truly democratic polity in the name of fairness, justice, and the recognition of the equality of each individual as a citizen regardless of national or religious identity. They appealed to that realism and promised peace, security, and stability in a new future and the reversal of an unjust ethnic cleansing.

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In this sense, refugee advocates operate like realists in aiming to enhance the demand for return by gaining political (and military) strength. But they also advance a moral demand—framed as a right—to gain political power. An additional appeal to positive law was based on rules and principles that have been enacted or declared by various governments, even if the laws have not been implemented. The claims underscored principles intended to reflect the political reality as a norm for future implementation.

Implementation and Enforcement Realists stress implementation: reality is what works. Within the principle that rights claims must be universal and achievable, Hannah Arendt focused our attention on statelessness as the core of the French and English Enlightenment failure to comprehend the character and role of human rights. The French tradition of the universal rights of all humans was based on common reason and natural compassion for all humanity. The English tradition of the state of nature and social contract theory constituted a common human condition for founding rights. But Hannah Arendt insisted that for rights to be rights, they have to be political and legal and gained through membership in a political community, a state on which the individual relies to protect those rights. The fundamental gap between an ontological foundation of rights and a right of return is that the latter only follows from the existence of sovereign states, while both the French and English traditions found all rights prior to the existence of any state. States are not only the prime protectors of rights, but also the prime abusers of those rights. This became painfully apparent in Europe following World War I where refugees and others suffered from the evaporation of their rights as state formations vanished and borders shifted due to political earthquakes, including war and revolutions. Many refugees found themselves without state protection, not just by oppressive states but even by so-called democratic, nonoppressive ones. It became clear, as Arendt formulated it, that the lack of rights can only be remedied by a reconstitution of political identities in states that protect rights. Although nonstate and superstate entities have increased their roles immensely in protecting human rights over the sixty years since Arendt posed her thesis, her core thesis—that individuals have to have memberships in states that protect their rights—remains valid. Even if membership is par-

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tial or contested (as with, for example, undocumented immigrants), rights depend on state protection. Inadequate state protection is better than no protection. The effort to realize those rights entails a political struggle visà-vis the state and not the abstract universality of humanity. Further, the efforts to redress wrongs and injustices impose obligations. This responsibility for the protection of rights belongs to states, and, correspondingly, complete rights are only accorded to “full” citizens. But who are the citizens who have full protection? Clearly women for the longest periods were citizens with little protection. Blacks, not only in the United States, were even worse off. Some groups have fewer rights and may have no rights compared with others. So while the protection of citizens is often subject to further qualifications, the lack of citizenship provides hardly any protection. Not having the protection of citizenship while a member of a group—whether racial, ethnic, religious, indigenous—is an indication of an absence of rights. Not having adequate protection as a citizen is an indicator of potential discrimination and a lack of protection, not of rights. In a 1932 essay, “The Enlightenment and the Jewish Question,” Arendt described how a Jewish community moved from a physically segregated minority with very limited “rights” through the civil emancipation following the French Revolution and the Emancipation Edict of 1791, to a situation in which Jews were recognized, at least in principle, as equal in human reason and, therefore, equally human as individuals in relation to the state.2 However, the emancipation was also premised on the obliteration of themselves as Jewish, as people of the book with a particular history, as Jews with a Jewish past.3 Thus, the paradox: if they accepted emancipation in full, they were denied their history and existence as a community; if they clung to that history and their identity as a people, it could be viewed as a rejection of the universality of individual human rights. This predicament between the universality and particularity of rights, between the abstract individual and the nation, was complemented when it came to the right of self-determination. Modernity was premised on a two-sided paradox. On the one hand, it was identified with universal rights of the individual. On the other hand, the protection of individual rights depended on the creation of a state and, therefore, on the recognition of group rights to self-determination and on possessing a state that would guarantee the very rights that purportedly were universal. However, group rights are context bound and are not claimed as universal. The most widely acknowledged group right is the right of a people to self-determination.4

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Self-determination as a right belongs to groups, not individuals. Under the principle of self-determination, an entire nation is free to determine its own political status. However, not all groups are considered nations possessing such rights. There may be almost two hundred sovereign states, but there are almost six thousand groups that may be considered nations according to different criteria. This descriptive condition underscores the fatal conflict between the modern nation-state system and universal human rights: a system that required states to protect rights emerged from a universal condition, but only a limited number of nations are privileged to exercise collective rights. The Declaration on the Rights of Indigenous Peoples (2007) and its formulation of self-determination as a category between autonomy and independence, but not equivalent to the self-determination of people under colonial rule who have the right of independence, suggests the complexity of collective rights even when these reach the stage of widespread formal support.5 Membership in a cosmopolitan order of humanity, individuality per se, does not and did not provide protection. Membership in a state does and did. In Arendt’s masterpiece, The Origins of Totalitarianism, the central chapter analyzes the question of rights and focuses on refugees.6 Through statelessness, Arendt exposed the tension between the state and humanity. Further, in an underlying paradox, the “rights of man,” universal and inalienable, were also vitiated and jeopardized by social structures and economic interests. The real world kept intruding on the purity and absoluteness of those abstract universal rights. In Arendt’s formulation, “the right to have rights” is paradoxically determined by the political condition. Aspirational and universal rights exist, but could only be institutionalized through the particularity of the state. Over the last several decades, many nongovernmental agencies and superstate actors have emerged to try to ensure that such institutions are built and that states live up to a “global” promise. The notion of sovereignty is being progressively constrained, yet both the implementation and abuse of rights remain with the state. Do individuals who do not belong to any state have rights? Hannah Arendt, as a refugee herself, as a worker on behalf of refugees, and as a political observer during the interwar years, had many reasons to focus on statelessness as the abyss of modernity. Arendt thought refugees, people who are effectively citizens of nowhere, provide a test case for human rights as well as a key test of modernity in general. For her, the traditional

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division between statelessness, those outside their country who had no state to which they could return, and refugees, those outside their place of birth to which they did not want to return due to fear of persecution, was a distinction without a difference. People had no rights unless an individual was a member of a polity.7 Stripped of citizenship, a human is left only with universal rights and is made aware that the only thing she has left in this pure state are rights that are empty of meaning since she lacks membership in a state that will give those rights force. The universal human condition was inextricably married to the particular history and context of the person. Thus, the original doctrine of the Rights of Man included the phrase “and citizen,” underscoring that membership in the most important institution of modernity, the state, was a sine qua non. Arendt saw refugees as the most important litmus test of the international political system and its eventual failure. Later, Michael Walzer would phrase the complement to this thesis: the most important decision a state can make is who it accepts into membership.8 Arendt entitled her chapter “The Decline of the Nation-State and the End of the Rights of Man” because when the nation-state ends, either as a general political reality or as a political reality for the individual, so too do the rights of humans. Thus, human rights and the rights of states are not only opposed, they are also inextricably linked. That is why the status of statelessness and the conception of the refugee bring into focus the nature of both meanings of rights—universal in their reach and particular in the means of implementation. The relationship between the two is one of interdependence: “The concept of the Rights of Man, based on the supposed existence of a human being as such, collapsed in ruins as soon as those who professed it found themselves for the first time before men who had truly lost every other specific quality and connection except for the mere fact of being humans.”9 Nation-states invariably discriminate between citizens and noncitizens. However, noncitizens living within the jurisdiction of many states are increasingly afforded protection for most so-called universal rights. These are cited as examples of emerging rights that have become part of state practices. Similarly, refugee claimants in many Western jurisdictions are increasingly guaranteed the right to counsel and the right to a hearing before a quasi-judicial body. Nevertheless, very few propose giving noncitizens the blank right to become citizens. The fact that rights are being extended to noncitizens—but not all rights, and certainly not

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the right to stay—demonstrates one reason for keeping the concept of universal rights active.

Historically Emergent Rights: Denaturalization, Expulsion, and Return Rights can be conceived of as universal in reach but without a universal foundation. Rights can be redefined as those rights over which there has been conventional acceptance by most of humanity, which has translated into actual practice. They are universal by agreement as well as by practice rather than inherent. They are historically rather than ontologically rooted. The rejection of slavery can be considered a universal noncontroversial right on such grounds, even though opposition to slavery was often based on various rationales, including natural rights theory. The prohibition of torture is an emergent noncontroversial universal right. However, there is a difference between virtual rights in the sense of very broadly accepted rights that are aspirational and have been or are being translated into general practice and those norms that remain only aspirational. Since 1949, the human rights community has adopted three widely shared beliefs that are interconnected but require disaggregation: (1) the denaturalization of citizens is unacceptable except under very narrow circumstances; (2) the expulsion of populations is prohibited; and (3) repatriation is the preferable and, for some, the only truly just remedy for refugees that have been forced to flee. Measured by general acceptance over time, the first two of these propositions can claim to have achieved the status of a right on historical grounds. The right not to be deprived of one’s citizenship is critical in a nation-state system in which everyone must belong to a state to enjoy rights.10 This is also true of the protection of minorities from expulsion. But the right to repatriation possesses no similar status, foremost because minorities, as has been shown throughout the book, have not been the beneficiaries of any such rights. Should such a right exist? Politically, the question is particularly critical since the right not to be denaturalized and the collective right not to be ethnically cleansed are fundamental and combine individual and collective rights. However, the consequence of accepting these is to maintain a status quo. These do not collide with existing rights of others. In contrast, the right of return as formulated requires a change in the current political status quo. Further,

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the right of return collides with a host of other rights, especially the right to self-determination and sovereignty. The rejection of the power of a state to expel whole populations is connected with the denial of denaturalization but goes further. Whereas restricting denaturalization to very exceptional cases applies to individuals, the denial of the right of a state to expel groups of its citizens applies to collectivities and generally minorities. Further, it is in the interest of surrounding states as well as the rest of the international community to deny such a right to any state lest the burden of those expelled fall on the neighboring states and the international community. No exceptions are made to the denial of this right to states. Thus, the rejection of the denaturalization of individuals and of the expulsion of individuals and minorities also has a functional justification. The international community has failed to stop ethnic expulsion numerous times; but in no case was the expulsion validated. Where feasible, the perpetrators were, and are, being brought to justice. However, once states expel populations, the enforcement of a solution shifts to other states. Historically, original states only readmitted expelled minorities because the receiving states (or the international community) adopted coercive methods. Declaring return as a right without an enforcement provision creates false expectations in light of the past record. Further, such a declaration complicates efforts to influence state behavior and narrows the spectrum of feasible policies. Overwhelmingly, states do not opt to use force. Instead, most often, surrounding states have assumed obligations not to refoule those expelled if they risk persecution upon their return. In accepting such an obligation, states do not legitimize the expulsion. Attending to victims of crime never legitimates the crime. These two principles—expulsion is a crime and refoulement is a violation of international law—are widely accepted and practiced. A different principle, the right of repatriation, remains contested. Yet, it appears to be justified since it seems to follow from the right not to be denaturalized and not to be expelled. The conviction of those who uphold a right of return is that every displaced individual and group is entitled to return to its geographic home area (and oftentimes to the home itself). Yet, there is little explicit discussion in law supporting the right of return. As has been shown throughout the book, this norm is not practiced when minorities are victimized. The reality of the limited provision for repatriation (in particular, minority repatriation) in customary international

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law raises questions about the international legal foundation as well as the historical and functional justifications of this claimed right. Indeed, the claim for return contradicts many of the practices that constitute precedent and customary international law. Since ethnicity, as we show throughout the book, is the determining factor in deciding repatriation, the fact that the law is silent on the question of ethnic return makes that omission significant unless, of course, one believes that law itself must be founded on ethical principles.11 In cases of majority return, such as in Afghanistan or Cambodia, where identity at first glance appears inconsequential, the question of right in shaping the repatriation is irrelevant and superfluous. Repatriation in cases where the refugees are members of the majority group contrasts sharply with the denial of minority repatriation. Readers of the previous chapters can recall that not only are there long precedents in international law for legally enforced population transfers, but even in more recent times, repatriation rights are supported only minimally by positive law and rest largely on creative extensions of various humanitarian legal instruments and declarations. Unlike rights that have developed a set of rules and regulations, institutional protection mechanisms, and case law, there are no equivalences for the right of return. It remains a rhetorical claim, albeit one that appears in a myriad of international conventions and is asserted in various national settings. Further, the very nature of “return” is not clear, such as in the question of what the principle means—whether it is the right of return to homeland or to home. If the latter, as some advocates argue, what does it mean when the homes have been destroyed? Is there a ranking of remedies? The reality is that there are neither agreed-upon principles for remedies, let alone enforcement, nor even any real efforts to develop these. Therefore, a claim for minority return remains abstract and aspirational. Further, as we show, the very foundations of the priorities in the political system challenge the likelihood of translating the abstract norm into a set of practices and protective mechanisms for minority return. In contrast, rejecting denaturalization and expulsion is subject to extensive political and legal activism. Over the last two decades, states have adopted not only vigorous rhetorical positions against ethnic cleansing, but in one case, Kosovo, Western states even went to war to enforce its prohibition through forced return. They took it upon themselves to use force to reverse the expulsion even though the use of force in that situation without the authorization of the UN Security Council was against international law.

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Some declared the action “illegal but legitimate,” wrong in law but right in moral terms.12 Kosovo was an exception in the use of force and it was a case of majority return. It was not the principle of a right of return that motivated NATO; after all, the international community has not shown a similar willingness to protect the Serbian minority or Roma in Kosovo or intervene militarily to assist refugees in other parts of the world. Millions of refugees have been left in protracted situations and “warehoused” for years.13 Kosovo, as it resolved itself, turned out to be not only a case of return, but also of population expulsion. It is also a case of secession and partition. Practice is clearly at odds with a claim for return as a right based on emergent historical grounds. While there is little support in the international system for ethnic return, there is a greater commitment to protect refugees from being forcefully repatriated against their will. This practice is well established in treaty and customary law, as well as in conventions between and among states. Increasing numbers of states subscribe to that obligation, which is evidenced by the institutions and legal practices developed to ensure that such practices are followed. In this arena of refugee rights, principles and practices have begun to converge. There is no equivalence, however, between protection and redress for claims by individuals against states from whose territory they have fled or been forced to flee to regain their citizenship, though there are of claims for compensation for direct property losses.

Justice and Rights If claims for the right of return have weak grounds on the basis of historical success, functionality, and the tradition of civil law, does the claim for the right of return as an aspirational norm have any basis in theory? For John Rawls, rights were established on the basis of an original position abstracted from history14 or as emergent historical principles.15 With respect to the latter, historical evolution was one way to differentiate between viable aspirational rights and others that are implausible and may be more destructive than ameliatory. The international community discusses all economic, social, and cultural rights as “emerging,” that is, as having a specific content according to the local norms. The formulation and proclamation of a right,

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without any form of “emerging” implementation, should signal that it is a demand, not a right. This applies to the right of return. The right to return may be justified as a matter of natural restorative justice to redress a wrong done. After all, refugees lost their homes, lands, and means of livelihood. Returning them to their homes and assisting them with resources would seem to be an exemplary case of restorative justice without any implications for self-determination. But that is the problem. The historical context has changed. If one group of Neuer replaced Dinka in a specific area of Southern Sudan after the Dinka fled because of the war with the North, is that group of Neuer to be uprooted upon the return of the Dinka? It is a difficult enough question when the Dinka are part of the victorious military party in the south, making redress imperative. It is another issue to try to establish a general principle applicable universally. The possibility of sorting all that out on even a principle of restorative justice simply becomes far too complex and is likely to lead to even more and perhaps greater injustices, especially when exacerbated by demographic and security fears of different groups. It appears that the effort to find historical and pragmatic grounds for establishing a right to return has enormous hurdles. Historical redress, while increasing, is still the exception; it is still symbolic, not structural.16 In contrast to realist positivist law theorists who hold that what has been is an indication of what will always be, constructivists argue that norms matter. In this sense, the right of return has a performative status even when there is no mechanism for enforcement. Positing rights, followed by efforts at implementation, is critical to changing history and the political reality in which we live. Neither realism nor past historical success provides an exclusive vision of the future we can inhabit. Further, although the right of return as a moral claim is not validated by its enactment into international law, such an enactment might follow from the recognition of the right of return as a moral principle. Such normative rights claims are valid independently of their recognition by any juridical realm. As a result, the number of people who benefit from human rights has increased substantially. Nevertheless, a dissonance continues between the rhetorical force of human rights and the political reality of rights abrogated by politics and history. Further, in addition to their normative, emergent, and aspirational character, rights have consequences for both individuals and states. In general, the more rights are protected and the more states protect them, the greater the benefits that accrue to the members of such states. Rights have a func-

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tionalist rather than an ontological universal foundation. The recognition of rights leads to greater legitimacy and recognition being accorded a state. In sum, it is characteristic of rights to be normative, emergent, aspirational, and consequential. If rights are emergent and aspirational and in practice are politically situated within specific states and within a context of history, then the main purchase in calling them universal and natural is rhetorical. Rights and obligations that are recognized as emergent norms binding on most parts of the human community serve to subject domestic practices to evaluation in accordance with global normative rights requirements. This is in contrast to the ahistorical meanings of human rights as universally rooted either in natural reason or a universal sentiment of pity, empathy or compassion, or in a state of nature. From this vantage point, rights, conventions, and forms of communal recognition are not theoretical, universal abstractions applicable to all time, but rather are historically contextualized. In this context, the right to return cannot be viewed as such an emergent norm.

Humanitarianism and Rights The appeal of the right of return coincides with the humanitarian mantra of apolitical and impartial assistance because it places the immediate emphasis on suffering as the priority. The drawback comes with the recognition that everything is political. A focus in one area may directly or indirectly provide aid to a warring faction and even prolong the conflict. Yet the rationale for confronting the most acute suffering remains the cardinal choice. Many feel that the politics have to be pushed back to a time when the discussion would focus on resolving the conflict. The discussion of the right of return has to be conducted at that stage of conflict resolution, not under the cloud of a harsh humanitarian crisis. In this context, the predicament can be viewed as a choice between the option of helping refugees reestablish their lives elsewhere than in their homeland, thereby indirectly giving the appearance of lending assistance to the displacement, or of insisting politically on principles of abstract declared rights. Providing humanitarian assistance can also be viewed as encouraging the distressed to flee, increasing the numbers of refugees, which in practice it may do. Yet the will is often to provide assistance. The decision has to be made separately in each case.

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Further, opting for accepting humanitarian assistance in resettlement rather than insisting upon return can also be interpreted as privileging one right over another, namely, the right of the refugee to provide for his family over against the right of return based on a collective demand. So even if one assumes a right of return to be a valid right, one right, the right to a safe and secure environment, may trump the right of return. Further, given the humanitarian dilemma and the rights predicaments, the implementation of rights can be achieved perhaps through greater emphasis on conflict resolution and redress in resolving the displacement. The Annan plan for Cyprus provides such a precedent. It combined a solution to the conflict with symbolic possibilities of return, but it placed the greatest emphasis on reparation. This was done within the context of a refugee crisis that had largely been attended to as far as humanitarian assistance was concerned; the suffering has been resolved by both an agreement between the sides on population exchanges and the use of the properties of the displaced to accommodate the refugees (in both Turkish and Greek areas). This suggests a lens through which to view other conflicts. The components involve all the available mechanisms, but without privileging the right of return to the detriment of either resettling the refugees or resolving the conflict. Finding new resources for refugees always seems to be overwhelming. However, satisfying such needs can never be compared with the cost of continuing the violent conflict. Reparation is relatively inexpensive when compared with the costs of violence. The argument that accepting displacement only encourages extremists to pursue further violence has to be taken very seriously. However, it also has to be addressed as a general challenge to preventing a conflict from escalating and being resolved. The refugees should not be held up as an exhibit in a political dispute to pursue national goals. Their rights can be attended to in conjunction with their well-being, and restorative measures can be taken together with conflict mediation policies to facilitate resolution. In the former Yugoslavia, property return proved more productive in rebuilding the lives of the displaced, though the way return was carried out left an administrative perception of actual repatriation. A more straightforward reparation program in Bosnia might have provided for a greater and quicker resettlement of the refugees and IDPs. Similarly, in Serbia a solution to the property and the passport question of the Serb refugees from Croatia might have facilitated the settlement of the refugees long ago. The

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creative proposals on the Palestinian side point in the same direction: a combination of reparation with an Annan-like Cyprus solution—a small percentage of restitution of land and property and compensation for the rest. There has been too little experience in implementing these modes of conflict resolution and settlement of refugee disputes to be able to evaluate the practical consequences. Yet, it stands to reason that many refugees who have suffered displacement for a long while would be willing to entertain compensation to rebuild their lives as a solution to their refugee plight even if it is at the expense of the political agenda of some of their ethnic leaders.

The Limits of Return as a Universal Right If historical realization, functionalist arguments in terms of utility, developments in civil and international law, and even constructivist grounds cannot support a right of return, and if concerns with humanitarianism and other human rights trump a right of return even if it is a right, two possibilities remain for a right to return to be upheld for all peoples at all times as a collective right of a group if that group is expelled or flees a violent conflict but wants to return. On the one hand, the right can be upheld as an abstract universal principle rather than one correlated with enforceable obligations. Right simply depicts a valid claim and not the outcome of the claim. The choice is protected but it is not untrammeled. It is a restricted claim that can be adjudicated but not predetermined from the claim itself and set against other claims, conditions, and rights. The correlative of accepting a right to return as a valid claim may mean that the holder of the claim does not have the capacity to exercise it. There is no sanction attached or even any built-in measure to demand, let alone ensure, compliance. It is merely a claim with no correlative principle of delivery, akin to an assertion that everyone has the right to be loved but with no duty imposed on another party for delivering that love. Rights as claims end up providing a universal ground but virtually no implementation provisions. When extended to the right to return, such a sense of rights undermines a much thicker and richer sense of rights. Though it is true that all rights are claims, rights seem not to be reducible to claims. If that is the sense of a right of return, it might be best not to dub it a right except in a metaphorical sense where it is simply one claim among many others. Otherwise, there may be a propensity to make other rights just rites.

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There is another route. Human rights are said to be universal because they inhere in each of us qua members of humanity; they are rights totally independent of any group affiliation. While the specific substance of the right might differ depending on the group, the right to be a member of a group would be universal. Further, all minorities also have the right to be protected. Third, repatriation can be viewed as a universal right that is only manifested in time and place relative to other rights and policies. Hannah Arendt articulated an inherent principle of humanity as the foundation for rights, in fact, as the right to have any rights. That inherent principle was rooted in a compassion stimulated by horror. First, the principle, unlike other universal principles, acknowledges from the start that, although its validity is universal, its applicability is strictly limited because its implementation always depends on sovereign states. In Arendt, the responsibility for others is not based on either an abstraction or a concrete universal political instrument for implementation, but is a result of horror in response to genocides and crimes against humanity wherein we begin by accepting universal responsibility, not only for treating the results, but for the occurrence of such crimes. Solidarity is established by identification with horrific suffering that provides the arche, the turning point, for establishing a universal foundation for and ethos of rights that will infuse and inspire all our political actions and give them a direction and orientation.17 That emotive identification obligates us to act without telling us what to do. The opportunity for the emergence of a new norm of humanitarian protection takes place because the same force of modernity that allows for global identification also opens up a gap in the flow of time from past to future as the authority of tradition over current conduct breaks down.18 Rights do not emerge from history or simply as functionalist answers to problems. They are innovative answers in response to horror, to evil eruptions in moments of transformation. They entail an engagement with the incommensurable and that which has not been given. In this explanation, the rights to rights are neither founded on history nor functionality, international law nor constructivism in the contemporary sense. They are certainly not founded on universally based norms rooted in nature. The problem is that we are left with a barren landscape from which we can determine which rights are truly rights. If ostensible rights are not translated into practices, is this a case of lag time, of insufficient will, of a failure to provide a criterion to determine innovative from

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rhetorical norms, or of a situation that is insufficiently horrific? Why has the right of return not been taken up into daily practice? One answer is that it is not perceived or experienced as a crime against humanity, as a gross horror. Leaving a whole population in refugee camps for long periods is certainly not genocide. It is more akin to fighting poverty. It has to be contexualized and evaluated against other needs and demands and can be dealt with without a sense of emergency. Protracted refugee situations do not arouse a response of horror though an expulsion carried out on a massive and deliberate scale in the here and now may. So ethnic cleansing is horrific and is regarded as a crime against humanity. Leaving refugees in limbo for years is not. Therefore there can be no right of return with any potency. Given the lack of any substantive normative base for a right of return, we must still explain why return nevertheless occupies such a prominent part in our rhetoric.

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[ 10 ]

Ethnic Conflict and Nonreturn

Pursuing the abstract right of return for ethnic minorities may be a political strategy or may serve as a proxy for other concerns. It will not lead to a solution for those refugees. Two of the latest cases involving the United States (Iraq) and Russia (Georgia) provide evidence. In each case, the lack of return and even attention to return are the result of other policy concerns. Yet, while the refugees themselves remain largely invisible, the idea of return maintains a stronghold, both for the individuals as well the groups involved. There is no magic formula to redress the dislocation. However, there are ways to disaggregate and diminish its poignancy. Using two abbreviated discussion of Iraq and Georgia, we suggest an explanation in terms of politics and nostalgia. We offer an account of why individuals hold so strongly to the idea of return in spite of the lack of both a past record of success and a solid normative foundation supporting a right of return.

A Tale of Return The right to one’s home is not the same as a right to property, though the two rights overlap. Property is transferable; we belong to a home. Taking someone’s house is an expropriation. To deprive a person of her home is to

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engage in a horrendous, profound violation. Home evokes deep feelings; although house and home are often used interchangeably, only the deprivation of the latter leaves deep scars.1 This sense of home is conveyed in a very poignant story. A Shi’a woman named Umm Ali returned to visit her house in the al-Amariya district of Baghdad, which was now occupied by a Sunni family in an area controlled by the Mehdi militia.2 The woman had been a prosperous middle class matriarch with Sunni friends and had once operated two neighborhood minimarkets. She had fled to Syria months earlier and had just returned—penniless. She came alone after dropping her two children off with friends in the adjacent Shiite neighborhood; she did not want to risk their lives. She ventured into her old neighborhood. From old acquaintances, she had learned that a Sunni family, expelled from a Shiite area, now occupied her house. She knocked on the door. A woman opened it. Introducing herself as the owner of the house, she said that she did not want anything except to look at the place and see her belongings. Immediately she felt ashamed at her lie. Reluctantly, the woman allowed her to enter. Umm Ali became distressed because they were not respecting her possessions. The house was dirty. Umm Ali stiffened her spine. She asked for rent for the shops and the house. Afraid of her own voice, she justified the demand by saying that she now lived in Syria and did not have any income. At first the husband rebuffed her request. He explained that he had “bought” the property from a previous Sunni occupant. However, after being shamed by his wife, he paid Umm Ali 1 percent of the value of the property. He then threatened her if she ever returned. Umm Ali ended her story, “The whole experience had been so surreal. I felt drained.” By returning home she was confronted by the loss of her home, her house, and her business. She felt traumatized, although this “homecoming” could be viewed as relatively benign. Umm Ali and her family had not been physically assaulted. Although the tragedy of one’s home occupied by someone else is shocking, when occupied by the “Other,” it is like a stab in the heart. But she was now houseless as well as homeless. She was also unemployed. Umm Ali faced her new identity as a refugee. Her memories of care and respect had been violated; her visit shattered her connection to the past. The loss of her house meant she had no presence. Her hopes for regaining house and home in the future had evaporated. She left her old neighborhood in deep despair, likely never to return.

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Displacement in Iraq Propelled initially by security concerns, the invasion of Iraq in 2003 was subsequently carried out under the umbrella of humanitarianism. However, under American occupation, the spiraling violence led to the largest ethnic cleansing in the Middle East,3 dwarfing the two most iconic displacements in the region, the Armenian and the Palestinian. Few suggest it is reversible.4 Five years into the Iraq war, there were almost 5 million displaced Iraqis, 2.2 million refugees and the rest IDPs.5 The refugees fled primarily to Syria (1.5 million) and Jordan (approximately 500,000). At the beginning of 2008, borders were largely closed to refugees fleeing Iraq. But already in 2006, figures of the forcefully displaced were estimated at over 12 percent of the population. The distribution of that refugee population has largely remained unchanged since the huge exodus in 2006.6 Most refugees are not in refugee camps. Many were previously middle class, surviving initially for many months on their own resources. As neighboring countries closed their borders, refugees were deported back to Iraq as their visas expired, thereby initially reducing the refugee numbers but only by increasing the IDP population. By 2009, the limited possibilities of return and of settlement in countries of first asylum have begun to be recognized as Iraq emerged as the major reason for the increase in the world refugee population.7 The vast majority cannot return; the number of refugees is far beyond what Syria and Jordan can be expected to absorb. Other durable solutions will have to be found if these refugees are not to become a protracted problem for the future. Why has resettlement as an alternative durable solution not been under consideration earlier? Reasons for the lack of attention to the Iraqi displacement include: (1) UNHCR was slow to respond due to the insecurity in Iraq;8 (2) UNHCR lacked sufficient resources;9 (3) the visual images of refugee camps that would stimulate a compassionate response of the world community were virtually absent given the pariah state of Syria, to which most of the refugees fled; (4) the American administration, in denial at the enormity of the humanitarian consequences of the war,10 wanted the problem to go away;11 (5) the rest of the world saw the refugee problem as an American problem; and (6) countries resented the Iraqi government’s stinginess. In spite of its $79 billion in oil revenues at the end of 2008, the Shi’a dominated Iraq government neglected the refugees in Syria and Jordan (largely Christians and Sunni).

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Although in 2007 there was a relatively short-lived surge in attention to the problem, there seems little likelihood of reversing the internal ethnic and religious segregation and minority “cleansing.”12 Most of the uprooted Iraqis were expelled or fled because of the clash between their identity and geographic location. They were either a minority in the neighborhood in which they lived and left for a neighborhood where their religious compatriots were in the majority or they fled across a border. If they were a minority within the country as a whole and lacked any geographic area within the country where they were a majority (Turkoman [Turkmen], Syrian, Iranian, Sabean-Madean, Yazidi, Armenian Christian, Chaldean, Assyrian, Palestinian), and if they had not been successful in crossing the borders when they were still relatively open, then they landed in a refugee camp in a remote area. These minorities are highly unlikely to return in the foreseeable future. Whether the refugees will be rehabilitated or not depends on domestic and international policies of resettlement, but it is most unlikely that the reintegration of multiethnic communities is imminent and that large numbers of refugees will return13 or that Jordan and Syria, where it is illegal for them to work, will regularize their status.14 Iraqi society has been fractured along ethnic and religious lines, but these divisions now define not only the predominant political structure, but also the geographical division of the population into virtually exclusive zones of Shi’a, Sunni, and Kurds, with an almost total ethnic cleansing of other minorities, including the Christian population that once numbered over two million (some of whom found refuge in northern Iraq).15 Most of the Palestinians have also been forced to flee.16 The Sunni-Shi’a violence was supplemented by an even more dramatic intra-communal conflict within both the Shi’a and Sunni communities. Each case resulted in extensive displacement. The only displacements likely to be reversed are the intrareligious ones within the Shi’a and Sunni communities, where the violence was primarily political in nature rather than about identity. The displacement changed the demographic composition of many cities. Though not as extensive or nearly as complete, violence and ethnic cleansing has also been taking place in the north by Kurds against Arabs, primarily in Kirkuk. Kurds want to reverse previous cleansing by Saddam Hussein against the Kurds and the resettlement of Sunni in Kurdish areas.17 In concert, repatriation takes place. The ethnic struggle is not over the individual return of expelled Kurds, but rather over a Kurdish hegemony in Kirkuk as well as nearby Mosul in the Ninewa governorate.18 Kurds believe

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that there is a right of return of Kurds even though the legitimization of the struggle is made possible by military force. Sunni Arabs experience the changes as a low intensity ethnic cleansing with the immanent prospect of a catastrophe. Thus, the future offers more of the same, the victims being either Kurds or Sunnis, depending on how the struggle is resolved. The victimization of minorities is perhaps nowhere more poignant than in the case of the Assyrians, who lived in Baghdad, Mosul, and villages in northwest Iraq. Assyrians, 90 percent of whom are Chaldean Christians,19 are proud of their Christian heritage as well as the fact that they speak Aramaic, the language of Jesus. They resent being identified as Arab.20 As we wrote earlier, their initial ethnic cleansing predates the American invasion of Iraq and can be traced to the period after the Iraqi invasion of Kuwait. At the time, Christian Assyrians constituted as much as 10 percent of the Iraqi population, or almost 2.5 million. After the 1991 Kuwait war, Iraqi Assyrians left in droves for Australia, Canada, and the United States. In 2003 they were still the vast majority of the 1.2 million Iraqi Christians left at the time of the American invasion. However, displacement followed violent attacks on churches and ethnic killing in August 2004. The initial flight became a panic and a rout in January 2006 after the violence that followed the Danish cartoon controversy. Baghdad, which used to have Christian and Jewish minorities even before the Muslims conquered the region in the seventh century, has become after two millennia almost a totally segregated city “cleansed” of Christians and Jews.21 In 2003, before the American-led invasion, there were also tens of thousands of Palestinians in Iraq.22 In the aftermath of the war, Palestinian neighborhoods in Baghdad were attacked by militias; there were some killings but the attacks primarily aimed to instill fear and encourage flight; they succeeded. However, many, if not most, of the Palestinians were evicted by their landlords, who were resentful at the protection given by Saddam Hussein and the low guaranteed rents. The majority left Iraq.23 In December 2006, UNHCR made a special appeal to countries to provide a humanitarian solution for Palestinians fleeing Iraq since there was resistance to giving them temporary asylum. In this whole narrative, where is there any exemplification of ethics, of a significant empathy from the West? Though there has there been a movement to support return (Refugees International, for example), though some have been forced to return,24 and though some are returning out of desperation because they are broke or their visas have expired and are returning to areas where their group is the majority,25 there is no right of return movement.

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What about resettlement? There has been a minor effort to resettle Iraqi refugees. In 2008, the Bush administration authorized twelve thousand admissions, including five hundred translators that had worked for the United States.26 At the time, Americans conveniently rationalized that these people were needed to build democracy back home and reconstruct a pluralist society. By October 2009, more than thirty thousand Iraqi refugees had settled in the United States since 2003.27 Nevertheless, given the vast size of the exodus, these are still token numbers. The international community has yet to truly recognize an obligation and responsibility to help resettle the minority populations that have fled Iraq. Canada, for example, used to be a leader in demonstrating responsibility for resettling stranded populations. Only recently has the Canadian government taken any significant initiative, but, relative to the scale of the problem, it has been a minimal effort.28 Confronting the international community’s violation of its own norms is part of the responsibility of those not in a position to take action. Iraqi parliamentary elections in 2010 underscored that ethnic discrimination under the guise of ideology and demographic manipulation, especially in Kirkuk, has become part and parcel of the election process. As was evident in Kenya, electoral politics can become a continuation of violence by other means, serving to intensify conflicts and heighten fears. The December 2005 election “institutionalised the sectarian dynamic in the streets.”29 In the absence of offsetting institutions and corrective electoral processes that reinforce cross-sectarian linkages, elections exacerbate fears, reinforce a sectarian dynamic, and reduce opportunities to participate in a res publica through civil discourse.30 No abstract set of rights or international empathy is strong enough to offset the absence of local protective mechanisms. Democracy without the just rule of law and a stable economic order becomes a mechanism for factionalism rather than unity, feeding both repression and corruption.

Georgia: Refugee Repatriation and Group Versus Individual Rights As discussed at the end of chapter 3, the August 2008 war in Georgia uprooted many new people, although the displacement of refugees in Georgia had been ongoing since the early 1990s, receiving only occasional inter-

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national attention. The war resulted in 158,000 new IDPs, about 128,000 Georgians who fled to other parts of Georgia, and some 30,000 from South Ossetia who fled to Russia after the initial Georgian attack. Immediately after Russia won the war, the Ossetians, who had fled to Russia, returned. Taken all together with the refugees from the 1990s, and depending on who is counted, there are up to 400,000 displaced.31 Georgia demanded that the IDPs and the refugees be allowed to be repatriated. Russia refused. In a nutshell the dilemma is how to assist the refugees and the IDPs to rebuild their lives. Should the refugees rebuild their lives in their old homes, that is, be repatriated? Or should the assistance be directed to help them resettle in new areas? The dilemma involves ethical and legal questions from group and individual perspectives. How do we define the stakeholders? Is it the state or ethnic collectivities, that is, Georgians, Abkhazians, Ossetians? Or are the uprooted individual refugees themselves the main stakeholders? One could imagine that all of the above categories ought to be included, but in reality each group sees its interests and rights not only as contradictory to the others, but contrary to placing a priority on individual choice. Most clearly, we can think of it as a conflict between self-determination (i.e., national rights) and various political, civil, social, and economic rights of the uprooted. Hundreds of thousands of refugees were uprooted in the Republic of Georgia as a result of regional and local conflicts, partly civil war and partly ethnic conflict. The uprooting and expulsion first took place mostly in the early 1990s, then recently in August 2008. Of those displaced, many refugees were able to return to their homes or communities, but many others could not. The most important variable that delineates those who were able to return from those who could not is their ethnic identity, that is, their status as minority or majority refugees. In the Soviet census of 1989, the population of Abkhazia, then a region in Georgia, was 525,000, of which 17.8 percent were Abkhaz, 45.7 Georgian, 14.6 Armenians, and 14.3 Russians.32 When Georgia declared independence in 1991, just before the collapse of the USSR, Abkhazia was part of the new country. Within a short period, the weak state of Georgia was subjected to a coup, a civil war, and ethnic struggle. When the separatists in Abkhazia and South Ossetia began their struggle, the central government was not in a position to respond quickly. Russia, though at a low ebb in its international power, supported the separatists in Abkhazia and South Ossetia who achieved de facto independence from Georgia.

