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

No Return, No Refuge

No Return, No Refuge

Rites and Rights in

Minority Repatriation

HOWARD ADELMAN

AND

ELAZAR BARKAN

Columbia University Press New York

Columbia University Press

Publishers Since 1893

New York Chichester, West Sussex

cup.columbia.edu

Copyright © 2011 Columbia University Press

All rights reserved

E-ISBN 978-0-231-52690-6

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.

[V6035.A34 2011

325—dc22

2011001953

A Columbia University Press E-book.

CUP would be pleased to hear about your reading experience with this e-book at cup-ebook@columbia.edu.

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.

For

Muki Barkan

Contents

Introduction

1. The Rites of Rights

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

3. Outlawing Ethnic Cleansing:

Principles and Practices After World War II

4. Reversing Ethnic Cleansing:

Bosnia Versus Kosovo

5. Resettling Refugees from Asia

6. Force and Repatriation in Africa:

The Right of Return in Africa

7. From Jewish Messianism to the Law of Return:

Antiquity to Modernity

8. Palestinians and the Right of Return

9. Rights and Return

10. Ethnic Conflict and Nonreturn

Notes

Index

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.

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.

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 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 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 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 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.

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 Cote d’lvoire, 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 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.

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.

[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 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 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. 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 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.

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 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