Right of Return of Palestinian Refugees:
International Law and Humanitarian Considerations
When Israel was created in 1948, Arab states and Arab Palestinians attacked the Jewish community in Palestine and the Jewish state, vowing to "drive the Jews into the sea." They lost the war however, and some 725,000 Arab Palestinians fled or were expelled from the area that became Israel. Thousands of Jews were displaced from areas conquered by the Arab forces as well, and some became refugees for a while.In December 1948, UN General Assembly Resolution 194 called for return of refugees who were willing to live in peace with their neighbors. Jewish refugees, including refugees from Palestinian Arab areas and hundreds of thousands of others expelled from Arab lands, were absorbed into Israel and did not claim refugee status. Arab refugees were placed in camps.
Palestinian Arabs claim that any peace agreement with Israel must allow the descendants and families of these refugees, numbering about 4 million, to return to Israel. This is the position adopted at present (2006) by the moderate Palestinian leadership of Mahmud Abbas, enunciated in the "moderate" Palestinian Prisoners' Document and presented as well by Palestinian negotiators at Taba in 2001: In the Palestinian "compromise" proposal, all refugees would return to Israel gradually. Jews would became a minority in their own state. Return of the refugees would put an end to Jewish self determination and the Jewish homeland, yet Arab Palestinians and their supporters insist that this solution is "justice" demanded by international law. Here, we examine the legal and humanitarian considerations behind this claim.
Rights of Refugees under Resolution 194
UN General Assembly Resolution 194 was passed immediately following the assassination of UN mediator Count Folke Bernadotte by Jewish extremists. Bernadotte had asked for return of all Arab refugees (but not Jewish refugees) and was going to recommend removing large areas of the Israeli state and returning them to the Arabs. The resolution reflected in part, UN anger at Israel for having allowed the assassination, but it did not reflect Bernadotte's recommendations in full. Section 11 referred to the refugee problem:
Resolves that the refugees wishing to return to their homes and live at peace with their neighbours 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 loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible;
Notable in this wording, is the fact that a "right of return" was not mentioned, and the reference to "refugees," rather than "Arab refugees" and "governments," rather than the government of Israel. This implies that the framers had in mind the rights of Jewish refugees in Palestine as well, and would also be applicable to Jewish refugees forced to flee Arab countries as a result of the conflict. The number of Jews were forced out of Arab and Muslim countries because of the conflict is about equal to the number of Arab Palestinian refugees.
Bernadotte had recommended a much stronger resolution, but his reference to a "right" of return was rejected. The original wording of his report included this wording:
“the right of the Arab refugees to return to their homes in Jewish-controlled territory at the earliest possible date… and their repatriation, resettlement and economic and social rehabilitation, and payment of adequate compensation for the property of those choosing not to return…”
(Progress Report of the United Nations Mediator on Palestine, UN Doc. A/648 (18 September, 1948)
As this wording was rejected, the framers of resolution 194 apparently rejected the notion of a "right" of return. Likewise, reference to "Arab refugees" was omitted. It could not have been accidental.
All Arab states voted against Resolution 194, because it did not establish a “right of return,” and because it implicitly recognized Israel. Arab governments and Palestinians continued to reject resolution 194 until 1988. In that year, Yasser Arafat made a speech Recognizing Resolution 242 and implicitly accepting resolution 194. Until then, Arab Palestinians were officially not willing to "live in peace with their neighbors." Arab governments are still unwilling to repatriate or compensate Jewish refugees, nor is such a solution contemplated in Palestinian peace proposals.
To deal with the refugee problem, the UN created the UNRWA agency, which was thought to be a temporary measure until a permanent resolution of the refugee problem could be effected. Because Arab states refused any constructive solution, the "temporary" solution became permanent.