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In the very initial stage of the war, when the Georgian army still had the upper hand, there was a widespread belief that Georgians intentionally burned down and looted Abkhaz homes and perpetrated violence, including torture and murder. The Abkhaz conventional view, supported and argued by their ethnic leadership, sees the ethnic violence as intentional and planned.33 Parallel views are held by the Georgians of the Abkhazians. This ethnic animosity quickly led to widespread ethnic conflict and expulsion, of about 250,000 Georgians (almost 40 percent of the population) from Abkhazia (in 1992 and 1993) and about 23,000 from South Ossetia. Smaller numbers of Ossetians were expelled to Russia. The region that had been multiethnic, though with a clear delineation of the ethnic groups in different localities, has become largely ethnically homogenous. How many were expelled? How many refugees and IDPs were waiting to be repatriated from the conflict in the 1990s? One estimate put the number of displaced at about 140,000 to 150,000. UNHCR cites 220,000 IDPs before the summer of 2008 (and 275,000 as persons of concern, including IDPs who returned to Gali). Some of the over 250,000 Georgians never left Abkhazia; others returned to Georgian enclaves. Certainly, the vast majority of the Georgian population disappeared from the cities or towns in Abkhazia and South Ossetia. The appearance of a multiethnic society disappeared as well. The numbers are disputed, as in so many other conflicts; each side provides statistics to substantiate its own claim. How does one count families of mixed identities, such as Abkhaz-Georgian? Still, the majority of Georgian IDPs remained displaced. Those who returned “to Gali region live in constant fear.”34 The repatriation to this border region, which was over 90 percent Georgian before the war, made the return more feasible and simply underscores how much ethnic majority, which is in reality local ethnic homogeneity, is a precondition for return. In contrast, Georgians did not return to other regions where they were or would be a minority. Even as a local majority, they returned with fear. It is worth emphasizing that the notion of minority has to be understood in the context of the postconflict demography, not in terms of the population distribution before the violence. In this case, the Georgians were the majority; after the expulsion, they became a minority. This observation has nothing to say about the justice of self-determination, and it is clear that the displacement violates the rights of the displaced. The only issue emphasized in this context is that the political reality that is cre-

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ated by the power relations among the groups is determined by the post­conflict demography. Other minorities fared differently. The Greeks, largely helped by the Greek government, were evacuated to Greece; most stayed there. Substantial numbers of Armenians and Russians escaped to Russia, where they remained, although noticeable minorities stayed. They were able to stay because they supported “the locals” politically, the Abkhaz. Abkhazians were also uprooted by the war. While the destruction left many as IDPs and large areas populated by Abkhazians empty, the region is mainly populated by the Abkhaz, who have become “the majority” and now hold power. One critical question is whether the wars involved ethnic cleansing. The criteria may include the question of central planning and of war crimes, not just the observation of who was uprooted. The documented evidence is inconclusive, but the practice is certain. Indeed, the pattern of expulsion of the Georgians as an ethnic group is repeated against other ethnicities, in Abkhazia and more recently in South Ossetia. One can hardly refer to it as anything but ethnic expulsion, intimidation, and domination. Was the 15 May 2008 General Assembly resolution a vote of confidence in an international system that supported repatriation? The vote itself can tell us much. Most countries did not participate. The miniscule support may have been read correctly by Russia and others as indicating that there is no international support for repatriation. For the outsider, the impression was that, overwhelmingly, the General Assembly vote was indifferent. Before the vote, the region had received relatively minimal international attention since 1995. Indeed, the General Assembly vote was more of a testimony to how marginal the region was, rather than of its centrality. Against this background, the local tensions and sporadic violence, together with a shift in the global power relationship, led to a new war. The Georgian government, supported by the West, misjudged its political alternatives and retaliated against local violence by initiating an open war against South Ossetia, which in turn provided the Russian Army with the pretext to attack Georgia and for the South Ossetians to expel Georgians. Initially there were many South Ossetians who fled to Russia, but they were able to quickly return. The Georgian refugees, however, had no similar option. Indeed, following the cease-fire, many Georgians in the border region were expelled by military and paramilitary Ossetians. Initially, most escaped as far as Tiblisi, the capital. But gradually, and in line with the preferences of the government and the international institutions,

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many began to relocate, mostly to the regional city of Gori, following the Russian evacuation of it. Over the years, in particular since the 2003 Rose revolution, Georgia received extensive Western support. Significantly, Western policy was to support Georgia, though not for any specific policies. This meant that even belligerent Georgian policy was backed rhetorically by the West. Conceivably, the Georgian leadership confused the rhetorical support with their hope for military aid. In August 2008, Georgia seriously miscalculated its own power and Western support, which led to the quick war with Russia. The Georgian failure was clear to external observers, as it was soundly defeated. Interestingly enough, the mood in Tiblisi following the war was one of victory. Government propaganda was working at full steam. Displaced status depends in part on the question of the legal status of the seceding regions. Do Abkhazia and South Ossetia have national selfdetermination rights? In this case, do Georgia’s belligerent approach and the Georgian population’s opposition to the Abkhaz and Ossetian secession raise legitimate security concerns for them? Or are these illegitimate rebellions that ought to lead to the question of whether only Georgia can exercise national demands? The new Georgian refugees who fled from South Ossetia in August 2008 initially numbered fifteen thousand. They are unlikely to return. Another group of Georgian refugees were displaced by the Ossetian militia from the border region and from territories south of the border occupied by the Russians. The militia and others destroyed the villages of the refugees, ensuring that physically there would be no homes to which to return. The specific feasibility of return, however, will be determined by the political situation. In places that European peacekeepers will control, it might be possible that some rebuilding may take place. There is a hefty capital investment required for the rebuilding of Georgia. The lack of political support translated into a show of financial support. The United States committed $1 billion and the European Union (in addition to individual countries) pledged over $700 million.35 Given the right political situation and priorities, the resources might be there for a partial reversal of the displacement. At the moment this is not the case. The question is, how will the international community and Georgia attend to refugee welfare?36 The deafening silence of the international community on the refugee question since the war may be as indicative as any statement.

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The war came to an end with a six-point plan presented by Sarkozy. While the draft plan called for “free access to humanitarian aid and to allow the return of refugees,” the part related to refugee return was rejected and deleted. The continued animosity may well be resolved at the international level and a political solution will establish a stable border that separates Western observers from Russian peacekeepers. However, the preferred solution to the refugee predicament may be at odds with state and international priorities in relation to Russia. Further, in areas without Western observers, Georgian refugees will unlikely return. Even in areas under OSCE or European partial control, unless the Georgians can establish a majority, they are unlikely to return. Here the example of Bosnia ought to be illuminating. In Bosnia, under the best conditions, return to mixed communities was negligible, took a long time, and involved repatriating more old people than younger ones who would build a sustained community. Instead, the preeminent question was of property reparation. We suggest it will be no different in Georgia. The international community is bent on resisting the Russian domination of the countries bordering it. If Georgia sovereignty is violated, other interventions could follow. One could imagine Finland’s attempts to join NATO facing a harsh Russian response. Within this international power play and the possibility of a renewed Cold War, the resettlement of the refugees becomes immensely important and potentially controversial. To resettle the refugees might be viewed as symbolizing the recognition by Georgia of Ossetia becoming part of Russia. The inverse—namely, maintaining the displacement of the refugees, placed in temporary shelters, in public buildings, and in dilapidated hotels—may provide a symbol that the political future is unsettled. These arguments of leaving the refugees in their current situation while providing only humanitarian aid to pressure Russia and Ossetians to settle the conflict has to be treated as a politically controversial policy.37 Even more important is its impact on the individual refugees. At times, history teaches us some simple lessons. One of them is how unlikely it is that the Georgians will return as a minority. The question, therefore, is how to protect the rights of the refugees. Preparations for relocation and resettlement are the only realistic route, given the constraints. Unfortunately, there is reason to suspect that the Georgian government will continue to use the refugees as a political football, as it has for the last fifteen years with the refugees from the earlier conflict. The government will likely insist on maintaining rather than resolving the plight of the refugees and the displaced under the pretext of refugee rights.

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This is a manipulation of rights, not a statement of a moral policy. Refugees have numerous conflicting rights, many of which are violated. Security and housing are the most obvious of these. To privilege the question of repatriation over rebuilding lives and over the right to housing focuses on the national priorities, not the individual. The challenge is to channel the international concerns to aid the refugees toward political negotiations and to limit the international relations questions, the negotiation with Russia, and the efforts to reverse the cleansing and the change of borders. The rehabilitation of the lives of refugees should not be sacrificed behind the cover of refugee rights.

Nostalgia and the Malady of Memory: Explaining Refugee Nonreturn Look at the array of factors arraigned against the principle of a right of return. There is the inchoate principle of self-determination, which is directly related to the demographic majority in a region. There are the security concerns of each ethnic group. The nature of domestic politics after an ethnic conflict, which favors ethnic nationalists, means that there will be strong resistance to return. There is the continuing lesson that facts on the ground are one key determinant of final outcomes as well as a foundation of power. These factors are compounded by the absence or weakness of political institutions domestically—whether the police, the courts, or legislative provisions—to protect minorities. There is, on the other hand, the absence of substantial, in-depth support for repatriation and the principle of return alongside the relatively small efforts at resettlement, in most cases accompanied by the hypocritical claim of burden sharing. However, these factors simply summarize our previous findings within the domestic political structures and in the international arena. There is an additional sociopsychological factor that both reinforces the predisposition of refugees to long for return and undercuts the ability to seek out new opportunities and to protest against the indifference of the world to their situation. That factor is nostalgia and the malady of memory. This is evoked by Milan Kundera in his 1990 novel, Ignorance, where the heroine, Irena, was captivated by the Great Return where “images suddenly welling up from books read long ago, from films from her own memory, and maybe from her ancestral memory: the lost son home again with his aged mother;

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the man returning to his beloved from whom cruel destiny had torn him away; the family homestead we all carry about within us; the rediscovered trail still marked by forgotten footprints of childhood; Oedipus sighting his island after years of wandering; the return, the return, the great magic of the return.”38 Kundera goes on to elaborate etymologically and explore nostalgia as “the pain of ignorance, of not knowing” and the link between ignorance, the pain of not knowing, and nostalgia of the refugee.39 In contrast to Kundera’s characters who resettle and integrate but still suffer from suppressed nostalgia, the absence of any realistic option, either of resettlement or local integration, refugees are left clinging in despair to the right of return through the imagery of life in the old home. The political rhetoric constructs both the analysis of despair and the belief in return as realistic. Conversely, the realistic analysis by refugees that they are not going to benefit from the peace process, because their interests are unrepresented, translates into a frustration that radicalizes their ranks. They hold assiduously onto the essence of the identity of a refugee not permitted to return “home.” The intangible becomes the reality. The home that is absent comes to constitute the core of their identity. No one can deprive the refugee of this intangible identity—neither the political leadership nor a bilateral agreement. The right becomes a dream. The dream is expressed in a desire to recover a complete and secure past.  No one has the right to give up the right of return.40 This imperative conveys a desire and an identity, not a political program. Nostalgia can be manifested socially and collectively in the rituals of repeating tales of “home” to unite a group with common bonds to the home territory. Separately, nostalgia can manifest itself in the anomic individual who settles, integrates in the host country, represses memories of the home country, and avoids fellow compatriots. Later, however, nostalgia reawakens longing and rears its head in personal psychological problems but with no political impact.  Umm Ali’s proverbial pain is a testimony to universal refugee suffering. Suffering, however, is easier to acknowledge than to redress. Appreciation and empathy, while recalling the loss of home, engender affect even before cognition, before a sense of loss that is deeply emotional rather than reflective and cognitive, and before a reversion to that which comes from experience, to nostalgia. Nostalgia, which literally means longing or aching (algia) to return home (nostros), is often a longing for a home that no longer exists or has never existed. It is a sentiment of loss and displacement, a longing that torments the victim focused exclusively on the past, a suffer-

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ing of a longing that cannot be soothed. Remember nostalgia? Remember remembering? Modern society both mocks nostalgia’s kitschy absurdities and indulges in it as a slogan and a marketing device. Nostalgia is all around us, a mainstay of popular culture and the media. In an academic setting, “if the past is a foreign country, nostalgia has made it the foreign country ‘with the healthiest tourist trade of all.’”41 Nostalgia when indulged in excessively may become an affliction, but, in a measured way, is a profitable industry, from tourism to memorials, from media productions to multiple ways of consumption. In contrast, historiography is international and aspires to be objective, based on a rigorous methodology and a critical but systematically logical reasoning that places a special emphasis on the written record. History understands the past through the political context of the time and the events that led up to that point. Nostalgia too employs narrative as a means of presentation, yet differs radically from history in its selectivity, in the narrowness of the interests it represents, in its preference for images and appeals to emotion, in its idolatry of places and reification of cultural practices, and primarily in its adaptation of the past to present purposes. History investigates the past. Nostalgia freezes it. History enters empathetically into the minds of various actors. Nostalgia presents one set of actors as virtuous icons to be emulated while casting another set as villains. Nostalgia reveres purity while history appreciates complexity. Nostalgia celebrates sacrifice and oppositional cultures and reifies identity. History notes how cultures play off one another, interact, and borrow from one another. History explores contingent roots. On the other hand, nostalgia creates bonds while history breeds detachment. Nostalgia makes us neighbors; history is attracted to strangers. The celebration of nostalgia is intertwined with its alter ego, suffering. Nostalgia was invented as a disease in seventeenth-century Switzerland and was rapidly exported to the rest of the continent. Among the first to be diagnosed were “various displaced people . . . .Freedom-loving students from the Republic of Berne studying in Basel, domestic help and servants working in France and Germany, and Swiss soldiers fighting abroad.”42 The real danger of nostalgia is confusing the actual home as a real object of longing with an imaginary replica, creating phantom homelands. Opium, leeches, and a return home were the preferred treatment, though, like other ailments, the cure left much to be desired. Nostalgia tormented the victim who focused exclusively on the past and who suffered from a longing that could not be soothed. Initially, it was more likely to inflict (or be

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indulged in by) the elite, but with progress and modernity, nostalgia became more democratic and spread evenly through society. It was cured as a massive affliction when converted from a disease into an enterprise that engaged the search for individual and communal roots, the obsession with antiques and historic places, and the incessant consumption of souvenirs. Nostalgia, on the one hand, is an intensive memory that fires us up with joy or pain as we relive the past. However, more than that, it also is a desire attached to a very particular and frozen narrative of that past. “For memory to function well it needs constant practice: if recollections are not evoked again and again in conversations with friends, they go. Émigrés gathered together in compatriot colonies keep retelling to the point of nausea the same stories, which thereby becomes unforgettable. But people who do not spend time with their compatriots, like Irena and Odysseus, are inevitably stricken with amnesia. The stronger their nostalgia, the emptier of recollections it become. The more Odysseus languished, the more he forgot. For nostalgia does not heighten memory’s activity, it does not awaken recollections; it suffices unto itself, into its own feelings, so fully absorbed is it by its suffering and nothing else.”43 Repressed nostalgia grows underground as it sacrifices memory. Nostalgia which becomes a ritual of repetition of the past becomes much more overtly a pathological longing. Focusing on an object of desire in the past, or on the past itself, can become as pathological as a psychoanalytical fetish. The puzzle for physicians treating individuals was how a feeling that informs the best sentiments, the longing for a cherished past, becomes a pathology. Physicians were alarmed that nostalgia erupted suddenly and could be fatal. Since no one can completely escape the melancholy of memories, as was widely recognized, how could it be prevented or cured for the few for whom it became overpowering? The onslaught of nostalgia was largely explained by an abrupt break with the past, by a loss that cannot be replaced, often resulting from a spatial (not temporal) loss, not a loss of the abstract past but rather of a place and an environment that still exists but is no longer available. The healing process was achieved through empathy, by recreating the old environment and enabling a gradual detachment. But this reclaiming was often impossible. Moreover, “true” nostalgia, it seemed, stemmed from the symptoms of the disease, not its healing: analogous to the masochist, the nostalgic wishes to protect the longing, not to resolve it. The identity of the nostalgic as a victim depends in Michael Roth’s description on a “refusal to consider any but a world lost to the past as the habitable world.”44

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Historians have described nostalgia’s relation to memory “as kitsch is to art,” or as essentially “history without guilt”: nostalgia as an “identity free lunch,” a romantic erasure of the harsh reality of history.45 Most cases of nostalgia as a disease in nineteenth-century France resulted not from the destruction of one’s home, but the desire to return to a home one left. At the communal level, nostalgia bridges the private and the national emotions, the identity of the group, and the personal and the collective memory. Svetlana Boym distinguishes between two types of nostalgia: the restorative and the reflective. The former stresses nostos and attempts a transhistorical reconstruction of the lost home. In contrast, reflective nostalgia thrives in algia, in the longing itself. Literary figures in exile, who could choose to return, delay “the homecoming wistfully, ironically, desperately,” reflecting “on the ambivalences of human longing and belonging.” These reflective, nostalgic exiles never return; at “once homesick and sick of home, they developed a peculiar kind of diasporic intimacy.” In contrast, restorative nostalgia does not recognize itself as nostalgia, but rather as truth and tradition. The past is made simultaneous to the present and transformed into melodrama. Nostalgia relies on creating a simulacrum. The reflected gaze trumps reflection; stylized and fixated fantasy replaces any verisimilitude based on scholarship and research. Refugees frequently participate in the global multifaceted attraction to restorative nostalgia.46 Characteristic of the contemporary condition, mourning is displaced for immigrants, who are “notoriously unsentimental” and who often do not engage in longing, which is left to their descendants to do. In contrast, it is not the absence of home but rather its loss that shapes the refugee response. While many refugees become immigrants who repress nostalgia when resettlement focuses energies on building a new life, for other refugees, especially those left in camps for long periods, a yearning for a different time is aggravated by confusing the actual lost home and the imaginary one built on nostalgia. In the current context, it is easy to see how these refugees embody the etiology of nostalgia: the abrupt break with the past and the desire to return to the home left behind. Carrying the memory to a new place, to new suffering, and often to a new temporary shelter that is an in-between space, they wait to resurrect the loss. It is not that the longing is wrong or that the memory is unwarranted. On the contrary, attachment is probably one of “our finest natural sentiments.” But how can “our finest natural sentiments” become a national liability?47 Indeed, it is the possibility that an excess of “fine” desires

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can lead to fatal consequences that constitutes the shared space of the “malady of memory.” Excess aspirations and unrealistic expectations can be fatal to a group if they lead to misdirected responses. While the nostalgic individual separated from the community may respond by withdrawing from life, the group may engage in an unrealistic political struggle. The result, however, may be analogous: an unhealthy, excessive attachment to the loss of home, a fantasy about an invented identity, and a history without guilt. A misplaced and unrealistic desire can become pathological when the individual tension replicates itself at the communal level. Refugees are often victims, not only of expulsion and ethnic cleansing, but also of a political discourse that imprisons them in a frame of impossible expectations that further prolong their suffering. Inflaming nostalgia in a way that aggravates the desire only leads to greater suffering. Its infliction on refugees who lack options could be construed as sinister had it not been done most often by well-meaning people. Good intentions are never a guarantee, however. Nostalgia can validate the loss and in small measures can be helpful. As the sole space of existence, as the only hope, it can become an affliction. Nostalgia as a cultural force is beneficial; in appropriate doses it almost always informs our identity. But nostalgia as a political platform can be devastating.

Conclusion We continually referred throughout the book to history and reality to contextualize and then trump abstract principle. We do not offer an alternative theory to that of a universal set of rights nor an alternative set of abstract principles to guide policy and practices. Nor do we discard rights. Instead, we propose an approach that places them within a context. Further, instead of return being rejected simply because of impracticality, we try to explain why, in cases of ethnic conflict, other solutions might theoretically as well as practically be preferred. These solutions are both short-term in the form of reparation and compensation as part of a conflict resolution and longterm in the form of programs of reconciliation. In drawing such a conclusion, we are aware of a potential misreading. In particular, our approach could be construed as whitewashing ethnic cleansing. After all, we not only draw the empirical conclusion that there has never been any significant return of minority refugees in cases of ethnic

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conflict (though we describe some exceptions), but we also recommend that the effort to foster the return of minorities to their homes after an interethnic war is a dubious effort at best and an almost certain guarantee to perpetuate—possibly for generations—the suffering of refugees (and IDPs). So it has to be stated explicitly that we adamantly abhor the evil character of ethnic cleansing. Recognizing a crime and a violation obviously is not an endorsement of it. Given this bind, what kind of policy recommendations can we offer? The most important policy change is obviously to recognize that return is unlikely and therefore to privilege prevention. Secondly, the focus has to be on settlement in the area of initial refuge, with massive international support so as not to burden the hosting country, and on resettlement, with inducements for countries to take in the refugees. Although the right of return for minorities could belong to a possible world, if not currently an actual one— a world in which moral imperatives take precedence over realpolitik and where ethnic violence is a foundation for a reconciled society—we focus on recommendations that privilege feasible policies. The theoretical divorce of moral imperatives from historical realities and contexts constructed a world in the name of what was good for refugees and the displaced, but which has perpetuated their misery. The false conjunction of “right” and “return” pose an impediment to the establishment of peace and the improvement of the well-being of the refugees and the displaced. In more direct language, what does this mean? Are we simply saying that these human rights aspirations cannot be reconciled with political realism? That states and movements espouse high moral platitudes while engaging in restrictive practices? Though we do not deny this as a description, our concern is not with moralizing present policies; rather, we aim to understand the historical background of the conflicting positions, the inadequacy of the rights foundation upon which return has been built and the explanatory forces that both prevent return and inhibit doing anything significant about it. Customary international law consists of two elements: state practice and judicial opinion. Given the lack of monetary return and the claim of it as a right, there are at least three alternative possibilities that can follow from the above analysis. One can accept that the right to return where minorities are concerned has not been implemented or, when tried, has been implemented inadequately, and then resolve to try harder and lobby for more effective support for the right. The investment in Kosovo might be one example of such determination. But although the return in Kosovo was done in the name of

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rights, it was achieved by force. Further, the returnees were a majority, not a minority, of the new political entity, and return led to substantial further population displacement, this time of Serbs and some Roma. The return in Bosnia did provide a small victory but at a very high cost, one that is noteworthy by its exceptionality and inadequacy. However, since the realization of any emergent norm will inevitably have false steps and some stumbles, this can be presented as contributing to an aspirational emergent norm. A second alternative is to accept the right of return as an ethical principle but admit that it will require special conditions for implementation and will often be trumped by other principles—the necessity of forging a peace agreement, for example. Since finding a pragmatic solution supersedes a dogmatic adherence to principle, it must be taken as understood that the principle can stand even though implementation is highly unlikely in cases of ethnic conflict. A third option is to accept the principle as a rhetorical preformative gesture intended to advance a political cause and position. As a tool in one’s bargaining arsenal, it can be effective even though, in the end, it is highly unlikely to be an item one can realize. However, agreeing to bargain for the surrender undermines its value as an important bargaining chip. There is a problem with all three positions. In pushing harder for a right of return, there usually is a cost to the refugees since it prolongs their stay in limbo. Further, the more push and the less yield, the weaker the principle seems to be. If politicians opt for pragmatism over puritanism, the principle either surrenders to compromise or transforms itself into a concessionary position and not a principle at all. Alternatively, the right of return could be asserted as a valid principle but one that cannot be implemented in cases of ethnic conflict in the broadest sense. In this sense, it is a principle that has limited application in nonethnic situations of conflict. However, in such contexts, return occurs as a matter of policy, subject to the constraints of resources and politics, but without resistance or disputes that involve the discourse of rights. Insistence on the principle of the right of return in situations where it is not needed (such as repatriating a majority) does not improve the chances of implementation where ethnic conflict is involved. It might be useful instead to develop mechanisms of compensation to ensure that they receive reparations for their lost houses and property, which will help the displaced minority settle somewhere else. The latter position is reinforced by the magnitude and diversity of refugee crises over the last century, suggesting that there can be no single and

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universal category that would enshrine the right of return as a principle applicable and enforceable in all cases. This book empirically examined numerous refugee crises and ethnic expulsions and drew a common denominator that isolated the factor of the identity of the groups involved as the key condition inhibiting return. Many refugee crises are the result of political upheaval and war and are not primarily based on identity. While this differentiation is not evident in refugee laws or policies, it is essential to understand why, in some cases, repatriation is feasible and successful, while in others the protracted conflict seems inevitable and return seems a forlorn future hope. The empirical conclusion is fairly straightforward: minority return hardly ever occurs, and when it does, it is not because of justice or rights, but because of force and politics. This is an empirical conclusion that may or may not lead to alternative policy recommendations, but it is a political reality that has to be recognized. In telling the histories of the lack of repatriation, we do not suggest that repatriation should not take place. However, we underscore that the right of return has to be viewed in its political context. The book lays out a clear methodology and a measure for evaluating the viability of repatriation. The stakes involved in the discussion of repatriation have to be clear, especially since the knowledge of the limitation of repatriation globally and historically is currently not part of the discourse. The right of return has to be disaggregated into what it means: the distinction between international norm creation, the implementation of norms domestically, and the exceptional state of refugees when it comes to demanding rights from entities of which they are not citizens. The persuasive rhetoric of the right of return as a “norm” together with the lack of resettlement opportunities has expanded the appeal and appearance of the norm of repatriation. This emerging norm has a purchase when majority repatriation is at stake, though in such cases the citation of a right seems superfluous. The right of return can only be understood as an aspiration when it comes to minority refugees, as was shown throughout the book. The aggravation of ethnic conflict, the growing secession challenges to the integrity of the state (from Kosovo to Bolivia, to Georgia and Sudan), and the failure of ethnic reintegration in societies emerging from mass violence does not provide a model of minority return and reintegration in cases of ethnic conflict. The question may be, why, in the face of empirical evidence showing that minority return does not take place, does the claim for repatriation

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remain strong? One possibility is that the information is not well known or appreciated. That is, people believe not only that repatriation as a right exists as a norm, but that it is being fulfilled. Even if this happened to be the case, which we doubt, what difference would explicating this reality and making it better known do? Would key advocacy organizations give up their advocacy? Unlikely. Many refugees are attached to the right of return for emotional, nostalgic reasons; others may be attached to the rhetoric of repatriation as a matter of false consciousness or perhaps manipulation. More important perhaps is that, as things stand today, there are insufficient viable alternatives. Whatever the motive, we do not believe that the right of return is simply a dogmatic principle or that being aware of the empirical state of nonreturn will dramatically change the advocates’ discourse of return. The argument for rights is most often a reflection of the strength and power of group identity. The rights discourse as a political rhetoric from this perspective is powerful in its own way. The right of return is denied most often when it is in conflict with the right of self-determination. Both rights can and often are understood as group rights, but repatriation is viewed also as an individual right. This predicament between resolving the violation as it applies to the individual (overcoming the displacement through either repatriation or resettlement) or the group (through self-determination and repatriation) leaves the impression of negating or ignoring rights. In contrast, the political analysis shows that self-determination often dominates the political situation to the detriment of individual rights. This is true concerning other issues such as determining the borders of states. It is more a question of which rights supersede and are pursued with vigor than of the denial of rights. Refugees continue to suffer displacement in cases where their individual rights are subject to the long-term self-determination aspirations or other goals of the group. Serb refugees in Serbia, for example, maintain their status because of interstate political disputes and struggles over property, as well as expectations of EU membership. The Palestinian refugees have been treated by all parties to the conflict as surrogate to the question of Palestinian self-determination and the Arab-Israeli conflict. In conclusion, we believe that the suffering of refugees would diminish if their individual rights would be prioritized or at least treated in parity to national aspirations. In cases where there is no foreseeable political solution to a conflict that will include minority repatriation, another solution, beyond provisional humanitarian aid, should be found. While there is little

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doubt that many advocates among the refugees prefer the national sacrifice to keep the self-determination flame burning, the international community should develop other real alternatives for the refugees. In the Palestinian case, one could argue that the violent resistance did advance the claim for self-determination, though only on part of the land of Palestine. Yet it is unlikely that either the resistance and self-determination struggle or the adherence to a belief in the right of return improved the refugee situation. Recognizing that alternative rights and norms compete with each other and that the refugee communities have at best an imperfect mechanism to express their political position, providing a humanitarian solution through resettlement would enable the refugees as individuals to resolve their own suffering without being drafted into the nationalist perspective that demands repatriation to homes instead of repatriation to majority areas or settlement elsewhere. Many would no doubt not take up the opportunity to return to a majority area and would even remain committed to the cause, but many others would resettle, diminishing the suffering of protracted refugee displacement. And diminishing the suffering of refugees in protracted displacement is our priority.

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Notes

1. The Rites of Rights 1. UNHCR,” The Refugee Story in Statistics,” http://www.unhcr.org/pages/ 49c3646c4d6.html. 2. The treaty provided for the repatriation of 600,000 Tamils to India and the naturalization of 375,000 other Indian Tamils in Sri Lanka. There were 200,000 cases pending when India suspended the repatriation in 1982. By 2003, the number of stateless Tamils in Sri Lanka had grown back up to 300,000 when the government of Sri Lanka agreed to integrate them and extend the 1988 Grant of Citizenship of Stateless Persons Act to permit additional naturalizations. Jayasekara c. Canada (Ministre de la citoyenneté et de l’immigration), 2008 CF 238, [2008] 3 R.C.F. D-2, Canada: Federal Court, 21 February 2008, http://www.unhcr.org/refworld/docid/48ecd4c32.html  (accessed 2 August 2010). See also UNHCR, “Statelessness: Major Progress in Sri Lanka, Nepal, and Bangladesh,” Briefing Notes, 25 September 2007, http://www.unhcr. org/46f8e3804.html; and UNHCR, “Statelessness: An Analytic Framework for Prevention, Reduction, and Protection,” 1 February 2009, http://www.unhcr.org/49a271752.html. 3. Annex 7 of the Dayton Agreement, The Agreement on Refugees and Displaced Persons, provided for the return of IDPs and refugees. However, Charles Philpott argues that “the greatest factor in seeing the process through to the end was

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260 Notes the shift from a process that focused primarily upon ethnically-linked ‘return,’ sometimes at the expense of individual property rights, to one that was driven primarily by the recognition of property rights and the rule of law. . . . Shifting away from the emphasis on ‘return’ removed a subjective element from implementation and, combined with greater emphasis on the ‘rule of law,’ narrowed the scope for the system to be manipulated and thwarted. This, thereby, de-politicised restitution.” By 2006, over 90 percent of the 211,871 claims for the restitution of real property made by internally displaced persons (IDPs) and refugees had been resolved. Charles B. Philpott, “From the Right to Return to the Return of Rights: Completing Post-War Property Restitution in Bosnia Herzegovina,” International Journal of Refugee Law 18, no. 1 (2006): 30–80. 4. UDHR, http://www.un.org/en/documents/udhr. 5. Cf. part 3, article 12, paragraph 4 of the International Covenant on Civil and Political Rights (ICCPR) of 16 December 1966, entered into force 23 March 1976, www2.ohchr.org/english/law/ccpr.htm: “No one shall be arbitrarily deprived of the right to enter his own country.” 6. http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf. 7. http://www2.ohchr.org/english/law/refugees.htm. For a discussion of this phrase, see documents E/1703 and add. 1 to 7, 6 December 1966, The United Nations High Commissioner for Refugees, Prince Sadruddin Aga Khan, untreaty.un.org/cod/avl/ha/prsr/prsr.html. 8. For example, http://www.unhcr.org/refworld/docid/4794c1832.html. 9. Cf. Marjoleine Zieck, UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis (The Hague: Martinus Nijhoff, 1997). This official shift to subsuming voluntary repatriation under the right of return is linked to UNHCR’s Handbook on Voluntary Repatriation (Geneva: UNHCR, 1996), 7, and can be traced back to UNHCR’s draft document of September 1993, “Protection Guide on Voluntary Repatriation.” 10. Amnesty International, Bhutan: Nationality, Expulsion, Statelessness and the Right To Return, a report, index number: ASA 14/001/2000, 1 September 2000, http://www.amnesty.org/en/library/info/ASA14/001/2000/en. 11. Section 21.1, http://reliefweb.int/rw/lib.nsf/db900SID/ASAZ-7F4JCM? OpenDocument. 12. “Restitution and free exercise of property rights are the key preconditions for repatriation of refugees and a solid basis for integration.” The Republic of Serbia Commissariat for Refugees, “Situation and Needs of Refugee Population in the Republic of Serbia,” December 2008, 7. 13. For the effort of Human Rights Watch to square the circle, see Human Rights Watch, “Human Rights Watch Policy on the Right to Return,” http://www.hrw. org/campaigns/israel/return.

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261 Notes 14. Rony Brauman, “Refugee Camps, Population Transfers and NGOs,” in Hard Choices: Moral Dilemmas in Humanitarian Intervention, ed. Jonathan Moore (Latham: Rowan & Littlefield, 1998); Danny Warner, “The Politics of the Political/Humanitarian Divide,” International Review of the Red Cross 31, no. 3 (1999): 109–118; Fiona Terry, Condemned to Repeat? The Paradox of Humanitarian Action (Ithaca, NY: Cornell University Press, 2002); Sarah Kenyon Lischer, “Collateral Damage: Humanitarian Assistance as a Cause of Conflict,” International Security 28, no. 1 (Summer 2003): 79–109. 15. The concept originated in a classic of refugee literature, Aristide R. Zolberg, Astri Suhrke, and Sergio Aguayo, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (New York: Oxford University Press, 1989). See Howard Adelman, “Why Refugee Warriors Are Threats,” The Journal of Conflict Studies 18, no. 3 (Spring 1998): 49–69. 16. UNRWA is the largest UN employer, with over thirty thousand employees, 99 percent of whom are locally recruited Palestinians. UNRWA Public Information Office, “UNRWA In Figures: Figures as of 31 January 2007,” http://www. un.org/unrwa/publications/pdf/uif-dec07.pdf. 17. UNHCR is governed by a 1951 Convention and subsequent 1967 Protocol relating to the (Legal) Status of Refugees; Resolution 2198 (XXI) of the UNGA founding UNHCR entered into force on 22 April 1954. 18. The 1945 border stability is only relative to that of 1919. The physical borders in Eastern Europe changed, but no new countries were established. 19. Erika Feller, Volker Türk, and Frances Nicholson, eds., Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge: Cambridge University Press, 2003). 20. Michael R. Marrus, The Unwanted: European Refugees in the Twentieth Century (New York: Oxford University Press, 1985), 330; Alfred M. De Zayas and Charles M. Barber, A Terrible Revenge: The Ethnic Cleansing of the East European Germans, 1944–1950 (New York: St. Martin’s Press, 1985). 21. The literature on various genocides is growing exponentially and is beyond our scope here. On Biafra, see Alfred Obiora Uzokwe, Surviving in Biafra: The Story of the Nigerian Civil War (Lincoln, NE: iUniverse, 2003). On Cambodia, see Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia Under the Khmer Rouge, 1975–79 (New Haven: Yale University Press, 1996). 22. James Bissett, “Canada’s Asylum System: A Threat to American Security?” Center for Immigration Studies, May 2008, http://www.cis.org/articles/2002/ back402.html. 23. Though not to our knowledge verified by research, this widespread belief that further resettlement opportunities acted as a magnet was articulated very early

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262 Notes by John Rogge in a 1991 article, “Refugees in Southeast Asia: An Uncertain Future,” The Canadian Geographer 35, no. 2 (1991): 190–193. 24. Howard Adelman, “Repatriation of Refugees Following the Signing of Peace Agreements: A Comparative Study of the Aftermath of Peace in Fourteen Civil Wars,” in Thematic Issues in Peace Agreements Following Civil Wars, eds. Stephen Stedman et al. (Boulder, CO: Lynne Rienner Publishers, 2002). 25. UN Security Council, Report of the Secretary-General on His Mission of Good Offices in Cyprus, S/2003/398, 1 April 2003, paragraph 108. 26. Ibid.

2. The Right to Expel as an International Norm: 1900–1945 1. Vic Ullom, “Voluntary Repatriation of Refugees and Customary International Law,” Denver Journal of International Law and Policy 29, no. 2 (Spring 2001): 115–150. 2. John Quigley, “Mass Displacement and the Individual Right of Return,” British Year Book on International Law 68 (1997): 67–82. 3. Second International Peace Conference, The Hague, 1907. Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1991), argues that article 49 of the Fourth Geneva Convention lacked any precedents or antecedents in The Hague Regulations. 4. Jean Pictet, ed., Commentary to the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: International Committee of the Red Cross, 1958), 279. 5. The Israelites were not unfamiliar with the practice and carried vengeance (“remember what Amalek did to you”) into a policy: “you shall blot out the memory of Amalek from under heaven.” Deuteronomy 25:17–19. 6. Eric D. Weitz, A Century of Genocide: Utopias of Race and Nation (Princeton: Princeton University Press, 2003); Ben Kiernan, Blood and Soil: A World History of Genocide and Extermination from Sparta to Darfur (New Haven: Yale University Press, 2007). 7. On 26 February 2007, the International Court of Justice ruled that, although Serbia was not directly responsible for the slaughter of eight thousand Bosnian Muslims, which the Court characterized as a genocidal massacre, Serbia failed to act to prevent the genocide. 8. Sidney L. Haring, “Herero,” in Encyclopedia of Genocide and Crimes Against Humanity, eds. Dinah L. Shelton et al. (New York: Macmillan Reference, 2005), 436–438.

