Resolution 194 (III), A Retrospective
December 11, 2008 marks 60 years since the UN General Assembly adopted Resolution 194 (III). While much of the resolution has been either forgotten or discarded, paragraph 11, which sets out the principles and mechanisms for a solution to the Palestinian refugee question, continues to occupy a central place in the debate over a solution to the Israeli-Palestinian conflict.
Resolution 194 (III) was drafted in just over 3 weeks during the closing months of 1948. The debate pitted Palestinian leaders and the Arab states against the newly-established state of Israel, but it was also coloured by Cold War animosities, US domestic politics, and the debate over human rights and refugees at the UN.
The principles and mechanisms found in paragraph 11 of the resolution can be traced to the June 1948 Text of Suggestions (A/863) drafted by the UN Mediator for Palestine, Count Folke Bernadotte, in which he recommended that the UN recognize “the right of residents of Palestine who, because of conditions created by the conflict there have left their normal places of abode, to return to their homes without restriction and to regain possession of their property.”
The origin of the recommendation is somewhat curious as the Mediator's drafts do not address the refugee crisis. The US and UK, which were closely following Bernadotte's work, both supported the recommendation, but neither had much contact with the Mediator in the period leading up to his June report. Some suggest that the recommendation was the result of consultations with Palestinian officials in Rhodes in late June, but he also met with Israeli officials who made known their opposition to the return of the refugees.
Bernadotte's experience as head of the Swedish Red Cross and his role in securing the release and repatriation of prisoners of war during WWII may provide another explanation. Both the Mediator and his team of advisers expressed serious concerns about violations of international humanitarian law (1907 Hague Regulations) during the war in Palestine. This included, for example, the expulsion of Palestinians from 'Ayn Ghazal, Ijzim, and Jaba and the systematic destruction of the villages. It was these types of incidents which Bernadotte was likely referring to when he wrote in his September report that the Arab refugee crisis had resulted from both the “hazards and strategy” of the war.
The extent to which Bernadotte was aware of and influenced by the drafting of the Universal Declaration of Human Rights and the Convention on the Status of Refugees is less clear. The refugee crisis in Palestine resulted in significant additions to both instruments, including provision for the right of return in the Declaration, but these changes were introduced months after the Mediator issued his two reports. A more likely influence would have been the 1945 Charter of the International Military Tribunal at Nuremberg which defined the deportation of civilians as both a war crime and a crime against humanity. The following year the General Assembly (Res. 8, 12 February 1946) reiterated that “the main task concerning displaced persons is to encourage and assist in every way possible their early return to their countries of origin.”
Bernadotte dealt with the refugee question in more detail in his September report (A/648) in which he refers to the right of return no less than 9 times. The report's conclusions provided the foundation language for paragraph 11 of Resolution 194 (III). Bernadotte recommended that,
[t]he right of Arab refugees to return to their homes in Jewish-controlled territory at the earliest possible date should be affirmed by the United Nations, and their repatriation, resettlement and economic and social rehabilitation, and payment of adequate compensation for the property of those choosing not to return, should be supervised and assisted by the United Nations conciliation commission ....
Publicly, Israel rejected the report, but the debate in the Knesset is somewhat telling. Foreign Minister Shertok (Sharett) first expressed his government's opposition to the Mediator's recommendations, but went on to acknowledge that “[i]t is not so nice or humanitarian to oppose something which is so basic, so simple: a person's right to return to the home from which he has been driven out by force.”
On 21 September 1948, four days after Bernadotte's assassination in Jerusalem, the UN Secretary-General forwarded the report to the General Assembly. The Assembly's First Committee, which dealt with political and security issues, began its review of the report in mid-October, but the discussion was again delayed for several weeks. This was due, in part, to US concerns that the debate would become mired in domestic politics leading up to the US Presidential elections in November of that year. In the meantime, the US and UK collaborated on a draft resolution.
Substantive discussions finally began in mid-November when the UK submitted a draft resolution. The paragraph on refugees closely mirrored the Mediator's recommendation. The UK draft underwent several revisions in the following weeks. The phrase “Arab refugees” was dropped making the draft resolution applicable to all persons displaced during the war in Palestine. US amendments included the principle of refugee choice, which was a major issue of debate between the US and the Soviet Union at the UN, as well as the provision that returnees would have to “live in peace with their neighbours.” The Committee rejected a US amendment that would have limited compensation to those choosing not to return. It also rejected a Guatemalan amendment that would have linked the return of refugees to “the proclamation of peace between the contending parties.” The Committee approved a last-minute British suggestion that the refugees should be allowed to return at the earliest “practicable” rather than “possible” date. The Mediator used both terms in his September report.
Australian and Polish drafts, which called upon UN organs and agencies to “assist in working out plans both for the resettlement of Palestinian refugees and displaced persons and for their repatriation where feasible in the areas from which they have come” were eventually withdrawn. Syria submitted two draft resolutions which dealt incidentally with the refugee question: the first called for the establishment of a commission to study and prepare proposals for the creation of a single state in Palestine; the second called for an advisory opinion of the International Court of Justice on the legality of the UN recommendation to partition Palestine (Resolution 1811). The Committee rejected both draft resolutions, but narrowly defeated the second by a vote of 21 in favour, 21 against with 4 abstentions.
