Executive Summary

Introduction

The return of Palestinian refugees and their descendents to the State of Israel is one of

the most difficult issues facing the parties as they seek to resolve the Israeli-Palestinian

conflict. According to the Palestinians, the refugees and their descendents have a right to

return to the homes which they left between the years 1947-1949. In contrast, the State of

Israel vehemently opposes recognizing the ‘right of return’ and extensive entry of

Palestinian refugees into its territory as part of the solution to the conflict. The State of

Israel sees this as an existential danger to the national home in which the Jewish people

seek to give effect to their right to self-determination.

This document presents the historical and legal background of this issue. Underlying it is

the argument that the sources of international law do not support a legal right of the

Palestinian refugees to return to the State of Israel. A review of the cases of refugees

in regions around the world where ethnic disputes are underway shows that the return of

refugees who are members of one national ethnic group to territory which is controlled by

another group is generally not the appropriate solution for ending a prolonged ethnic

conflict. A discussion of this loaded issue within the framework of a discourse of rights is

likely to make it difficult for the parties to resolve the conflict. Accordingly, Israel must

insist that the issue of the Palestinian refugees will be dealt with in the framework of

political negotiations. Israel must refrain from discussing this issue within the framework

of the discourse of rights.

Chapter One: The problem of the Palestinian refugees: basic facts

The purpose of this chapter is to present the factual and historical background

underpinning the claim to return made by the Palestinian refugees and their descendents.

Many of the Arab inhabitants fled or were deported in consequence of hostilities which

erupted in Mandatory Palestine following the UN General Assembly decision on the

partition of the territory into two states: Jewish and Arab – and following the War of

Independence of the State of Israel. Many became refugees in the neighbouring Arab

states. These refugees were excluded from the application of the Refugees Convention of

1951 and from the protection of the UN High Commission for Refugees. By virtue of a

UN resolution, as of 1950 they have been protected in a special framework, namely, the

UN Relief and Works Agency for Palestine Refugees in the Near East – UNRWA. Over

the course of time UNRWA has become an organization which functions as a huge relief

agency, handling approximately 4.7 million people and refraining from rehabilitating the

refugees. This figure stems from the organization’s broad definition of Palestinian

refugees. The UNRWA definition, unlike the definition given in the Refugees

Convention, includes the descendents of the refugees who left Mandatory Palestine as

well as those who have received citizenship in the countries in which they have since

settled. In addition, many Palestinians who live outside the area of operation of UNRWA

see themselves as Palestinian refugees who are entitled to return to the territory of the

State of Israel.

Chapter Two: The right of return in the prism of international law

The Palestinians base the refugees’ ‘right of return’ on international law and international

human rights law. The discourse of human rights largely developed following the Second

World War. The UN adopted many conventions on human rights and the signatory states

undertook to safeguard these rights within their territory. Concurrently, monitoring and

supervising mechanisms were established to implement the conventions. This step led to

limitations on the sovereignty of states. Against this background, Chapter Two considers

the various sources of international law concerning related issues with the purpose of

examining whether they vest the Palestinian refugees and their descendents with a right

to return.

• UN resolutions relating to Palestinians do not vest the Palestinian refugees with a

right to return to the State of Israel. The primary resolution upon which the

Palestinians base their claim to a right to return is UN General Assembly Resolution

194(III) of 1948. This resolution sought to set out a general framework for resolving

the conflict through the establishment of a Conciliation Commission. Indeed, the

return of the refugees is mentioned in Article 11 of the Resolution but this must be

perceived as part of the general framework and not as a right vested in the

Palestinians, particularly in the light of the fact that the resolution does not refer to the

term “right”. Subsequent resolutions of the UN General Assembly recognize the right

of the Palestinian people to self-determination and the right of the Palestinians to

return to their homes. In contrast, the resolutions of the Security Council 237 and 242

of 1967 and 338 of 1973 call for a just solution to the Palestinian refugees problem

but make no reference whatsoever to their ‘right’ to return. It is these decisions of the

Security Council which are binding in the relations between the Israelis and the

Palestinians, as the Oslo agreements signed by the two parties vest them with binding

force following their adoption by the parties.