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263 Notes 9. John Hope Simpson, The Refugee Problem: Report of a Survey (Oxford: Oxford University Press, 1939); see Ari Zolberg, Astri Suhrke, and Sergio Aguayo, Escape from Violence Conflict and the Refugee Crisis in the Developing World (New York: Oxford University Press, 1989); Norman M. Naimark, Fires of Hatred: Ethnic Cleansing in Twentieth-Century Europe (Cambridge, MA: Harvard University Press, 2001). 10. The Carnegie Endowment for International Peace, Report Of The International Commission To Inquire Into The Causes And Conduct Of The Balkan Wars (Washington, DC: Carnegie Endowment, 1914). 11. Ibid., 148–149. 12. Ibid., 157–158. 13. This supplemental agreement to the September 1913 Peace Treaty between Bulgaria and Turkey, the Treaty of Constantinople, 16–29 September 1913, envisioned a commission to adjudicate property claims of refugees that never materialized because of the outbreak of World War I. See Erik-Jan Zürcher, “Greek and Turkish refugees and deportees 1912–1924,” January 2003, http:// www.transanatolie.com/english/Turkey/Turks/Ottomans/ejz18.pdf. See also N. Muir, “The Present Position of Bulgaria,” Journal of the Royal Institute of International Affairs 6, no. 2 (March 1927): 88–104; Stephen P. Ladas, The Exchange of Minorities: Bulgaria, Greece and Turkey (New York: Macmillan, 1932), 18–20. 14. Stephen P. Ladas, The Exchange of Minorities, 76–92; Joseph B. Schechtman, European Population Transfers 1939–1945 (New York: Oxford University Press, 1946), 155–156, 407–408; Dimitri Pentzopoulos, The Balkan Exchange of Minorities and its Impact Upon Greece (Paris: Mouton & Co., 1962), 60, which is based on Ladas, 122–123. 15. Emigration since World War II mostly affected non-Bulgarians. About half a million Turks left the country, 155,000 having been expelled between 1949 and 1951 and a further three hundred thousand or more having emigrated in 1989. The settlement of the refugees took years and many remained in camps for a very long time. 16. Simpson, The Refugee Problem, 17. 17. Convention Concerning the Exchange of Greek and Turkish Populations, Signed at Lausanne, 30 January 1923. 18. “Mixed Commission Decides Against Turks; Holds That Thousands Of Greeks In Constantinople Cannot Be Expelled,” New York Times 8 September 1924. 19. Jacob Robinson et al., Were the Minorities Treaties a Failure? (New York: Institute of Jewish Affairs of the American Jewish Congress and the World Jewish Congress, 1943), 57, quoted in Catriona Drew, “The Right of Self-Determination: The Untold Story of Population Transfer” (lecture presented at Har-

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264 Notes vard University Law School, part of Global Fellows Forum, Cambridge, MA, 4 October 2006). See also Naimark, Fires of Hatred, 18: “The Greco-Turkish Exchange Convention was endowed with all the international legal trappings of its day—a Mixed Commission with quasi-judicial powers and procedures, whose proceedings led to an Advisory Opinion from the Permanent Court of International Justice.” 20. Palestine Royal Commission Report (“Peel Commission”), chapter 22, paragraph 40, quoted in Drew, “The Right of Self-Determination.” 21. Ladas, The Exchange of Minorities, 341. 22. John Hope Simpson, “The Work of the Greek Refugee Settlement Commission,” Journal of the Royal Institute of International Affairs 8, no. 6 (1929): 583– 604. 23. Reported by E. S. Williams; See Simpson, “The Work of the Greek Refugee Settlement Commission,” 593. 24. Timothy Snyder, “Holocaust: The Ignored Reality,” New York Review of Books 56, no. 12 (July 16, 2009). 25. Lithuania and the Soviet Union in conjunction with the peace treaty signed a Refugee Return Treaty (12 July 1920), the Treaty of Riga (Polish-Soviet), which included extensive protocols regarding refugees (11 August 1920). By 1925, 1,265,000 Polish citizens were repatriated from the Soviet Union (most returned between 1919 and 1922). Nick Baron and Peter Gatrell, “Population Displacement, State-building, and Social Identity in the Lands of the Former Russian Empire, 1917–23,” Kritka: Explorations in Russian History 4, no. 1 (2003): 51–100. 26. Patrick Murphy Malin, “The Refugee: A Problem for International Organization,” International Organization 1, no. 3 (1947): 443–459. 27. Yuri Slezkine, “The USSR as a Communal Apartment, or How a Socialist State Promoted Ethnic Particularism,” Slavic Review, 53, no. 2 (Summer, 1994): 414– 452. 28. Catriona Drew, “Population Transfer: The Untold Story of Self-Determination” (lecture presented at Harvard Law School, Human Rights Program, 2007). 29. See Skran, Refugees in Inter-War Europe, 85–87. 30. William D. Eggers, “Guidelines for Aid to the Soviet Union,” Backgrounder #856, The Heritage Foundation, 23 September 1991, http://www.heritage.org/ research/russiaandeurasia/bg856.cfm; J.  D. Smele, “White Gold: The Imperial Russian Gold Reserve in the Anti-Bolshevik East, 1918–? (An Unconcluded Chapter in the History of the Russian Civil War),” Europe-Asia Studies 46, no. 8 (1994): 1317–1347. 31. Carole Fink, Defending the Rights of Others: The Great Powers, the Jews, and International Minority Protection, 1878–1938 (New York: Cambridge University Press,

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265 Notes 2006), 28. The Treaty of Berlin, signed by the seven Great Powers on 13 July 1878, contained among its sixty-six articles eleven that dealt with religious freedom and civil and political rights in the Balkans, Romania, and the Ottoman Empire. These were not general principles but specific statements. The notion of rights did not exist; the focus instead was on delegitimizing discrimination. 32. Helmer Rosting, “Protection of Minorities by the League of Nations,” The American Journal of International Law 17, no. 4 (1923): 641–660. 33. League of Nations, Report by Dr. Nansen on the Repatriation of the Prisoners of War, R1703/42/22952/5213, submitted to the Council of the League of Nations on 1 September 1922, approved by the Fifth committee and presented to the Assembly of the League of Nations (20 September 1922) and approved by resolution by the Assembly on 22 September 1922 (Geneva: League of Nations Archives, 1922). 34. League of Nations, Correspondence of Dr. Nansen with Representatives of the Greek Government Concerning Repatriation of Greek Juveniles and Bulgarian Prisoners of War, R1702/42/6188/4755 (Geneva: League of Nations, 1920). The League of Nations document, Arrangement Relating to the Issue of Identity Certificates to Russian and Armenian Refugees, of 12 May 1926, defined a refugee as an individual with a national origin no longer enjoying the protection of a national government but who had not acquired another nationality, that is, stateless Russians and Armenians. 35. Christian A. R. Christensen, Fridtjof Nansen: A Life in the Service of Science and Humanity (Geneva: UNHCR, 1961). 36. Simpson, “The Refugee Problem,” 2–3. James C. Hathaway, “The Evolution of Refugee Status in International Law: 1920–1950,” The International and Comparative Law Quarterly 33, no. 2 (April 1984): 348–380. 37. League of Nations, Convention Relating to the International Status of Refugees, Geneva, 28 October 1933. 38. Giorgio Agamben, Homo Sacer: Sovereign Power or Bare Life, trans. Daniel Heller-Roazan (Stanford: Stanford University Press, 1998). 39. Claudena M. Skran, Refugees in Inter-War Europe: the Emergence of a Regime (Oxford: Clarendon University Press, 1995). 40. Ruud Lubbers, “Refugee Protection in the 21st Century,” International Law 24, no. 1 (Spring 2002), http://hir.harvard.edu/articles/972/. 41. S. Adler-Rudel, “The Evian Conference and the Refugee Problem,” in Leo Baeck Institute Year Book XIII: Jews Amidst Political Turmoil (London: Leo Baeck Institute, 1968); Henry Feingold, The Politics of Rescue: The Roosevelt Administration and the Holocaust, 1938–1945 (New Brunswick, NJ: Rutgers University Press, 1970); Michael R. Marrus, The Unwanted: European Refugees from the First World War Through the Cold War (Philadelphia: Temple University Press, 1985); Lou-

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266 Notes ise London, Whitehall and the Jews, 1933–1948: British Immigration Policy, Jewish Refugees and the Holocaust (Cambridge: Cambridge University Press, 2000). 42. Joseph B. Schechtman, European Population Transfers, 1939–1945 (New York: Oxford University Press, 1946). 43. Simpson, The Refugee Problem, 521. 44. Omer Bartov, The Eastern Front, 1941–45: German Troops and the Barbarization of Warfare (New York: St. Martin’s Press, 1986); Hitler’s Army: Soldiers, Nazis and War in the Third Reich (New York: Oxford University Press, 1991). 45. Timothy Snyder, “Holocaust: The Ignored Reality” New York Review of Books, 16 July 2009. 46. George Ginsburgs, “The Soviet Union and the Problem of Refugees and Displaced Persons 1917–1956,” The American Journal of International Law 51, no. 2 (April 1957): 325–361.

3. Outlawing Ethnic Cleansing 1. Joseph B. Schechtman, Postwar Population Transfers in Europe 1945–1955 (Philadelphia: University of Pennsylvania Press, 1962); Michael R. Marrus, The Unwanted: European Refugees from the First World War Through the Cold War (New York: Oxford University Press, 1985; Andrew Bell-Fialkoff, Ethnic Cleansing (New York: St. Martin’s, 1996); Robert K. Schaeffer, Warpaths: The Politics of Partition (New York: Hill & Wang, 1990). 2. Earl G. Harrison reported to President Truman in August 1945 that, in Germany and Austria, there were “more than six million [non-German] displaced persons.” (Earl G. Harrison to President Harry S. Truman, “The Treatment of Displaced Jews in the United States Zone of Occupation in Germany, 1945,” http://www. ibiblio.org/pha/policy/1945/450929a.html.) See Mark Wyman, DPs: Europe’s Displaced Persons, 1945–1951 (Ithaca, NY: Cornell University Press, 1998); Tony Judt, Postwar: A History of Europe Since 1945 (New York: Penguin, 2005), 22–32. 3. Herbert Hoover and Hugh Gibson, The Problems of Lasting Peace (Garden City, NY: Doubleday, 1942), 235–236. 4. Winston Churchill quote appears in several sources, including Krystyna Kersten, “Forced Migration and the Transformation of Polish Society in the Postwar Period,” in Redrawing Nations: Ethnic Cleansing in East-Central Europe, 1944–1948, eds. Philip Ther and Ana Siljak (Lanham, MD: Rowan & Littlefield, 2001). 5. Article XII of the Potsdam Declaration. See Ana Siljak in her concluding essay and Mark Kramer in the introduction to Ther and Siljak, Redrawing Nations, each noting both the peace and the cost of ethnic cleansing.

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267 Notes 6. Christopher Kopper, “The London Czech Government and the Origins of the Expulsion of the Sudenten Germans,” in Vardy and Tooley, Ethnic Cleansing, 157–163. 7. Albania, Australia, Belgium, Canada, Denmark, etc. “Agreement on Reparation from Germany, on the Establishment of an Inter-Allied Reparation Agency and on the Restitution of Monetary Gold,” Paris, 14 January 1946, paragraph A, http://untreaty.un.org/unts/1_60000/16/22/00031097.pdf. 8. Elazar Barkan, The Guilt of Nations (New York: W.W. Norton, 2000); Timothy W. Ryback, “Dateline Sudetenland: Hostages to History,” Foreign Policy 105 (Winter 1996): 162–178; Mark Cornwall, “‘National Reparation’? The Czech Land Reform and the Sudeten Germans 1918–38,” Slavonic & East European Review 75 (1997): 259–280. 9. See Pertti Ahonen, After the Expulsion: West Germany and Eastern Europe, 1945–1990 (Oxford: Oxford University Press, 2003), 24–43. 10. Barkan, The Guilt of Nations; Elazar Barkan and Alexander Karn, eds., Taking Wrongs Seriously: Apologies and Reconciliation (Stanford: Stanford University Press, 2006). 11. British and Foreign State Papers, 144, 1072, quoted in ECOSOC, The Human Rights Dimensions of Population Transfer, ECOSOC, 1994, 25/07/1994, E/ DEC/1994/272. This document was a redraft of the preliminary working paper prepared by Ms. Claire Palley. (E/CN.4/Sub.2/1992/WP.1). 12. See article 6(b) of the Charter of the International Military Tribunal; International Military Tribunal, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 1945–1946, vol. 1. (London: H.M. Stationery Office, 1947–49), 11, http://www.loc.gov/rr/frd/Military_Law/NT_ major-war-criminals.html. Alfred M. de Zayas, “International Law and Mass Population Transfers,” Harvard International Law Journal 16, no. 2 (Spring 1975): 214. 13. Telford Taylor, the American Assistant Prosecutor at the International Military Tribunal and Chief Prosecutor at the twelve Nuremberg trials under American jurisdiction, in his reflections on those trials, claimed them a success in that the United Nations General Assembly Resolution of 11 December 1946 “affirmed the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal.” Telford Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir (New York: Alfred Knopf, 1992), 634. 14. Ibid., 539. 15. I. Brownlie, International Law and the Use of Force (Oxford: Clarendon Press, 1963), 408.

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268 Notes 16. Alfred M. de Zayas, Nemesis at Potsdam: The Expulsion of the Germans from the East (Lincoln, NE: University of Nebraska Press, 1989); originally published by Routledge in 1977, based on a 1975 article, “International Law and Mass Population Transfers,” Harvard International Law Journal 16: 207–258. 17. Michael Mann, The Dark Side of Democracy: Explaining Ethnic Cleansing (New York: Cambridge University Press, 2005). 18. The Fourth Geneva Convention of 1949. The first three of the Geneva Conventions discuss the treatment of victims of war. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, adopted 12 August 1949, www.unhcr.org/refworld/docid/3ae6b36d2.html (also www.un-documents.net/ gc-4.htm) The Fourth Geneva Convention was based on parts of the 1907 Hague Convention. 19. Jean S. Pictet, ed., Commentary to the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: International Committee of the Red Cross, 1958), 279. 20. Paragraph 141 of the UN Economic and Social Council, Freedom of Movement: Human Rights and Population Transfer, final report prepared by A. S. Al-Khasawneh, E/CN.4/Sub.2/1997/23, 27 June 1997, http://www.unhchr.ch/Huridocda/Huridoca.nsf/. 21. Fourth Geneva Convention, part III: Status and Treatment of Protected Persons, section III: Occupied Territories. 22. The Human Rights Dimensions of Population Transfer, a report submitted in 1993 to the UN Economic and Social Council, refers to the “New Delhi Accord” between India and Pakistan, which sought to regulate the population transfer between India and Pakistan and the chaos that accompanied these exchanges, “as a formal recognition of a fait accompli, not as evidence of the use of law to enforce transfer.” The report also offers alternative legal views on the legality of the Volkdeutsche transfer. 23. “The commentary states that this clause was adopted ‘to prevent a practice adopted during the Second World War by certain Powers which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.” Pictet, Commentary to the IV Convention, 283. There is no exception clause to this last prohibition. Quoted in ECOSOC, Freedom of Movement, paragraphs 163–164. 24. International Commission of Jurists (ICJ), The Events in East Pakistan (Geneva: ICJ, 1971); Niall Macdermot, “Crimes Against Humanity in Bangladesh”, ICJ Review 11 (1973): 29.

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269 Notes 25. Fourth Geneva Convention, paragraph 141. 26. Malcolm Jarvis Proudfoot, European Refugees, 1939–52: A Study in Forced Population Movement (London: Faber & Faber, 1957), 80. (See map and bibliography.) 27. An expression used by Richard Goldstone with respect to the intervention in Kosovo in 1999 is apt. Cf. the Independent International Commission on Kosovo: The Kosovo Report chaired by Justice Richard Goldstone, http://www.reliefweb. int/library/documents/thekosovoreport.htm. 28. For a more detailed account of the Arab efforts to keep the Jews from moving to Palestine via the debates over the IRO constitution and in the United Nations, see Jacob Robinson, Palestine and the United Nations (Westport, CN: Greenwood Press, 1947) and chapter 2 and chapter 7 of this book. 29. International Refugee Organization, Constitution of the International Refugee Organization, adopted 15 December 1946, entry into force 20 August 1948, http://www.yale.edu/lawweb/avalon/decade/decad053.htm. 30. For a discussion of the application of the article to the postcommunist period, see Maria M. Kovacs, “Standards of Self-Determination and Standards of Minority-Rights in the Post-Communist Era: A Historical Perspective,” Nations and Nationalism 9, no. 3 (2003): 433–450. 31. Claire Palley, “Population Transfers,” in Broadening the Frontiers of Human Rights: Essays in Honour of Asbjørn Eide, ed. Donna Gomein (Oslo: Scandinavian University Press, 1993), 229. 32. ECOSOC, The Human Rights Dimensions of Population Transfer, preliminary report prepared by Mr. A. S. Al-Khasawneh and Mr. R. Hatano, 6 July 1993, http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/683f547c28ac7858802567 66004ecdef?Opendocument. 33. Aristde Zolberg, Astri Suhrke, and Sergio Aguayo, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (New York: Oxford University Press, 1989). 34. John Hope Simpson, “The Refugee Problem: Report of a Survey,” International Affairs 18, no. 2 (1939): 227–296. 35. United Nations Office for the Coordination of Humanitarian Affairs (OCHA), Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2, 11 February 1998, http://www.reliefweb.int/ocha_ol/pub/idp_gp/idp.html. 36. The formal numbers for 2008 are included in UNHCR’s 2008 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons (Geneva: UNHCR, 2009) that indicates that the number of individuals of concern to UNHCR had risen sharply over the last several years. http://www. unhcr.org/4a375c426.html

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270 Notes 37. “2010 UNHCR country operations profile—Iraq,” http://www.unhcr.org/cgibin/texis/vtx/page?page=49e486426#. 38. See the 1993 Vienna Declaration and Programme of Action (UN doc. A/ CONF157/23). UNHCR declared 1992 the “Year of Voluntary Repatriation.” Mrs. Ogata, the then UN High Commissioner for Refugees, “reaffirmed her determination to pursue every opportunity in 1992 for voluntary repatriation as the preferred solution to refugee problems,” www.unhcr.org/refworld/docid/ 3ae68cd314.html. See also UN High Commissioner for Refugees, Discussion Note on Protection Aspects of Voluntary Repatriation, 1 April 1992, EC/1992/SCP/ CRP.3, http://www.unhcr.org/refworld/docid/3ae68cd314.html. 39. Howard Adelman, “Repatriation of Refugees Following the Signing of Peace Agreements: A Comparative Study of the Aftermath of Peace in Fourteen Civil Wars,” in Stephen Stedman et al., Thematic Issues in Peace Agreements Following Civil Wars (Boulder: Lynne Rienner Publishers, 2002). 40. UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, GA Resolution 2106(XX), adopted 21 December 1965, entry into force 4 January 1969, article 5d (ii), www.un.org/documents/ga/res/20/ares20.htm. 41. Organization of African Unity, African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entry into force 21 October 1986, article 12(5), http:// www.hrcr.org/docs/Banjul/afrhr.html. 42. Ibid., article 12(2). 43. Organization of American States, American Convention on Human Rights, adopted 22 November 1969, entry into force 18 July 1978, article 22(5), http:// www1.umn.edu/humanrts/oasinstr/zoas3con.htm. 44. UNGA, Universal Declaration. 45. UNGA, ICCPR. 46. Alfred M. de Zayas, “International Law and Mass Population Transfers,” 207. His call remained unanswered. 47. ECOSOC, The Human Rights Dimensions of Population Transfer, 6 July 1993. 48. The repatriation of Bosnians from Germany might be interpreted as an exception (see chapter 4). 49. Maria Stavropoulou, “The Right Not to Be Displaced,” The American University Journal of International Law and Policy 9 (1994): 689–717. 50. ECOSOC, The Human Rights Dimensions of Population Transfer, 6 July 1993. 51. UN General Assembly, Rome Statute of the International Criminal Court, adopted 17 July 1998, article 7: Crimes Against Humanity, http://untreaty.un.org/ cod/icc/statute/romefra.htm. 52. UN Security Council, Resolution 892, adopted 22 December 1993.

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271 Notes 53. UN Security Council, Resolution 971, adopted 12 January 1995. 54. John Quigley, “Displaced Palestinians and a Right of Return,” Harvard International Law Journal 39, no. 1 (1998): 171–188. 55. UN Security Council, Resolution 993, adopted 12 May 1995. 56. http://www.un.org/News/Press/docs//2008/ga10708.doc.htm.

4. Reversing Ethnic Cleansing 1. Office of the High Representative, 24th Report for Implementation of the Peace Agreement to the Secretary-General of the United Nations, 12 October 2002–31 August 2003, clause 45. The Balkans Report No. 137 entitled The Continuing Challenge of Minority Return in Bosnia & Herzegovina, International Crisis Group (13 December 2002), claimed that 367,000 Bosnians “‘voted with their feet’ against partition and returned to live as ‘minorities’ in areas governed by former foes” (2). http://www.crisisgroup.org/en/regions/europe/balkans/ bosnia-herzegovina/137-the-continuing-challenge-of-refugee-return-in-bosniaherzegovina.aspx. 2. Michael Ignatieff, Virtual War: Kosovo and Beyond (New York: Picador, 2001), 15.3. Ibid., 96. See also ibid., 112 and 161. See also, for example, Marcus Tanner, “War in the Balkans: Dying, as the West Bickers,” The Independent (London), 6 April 1999. 4. Carlotta Gall, “Kosovo War Over, Gypsies Are Left Amid Vengeful Neighbors,” New York Times, 11 July 1999. 5. “Most of the Serb populations in the municipalities of Pec, Prizren, Urosevac, and Istok have fled their homes, as have large numbers from Pristina and the town of Gnjilane. In the town of Obilic, which had a preconflict Serb population of 5,000, only some 1,000 Serbs remain. Serbs displaced inside Kosovo are mostly concentrated in Serb majority villages and towns such as Kosovo Polje, Dobratin (Lipljan/Liplan municipality), Gracanica (Pristina municipality), Velika Hoca (Orahovac/Rahovec municipality), and Gorazdevac (Pec/Peje municipality).” Human Rights Watch, Federal Republic of Yugoslavia: Abuses Against Serbs and Roma in the New Kosovo (New York: HRW, 1999), http:// www.hrw.org/reports/1999/kosov2/. 6. John Shattuck, “Prospects of Peace with Justice in Bosnia” (transcript of US Department of State Dispatch, 19 February 1996). 7. The Commission for Real Property Claims of Displaced Persons and Refugees (CRPC), Dayton Peace Agreement, annex VII, Book of Regulations, states the terms of the DPA: www.state.gov/www/regions/eur/bosnia/bosagree.html.

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272 Notes Cf. the account by the Senior Protection Officer, United Nations Protection Capacity (ProCap) on deployment to UNHCR, Bosnia and Herzegovina. Erin Mooney, “Securing Durable Solutions for Displaced Persons in Georgia: the Experience of Bosnia and Herzegovina,” paper presented at the conference, “Conflict and Migration: the Georgian-Abkhazian Case in a European Context, Istanbul, 18–19 June 2008: www.internal-displacement.org/.../Bosnia+ Georgia+conf+paper+Mooney+080618.pdf. Erin Mooney presents empirical evi­dence that corresponds to the description here. Despite the evidence, she believes that further social engineering in a number of areas could alter these results. This represents the dilemma we underscore when a Senior Protection Officer of the United Nations presents a proposal for “durable” solution by drawing on the experience of a failed protection. 8. B. S. Chimni, “Post-Conflict Peace Building and the Return of Refugees: Concepts, Practices, and Institutions,” in Refugees and Forced Displacement: International Security, Human Vulnerability, and the State, eds. E. Newman and J. van Selm (Tokyo: United Nations University Press, 2003), 195–220. 9. See CRPC, http://www.law.kuleuven.ac.be/ipr/eng/CRPC_Bosnia/CRPC/new/ en/main.htm. 10. GFAP, annex 7, article 12(5) explicitly states that “the Commission shall have the power to effect any transactions necessary to transfer or assign title, mortgage, lease, or otherwise dispose of property with respect to which a claim is made, or which is determined to be abandoned.” The provision goes even further. The Commission can assume from the holder of the certificate the right to itself engage in sales, rentals, and leases provided the holder of the property has been compensated or where the property has been determined to have been abandoned—that is, no claim, under the terms of making such claims, for the restoration of property rights has been filed, either because the owner is now dead or because the owner neglected to make such a property claim. 11. Office of the High Representative, An Action Plan in Support of the Return of Refugees and Displaced Persons in Bosnia and Herzegovina (Sarajevo: Office of the High Representative, Reconstruction and Return Task Force, 1998). The Office of the High Representative (OHR) was charged with broad powers to counter local officials who obstructed repatriation and restitution. The OHR had the authority to disallow discriminatory laws, draft and impose legislation, and remove public officials, but lacked control of the thirty thousand peacekeeping soldiers in Bosnia to use coercive methods to enforce his will. 12. According to the 1991 census, BiH before the war was divided into 43.7 percent Bosniak, 31.3 percent Serb, 17.3 percent Croat, 5.5 percent “Yugoslav,” and 2.2 percent other.

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273 Notes 13. “UNHCR’s Open Cities Initiative in Bosnia: A Cause for Optimism?” The Forced Migration Monitor, September 1997, 19. 14. Initially, US$40 million was invested in the “Open Cities” on top of 270 million Euros invested by the European Union, largely in constructing and rehabilitating homes. Later, a separate investment by the United States raised the total American investment to $325 million by the end of 1998. 15. Cf. Elizabeth Cousens and Charles K. Cater, Toward Peace in Bosnia: Implementing the Dayton Accords (Boulder, CO: Lynne Rienner Publisher, 2001), 79. This was evident very early on in the program. “In Vogosca, one of the first municipalities to receive Open City status, there has been virtually no return: only 26 Bosnian Croats and 46 Bosnian Serbs have returned this year, and UNHCR is considering revoking the Open City status.” As the International Crisis Group pointed out in its report “The Konjic Conundrum,” there have been fewer than 300 minority returns to Konjic, despite the fact Konjic, according to UNHCR, is a “model Open City.” Although other factors—such as lack of housing and willingness to actually return—play an important role, obstruction by local authorities is a significant factor as well. “UNHCR has encountered consistent opposition to its attempts to facilitate the return of refugees and displaced persons to Foca.” Human Rights Watch, “Bosnia and Herzegovina ‘A Closed, Dark Place’: Past and Present Human Rights Abuses in Foca,” Global Issues 10, no. 6 (July 1998), http://www.hrw.org/reports98/foca/. 16. “There are about 500,000 Bosnians outside the ex-Yugoslavia, including 300,000 in Germany, 100,000 in Austria, and 50,000 in Sweden.” Migration Policy Group, Migration News 1, no. 4 (September 1995). 17. That would mean a possible 50 percent success rate based on the potential returnee population and 16 percent of the total displaced population of 2.3 million. 18. “Most of those who have returned have been elderly farmers whose houses were not destroyed or occupied, and who receive old-age pensions from the government” (HRW, Broken Promises). Many minority returns “involved the return of elderly people to isolated villages where they posed little threat to the nationalist authorities in control. Such returns also frequently involved little or no genuine ‘re-mixing’ of ethnic communities” Richard Black, “Return and Reconstruction in Bosnia-Herzegovina: Missing Link, or Mistaken Priority?” SAIS Review 21, no. 2 (Summer-Fall 2001): 177–199, 190. Further, elderly returnees offer minimal contribution to reconstruction efforts. For a detailed micro study of an actual “successful” minority return of an elderly couple, consider that while they enjoy good relations with their equally elderly Serbian neighbors, they are constantly reminded by graffiti on destroyed buildings of their status as endangered aliens. The narrative is one of tragedy, not resur-

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274 Notes rection. Laura Huttunen, “Sedentary Politics and Transnational Relations: A ‘Non-sustainable Case of Return in to Bosnia,” Journal of Refugee Studies 23, no. 1 (March 2010): 41–61. 19. See Lara J. Nettelfield, “Courting Democracy: The Hague Tribunal’s Impact in Bosnia-Herzegovina” (PhD dissertation, Columbia University, 2006). These results were based on interviews with fifty-three NGOs. 20. As Lynn Hastings noted, villages simply traded places. Lynn Hastings, “Implementation of the Property Legislation in Bosnia Herzegovina,” Stanford Journal of International Law 37 (2001): 221. Lynn was Executive Director of the Housing and Property Directorate in Pristina, Kosovo, and Director of the Human Rights Department of the Organization for Security and Cooperation in Europe (OSCE) Mission to the Republic of Bosnia Herzegovina from June 1998 through July 2000. Cf. “The OSCE Mission to Bosnia and Herzegovina,” OSCE, 17 January 2000, http://ocha-gwapps1.unog.ch/rw/rwb.nsf/db900sid/ OCHA-64D9V9?OpenDocument. 21. Ed Vulliamy, “We Can’t Forget,” The Guardian, 1 September 2004. 22. Roberto Belloni, “Peace-building at the Local Level: Refugee Return to Prijedor,” International Peacekeeping 12, no. 3 (2005): 1–14. The number of returnees is always controversial, as are presumably the statistics of how many lived in the city before the war. Belloni presents the return as heavily dependent on the Property Law Implementation Plan (PLIP), which resolved 7,439 claims. 23. See E. Rosand, “The Right to Return Under International Law Following Mass Dislocation: The Bosnia Precedent?” Michigan Journal of International Law 19 (1998): 1091–1139. Rosand argued that the linkage between return and home was itself unique for a repatriation program. 24. As Black argues, “the preoccupation with return and reconstruction is itself highly problematic in the context of a society undergoing profound change” (177). 25. UNHCR, “Total Minority Returns Into BiH from 1996 to 31 October 2006,” 31 October 2006. 26. Reconstruction and Return Task Force (RRTF), Report March 1998, 32, http:// www.ohr.int/ohr-dept/rrtf/key-docs/reports/. 27. See United States General Accounting Office, Bosnia: Crime and Corruption Threaten Successful Implementation of the Dayton Peace Agreement (Washington, DC: United States General Accounting Office 2000), www.gao.gov/new. items/d03980t.pdf; Peter Andreas, “The Clandestine Economy of War and Peace in Bosnia,” International Studies Quarterly 48 (2004): 29–51. 28. Ayaki Ito, “Politicization of Minority return in Bosnia and Herzegovina: The First Five Years Examined,” International Journal of Refugee Law 13, no. 1/2 (2001): 99–122.

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275 Notes 29. See RRTF, Report March 1998. OHR, “High Representative Imposes Amendments to Property Laws,” Sarajevo, 5 December 2001, a process completed at the beginning of 2004. OHR/OSCE/UNHCR, “Property Law Implementation in Bosnia and Herzegovina Nears Completion,” 11 February 2004. 30. Rhodri Williams, “Post-conflict Restitution and Refugee Return in Bosnia and Herzegovina: Implications for International Standard-setting and Practice,” New York University Journal of International Law and Politics 37, no. 3 (March 2006): 441–553. 31. “High Representative Imposes Amendments to Property Laws,” OHR Sarajevo, 5 December 2001. 32. See Charles Philpott, “From the Right to Return to the Return of Rights: Completing Post-war Property Restitution in Bosnia Herzegovina,” International Journal of Refugee Law 18, no. 1 (March 2006): 30–80. Philpott credits the staying power of the international community and its carrot and stick method for the success, including the willingness of the OHR to remove recalcitrant officials. More significantly, he credits the success to a shift “from a process that focused primarily upon ethnically-linked ‘return’, sometimes at the expense of individual property rights, to one that was driven primarily by the recognition of property rights and the rule of law.” The success was not “return” but “restitution.” 33. Balkan Investigative Reporting Network (BIRN), 31 August 2006: “Bosnian returnees quietly quit regained homes.” 34. UNHCR, “Refugee Protection and Humanitarian Work in Croatia: An Overview of UNHCR’s Operations in the Past 18 Years,” 2009, http://www.unhcr.hr/eng/index.php/frontpage-right/refugee-protection-and-humanitarianwork-in-croatia-an-overview-of-unhcrs-operations-in-the-past-18-years.html.

5. Resettling Refugees from Asia 1. Ronald J. Cima, “Vietnam in 1988: The Brink of Renewal,” Asian Survey 29, no. 1 (1989): 64–72. 2. Draft Declaration and Comprehensive Plan of Action, Approved by the Preparatory Meeting for the International Conference on Indochinese Refugees, 8 March 1989. 3. Acceptance rates prior to appeal varied: 32 percent in Malaysia; 7 percent in Hong Kong; 3 percent in Indonesia. More than 22,000 people were returned to Vietnam. 4. See W. Courtland Robinson, Terms of Refuge: The Indo-Chinese Exodus and the International Response (London: Zed Books, 1998). See also W. Courtland Robinson, “The Comprehensive Plan of Action for Indochinese Refugees,

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276 Notes 1989-1997: Sharing the Burden and Passing the Buck,” Journal of Refugee Studies 17, no. 3 (2004): 319–333. 5. Sergio, then Bureau Chief for Asia and Oceania for UNHCR, became Special Envoy of the High Commissioner for Refugees in Cambodia and Director of Repatriation for the United Nations Transitional Authority in Cambodia (UNTAC). Tragically, he died in the explosion of the UNHCR compound in Baghdad on 19 August 2003. 6. “UNHCR and Malaysia close camp for Vietnamese boat-people,” UNHCR press release 25 June 1996, www.jhsph.edu/bin/e/f/Robinson2004-Indochinese_refugees.pdf. 7. Arthur Helton, “Refugee Rights and Realities,” The American Journal of International Law 95, no. 2 (April 1999): 478–481. See also The Price of Indifference: Refugees and Humanitarian Action in the New Century (Oxford: Oxford University Press, 2002). 8. John Rogge “Repatriation of Refugees: A Not So Simple ‘Optimum’ Solution,” in When Refugees Go Home, eds. T. Allen and H. Morsink (Geneva: UNRISD, 1994), 14–49; M. Eastmond and J. Öjendal, “Revisiting a Repatriation Success: The Case of Cambodia,” in The End of the Refugee Cycle? Refugee Repatriation and Reconstruction, eds. R. Black and K. Koser (Oxford: Berghahn Books, 1999), 38–55. 9. Population and Housing Census of Bhutan, 2005, www.nsb.gov.bt/index. php?id=12. 10. US Department of State, “Bhutan Country Report 1996,” Report on Human Rights Practices in 1996, 1997, http://www.state.gov/www/global/human_ rights/1996_hrp_report/bhutan.html. 11. Ibid. 12. Govind Subedi, Jagat Acharya, and Sophia Sahaf, Unregistered Asylum Seekers from Bhutan: A Pilot Survey (Kathmandu: South Asian Forum for Human Rights, 2003). 13. South Asian Forum for Human Rights (SAFHR), “Right to Return Concept Paper,” 2004, 3, http://www.safhr.org/refugee_rights_jhapaworkshop.htm. 14. International Crisis Group, “Nepal’s Faltering Peace Process,” Kathmandu/ Brussels, 19 February 2009. 15. The Appeal Movement Coordination Council (AMCC), the Bhutanese Refugee Repatriation Representative Committee (BRRRC), Bhutanese Refugee Steering Committee (BMSC), and the Bhutan National Democratic Party (BNDP). Some resisting resettlement used violence to intimidate those opting for resettlement and to retard the resettlement process. 16. Tek Nath Rizal, a former high-level public servant in Bhutan, was kidnapped by the Indian secret service when he sought refuge in Nepal and was returned to Bhutan where he was jailed for ten years for “acts against the King.”

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277 Notes 17. SAFHR, “Right to Return Concept Paper,” 2. 18. Bhim Subba, who edited The Bhutan Review, left for Canada. Rakesh Chhetri, who headed the Centre for Protection of Minorities and Against Racism and Discrimination in Bhutan (CEMARD-Bhutan), moved to the United States. 19. On 9 January 2008, the International Organization for Migration (IOM) opened up a refugee resettlement processing center in Damak in eastern Nepal. At the time, US Ambassador Nancy Powe announced that “it is our hope that in 2008 more than 13,000 refugees will be resettled from Nepal.” (Xinhua News Agency, 16 January 2008, http://www.reliefweb.int/rw/RWB.NSF/ db900SID/PANA-7AWEQ2?OpenDocument. 20. The military government changed the name to Myanmar in 1989. 21. Refugees International, “Burma: Capitalizing on the Gains,” 18 March 2009, www.refugeesinternational.org/policy/field.report/burma-capitalizing-gains. 22. David Steinberg, Burma/Myanmar: What Everyone Needs to Know (New York: Oxford University Press, 2009). 23. Kevin Heppner, “Sovereignty, Survival and Resistance: Contending Perspectives on Internal Displacement in Burma” (Bangkok: Karen Human Rights Group, 2005), 11, http://www.khrg.org/papers/wp2005w1.htm. 24. “Myanmar-Thailand Border,” World Health Organization (WHO), 2007, http://www.who.int/hac/crises/international/myanthai/en/index.html. 25. “Internal Displacement in Eastern Myanmar: July 2006 Update,” Thailand Burma Border Consortium (TBBC), Thailand Burma Border Consortium (TBBC), http://www.ibiblio.org/obl/docs4/TBBC-2006-IDP-ocr.pdf; Hazel J. Lang, Fear and Sanctuary: Burmese Refugees in Thailand (Ithaca, NY: Cornell University Press, 2002), 37–43; Susan Banki, “The Bhutanese in Nepal: The Durable Solution Discourse on Refugee Repatriation”; Susan Banki and Hazel Lang, “Displaced on the Thai-Burmese Border: The Inter-related Search for Durable Solutions,” in Protracted Refugee Displacement in Asia: No Place to Call Home, ed. Howard Adelman (Aldershot, Hampshire: Ashgate, 2008). 26. “Bullet Point Summary of the Strategic Presentation on UNHCR’s Operations in Asia and the Pacific,” the 29th meeting of the Standing Committee, 3–6 March 2003. 27. Ashley South, “Political Transition in Myanmar: A New Model for Democratization,” Contemporary Southeast Asia 26, no. 22 (2004): 233–256; also the joint critical response letter by Refugees International and the United States Committee for Refugees, 8 March 2004, http://wwww.reliefweb.int/rw/rwb. nsf/AllDocsByUNID/9bfd96469b0f9b0b49256e55000c48fd. 28. Eileen Pittaway, “The Rohingya Refugees in Bangladesh: A Failure of the International Protection Regime,” in Adelman, Protracted Refugee Displacement in Asia.

