The Problem with Rights
A rights-based approach to protecting refugees poses the dilemma of which rights ought to be defended. Increasingly, this involves weighing the right to protection (of life) against other rights. For example, in the 1990s the conflicts and contradictions of a rights-based approach were clearly at play in Georgia and Bosnia. In Georgia the refugees who fled the Gali region were encouraged by the UN to return to their homes. Their return, which did not happen, would have placed them in a precarious situation. Here the call for return privileged one right (the right to return) over another right (the right to protection). During the Bosnian war the rights dilemma involved the evacuation of minorities. Providing evacuation assistance to refugees, thus honoring their right to protection, conflicted with their right to stay in their homes. While evacuation assistance might have appeared to collude with the newly termed ethnic cleansing (as the displacement became known), encouraging the refugees to stay would have ignored the danger to their lives. The right to one’s home, then, was in conflict with the right to security. In both Georgia and Bosnia, saving lives conflicted with the right to stay and the right to return. These are only two of many cases where the rights dilemma challenges the international community and human rights advocates. How to address this issue?
The international community has resisted embracing a principled solution, which in practice often translates into absence of decision making. In principle, the international answer is both protection and return. This, however, evades rather than addresses reality. A more nuanced analysis of the history of refugee crises presents an opportunity to differentiate between types of displacement, and such differentiation may facilitate general policy guidelines. These, in turn, may not only provide more protection and greater respect for refugees’ rights but also improve their welfare.
The Right to Return
The Universal Declaration of Human Rights (UDHR) states that “everyone has the right to leave any country, including his own, and to return to his country.”1 This right “to return” has become central in international policies that aim to resolve refugee displacement. It is understood as universal and comprehensive, not politically situated. In practice, however, that is not the case. Although the displaced person’s right to return is presented as a universal category, like so many other rights, it is most clearly visible when it is breached. Further, whereas repatriation is presented as an individual right, the right to return is violated as a group right. Most refugees who are displaced as members of groups are caught up in the unresolved dilemma of a struggle over sovereignty. And, while self-determination is a recognized right, the international community has continuously privileged sovereignty over group rights and over the right to secede, categories into which minority claims to repatriation often fall.
The statement Sadako Ogata, the United Nations high commissioner for refugees, issued on June 16, 2003, at the World Conference on Human Rights in Vienna remains a prescient description of both the refugee situation and of the right to return. While Mrs. Ogata underscored the refugees’ “right to seek and enjoy asylum, the right to return and the right to remain,” she also stressed that the right to asylum, which has been fundamental since the 1951 United Nations Refugee Convention and its 1967 protocol, has come under stress because of the expansion of the number of refugees.2 Asylum was not working any longer as a solution to the mass displacement problem. Indeed, the violence against refugees became a critical global challenge. Too many “people who are fleeing violence and human rights abuses at home are confronted with danger, rejection at frontiers or legal obstacles in their search for asylum.”3 Conceding that the right to asylum can go only so far in addressing the structural challenges of mass displacement, Ogata turned to the right to return. She presented asylum as “protection,” the right to remain in one’s own country as “prevention,” and the right to return as the solution. “The responsibility lies with the countries of origin to do what is necessary to enable refugees to freely exercise this right,” Ogata asserted and argued that “there should be both peace and respect for their [refugees’] human rights.”4 She also pointed out that “assuring these requires a comprehensive approach that addresses the political, security, human rights, humanitarian and development aspects of the problem.”5 Surely, if the country of origin had been interested and capable of exercising that responsibility in the first place, the displacement would not have taken place. Presenting the right to return as a solution should strike us as wishful thinking more than as policy.
While the refugee problem is presented as political and structural (too many refugees), the solution postulated by Ogata was aspirational: peace, development, and respect for rights. If prevention does not work and protection is inadequate, the proposed (rhetorical) solution becomes a rite—not a political answer. The demand for repatriation is directed at the very political entities who are responsible for the displacement, and who refuse to accommodate return. In the rite of declaring the right to return as a solution, the “natural” right is presented as a “positive” right, as though the rhetorical declaration of a right embedded it with the commitment and force of the international community. Thus Ogata created an impression that the refugee crisis is a violation of specific well-established rights rather than the consequence of the world community’s unwillingness (or inability) to take action and assume obligations that would address refugee crises in a politically viable way. Ogata’s presentation is conventional rather than novel. Without a roadmap for concrete specific crises, declaring world peace as a solution can hardly constitute a policy. When naming and shaming become the sum total of political theater, we have to wonder if a rhetoric of the right to return has become no more than a rite performed by its advocates and politicians alike.
