Remedy and Reparation for Palestine

The principles, plans and current discourse around recovery and reconstruction of the Gaza Strip and elsewhere across historic Palestine are being debated while Israel prosecutes its ongoing genocide. Much of the discussion—whether proposals initiated by Egypt, the World Bank, European Union, Union of Gaza Strip Municipalities, or other regional actors—is often technical, material and financial in nature, and mostly omits reference to the norms of international law that apply, particularly accountability for the harm done, and victim’s rights to remedy and reparation. It presumes that resourcing such restorative justice would fall to parties other than the those liable, while remaining silent about the corresponding obligations of all states.

Checking our legal references

Legal norms of accountability are as indispensable to needed reparation as are the other inputs. However, the State of Israel is the ultimate duty holder, and reparation requires aligning all aspects and victims’ entitlements in any coherent remedy.

It is fitting to prioritize the victims’ human right to remedy. Israel first rendered the Palestinian majority to displaced persons and refugees through the Nakba (1947–48). Those inhabitants of Palestine’s cities and villages and their progeny remain entitled to remedy and reparations across the generations until justice is done. Already in 1948, the states of the UN affirmed in General Assembly (GA) resolution 194 the refugees’ right of return—a sacrosanct right of involuntary displaced persons since the sixth century B.C.E.

However, more than that, the whole Palestinian people is morally and legally entitled to larger  reparation for the catalog of costs, loss, dispossession, damage, destruction, bodily and other harm endured throughout their colonization. Liable are the State of Israel, its institutions, agents and proto-state Zionist militias for their gross violations of international human rights law and serious violations of international humanitarian law.

Even back when the UN agenda reduced the national question of Palestine to a refugee crisis, multiple elements of reparation for the harm Israel wrought in the Nakba were already enshrined in GA194. It recognized Palestinians’ inalienable right to consensual return to their homes and lands along with their other entitlements of remedy and reparation. Article 11 resolves explicitly that Palestinian refugees also bear the right to restitution of their homes and communities, resettlement and rehabilitation, as well as compensation for loss of, and/or damage to property.

In 2006, after nearly two decades of study by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities and through deliberations of the Commission on Human Rights, the UN Member states acclaimed the legal construct of remedy and reparations, which entitles victims to:

• Restitution, including:
  • Return and/or
  • Resettlement,
  • Rehabilitation of all kinds,
  • Compensation as money for values that cannot possibly be restored;
• Effective guarantees of non-repetition, and
• Victims’ expressed satisfaction with the outcome.

That definition forms the universal remedy and reparations framework for fulfillment of the human right to remedy in this case. It’s time to be clear about who owes what to whom. While the meter is running, the urgency is not only to restore the rights of the victims, but also to deter the repeat of such atrocities, even after disingenuously reciting the slogan “nie wieder” for 80 years.

After the United States and Western governments providing the foil for Israel to escape justice for decades, the legal machinery finally turned. In determining the illegality of the Apartheid Wall, the International Court of Justice affirmed in 2004 that “Israel has the obligation to make reparation for the damage caused to all the natural or legal persons concerned.”

That legal advice grounded the GA resolution establishing the United Nations Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory. While that set the documentation process in motion, it did not specify a purpose or end result of the enumeration, nor any follow-up measures to pursue the Court-specified reparations in any form. The resulting record remains in an archive at the UN’s premises in Vienna.

After Israel’s “Operation Cast Lead” on the Gaza Strip in December 2008–January 2009, the Goldstone Commission investigated and reported to the Human Rights Council the need for reparations for the victims. The Council then repeatedly called upon the High Commissioner for Human Rights “to follow up on the determination of the appropriate modalities for the establishment of an escrow fund for the provision of reparations to Palestinians who suffered loss and damage as a result of unlawful acts attributable to the State of Israel during the military operations.” That follow-up never happened.

As the UN Human Rights Council’s 2013 independent international fact-finding mission to investigate the implications of Israeli settler colonies noted, “the law on State responsibility for internationally wrongful acts, including third-State responsibility” applies and enables the pursuit of individual criminal responsibility for conduct that amounts to international crimes.

Twenty years after the Wall opinion, in 2024, the ICJ also found Israel’s very presence in the occupied Palestinian territories to be illegal and that Israel is:

“obliged to bring an end to its presence in the Occupied Palestinian Territory as rapidly as possible, including to repeal all legislation and measures creating or maintaining the unlawful situation, including those which discriminate against the Palestinian people in the Occupied Palestinian Territory, as well as all measures aimed at modifying the demographic composition of any parts of the territory [and] provide full reparation for the damage caused by Israel’s internationally wrongful acts to all natural or legal persons concerned” (¶267).