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278 Notes 29. Médecins sans Frontières (MSF-France), The Rohingas: Forcibly Repatriated to Burma, 22 September 1994; C. R. Abrar, “Repatriation of Rohingya Refugees” (paper presented at UNHCR Conference, Colombo, Sri Lanka, 1995). 30. Michael Barnett, “UNHCR and Involuntary Repatriation: Environments, Developments, the Repatriation Culture and the Rohingya Refugees” (paper presented at International Studies Association Annual Conference, Los Angeles, March 2000). See also UNHCR, Handbook on Voluntary Repatriation: International Protection (Geneva: UNHCR, 1996). 31. Human Rights Watch, Burmese Refugees in Bangladesh: Still No Durable Solution, 1 May 2000, www.hrw.org/en/reports/2000/05/01/burmese-refugeesbangladesh-0 MSF-Holland, 10 Years for the Rohinga Refugees in Bangladesh: Past, Present and Future, Médecins Sans Frontières-Holland, March 2002, http://www.doctorswithoutborders.org/publications/reports/2002/rohingya_ report.pdf. 32. Chris Lewa, “The Exodus Has Not Stopped: Why Rohingyas Continue to Leave Myanmar” (paper presented at MSF Conference, “10 Years for the Rohinga Refugees: Past, Present and Future,” Dhaka, 1 April 2002), http://www.burmalibrary.org/docs/MSF-Lewa-2002.htm. 33. UNHCR, Country Operations Plans for Myanmar 2006 (Geneva: UNHCR 2006), 4. 34. Hazel J. Lang, Fear and Sanctuary: Burmese Refugees in Thailand (Ithaca, NY: Cornell University Press, 2002, chapter 3. 35. Alison Vicary, “Employment and Poverty in Mae Hong Son Province Thailand: ‘Burmese’ Refugees in the Labour Market,” Burma Economic Watch 1 (2006): 47–87. 36. “Reintegration is a process that should result in the disappearance of differences in legal rights and duties between returnees and their compatriots and the latter’s equal access to services, productive assets and opportunities. Such a process assumes that refugees return to societies that are more or less stable.” UNHCR, Handbook for Repatriation and Reintegration Activities (Geneva: UNHCR, 2004), part A, section 1. 37. Lang, Fear and Sanctuary, chapter 5. 38. Hazel Lang, “The Repatriation Predicament of Burmese Refugees in Thailand: a Preliminary Analysis,” New Issues in Refugee Research Working Paper No. 46 (Geneva: UNHCR, 2001), prepared for the Panel Discussion of 3 October 2002, during ExCom’s 52nd Session, www.unhcr.org/4a1d43986.html. 39. UNHCR listed 128,816 refugees in addition to 9,657 under screening for registration, 11,217 “slip holders” applying for reregistration, and eight thousand new arrivals.

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279 Notes 40. Sixty-two percent were from Karen State, 13 percent from Karenni State, 9 percent from Tenasserim Division, 5 percent from Mon State, and 11 percent from other states and divisions in Myanmar. 41. Usa Pichai, “Thai Businesses Hurt by Controversial Migrant Legislation,” Chiang Mai: (Mizzima), Democracy for Burma, 1 December 2009, http://www.mizzima. com/news/regional/3100-japan-to-allow-resettlement-of-burmese-refugees.html. 42. See IMO, “Migrant Information Note, Issue # 3, November 2009. Analysis of Registration and National Verification (NV),” 2: A total of 1,174,716 new and renewed work permits were issued for migrant workers from Burma/Myanmar, Cambodia, and Lao PDR as of 29 August 2009. As of 8 September 2009, 785,017 of 1,054,261 migrant workers registered were from Burma/Myanmar. Of these, 627,230 Burmese had received work permits. As of 25 September 2009, 118,016 registered migrant workers who had received NV, only 2,877 were Burmese even though Burmese constituted three-quarters of the migrant workers in Thailand. 43. For an excellent overview, see Rosalia Sciortino and Sureeporn Punpuing, International Migration in Thailand 2009 (Bangkok: International Organization for Migration (IOM), 2009). http://www.iom-seasia.org. 44. UNHCR, Global Report 2005, “Thailand.” 45. “10,000 refugees leave Thailand in biggest resettlement programme,” UNHCR, 27 July 2007, www.unhcr.org/46a9ef334.html. By the end of 2008, 43,000 had been resettled. By September of 2009, 10,000 Burmese were resettled and 14,000 were expected to have been resettled by the end of the year. (International Rescue Committee, “IRC has helped 10,000 Burmese Refugees Resettle in the U.S.,” Bangkok, 17 September 2009, http://www.theirc.org/ news/irc-has-helped-10000-burmese-refugees-resettle-us-4294.) 46. IRIN, “Thailand: Resettlement leaves gaps in camp services,” 30 April 2009. http://www.irinnews.org/report.aspx?ReportId=84182; Hazel Lang and Susan Banki, “The Dilemma of Resettlement as a Durable Solution: Refugee Populations on the Thai-Burmese Border,” (paper delivered at ISA, 49th annual convention, “Bridging Multiple Divides,” San Francisco, 26 March 2008), http:// www.allacademic.com/meta/p252857_index.html. 47. Helen Hill, Fretilin: The Full Circle: The Origins, Ideologies, and Strategies of a Nationalist Movement in East Timor (Oxford: Oxford University Press, 2002). 48. William Burr and Michael L. Evans, eds., East Timor Revisited: Ford, Kissinger and the Indonesian Invasion, 1975-76, National Security Archive Electronic Briefing Book No. 62, http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB62/. See also Mohammad C. Othman, Accountability for International Law Violations: The Case of Rwanda and East Timor (Berlin: Springer, 2005), 43n233.

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280 Notes 49. “There is overwhelming evidence that East Timor has seen a deliberate, vicious and systematic campaign of gross violations of human rights.” UN High Commission on Human Rights, Report of the High Commissioner for Human Rights on the Human Rights Situation in East Timor (Geneva: UNHCHR, 1999), paragraph 47. 50. Final Report of the Commission for Reception, Truth and Reconciliation in East Timor (CAVR, 31 October 2005), “Part 6: The Profile of Human Rights Violations in Timor-Leste, 1974 to 1999.” See also Robert Cribb, “How Many Deaths? Problems in the Statistics of Massacre in Indonesia (1965–1966) and East Timor (1975–1980),” in Violence in Indonesia, eds. Ingrid Wessel and Georgia Wimhofer (Hamburg: Abera Verlag Markus Voss, 2001), 82–98; and Matthew Jardine, East Timor: Genocide in Paradise (Tuscon, AZ: Odonian Press, 1995). 51. In the Santa Cruz massacre on 12 November 1991, Indonesian armed forces killed hundreds of mourners at a funeral for a youth shot by the military. 52. East Timor (Port. v. Austl.), 1995 I.C.J., 90, http://www.icj-cij.org/; see also The American Society for International Law, International Legal Materials, Index of Tables of Contents, Vol. 45-2006, 1581–1591, http://www.asil.org/ilm/ilmindx.htm. 53. In spite of an extensive intimidation and propaganda campaign, an unprecedented 97 percent of those eligible voted on 30 August 1999. Almost 80 percent turned down even autonomy within Indonesia, hence endorsing independence on 20 May 2002. See Ian Martin, Self-Determination in East Timor: The United Nations, the Ballot, and International Intervention (New York: International Peace Academy Occasional Paper, 2001). 54. Damien Kingsbury, “The TNI and the Militias,” in Guns and Ballot Boxes: East Timor’s Vote for Independence, ed. Damien Kingsbury (Melbourne: Monash Asia Institute, 2000), 69–80. See also the CAVR Final Report, “Part 3.21 Indonesia departs: scorched earth”; UN Commission of Experts, Report to the SecretaryGeneral of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste in 1999 (S/2005/458, 15 July 2005); and Human Rights Watch, Protection for Displaced Persons in East and West Timor (New York: HRW, 1999). 55. Michael G. Smith and Moreen Dee, Peacekeeping in East Timor: The Path to Independence (Boulder, CO: Lynne Rienner Publishers, 2003). See also David Good, Back to the Border: 2nd Battalion Group in East Timor (Crows Nest, NSW: Allen & Unwin, 2004). 56. The east/west division is not an ethnic division in the normal sense since there are many different languages spoken in East Timor: 13.5 percent of Timorese speak Portuguese; 43.3 percent speak Bahasa Indonesia; 5.8 percent speak English; 91 percent speak Tetum, the most common of the local languages; 46.2 percent speak Tetum Prasa, the form of Tetum dominant in the

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281 Notes Dili district. Mambae, Kemak, and Fataluku are also widely spoken. This linguistic diversity is enshrined in the country’s constitution, which designates Portuguese and Tetum as official languages and English and Bahasa Indonesia as working languages (US Department of State, Background Note: Timor-Leste, http://www.state.gov/r/pa/ei/bgn/35878.htm). Various ethnicities in the strict sense are combined geographically into cultural divisions of attitude, geography, and historical experiences. 57. Timor Lorosae (literally, “sunrise”), the people from the east, is equated with Timor-Leste and the Firaku (“talkers”). Timor Loromonu refers to West Timor (Timor-Kupang/Timor Indonesia) or Kaladi (“taciturn”). Maubere is the common identity of the Timor Lorosae. Timor-Leste is referred to as the land of the Maubere people reaffirmed in the preamble to the Timor-Leste Constitution. The national liberation struggle was considered both a liberation of East Timorese territory, achieved on 20 May 2002, and of the Maubere people which some East-Timorese consider an unfulfilled part of the liberation struggle. Further, in the debates over sacrifice, suffering, and victimization in the pursuit of independence, many Firaku groups believe that the Kaladi were submissive to the Indonesians and provided the manpower for the militias. 58. According to the UNDP 2002 Human Development Report, the country was the poorest in Asia: 40 percent of the population lived on less than 55 cents per day. Only 50 percent could read and write. Life expectancy was 55 years. 59. Research Response, Refugee Review Tribunal (RRT), Australia, 2 March 2007 provides background on the April-May 2006 conflict in East Timor and the division between east and west, www.mrt-rrt.gov.au/ArticleDocuments/137/ tls32267.pdf.aspx. Cf. UNHCHR, Report of the Independent Special Commission of Inquiry for Timor-Leste established in June of 2006 (Geneva: UNHCHR, 2006), http://www.ohchr.org/Documents/Countries/COITimorLeste.pdf. 60. UN Security Council, Progress Report of the Secretary-General on the United Nations Mission of Support to East Timor (for the Period from 10 November 2004 to 16 February 2005), S/2005/99 (18 February 2005). 61. Ibid., paragraph 63; “East Timor bribery claims ignored,” The Sunday Telegraph, 22 January 2006. Prime Minister Alkatiri allegedly accepted bribes from an Australian public servant acting on behalf of US energy company, Conoco Phillips, in return for Australia retaining “favorable concessions over Timor Sea gas reserves negotiated during Indonesia’s violent occupation.” 62. Amnesty International, World Report 2005, “Timor-Leste,” www.amnesty.org/ en/library/info/POL10/001/2005. 63. Anthony Smith, Foreign Policy Focus: Self Determination Conflict Profile: East Timor, (Singapore: Institute of Southeast Asian Studies, University of Singapore, 2002), http://presentdanger.irc-online.org/conflicts/timor_body.html;

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282 Notes and Dionisio Babo Soares, Branching from the Trunk East Timorese Perceptions of Nationalism in Transition (PhD Thesis, Department of Anthropology, Australia National University, Canberra, 2003), 266n33. See also Richard Curtain, “Crisis in Timor-Leste: Looking Beyond the Surface Reality for Causes and Solutions,” SSGM Working Papers No. 2006/1 (27 July 2006), http:// rspas.anu.edu.au/papers/melanesia/working_papers/06_01wp_Curtain.pdf. 64. Centre for Housing Rights and Evictions, The Pinheiro Principles: United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Geneva: COHRE, 2005), http://www.cohre.org/store/attachments/Pinheiro%20Principles.pdf. Cf. Journal of Refugee Studies 13, no. 2 (2000) for a statement of the Guiding Principles on Internal Displacement. 65. The UNTAET Office of the National Security Advisor and the Ministry of Justice’s Land and Property Unit (LPU) released a joint report. 66. East Timor Law and Justice Bulletin, “East Timor Land Rights: Restitution Not Possession—A Comment on the Draft Land Law,” 9 July 2009, http:// easttimorlegal.blogspot.com/2009/10/land-conflicts-most-common-disputein.html The East Timor Department of Justice draft new land law, “Special Regime for the determination of Ownership of Immovable Property,” (“Land Law” June 2009) offered security of tenure and certainty of title to resolve vexing and violent conflicts over land. Though possession is the primary basis of the proposed law, documentary title (Indonesian hak milik; Portuguese propriedade perfeita, or documented rights from a state grant) trumps possession. No period of possession extinguishes the documentary title and the documentary owners’ rights. The juridical principle of restitution restores the vast real estate holdings of the political and economic elite, provided they retained documentary evidence of ownership. A clear statutory basis has been offered for dispossessed documentary titleholders to reclaim their land or gain compensation for the value of the land at the time of the dispossession. 67. Christopher McDowell and Marita Eastman, “Transitions, State-building and the ‘Residual’ Refugee Problem: the East Timor and Cambodian Repatriation Experience,” Australian Journal of Human Rights (2002); see also Christopher McDowell and R. A. Ariyaratne, Complex Forced Migration Emergencies Project: East Timor Case Study (Sydney: Macquarie University and Colombo: Regional Centre for Strategic Studies, 2001). 68. Under the Portugese 3000 titles were issued over the centuries; under Indonesian occupation, 47,000 titles were issued in twenty-five years of rule. 69. “Timor-Leste: IDPs Returning Home, but to Ongoing Poverty and Lack of Access to Basic Services: A Profile of the Internal Displacement Situation,” Internal Displacement Monitoring Centre (IDMC), 31 October 2008 summarized in“Internal Displacement Monitoring Centre” (IDMC) (9 December 2009), 61–64, www.

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283 Notes internal-displacement.org/.../3FF6A63FDDF45BD6C12571780029F4AB?... See also the summary of Daniel Fitzpatrick, Andrew McWilliam, and Susana Barnes, “Policy Notes on Customary Land in Timor Leste,” East Timor Law Journal (August 2008): 1–10. In Dili alone, 3,197 homes were destroyed (1.846) or damaged (1,351) during the crisis (OCHA Survey, 16 January 2007, 8–9). 70. Sven Gunnar Simonsen, “The Role of East Timor’s Security Institutions in National Integration—and Disintegration,” The Pacific Review 22, no. 5 (2009): 575–596. 71. I. Scobbie and C. Drew, “Self-determination Undetermined: The Case of East Timor,” Leiden Journal of International Law (1996); Catriona Drew, “Self-determination, Population Transfer and the Middle East Peace Accords,” in Human Rights, Self-determination and Political Change, ed. S. Bowen, 119–168 (1997); Catriona Drew, “The East Timor Population Consultation: Self-Determination Denied,” Human Rights Law Review (1999): 3–13; Catriona Drew, “The East Timor Story: International Law on Trial,” European Journal of International Law 12, no. 4 (2001): 651–684. See also a draft of Andrew Harrington’s 2006 thesis, “Ethnicity, Violence, and Land and Property Disputes in Timor-Leste,” which focuses on precisely this issue. 72. Report of the Secretary-General on the United Nations Integrated Mission in Timor-Leste for the period from 21 January to 23 September 2009 (S/2009/504), www.un.org/Docs/sc/sgrep09.htm. 73. USAID, November 2006. 74. Ministry of Labour and Community Reinsertion (MTRC), 17 July 2007. 75. OCHA 16 January 2007, 8. 76. HYPERLINK “http://www.etan.org/et2008/6june/22/19hamutuk.htm” \t “new” “‘Hamutuk Hari’i Futuru’ A National Recovery Strategy,” Government of Timor-Leste, 19 December 2007; OCHA, 18 April 2008, 34, http://www. etan.org/et2008/6june/22/19hamutuk.htm. See also reports of the early recovery cluster (ERC) and the “Together Building Confidence” (Hamutuk Hari’i Konfiansa or HHK) working group. 77. Those willing and able to return home could receive a cash recovery grant based on the extent of damage to their property, up to a maximum of $4,500, or a basic house plus $1,500 should their own have been damaged beyond repair. Those who previously did not own homes would receive only the $1,500. Those unable or unwilling to return could either use the cash recovery grant to build a house on state-owned land, or they could choose to settle in a basic house on a resettlement site. Temporary relocation to a transitional shelter site was offered to those willing but unable to return immediately (OCHA, 18 April 2008, 34). 78. International Organization for Migration (IOM) organized a dialogue program to facilitate return and reintegration, promote community cohesion

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284 Notes and stability, and minimize fears, tensions, and insecurity. In the IOM Community Return Monitoring Program, partnered with CARE, Catholic Relief Services (CRS), Jesuit Refugee Service (JRS), and the national NGO Belun, return and reintegration teams were used to facilitate dialogue, provide counsel, verify the state of the homes, ascertain returnee intentions and offer assessments, offer appropriate referrals and interventions, organize logistics, mediate with occupiers (60 percent success rate), negotiate with resistant occupiers and formalize agreements in the balance of cases, organize accompaniment, and monitor well-being. 79. ICG, 31 March 2008, 4. 80. Fourteen thousand families benefited from the recovery packages. 81. IRIN, 22 September 2008. 82. The resumption of primary policing responsibilities by the national police began on 14 May 2009 with Lautém district, Oecussi District on 30 June, Manatuto District on 25 July, and the opening of the Police Training Centre on 11 September. 83. Impunity remains a serious threat to the sustainability of returns. (“‘We Cry for Justice’: Impunity Persists 10 Years on in Timor-Leste,” Amnesty International, 27 August 2009; “Development in East Timor ‘Seriously Hindered’ by Lack of Justice,” Progressio 26 (August 2009), wwww.reliefweb.int/rw/ rwb.nsf/db900SID/JOPA-7VCBP8?OpenDocument. On 13 July 2009, the trial against Gastão Salsinha and twenty-seven codefendants, associates of Reinado began. When the militia leader Martenus Bere returned from Indonesia, he was arrested on an outstanding warrant for crimes against humanity, including his involvement in the Suai church massacre in Covalima District on 9 September 1999 in which up to two hundred were killed. He was released on orders of the Prime Minister to Indonesian authorities as a condition of Indonesian participation in and recognition of Timor-Leste’s formal ceremonies. 84. Cf. IOM September–November 2008 Monitoring Report, Chefes de Aldeias Surveys, International Organization for Migration (IOM), February 2009, http://www.internal-displacement.org/8025708F004CE90B/(httpDocument s)/2E2D32720888B819C125755A00317B65/$file/IOM+second+return+monit oring+report+and+annexes.pdf. 85. R. Rudrakumaran, “The Right of Self-Determination of the People of Tamil Eelam,” (1991), www.ihrc.org.uk/show.php?id=2826. 86. See Hazel Lang and Anita Knudsen, “Sri Lanka Conflict-induced Internal Displacement: Challenges and Dilemmas of Protection for Humanitarian Agencies in Trincomalee,” in Protracted Refugee Displacement in Asia.

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285 Notes 87. Asia Pacific Human Rights Network, Strangers in Their Own Land: “There is no policy, no inclination, and no serious attempt on the part of the Sri Lankan government to deal with the country’s 800,000 internally displaced people.” Populations kept in Restricted Welfare Centres function as torture camps with rampant prostitution, domestic violence, rape, incest, and child abuse (http:// www.hrdc.net/sahrdc/hrfquarterly/Jan_march_2002/Srilanka_IDPs.htm). 88. Amnesty International, Sri Lanka: Waiting to Go Home—the Plight of the Internally Displaced (New York: Amnesty International, 2006), http://web.amnesty. org/library/index/engasa370042006. 89. “According to a census of all IDPs in Sri Lanka conducted by the Ministry of Rehabilitation, Resettlement and Refugees in 2002, 80.86 percent of the displaced population was Tamil, 13.7 percent Muslim, 4.56 percent Sinhalese and other 0.88 percent. Many of these IDPs have suffered multiple displacements during the course of the conflict.” Amnesty International, Sri Lanka: Waiting to Go Home—the Plight of the Internally Displaced (New York: Amnesty International, 2006), 2. 90. A 2001 report of the Center for Policy Alternatives (CPA) claimed that this was done near the vicinity of Tharanikulam and Maravankulam village, in the districts of Vavuniya and Vengalacheddikulam, an area very close to the Front Defense Lines (FDLs). 91. In 1987, the Indo-Sri Lankan Accord permitted the Indian Peace Keeping Force (IPKF) to be deployed as peacekeepers though not peace enforcers. Violence between the IPKF and LTTE broke out when the LTTE refused to disarm in accordance with the Indo-Sri Lankan Accord to which the LTTE had not been a partner. After suffering severe casualties, the Indian forces withdrew. In 1991, Rajiv Gandhi was assassinated by a Tamil Tiger suicide bomber. 92. www.lankaweb.com/news/items01/keydates.htm. See also Al-Ceylon Muslim Documentation Centre, http://www.alceylanmuslimdc.lk/MUSLIM%20MINORITY%20ISSUES%20IN%20SRI%20LANKA.htm. See also Dennis B. McGilvray, “Tamils and Muslims in the Shadow of War: Schism or Continuity?” South Asia: Journal of South Asian Studies 20, no. 1 (1997): 239–253. 93. After the Indian peacekeepers left in 1990, the LTTE, who controlled the north, evicted one hundred thousand Muslims and seized their property—including personal jewelry and possessions. “Forcibly evicted by the LTTE solely for the reason that they belonged to another religious-ethnic group, the entire Muslim population in the northern provinces of Jaffna and Mannar continues to live, more than ten years later, as outcasts in Puttalam, Anuradhapura and Kurunegala.” See D. B. S. Jeyaraj, “Fifteenth Anniversary of Muslim Expulsion from Jaffna,” Uthayam, 30 October 2007, http://uthayam.net/

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286 Notes articles/oct30_2005html_2.htm. See also http://www.lankanewspapers.com/ news/2008/6/29684_space.html. 94. “The East: An Overview,” University Teachers for Human Rights, Jaffna, 2001, http://www.uthr.org/Reports/Report7/chapter1.htm. 95. In 2004, former LTTE commander Colonel Karuna split and formed the Tamileel Makkal Viduthalai Pulikal, or People’s Liberation Tigers of Tamil Eelam (TMVP). 96. Natural disasters that displaced populations did not end with the tsunami. Almost a year later, following lashing monsoon rains in a territory controlled by the Tamil Tigers, over twenty thousand families were displaced and at least four thousand of those families were relocated to transit families in Mullaittivu and Vadamarachi East districts. 97. Internal Displacement Monitoring Centre (IDMC), “Sri Lanka: Escalation of Conflict Leaves Tens of Thousands of IDPs Without Assistance” (16 November 2006): 1, http://www.unhcr.org/cgi-bin/texis/vtx/refworld/ rwmain?docid=455c380e4. 98. “UN Wants Sri Lankan Displaced to Return Home,” UNHCR, 27 July 2006. 99. United States Institute of Peace (USIP), Agreement on a Ceasefire Between the Government of the Democratic Socialist Republic of Sri Lanka and the Liberation Tigers of Tamil Eelam, 22 February 2002, www.usip.org/resources/ peace-agreements-sri-lanka. 100. “Sri Lanka: Civilians Who Fled Fighting Are Forced to Return: Government Should End Forced Returns, Protect Displaced Persons in Areas It Controls,” Associated Press, 16 March 2007: “Sri Lankan authorities are using threats and intimidation to force civilians who fled recent fighting in Sri Lanka’s civil war to return home.” Human Rights Watch, “Government and Military Officials are Threatening to Cut Aid and Withdraw Security for Displaced Persons who Refuse to Return.” See also Medicines Sans Frontiers, 29 January 2009, opposing forced repatriation, www.internal-displacement.org/8025708F004CE90B. 101. “Sri Lanka: Civilians Who Fled Fighting Are Forced to Return,” Human Rights Watch, 16 March 2007, http://hrw.org/english/docs/2007/03/16/slanka15497 .htm. 102. “Armed groups, some identified as part of a breakaway group of Tamil Tigers known as the Karuna faction, are infiltrating camps for newly displaced people and abducting residents. . . . The military action of the Karuna faction in the east has increased violence and displacement. Analysts observe that the Sri Lankan Army tolerates its military camps as the Karuna faction has assisted in the Sri Lankan military campaign against the Tamil Tigers” (“Armed groups infiltrating refugee camps,” Amnesty International, 14 March 2007).

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287 Notes 103. www.haltgenocide.org. 104. Lakhdar Brahimi, “Sri Lanks: A Slaughter Waiting to Happen,” International Herald Tribune, 20 March 2009. 105. After the tsunami, the Sri Lankan Ministry of Human Rights was rolled into the new Ministry of Disaster Management. The mandate of the Chairman and Commissioners of the National Human Rights Commission was allowed to expire on 3 April 2006. New Commissioners to Human Rights were appointed directly by the president. 106. “The UN in Sri Lanka says that it is concerned for the safety of thousands of mostly Muslim displaced people who are returning home to the north-east.” (“UN Fear Over Sri Lanka Displaced,” BBC, 7 September 2006.) 107. The article, “Sri Lanka Displaced Vulnerable: Report,” referred to “a comprehensive report by South Asians for Human Rights (SHAR) led by the former Prime Minister, I. K. Gujral” (The Hindu, 16 August 2007). 108. Islamic Human Rights Commission, Internally Displaced Muslims in Sri Lanka: Calls for Greater Attention to their Plight, 20 April 2007, http://www. ihrc.org.uk/show.php?id=2826. 109. Amnesty International, Sri Lanka: Waiting to Go Home—the Plight of the Internally Displaced (New York: Amnesty International, 2006), http://web.amnesty. org/library/index/engasa370042006. 110. Ibid., 26–27.

6. Force and Repatriation in Africa 1. Organization of African Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems in Africa, Sixth Ordinary Session, Addis Ababa, 10 September 1969, www.africa-union.org/root/au/Documents/Treaties/Text/ Refugee_Convention.pdf. 2. Ibid., article 5(2). 3. OAU, African Charter, adopted 27 June 1981, entered into force 21 October 1986. Though there is some reference against discrimination, the Charter was specifically written within the context of anticolonialism rather than rights as its goal was clearly stated “to eliminate colonialism, neo-colonialism, apartheid, Zionism and to dismantle aggressive foreign military bases and all forms of discrimination.” 4. IRIN, Juba, 29 April 2008. 5. OAU, Resolution on the Situation of Refugees in Africa, CM/Res. 1117 (XLVI), adopted 7 December 1987, www.chr.up.ac.za/hr_docs/african/docs/cm/cm112. doc.

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288 Notes 6. Ibid., clause 5. 7. Non-Government Organizations (NGO) Forum (8 March 2004), “Dialogue on Voluntary Repatriation and Sustainable Reintegration in Africa.” 8. “Agenda Item 5: Statement on Behalf of Non-Governmental Organizations,” in “Dialogue on Voluntary Repatriation and Sustainable Reintegration in Africa,” Refugee Survey Quarterly 23, no. 3 (2004): 261–266, http://rsq.oxfordjournals.org/content/23/3/261.extract. See also http://www.humanrightsfirst. org/intl_refugees/regions/africa/040310_Dlg_Vol_Repat. 9. US Department of State, Open Forum: Attaining Solutions for Africa’s Refugees: Challenges and Opportunities, Washington DC, 19 May 2004, http://www.state. gov/s/p/of/proc/33241.htm. 10. Kenya, a worldwide holiday destination, is the regional transportation, economic, and administrative hub of both the Horn of Africa and East Africa. 11. Roger Cohen, “How Kofi Annan Rescued Kenya,” New York Review of Books 55, no. 13 (August 2008): 51. 12. The Nyabasi and Buirege Kuria clans clashed in Kuria East in late May 2009 displacing over six thousand (IRIN, Nairobi, 25 June 2009). IRIN is the humanitarian news and analysis service of the UN Office for the Coordination of Humanitarian Affairs. 13. AI reported on the link between politicians and armed gangs. Amnesty International, Amnesty International Report 2008-Kenya, 28 May 2008, http:// www.unhcr.org/refworld/docid/483e279732.html  (accessed 11 August 2010). See also Cohen, “How Kofi Annan Rescued Kenya,” 52. 14. Christopher Kipruto, a Kalenjin and resident of Eldoret North Constituency, said that “many Kalenjin people were angry that the election was ‘stolen’ the same way the land in the province had been “stolen” and given to settlers from Central Province.” IRIN, 1 May 2008, http://irinnews.org/Report. aspx?ReportId=76319. 15. Human Rights Watch, From Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Governance, March 2008, http://hrw.org/reports/2008/kenya0308/. 16. Ministry of State for Special Programmes (MoSSP), 8 January 2009. 17. “If they come back, it will be war again.” (Kalenjin elder near Burnt Forest) (HRW, From Ballots to Bullets, 57), http://www.hrw.org/reports/2008/kenya0308/. 18. Naivasha Kikuyu elders insisted “that the Luos chased from there should never return,” Human Rights Watch, From Ballots to Bullets. 19. IRIN, Nairobi, 26 May 2008. 20. A whistleblower, subsequently decapitated, deserted the police force and confessed that he had participated in fifty extrajudicial murders. See also the

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289 Notes report of Professor Phillip Alston, U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, February 2009. 21. IRIN, 2 May 2008. 22. Ruring’u, 23 May 2008. Kenya Red Cross Office, Kamau Central Province, Quoted in the Kenya Environmental & Political News Weblog in the article, “Kenya’s IDPs in Central Reluctant to Return to Rift Valley,” http://kenvironews.wordpress.com/2008/05/27/kenyas-idps-in-central-reluctant-to-return-torift-valley/ 23. IRIN, Naivasha, 24 June 2008. 24. By May 2009, the government had only raised about 5 percent of the money needed. With additional funding from the international community, by October 2009 the last IDP camp located in the western town of Eldoret was closed. (IRIN, Nairobi, 2 October 2009) 25. IRIN, 1 May 2008. 26. The deputy Central Provincial Commissioner, Wenslas Ong’ayo, ruled out exchanging alternative land in “safe havens” on the ostensible grounds that such a move would balkanize the country. Ruring’u, 23 May 2008. Kenya Red Cross Office, Kamau Central Province. 27. IRIN, Nakuru, 7 July 2008. 28. Dennis McNamara (UN special adviser on internal displacement), “Growing Anger Over Elusive Peace Dividend in Southern Sudan,” IRIN, 21 May 2007, http://www.irinnews.org/Report.aspx?ReportId=72261. A multiagency survey of the intentions of the displaced in Northern Sudan in 2005 showed that 67 percent said they would return to the south and transitional areas, 22 percent would remain in the north, and 11 percent were undecided. OCHA, South Sudan IDP and Refugee Return Population Projections for 2006, 19 September 2005. OCHA, http://rrr.unsudanig.org/data/surveys/IOM%20-%20IDP%20 Intention%20Survey%202005.pdf 29. An earlier civil war for independence in 1956 to 1973 was renewed when John Garang defected from the government in 1983 in opposition to Khartoum’s centralization of power and benefits. It became very intense when the National Islamic Front (NIF) initiated a coup on 30 June 1989. 30. “Kenya: UN Agency to Repatriate 3,000 Sudanese By December,” IRIN, 29 November 2007, http://www.irinnews.org/Report.aspx?ReportId=75575. 31. UNHCR, Southern Sudan—Return and Reintegration of Sudanese Refugees and IDPs, 24 January 2008, http://www.reliefweb.int/rw/RWB.NSF/db900SID/ AMMF-7BEHE9?OpenDocument. 32. Security problems, mistrust between the North and South, and bad weather plagued the effort at conducting the census across states in the South. IRIN, Juba, 29 April 2008.

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290 Notes 33. http://www.humanitarianreform.org/humanitarianreform/Default. aspx?tabid=70. See also Anne Bijleveld, “Towards More Predictable Humanitarian Responses—Inter-Agency Cluster Approach to IDPs,” Refugee Survey Quarterly 25, no. 4 (2006): 28–34. 34. Uganda hosted 166,000 Sudanese refugees; 11,000 were returned in 2007. Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad, UN S/2009/199, 14 April 2009, http:// daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/296/28/PDF/N0929628. pdf?OpenElement. 35. Refugee Law Project, Repatriation Exercise in Rhino Camp Refugee Settlement, Arua District (Kampala: Faculty of Law, Makerere University, April 2007), www.refugeelawproject.org/briefing_papers/RLP.BP08.pdf. 36. William Deng Deng, Commissioner for Disarmament, Demobilization and Reintegration (DDR) in South Sudan, presentation, York University, Toronto, 24 November 2009. See also the comments of Sulaf al-Dein Salih, head of the northern DDR Commission, Horn of Africa: IRIN-HOA Weekly Round-Up 498 for 19–24 December 2009. 37. Roger Winter and John Prendergast, “Abyei: Sudan’s Kashmir,” Enough Project, 25 January 2008, http://www.enoughproject.org/node/577. 38. UNHCR, Return and Reintegration of Sudanese Refugees and IDPs to South Sudan, 9 March 2006, http://www.reliefweb.int/rw/RWB.NSF/db900SID/ HMYT-6MQP3A?OpenDocument. 39. The Sudan People’s Liberation Movement/Army (SPLM/A) consisted of Dinka and Neuer. The South Sudan Liberation Movement (SSLM) based in Akobo, Eastern Upper Nile, signed a separate Khartoum Peace Agreement in 2002. Inter Jikany/Luo fighting followed with two to three hundred dead. See Human Rights Watch, Sudan, Oil and Human Rights (New York: HRW, 2003), http://www.hrw.org/reports/2003/sudan1103/6.htm. 40. For example, in an attack on the Wunchai region of Warrap state, 140 were killed and 90 seriously wounded. IRIN, Juba/Nairobi, 7 January 2010. 41. International Crisis Group (ICG), Jonglei’s Tribal Conflicts: Countering Insecurity in Southern Sudan, 23 December 2009. 42. By the end of 2007, UNHCR had assisted seventy thousand returnees. Ninety thousand had returned on their own. All camps are expected to close by the end of 2009. 43. ICG, Sudan: Preventing Implosion, Africa Briefing No. 68, 17 December 2009, Nairobi/Khartoum, http://www.crisisgroup.org/home/index.cfm?id=6438. 44. The Constitution defines a citizen of Uganda as “every person born in Uganda, one of whose parents or grandparents is or was a member of any of the indig-

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291 Notes enous communities existing and residing within the borders of Uganda as at February 1 1926.” 45. Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda (Princeton, NJ: Princeton University Press, 2001). 46. Joint Evaluation of Emergency Assistance to Rwanda, The International Response to Conflict and Genocide: Lessons from the Rwanda Experience, ed. David Millwood, 5 vols. (March 1996), http://www.reliefweb.int/library/nordic/index.html, hereafter cited as JEEAR. See especially Howard Adelman and Astri Suhrke, Early Warning and Conflict Management: the Genocide in Rwanda, vol. 2 of JEEAR. 47. Legitimate refugees “were intimidated or terrified into flight through a premeditated, carefully orchestrated attempt on the part of hard-line elements of the fleeing government to maintain leverage and a claim to legitimacy,” claiming that the returning Tutsi would kill all of the Hutu (JEEAR, Synthesis Report, 39). 48. Human Rights Watch Arms Project, Rearming with Impunity: International Support for the Perpetrators of the Rwandan Genocide, May 1995, 3, http://www. unhcr.org/refworld/country,,HRW,,RWA,456d621e2,3ae6a7d0c,0.html. See also William Cyrus Reed, Refugees and Rebels: The Former Government of Rwanda and the ADFL Movement in Eastern Zaire (Washington, DC: US Committee for Refugees, 1997), 7. Estimates of 900,000 to 1.1 million Rwandan refugees in Zaire included up to 200,000 genocidaires and their families, comprising tens of thousands of armed ex-FAR soldiers and interahamwe militia. 49. Sheldon Yett, “Masisi, Down the Road from Goma: Ethnic Cleansing and Displacement in Eastern Zaire,” US Committee for Refugees and Immigrants, 7 June 1996, 14. 50. When the genocidaires fled, they took most of Rwanda’s hard currency, vehicles, and other public assets including twenty thousand tons of coffee worth $50 million dollars (Prunier, Rwanda Crisis, 321). UN arms embargoes were never enforced on the genocidaires. See also HRW Arms Project, Rearming with Impunity; and Amnesty International, Rwanda: Arming the Perpetrators of the Genocide (London: AI, 1995). 51. See Steven Livingston and David Stephens, “U.S. Foreign Policy and Media in the Zaire Crisis, 1996–1997,” in War and Peace in Zaire/Congo: Analyzing and Evaluating Intervention 1996–1997, eds. Howard Adelman and Govind C. Rao (Lawrenceville, NJ: Africa World Press, 2003). See also G. Philo et al., “The Media and the Rwandan Crisis: Effects on Audience and Public Policy,” in World Orders in the Making—Humanitarian Intervention and Beyond, ed. J. N. Pieterse (Basingstoke: Macmillan, 1998). 52. Reuters, 15 July 1996.

