For more than fifty years Israel has based its refusal to allow Palestinian refugees to exercise their right of return on a number of key arguments. These include: the lack of physical space, the desire to maintain a demographic Jewish majority, state security, and international law. Israel's arguments against the return of Palestinian refugees are by no means unique. Similar arguments have been used widely by governments, such as in the case of Bosnia and Herzegovina, Croatia, Georgia, Azerbaijan, Armenia, Rwanda, Bhutan, and others, in order to prevent international efforts for refugee repatriation in the 1990s. Discriminatory laws regulating title and use of abandoned refugee property; destruction of refugee housing and loss of housing and property records; secondary occupation of refugee homes and lands, usually by persons or families of rival ethnic groups; and the absence of effective judicial remedies in domestic courts have been identified by the UNHCR as the most widely experienced obstacles to the right of refugees and internally displaced persons to return to their original homes. (See for example: UNHCR, 1994; UNHCR's Operational Experience with Internally Displaced Persons: A Preliminary Review, Division of International Protection, 9). Such obstacles notwithstanding, the international community has engaged in large scale efforts towards refugee repatriation and restitution resulting in the return of over 12 million refugees in the 1990s.
The Israeli case, however, might be unique with regard to the scope of effort invested in the distortion of international law in order to argue away Palestinian refugees' right of return on legal grounds, a practice which has efficiently blocked the international and domestic debate over problems of practical implementation. This BADIL Brief aims to expose the inconsistency of common legal arguments promoted by Israeli experts, in order to strengthen current Palestinian, Arab, and international efforts to establish a rational approach towards a durable solution for Palestinian refugees which is soundly based on international law.
In this Brief, the author argues that the right of Palestinian refugees to return to their homes and properties had already achieved customary status (binding international law) by 1948. The right of refugees to return to their homes and properties is anchored in four bodies of international law, which are reviewed briefly: the law of nationality, as applied to state succession; humanitarian law; human rights law; and refugee law (a subset of human rights law which also incorporates humanitarian law). It is argued that UN Resolution 194, therefore, simply reaffirms legal principles that were already binding, that require states to allow refugees to return to their places of origin, and prohibit mass expulsions of persons - particularly on discriminatory grounds. UN Resolution 194's conformity with international law and practice over the past five decades further strengthens its value as a normative framework for a durable solution for Palestinian refugees today.
- Brief No. 8 is currently available in English language, an Arabic language edition will be completed shortly. Email copies are available free of charge. For orders of print copies, please contact BADIL.
- This Brief is based on a longer legal analysis prepared by Gail Boling, Coordinator of BADIL's Legal Unit. To make the subject of this Brief accessible to the widest possible audience, we have chosen a summarized format with minimal legal citations. The full legal analysis with a complete set of legal citations is available from BADIL upon request.