Advocates of the right to return view it in an inclusive manner, extending it to those whom the United Nations High Commissioner for Refugees (UNHCR) today designates as “persons of concern.” The international legal conviction is that the right to return represents customary international law and applies in cases of mass uprooting. This includes individuals as well as groups, those who were citizens of a state and those who came from the disputed territory. The prevailing sense of the legal right to return makes no explicit reference to nationality or citizenship, invoking instead the right to freedom of movement. For example, consider the presentation by Amnesty International: “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.”6 “Practice” in this case is equated with rhetorical claims (“calls by UN bodies”) and not with implementation and institutionalization required to deliver actual results. The question of repatriation raises a host of issues, including property restitution and compensation; group versus individual rights; and, most important, the question of conflicting rights, such as security conflict with aspects of freedom or the provision of vital needs. An African saying that a path is made by walking through the tall elephant grass may well be an apt metaphor. Minority return has yet to approach the grass, let alone establish a clear path.
Minority and Majority Refugees
A historical survey of the twentieth century clearly shows that there are two classes of refugees in matters of repatriation: majority and minority. In an accommodating political context, the former are able to repatriate; the latter hardly ever do. When the former return, the question of right is not raised; rather, it is part of a political solution. In contrast, in the few cases when a minority is able to return, as, for example, were the Tutsi in Rwanda, repatriation is the result of political force and military victory, not of rights. It is only when minority refugees cannot come back home that return becomes a question of rights discourse. By “minority” I mean to designate a specific political entity within a territory: these are “minorities” from a state perspective. In Bosnia the Serbs are a minority in the federation, while the Bosniacs are a minority in Republika Srpska. The Serbs are a majority in Serbia but a minority in Kosovo. The political independence of Kosovo, whether recognized or not, means that the Serbs are a minority in the republic/province. Georgians became minority in the seceding Abkhazia and South Ossetia. The Palestinians are a minority in Israel. The Jews were a minority in mandate Palestine. The Germans were a minority in Eastern European states after World War II. Millions of Muslims from India and Hindi from Pakistan were expelled as minorities when the two countries came into existence. The list is long, and while other cases in Africa and Asia are less well known in the West, they are subject to similar political forces. Historically, minorities once displaced remain displaced even after the conflict is over; the memory of the ethnic animosity remains a barrier. I know of no example of successful minority repatriation as part of a conflict resolution process, contrary claims about Bosnia notwithstanding.
It was in response to ethnic cleansing in Bosnia that the most concerted and sustained effort of minority repatriation was made. This new position transformed repatriation from a policy into a vocally announced right, but the legal position did not shift and the international political will did not materialize. The new assertion was enhanced by the notion of “never again” and the commitment to prevent and reverse ethnic cleansing and genocide. In the short period since the right/rite had been asserted, both commitments have been broken too many times.
Yet, after almost a decade of failed efforts at minority repatriation and reintegration of communities in Bosnia, the international community declared success. Despite an enormous investment of resources, Bosnia, the most prominent case of minority repatriation, remains ethnically segregated. Although repatriation into previously mixed communities was officially recorded, it did not really take place. Many registered “returnees” have come back briefly to claim property, but, even under international supervision, very few of them were actually able to settle in their previous homes or communities. Moreover, it was mostly the old who returned; the young with families and children, those who would shape the future, never came back. The communities, then, were hardly ever rebuilt or reintegrated. Ethnic cleansing was not reversed. Yet these problems were not recognized. Neither were their consequences for the refugees in the Balkans (in and beyond Bosnia) evaluated nor their implications for other crises considered. Instead, without any real effort at implementation, rites of repatriation and “never again” have been rhetorically asserted. Because the international community focused on the rite of political righteousness rather than on the real challenge of rebuilding the refugees’ lives (for example, allowing for reparation and maintaining the right of citizenship while enabling them to acquire a new identity), displacement, horrific and traumatic in itself, was made even more difficult.