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292 Notes 53. In August 1996, the Minister of Justice, Gerard Kamanda wa Kamanda, announced that the Rwandan refugees should leave by the end of the month. Communiqué conjoint sanctionnant la visite de travail de Premier Ministre de la république de Zaire en république Rwandaise du 21 au 22 août 1996. See also Security-Council, Letter from the Permanent Representative of Rwanda to the United Nations, S/1996/869, 23 October 1996, http://www.undemocracy. com/S-1996–869. 54. Fifteen thousand forced returns took place in August 1996. Four days later, Zaire’s policy of forced repatriation was suspended because UNHCR agreed to step up voluntary repatriation programs. 55. Howard Adelman, “The Use and Abuse of Refugees in Zaire,” in Refugee Manipulation: War, Politics, and the Abuse of Human Suffering, eds. Stephen John Stedman and Fred Tanner (Washington DC: The Brookings Institute, 2003), 95–134. 56. Other Hutu refugees, an estimated thirty thousand, continue to live in Uganda, twenty thousand in two camps, Nakivale and Nshungerezi; but in 2009 a joint Ugandan/Rwandan program was initiated to “sensitize” the refugees and prepare them for voluntary return (IRIN, Mbarara, 27 April 2009). 57. IRIN, Kigali, 11 November 2009. 58. Abbas H. Gnamo, “The Rwandan Genocide and the Collapse of Mobutu’s Kleptocracy,” in Path of a Genocide: The Rwanda Crisis from Uganda to Zaire, eds. Howard Adelman and Astri Suhrke (New Brunswick, NJ: Transaction Publishers, 1999), 321–50. 59. In 1981, Mobutu passed the Nationality Act. Descendents of people who migrated to Zaire after the colonial partition were no longer citizens of Zaire (IRIN, 29 January 1999). 60. Cf. Jean-Baptiste Kayigamba, “Haven for Killers in the Making,” Inter Press Service, 29 May 1996, 46 Dar es Salaam Radio, Immigration and Refugee Board of Canada (IRB), Rwanda: information sur l’existence de camps de réfugiés des Banyarwanda dans la préfecture de Gisenyi au Rwanda, près de la frontière zaïroise, 1 July 1996, RWA24728.F, http://www.unhcr.org/refworld/docid/3ae6aae144.html.  61. Catholic Relief Services, “Kivu Basin Situation Report,” 15 April 1996. 62. Up to three hundred thousand were expelled. William Cyrus Reed, “Refugees and Rebels: The Former Government in Rwanda and the ADFL Movement in Eastern Zaire,” USCRI (April 1997): 12; Médecins Sans Frontières, Ethnic Cleansing Rears its Head in Zaire: Population in Masisi Suffers Untold Hardship (Amsterdam: MSF, 1996). 63. Gérard Prunier, Rwanda Crisis, 197. Aside from those killed or imprisoned, one hundred thousand moved deeper into Zaire; within ten days the Burundian refugee camps had been emptied.

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293 Notes 64. The most widely cited figure of 3.8 million was said to have been exaggerated, but an International Rescue Committee study estimated that “5.4 million excess deaths have occurred between August 1998 and April 2007.” International Rescue Committee, Mortality in the DRC: An Ongoing Crisis (New York: IRC, 2008), http://www.theirc.org/resources/2007/2006–7_congomortalitysurvey.pdf. 65. Sixteen thousand DRC refugees in the Republic of Congo crossed the Ubanqui River and returned home through Buburu and Imese—1,946 in 2004, 7,286 in 2005, 10,655 in 2006, and 16,000 in 2007 for a total of 36,000 refugees. “Refugee repatriation from Congo gathers pace,” IRIN, Kinsasha, 29 October 2007. 66. International Crisis Group, Congo: Consolidating the Peace, Africa Report No. 128 (5 July 2007), www.crisisgroup.org/en/regions/africa/central-africa/drcongo.aspx. 67. “Tens of Thousands of IDPs on the Move in North Kivu,” IRIN, Nairobi, 13 November 2007; “Concern as Violence Causes More Displacement in North Kivu,” IRIN, Nairobi, 3 September 2007. 68. Some thirteen thousand DRC refugees fled the new outbreak of violence and crossed the border into Uganda in 2007, five thousand of them in the last week of October. “Influx of IDPs to Uganda as Clashes Continue in North Kivu,” IRIN, Kampala, 22 October 2007; “More People Flee from North Kivu to Uganda,” IRIN, Kampala, 30 October 2007. 69. “Violence Cuts of 150,000 from Aid—WFP,” IRIN, Goma, 8 October 2007. 70. IRIN, Goma, 27 February 2009. 71. IRIN, Kigali, 2 March 2009. 72. The International Crisis Group distributed a report on 9 July 2009 entitled “Congo: A Comprehensive Strategy to Disarm the FDLR” advocating the separation of the leadership from the rank and file, cutting off supplies, and ensuring civilian protection. The Rwandan-DRC military cooperation in Operation Umoja Wetu (Our Unity) in early 2009 was considered less successful than publicized. 73. John Sorenson and Atsuko Matsuoka, “Phantom Wars and Cyberwars: Abyssinian Fundamentalism and Catastrophe in Eritrea,” Dialectical Anthropology 26, no. 11 (2001): 37–63. 74. “A Preliminary Report on the Eritrean Nationals Expelled from Ethiopia,” Eritrean Relief and Refugee Commission, 27 July 1998; “Eritrean News Agency Update,” EritreanNews Agency, 6 August 1998. 75. Asmarom Legesse, “The Uprooted: Part II, A Scientific Survey of Ethnic Eritrean Deportees from Ethiopia Conducted with regard to Human Rights Violations,” Citizens for Peace in Eritrea (22 February 1999): 1. “A total of 54,000

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294 Notes of Eritrean origin were detained and then expelled between June 6 1998 to the resumption of fighting on 6 February 1999,” www-personal.umich. edu/~lormand/agenda/9905/24.pdf. Referenced in Amnesty International, Human Rights in a Year, 26, and in United States Bureau of Citizenship and Immigration Services, Ethiopia: Information on the Possible Arrest and Deportation of Ethiopian-citizen Spouses and Dependants of “Ethnic Eritreans,” 20 October 2000, ETH01001.ZAR, http://www.unhcr.org/refworld/docid/3dee061d4. html [accessed 11 August 2010]. 76. Legesse, “The Uprooted,” 10; “6.8% of them were party members (of the ruling EPRDF), 19.6% made financial contributions to the party’s campaign funds, and 45.2% voted to elect the party.” (Ibid., 13) 77. Ibid., 24, 30. 78. Prime Minister Meles Zenawi’s interview with Radio Ethiopia, 9 July 1998, published in Eritrea Profile, 8 August 1998 in Amharic. 79. Amnesty International, Ethiopia and Eritrea: Human Rights Issues in a Year of Armed Conflict, 21 May 1999. Afr 04/003/1999, www.unhcr.org/refworld/topi c,4565c225e,4565c25f167,3ae6a9e36,0.html. 80. “ICRC has repatriated prisoners of war and civilian internees,” ICRC News Release, 23 December 2000. In the end, 5,110 detained ethnic Ethiopians went to Ethiopia. 81. The Agreement on Cessation of Hostilities of 18 June 2000 created a temporary security zone (TSZ) if Eritrea restored its civilian administration, including police and local militia, there. UN Security Council, Progress report of the Secretary-General on Ethiopia and Eritrea, S/2001/608, 19 June 2001, http:// www.pca-cpa.org/showfile.asp?fil_id=143. 82. UNMEE Briefing in both Addis Ababa and Asmara, 6 July 2001. See IRIN, 9 July 2001. 83. Thomas Alexander Aleinikoff, “State-centered Refugee Law: From Resettlement to Containment,” Michigan Journal of International Law 14 (1992): 120– 138. 84. Guy Goodwin-Gill, “Voluntary Repatriation: Legal and Policy Issues,” in The Question of Refugees in International Relations, ed. Gil Loescher (Oxford: Oxford University Press, 1989), 270. 85. N. Ali-Ali, R. Black, and K. Koser, “The Limits to Transnationalism: Bosnian and Eritrean Refugees in Europe as Emerging Transnational Communities,” Ethnic and Racial Studies 24, no. 4 (2000): 580. See also Richard Black and Khalid Koser, eds., The End of the Refugee Cycle? (Oxford: Berghahn, 1999). 86. Inadequate rainfall, the resultant draught, and the consequent food crisis and need for food aid were the issues of greatest concern; other issues included cholera in border areas, state repression, the Djibouti-Eritrean conflict, and the

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295 Notes refusal of the Canadian government to grant an entry visa to Eritrea’s Foreign Minister in August 2008. 87. Jonathan Baker et al., “Religious Freedom in Eritrea,” Fall 2005, http://www. west.asu.edu/wpsimmons. 88. Alex de Waal, “Prospects for Peace in Sudan: Briefing,” Justice Africa (27 May 2003) (our italics). 89. See John Prendergast and Jerry Fowler, with contributions from Omer Ismail, Colin Thomas-Jensen, Amjad Atallah, Amir Osman, and Gayle Smith, “Rerelease: Creating a Peace to Keep in Darfur: A Joint Report by the ENOUGH Project and the Save Darfur Coalition (Strategy),”14 May 2008, http://www. enoughproject.org/publications/re-release-creating-peace-keep-darfur-jointreport-enough-project-and-save-darfur-coali. 90. Cf. Karen Jacobsen, “Internal Displacement in Urban Areas: the Tufts-IDMC Profiling Study, Khartoum, Sudan,” the Feinstein International Center, Tufts University in collaboration with the Internal Displacement Monitoring Centre in Geneva. Jacobsen noted, “in many conflict zones today, the targeting and uprooting of rural populations and their forced displacement is an integral part of the war strategies of rebel or government forces.” 91. Created under Security Council Resolution 1769 of 31 July 2007, UNAMID was one of the largest peacekeeping operations in the world. See www.un.org/ News/Press/docs/2007/sc9089.doc.htm. 92. International Crisis Group, “Chad: Powder Keg in the East,” 15 April 2009. 93. IRIN, 16 January 2008, http://www.irinnews.org/Report.aspx?ReportId=76270. 94. UNAMID, Darfur Mandate, http://www.un.org/Depts/dpko/missions/unamid/mandate.html. 95. “South Africa: Xenophobic Attacks Spreading,” IRIN, 23 May 2008, http:// allafrica.com/stories/200805231033.html.

7. From Jewish Messianism to the Law of Return 1. Zionist classical narratives include: Arthur Hertzberg, ed., The Zionist Idea: A Historical Analysis and Reader (New York: Garden City Press, 1959); Walter Laqueur, A History of Zionism: From the French Revolution to the Establishment of the State of Israel (New York: Schocken, 1972); Shlomo Avineri, The Making of Modern Zionism: Intellectual Origins of the Jewish State (New York: Basic Books, 1981). For a more recent justification, see Ruth Gavison, “The Jew’s Right to Statehood: A Defense” Azure 15 (2003): 71–109; and “The Jewish State: A Justification,” in New Essays in Zionism, eds. David Harzony et al. (Jerusalem: Shalem Press, 2006), 3–36.

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296 Notes 2. Bernie Avishai, The Tragedy of Zionism (New York: Farrar, Straus, Giroux, 1985). 3. Gershom Scholem, Messianism and Eschatology: A Collection of Essays (Jerusalem: Judah Magnes Press, 1983); Jacqueline Rose, The Question of Zion (Princeton, NJ: Princeton University Press, 2005), see esp. chapter 1. 4. Andrew A. Bonar and Robert Murray M’Cheyne, Narrative of a Visit to The Holy Land (Edinburgh: Church of Scotland, 1842, 1878); reprinted by Christian Focus Publications, Fearn by Tain, Scotland, 1996. 5. Gotthard Deutsch, “The Damascus Affair,” Jewish Encyclopedia, http://www. jewishencyclopedia.com/view.jsp?artid=22&letter=D. 6. Barbara W. Tuchman, Bible and Sword: England and Palestine from the Bronze Age to Balfour (New York: Knopf, 1956; 1984), 176. 7. George Eliot’s Daniel Deronda followed the publication of her most famous novel, Middlemarch. Daniel was a Zionist hero, not a convert to Christianity, who discovers his national heritage. The novel promoted the restoration of a Jewish commonwealth. See Edward Said’s appreciation and critique of the novel in The Question of Palestine (New York: Vintage, 1992), 61, 66. 8. For an excellent critical review of the historiography of this nineteenth-century British movement, see Eitan Bar-Yosef, “Christian Zionism and Victorian Culture,” Israeli Studies 8, no. 2 (2003): 18–44; he argues that the movement flourished only on the margins and percolated up to decision makers during times of crisis. 9. The books of Ezra and Nehemiah were likely composed a couple of hundred years after the repatriation from Babylon (350–300 B.C.E.) when the struggle against assimilation and over the supremacy of the diaspora vis-à-vis the returnees provided a prequel for twentieth-century Zionists. Yaacov Shavit, “Cyrus King of Persia and the Return to Zion: A Case of a Neglected Memory,” History and Memory 2, no. 1 (Fall 1990): 51–83; Peter R. Bedford, “Diaspora: Homeland Relations In Ezra-Nehemiah,” Vetus Testamentum 52, no. 2 (2002): 147–65; R. P. Carroll, “The Myth of the Empty Land,” Semeia 59 (1992): 79–93. Zechariah 1–8 explicitly deals with the hardships in the Holy Land and the reintegration of expatriates between 538 and 520. See Peter R. Bedford, Temple Restoration in Early Achaemenid Judah (Leiden: Brill, 2001), 274–85; and S. M. Olyan, “Purity Ideology in Ezra-Nehemiah as a Tool to Reconstitute the Community,” Journal for the Study of Judaism 35, no. 1 (2004): 1–16. 10. The barrel-shaped clay “Cyrus Cylinder” from Babylon, now in the British Museum, records, “I returned [the gods] to their places and housed them in lasting abodes. I also gathered all their former inhabitants and returned to them their habitations.” Ezra 1:1–3 records that the captives deported by Nebuchadnezzar were allowed to return to Jerusalem and rebuild their temple.

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297 Notes 11. Shlomo Sand (When and How Was the Jewish People Invented? tr. Yael Lotan [London: Verso, 2009]) provides a provocative and controversial critique of the historical veracity of the exile, the narrative of the Jewish diaspora, and its primogeniture right to the land and return. He revives Arthur Koestler’s claim that most European Jews are descendents of the Khazars. 12. See Haggai and Zechariah 1–8. Indeed, comparing Ezra and Nehemiah with the reading of Isaiah 56:5, one encounters in the latter a repatriation free of exclusions. 13. Susan Sontag in Regarding the Pain of Others (New York: Farrar, Strauss, and Giroux, 2002) denies the reality of collective memory. She called it “collective instruction.” Memory’s relation to the past may not be exclusively historical in nature but it may have a cosmological, political, psychological, ethical, or aesthetic dimension. 14. Erich S. Gruen, Diaspora: Jews Amidst Greeks and Romans (Cambridge, MA: Harvard University Press, 2002). 15. For a collection of artistic renditions that place Jerusalem at the center of Jewish life in the pre-Zionist days and its relation to contemporary Israeli selfperception, see Israel Ministry of Foreign Affairs, “If I forget thee . . . ”: Longings for Jerusalem in the Jewish Folk Art of Eastern Europe, 6 September 2003, http:// www.mfa.gov.il/. 16. Orthodox Judaism was conflicted over the “return to Zion” and opposed modern secular Zionism. For the immediate aftermath of the first Zionist Congress, see Joseph Avneri, “National ‘Guide of the Perplexed’ Published 110 Years Ago: A Review Essay,” Modern Judaism 22, no. 2 (2002): 199–206. 17. Michael Walzer, Exodus and Revolution (New York: Basic Books, 1985). See also Jonathon Boyarin, “Reading Exodus into History,” New Literary History 23 (1992): 523–554. 18. This is, of course, the benefit of myth over history. Myth transcends history’s boundedness precisely because it is not wedded to the particular empirical details of “what happened,” in Lang’s word’s, “independent of history, weightless, untouched by motive, cause or purpose,” remaining “ahistorical, transcending its immediate circumstances” (Berel Lang, Holocaust Representation: Art within the Limits of History and Ethics [Baltimore: John Hopkins University Press, 2002], 161). Myth may be unfit to bear the weight of history, but because it is not itself intrinsically bound to that history, it is free to re-form it in whatever way it sees fit. 19. As counterhistories go, the imagination of “what if” Zionism had settled in Africa, with a potential haven for European Jewry in the 1930s, awaits its own historical fiction.

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298 Notes 20. Theodor Herzl, The Complete Diaries of Theodor Herzl, ed. Raphael Patai, trans. Harry Zohn (New York: Herzl Press, 1960), 21 November 1985, quoted in Shlomo Avineri, “Theodor Herzl’s Diaries as a Bildungsroman,” Jewish Social Studies 5, no. 3 (1999): 1–46. 21. Laqueur, A History of Zionism; Howard M. Sachar, A History of Israel: From the Rise of Zionism to Our Time, 2nd ed. (New York: Knopf, 1996); Hedva Ben-Israel, “Zionism and European Nationalisms: Comparative Perspectives,” Israel Studies 8, no. 1 (2003): 91–104. 22. Gur Alroey, Immigrants: Jewish Immigration to Palestine in the Early Twentieth Century (Jerusalem: Yad Ben Zvi, 2004) estimates that only a fraction of the second Aliya was ideological, while most were “motivated by demographics (the growing birthrate among the Jews of Eastern Europe), politics (riots and pogroms), and, of course, economic opportunity,” similar to the millions that migrated to the New World. In comparison to Europe and New York, for many of those “penniless refugees, Jaffa was the better option in terms of housing and the cost of basic foodstuffs,” while living conditions were somewhat easier. See Zohar Shavit, “Pros and Cons: The Picture that Emerges from this Groundbreaking Book is Light-Years Away from the Pioneering Image of the Second Aliyah,” Haaretz, 10 June 2004, B8. 23. Steven P. Schneider, “A. D. Gordon: ‘Tolstoy in Palestine,’” Judaism: A Quarterly Journal of Jewish Thought and Life (Fall 2000). The last two lines of the poem that begins: “Like Tolstoy, you longed to connect your life / to the soil. / You turned your back / on property, family, the high culture of Russia— / to live with peasants, / to work the vineyards and orange groves of Rishon Le-Zion.” 24. Herzl, Ben-Gurion, and even Jabotinski, the most right-wing major leader, described the Arab minority in Palestine as enjoying equality in a Jewish state. 25. Fred J. Khouri, The Arab-Israeli Dilemma (Syracuse: Syracuse University Press, 1968), 211. 26. Palestine Royal Commission 1936–1937 (Peel Commission), London, British Government, 80. See also chapter 8 of this book. 27. If the Zionist debate had been wrenching over their own leadership’s action on matters of which their influence was at best marginal (inability to save European Jewry), the historical revisiting of the political and ideological approach with which the Yishuv dealt with the Jewish victims was more so. The stance was propelled in part by the sense of superiority of the Zionist leadership and public in Palestine over diaspora Jewry that had remained in Europe. 28. See Dalia Ofer, Escaping the Holocaust: Illegal Immigration to the Land of Israel, 1939–1944 (Oxford: Oxford University Press, 1991) on the “Ambivalent Zionist Leadership” and the debate over how many Jews the Yishuv could accept at

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299 Notes the beginning of the war. The British prohibition of immigration and the war meant that only a few could come. During the war (September 1939–45) less than fifty thousand Jews migrated, of whom just over twelve thousand were illegal (319). 29. Tom Segev, The Seventh Million: The Israelis and the Holocaust (New York: Hill and Wang, 1993), presents the most widely read critique, while Shabtai Teveth, Ben-Gurion and the Holocaust (New York: Harcourt Brace, 1996), presents the refutation of the critics of the Zionist leadership. See also Tuvia Friling, Arrows in the Dark: David Ben-Gurion, the Yishuv Leadership, and Rescue Attempts during the Holocaust (Madison, WI: University of Wisconsin Press, 2004); Idith Zertal, From Catastrophe to Power: Holocaust Survivors and the Emergence of Israel (Los Angeles, CA: University of California Press, 1998); Hana EshkoliWagman, “Yishuv Zionism: Its Attitudes to Nazism and the Third Reich Reconsidered,” Modern Judaism 19, no. 1 (1999): 21–40. 30. Segev, The Seventh Million, 113–22. See also Zertal, From Catastrophe to Power. 31. Amos Oz shares this misperception in his memoirs, A Tale of Love and Darkness. 32. Irving Abella and Harold Troper, None Is Too Many: Canada and the Jews of Europe 1933–1948 (Toronto: Lester and Orpen Dennys, 1982). 33. The heroic struggles of Frances Perkins, the labor minister in the Roosevelt government, against her own administration’s policies, sadly, were the exception. Bat-Ami Zucker, “Frances Perkins and the German-Jewish Refugees 1933–1940,” American Jewish History 89, no. 1 (2001): 35–59. In contrast, though the British were criticized for treating the refugees as effectively bogus asylum seekers, “escape to Britain was an exception for the lucky few; exclusion was the fate of the majority.” London, Whitehall and the Jews, 12. The British did admit eighty thousand, moved in part by their exclusionary policies in Palestine. Compare that to the paltry five thousand admitted by Canada over a fifteen-year period. The most depressing aspect of the whole tragic period is that the attitudes did not change after the war. 34. See the memoirs of the committee chair, Judge Joseph C. Hutcheson of Texas, Talton Law Library, University of Texas, Austin. We thank Professor David Adelman of the Law School for accessing the memoirs for us. See also Leonard Dinnerstein, “America, Britain, and Palestine: The Anglo-American Committee of Inquiry and the Displaced Persons, 1945–46,” Diplomatic History 4, no. 3 (June 2007): 283–302. Recall that the creation of the Anglo-American Committee of Inquiry was a response to Harry Truman’s one-person commission, the former US Commissioner of Immigration Earl G. Harrison and his horrifying report on the conditions of Jews in the camps in which the Allies were characterized as treating the Jews as the Nazis had.

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300 Notes 35. For a more detailed account of the Arab efforts to keep the Jews from moving to Palestine via the debates over the IRO constitution and in the United Nations, see Jacob Robinson, Palestine and the United Nations: Prelude to Solution (Washington, DC: Public Affairs Press, 1947), chapter 2.  36. The Avalon Project at the Yale Law School Constitution of the International Refugee Organization, 15 December 1946, http://www.yale.edu/lawweb/avalon/decade/decad053.htm.  37. As the Report of the High Commissioner for Refugees submitted to the Twenty-First Ordinary Session of the League of Nations Assembly noted, “Palestine alone has made a contribution of any size in reference to large-scale or group settlement of Jews.” League of Nations, Records of the Twenty-First Ordinary Session of the League of Nations (Geneva, April 1946), 232. 38. Initially, the Allied Military Administration ran the DP camps. As part of an attempt to dispatch the DPs quickly to their countries, General Patton sought to repatriate the Jews to the countries from which they were expelled. The refugees refused. Soon they had their own organizations in several camps, and eventually most migrated to Israel, Australia, Canada, and the United States. 39. Mr. Kamel, the delegate of Egypt, proposed amending paragraph 2 of the Preamble of the Draft Constitution of the IRO to require serious reasons to justify resettlement. Though defeated, on 19 November 1946, Kamel tried again unsuccessfully by proposing the deletion of the phrase “concerning displaced persons” from annex I, section IB. Passing the amendment would have meant that repatriation was advisable for both refugees and displaced persons. See Robinson, Palestine and the UN, 15. 40. Twenty-First meeting of the Third Committee of the UN General Assembly on 12 November 1946, annex 1, part 1, section H, paragraph 3. 41. Fifth Meeting of the Committee of the Whole on Refugees and Displaced Persons of ECOSOC, 19 June 1946. 42. Zertal suggests that, despite internal disputes among the Zionist leadership, the order for the refugees after two months on the ships to battle and refuse disembarkation on German land when taken to Hamburg, privileged Zionist publicity goals over refugee security. Contemporary opinions testify that at least some of the refugees agreed with the plan to resist. The Jewish Agency attempted to stop Denmark and France from offering a haven and insisted that the refugees be allowed to go only to their choice of destination (Palestine) (Zertal, From Catastrophe to Power, 244–54.). 43. The United Nations Special Committee on Palestine (UNSCOP) Report, 31 August 1947, 15. 44. This represented 60 percent of the estimated number of Jewish refugees in Europe.

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301 Notes 45. Angelika Königseder and Juliane Wetzel, Waiting for Hope: Jewish Displaced Persons in Post–World War II, trans. John A. Broadwin (Evanston, IL: Northwestern University Press, 2001). For example, the authors describe the elections on 7 January 1946 in Föhrenwald, a displaced persons camp run by the Americans in Germany. They describe how the Zionists emerged as the clear winners in the elections (98). 46. Oz Almog, The Sabra: The Creation of the New Jew (Berkeley: University of California Press, 2000), quoted in Gulie Ne’eman Arad, “Israel and the Shoah: A Tale of Multifarious Taboos,” New German Critique 90 (Autumn 2003): 5–26. 47. The minimal reporting in the Hebrew press about the destruction of Jews in Europe, relative to the reports on the war, served as a kind of distancing, of “a feeling of stinging mortification” stemming from the failure of courage by Jews in Europe to defend themselves. Yitzhak Gruenbaum, quoted in Segev, The Seventh Million, 109. 48. Aharon Appelfeld, “Fifty Years after the Great War,” quoted in Arad, “Israel and the Shoah.” Arad points to the eagerness of Israel to bring to trial the Jews who “collaborated” with the Nazis. About forty cases of these “disreputable” survivors were tried under the “Law for the Punishment of Nazis and Their Collaborators” between 1951 and 1961. 49. Emil L. Fackenheim, The Jewish Return into History: Reflections in the Age of Auschwitz and a New Jerusalem (New York: Schocken Books, 1980). 50. Ayelet Shachar, “Whose Republic? Citizenship And Membership In The Israeli Polity,” Georgetown Immigration Law Journal 13 (1999): 233–277; Yaffa Zilbershats, “Reconsidering the Concept of Citizenship,” Texas International Law Journal 36 (Summer 2001): 689–734. 51. Cf. Bernie Avishai, The Hebrew Republic: How Secular Democracy and Global Enterprise Will Bring Israel At Last (New York: Harcourt, 2008). 52. Yfaat Weiss, “The Golem and Its Creator, or How the Law of Return made Israel into a Multi-ethnic State,” in Challenging Ethnic Citizenship: German and Israel Perspectives on Immigration, eds. Daniel Levy and Yfaat Weiss (New York: Bergahn Books, 2002), 82–106. See also Ian S. Lustick, “Israel as a Non-Arab State: The Political Implications of Mass Immigration of Non-Jews,” Middle East Journal 53, no. 3 (Summer 1999): 101–17. 53. Iraqi Foreign Minister Fadil Jamali, quoted in UN General Assembly, Official Records of the Second Session of the General Assembly, A/PV.126, Verbatim Record of the Plenary Meeting, Flushing Meadow, NY, 28 November 1947. 54. Heykal Pasha, an Egyptian delegate, quoted in UN General Assembly, Official Records of the Second Session of the General Assembly, Ad Hoc Committee on the Palestinian Question, Summary Records of Meetings, Lake Success, NY, 14 November 1947, 185.

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302 Notes 55. See chapter 8. 56. “At times, Iraqi politicians candidly acknowledged that they wanted to expel their Jewish population for reasons of their own, having nothing to do with retaliation for the Palestinian exodus  .  .  . Iraq’s Prime Minister Nuri Sa’id described a plan to expel Jews from Iraq to Alec Kirkbride, then the British ambassador at Amman, and Samir El-Rifa’i, head of the Jordanian government. . . . Nuri probably chose the British embassy in Amman as the site at which to disclose his plan to the head of the Jordanian government because high-ranking British officials had often spoken of the need to exchange Palestinian Arab and Arab Jewish populations, and he most likely expected British understanding of, if not support for, his scheme.” Cf. Ya’akov Meron, “Why Jews Fled the Arab Countries,” The Middle East Quarterly 2, no. 3 (1995). Meron, contrary to our position, argues that the Arab states conspired to expel the Jews (http://www.meforum.org/article/263). 57. Yehouda Shenhav, The Arab Jews: A Postcolonial Reading of Nationalism, Religion, and Ethnicity (Stanford: Stanford University Press, 2006), 126–131. 58. Meron, “Why Jews Fled the Arab Countries”; Mallory Browne in the New York Times (16 May 1948) wrote that “already in some Moslem states such as Syria and Lebanon there is a tendency to regard all Jews as Zionist agents and ‘fifth columnists’. . . . There are indications that the stage is being set for a tragedy of incalculable proportions.” The draconian measures contemplated and actually applied to Jewish citizens at the time were part of the plan of ethnic cleansing and genocide that the Arab states had undertaken in the Draft Arab League Law Against Jews, drafted by the Political Committee of the Arab League, and were “intended to govern the legal status of Jewish residents in all Arab League countries.” At an unspecified date, all Jews in Arab states would be considered “members of the Jewish minority state of Palestine.” Their bank accounts would be frozen and used to finance resistance to “Zionist ambitions in Palestine.” Jews believed to be active Zionists would be interned and their assets confiscated. Although the report was “debated, no decisions were made.” 59. As Mallory reported, in Syria all Jewish civil servants employed by the Syrian Government were discharged and freedom of movement was “practically abolished.” In Iraq, no Jew was permitted entry, and Jews who wanted to leave had to deposit $20,000 as a guarantee of return. In Lebanon, Jews were forced to make donations for anti-Israel political activities. Jews were accused of “poisoning wells.” 60. Of the 850,000 Jewish refugees from Arab countries, about 600,000 found their way to Israel as a result of their expulsion and migration after 1948, while others migrated to different countries. The displacement took fifteen years

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303 Notes and was often caused by discrimination and harassment rather than outright expulsion. The claim that the victims were not refugees because the migration of Jews was welcomed by Israel is unwarranted. Fear played a major role in the displacement as the anti-Jewish policies inflicted on Jews throughout the Arab world were continuously aggravated and expanded. 61. David Matas and Stanley A. Urman, Jewish Refugees from Arab Countries: The Case For Rights And Redress (privately published report, Justice for Jews from Arab Countries, New York, 2002). The sum is recognized to be political rather than an actuarial evaluation. 62. Shenhav, The Arab Jews, 126–131. 63. Alexandre S. Kedar, “The Legal Transformation of Ethnic Geography: Israeli Law and The Palestinian Landholder 1948–1967,” NYU Journal of International Law and Politics 33, no. 4 (2001): 910–997. Kedar examines the role of the Israeli legal system in appropriating Palestinian land in the first few years of the state and compares the process with that used by the US and Australia to gain control over aboriginal land, especially in the use of procedural and evidentiary rules that benefited the state. Also see Eyal Benvenisti and Eyal Zamir, “Private Claims to Property Rights in The Future IsraeliPalestinian Settlement,” The American Journal International Law 89 (1995): 295–340. 64. Lilly Weissbrod, “Gush Emunim and the Israeli-Palestinian Peace Process: Modern Religious Fundamentalism in Crisis,” Israel Affairs 3, no. 1 (1996): 86–103; Gideon Aran, “Jewish Zionist Fundamentalism: The Bloc of the Faithful in Israel (Gush Emunim),” in Fundamentalism Observed: The Fundamentalist Project, eds. Martin E. Marty and R. Scott Appleby, vol. 1 (Chicago: University of Chicago Press, 2001), 265–344. 65. See also United Nations Commission on Human Rights Sub-Commission on the Prevention of Discrimination and Protection of Minorities (1998), Resolution on Housing and Property Restitution in the Context of Return of Refugees and Internally Displaced Persons, 1998/26, Geneva, UNCHR. 66. Avi Becker, “Respect for the Jews of the Arab states,” Haaretz, 20 July 2003. 67. Shenhav, The Arab Jews. 68. Ibid. Shenhav sees it as a disruption of the Zionist narrative in contrast to the views of those he quotes, at least some of whom view it as anchoring the Zionist legitimacy in a long Jewish history in the region. 69. Ya’akov Meron, “Why Jews Fled the Arab Counties.” Middle East Quarterly, September 1995, 47–55. 70. Israeli TV interview, 28 July 2000, quoted in Matas and Urman, Jewish Refugees.

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304 Notes 71. US House International Relations Committee, H.R. 1950, reported 16 May 2003; US House of Representatives, H. Con. Res. 311, 108th Congress, First Session, 28 October 2003. 72. Bicameral Congressional Human Rights Caucus, Congressional Hearing on Jewish Refugees (Hearing to discuss House Resolution 185 and Senate Resolution 85, 19 July 2007).

8. Palestinians and the Right of Return 1. Cf. Sami Hadawi, Palestinian Rights and Losses in 1948 (London: Saqi Books, 1988); Nur Masalha, A Land without a People: Israel, Transfer and the Palestinians (London: Faber and Faber, 1997); Yoav Gelber, Palestine 1948: War, Escape and the Emergence of the Palestinian Refugee Problem (Sussex, UK: Sussex Academic Press, 2006); Steven Glazer, “The Palestinian Exodus in 1948,” Journal of Palestine Studies 9, no. 4 (Summer 1980): 96–118. For the best study of the exodus, see Benny Morris, The Birth of the Palestinian Refugee Problem 1947– 1949 (Cambridge: Cambridge University Press, 1987). 2. Abba Eban, Letter to the Editor, Jerusalem Post, 4 August 1989. 3. Cf. Michael Dumper, The Future for Palestinian Refugees: Toward Equity and Peace (Boulder, CO: Lynne Rienner, 2007). See also his edited volume, Palestinian Refugee Repatriation: Global Perspectives (New York: Routledge, 2006). 4. Susan Mussarat Akram, “Palestinian Refugees and the Right of Return,” in Encyclopedia of the Israeli-Palestinian Conflict, ed. Cheryl Rubenberg (Boulder, CO: Lynne Rienner Publishers, 2010); Susan M. Akram, “Palestinian Refugees and Their Legal Status: Rights, Politics, and Implications for a Just Solution,” Journal of Palestine Studies 31, no. 3 (Spring 2002): 36–51. 5. In the Palestinian narrative, redress accompanies or follows from the right of return. For a laser focus on redress only, cf. Rex Brynan, “The Funding of Palestinian Refugee Compensation,” Palestinian Refugee Research Net (PRRN), March 1996, http://prrn.mcgill.ca/research/papers/brynen1.htm. In the Jewish narrative of the Jewish refugees from Arab lands, redress is the first priority (see chapter 7). 6. For a very one-sided account, see Naseer Aruri, ed., Palestinian Refugees: The Right of Return (London: Pluto Press, 2001). 7. Don Peretz, Palestinians, Refugees, and the Middle East Process (Washington, DC: US Institute of Peace Press, 1993) and Elia Zureik, Palestinian Refugees and the Peace Process (Washington, DC: The Institute for Palestine Studies, 1996).

