"It is not enough for an applicant to claim that a particular place or property is a 'home,'" the judges of the European Court of Human Rights ruled last week, to the dismay of the Greek refugees from Northern Cyprus who had filed a petition concerning their right of return. "He or she must show that they enjoy concrete and persisting links with the property concerned. Some 35 years have elapsed since the applicants lost possession of their property in Northern Cyprus in 1974. Generations have passed. The local population has not remained static. Turkish Cypriots who inhabited the north have migrated elsewhere; Turkish-Cypriot refugees from the south have settled in the north; Turkish settlers from Turkey have arrived in large numbers and established homes. Much Greek-Cypriot property has changed hands at least once, whether by sale, donation or inheritance."

The Greek refugees, who had fled to the southern half of the island during the Turkish occupation in the 1970s, have demanded that their property be returned to them by the Turkish invaders. However, a majority of the court's 17 judges fully accepted the Turkish position - whereby reality overrides "family roots," time outweighs sentiment and the rights of the tenant come before those of the owner. The refugees, the court said, can receive what they are entitled to in cash.

With this decision, one of the world's most respected international legal institution on the matter of human rights thus opened a new chapter in the ongoing controversy surrounding refugees' right to return to their homes. Although the ruling is not legally binding outside Europe, Eyal Benvenisti, a professor in Tel Aviv University's law faculty and an international expert on issues concerning refugees, attributes great importance to it, as the European court's precedents serve to inspire other courts worldwide, including the Supreme Court of Israel and the justices of the Supreme Court of the United States.

Benvenisti explains that this influential institution has now placed a barrier before governments in the West, the United Nations and human rights organizations that have increasingly worked to help recognize the rights of refugees to return to their countries of origin. This trend has gained momentum since the end of the 1990s, but not necessarily due to an identification with the refugees' suffering or concern for their fate. The insistence, for example, on the right of refugees from the Balkan wars to return to their homes is a far more elegant way of getting rid of them than legislation with a whiff of racism about it.

At the end of January, the Parliamentary Assembly of the Council of Europe passed a resolution to the effect that the problems concerning property belonging to those who have become refugees as a result of interstate conflicts should be solved by these people's physical return to their homes or by equivalent compensation.

Prof. Benvenisti did not need the European court's ruling to determine in his writings that the 1948 Palestinian refugees do not have the right to return to Israel. Nevertheless, he does not conceal his satisfaction with the reinforcement his interpretation has received, to the effect that UN General Assembly Resolution 194 (which is mentioned inter alia in the Arab peace initiative) does not give every refugee a personal right to return, as distinct from his right to compensation. Nevertheless, he recommends that the Israeli settlers living in the territories occupied in 1967 not hang the ruling on their walls in a gilt-edged frame.

"There is a difference between a situation in which people entered the homes of neighbors who became refugees as the result of a conflict," he says, "and those who knowingly entered a territory whose sovereignty is disputed and subject to negotiations." Benvenisti cites the ruling of Israel's High Court of Justice on the petition by the Gush Katif evacuees, which stressed that they had settled temporarily in the Gaza Strip under a permit from the commander of the area.

The ruling of the European Court of Human Rights in effect erects a barrier between the rights of the individual and relations between states. Put simply - civilians should not have to pay the price of politicians' inability to resolve conflicts.

"This principle applies to us as well," Benvenisti says. "The European court has determined that even when there is a matter of a war crime and an occupation considered illegal by the international community, it is necessary to take into account the new reality with regard to those living in the territory. The judges ruled that 'while restitution laws implemented to mitigate the consequences of mass infringements of property rights caused, for example, by communist regimes, may have been found to pursue a legitimate aim, the court has stated that it is still necessary to ensure that the redress applied to those old injuries does not create disproportionate new wrongs.' Moreover, they warned that redressing an old injustice by means of a new injustice is liable to cause chaos."

Translating property into money

The court rejected the argument that human rights includes protection of the sentimental value of "family roots" regarding a particular piece of land. It also rejected the claim of the petitioners - most of whom live in the Greek half of Cyprus' capital, Nicosia - that refusing their plea would be tantamount to awarding the criminal a prize. The judges said property is something that can be assessed and translated into monetary value or alternative assets (such as the property of a Turkish refugee who left his home).

The court took a favorable view of a judiciary mechanism established by the Turkish side, whereby Greek refugees can sue for the return of their property or compensation for it. The compensation would be based in part on the value of the property on the day of the occupation, loss of income and the increase in value of the land. In cases in which the Greek petitioner has taken over the property of a Turkish refugee, the value of the latter would be deducted from the sum of the compensation. The court has recommended that Greek refugees apply for a settlement or wait for a successful conclusion of the diplomatic negotiations between the two sides concerning refugees and their property.

Benvenisti suggests we pay attention to the "diplomatic" statements made in the ruling. The judges take into account the warring sides' responsibility to end the conflict, noting the Turks voted in favor of the Kofi Annan plan, while the Greeks rejected it by a large majority. The judges were aware the Turks had responded positively to the proposal, even though it included a demand for the limited return of refugees to the north - in accordance with agreed upon criteria - and most important, the Turks had established a reliable mechanism for settling the refugees' claims.

Benvenisti suggests the Israelis and Palestinians study this ruling well. "There is a recognition here of the complexity of the refugee problem, especially that human rights are not granted only to one side," he says. "Sincere efforts on the occupier's part to arrive at a fair solution that reflects the reality can win international legal recognition. However, the injured side that decides to wait until the end of time will one day wake up to discover his rights have become obsolete. Thus, the message to both sides is: Evince good will and don't drag your feet. Or, in other words, anyone who is interested in ending the conflict and solving the refugee problem has received from the European court a very convenient ladder for climbing down from the tree."