• International human rights law provides various definitions regarding the scope of

the right to freedom of movement, on which on occasion the right to return is based.

One of the important instruments in this regard on which the Palestinians rely is the

International Covenant on Civil and Political Rights of 1966. Art. 12(4) of the

Covenant prohibits the imposition of arbitrary restrictions on the right of a person to

enter ‘his country’. This position paper shows that the Palestinian refugees do not

satisfy the terms of the article and therefore it too does not vest them with a right to

return to the State of Israel. For the Palestinians, Israel is not “their country” and even

if it is regarded as their country, the restriction on their entry is not arbitrary. The

State of Israel is entitled to prevent the entry of the Palestinians refugees into its

territory and a fortiori the entry of their descendents as such a development might

endanger the existence of the state and the implementation of the right of the Jewish

people to self-determination within it. The same rationale is also relevant in relation

to restricting the entry into Israel of Palestinians who have married a citizen of Israel

and wish to settle in the country within the framework of family unification.

• International law of Citizenship too does not impose a duty on the State of Israel to

grant citizenship to Palestinian refugees. The general international conventions and

those dealing specifically with the question of citizenship provide for the right of

every person to citizenship, but there is no express obligation on any particular state

to grant such citizenship. Arrangements for the grant of citizenship to those leaving

the state in cases of uti possidetis, i.e., in situations where large movements of people

are generated as a result of war which has led to border changes, have not yet been

formulated in binding rules, and therefore are not legally binding in the context of the

issue of Palestinian refugees.

• International Refugee law is primarily defined by the Refugees Convention of 1951.

This convention provides for the right of the refugees not to be deported to the

country from which they escaped and in which their lives or freedom are in danger.

Global practice over the years reflects the fact that states have not interpreted this

right as indirectly providing for the duty of the original state to enable the return of

the refugees. Similarly, the Statute of the Office of the UN High Commission for

Refugees of 1950 provides that return is merely one of the possible ways of resolving

refugee problems. Irrespective of the above, the Refugees Convention has excluded

the Palestinian refugees from its purview and in accordance with UN decisions has

made them the responsibility of UNRWA. At the same time, the latter agency has not

been authorized to deal with the return of the Palestinians.

• Humanitarian law and international criminal law which concern the protection of

civilians and combatants in time of war and in its aftermath do not contain a provision

regarding the right of return of refugees. They prohibit forcible deportation. However,

even if the problem of Palestinian refugees was caused in part by the deportation of a

population from the area of Mandatory Palestine, international law does not contain

any norm which requires the refugees to be allowed to return to the original country

as a remedy for prohibited deportation.

Chapter Three: resolution of political and ethnic conflicts in mixed societies:

separation versus reintegration

An examination of precedents from around the world relating to the resolution of ethnic

disputes in which the fate of many refugees is involved shows that a variety of solutions

have been offered for dealing with this aspect of the problem as part of the attempt to

resolve or stabilize national conflicts.

Until the end of the Cold War the legitimate and even preferred solution for ethnic

disputes was the forced exchange of populations. The premise was that such a solution

contributed to the stabilization of the states suffering from ethnic tensions. This was the

case in relation to the peace agreements between Greece and Bulgaria in 1919 and

between Turkey and Greece in 1923. The Peel Commission of 1937, which called for the

partition of Mandatory Palestine into two states, recommended the exchange of

populations in reliance on the Greek-Turkish precedent. A similar solution – the forcible

transfer of populations – was adopted in the Potsdam Declaration of 1945 which declared

that millions of Germans would be uprooted from areas in Eastern Europe and would be

transferred to Germany. Even upon the partition of India into India and Pakistan in 1947,

an exchange of populations involving millions of people was carried out with the aim of

separating two disputing ethnic groups.