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305 Notes 8. Salman H. Abu-Sitta, “The Feasibility of the Right of Return,” ICJ and CIMEL paper, June 1997, http://prrn.mcgill.ca/research/papers/abusitta.htm;Michael Palumbo, The Palestinian Catastrophe (London: Quartet Books, 1987). 9. Yasser Arafat, “Nakba Day Speech” (Al-Hayat al-Jadida [The New Life]), 15 May 2003; English translation: (MEMRI), Nakba Day: Statements on the Palestinian Right of Return, The Middle East Media Research Institute Special Dispatch, 28 May 2003, http://www.memri.org/report/en/0/0/0/0/0/0/877.htm. The statement reflects deep Palestinian sentiments but the harsh and bitter tone may reflect its context—the height of the siege on the muqata’ah during the Second Intifada. 10. Interview with forty-five-year-old Haidar Eida, Deir Ammar Camp, Abu al-Fadl, 23 July 1997, in Adel H. Yahya, “The Meaning of Return for Different Constituencies of Palestinian Refugees in the West Bank and Gaza Strip,” presented at “Refugee Repatriation,” Ramallah, Palestine, 6–8 March 2004. Refugee testimonies are plentiful. See Civitas, Foundations for Participation: Civic Structures for the Palestinian Refugee Camps and Exile Communities, Nuffield College, Oxford University, 2004, http://www.civitas-online.org; Rashid Khalidi, “Observations on the Right of Return,” Journal of Palestine Studies 21, no. 2 (Winter 1992): 31. 11. UN General Assembly, Resolution 194 (III), A/RES/194(III), 11 December 1948, paragraph 11; Al-Hayat al-Jadida, 16 February 2003. 12. Ron Kuzar, “The Term Return in the Palestinian Discourse on the Right of Return,” Discourse Society 19 (2008): 629–644. 13. See Benevisti, Gans, and Hanafi, Israel and the Palestinian Refugees. 14. When Khalil Shikaki, the noted Palestinian pollster, in 2003 announced his finding that most refugees did not anticipate or want to return, his press conference was disrupted. “Palestinians Riot to Stop Release of Survey,” Reuters, 13 July 2003. 15. Report of the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, 1 January–31 December 2008, United Nations: New York, UN General Assemby Official Records, SixtyFourth Session, Supplement No. 13, 1. 16. Though for the last five decades, all Palestine refugees have been Arab Palestinians, in 1950 Palestine refugees included both Jews and Arabs. There were 37,000 Jewish Palestine refugees registered with UNRWA in 1950. 17. Cf. See also UNRWA, “Publications/Statistics,” http://www.unrwa.org/etemplate.php?id=253. 18. UNRWA registered 914,000 Palestine refugees in 1950, of which 37,000 were Jews. The balance (877,000) was inflated. There is a consensus in current

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306 Notes scholarship that 720,000 Arab refugees was the realistic figure. For the most authoritative demographic study, see Janet L Abu-Lughod, “The Demographic Transformation of Palestine,” in Transformation of Palestine, ed. Ibrahim AbuLughod (Evanston, IL: Northwestern University Press, 1971), 139–163. 19. “Palestine refugees are persons whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict.” UNRWA, “Palestine Refugees,” http://www.un.org/unrwa/refugees/whois.html. 20. Abu Zayd, “Sixty Years Later: Challenges of Palestinian Refugee Camps within Their Arab Host Communities,” http://staff.aub.edu.lb/~webbultn/v9n5/ article25.htm. For a figure of seven million, see Palestinian figures provided by the Badil Resources Center, for Palestinan Refugee and residency Rights, Bethlehem, Palestine, http://www.badil.org, and The Palestine Center, Washington, DC, http://www.thejerusalemfund.org/ht/d/sp/i/223/pid/223. See also Terry Rempel, “Who Are Palestinian Refugees?” Forced Migration Review 26 (August 2006). Some argue the number goes as high as eight or even nine million based on Palestinian self-definitions rather than status. 21. Avi Plascov, Palestinian Refugees in Jordan, 1948–1957 (London: Routledge, 1981). The figures above do not include the Palestinian refugees who fled Iraq. See the UNRWA, “Publications/Statistics,” http://www.un.org/unrwa/publications/index.html. 22. According to Sherif Elsayed-Ali (“Palestinian Refugees in Lebanon,” Forced Migration Review 26 [August 2006]), there were 250,000 refugees living in Lebanon in 2006. This count includes both UNRWA registered refugees, other Palestinians with papers, and the 3,000–5,000 undocumented Palestinian refugees. Cynthia Petrigh, “No Freedom, No Future: Undocumented Palestinian Refugees in Lebanon,” Forced Migration Review 26 (August 2006). 23. Palestinian refugees in Lebanon include the highest percentage of those living in abject poverty compared to any other host country. While some own property and are well off, many endure overcrowding, poverty, and unemployment in the camps and lack social and civil rights in Lebanon with very limited access to the government’s public health or educational facilities. See UNRWA, “Refugees in Lebanon,” 31 December 2006, http://www.unrwa.org/etemplate. php?id=65. See also Wadie Said, “May 24: The Status of Palestinian Refugees In Lebanon,” The Palestine Center Information Brief, 24 May 2000, http:// www.thejerusalemfund.org/ht/display/ContentDetails/i/2150/pid/2254. Sari Hanafi, “Palestinian Refugee Camps in Lebanon: Laboratories of State-in-theMaking, Discipline and Islamist Radicalism,” unpublished working paper, www.cmi.no/file/?128; Murad Al-shishani, “Salafi-Jihadist Movement Becom-

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307 Notes ing a New Force in Lebanon,” Terrorism Focus 3, no. 13 (April 2006): 4. This was most apparent in the Nahr al-Bared conflict in 2007. 24. Ann Lesch, “Palestinians in Kuwait,” Journal of Palestine Studies 10, no. 4 (Summer 1991): 42; and Samih Farsoun and Naseer Aruri, Palestine and the Palestinians: A Social and Political History, 2nd ed. (Boulder, CO: Westview Press, 2006). There were 400,000 Palestinians working in Kuwait before the Gulf War. Global Exchange (“The Palestinian Diaspora: A History of Dispossession,” 2 October 2005, http://www.globalexchange.org) claims there were only 312,000 in Kuwait in 1990. 25. Statement on Socio-Economic Rights of Palestinians in Lebanon, http://domino.un.org/unispal.nsf/22f431edb91c6f548525678a0051be1d/1ff8587d5032893 685257783004bc157?OpenDocument. 26. See Amnesty International, Iraq: Human Rights Abuses Against Palestinian Refugees, 1 October 2007, http://www.amnesty.org/en/library/info/ MDE14/030/2007, for descriptions of the serious human rights abuses to which the Palestinian refugees were subjected in Iraq. See chapter 10. 27. Ward Sayre and Jennifer Olmsted, “Economics of Palestinian Return Migration,” Middle East Report, http://www.merip.org/mer/mer212/212_olmsted_ sayre.html; Michele Chabin (“An Uneasy Homecoming,” Jerusalem Post, 21 July 1998) claims 40,000 to 50,000 legal returnees and up to 50,000 unofficially repatriated returnees. In a Palestinian Diaspora and Refugee Center (Shaml) publication (Reintegration of the Palestinian Returnees, Monograph #6 [Bethlehem: Shaml Publication, 1997]), figures offered include 52,000 and 60,000. 28. This conclusion is drawn from Howard Adelman’s reading of Palestinian refugee organization files that had been kept in Orient House when Faisal Husseini was in charge and is supported by a 1952 memorandum submitted to the League of Arab States by the Higher Arab Committee. See Joseph B. Schechtman, The Refugees in the World (New York: Barnes, 1963), 197. 29. When in 1950 Jordan and Israel were on the verge of concluding a separate five-year non-aggression agreement, the Arab League voted to expel any Arab state that decided to conclude a separate military, political, or economic agreement with Israel. Cf. C. Ernest Dawn, “Pan Arabism and the Failure of IsraeliJordanian Peace: Negotiation 1950” in Islam and its Cultural Divergence, ed. Girdhari L. Tikku (Urbana, IL: University of Illinois Press, 1971), 27–51; Avi Shlaim argued that the Israelis had already rebuffed King Abdullah. See Collusion Across the Jordan: King Abdullah, The Zionist Movement and Palestine, 1921–1951 (Oxford: Oxford University Press, 1988); See also Avi Shlaim, The Iron Wall: Israel and the Arab World (New York: Norton. 2000). Avi Shlaim, Lion of Jordan:

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308 Notes The Life of King Hussein in War and Peace (London: Allen Lane, 2007). For an examination of Shlaim’s thesis, see Yoav Gelber, Israeli-Jordanian Dialogue 1949–1953: Cooperation, Conspiracy or Collusion? (Brighton, UK: Sussex Academic Press, 2004). 30. At the UN Conciliation Commission for Palestine (UNCCP) negotiations in Lausanne in 1949, Israel offered to take back one hundred thousand Palestinian refugees in a family unification program and has since allowed more than fifty thousand refugees to return under such a program, even though “in the view of the Government of Israel, such repatriation must form part of a comprehensive plan for the settlement of the entire refugee problem; and this repatriation would be put into effect only as an integral part of a general and final peace settlement.” UNCCP, Report to the General Assembly, Fourth Progress Report, A/992, 22 September 1949. Arab states rejected the offer. See Neil Caplan, “A Tale of Two Cities: Rhodes and Lausanne Conferences 1949,” Journal of Palestine Studies 21, no. 3 (1992): 5–32. 31. Resolution 194 “was passed soon after the assassination of Count Folke Bernadotte  .  .  . and partly expresses the anger of the UN member states over the assassination.” MidEast Web Historical Documents,United Nations General Assembly Resolution 194 (III), 11 December 1948,http://www.mideastweb .org/194.htm. Clause 11 reads:“Resolves that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.” 32. See the report of the National Information Service (SHAI) wing of Haganah, “The Emigration of Palestinian Arabs in the Period 1/12/1947–1/6/1948,” 30 June 1948, quoted in “The Expulsion of the Palestinians Re-examined,” Le Monde diplomatique, December 1997, http://mondediplo.com/1997/12/palestine: “‘At least 55% of the total of the exodus was caused by our (Haganah/ IDF) operations.’ To this figure, the report’s compilers add the operations of the Irgun and Lehi, which ‘directly (caused) some 15% . . . of the emigration.’ A further 2% was attributed to explicit expulsion orders issued by Israeli troops, and 1% to their psychological warfare.” See Benny Morris, The Birth of the Palestinian Refugee Problem Revisited, 2nd ed. (Cambridge: Cambridge University Press, 2004); Amnon Kapeliouk, “New Light on the Israeli-Arab Conflict and the Refugee Problem and Its Origins,” Journal of Palestine Studies 16, no. 3 (Spring 1987): 21. 33. In September 1948, Bernadotte concluded that the exodus of Palestinian Arabs resulted from “the panic created by fighting in their communities, by ru-

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309 Notes mors concerning real or alleged acts of terrorism, or expulsion.” Quoted in Lex Takkenberg, The Status of Palestinian Refugees in International Law (Oxford: Clarendon Press, 1998), 14. See Nell Gabiam, “Negotiating Rights: Palestinian Refugees and the Protection Gap,” Anthropological Quarterly 79, no. 4 (2006): 717–730; Nur Masalha, Expulsion of the Palestinians: the Concept of “Transfer” in Zionist Political Thought, 1882–1948 (Washington, DC: Institute for Palestine Studies, 1992); Nur Masalha, The Politics Of Denial: Israel and the Palestinian Refugee Problem (London: Pluto Press, 2003); and Susan Akram and Terry Rempel, “Temporary Protection as an Instrument for Implementing the Right of Return for Palestinian Refugees,” Boston University Law Journal 22, no. 1 (Spring 2004). 34. On the uprooting of the villagers, see Uriya Shavit and Jalal Bana, “Everything You Wanted to Know About the Right to Return but Were Too Afraid to Ask,” Ha’aretz, 6 July 2001. Meir was vexed over allowing the Arabs to return to Haifa (Morris, The Birth, 310). 35. Morris, The Birth, 317–318. On Shertok’s remarks on the “miracle” of the exodus, see also Meron Benvenisti and Maxine Kaufman-Lavista Sacred Landscapes: The Buried History of the Holy Land Since 1948 (Berkeley, CA: University of California Press, 2002), 121. According to The Palestinian Chronicle, Yosef Weitz, a transfer advocate, after meeting with Foreign Minister, Moshe Shertok, on 28 May, referred to the “miracle” of the exodus in his diary on 4 June. http:// www.palestinechronicle.com/view_article_details.php?id=14037. In parenthesis one should note that although the forum of these statements suggests that they were not made for public consumption, it is not implausible that these were made for the historical record. This would not have been unprecedented. Shertok was certain that Israel had to exploit the miracle. In Shertoks’s debate with Bernadotte at the end of July 1948, he argued that the world understood the expulsion of the Sudeten Germans. As the Arab refugees were similarly the consequence of Arab aggression, the world would accept it. (See the UN Department of Public Information, “Mediator Discusses Jerusalem and Refugees at Press Conference,” 2 August 1948, which refers to Bernadotte’s discussion with Shertok at the end of July.) Population transfer and exchange were also raised in internal conversations before the Lausanne conference in 1949 (Morris, The Birth, 556). 36. Ibid., 220–244. 37. Ibid., 309. 38. Ibid., 588–589. 39. Avi Shlaim, The Iron Wall: Israel and the Arab World (New York: Norton, 1999), 38. 40. For a detailed account of the role of the Druze, see Laila Parsons, “The Palestinian Druze in the 1947–1949 Arab-Israeli War,” Israel Studies 2, no. 1 (1997):

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310 Notes 72–93; also Laila Parsons, “The Druze and the Birth of Israel,” in The War for Palestine: Rewriting the History of 1948, eds. Eugene Rogan and Avi Shlaim (Cambridge: Cambridge University Press, 2002); and Laila Parsons, The Druze Between Palestine and Israel, 1947–1949 (London: St. Antony’s-Macmillan, 2000). 41. Ibid., 474–476. 42. On the twilight existence of the refugees and the returnees in the Galilee, see Elias Khoury, Gate of the Sun: Bab Al-shams, trans. Humphrey Davies (Brooklyn, NY: Archipelago Books, 2006), 191: “Palestine was the cities—Haifa, Jaffa, Jerusalem and Acre. In them we could feel something called Palestine. The villages were like all villages. . . . The truth is that those who occupied Palestine made us discover the country as we were losing it.” 43. Count Folke Bernadotte, The Progress Report of the UN Mediator on Palestine Submitted to the Secretary General, UN General Assembly A/648, 16 September 1948. 44. See Mordechai Gazit, “American and British Diplomacy and the Bernadotte Mission,” The Historical Journal 29, no. 3 (1986): 677–696. 45. John Troutbeck, quoted in British Foreign Office, London, FO 371/68578, E10456. See also “The Refugee Problem is at Present One of Relief Rather Than Repatriation,” FO 371/68578, E10451, 9 August 1948. 46. Morris believes that the murder of Bernadotte improved Israel’s standing with regard to the refugees, since his replacement, Ralph Bunche, focused less on the topic. In the short run, this was possibly true, but, as Morris describes it, Bernadotte had changed his mind, and came around to accepting the idea that only few would return and that the solution would have to be found in resettlement in Arab countries. As a result of his murder, the concept of return was enshrined in the UN resolution. See Morris, The Birth, 333 and 549. 47. 201st Meeting of the First Committee, 657, A/776, 7 December 1948, “Palestine: Progress Report of the United Nations Mediator,” Report of the First Committee, Mr. Salim Sapper (Turkey). Also 214th meeting, 781–2; and 226th meeting, 908–909. 48. See Philip Mattar, The Mufti of Jerusalem: Al-Hajj Amin al-Husayni and the Palestinian National Movement, rev. ed. (New York: Columbia University Press, 1992). 49. Morris, The Birth, 559. 50. Ibid., 572. 51. Nell Gabiam, “Negotiating Rights: Palestinian Refugees and the Protection Gap,” Anthropological Quarterly 79, no. 4 (2006): 717–730; Susan M. Akram

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311 Notes and Terry Rempel, “Temporary Protection As An Instrument For Implementing The Right Of Return For Palestinian Refugees,” Boston University International Law Journal 56 (2004). 52. UNCCP, Report to the GA, 22 September 1949. 53. In 2002 UNHCR had 22,000 staff, in 2006 26,000, and in 2008 28,000. This is symptomatic of the growth of UNHCR over the last six decades. The UNRWA budget has sometimes been almost as large as that of UNHCR, which is responsible for 20 to 40 million refugees and internally displaced persons around the world. 54. See, for example, Civitas, 2004. 55. UNRWA Department of Education, Statistical Yearbook 2001/2002, 38, 2003. 56. League of Arab States, Protocol on the Treatment of Palestinians (Casablanca Protocol), 11 September 1965, quoted in Akram and Rempel, “Temporary Protection,” 63. 57. Palestine Liberation Organization (PLO), The Palestinian National Charter: Resolutions of the Palestine National Council, 1–17 July 1968, 17 July 1968, Article 9, http://www.yale.edu/lawweb/avalon/mideast/plocov.htm. 58. Conference commemorating the sixtieth anniversary of the United Nations Relief and Works Agency (UNRWA), Palestinian Return Centre (PRC), London, 16 December 2009, http://www.un.org/News/Press/docs/2008/gapal1085.doc.htm. 59. This type of conflict and resort to unrealistic visions on either side is not the exclusive prerogative of Jewish Israelis and Palestinians. See Ian S. Lustick, Unsettled States, Disputed Lands: Britain and Ireland, France and Algeria, Israel and the West Bank-Gaza (Ithaca, NY: Cornell University Press, 1993). 60. United Nations General Assembly, Resolution 3236 (XXIX), Question of Palestine, A/RES/3236 (XXIX), 22 November 1974. 61. On 22 November 1975, the UN General Assembly passed Resolutions 3326 and 3327, which affirmed the right of the Palestinian people to self-determination. See Khalidi, “Observations.” The year 1975 was also when the UNGA approved the infamous “Zionism is racism” resolution, 3379. 62. Ruth Lapidoth was a main spokesperson for the Israeli position. See Ruth Lapidoth, “Legal Aspects of the Palestinian Refugee Question,” Israel Yearbook on Human Rights, 485 (September 2002), http://www.jcpa.org/jl/vp485.htm. See also Yaffa Zilbershats, “International Law and the Palestinian Right of Return to the State of Israel,” in Benvenisti, Gans, and Hanafi, Israel and the Palestinian Refugees, 191–218. She summarized the position as follows: “Return, in the context of repatriation, is not a legal right according to the present development of international law. It is not enshrined in general human rights law,

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312 Notes the law of nationality, the law of refugees or humanitarian law. Accordingly, Palestinians cannot speak of a ‘right’ to return based on international law.” (218). 63. Although the claim is that “[t]his resolution has represented the consensus of the international community on the subject since 1948 . . . Until 1968, the idea of return, important though it was, was generally subsumed under the idea of the total liberation of Palestine” (Khalidi, “Observations,” 33). 64. Twelfth Palestinian National Council (PNC), Political Programme, 9 June 1974. 65. Ghayth Armanazi (“The Rights of the Palestinians: the International Definition,” Journal of Palestinian Studies 3, no. 3 [1974]: 88–96) describes the recent proliferation of references to Palestinian rights and the lack of definitions. Armanazi counted twenty UN resolutions in support of the right of return. Since then the number has reached more than a hundred. 66. The Palestine National Charter of 17 July 1968 provided in articles 1, 2 and 3 that “Palestine, the homeland of the Palestinian Arab people, is an inseparable part of the greater Arab homeland, and the Palestinian people are a part of the Arab Nation,” that “Palestine, within the frontiers that existed under the British Mandate, is an indivisible territorial unit,” and that “the Palestinian Arab people alone have legitimate rights to their homeland, and shall exercise the right of self-determination after the liberation of their homeland, in keeping with their wishes and entirely of their own accord.” http://www.jewishvirtuallibrary.org/jsource/Peace/PLO_Covenant.html. 67. Legal in this sense has more of a political meaning, since UN General Assembly resolutions have no legal status in international law, though they are often thought to convey an international norm. 68. At an Al Quds University conference, “Mapping Models of Statehood and Paths to Peace,” 30 September to 3 October 2009, two variations were proposed: (1) ceding additional territory on the Israeli side of the green line equivalent to the land owned by the Palestinian refugees; (2) return of the refugees to Israel with all rights except political and voting rights. 69. Khalidi, “Observations,” 30. 70. In 1991, Shaath informed the organizers of an American-sponsored “Framework for a Public Peace Process” that he had been authorized by the PLO to endorse such an agreement. Hanna Siniora, publisher of the Jerusalem Times participated in the forum and signed onto the document. http://beirut.indymedia.org/ar/2003/10/592.shtml. 71. Rex Brynen and Jill Tansley, “The Refugee Working Group of the Middle East Multilateral Peace Negotiations,” Israel-Palestine Journal 2, no. 4 (Autumn 1995). 72. Howard Adelman, “The Multilateral Working Group on Refugees: Cover-ups in Preparation for a Breakthrough,” in Practical Peacemaking in the Middle East:

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313 Notes The Environment, Water, Refugees, and Economic Cooperation and Development, eds. S. Spiegal and David J. Pervin (New York: Garland, 1995), 199–214. 73. Howard Adelman, “Palestinian Refugees” Workshop, Promoting Regional Cooperation in the Middle East, Vouliagmeni, Greece, November 1994. The document was distributed by the RWG. 74. Prime Minister Benjamin Netanyahu, at a state ceremony marking the 105th anniversary of the death of Theodor Herzl, the father of modern Zionism, reiterated that the recognition by the Palestinians of Israel as a Jewish state was key to resolving the Israeli-Palestinian conflict. Cf. Ha’aretz, 7 December 2009. In contrast, Chaim Gans, a Jewish professor at Tel Aviv University, dismissed the demand for the recognition of Israel as a Jewish state while still insisting that the refugees could not return. Cf. “Arab Recognition of a Jewish State,” Ha’aretz, 27 July 2009, http://www.haaretz.com/hasen/spages/1102812.html. Gans argued that “Israel must have a Jewish majority. A mass return of Palestinian refugees could endanger that majority, so this must be prevented. But to prevent it, there is no need for the Arabs to formally recognize Israel’s Jewishness.” 75. Cf. Ahmed Badawi in his essay “On the Recognition of Israel as a Jewish State: Can the Palestinians Seize the Initiative?” in Open Democracy, 3 September 2009, http://www.opendemocracy.net/article/email/on-the-recognition-of-israel-as-a-jewish-state-can-the-palestinians-seize-the-initiative. Badawi pointed to “a serious and an intractable dilemma. Israel cannot keep the territories forever and at the same time be a democracy and a uni-ethnic Jewish state. Palestinians, in their turn, cannot keep fighting for a state of their own while at the same time continuing to demand the return of all Palestinian refugees to Israel.” The right of the Palestinians to self-determination is enshrined in international law. The right of return has formed Palestinian identity over the last decades. Given the balance of power at the moment, however, implementation of this right is not conceivable anytime soon. 76. BADIL Resource Center, Camp David II, UN Resolution 194, and a Durable Solution for Palestinian Refugees (Ramallah: BADIL Resource Center, 21 July 2000), http://badil.org/ar/press-releases/53-press-releases-2000/170press114-00. 77. Ibid. 78. Dr. Abdel Shafi, in a press conference held by the Council for Palestinian Restitution and Repatriation (CPRR) in Washington, DC, on 21 April 2000, said that “the refugee issue is the heart and the core of the problem.” 79. Karma Nabulsi, “Right of Return” The Guardian, 17 September 2002. 80. Yasser Arafat, “The Palestinian Vision of Peace,” New York Times, 3 February 2002.

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314 Notes 81. On 25 June 2003, Ayalon and Sari Nusseibeh, Palestinian professor and current President of Al Quds University, launched a peace initiative called “The People’s Voice” to collect signatures of Israelis and Palestinians to support a peace plan based on a two-state solution without the right of return for Palestinian refugees. Clause 4 read: “Right of return: Recognizing the suffering and the plight of the Palestinian refugees, the international community, Israel, and the Palestinian State will initiate and contribute to an international fund to compensate them. Palestinian refugees will return only to the State of Palestine; Jews will return only to the State of Israel.” 82. Sari Hanafi, “Opening the Debate on the Right of Return,” Middle East Report 222 (Spring 2002), http://www.merip.org/mer/mer222/222_hanafi.html. 83. Quoted in Akiva Eldar, “Fayad: No Point in Goodwill Gestures Without Negotiations,” Ha’aretz, 17 July 2007. In Newsweek, 8 October 2007, Palestinian Authority President Mahmoud Abbas said, “Do you think Palestinian [refugees] should be allowed to return [to Israel]? You were born in the Galilee—do you want to go back? This is my right. But how I will use this right is up to me and to the refugees and to the agreement which will take place between us [and Israel]. We want to find a permanent solution. The Israelis want security and we are in need of independence.” 84. http://english.aljazeera.net/palestinepapers/ 85. http://www.guardian.co.uk/world/palestine-papers 86. Salim Tamari, “Palestinian Refugee Property Claims: Compensation and Restitution,” in Benvenisti, Gans, and Hanafi, Israel and the Palestinian Refugees, 309–322. 87. Ibid., 322. 88. Tamari is relying on Rashid Khalidi; Salim Tamari, “Reparations and Rehabilitation of Palestinian Refugees” in Israel and the Palestinian Refugees, eds. Eyal Benvenisti, Chaim Gans, Sari Hanafi (New York: Springer, 2007), 316. “The Palestinian Refugee Question: Toward a Solution,” in Palestinian Refugees: Their Problem and Future, A Special Report, ed. Center for Policy Analysis on Palestine (Washington, DC: CPAP, 1994), 24ff. 89. Adel H. Yahya, Palestinian Refugees Remembered (Jerusalem: IPCRI, 1998). 90. Ibid. 91. Ibid. 92. James Rogers, “Why the Attacks Continue,” BBC, 19 May 2003. 93. Pro-Hamas Palestinian Information Centre, quoted by the BBC Monitoring International Reports, 2 December 2003. 94. BBC Monitoring Middle East, 7 November 2003. 95. US House of Representatives, H. Con. Res. 311, 108th Congress, First Session, 28 October 2003H. Con. Res. 311.

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315 Notes 96. Eyal Benevisti, Chaim Gans, and Sari Hanafi, eds., Israel and the Palestinian Refugees, (New York: Springer, 2007).

9. Rights and Return 1. Peg Birmingham, Hannah Arendt and Human Rights: The Predicament of Common Responsibility (Bloomington, IN: Indiana University Press, 2006). The book begins, “Hannah Arendt’s most important contribution to political thought may have been her well-known and often-cited notion of the right to have rights.” 2. Hannah Arendt, “Aufklärung und Judenfrage,” in Zeitschrift fur die Geschicgte der Juden in Deutschland 4 (1932), republished in English in The Jewish Writings: Hannah Arendt, eds. Jerome Kohn and Ron H. Feldman (New York: Schocken Books, 2007), 3–18. 3. Compare Karl Marx “On the Jewish Question” (1844), where the emancipation of the Jews from their own identity was to herald the emancipation from capitalism. 4. The Universal Declaration of Human Rights (UDHR) and the International Human Rights Covenants, “with but one exception, include only individual rights . . . That exception is the right of peoples to self determination.” Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989), 20. 5. On 13 September 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (http://www.iwgia.org/ sw248.asp). 6. Chapter 5 of part 2, on Imperialism, is entitled “The Decline of the NationState and the Ends of the Rights of Man.” The book was completed in 1948, the same year as the Universal Declaration of Human Rights was endorsed by the United Nations, but was not published until 1951. 7. Statelessness is not only a problem for refugees but can be a problem for children born abroad. 8. Michael Walzer, Spheres of Justice (Oxford: Basil Blackwell, 1983), 60–61. 9. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, 1951), 377. 10. Exceptions allow denaturalization for those who commit heinous criminal acts but were not born in a country or for those who acquire citizenship through deceit. 11. Allen Buchanan, Justice, Legitimacy, and Self-determination: Moral Foundations for International Law (Oxford: Oxford University Press, 2007). Buchanan tried to found international law as a whole—secession, self-determination, humani-

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316 Notes tarian coercive intervention, protection of minorities within states (he does not include the return of populations who fled or were expelled)—on ethical principles. 12. Richard J. Goldstone and Carl Tham, Kosovo: An Assessment in the Context of International Law (New York: Carnegie Council on Ethics and International Affairs, 2000). 13. Howard Adelman, ed., Protracted Displacement in Asia: No Place to Call Home (Burlington, VT: Ashgate, 2008); Gil Loescher and James Milner, eds., Protracted Refugee Situations: Domestic and International Security Implications (New York: Routledge, 2005). 14. John Rawls, Theory of Justice (Cambridge, MA: Harvard University Press, 1971). 15. John Rawls, The Laws of Peoples (Cambridge, MA: Harvard University Press, 1999). 16. On reparation and restitution, Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York: Norton, 2000). 17. Hannah Arendt, Essays in Understanding, 1930–1954, ed. Jerome Kohn (New York: Harcourt, 1994), 131. 18. Hannah Arendt, Between Past and Future: Eight Exercises in Political Thought (New York: Viking, 1961), especially the first essay, “Tradition and the Modern Age.”

10. Ethnic Conflict and Nonreturn 1. Elizabeth Ferris, “Returns to Iraq: Questions and More Questions,” Returning Home in Iraq: Housing, Land and Property Issues,” USIP Seminar, 19 December 2008, www.brookings.edu/papers/2008/1219_iraq_ferris. 2. “Iraqi Refugees: “We Can’t Return,” 18 January 2008, BBC News Online, http://news.bbc.co.uk/2/hi/talking_point/7179657.stm. 3. Iraq was already one of the largest refugee-producing countries in the world: “Close to one million people were internally displaced in Iraq when the United States invaded in 2003. Another one to two million Iraqis lived abroad fearing persecution should they return.” Roberta Cohen, “Iraq’s Displaced: Where to Turn?” American International Law Review 28, no. 2 (Fall 2008). See also US Committee for Refugees, World Refugee Survey 2000 (Washington DC: US Committee for Refugees, 2000), 5, 185; and World Refugee Survey 2002 (Washington DC: US Committee for Refugees, 2002), 5, 170. 4. On 9 April 2009 Ken Bacon and Kristèle Younès noted that although refugees remained “reluctant to go back due to lack of security, the creation of ethnically cleansed neighborhoods, and poor government services,” nevertheless, “the only realistic solution for the majority of displaced Iraqis is to return”

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317 Notes (Refugees International (RI), “IRAQ: Preventing the Point of No Return,” www.refugeesinternational.org). The discrepancy between the descriptive and proscriptive parts of the report is not explained and Elizabeth Ferris pointed out that expectations of large-scale return of Iraqi refugees were misplaced. “Going Home? Prospects and Pitfalls for Large-Scale Return of Iraqis,” 2008 Annual Report of the Brookings-Bern Project on Internal Displacement, 11 August 2009, http://www.brookings.edu/projects/idp.aspx. 5. The Internal Displacement Monitoring Centre (IDMC), “Challenges of Forced Displacement Within Iraq, http://www.internaldisplacement.org/. 8025708F004BE3B1/(httpInfoFiles)/07A9E0C588CD5FECC12575240047 DB82/$file/Iraq_Overview_Dec08.pdf. 6. Elizabeth Ferris, “Regional Dimensions to the Iraqi Displacement Crisis and the Role of the United Nations,” address, 9 January 2007, http://www.brookings.edu/speeches/2007/1025_iraq_ferris.aspx. 7. Khalid Koser and Daljit Dhaliwal, “Surge in the Number of Iraqi Refugees: Causes and Implications,” interview at Brookings Institute, Washington, DC, July 3, 2008, http://www.brookings.edu/multimedia/video/2008/0703_iraq_ refugees_koser.aspx. 8. “Iraq: Armed Groups Occupying Hospitals and Kidnapping Doctors,” IRIN, 13 February 2007; Damien Cave, “In Baghdad, Sectarian Lines Too Deadly to Cross,” The New York Times, 4 March 2007. Most humanitarian agencies fled Iraq after UNHCR headquarters bombing in 2003. Those remaining were subject to great security risks with very restricted mobility. Further, most aid distribution within Iraq was controlled by sectarian organizations that just as often used relief to increase influence and power. Cf. Edward Wong and Damien Cave, “Baghdad District Is a Model, but Only for Shiites,” New York Times, 22 May 2007, http://www.alertnet.org/thenews/newsdesk/IRIN/5d347 2e807f9397c54bc4c1978e690d0.htm. 9. UNHCR’s 2007 $60 million general appeal for Iraqi refugees and IDPs focused only on the most vulnerable and amounted to about $15 for the whole year per “person of concern.” UNHCR, 9 January 2007, http://www.unhcr.no/ en/News/Iraq_appeal_jan07.html. 10. Roberta Cohen and Ashraf al-Khalidi, “Time for the United States to Recognize Iraq’s Humanitarian Crisis,” Washington: The Brookings Institution, 4 January 2007, http://www.brookings.edu/opinions/2007/0104iraq_cohen.aspx. 11. Since the United States was the proximate cause of “this human tragedy” and to prevent a source for breeding new terrorists, Democrats in the United States House of Representatives (11 March 2008 hearing) insisted that the United States had a duty to provide aid for Iraqi refugees in Jordan and Syria. In contrast, the Republicans wanted the refugees to “return home.”

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318 Notes 12. In March 2009, the Washington-based United States Committee on Refugees and Immigrants (USCRI) called for opening up resettlement opportunities as well as providing humanitarian aid, with Merrill Smith, Director of International Planning and Analysis, US Committee for Refugees and Immigrants, remarking, “Ask President Obama to Remember Iraqi Refugees,”http://sites. google.com/site/therefugeeexperienceseries. 13. False hope continues to trump the lessons of historical patterns. Cf. Slobodan Lekic, “UN: 500,000 Iraqi Refugees May Return in 2009,” San Francisco Chronicle, 29 January 2009. 14. Amnesty International, The Wire 39, no. 2 (April/May 2009), http://www.amnesty.org/en/library/info/MDE14/010/2008/en. 15. On 23 December 2009, Michael Hastings in The Washington Post (“A Quiet Christmas for Christians in Iraq”) reported that “according to Louis Sako, chief archbishop of Kirkuk for the Chaldean Christians, a Catholic sect that originated in Iraq, none of the northern archdiocese’s nine churches has scheduled a Christmas Mass this year.” The Archbishop reported that 10,000 Christians had fled Kirkuk in the past three months, and the Basra community is down to 2,500 people because of militia attacks. A double car bombing earlier in December at a church in Mosul killed four even though the United Nations reported that 12,000 Christians had just fled. 16. On 25 March 2009, the Canadian Council for Refugees made an appeal to the Canadian government for resettlement of Palestinian refugees from Iraq.The Al-Tanf refugee camp in a remote and desolate no-man’s land between Syria and Iraq was finally closed by UNHCR in early 2010. 17. Human Rights Watch “Genocide in Iraq—The Anfal Campaign Against the Kurds,” July 1993. The report documents the systematic and deliberate murder of up to one hundred thousand Kurds between February and September 1988. In 2003, eight hundred thousand of the one million existing internally displaced from the Saddam Hussein regime were Kurds living in the northern governorates. Elizabeth Ferris (2007) “The Real Challenge of Internal Displacement in Iraq: The Future,” 6 December 2007, http://www.brookings. edu/speeches/2007/1206_iraq_ferris.aspx. 18. Since the end of 2007, al Qaeda and antigovernment Sunni insurgents have decamped from Baghdad to Mosul (population 1.7 million) and the governorate of Ninewa. A vote on article 140 of the Iraqi constitution, to determine whether the population prefers to be ruled by Kurds or from Baghdad, keeps being postponed. Kurds threaten violence if these postponements continue. Sunnis threaten violence if the referendum takes place. In June 2009, the Kurdish parliament adopted a constitution that included Kirkuk as well as parts of the Nineveh and Diyala Provinces. Cf. MENA Report No. 90 of the

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319 Notes International Crisis Group (ICG), “Iraq’s New Battlefront: The Struggle Over Ninewa—International Crisis Group,” 28 September 2009. 19. There are Arabic-speaking Muslims who identify themselves as Assyrians. 20. In 2001, a coalition of Assyrian, Assyro-Chaldean, and Maronite organizations reprimanded the Arab-American Institute for classifying Assyrians and Maronites as Arab. 21. The Jews were expelled or escaped after 1948 and the Arab-Israeli war. See chapter 7. 22. Though UNHCR listed only 34,000 Palestinians in 2003, the World Refugee Survey 2004 said there were 100,000 who “found themselves displaced anew when their Iraqi landlords demanded exorbitant rents or evicted them outright,” http://www.refugees.org/countryreports.aspx?subm=&ssm=&cid=119. See the Report: James Paul and Céline Nahory, War and Occupation in Iraq, April 2007, chapter 8, “Displacement and Mortality.” A coalition of organizations and many individuals contributed to the report, http://www2.weedonline.org/eu/texte/war_and_occupation_in_iraq.pdf. 23. Since the UN pullback following the bombing of the UN headquarters in Baghdad in August 2003, the Palestinians felt extremely vulnerable and fled in droves. 24. The British government forcibly returns Iraqi Kurdish refugees ostensibly fleeing KRG authorities (http://stopdeportation.net/node/1); see Amnesty International “Hope and Fear,” http://www.amnesty.org.uk/news_details. asp?NewsID=18152; and Human Rights Watch “Caught in the Whirlwind,” http://www.hrw.org/en/reports/2007/07/02/caught-whirlwind-0. 25. “A number of those returning are not going back to their homes and communities, but rather are living in areas where they feel safe, and particularly where they are not a sectarian minority.” Elizabeth Ferris “The Real Challenge of Internal Displacement in Iraq: The Future,” 5. 26. Fact Sheet: Iraqi Refugee Processing, Release Date 11 March 2008, US Department of Homeland Security (DHS) and US State Department (DOS), http:// www.dhs.gov/xnews/releases/pr_1205327590498.shtm. 27. Alex Aleinikoff, Deputy High Commissioner of UNHCR, even asked whether resettlement for them was a durable solution in light of the report, “Refugee Crisis in America: Iraqis and their Resettlement Experience,” a Fact Finding Investigation by Human Rights Action in Partnership with the Human Rights Institute, Georgetown Law, 7 October 2009. The report only recommended the continuation of the program of resettlement at 2009 levels, https://www. law.georgetown.edu/cle/RefugeeCrisisInAmerica.pdf. 28. Janet Dench, the chief executive officer of the Canadian Council of Refugees (CCR), urged a resettlement effort on 16 April 2007.On 11 February 2009, Citizenship, Immigration, and Multiculturalism Minister Jason Kenney an-

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320 Notes nounced that Canada would double the number of privately sponsored Iraqi refugees to 2500 and itself sponsor 1,400 refugees, quadrupling the number of Iraqi refugees in Canada. 29. International Crisis Group, “Iraq’s Uncertain Future: Elections and Beyond,” 25 February 2010. 30. Unlike the 2010 elections when the the secular Shi’a-Sunni list led by Iyad Alawi received the largest plurality of votes and won ninety-one seats, in the December 2005 elections, they only received 8 percent because Sunnis boycotted the election. Almost 80 percent of the vote went to ethnic- or religiousbased parties in 2005. International Crisis Group, “Iraq’s Uncertain Future: Elections and Beyond,” 25 February 2010. 31. That would include the Gali IDPs that were considered persons of concern in the Spring of 2008 by UNHCR. 32. Catherine Dale, “The Dynamics and Challenges Of Ethnic Cleansing: The Georgia-Abkhazia Case,” Refugee Survey Quarterly 16, no. 3 (1997). 33. Ibid. The destruction of the Abkhaz State Archives in the first days of the war provides a central “proof.” 34. Ibid. 35. “EU Plans 500 Million Euros Aid for Georgian Refugees,” http://www.bloomberg .com/apps/news?pid=20601085&sid=aPGm3_bqfJ88&refer=europe 36. David L. Phillips, “Post Conflict Georgia,” The Atlantic Council, 30 September 2008, http://www.acus.org/files/publication_pdfs/65/Post-Conflict%20Georgia.pdf. 37. “Abkhazia: Deepening Dependence,” Crisis Group Europe Report no. 202, 26 February 2010. 38. Milan Kundera, Ignorance, tr. Linda Asher (New York: HarperCollins, 1992), 4–5. 39. Ibid., 5–6. 40. Abu Mazen, “Peace will not be achieved without the refugees getting back their sacred rights, which cannot be touched . . . It is the individual right of every refugee, and no one can reach an agreement in this matter without his consent.” Al-Hayat Al-Jadida (PA), 25 October 2002. cited by Yael Yohoshua 2003, http://www.memri.org/report/en/0/0/0/0/0/0/856.htm. 41. David Lowenthal, The Past is a Foreign Country (Cambridge: Cambridge University Press, 1985), 4. 42. Svetlana Boym, The Future of Nostalgia (New York: Basic Books, 2001), 3. 43. Kundera, Ignorance, 33. 44. In its heyday in France between 1820 and 1870, the disease was the subject of extensive scientific discourse and medical diagnostics. While its etiology

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321 Notes was undetermined, its presence was undisputed. Michael S. Roth, “Dying of the Past: Medical Studies of Nostalgia in Nineteenth Century France,” History and Memory 3, no. 1 (1991): 15; HYPERLINK “http://www.jstor.org/ search/BasicResults?Search=Search&Query=aa:%22Michael%20S.%20 Roth%22&hp=25&si=1&wc=on”Michael S. Roth, “Remembering Forgetting: Maladies de la Mémoire in Nineteenth-Century France,” Representations 26 (Spring 1989): 49–68. 45. Svetlana Boym quotes Charles Maier, “Consigning the Twentieth Century to History: Alternative Narratives for the Modern Era,” American Historical Review 105, no. 3 (2000): 807–831: “Nostalgia is to memory as kitsch is to art.” She also refers to Michael Kammen, Mystic Chords of Memory (New York: Knopf, 1991): “Nostalgia, with its wistful memories, is essentially his-story without guilt.” 46. Since Kathleen Stewart published “Nostalgia—A Polemic” (in Cultural Anthropology 3, no. 3 [August 1988]: 227–241), studies of refugees linked to nostalgia have flowered, particularly since Liisa H. Malkki published Purity and Exile: Violence, Memory, and National Cosmology Among Hutu Refugees in Tanzania (Chicago: University of Chicago Press, 1995). 47. Could reports about an individual “disease,” one that dissolved by shifts in medical redefinitions and that was proven to be a wrong diagnosis, illuminate a group situation almost two hundred years later? Possibly! The dilemma that faced French doctors in the nineteenth century confronts social analysis today. (See Roth, History and Memory, 10.) This experience of nostalgia was captured in Günter Grass’s satiric The Call of the Toad in the repatriation of German expatriates from German Danzig to Polish Gdansk after the Cold War and in the repressed memories, the desire for memories, and the refusal of Oskar to mature in The Tin Drum.