Resolution 194 is not International Law
Resolutions of the UN General assembly are not binding in international law, and therefore resolution 194 does not establish any principle of international law. Palestinian Arab advocates point out that Israel agreed to accept resolution 194 as a condition of its admittance to the UN, under Resolution 273. However, Israel accepted the resolution under its own interpretation. In any case, Resolution 273 is likewise a resolution of the General Assembly and therefore not international law.
Status of the Palestinian Refugees in International Law
Advocates of the Palestinian cause claim support from international laws and conventions applicable to refugees in general. However, examination of refugee conventions shows that precisely the opposite is true. For example, the Convention relating to the Status of Refugees of 1951, states:
This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.
That excludes Palestinian refugees who are receiving aid separately from the UNRWA. The same convention states:
E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
Palestinian refugees in Jordan have obtained Jordanian nationality. About 1.5 million such "refugees" are included in official UN tallies of Palestinian refugees. Numerous Palestinians living in the United States have obtained United States citizenship, but claim "right of return." None of them would be eligible for refugee status under ordinary international law.
The convention does not mention a "right of return," but only mentions that refugees may not be forcibly returned to a country where they are liable to persecution.
In their treatment of Palestinian refugees, Arab states do not generally respect provisions of the treaty dealing with economic rights of refugees:
Article 21. Housing
As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.
Article 22. Public education
1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.
2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.
Article 23. Public relief
The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.
In Lebanon, the entire responsibility for education and housing of Palestinian refugees is placed on UNRWA. Refugees are confined to the UNRWA camps insofar as possible, and given as little assistance as possible in integration within Lebanese society.
No international convention deals with the status of third generation refugees or "refugees" by intermarriage. This case is unique to the Palestinians.
A search of the Internet for terms refugees "Right of Return" will display exclusively or almost exclusively Web pages that deal with Palestinian refugees. "Right of Return" is never discussed for Germans expelled from the Sudetensland or Silesia in 1945, for Poles who fled the Soviets when they annexed parts of Eastern Poland, for Russians who fled from former Soviet Republics upon the breakup of the Soviet Union. Right of Return was discussed but never implemented in solution of the Cyprus problem. Return of refugees is being implemented in part in breakaway parts of former Yugoslavia, but in these cases there is no doubt that the returnees are willing to recognize the existing government and "live in peace with their neighbors." The claim that Right of Return is a universally applied principle of international law has now basis.
Palestinian supporters claim that the right of return is recognized in international in human rights instruments, such as the Universal Declaration of Human Rights or the 1966 Covenant on Civil and Political Rights However the applicability of these provisions to Palestinian Arab refugees is in doubt.
According to Article 12(4) of the 1966 Covenant on Civil and Political Rights:
"No one shall be arbitrarily deprived of the right to enter his own country."
To whom does the article apply? Stig Jagerskiold, an early interpreter, wrote:
"This right is intended to apply to individuals asserting an individual right. There was no intention here to address the claim of masses of people who have been displaced as a byproduct of war or by political transfers of territory or population, such as the relocation of ethnic Germans from eastern Europe during and after the Second World War, the flight of Palestinians from what became Israel, or the movement of Jews from the Arab countries. Whatever the merits of various "irredentist" claims, or those of masses of refugees who wish to return to the place where they originally lived, the Covenant does not deal with those issues and cannot be invoked to support the right to "return." These claims will require international political solutions on a large scale." (Freedom of Movement, in The International Bill of Rights 166, at 180 (Louis Henkin ed., 1981).
Likewise, another expert has noted:
"There is no evidence that mass movements of groups such as refugees or displaced persons were intended to be included within the scope of article 12 of the Covenant by its drafters" (Horst Hannum, The Right to Leave and Return in International Law and Practice (1987) p.59)
Return is no longer practical
The Arab Palestinian refugee problem has been deliberately perpetuated by the Palestinian Arabs and their supporters for almost 60 years, after which time there is no practical way to return the original refugees, many of whom are no longer alive. Their descendants have married non-Palestinians and non-Arabs, so that many of the people claiming "right" of "return" were never in Palestine, and are descended from people who were never in Palestine. It is highly doubtful that such persons are entitled to "refugee" status under international law.