The First Committee met 31 times between 15 October and 4 December 1948. Paragraph 11 of the revised British draft resolution included a total of 7 major changes. Members voted on each amendment before voting on the draft resolution as a whole. 29 states voted in favour of paragraph 11, as amended, by a show of hands. 6 voted against and 13 abstained. The Committee then voted for the draft resolution as a whole. The draft was barely adopted by a recorded vote of 25 in favour, 21 against and 9 abstentions.
Those who supported the draft resolution noted that it was not perfect, but, in the words of the British representative, the draft “was the best answer which many brains and good intentions could produce.”
On December 11, the General Assembly met to discuss the draft resolution. There was palpable concern that the draft would fail to obtain two-thirds support of the Assembly's members. The New Zealand representative warned that “[i]f the United Nations did not pass the resolution that day, it would be still another example of its helplessness and the world would be aghast at the fact that the problem of the government of an area of 10,000 square miles only could not be solved by all the brains and all the goodwill in the world.”
In order to obtain the widest-possible support, the Assembly decided to cut all references to the UN partition plan (Resolution 181) and the UN Mediator's report, and to modify provisions for the appointment of the UN Conciliation Commission. The Arab states were among those opposed to Resolution 181 and the Mediator's Report. This meant deleting the first clause of paragraph 11, which endorsed the Mediator's conclusion on the right of return. This explains why the actual text of paragraph 11 does not use the phrase “right of return”, which is found in the Mediator's report. Nevertheless, the sponsors of the amendment were in full agreement that the change would not affect the substance of paragraph 11. Moreover, the intention of the Arab states was to remove any reference that would comprise recognition of the state of Israel, not to delete the right of return. Resolution 194 (III) was adopted by a vote of 35 in favour, 15 against and 8 abstentions. In the end, the Arab states decided to vote against the resolution and encouraged others to do so after it became known that Israel's request for UN membership had come before the Security Council. None of the votes cast against the resolution, however, related to paragraph 11.
The UNCCP, which was set up to facilitate the implementation of Resolution 194 (III), subsequently drafted a number of papers to facilitate its work. In 1950, however, the Committee prepared a comprehensive paper (W/45) on the meaning of paragraph 11. The Committee arrived at 6 major conclusions:
(1) the term “refugees” applies to all persons displaced during the war in Palestine;
(2) the refugees have a right to exercise their free choice about their future;
(3) the refugees have a right to return to their homes and not just their homeland;
(4) refugees wishing to return should give advance assurances of their intention to live in peace. Israel may reserve a right to veto individual cases based on evidence of past action;
(5) Israel has an obligation to protect the rights of returnees and Arab host states have an obligation to ensure that refugees are able to make a free choice; and,
(6) refugees should be able to return when stable conditions have been established and that such conditions were created by the 1949 armistice agreements.
Additional papers concluded that refugees have an individual right to both restitution and compensation; it applies to both returnees and to those refugees choosing not to return, and compensation should be paid for both loss of and damage to property.
Sixty years later, Israel continues to dispute the relevance of Resolution 194 (III) to resolving the Palestinian refugee question and the meaning of paragraph 11. The drafting history of the resolution, the UNCCP working papers and a review of international law in 1948 clarify the meaning of paragraph 11. All refugees have the right to return, restitution and compensation, while a solution must be based on the free and informed choice of each refugee. The recent (2007) concluding observations of the UN Committee on the Elimination of Racial Discrimination underscore the relevance of paragraph 11 to resolving the Palestinian refugee question today. The Committee reiterated its concern about “the denial of the right of many Palestinians to return and repossess their land in Israel” and called upon Israel to “to assure equality in the right to return to one’s country and in the possession of property” (CERD/C/ISR/CO/13). And, finally, the importance of Resolution 194 (III), paragraph 11, is that it takes us back to first principles, which provide the foundation for a solution based on the universal principle of equality and the fundamental rights and freedoms of all.
* Terry Rempel is a PhD Candidate in Politics at the University of Exeter, UK. He is a founding member of BADIL and former Coordinator of Information and Research.
 See, the discussion on the June suggestions in, Sune O. Persson, Mediation & Assassination: Count Bernadotte's Mission to Palestine 1948 (London: Ithaca Press, 1979).
 For a discussion of the UDHR see, Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), 153. The analysis is based on the personal diaries of Charles Malik, the Lebanese delegate who introduced the amendment leading to the inclusion of the right of return in the Declaration. Drafting changes to the Refugee Convention are discussed in, Lex Takkenberg, The Status of Palestinian Refugees in International Law (Oxford: Clarendon Press, 1998).
 Moshe Shertok (Sharett), 20th Sitting of the Provisional Council of State, 27 September 1948.
 The request for an ICJ advisory opinion had been brought before the UN 3 times in 1947: once in the Security Council and twice in the General Assembly. US officials acknowledged that there were grave doubts as to the legality of the partition plan and admitted that if they had thrown their support behind the idea in the Security Council it would have obtained a majority. The idea was narrowly defeated in the General Assembly.