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Index

Abbas, Mahmoud (Abu Mazen), 211, 314n83, 320n40 Abdel Shafi, Haidar, 212, 313n78 Abdullah (king of Jordan), 201, 307n29 Abdullah, Daud, 207 Abkhazia, 23, 71–72, 246 Abkhaz State Archives, 319n33 Aborigines, 181–82, 303n63 Absentees’ Law (Israel; 1950), 181 Abu Mazen. See Abbas, Mahmoud Abu-Sitta, Salman, 193, 214 Abyei (Southern Sudan), 133–35 ADFL (Alliance of Democratic Forces for the Liberation of Congo/Zaire), 144 Afewerki, Issayas, 146 Afghanistan, 5, 70, 90 Africa, 25, 48, 65, 70, 124–54; citizenship in, 124–26, 138, 143–44, 148–49, 290n44, 292n59; and Convention on Refugees, 124–25; economic considerations in, 138–39, 143–44, 153; education in, 134–35, 137; and ICARA II, 125; and OAU, 124–26; reintegration in, 125, 134, 136; resettlement in, 125–26; Resolution on the Situation of the Refugees in, 125

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African Charter on Human and Peoples’ Rights (1981), 67–68, 124–25, 287n3 African NGOs Forum, 125 African Union (AU), 145, 151–52 Afrikaners, 28 Agreement of Cessation of Hostilities (EthiopiaEritrea; 2000), 147, 294n81 Agwai, Martin Luther, 152 Ahad Ha’am, 168 Alawi, Iyad, 320n30 Albania, 40, 41t Albright, Madeleine, 76 Aleinikoff, Alex, 319n27 Alexandria, 159 Algiers, 177 Algiers Peace Agreement (Ethiopia-Eritrea; 2000), 147–48 Ali, Umm, 238, 249 Aliya (“going up,” return), 158, 160, 186, 209, 298n22 Al Jazeera, 216 Alkatiri, Mari, 281n61 All British Appeal, 34 Alliance of Democratic Forces for the Liberation of Congo/Zaire (ADFL), 144

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324 Index Allied Powers (WWII), 45, 48–49, 53–56, 169, 299n34, 300n38 Alroey, Gur, 298n22 AMCC (Appeal Movement Coordination Council), 276n15 American Convention on Human Rights (OAS; 1969), 68 American Friends Service Committee, 205 Amnesty International, 5, 17, 121–23 Anatolia, 29, 33, 42. See also Turkey Anglo-American Committee of Inquiry, 171, 299n34 Anglo-Burmese, 104 Anglo-Indians, 104 Angola, 109, 142, 145 Annan, Kofi, 21–22, 233 anti-Semitism, 158–61, 165–73. See also discrimination APODETI (Timorese Popular Democratic Association), 109 Appeal Movement Coordination Council (AMCC), 276n15 Appelfeld, Aharon, 174 Arab-American Institute, 319n20 Arab countries, 61, 198, 307n29; Jews from, 176– 88, 206, 217, 302nn59,60; and Palestinians, 185, 193–94, 206, 210 Arab Higher Committee, 203 Arab-Israeli wars: of 1948, 12, 48, 174, 180, 189, 192, 195, 198; of 1967, 182, 206–7; of 1973, 208 Arab League, 206, 307n29; Draft Law Against Jews, 302n58 Arabs, 2, 133–34, 152, 240–41; and “Great Arab Rebellion,” 168; in Israel, 175, 181–82, 298n24; in Palestine, 12, 158, 166–69, 171–72, 176, 198 Arad, Gulie Ne’eman, 301n48 Arafat, Yasser, 193, 212–13 Arendt, Hannah, xvii, 223–26, 235 Argentina, 162 Armanazi, Ghayth, 311n65 Armenia, 2, 42, 45 Armenians, 30, 34, 42–45, 240, 243, 245, 265n34 arms embargoes, 77, 150–53, 291n50 assimilation, 33, 49, 296n9 Assyrians, 44, 240–41, 318nn19,20

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asylum, 13, 18, 64–66, 99, 153 Ataturk, Kamal, 33 AU (African Union), 145, 151–52 Australia, 65, 112, 160, 241, 281n61, 300n38; settlement of, 25, 158, 180–82, 303n63 Austria, 40, 159, 172, 266n2 al-Awda, 214 Ayalon, Ami, 214, 314n81 Babylon, 157–58, 160, 177, 296nn9,10 Bacon, Ken, 316n4 Badawi, Ahmed, 313n75 Baghdad, 185, 238, 241; bombing of UN headquarters in, 99, 276n5, 317n8, 319n23 Balfour Declaration (1917), 157–58, 166 Balkans, 29–32, 50, 265n31; in 1990s, xiii, 14, 71; wars in, 31, 34, 40 Ballas, Shimon, 186 Baltic countries, 35–36, 45, 54, 161 Bangladesh, 106–7 Banyamulenge people, 140, 143–44 Banyarwanda people, 136–43 al-Bashir, Umar Hasan, xv, 135, 150 Bavaria, 51 Bedouins, 158, 182 Beilin-Abu Mazen Document (Israelis and Palestinians; 1995), 211 Beilin, Yossi, 211 Beja people, 133 Belgium, 43–44, 137, 143 Belloni, Roberto, 88, 274n22 Belo, Bishop Carlos, 110 Belun (NGO), 283n78 Benes, Edvard, 49–50 Ben-Gurion, David, 174, 201, 298n24 Bere, Martenus, 284n83 Berlin Congress (1878), 39 Berlin Wall, xiii Bernadotte, Folke, 198, 203, 308nn31,33, 309n35, 310n46 Bhutan, xiv, 70, 100f, 101–4, 276n15, 277n19, 279n45 Bhutanese Refugee Repatriation Representative Committee (BRRRC), 276n15 Bhutanese Refugee Steering Committee (BMSC), 276n15 Bhutan National Democratic Party (BNDP), 276n15

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325 Index Biafra, 17 Bible, 156–58, 160–61, 188, 296nn9,10, 297n12 BiH. See Bosnia and Herzegovina, Republic of The Birth of the Palestinian Refugee Problem (Morris), 200–201 Black, Richard, 273n18, 274n24 Blackstone, William, 156 BMSC (Bhutanese Refugee Steering Committee), 276n15 BNDP (Bhutan National Democratic Party), 276n15 boat people (Indochina), 98–99 Bonar/M’Cheyne Report (“Restoration of the Jews to Palestine”; 1840), 155 Border Relief Operation (UNBRO), 99 Bosnia, xiii–xiv, 20, 22, 73–96, 233, 247, 254; Dayton Peace Agreement on, xiii, 5, 73–75, 78–81, 85, 94–95, 272n10; ethnic cleansing in, 75–81, 85–88, 91–92; and international community, 74–75, 96, 275n32; Muslims in, 77, 85, 87; refugees and IDPs from, 84, 95, 270n48, 271n1, 273nn15,18; repatriation in, 74, 81–92, 271n1; Vance-Owen plan for, 76–77; and war with Croatia, 76–79, 84; and Washington Agreement, 77; and Western countries, 76–78 Bosnia and Herzegovina, Republic of (BiH), 74, 84–94, 112–13, 272n12; demography of, 78, 81, 91; Federation of, 78–79, 83f, 84–85, 88, 90–91, 94; and Germany, 84–85, 270n48; and GFAP, 272n10; Kozarac, 87–88; Laws on Cessation of, 90; Mostar, 88, 91; Open Cities Initiative in, 85, 273nn14,15; Prijedor, 88, 91; and Property Law Implementation Plan, 90, 274n22; reintegration in, 20, 86, 88, 91, 94–95; Republika Srpska of, 78–79, 81, 83f, 85, 87–89, 91, 94; Sarajevo, 91; Srebrenica, 27, 77, 262n7; and UNHCR, 74, 85, 90, 93–94, 273n15 Boutroue, Joel, 140–41 Boym, Svetlana, 252 Brahimi, Lakhdar, 120 Britain, 33, 155–56, 302n56, 319n24; All British Appeal of, 34; Balfour Declaration of, 157–58, 166; and Jews, 61, 158, 168–69, 171–74, 298n28, 299n33; and Palestine, 158, 168–69, 201, 203; and White Paper, 168–69, 172 British Empire, 29, 156, 163

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British Mandate for Palestine, 169, 171, 173–74, 182, 185, 312n66 Browne, Mallory, 302nn58,59 BRRRC (Bhutanese Refugee Repatriation Representative Committee), 276n15 Buchanan, Allen, 315n11 Buddhism, 101, 105, 117 Building Houses Together (Hamatuk Harii Uma; East Timor), 115 Buirege Kuria clan, 288n12 Bulgaria, 31–33, 40, 41t, 45, 263nn13,15 Bunche, Ralph, 310n46 Burma (Myanmar), xiv, 11, 70, 104–8, 277n20; citizenship in, 107–8; Democratic Karen Buddhist Army of, 105; discrimination in, 106; Dragon King operation in, 106; education in, 105; Emergency Immigration Act of (1974), 106; Muslims in, 106–7; New Mon State Party of, 107; refugees from, 97, 278n39, 279nn40,42,45; reintegration in, 105, 107; repatriation in, 105–8; State Peace and Development Council of, 105–6; Tenasserim Division, 105, 279n40; and UNHCR, 105–7, 278n39, 279n40 Burundi, 136–39, 144, 292n63 Bush (George W.) administration, 242 Bush, George H. W., 76 Byelorussia, 35–36 Cachin people, 104 Cambodia, 17, 70, 97–99, 112–13, 276n5 Camp David, 187, 211–12 camps. See refugee camps Canaan, 157, 160 Canada, 18, 65–66, 160, 180, 294n86; and refugees, 171, 241–42, 299n33, 300n38 Canadian Council for Refugees, 318n16, 319n28 Canadian HART (Humanitarian Appeal for the Relief of Tamils), 120 CARE, 283n78 Carnegie Endowment for International Peace, 31–33 Catholic Relief Services (CRS), 283n78 Catholics, 28, 137, 241, 318n15 CDU (Christian Democratic Union, Germany), 51 Central African Republic (CAR), 133 Chad, 149–52 Chaldean Christians, 241, 318n15

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326 Index Chaldean people, 240 China, xvi, 71, 151 Chinese people, 30, 99, 104 Chin people, 104 choice, right of, 8, 79, 95, 194, 203, 234 Christian Democratic Union (CDU; Germany), 51 Christians, 25, 155–56, 176, 202, 239–41, 318n15 Christian Zionists, 155–56 Christopher, Warren, 79 Churchill, Winston, 48 Circassians, 202 citizenship, 3–7, 16–17, 43–44, 68, 70, 221–29, 315n10; in Africa, 124–26, 138, 143–44, 148–49, 290n44, 292n59; Bhutanese, xiv, 101–3; Burmese, 107–8; Congolese/Zairian, 154; and convention refugees, 13; Iraqi, 178; Israeli, 175, 177, 181–82; Palestinian, 185, 193, 195, 219; and repatriation, 124–26; Soviet, 46, 60–63 Citizenship Acts (Bhutan; 1977, 1985), 101–2 Citizenship of Stateless Persons Act, Grant of (Sri Lanka; 1988), 259n2 Clinton administration, 76–77 Clinton, Hillary, 120 Clinton, William Jefferson, 76, 187 CNDP (National Congress for the Defense of People; Democratic Republic of Congo), 11 Cold War, 14, 17, 49, 61, 71, 143; renewal of, 247 Colombia, xvi colonialism, 25, 27–28, 110–11, 158, 225, 287n3; dissolution of, 16–17, 48, 54, 62, 109; and Palestine, 161–65, 180–81, 191, 193 communism, 17–18, 38, 49, 109 compassion fatigue, 9, 90, 98, 116 compensation, 22, 129–30, 184, 222, 230, 255; and Dayton Peace Agreement, 95; and Palestinians, 203, 216–17, 313n8; and Pinheiro Principles, 6–8 Comprehensive Peace Agreement (CPA; Southern Sudan; 2005), 132–34 Comprehensive Plan of Action (CPA; 1989), 98–99 Congo, Democratic Republic of (DRC; formerly Zaire), xv, 136–45, 291n48, 292nn53,54,63, 293n64; and ADFL, 144; citizenship in, 154; and CNDP, 11; demography of, 143; economic considerations in, 143–44; expulsion in, 154; Nationality Act of, 292n59; and Operation Kimia II, 142; and Operation Umoja Wetu,

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142, 293n72; refugees and IDPs from, 126, 293nn65,68; repatriation in, 293n65; and Rwanda, 136–45, 293n72; wars in, 144–45 Conoco Phillips, 281n61 Constantinople, 31–34 convention refugees, 13–14, 63–65, 98, 103 Cossacks, 37 Côte d’Ivoire, xvi, 126 CPA. See Comprehensive Peace Agreement; Comprehensive Plan of Action CPRR (Council for Palestinian Restitution and Repatriation), 212 Crimean Tartars, 20 crimes against humanity, 52–55, 61–62, 235–36, 284n83 Croat-Bosniak war (1990s), 76–79, 84 Croatia, 4, 6, 75–92, 233, 272n12; Dayton Peace Agreement on, xiii, 5, 73–75, 78–81, 85, 94–95, 272n10 CRPC (Commission for Real Property Claims of Displaced Persons and Refugees), 80, 90, 272n10 CRS (Catholic Relief Services), 283n78 Crusaders, 156 Cuba, 71, 109 Curzon, Lord (George Nathaniel), 34 Cyclone Nargis (2008), 104–6 Cypriots, Greek, 5, 21–22 Cyprus, 21–23, 48, 50, 70, 159, 174, 233 Cyrene, 159 Cyrus (king of Persia), 157 Czecho-Slovak ethnicity, 45 Czechoslovakia, 17, 40, 41t, 45, 48–51, 159 Daniel Deronda (Eliot), 296n7 Darfur, xv, 11, 27, 71, 126, 149–54 Darfur Liberation Front (DLF), 149–50 Dayton Peace Agreement (DPA; Serbia, Croatia, and Bosnia; 1995), xiii, 5, 73–75, 78–81, 85, 94–95, 272n10 De’by regime (Chad), 152 Declaration of Principles (DOP; Oslo Accords; PLO-Israel; 1993), 197, 204, 210 decolonization. See colonialism Deir Yassin massacre (Palestine; 1948), 201 democracy, 222, 242; in Israel, 181–82, 313n75 Democratic Forces for the Liberation of Rwanda (FDLR), 11, 142–43, 145, 293n72

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327 Index Democratic Karen Buddhist Army (DKBA; Burma), 105 Democratic Republic of the Congo. See Congo, Democratic Republic of demography, 221, 231, 242, 245, 248; of Bhutan, 101; of BiH, 78, 81, 91; of DRC, 143; of Palestine/Israel, 167, 180, 189–91, 212–18, 298n22, 305n18, 313n74; of Sri Lanka, 121–22 denaturalization. See citizenship Denaturalization Law (Iraq; 1950), 178 Dench, Janet, 319n28 deportation. See expulsion Derg regime (Ethiopia/Eritrea), 145 detention, 18, 99, 105, 121 de Waal, Alex, 150 de Zayas, Alfred, 68, 70 diaspora, 2, 35–36, 252; Eritrean, 149; Jewish, 157–60, 168–70, 188, 296n9, 297n11, 298n27; Palestinian, 196–97, 307nn24,27; of Tutsi people, 138 Dinka people, 134–35, 231, 290n39 discrimination, 7–8, 39, 61–62, 224, 265n31, 287n3; in Burma, 106; and Dayton Peace Agreement, 79; against Jews in Arab countries, 176–88, 206, 302nn59,60; and Law of Return, 175; in Uganda, 138. See also anti-Semitism; persecution displaced persons (DPs). See IDPs Displaced Persons and Refugees, Commission for Real Property Claims of (CRPC), 80, 90, 272n10 displacement. See expulsion Displacement Monitoring Centre, Internal (IDMC), 120 DKBA (Democratic Karen Buddhist Army; Burma), 105 DLF (Darfur Liberation Front), 149–50 DOP (Declaration of Principles; Oslo Accords; PLO-Israel; 1993), 197, 204, 210 DPA. See Dayton Peace Agreement DRC. See Congo, Democratic Republic of Drew, Catriona, 37–38 Drukpa (Ngalong) people, 101–2 Druze people, 202 Eastern Europe, 29, 40, 94; Jews in, 161, 165, 167, 170, 298n22; minority populations of, 41t; post-WWI, 35, 39; post-WWII, 50, 54, 261n18

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East Timor (Timor Leste), xiv, 70, 108–16, 280n56, 281nn57,61; APODETI in, 109; and Building Houses Together, 115; economic considerations in, 110–12, 281n58; famine in, 109; and Fretilin, 109, 111–12; human rights in, 280n49; and ICG, 115; and international community, 109–10, 114; and Mautuk Hari’l Futuru program, 116; property issues in, 90, 112–16, 282nn66,68, 283nn69,77; reintegration in, 111, 114, 116, 283n78, 284n80; repatriation in, 109–16; resettlement in, 114; security concerns in, 111, 113–16; self-determination in, 280n53; Suai church massacre in, 284n83; and Timorese Democratic Union, 109; and UN, 111–13; and UNHCR, 112; and United States, 109 Eban, Abba, 189–90 economic factors, 18–19, 34–37, 43, 68, 76, 85; in Africa, 138–39, 143–44, 153; in DRC, 143–44; in East Timor, 110–12, 281n58; and Jewish return, 165–66; and Palestinians, 203–5 Economic Survey Mission, 205 ECOSOC (UN Economic and Social Council), 61, 171, 268n22 education, 4, 9, 49, 65, 82, 86; in Africa, 134–35, 137; in Bhutan, 101; in Burma, 105; and Palestinians, 12, 205–6, 306n23 Egeland, Jan, 150 Egypt, 157, 171, 177, 204, 216 electoral politics, 127–29, 242, 288n14, 320n30 Eliot, George, 296n7 Emancipation Edict of 1791, 224 emigration restrictions, 177–78 England, 159 Eritrea, xv, 126, 145–49, 154, 294nn75,80,81 Erivan, Russia, 42 Estonia, 40, 41t ethics, 21, 154, 189, 229, 255, 315n11 Ethiopia, xv, 126, 136, 145–49, 154, 294nn75,80,81 Ethiopia and Eritrea, UN Mission in (UNMEE), 148 Ethiopian People’s Liberation Front (EPLF), 146 ethnic cleansing, xii–xiii, 24, 59, 229, 236, 253– 54; 1990s, 19, 23; in Bosnia, 75–81, 85–88, 91–92; in Darfur, 71; in Georgia, 72, 245; in Iraq, 239–41; of Jews, 188, 302n58; in Kenya, 127; in Kosovo, 75, 92; of Palestinians, 190, 199; post-WWII, 17, 50, 53–56; pre-WWII,

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328 Index 25–28, 33, 35, 37; reversal of, 73–74, 96; in Sri Lanka, 121 ethnicity, 50, 113, 256 Europe, 84–85; and Jews, 162–63, 168, 171–72, 174; OSCE in, 247; post-WWII, xiii, 48, 59–60, 62; and Zionism, 162–63 European Convention on Human Rights, Fourth Protocol (1963), 68 European Court, 22 European Union, 21–23, 85, 246, 257 ex-FAR (Forces arméds rwandaises, Armed Forces of Rwanda), 139–42, 291n48 Exodus (Bible), 157, 160–61 Exodus (ship), 173 expulsion, xiii, 28, 35–37, 43–44, 227–30, 295n90; in DRC, 154; in Ethiopia and Eritrea, 146–49, 294n75; forced, 102, 133, 154; in Georgia, 245; in Greece and Turkey, 33; of Jews, 159, 302nn56,60; of Palestinians, 176, 192, 196, 199–202, 308nn32,33; post-WWII, 48–49, 57–58; and right of return, 26; in Soviet Union, 37, 49; of Tutsi people, 292n62; and UDHR, 69–70; and UNHCR, 70 Ezra (Bible), 156–58, 296nn9,10, 297n12 family reunification, 192, 197–98, 215, 218, 308n30 famine, 38, 109 FAR. See ex-FAR Fatah, 195, 214–15 Fayad, Salam, 215 FDLR (Forces démocratique pour la libération de Rwanda, Democratic Forces for the Liberation of Rwanda), 11, 142–43, 145, 293n72 Ferris, Elizabeth, 317n4 Finland, 40, 247 firaku (talkers), 112, 281n57 Ford, Gerald, 109 ‘“Framework for a Public Peace Process” (PLO; 1991), 210 France, 28, 43, 159 Frank, Hans, 53 free movement, right of, xvii, 4–5, 22, 51, 59, 65–70, 121 Fretilin (Frente Revolucionnaria do Timor Leste Independente, Revolutionary Front of Independent East Timor), 109, 111–12

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Fur people, 152 Galilee, 202 Gali people, 320n31 Galut (exile), 160, 164, 168 Gandhi, Rajiv, 285n91 Gans, Chaim, 313n74 Garang, John, 289n29 al-Gaylani, Rashid Ali, 177–78 Gaza, 12, 193, 197, 214–15; Jewish settlement of, 182, 188, 202; and Palestinians, 195, 210 General Framework Agreement for Peace (GFAP; BiH), 272n10 Geneva Conventions, 16, 47; Article 49 of Fourth (1949), 57–58, 262n3; Fourth (1949), 55–59, 62, 262n3, 268n18; Protection of Civilian Persons in Time of War (1949), 61; Protocols to Fourth (1977), 62 genocidaires, 11, 140–41, 144, 154, 291nn48,50 genocide, 17, 19, 24, 27–28, 53, 59, 235; Armenian, 30, 42; in Darfur, xv, 27, 153; Holocaust, 30, 35, 45, 160, 169–175, 185–186, 301n47; in Iraq, 318n17; in Rwanda, 2, 11, 71, 139–44; in Srebrenica, 262n7; in Sri Lanka, 120 Genocide Convention (Convention on the Prevention and Punishment of the Crime of Genocide; 1948), 16, 47, 54–55, 62 Georgia, 23, 71–72, 242–48 German language, 164 German-Soviet Pact, 45 Germany, 30, 40–45, 62, 81, 137, 167; and BiH, 84–85, 270n48; and CDU, 51; and Jews, 167–68, 172; post-WWII, 29, 48–49, 183, 186, 266n2, 301n45; and Sudeten Germans, xi, xvi, 50–52, 309n35 GFAP (General Framework Agreement for Peace; BiH), 272n10 Gizenga, Antoine, 145 GNU (Government of National Unity of Sudan), 134 Goa, 109 Goodwin-Gill, Guy, 148–49 Gordon, A.D., 166 Gore, Al, 76 Gorky, Maxim, 38 GoS (Government of Sudan), 149–51 “Great Arab Rebellion” (1936), 168

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329 Index Great Depression, 43 Greece, 40, 43, 45, 245; expulsion in, 33; and population transfer, 25, 33, 42, 263n4; and war with Turkey, 30, 33–34 Greek Cypriots, 5, 21–22 Greek Settlement, 34 Guinea, 126 Gulf War (1991), 196 Gush Emunim, 182–83 Gusmão, Xanana, 110, 112 Habsburg empire, xii, 29, 40, 159 Habyarimana, Juvénal, 137–39 Hague Convention (1907), 55, 59 Hague Peace Conferences (1899, 1907), 25 Haiti, 65, 70 Hamas, 195, 212–14, 215, 218 Hamatuk Harii Uma (Building Houses Together; East Timor), 115 Hanafi, Sari, 215 Harrison, Earl G., 266n2, 299n34 HART. See Canadian HART Hastings, Lynn, 274n20 Hastings, Michael, 317n15 Havana Convention Regarding the Status of Aliens (1928), 25 Al Hawari, Muhammad Nimr, 204 Hebrew language, 164 Hebrew people, 163–64. See also Jews Heimatrecht (right to one’s own homeland), 51 Helton, Arthur, 99 Herero people, 28 Herzegovina. See Bosnia and Herzegovina, Republic of Herzl, Theodor, 162–65, 167–68, 298n24 High Commissioner for Refugees. See UNHCR High Commissioner for Refugees under the Protection of the League, 43, 300n37 The Hindu, 121–22 Hindus, 48, 58, 101–2, 117–21 Hirsch, Moritz von, 162 Hitler, Adolf, 45, 53, 172 Holocaust, 30, 35, 45, 160, 169–175, 185–186, 301n47 home: vs. homeland, 194–95, 209, 229, 274n23; vs. property, 237–38 home country, 148–49 Hoover, Herbert, 38, 48

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housing, 65–66, 82, 89–90, 112–13; right of, 248 Huguenots, 28, 43 Human and Peoples’ Rights, African Charter on (1981), 67–68, 287n3 Humanitarian Appeal for the Relief of Tamils. See Canadian HART humanitarian needs, 143, 222, 294n86; and Palestinian refugees, 189, 191, 196, 205–6, 218–19; vs. politics, 218–19, 300n42; and return, 254; and rights, 219, 232–34, 247, 258; and rites, 219; vs. self-determination, 163; and Zionism, 156, 161, 163 human rights, 8–12, 15–19, 47, 54–55, 280n49 Human Rights, American Convention on (OAS; 1969), 68 Human Rights Commission (UN), 71 Human Rights Council (UN), 71 Human Rights Covenants, International, 315n4 Human Rights, European Convention on, Fourth Protocol (1963), 68 Human Rights, South Asian Forum for (SAFHR), 103–4 Human Rights, Universal Declaration of. See Universal Declaration of Human Rights (UDHR) Hungary, 29, 40, 41t, 45, 48, 159 Hurricane Katrina, xvii Al-Husayni, Amin, 204 Hussein, Saddam, 196, 240 Hutu people, xv, 136–44, 291n47, 292n56 ICARA II (International Conference on Assistance to Refugees in Africa), 125 ICC (International Criminal Court), 71 ICCPR (International Covenant on Civil and Political Rights), xvii, 4, 62, 68, 70, 121 ICG (International Crisis Group), 115, 273n15, 293n72 ICRC (International Committee of the Red Cross), 55, 147–48, 294n80 ICTY (International Criminal Tribunal for the former Yugoslavia), 87 IDF (Israel Defense Forces), 155 IDMC (Internal Displacement Monitoring Centre), 120 IDPs (internally displaced persons), 3, 61, 64, 83f, 93; vs. refugees, 171–72, 193; UN

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330 Index Guiding Principles on, 119. See also refugees; particular countries Ignatieff, Michael, 74–75 Ignorance (Kundera), 248 Immigration Act, Emergency (Burma; 1974), 106 immigration restrictions, 4, 18–19, 29, 65, 167, 173 India, xiii, 101–2, 109, 259n2; and population transfer, 48, 58, 62, 268n22 Indian Peace Keeping Force (IPKF), 285n91 Indians, 4, 104 Indochina, 18, 97–99 Indonesia, xiv, 98, 108–12, 280nn51,53 Indo-Sri Lankan Accord, 285n91 infrastructure, 79–80, 110, 135–36, 151 Institute of Peace, United States (USIP), 112 integration, local, 87, 94, 102–4, 108, 126, 143, 149. See also reintegration interahamwe, 139–42, 291n48 interdiction. See immigration restrictions Internal Displacement Monitoring Centre (IDMC), 120 International Committee of the Red Cross (ICRC), 55, 147–48, 294n80 international community: and Bosnia, 74–75, 96, 275n32; and East Timor, 109–10, 114; and Ethiopia/Eritrea, 148; and Georgia, 246–47; and Iraq, 241–42; and Jews, 156, 167–70, 175, 184, 187; and Palestinian refugees, 194, 198, 202, 258; and Rwanda, 140–42; and Sri Lanka, 119–21; and Tutsi refugees, 222; and Zionism, 156 International Conference on Assistance to Refugees in Africa (ICARA II), 125 International Convention on the Elimination of All Forms of Racial Discrimination (1965), 62, 67 International Court of Justice, 110, 262n7 International Covenant on Civil and Political Rights (ICCPR; 1966), xvii, 4, 62, 68, 70, 121 International Covenant on Economic, Social, and Cultural Rights (1966), 62 International Criminal Court (ICC), 71 International Criminal Tribunal for the former Yugoslavia (ICTY), 87 International Crisis Group (ICG), 115, 273n15, 293n72 International Human Rights Covenants, 315n4

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International Labour Organisation, 62 international law, 189, 312n67, 315n11; and nonrefoulement, 81, 228; and right of return, 190, 203, 211, 228–30, 311n62 International Organization for Migration (IOM), 277n19, 283n78 International Red Cross, 205 International Refugee Organization (IRO), 46, 60–61, 63, 171–72, 300n39 International Rescue Committee (IRC), 293n64 Intifada, 183, 197, 213 Inyenzi (Tutsi refugees; “cockroaches”), 137 IPKF (Indian Peace Keeping Force), 285n91 Iran, 240 Iraq, 50, 64, 90, 113, 203, 238–42, 318n18; citizenship in, 178; Denaturalization Law of, 178; ethnic cleansing in, 239–41; genocide in, 318n17; and Gulf War, 196; international community and, 241–42; Jews in, 177–79, 302nn56,59; and Palestinians, 178–79, 183–84, 196–97, 240–41, 318nn16,22,23; and population transfer, 70, 178–79, 302n56; refugees from, 239–42, 316nn3,4, 317nn9,11,12, 319nn25,27,28; reintegration in, 240; and resettlement, 178, 239–22, 317n12; and UN, 318n23; and UNHCR, 239, 241, 317n9; and United States, 196, 239–42, 317n11; and Western countries, 241. See also Baghdad IRC (International Rescue Committee), 293n64 IRIN, 288n12 IRO (International Refugee Organization), 46, 60–61, 63, 171–72, 300n39 Isaiah (Bible), 157, 297n12 Israel, 12, 155–56, 164–67, 173–219; Absentees’ Law of, 181; Arabs in, 175, 181–82, 298n24; and Balfour Declaration, 157–58, 166; and Beilin-Abu Mazen Document, 211; and Camp David, 187, 211–13; citizenship in, 175, 177, 181–82; Declaration of the Establishment of the State of, 174–75; democracy in, 181–82, 313n75; demography of, 167, 180, 189–91, 212–18, 298n22, 305n18, 313n74; and DOP, 197, 204, 210; independence of, 161, 174–75; and Jordan-Israel Peace Treaty, 210, 307n29; and Law of Return, 174–75, 180; legitimacy of, 204; and Palestinians, ix, xv–xvi, 48, 167, 174, 186, 201–2, 211, 303n63; and peace

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331 Index negotiations, 176, 186–97, 206–15, 312n68, 314n81; and “The People’s Voice” peace initiative, 314n81; and property, 178–79, 183–84; recognition of, 208–10, 313n74; and rejectionists, 211, 214, 216, 218; and security concerns, 182, 194. See also Arab-Israeli wars Israel Defense Forces (IDF), 155 Israeli Army, 202 Israeli Supreme Court, 180 Israelites, 23, 160, 262n5 Italy, 43–45 Ivory Coast, xvi, 126 Jabotinski, Ze’ev, 298n24 Jacobsen, Karen, 295n90 Janjawid, 150–51 JEM (Justice and Equality Movement), 150–53 Jerusalem, 155, 157–60, 182, 188, 206, 297n15 Jewish Agency, 180, 182 Jewish Congress, World, 185 Jewish Fund, National, 180 Jews, 28, 43–45, 155–88; and Aliya, 158, 160, 186, 209, 298n22; and anti-Semitism, 158–61, 165–73; from Arab countries, 176–88, 206, 217, 302nn59,60; Ashkenazi, 175, 183–84, 186; and Balfour Declaration, 157–58, 166; and biblical narratives, 156–58, 160–61, 188, 296nn9,10; and Bonar/M’Cheyne Report, 155; and Britain, 61, 158, 168–69, 171–74, 298n28, 299n33; and British Mandate for Palestine, 169, 171, 173–74, 182, 185; diaspora of, 157–60, 168–70, 188, 296n9, 297n11, 298n27; discrimination against, 176–88, 206, 302nn59,60; diversity of, 164; Draft Arab League Law Against, 302n58; in Eastern Europe, 161, 165, 167, 170, 298n22; and Egypt, 177; ethnic cleansing of, 188, 302n58; and Europe, 162–63, 168, 171–72, 174; European, 167–69, 172, 174, 186, 188; expulsion of, 159, 302nn56,60; and Galut, 160, 164, 168; and Germany, 167–68, 172; and Holocaust, 30, 35, 45, 160, 169–75, 185–86, 301n47; and international community, 156, 167–70, 175, 184, 187; in Iraq, 177–79, 302nn56,59; and land, 158, 161, 165–66, 180–82; and messianism, xv, 155, 158–63, 182–83, 188, 207; nationalism of, 156, 161–62, 164–65; Orthodox, 160, 169, 179, 297n16;

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and Peel Commission for Palestine, 168; and population transfer, 168, 178–79; refugee, 37, 61, 156, 168, 170–74, 185, 187, 197–98, 299n33; resettlement of, 61, 156, 162–63, 170–73, 183–85, 300nn37,39; and return, xi, 61, 155–88, 192, 298nn22,28, 300nn38,39, 305n16; and rites, 162–66, 174–75, 182– 83, 186, 188, 191–92; Sephardic, 175–79, 183–87; settlements of, 166–68, 182–83, 188, 200–202, 214; and Soviet Union, 37, 170; and tribalism, 160, 165; and Uganda, 162–63, 297n19; and UNHCR, 185; and United States, 156, 171, 299n33; and White Paper, 168–69, 172. See also Israel; Zionism Jews from Arab Countries, Justice for (JJAC), 185 Jews from Arab Countries, World Organization of (WOJAC), 179, 185 Jigme Singye Wangchuk, 101 Jikany people, 135–36, 290n39 JNA/Yugoslav People’s Army, 76 Joint Verification Team, 104 Jordan, 12, 185, 193, 196, 204, 239, 240; King Abdullah of, 201, 307n29 Jordan-Israel Peace Treaty, 210, 307n29 JRS (Jesuit Refugee Service), 283n78 Judaism, Orthodox, 160, 169, 179, 297n16 Judea, 157, 159 Justice and Equality Movement (JEM), 150–53 Justice for Jews from Arab Countries (JJAC), 185 Kabila, Joseph, 144 Kabila, Laurent, 144 Kagame, Paul, 141 kaladi (taciturn), 112, 281n57 Kalenjin people, 126–28, 288n14 Kamanda, Gerard Kamanda wa, 292n53 Kamba people, 126 Karen (Kayin) people, xiv, 104–7 Karuna, Colonel (Vinayagamoorthy Muralitharan), 118, 286n95 Karuna faction (Sri Lanka), 118, 120, 286n102 Kedar, Alexandre S., 303n63 Kellogg-Briand Pact (1928), 42 Kenya, 126–30, 153, 289n26; ethnic cleansing in, 127; IDP camps in, 127f, 128f, 289n24; and Operation rudi nyumbani’, 127; Orange Democratic Movement in, 127; repatriation in, 127–28, 132, 289n24; resettlement in,