More recently, the recognition that a political solution might be preferable to verbal commitment to repatriation has been translated into peace plans and/or resettling of refugees and internally displaced persons (IDPs). Notable examples include Kofi Annan’s EU-endorsed plan for Cyprus and the implementation of UN policies that acknowledge the preference of resettlement in Georgia. In Iraq, where mayhem makes it difficult to speak of any rights, the wide spread of ethnic cleansing, not only of Christians but also of Sunni and Shia, makes it all too evident that repatriation is not even contemplated. While over the last generation the formal prohibition against displacement has been strengthened, the commitment to repatriate minority refugees has remained ineffective, in most cases limited to rhetoric rather than implemented in international law.
The Uses and Abuses of the Right to Return
Every time the right of return is invoked, the rights of some collide with the rights of others, local and universal principles inherently conflict with one another, and individual and group rights present irreconcilable choices. This is particularly true of minority groups that never return to states and regions from which they were displaced and in which, after their return, they would be in a minority. Given the historical and empirical evidence that minority groups are not repatriated based upon the right of return, what is its significance? Can an international right, or norm, be said to exist if it is never implemented? Do norms shift with different types of populations despite the “universality” of rights? If the right is not attainable, what consequences does it bear for refugees?
The observation that minority repatriation rarely succeeds says nothing about its desirability or lack thereof. Further, this generalized observation does not even begin to explicate the specificity of what such a declared right to return might be, whether repatriation means return to homes, homeland, state, or region. The historical failure of minority repatriation, however, has to be considered as a factor in an analysis of the implication the right to return carries for refugee rehabilitation. There may well be sound arguments to maintain the demand for a right, even if it is merely a rhetorical device or a moral force. But it would presumably be helpful to understand the political context and the plausibility of implementing the right. In face of deprivation, some may prefer to perform the rite of claiming national or group rights of return, but such a rhetorical assertion should not be confused with a solution to the refugee problem.
It should be made absolutely clear that my analysis of the unlikely repatriation of minorities does not specify under what circumstances such a right might be plausible. I will suggest a few thoughts. But, first, one ought to appreciate the context: although the right to return is frequently declared universal, it is the reverse when it comes to minority physical repatriation. As soon as the right to return comes in conflict with issues of self-determination and sovereignty, it is not honored.
The insistence on the right of return as a solution has ramifications for the policies advocated by and for refugees and thus bears directly on their prospective well-being. If history is a guide, and minority refugees are unlikely to be repatriated, other forms of addressing the problem must be advanced. This does not mean necessarily giving up the aspiration or the politics of return. Rather, the implausibility of return should become a part of the political calculus. If the refugees believe that repatriation is a right and a possibility, their attitude may well be different than if they realize that their return would be an unprecedented achievement, not an expected outcome. Having recognized the low probability of return, some may still choose to maintain the struggle for repatriation; others may opt for resettlement instead. Either way, the acknowledgment of the claim’s aspirational nature and its status as a rite rather than a right would lead the refugees, as well as their advocates and the international community in general, to a different set of considerations.7
The Palestinian and Israeli Rights of Return
The Palestinian-Israeli conflict is the iconic case of return’s likelihood to animate multilayered animosity and conflict. The Jewish return to Zion is the core of Zionism and the center of Israeli national self-construction, while the Palestinian expulsion and quest to return has been the most prominent and protracted refugee crisis since World War II. The question of return is at the heart of several conflicts between Israel and Arab states, between incompatible demands for national self-determination, as well as between national goals and individual well-being. Jews consider themselves displaced for millennia and so the idea of “return” propelled the Jewish national struggle for self-determination. This goal materialized after the Holocaust when, in lieu of accepting Jewish refugee survivors housed in displaced persons camps across Europe, various states supported the creation of the state of Israel. “Return” was a solution to Europe’s unwillingness to accommodate Holocaust survivors, a policy that matched Zionist national aspirations.
