"The Palestinian Refugees' Right of Return Under International Law,"
by Wadie Said
6 April 2000'The principle of a 'right of return' for the Palestinians who became refugees in 1948 and 1967 is premised on the notion that they should be allowed to return to their areas of origin, even if such areas are currently within the state of Israel. This is among the most controversial issues in the ongoing Arab-Israeli conflict. Israel continues to refuse to repatriate the Palestinian refugees, claiming that they fled of their own accord in 1948 and that it is under no obligation to take them back.
UN Resolution 194:
The clearest and most direct piece of international law that affirms the right of the Palestinian refugees to be repatriated is Article 11 of UN General Assembly Resolution 194, ratified on 11 December 1948. Vis-'-vis the situation in Palestine, the General Assembly declared that
'the refugees wishing to return to their homes and live in peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for the loss of or damage to property which, under the principles of international law or in equity, should be made good by the Governments or authorities responsible.'
The resolution also created the Conciliation Commission for Palestine, which it instructed to 'facilitate' the aforementioned purpose. This resolution has been affirmed by the General Assembly over 40 times (most recently in General Assembly Resolution 45/73 of 11 December 1990), and represents the strongest claim under international law for the inalienable rights of repatriation available to the Palestinian refugees. Its language is clear and exacting, yet its goal remains as far from realization as the day the resolution was enacted.
The Universal Declaration of Human Rights:
Articulating several principles upheld by Resolution 194 and applying them on a universal scale, the Declaration states in Article 13(2) that '[e]veryone has the right to leave any country, including his own, and return to his own country.' In a similar vein, Article 17(2) declares that '[n]o one shall be arbitrarily deprived of his property.' These provisions would seem to support the contention that the Palestinian refugees from the 1948 hostilities should be allowed to repatriate. Although, strictly speaking, the Declaration is not legally binding upon the member states of the UN, it effectively articulates the standards through which stateless Palestinian refugees can make a plausible case for their own repatriation.
Fourth Geneva Convention:
Article 49 of the Fourth Geneva Convention of 1949 provides more legal authority for the Palestinian refugees' case. Israel has signed and ratified the Convention, and therefore its provisions can be construed as applicable, even retroactively, to the events of 1947-48. Article 49 states that '[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying power or to that of any other country, occupied or not, are prohibited, regardless of their motive.' Since Israel has actually carried out such mass population transfers of Palestinian refugees by means of force and psychological warfare, it stands in violation of the Fourth Geneva Convention.
While there is no explicit language in the Convention regarding its retroactive application, the expulsion of the Palestinian refugees from their homeland represents a violation of the spirit and letter of international law articulated repeatedly prior, during, and after the war of 1948. Article 49 of the Convention embodies the opinion of the international community regarding persons displaced during war, and further buttresses international opinion on the right of return of the Palestinian refugees as enunciated by UN Resolution 194.
The official Israeli position disputes the legality of the Palestinian claim based on UN Resolution 194. It blames the Arab states for generating the Palestinian refugee problem, arguing that they ordered the refugees to flee so that Arab armies could liberate Palestine from the Zionists in 1948. Furthermore, Israel says that it could never accept the Palestinian right of return because it would fundamentally alter the Jewish character of the Israeli state.
With the new wave of Israeli 'revisionist' historians uncovering more material on the 1948 Arab-Israeli war and the origins of the Palestinian refugee problem, it has become clear that the mass flight of Palestinian civilians from Mandate Palestine was a strategic goal of the founders of Israel. The myth of Arab responsibility for the evacuation of the Palestinians has been debunked, and yet the Israeli government still adheres steadfastly to its position and refuses to allow the repatriation of the Palestinian refugees. Regarding Israel's argument about preserving the Jewish character of the state, two scholars have noted that '[t]he United Nations is under no more of a legal obligation to maintain Zionism in Israel than it is to maintain apartheid in South Africa' (W. Thomas Mallison & Sally V. Mallison, The Palestine Problem in International Law and World Order, 1986).
The Oslo Process:
Unfortunately, the principles articulated by the international community in UN Resolution 194 regarding the Palestinian refugees' right to return have been theoretically suspended by the language of two agreements signed by Israel and the Palestine Liberation Organization (PLO): the Declaration of Principles on Interim Self-Government Arrangements (known as the DOP or the Oslo Accord, signed on 13 September 1993) and the Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip (known as Oslo II, signed on 28 September 1995).
The former declares the intent of both parties to reach a permanent settlement on the basis of UN Security Council Resolutions 242 and 338. Resolution 242 calls on Israel to withdraw from the territories it occupied in the 1967 war, as well as for a fair settlement for the Palestinian refugees. Resolution 338 merely calls for the implementation of Resolution 242 in the wake of the cease-fire that brought the hostilities of the 1973 Arab-Israeli war to a close.
The DOP also states that finding a solution for 'persons displaced from the West Bank and Gaza Strip in 1967' will be addressed in talks conducted by a 'Continuing Committee,' made up of Israel, the PLO, Jordan, and Egypt, and that 'permanent status' negotiations will address the issue of refugees. Jordan agreed to similar principles vis-'-vis displaced persons in its peace treaty with Israel, while stating that the issue of refugees will be worked out in the 'framework of the Multilateral Group on Refugees.'
The multilateral Refugee Working Group was established in January 1992 with the express dual purpose of facilitating the arrival of a comprehensive solution to the refugee problem and easing the refugees' current suffering. It has made little progress in finding a permanent solution to the refugee problem.
The DOP and Oslo II explicitly omit mention of UN Resolution 194. In short, the PLO has effectively given away the Palestinians' right of return to areas occupied by Israel in 1948. The right of return potentially will be applied only to whatever Palestinian entity exists in the West Bank and Gaza and not to areas within Israel.
The Primacy of International Law:
The right of return for the 1948 Palestinian refugees still exists according to international law. It exists despite the language of the Oslo agreements, insufficient as they are in this regard, and despite the position of the current Israeli government. Palestinian refugees should be free to seek their right to repatriation, regardless of what the PLO acquiesces to, so long as UN Resolution 194 remains in force.
Wadie Said is an attorney employed as a law clerk in the federal court system in New York. This Information Brief is based on his article, 'The Palestinians in Lebanon: The Rights of the Victims of the Palestinian-Israeli Peace Process,' Columbia Human Rights Law Review 30/2 (Spring 1999). The above text may be used without permission but with proper attribution to the author and to the Palestine Center. This brief does not necessarily reflect the views of Palestine Center or The Jerusalem Fund.
This information first appeared in Information Brief No. 31, 6 April 2000.