Israeli actions to ameliorate the refugee problem
Israeli attempts to resettle refugees outside the camps were blocked because of objections of Arab states.
Israel has allowed more than 50,000 refugees to return to Israel under a family reunification program. Arabs who lost property in Israel are eligible to file for compensation from Israel's Custodian of Absentee Property. As of the end of 1993, a total of 14,692 claims had been filed. Claims were settled for more than 200,000 dunams of land, more than 10,000,000 NIS (New Israeli Shekels) had been paid in compensation, and more than 54,000 dunams of replacement land had been given in compensation. No compensation has ever been paid to any of the more than 600,000 Jewish refugees from Arab countries, who were forced to leave and abandon their property.
Malicious Intent of the Right of Return Claim
The claims to right of return as a "just" solution of the Palestinian refugee problem must be viewed in the light of the intent of the claimants. This intent has been announced repeatedly and openly: To destroy Jewish self-determination and the state of Israel
The post-war Egyptian Foreign Minister, Muhammad Salah al-Din, stated:
... in demanding the return of the Palestinian refugees, the Arabs mean their return as masters, not slaves; or to put it quite clearly – the intention is the extermination of Israel. (Al-Misri, 11 October 1949, as quoted by N. Feinberg, p109)
Similarly, Egypt’s President Nasser stated:
If the refugees return to Israel, Israel will cease to exist. (Neue Zuercher Zeitung, September 1, 1960)
A Fatah Web site states:
To us, the refugees issue is the winning card which means the end of the Israeli state. (http://www.fateh.net/e_public/refugees.htm
To this end, Arab governments and Palestinian groups have acted in bad faith to prevent a solution to the problem. Ralph Galloway, formerly director of UN aid to the Palestinians in Jordan, stated:
The Arab states do not want to solve the refugee problem. They want to keep it as an open sore, as an affront to the United Nations and as a weapon against Israel. Arab leaders don’t give a damn whether the refugees live or die. (Ralph Galloway, UNRWA, as quoted by Terence Prittie in The Palestinians: People History, Politics, p 71)
While decrying the plight of the piteous refugees supposedly victimized by Israeli aggressors, Arab governments have caused the UN to pass resolutions that decried Israeli attempts to resettle refugees in the Gaza Strip or the West Bank. Any effort by Israel to improve the living conditions of Palestinian refugees in the Gaza strip or to give them new homes outside the refugee camps, was met with UN resolutions with wording such as this:
1. Calls once more upon Israel to desist from removal and resettlement of Palestinian refugees in the Gaza Strip and from destruction of their shelters;
2. Requests the Secretary-General, after consulting with the Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, to report to the General Assembly by the opening of the thirty-fifth session on Israel's compliance with paragraph 1 above. ( UN A/RES/34/52(A-F) 23 November 1979 )
As noted above, the most conciliatory position of the Palestinians, presented in the Taba in 2001 negotiations, called for actual return of all Palestinian refugees over an extended period. This would have the effect of destroying Israel as a Jewish state, gradually if not immediately. Other proposals are more drastic in their effects. Thus, the intent of pressing right of return claims is certainly to destroy the Jewish state, in violation of several provisions of the Charter of the United Nations and of international law.
The right of self-determination, guaranteed in the UN Charter, is reiterated in the International Covenant on Civil and Political Rights. Article I, Part I, opens the convention with the following declaration:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
The right to self determination is recognized universally, by Palestinians as well, as a jus cogens - compelling law, that takes precedence over other considerations. The right of self-determination was the basis of creation of the Jewish state of Israel, and was cited in the debates leading to the UN partition decision. It is absurd for Palestinians to claim the right to a state under this provision, while at the same time claiming that "justice" demands the "right" of return, which would prevent the Jewish people from exercising their own right to self determination, and would result in destruction of a member state of the UN.