The Jewish claims for repatriation, however, did not stop with the achievement of self-determination and an independent state in 1948. Two decades later (after the 1967 war), they metastasized into occupation and settlements under a continuous rhetorical cover of return to ancient land and the use of force. The “return” to pre-1967 “Israel proper” and to the occupied territories was the return of “Jewish” identity to a site, not the return of individuals or their immediate descendants who have been displaced. If “rights” were reclaimed, it was by means of force, motivated by nationalist drive, not due to international law or implementation of refugees’ right to return. The category was the right to national self-determination (even if contested) rather than the right of individuals to their homes.
The suffering of the Palestinian refugees and the demand for return is at the heart of the international debate over repatriation. The question of return has animated Palestinian politics ever since the 1948 war and has been part of the international discussions about resolving the Palestinian-Israeli conflict ever since Count Bernadotte, the first UN representative to the conflict, focused on return as a priority. While “return” has been a long-standing Palestinian and Arab demand, the construction of return as a right is much more recent and associated mostly with the changed policies by the Palestine Liberation Organization (PLO) in the late 1980s. In the preceding four decades, the dominant Palestinian goal was to reverse the Nakba (the 1948 “catastrophe”) by military victory and to replace Israel with a Palestinian state. Only after the PLO came to accept peace negotiations with Israel and formulated its goal of establishing an independent state next to Israel within the 1967 borders did return as a question of “right” emerge. The repatriation of the 1948 refugees and their descendants was an essential part of the newly envisioned solution.
Consequently, for the next two decades, the right to return, as well as its alternatives, was central to inner Palestinian politics and to the “peace process.” Today, the Palestinian Authority accepts (albeit implicitly) the improbability of the refugees’ actual return. Although the Palestinian Authority invokes the right to return, it has declared in many ways that such a right has to be resolved politically: that is, the Palestinian Authority demands a principled recognition of the right, yet is willing to leave it “unimplemented” in favor of a political solution.
At present, the mainstream Palestinian leadership understands that a literal interpretation of the right to return is unproductive to Palestinian national interests and probably to the refugees themselves. The valence of a right that exists aspirationally as a rite without a political signifier is a fascinating manifestation of political rituals and of the role and limits of political performance. Insofar as the struggle to recognize an unimplementable right affects the well-being of millions of refugees born into a life of displacement, the right to return raises a host of critical issues that need to be addressed by advocates and politicians alike. Timeline is critical: according to Jewish lore the longing to return lasted two millennia.
The right of return, however, has assumed a mythological force that makes its contestation unthinkable for many Israelis and for most Palestinians. In the last few years, creative solutions to transform the rite of return to the homes from which the refugees were uprooted to a right of return to any location within an independent Palestinian state—homeland—have been getting more recognition and legitimization. As the positive content of the “right of return” has never been formulated at the international level, it will be up to negotiators to define its exact meaning. Were peace negotiations to conclude with an independent Palestinian state and such a state to include provision for the return of refugees and their descendants, the question will still remain: How can the right of return be implemented?
The formal recognition of the right to return would require the future state of Palestine to establish specific immigration policies. The Palestinian state might follow the example of an increasing number of countries that privilege giving citizenship to immigrants of the majority ethnicity as “returnees.” The list of countries that embraced jus sanguinis (right by blood to citizenship) includes China, India, Germany, and many ex-communist countries; especially noteworthy are the cases of newly established countries that emerged from a previous larger political units, such as the Bal-tic states or the former Yugoslavia. But perhaps even more pertinent is the case of the Law of Return in Israel, the core of Israeli citizenship.