We see therefore that when the problem of the Palestinian refugees arose, the exchange

of populations, particularly in cases of ethnic conflict, was regarded as a legitimate and

even appropriate solution. It is possible to regard the absorption of hundreds of thousands

of Jewish refugees from the Arab states in Israel, which took place at the same time as the

escape or deportation of Palestinian refugees to the neighboring Arab states, as a

retroactive exchange of populations. The new reality which evolved could have provided

a fitting infrastructure for the settlement of the dispute. However, unlike the State of

Israel, the Arab states in general did not take measures to absorb the refugees and resettle

them but rather encouraged the perpetuation of the refugee situation and the aspiration to

return to the territory of the State of Israel.

Following the end of the Cold War the process of population exchange was defined as

ethnic cleansing and was made the subject of an absolute prohibition by international law.

Return was adopted by the states – particularly by the states absorbing refugees – as the

preferred solution for the problems of refugees which had been created by ethnic

conflicts. However, in many cases this policy encountered difficulties and sometimes

could not be implemented at all. This was the situation in Bosnia and Herzegovina for

example, which had formed part of the former Yugoslavia. The war in the region gave

rise to an increased movement of refugees. The Dayton Agreement of 1995 provided for

their right to return to their homes. In practice, the return of these refugees has

encountered numerous obstacles to this day, including ethnic hostility which on occasion

has turned into severe violence. In Ethiopia, the problem of refugees was solved by their

return to Ethiopia, albeit to an area largely separated geographically and ethnically from

the area from which they had fled. In Cyprus the Secretary General of the UN Kofi

Annan made a proposal to the two sections of the island to resolve the refugee problem

which had been created about thirty years earlier. His proposal included a greatly reduced

level of return out of the desire to preserve the majority of each ethnic community in its

own territory. This proposal shows that the international community accepts even

nowadays that a solution which does not include the extensive return of refugees to their

original place of residence is legitimate and may even be preferred. The premise

underlying this paper is that this is the appropriate way to act in the case of the

Palestinian refugees as well.

This view is supported by a recent judgment of the European Court of Human Rights

which in March 2010 decided the issue of the property rights of Greek Cypriots who had

lived in northern Cyprus and moved to the south of the island following the Turkish

occupation. In view of the importance and relevance of this judgment to the issue of the

Palestinian refugees, its main elements are set out in an Appendix to this paper.

Postscript

The discussion regarding the return of the Palestinian refugees to the State of Israel is

essential to ensure the best possible handling of this issue by the state within the

framework of the political negotiations and agreements which are expected to be signed

by Israel and the Palestinians. In view of the fact that international law does not vest the

Palestinian refugees with the right to compel Israel to enable them to settle in its territory

and in view of the practice of states regarding the return of refugees in areas of ethnic

dispute, it is recommended that the discussion on return be shifted from the discourse of

rights to the domain of political negotiations. The State of Israel must not be tempted to

recognize the right of return of the refugees even if it is offered a guarantee or

understanding to the effect that, in practice, they will not return. It must not follow this

course even as a symbolic gesture aimed at recognizing the suffering of the refugees. The

alleged right is also the right of individuals and it is not at all clear that the

representatives of the Palestinians are authorized to waive such rights. Indeed, the claim

that this right cannot be waived is made expressly by those asserting it. Thus, any

recognition of the right of return may bring mass claims to return in its wake. The

sweeping solution of return is incompatible with the interests and the rights of the State

of Israel as the nation-state of the Jewish people. It is indeed necessary and urgent to

bring an end to the suffering of the Palestinian refugees but extensive return to the State

of Israel of a different population with cultural and social characteristics which differ so

sharply from those of the Jewish population, and where there is such deep hostility

between the two groups, is not the proper solution to the suffering of the refugees and

certainly is not the means of achieving stability in the region.

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