In that ruling, the Court also affirmed the essential principle of reparation such that it “must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed” and that “Reparation includes restitution, compensation and/or satisfaction” (¶269). Moreover, the Court repeated the finding that “Israel remains bound to comply with its obligation to respect the right of the Palestinian people to self-determination” (¶272).

Preceding quantifications

Beyond the indispensable—but only partial—remedy of Palestinian refugee return, the larger scope of entitled reparations, comprising restitution of inter-related material (economic) and intangible (non-economic) values and conditions, continues through at least eight decades. Many have gone before and preserved the evidence that enables specification of Palestinians’ reparation rights. In addition to individuals and groups of researchers recording testimonies and other facts of deprivation of the Palestinian people, the UN Relief and Works Agency for Palestine Refugees in the Middle East (UNRWA) maintains vast evidentiary archives.

In calculating restitution of Palestine refugees’ property and compensating them for lost opportunities are primary components of their rights and entitlements, regardless of when and whether they choose to return to their homeland. Compensation generally covers at least six situations:

(1)  Refugees choosing not to return;

(2)  Irretrievable loss of movable or immovable property, or material damage to property that is not restored;

(3)  Incomes derived from the use of refugee property;

(4)  Lost income streams, pensions, insurance, and deposits;

(5)  Collective goods, such as infrastructure and natural resources;

(6)  Non-material damages such as psychological injuries, pain and suffering, loss of life and limb.

In no case would mere compensation for lost material or economic values constitute restitution, especially for land. Nonetheless, Atif Kubursi has applied an accounting method for estimating the full range of Palestinian refugee assets at their 1944–48 market values to derive a figure for Palestinian refugees’ material losses at 743 million Palestine pounds (P£), or US$2.994 billion in 1948 prices. At 2000 prices (adjusting for inflation between 1948 and 2000), they would total US$22.5 billion. The inclusion of human capital losses raises the figure to US$35.7 billion. Calculating a modest 4% growth rate, those numbers rise to US$173 billion and US$275 billion, respectively. Indeed, the inclusion of compensation for pain and suffering, spiritual and psychological damage, following the post-WWII German-compensation schemes, would raise this total to US$327 billion.

Rehabilitation would have multiple dimensions, and that would run the gamut of medical, psycho-social, vocational, reputational, cultural-restoration and other measures. Recovery of tangible and intangible cultural, historical and archeological heritage would also figure in the process, for which no mere monetary compensation would suffice.

Since victim satisfaction constitutes one of the indispensable elements of reparation, the Palestinians’ acceptance of money compensation in exchange for lands, homes, community, natural resources, self-determination and other substantive and intangible rights would be doubtful. In any case, because of the victims` existential and organic relationship to their particular land, monetary compensation is never a preferred option for land belonging to any land-based nation or Indigenous People.

The universality principle suggests that all Palestine refugees and subsequent victims of Israeli atrocity crimes and gross violations of Palestinian rights should be compensated for the common pains of the resulting material and intangible costs, loss and damage. That right to remedy applies even if the victim appears not to need it, or chooses to forfeit her/his national rights for cash. Such attempts at monetizing reparations for such values would pit the interest of those to be compensated against those who do not receive compensation, generating animosity within the national group and diminishing the acceptability and efficacy of such a program.

In 2014, the World Bank has reported on the economic dimensions of Israel’s occupation and activities in Area C of the West Bank. In that limited space alone, the Bank calculated direct and indirect costs to Palestine from Israeli occupation at minimum US$ 2.2 billion per annum in value-added terms, which is equivalent to 23% of occupied Palestine’s 2011 GDP. The bulk of this comes from agriculture and Dead Sea mineral exploitation.

Israeli occupation’s restriction on Palestinian cultivated, range and forest lands in the West Bank could amount to an annual US$ 704 million in value lost to the Palestinian economy (7% of occupied Palestine’s baseline 2011 GDP). Opportunity costs in the minerals sector are worth up to US$918 million per annum, or 9% of 2011 GDP, almost equivalent to the size of the entire Palestinian manufacturing sector. Israel denying the Palestinian quarrying represents a significant loss as the West Bank’s largest export industry. With most existing quarries in Area C, Israeli restrictions on licenses there cost Palestinian companies an estimated US$241 million a year, which would otherwise add 2% to Palestine’s GDP at 2011.

The Bank calculated that Israel’s stifling the Palestinian construction industry costs Palestine some US$239 million per annum, or another 2% of Palestine’s 2011 GDP. Israel’s occupation of the West Bank also extracts US$126 million annually from the Palestinian economy’s tourism sector and US$48 million from telecommunications.