Beyond Rites
The right of return has been constructed as a rite for different reasons by human rights advocates, refugee advocates, and politicians. Pursuing rights by naming and shaming is the conventional tool of human rights advocacy, and in this the claim of a right to return is unexceptional. Neither is it unique for being aspirational. The same can be said of a whole lot of rights struggles, including demands for protection by refugee advocates and demands for sovereignty by minority groups. The right of return, however, becomes more of a rite than a right when politicians support the demand rhetorically and use it as an easy escape from finding an actual solution to a real crisis. By shifting the politics into the realm of rites, the politicians may satisfy their public performance needs but do very little to actually redress the deprivation of the displaced. This dilemma is at the heart of human rights as it becomes central to global politics. Almost twenty years ago, in 1993, the Second World Conference on Human Rights in Vienna, in its Declaration and Program of Action, adopted the statement that “all human rights are universal, indivisible, interdependent and interrelated.”8 This assertion has become the central dogma of human rights advocacy. One of the many justifications for this position is the claim that all rights are indispensable to protect and enhance the same basic values. But this general holistic worldview continuously clashes with the predicaments presented by rights that conflict with one another. Human well-being and rights do not easily cohere. It is in that sense that the right/rite of return is at the heart of human rights.
The rationale for describing the demand of minority reparation as a rite is the dissonance between the empirical evidence and the claims advanced by the right’s supporters and politicians. One could imagine an aspiration of return that is not a rite, yet is not implemented, when it is presented as an aspiration. To desire something, even unachievable, is not a ritual. It is the essence of politics. To advocate and lobby for a goal is anything but a ritual. To aspire to equality is one thing. To claim equality exists as the rationale for rejecting discrimination is another matter. Yet to assume that an aspiration (return) is a reality and to argue for its further implementation in the form of specific policies falls into the category of ritual rather than politics.
Religious rites are obviously the source for such taxonomy. Political rites inform activities that are motivated by beliefs without empirical support. An example of such a belief is the mantra that unregulated free markets are natural and optimal in all situations, a claim that fails to account for ample evidence to the contrary. The demand for minority repatriation falls into this category of belief as well. Not because it would be wrong if it succeeded, but because it’s a mirage. The right to return may well be argued on moral grounds, possibly justified by Realpolitik, it can but hardly be implemented by claiming it is a norm.
A rite presents a false solution to real-world deprivation. The misleading notion that return can resolve the displacement problems leaves minority refugees in a limbo that, at times, lasts for decades. If resolving the refugees’ deprivation becomes the primary goal, it may have to be decoupled from the ultimate settlement of a conflict. At the very least, refugees should be able to move out of refugee camps and allow their children to start anew. While such ad hoc political solutions cannot repair the legacy of displacement and will continue to call for redress, and while deep-seated cultural and historical memories of violation are likely to influence the future politics of the conflict, refugees will still be better off if their physical needs are addressed in the short run.
The possibility of return should not be rejected a priori, but it should be treated as a matter of policy rather than rites. Prevention of displacement should remain the first priority, but once it fails and an ethnic conflict leads to displacement, there is an urgent need for alternative solutions. The challenge, then, is to transform the rite of return into a policy that would aim to resolve conflict, redress deprivation, and rehabilitate refugees’ lives by facilitating resettlement, reparations, and compensation. If they are to effectively solve the refugee impasse, new alternative policies must aim to reconcile the desirability of minority repatriation and the complexity of the right to return.
Notes
1. United Nations, The Universal Declaration of Human Rights, Art. 13.2, http://www.un.org/en/documents/udhr/.
2. Office of the United Nations High Commissioner for Human Rights, Vienna Declaration and Programme of Action, UN doc. A/CONF157/23, http://www.unhchr.ch/huridocda/huridoca.nsf/%28symbol%29/a.conf.157.23.en.
UNHCR declared 1992 the “Year of Voluntary Repatriation.” Mrs. Ogata, 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.” UN High Commissioner for Refugees, Discussion Note on Protection Aspects of Voluntary Repatriation, April 1, 1992, EC/1992/SCP/CRP.3, http://www.unhcr.org/refworld/docid/3ae68cd314.html.
3. Ibid.
4. Ibid.
5. Ibid.
6. Amnesty International, Bhutan: Nationality, Expulsion, Statelessness, and the Right to Return, ASA14/001/2000, September 1, 2000, http://www.amnesty.org/en/library/info/ASA14/001/2000/en.
7. Howard Adelman and Elazar Barkan, No Return, No Refuge: Rites and Rights in Minority Repatriation (New York: Columbia University Press, 2011). A global comparative study of refugee repatriation and lack of return during the twentieth century.
8. Office of the United Nations High Commissioner for Human Rights, Vienna Declaration.