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332 Index 127–29; security concerns in, 128–29, 132, 288n20 Kenya Red Cross Society (KRCS), 128–29 Khalidi, Rashid, 209–10 Khartoum Peace Agreement (Sudan, 2002), 290n39 Khazar people, 297n11 Khin Nyint, 105 Khmer Rouge, 99 Kibaki, Mwai, 127 Kikuyu people, 126–28, 288n18 Kinyarwanda people, 138, 154 Kipruto, Christopher, 288n14 Kirkbride, Alec, 302n56 Kisii people, 126 Kissinger, Henry, 109 Knights Templar, 155 Koestler, Arthur, 297n11 Korea Reconstruction Agency (UNKRA), 12 Koser, K., 149 Kosovars, 75 Kosovo, xiii, 4, 271n5; ethnic cleansing in, 75, 92; and forced return, 14, 229–30, 254–55; reintegration in, 14; secession of, 230; and Western countries, 74–75, 92–93 Kosovo Supreme Court, 93 Kozarac (BiH), 87–88 KRCS (Kenya Red Cross Society), 128–29 Kundera, Milan, 248–49 Kurdish people, 240–41, 318nn17,18 Kuwait, 196, 241, 307n24 land: Jewish cultivation of, 158, 161, 165–66, 180–82; loss of, 28, 112, 113, 129–30, 134, 135, 193, 201. See also property Landsmannschaft (Sudeten Congress), 51 Lang, Berel, 297n18 Laos, 97–99 Lapidoth, Ruth, 311n62 Latin America, 29 Latvia, 2, 40, 41t Law of Return (Israel; 1950), 174–75, 180 Laws on Cessation (BiH), 90 League of Nations, 37, 40–44, 166–67, 265n34 League of the Red Cross Societies, 205 Lebanon, 12, 42, 196, 216, 302n59, 306n23 Leopold II (king of Belgium), 143 Levinger, Rabbi Moshe, 182

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Lhotshampa people, 101–2 Lhuya people, 126 Liberation Tigers of Tamil Eelam (LTTE), 117–22, 285nn91,93, 286n95 Liberia, 2, 126 Libya, 71, 142 Lithuania, 36, 40, 41t, 264n25 Lord’s Resistance Army (LRA; Uganda), 134 Loromonu people, 111, 114–15, 281n57 Lorosae people, 111, 114, 281n57 Lubbers, Ruud, 125–26 Lumumba, Patrice, 143 Luo people, 126–28, 135–36, 288n18, 290n39 Macau Conference, 109 Macedonia, 34, 76 Magna Carta, 25 Magyar people, 45 Malaysia, 98–99, 109 Malik, Charles, 172 Mamdani, Mahmoud, 153 Maoist rebellion (Nepal), 103 Maronite people, 319n20 Maru people, 126 Masalit people, 152 Maubere people, 281n57 Mautuk Hari’l Futuru program (East Timor), 116 media coverage, effect of, 110, 140 Mehdi militia, 238 Meir, Golda, 200, 309n34 Meles Zenawi, 146 memory, 248–53, 297n13 messianism, xv, 155, 158–63, 182–83, 188, 207 Milošević, Slobodan, 77 Ministry of Home and Cultural Affairs (Bhutan), 102 minority populations: in Eastern Europe, 41t; protection of, 15, 33, 39–41; and repatriation, ix, xiv, 22, 75, 135, 140, 253–54; and return, xiii, 1–2, 91–96, 99, 243, 244, 256; in Yugoslavia, 41t, 272n12 Mizrahim (Sephardic Jews), 175–79, 183–87 Mladic, Ratko, 77 Mobutu, Joseph-Désiré (Mobutu Sese Seko), 140, 142–43, 292n59 Mohamed, Mohamud Ali, 129 Mon-Khmer people, 104 Montenegro, 76, 94

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333 Index Mooney, Erin, 272n7 Moors, 28 Morocco, 142, 177 Morris, Benny, 200–202, 310n46 Mostar (BiH), 88, 91 Munyarwanda. See Banyarwanda people Muralitharan, Vinayagamoorthy (Colonel Karuna), 118, 286n95 Murle people, 135 Museveni, President Yoweri Kaguta, 138–39 Muslims, 34, 48, 58, 75, 202, 319n19; in Bosnia, 77, 85, 87; in Burma, 106–7; in Sri Lanka, 285nn89,93, 287n106; Tamil, 117–22 Mussolini, Benito, 44 Muteru, Martin, 129 Myanmar. See Burma mythology, xvi, 158–60, 165, 170, 186, 192–93, 297n18 “Naga Min” (Dragon King) operation (Burma; 1978), 106 Al-Nakba (Palestine; 1948), 193, 197–98, 208, 217 Namibia, 28, 142 Nansen, Fridtjof, 33, 37–38, 41–43 Nansen International Office for Refugees, 43 Nansen Passport, 42 Napoleonic Wars, 31 Narodnaya Volya (Russia), 166 National Islamic Front (NIF), 289n29 nationalism, 76, 219; Jewish, 156, 161–62, 164–65; Palestinian, 188, 192, 194 Nationality Act (DRC; 1981), 292n59 NATO (North Atlantic Treaty Organization), 14, 74–75, 77–78, 92, 230, 247 natural disasters, xvii, 30, 38, 104–6, 109, 153 Nazism, 29, 45, 52, 168 NCP (National Congress Party of Sudan), 136 Nebuchadnezzar, 296n10 Nehemiah (Bible), 156–58, 296n9, 297n12 Nepal, xiv, 100f, 102–4, 277n19 Netanyahu, Benjamin, 313n74 New Delhi Accord (India and Pakistan; 1950), 58, 268n22 Ne Win, General, 106 New Mon State Party (NMSP; Burma), 107 New Zealand, 180 Ngalong (Drukpa) people, 101–2 Ngok Dinka people, 134–35

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NIF (National Islamic Front), 289n29 Ningmapa School of Mahayana Buddhism, 101 Nobel Prize, 42, 110 non-refoulement, 13, 44, 61, 98, 124–25; and convention refugees, 65; and international law, 81, 228 North Atlantic Treaty Organization (NATO), 14, 74–75, 77–78, 92, 230, 247 Norwegian Refugee Council (NRC), 116 nostalgia, 248–53 Nuer people, 135–36, 231, 290n39 Nuremberg Laws, 43 Nuremberg War Crimes Trials, 47, 52–53, 62, 267n13 Nusseibeh, Sari, 214, 314n81 Nyabasi clan, 288n12 Nyiginya clan, 136–37 OAS (Organization of American States), 270n43 OAU. See Organization of African Unity Obama, Barack, 317n12 Obote, Milton, 138 Odinga, Raila, 127 Odysseus, 251 Oecussi-Ambeno (West Timor), 109 Oedipus, 249 Office of High Commissioner for Refugees, 42–43 Office of the High Commissioner for Refugees under the Protection of the League, 43, 300n37 Office of the High Representative (OHR), 82, 84–85, 88, 90, 272n11, 275n32 Ogata, Sadako, 270n38 “One Nation One People” (Driglam Namzha; Bhutan), 102 Ong’ayo, Wenslas, 289n26 Open Cities Initiative (BiH; 1997), 85, 273nn14,15 Operation Kimia II (Democratic Republic of Congo), 142 Operation rudi nyumbani’ (Operation Return Home; Kenya; 2008), 127 Operation Umoja Wetu (Democratic Republic of Congo and Rwanda), 142, 293n72 Orange Democratic Movement (ODM; Kenya), 127 Orderly Departure Program (Vietnam), 98

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334 Index Organization for Security and Cooperation in Europe (OSCE), 247 Organization of African Unity (OAU), 124–26, 153–54; Convention on Refugees of, 124–25 Organization of American States (OAS), 270n43 The Origins of Totalitarianism (Arendt), 225 Orthodox Judaism, 160, 169, 179, 297n16 Oslo Accords (Declaration of Principles; PLOIsrael; 1993), 197, 204, 210 Ottoman empire, xii, 29, 31, 40, 160, 181–82, 265n31 Owen, David, 76–77 Pakistan, 58, 62, 268n22 the Pale, 160–62 Palestine, 48, 192, 258; Arabs in, 12, 158, 166–69, 171–72, 176, 198; and Balfour Declaration, 157–58, 166; and Bonar/M’Cheyne Report, 155; and Britain, 158, 168–69, 201, 203; British Mandate for, 169, 171, 173–74, 182, 185, 312n66; and colonialism, 161–65, 180–81, 191, 193; Deir Yassin massacre in, 201; demography of, 167, 180, 189–91, 212–18, 298n22, 305n18; independent state of, xvi, 188, 207–8, 210, 214, 217, 314n81; and Jewish return, 61, 155–76, 186–88; and Al-Nakba, 193; Peel Commission for, 33, 168; Popular Front for the Liberation of, 219; and population transfer, 62, 70, 168, 302n56, 309n35; Rejectionist Front of, 208; and UN, 70, 176; and UNCCP, 205, 308n30; and UNSCOP, 172–73; and White Paper, 168–69, 172 Palestine Liberation Organization (PLO), 197, 209–10, 214 “Palestine Papers,” 216 Palestine Refugees, UN Relief for (UNRPR), 205 Palestine Ulema Association, 218 Palestinian-Americans, 197 Palestinian National Authority (PNA), 197, 212–14, 216 Palestinian National Charter, 208, 312n66 Palestinian National Council (PNC), 208 Palestinian People, Committee on the Exercise of the Inalienable Rights of the, 207 Palestinian Restitution and Repatriation, Council for (CPRR), 212 Palestinian Return Centre, 207, 214

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Palestinians, 189–219, 312n66; and Arab countries, 185, 193–94, 206, 210; and BeilinAbu Mazen Document, 211; and Camp David, 187, 211–13; and citizenship, 185, 193, 195, 219; and compensation, 203, 216–17, 313n8; diaspora of, 196–97, 307nn24,27; and DOP, 197, 204, 210; and economic considerations, 203–5; and education, 12, 205–6, 306n23; ethnic cleansing of, 190, 199; expulsion of, 176, 192, 196, 199–202, 308nn32,33; and Gaza, 195, 210; and humanitarian needs, 189, 191, 196, 205–6, 218–19; and international community, 194, 198, 202; Intifada of, 183, 197, 213; and Iraq, 178–79, 183–84, 196–97, 240–41, 318nn16,22,23; and Israel, ix, xv–xvi, 48, 167, 174, 186, 201–2, 211, 219, 303n63; leadership of, 194, 198, 204, 207; and Al-Nakba, 193; nationalism of, 188, 192, 194; and peace negotiations, 176, 186–97, 206–15, 312n68, 314n81; and “The People’s Voice” peace initiative, 314n81; Popular Refugee Committees of, 214; and redress, 189–90, 194, 215–19, 304n5; refugee, xv–xvi, 176, 178–79, 183–86, 195–98, 205, 210, 234, 257, 306n23, 311nn63,65, 313nn75,81,83; rejectionist, 211, 213–14, 218; resettlement of, 194, 198–99, 203–6, 209–11, 218–19, 310n46; and return, xi, 5, 185–87, 189–219, 310n46, 311nn63,65, 313nn75,81,83; and rites, 191–92, 199, 207, 215, 219; and security concerns, 194, 219; and self-determination, 209–10, 258, 311n61, 313n75; and UN, 185, 190, 203, 207–8, 311n65; and UNHCR, 196, 205; and United States, 187, 198, 219; and UNRWA, 12–13, 189, 195–96, 204–6, 219, 261n16, 311n53; and World Refugee Survey 2004, 318n22; and Zionism, 188, 191, 193, 198–99, 201–2, 207 Palmerston, Lord (Henry John Temple), 156 Paris Peace Conference (1919), 38 Paris Reparation Agreement, 50 Patton, George S., 300n38 Peel Commission for Palestine (1937), 33, 168 “The People’s Voice” peace initiative (IsraeliPalestinian; 2003), 314n81 Perkins, Frances, 299n33 persecution, 15–17, 19, 28; fear of, 13, 63–64, 98, 226, 228, 316n3. See also discrimination

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335 Index Philippines, 98 Philpott, Charles, 259n3, 275n32 Pinheiro Principles, 6–8, 112, 123 PLIP (Property Law Implementation Plan; BiH; 1999), 90, 274n22 PLO (Palestine Liberation Organization), 197, 209–10, 214 pogroms, 162, 170, 177 Poland, 35–36, 40, 41t, 45, 48–49, 161; refugees from, 29, 264n25; repatriation in, 36 politics: electoral, 127–29, 242, 288n14, 320n30; vs. humanitarian needs, 218–19, 300n42; and return, 247, 255–57; and rights, 2, 133, 148, 206–11, 215, 218–19, 221–22; and rites, 218–19 Pomerania, 53 Popular Front for the Liberation of Palestine, 219 Popular Refugee Committees (Palestinian), 214 population transfer, 28, 33, 37–38, 44, 233; and Bulgaria and Turkey, 32–33; and Greece and Turkey, 25, 33, 42, 263n4; and India and Pakistan, 48, 58, 62, 268n22; and Iraq, 70, 178–79, 302n56; and Jews, 168, 178–79; and Palestine, 62, 70, 168, 302n56, 309n35; and Peel Commission for Palestine, 33, 168; postWWII, 43, 47–73; prevention of, 69, 93 Population Transfer, UN Special Rapporteur on (1997 report), 56–57, 59 Portugal, 108–9 Potsdam conference (1945), 48, 50 Powe, Nancy, 277n19 POW refugees, 46, 60 Prabhakaran, Velupillai, 118 Prijedor (BiH), 88, 91 Pronk, Jan, 151 property, 50, 94, 128, 153; and CRPC, 80, 90, 272n10; in East Timor, 90, 112–16, 282n66,68, 283nn69,77; vs. home, 237–38; and Israel, 178–79, 183–84; laws on, 88–91; and Laws on Cessation, 90; rights to, 222, 259n3, 275n32; in Sudan, 134–36 Property Law Implementation Plan (PLIP; BiH; 1999), 90, 274n22 Protection of Civilian Persons in Time of War (Geneva Convention), 61 Prussia, 31, 53 al Qaeda, 196, 318n18

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Quadripartite Agreement on Voluntary Return of Refugees and Displaced Persons (1994), 72 Al Quds University, 214 Rajapakse, Mahinda, 119–20 Rakesh Chhetri, 277n18 Ramos-Horta, José, 110, 112, 115 Rashid Ali (al-Gaylani, Rashid Ali), 177–78 Rawls, John, 230 reconstruction, 88–91, 110, 115–16, 274n24, 283n77, 284n80 Red Cross: International, 205; International Committee of, 55, 147–48, 294n80; in Kenya, 128–29; League of, 205 redress, 10–12, 26, 113, 224, 230–31, 233, 249; and Palestinians, 189–90, 194, 216–19, 304n5; and Sudeten Germans, 51–52 refoulement. See non-refoulement Refugee Affairs of the PLO, Department of, 214 refugee camps, xv, 8–11, 66, 140–43, 173, 196; in Germany, 301n45; in Kenya, 127f, 128f, 289n24; in Nepal and Bhutan, 100f Refugee Convention (Convention Relating to the Status of Refugees; 1951), 16, 18–19, 44, 46–47, 142, 205; and convention refugees, 64; and forced repatriation, 13, 61, 63; Protocol Relating to the Status of Refugees (1967), 63; and right of return, 4–5 Refugee Conventions (League of Nations; 1933, 1938), 43–44 Refugee Return Treaty (1920), 264n25 refugees: convention, 13–14, 63–66, 98, 103; and CRPC, 80, 90, 272n10; vs. displaced persons, 171–72, 193; and ICARA II, 125; and International Refugee Organization, 46, 60–61, 63, 171–72, 300n39; and nostalgia, 252–53; POW, 46, 60; protection of, 38, 134, 141, 247, 258; quantification of, 30; rights of, 60–63, 81, 206, 208, 247–49, 320n40. See also Jews; Palestinians; particular countries Refugees and Immigrants, United States Committee on (USCRI), 318n12 Refugees, Canadian Council for, 318n16 Refugees, Convention on (OAU; 1969), 124–25 Refugees, High Commissioner for, 42–43, 300n37. See also UNHCR Refugees in Africa, Resolution on the Situation of the, 125

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336 Index Refugees, Intergovernmental Committee on, 60 Refugees International, 241 Refugees, Nansen International Office for, 43 refugee warriors, 10–11, 140 Refugee Welfare Council, 134 Refugee Working Group (RWG), 210 rehabilitation, 6, 88, 96, 247 Reinado, Alfredo, 115, 284n83 reintegration, 82, 84, 256, 278n36; in Africa, 125, 134, 136; in Bhutan, 103; in BiH, 20, 86, 88, 91, 94–95; in Burma, 105, 107; in East Timor, 111, 114, 116, 283n78, 284n80; in Iraq, 240; in Kosovo, 14 Rejectionist Front (Palestine), 208 rejectionists (Israel and Palestine), 211, 213–14, 216, 218 Relief and Rehabilitation Administration (UNRRA), 59–60 Relief for Palestine Refugees (UNRPR), 205 religion, 2, 28, 64, 66, 222. See also particular religions reparation, 183, 186, 194, 210, 233–34, 253, 255 repatriation, 56, 96, 111, 129; in Baltic countries, 36; in Bhutan, 103–4; in Bosnia, 74, 81–92, 271n1; in Burma, 105–8; and citizenship, 124–26; and Dayton Peace Agreement, 79–81; in DRC, 293n65; in East Timor, 109–16; in Ethiopia and Eritrea, 147–49, 294n80; forced, 13–14, 61, 63–66, 138, 140, 153–54, 229–30, 254, 292n54; in Georgia, 71–72; history of, 24–46; implementation of, 123, 125, 136, 151; vs. individual, 248, 257–58; in Kenya, 127–28, 132, 289n24; minority, ix, xiv, 22, 75, 135, 140; obstacles to, 116; of Palestinians, 217–18; in Poland, 36; vs. right of return, 211, 212, 216; in Rwanda, 141–42, 292nn53,54; in Sudan, 133–36; voluntary, 5, 124, 132, 270n38, 292n54; and Yugoslavia, 73 Republika Srpska, 78–79, 81, 83f, 85, 87–89, 91, 94. See also Serbia resettlement, xvi–xvii, 7–8, 18, 35–37, 160, 254; in Africa, 125–26; of Bhutanese refugees, 101–4, 277n19, 279n45; in East Timor, 114; of Georgian refugees, 243, 247–48; of Indochinese refugees, 98–99; and Iraq, 178, 242, 318n12; of Jews, 61, 156, 162–63, 170–73, 183–85, 300nn37,39; in Kenya, 127–29; of Kosovars, 75; and Nepal, 103; of Palestinian

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refugees, 194, 198–99, 203–6, 210–11, 218–19, 310n46; restrictions on, 29, 43, 256–57; vs. return, x, 13, 248; and rights, x, 233; in Sri Lanka, 117–18, 120–22; and Thailand, 108; and Uganda, 162–63, 297n19 restitution, 6, 123, 180, 210, 259n3, 275n32 return, ix; forced, 13–14, 61, 63, 138, 140, 153–54, 229–30, 254, 292n54; and humanitarian needs, 254; and international law, 190, 203, 211, 228–30, 311n62; Jewish, xi, 61, 155–88, 192, 298nn22,28, 300nn38,39, 305n16; and length of stay, 82–87; and military force, 20, 126, 241; minority, xiii, 1–2, 91–96, 99, 243–44; and Palestinian refugees, xi, 5, 185–87, 189–219, 310n46, 311nn63,65, 313nn75,81,83; and politics, 247, 255–57; vs. resettlement, ix, 13, 248; right of, 4–5, 26, 62–68, 190, 203, 209, 211, 227–34, 253–54, 311nn62,65, 320n40; rite of, 52, 96, 162–66, 174–75, 182–83, 199, 207, 215, 219; and selfdetermination, 220–21, 228 Revolutionary Front of Independent East Timor (Fretilin), 109, 111–12 El-Rifa’i, Samir, 302n56 rights, 7–12, 287n3; of choice, 8, 79, 95, 194, 203, 234; and citizenship, 223; of free movement, xvii, 4–5, 22, 51, 59, 65–70, 121; of housing, 248; human, 8–12, 15–19, 47, 54–55, 71, 103–4, 280n49; and humanitarian needs, 218–19, 232–34, 258; and ICCPR, xvii, 4, 62, 68, 70, 121; individual vs. group, 227–28, 315n4; individual vs. national, 225, 243, 248, 257–58; and International Covenant on Economic, Social, and Cultural Rights, 62; and politics, 2, 133, 148, 206–11, 215, 218–19, 221–22; property, 222, 259n3, 275n32; protection of, 63–66, 223–24; of refugees, 60–63, 81, 206, 208, 247–49, 320n40; and resettlement, x, 233; of return, 4–5, 26, 62–68, 103–4, 190, 203, 209, 211, 227–34, 253–54, 311nn62,65, 320n40; of security, 9, 11, 247–48; of self-determination, 207, 224–25, 315n4; of sovereignty, 9; state, 60; universal, 72, 220–36, 253, 255 Rights of Indigenous Peoples, Declaration on the (2007), 225 Rights of Man, 226 the “Riots” (“Great Arab Rebellion”; 1936), 168

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337 Index rites, x–xvi, 20–21, 23, 234; and humanitarian needs, 219; and Jews, 162–66, 174–75, 182–83, 186, 188, 191–92; and Palestinians, 191–92, 199, 207, 215, 219; and politics, 218–19; and return, 52, 96, 162–66, 174–75, 182–83, 199, 207, 215, 219 Rizal, Tek Nath, 103–4, 276n16 Rogge, John, 261n23 Rohinga people, xiv, 106–7 Romania, 2, 40, 41t, 45, 161, 265n31 Roma people, 75, 85, 92–93, 255 Rome Statute of the International Criminal Court (1998), 71 Rosand, E., 274n23 Rose revolution (Georgia; 2003), 246 Roth, Michael, 251 Rumania. See Romania Ruppin, Arthur, 165 Russia, xii, 29–30, 34–35, 38, 41–44, 161–62, 265n34; and Georgia, 23, 72, 243–48; and Narodnaya Volya, 166. See also Soviet Union Rwanda, xv, 20, 136–42, 153–54, 222; and DRC, 136–45, 293n72; and ex-FAR, 139–42, 291n48; and FDLR, 11, 142–43, 145, 293n72; genocide in, 2, 11, 71, 139–44; and international community, 140–42; refugees from, 126, 136–45, 291nn47,48, 292nn53,54,56; repatriation in, 141–42, 292nn53,54; and UN, 141; and UNHCR, 139–42, 292n54; and Western countries, 141 Rwandan Patriotic Army, xv Rwanda Patriotic Front, 139 RWG (Refugee Working Group), 210 Sabean-Madean people, 240 SAF (Sudanese Armed Forces), 135 SAFHR (South Asian Forum for Human Rights), 103–4 Sa’id, Nuri, 178, 302n56 Sako, Louis, 318n15 Salazar, Antonio de Oliveira, 109 Salsinha, Gastão, 284n83 sanctions, 14, 150–51 Sand, Shlomo, 297n11 Santa Cruz massacre (Indonesia; 1991), 280n51 Sarajevo, 91 Sarkozy, Nicolas, 247 Sartawi, Isam, 186

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Saviours and Survivors, 153 secession, 8, 256; of Abkhazia and South Ossetia, 23, 246; of Kosovo, 230 security concerns, 57–58, 68, 87, 125, 217, 248; in Darfur, 151–53; in East Timor, 111, 113–16; and Israel, 182, 194; and Jewish return, 169, 173; in Kenya, 128–29, 132, 288n20; and Palestinians, 194, 219; in Sri Lanka, 118–22; in Sudan, 134 security, right of, 9, 11, 247–48 self-determination, 9, 11, 15–17, 23, 51, 63, 110; in Abkhazia and South Ossetia, 246; in East Timor, 280n53; in Georgia, 243; vs. humanitarian needs, 163; and Palestinians, 209–10, 257, 311n61, 313n75; and return, 206, 220–21, 228; right of, 207, 224–25, 315n4; and Zionism, 155, 169 Serbia, 4, 14, 40, 76–96; Dayton Peace Agreement on, xiii, 5, 73–75, 78–81, 85, 94–95, 272n10; refugees and IDPs from, 6, 233, 254, 257, 271n5 Serbo-Croat ethnicity, 45 Serbs, 41t, 75, 255, 272n12; and Republika Srpska, 78–79, 81, 83f, 85, 87–89, 91, 94 settlements, Jewish, 166–68, 183, 200–202, 214; in Gaza, 182, 188, 202; in West Bank, 167, 182, 188 Shaath, Nabil, 210, 312n70 Shaftesbury, Lord (Anthony Ashley Cooper), 155–56 Shan (Tai) people, 104, 107 Sharchop people, 101 Al-Shati, Jamal, 194 Sheikh Munis, 200 Shenhav, Yehuda, 179, 185 Shertok, Moshe, 184, 200, 309n35 Shi’a people, 238–40, 320n30 Shlaim, Avi, 201, 307n29 Sierra Leone, 126 Sikhs, 48 Sikkim, 101 Silesia, 53 Simpson, John Hope, 34 Simu Malu (community dialogue), 115 Sinai, 162 Sinai War (1956), 177 Singapore, 109 Sinhalese language, 117

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338 Index Sinhalese people, 117, 285n89 Siniora, Hanna, 210, 312n70 Sino-Japanese conflict (1937–39), 30 Six Day War (Arab-Israeli; 1967), 182, 206–7 SLM/A (Sudan Liberation Movement/Army), 150 Slovaks, 41t Slovenes, 76 Smith, Merrill, 318n12 Soeharto, President, 109 Somalia, 127 South Africa, 28, 142, 153 South Asian Forum for Human Rights (SAFHR), 103–4 South Asian refugees, 65–66 Southern Sudan, xv, 133–36, 153, 231, 290n39 South Korea, 12 South Ossetia, 72, 243–47 South Sudan Liberation Movement (SSLM), 290n39 sovereignty, right of, 9 Soviet Union, 20, 29, 35–36, 45–49, 53, 264n25; citizenship in, 46, 60–63; expulsion in, 37, 49; and German-Soviet Pact, 45; and Jewish refugees, 37, 170. See also Russia Spain, 28, 30, 43, 159 SPLM (Sudan People’s Liberation Movement), 134, 136, 290n39 squatters, 89, 119, 123 Srebrenica, 27, 77, 262n7 Sri Lanka, xiv, 4, 70, 117–23; demography of, 121–22; ethnic cleansing in, 121; genocide in, 120; Grant of Citizenship of Stateless Persons Act of, 259n2; IDPs in, 259n2, 285nn87,89, 286n100; and Indo-Sri Lankan Accord, 285n91; and international community, 119–21; Karuna faction in, 118, 120, 286n102; Muslims in, 285nn89,93, 287n106; resettlement in, 117–18, 120–22; security concerns in, 118–22; and UN, 287n106; and UNHCR, 119 Sri Lankan Army (SLA), 117–20, 286n102 Srpska. See Republika Srpska SSLM (South Sudan Liberation Movement), 290n39 Stalin, Joseph, 37, 45, 54 stateless persons, 3–4, 42, 225–27, 259n2, 265n34, 315n7

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State Peace and Development Council (SPDC; Burma), 105–6 state rights, 60 Suai church massacre (East Timor; 1999), 284n83 Subba, Bhim, 277n18 Sudan, 27, 71, 130–36, 131–32m, 148–53; census in, 133, 135, 289n32; Comprehensive Peace Agreement of, 132–34; Government of (GoS), 149–51; Government of National Unity of (GNU), 134; and Khartoum Peace Agreement, 290n39; National Congress Party of, 136; property in, 134–36; refugees and IDPs from, 126, 132–36, 289n28, 290n34; repatriation in, 133–36; security concerns in, 134; Southern, xv, 133–36, 153, 231, 290n39; and UN, 135, 152; and UNHCR, 133–35, 290n42. See also Darfur Sudanese Armed Forces (SAF), 135 Sudan Liberation Movement/Army (SLM/A), 150 Sudeten Germans, xi, xvi, 50–52, 309n35 Sudetenland, 53 Sunnis, 238–41, 318n18, 320n30 Switzerland, 46 Syria, 12, 42, 71, 177, 203–4, 239, 240, 302n59 Tamari, Salim, 216–17 Tamileel Makkal Viduthalai Pulikal (TMVP; People’s Liberation Tigers of Tamil Eelam), 286n95 Tamils, 4, 66, 117–22, 259n2, 285n89 Tamil Tigers, xiv, 117–22, 285nn91,93, 286nn95,102 Tanzania, 136–41 Taylor, Telford, 267n13 Tel Aviv University, 200 “temporary use agreements” (TUAs), 112 Tenasserim Division, Burma, 105, 279n40 Thailand, xiv, 97–98, 104–8, 279nn42,45 Than Shwe, 105 Thrace, 33–34 Tibeto-Burma (Rakhoine) people, 104 Tigray People’s Liberation Front (TPLF), 146 Tigrean people, 145–46 Timorese Democratic Union (Uniáo Democrática Timorense), 109 Timorese Popular Democratic Association (APODETI), 109

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339 Index Timor-Leste. See East Timor Tokyo earthquake (1923), 30 “Tolstoy in Palestine” (Gordon), 166, 298n23 Trail of Tears, 28 Treaty of Berlin (1878), 265n31 Treaty of Bucharest (1913), 32, 40 Treaty of Constantinople (1913), 32, 263n13 Treaty of Lausanne (1923), 25, 33 Treaty of Paris (1856), 156 Treaty of Riga (1920), 264n25 Treaty of Vienna (1815), 32 tribalism, 135–36, 151, 160, 165 Truman, Harry S., 266n2, 299n34 tsunami, Indian Ocean (2004), xvii, 117–18, 121 TUA (“temporary use agreement”), 112 Tuchman, Barbara, 156 Tudjman, Franjo, 78 Tunisia, 177, 197, 216 Turkey, 21–23, 263n13; expulsion in, 33; and population transfer, 25, 32–33, 42, 263n4; refugees from, 42–45; and war with Greece, 30, 33–34 Turkoman (Turkmen) people, 240 Tutsi diaspora conference (1988), 138 Tutsi people, xv–xvi, 136–44, 153–54, 222, 292n62 Twa people, 138 UDHR. See Universal Declaration of Human Rights Uganda, 134–42, 144, 290n34, 292n56, 293n68; discrimination in, 138; and Jewish resettlement, 162–63, 297n19 Ukraine, 35–36, 48–49, 161 UNAMID (African Union/United Nations Hybrid Operation in Darfur), 151–52 UNBRO (UN Border Relief Operation), 99 UNCCP (UN Conciliation Commission for Palestine), 205, 308n30 UNHCR (United Nations High Commissioner for Refugees), 5, 12–14, 42–43, 46, 66, 123, 261n17, 269n36; and Bhutan, 103; and BiH, 74, 85, 90, 93–94, 273n15; and Burma, 105–7, 278n39, 279n40; and convention refugees, 63–65; and East Timor, 112; and expulsion, 70; Handbook for Repatriation and Reintegration Activities, 107, 278n36; and Indochina, 98–99; and Iraq, 239, 241,

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317n9; and Jews from Arab countries, 185; Open Cities Initiative of, 84; and Palestinian refugees, 196, 205; and Rwanda, 139–42, 292n54; and Sri Lanka, 119; and Sudan, 133–35, 290n42; and voluntary repatriation, 270n38 Uniáo Democrática Timorense (Timorese Democratic Union, UDT), 109 United Nations, 16, 55, 68, 70–72, 154, 272n7; bombing of Baghdad headquarters of, 99, 276n5, 317n8, 319n23; Charter of, 62, 207; Committee on Economic, Social, and Cultural Rights, 6; and Darfur, 150; and East Timor, 111–13; and Ethiopia/Eritrea, 147–48; General Assembly of, 312n67; and Georgia, 245; and Iraq, 319n23; and Jerusalem, 206; and Jewish refugees, 172; Laws Concerning Nationality (1954), 62; and Palestine, 70, 176; and Palestinians, 185, 190, 203, 207–8, 311n65; and Rwanda, 141; Security Council, 5, 71–72, 147–48, 229; and Sri Lanka, 287n106; and Sudan, 152. See also particular organizations United Nations General Assembly Resolutions: [181], 208; [194], 190, 194, 198, 203–4, 206–10, 213, 308n31; [273], 190; [3236], 207; [3379], 311n61 United States, 28–29, 59, 65, 160, 169, 203, 303n63; and Bhutan, 104; Bush (George W.) administration in, 241–42; Clinton administration in, 76–77; and Darfur, 27, 153; and East Timor, 109; and Georgia, 246; and Iraq, 196, 239–42, 317n11; and Jewish refugees, 156, 171, 299n33; and Palestinian refugees, 187, 198, 219; USCRI of, 318n12; USIP of, 112 Universal Declaration of Human Rights (UDHR; 1948), 4, 16, 47, 54, 207, 315n4; and expulsion, 69–70; and right of return, 62, 68 universal rights, 72, 220–36, 253, 255 UNKRA (UN Korea Reconstruction Agency), 12 UNMEE (UN Mission in Ethiopia and Eritrea), 148 UNMIS (UN Mission in Sudan), 135 UNOTIL (UN Office in East Timor), 111 UNRPR (UN Relief for Palestine Refugees), 205

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340 Index UNRRA (UN Relief and Rehabilitation Administration), 59–60 UNRWA (UN Relief and Works Agency for Palestine Refugees in the Near East), 12–13, 189, 195–96, 204–6, 219, 261n16, 311n53 UNSCOP (UN Special Committee on Palestine), 172–73 UNTAC (UN Transitional Authority in Cambodia), 276n5 USCRI (United States Committee on Refugees and Immigrants), 318n12 USIP (United States Institute of Peace), 112 Vance, Cyrus, 76–77 Vance-Owen plan (Bosnia; 1993), 76–77 Vieira de Mello, Sergio, 98–99, 276n5 Vienna, 161 Vietnam, xiv, 97–99, 109, 275n3 Voluntary Return of Refugees and Displaced Persons, Quadripartite Agreement on (1994), 72 Walzer, Michael, 226 war crimes, 52–54, 93, 153, 169, 192, 245 War Crimes and Crimes Against Humanity, Convention on the Non-Applicability of Statutory Limitations to (1968), 61–62 Warsaw, 161 Washington Agreement (Croat-Bosniak war; 1994), 77 Weitz, Yosef, 309n35 West Bank, 12, 193, 195–97, 201–2, 214–15; Jewish settlement of, 167, 182, 188; and Palestinian state, 210, 218, 219 Western countries, 50, 229–30; and Bosnia, 76–78; and Georgia, 245–46; and Indochina, 98–99; and Iraq, 241; and Kosovo, 74–75, 92–93; and Rwanda, 141; and Yugoslavia, xiii West Timor, 109–10, 281n57 White Paper (1939), 168–69, 172 World Bank, 138–39 World Jewish Congress, 185

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World Organization of Jews from Arab Countries (WOJAC), 179, 185 World Refugee Survey 2004, 319n22 World War I, 15, 30, 35, 39–40, 94–95 World War II, 15, 30, 43, 94–95, 156, 169–71, 173; period following, xiii, 17, 29, 47–73, 183, 186, 261n18, 266n2 Yahya, Adel, 217 Yalta Conference (1945), 48 Yangtze floods (1931), 30 Yazidi people, 240 Yemen, 177 Yerevan, Armenia, 45 Yiddish, 164 Younès, Kristèle, 316n4 Yugoslavia, 40, 45, 50, 70, 233; dissolution of, xiii, 73–96; and ICTY, 87; minority population of, 41t, 272n12; and repatriation, 73 Zaghwa people, 152 Zaire. See Congo, Democratic Republic of Zambia, 145 Zertal, Idith, 300n42 Zimbabwe, xvi, 142 Zion, 155–56, 158, 160–62, 171 Zionism, xvi, 155–88, 296n7, 298nn27,28, 300n42, 303n68; and Arab countries, 302n58; and Balfour Declaration, 157–58, 166; and biblical narratives, 156–58, 160–61, 188, 296nn9,10; and British Mandate for Palestine, 169, 171, 173–74, 182, 185; Christian, 155–56; and Europe, 162–63; and European Jews, 167, 169, 186, 301n45; and humanitarian needs, 156, 161, 163; and international community, 156; and Narodnaya Volya, 116; and Orthodox Judaism, 297n16; and Palestinians, 188, 191, 193, 198–99, 201–2, 207; and selfdetermination, 155, 169; and Theodor Herzl, 162–65, 167–68; and White Paper, 168–69, 172 Zionist Congress, 168

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