Given further specificity to the reparation required, a series of UN Conference on Trade and Development (UNCTAD) calculated some aspects of the costs, loss and damage wrought by Israel’s illegal occupation and blockade. The mounting bill includes, but is not limited to, the cost of years of Israel’s closure of the Gaza Strip, calculated in 2020 quadrupled the cost of eliminating poverty, from US$209 million toUS$838 million (in constant 2015 US$) between 2007 and 2017. The direct benefits lost under the Israeli occupation’s restrictions on access to, activity in, and production of Area C is likely to amount to some US$3.4 billion, or 35% of Palestine’s 2011 GDP.

In addition, indirect costs to the Palestinian Authority take the form of lost revenue from taxation that would result from normal economic activity in the occupied West Bank. The World Bank calculated that, even without any improvements in tax collection, at the current rate of tax to GDP, an anticipated 20% increase in tax revenues would amount to some US$800 million in 2011 values. That is apart from the other indirect benefits lost under occupation such as an estimated 35% increase in employment.

Using econometric analysis of household survey data back in 2020, UNCTAD meticulously estimated cumulative economic costs of the prolonged Israeli closure and imposition of severe economic and movement restrictions and military operations in Gaza. That would amount to US$16.7 billion (in constant 2015 US$), or equivalent to six times the value of Gaza’s GDP. That is 107% of the Palestinian GDP in 2018.

Among the values of lost opportunities for Palestine as a whole are the potential revenues and rehabilitation, reconstruction, recovery and developmental potential of natural gas fields discovered in the 1990s off the Gaza coast. That category of loss is Palestine’s share of US$524 billion at 2019. In addition are the many lost intangible-but-substantive advantages of energy security and potential cooperation among long-term belligerents and other international relations.

Reports by the World Bank and the multilateral Gaza Reconstruction Plan on the economic consequences of the more-recent war coincide at a cost of US$53 billion. However, reconstruction alone also does not begin to meet the multiple criteria of remedy and reparation to victims.

Beyond the Nakba, Israel’s occupation of the West Bank, East Jerusalem and Gaza Strip has meant only a conservatively estimated cumulative loss of US$35.8 billion (in constant 2015 US$) just for unrealized GDP potential during the period 2007–2023. That is equivalent to 17 times the GDP of Gaza in 2023. The physical damage to Gaza’s infrastructure Israel has wrought from 7 October 2023 until the end of January 2024 has cost an estimated US$18.5 billion, which is equivalent to sevenfold Gaza’s GDP in 2022. Once a ceasefire would be respected, a return to the 2007–2022 growth trend would take Gaza 350 years just to restore GDP to its level in 2022.

The commonly budgeted US$53 billion for Gaza’s reconstruction is a mere drop in the ocean of due reparations Israel owes in material (economic) terms. However, that figure is without considering the costs, loss and damage of people’s pain and suffering, entitled rehabilitation of all kinds, nor compensation for tangible and intangible values impossible to recover.

Practical considerations

What assets to be repaired, restored and otherwise compensated by which party is known. What remains unanswered, however, is the matter of how that reparation is to be administered.

One practical consideration is to retool Zionist institutions to impart the various aspects of reparations to their Palestinian victims, but that would require contrition and a tectonic ideological shift on the part of the perpetrators. Back in 2007, HIC-HLRN had modestly proposed such a remedy for the harms done to Palestine and the Palestinian People. In response to evictions and demolitions in the Jordan Valley, the Network called for repurposing the resources, efforts, institutional and other assets of Israel’s parastatal development institutions, namely, the World Zionist Organization/Jewish Agency and Jewish National Fund. As they have a long pedigree specialized in implementing Israel’s raison d’état—i.e., the serious crime of population transfer—they would be equipped to fulfill the State of Israel’s international law obligation to implement reparation to the Indigenous Palestinian People for causing nearly 80 years of unfathomable costs, loss and damage.

The applicable norms and evidentiary basis for such reparation are ample and clear. Implementation and enforcement remain the key elements still wanting.

For a source of relevant references, legal materials and documentation about Palestinian values subject to reparation, see Reparation Bibliography.

Photo on front page: Children watch airstrikes east of Rafah in the southern Gaza Strip on 13 May 2024. Image from the cover of Human Rights Watch publication, Israel/Palestine: All Victims Have Right to Reparation for Abuses. Source: AFP via Getty Images. Image on this page: Graphic depiction of the rights-based remedy and reparation process as it pertains in any case. Source: Davinder Lamba/Mazingira Institute.