Legal Aspects of the Arab Refugee Problem

The question of whether Palestinian refugees from the 1948 war have a “right of return” might appear nowadays to be purely an academic issue. It can be assumed that the majority of Arabs who fled Palestine in 1948 are no longer with us and many of those remaining are in their late eighties or nineties and are unlikely to be candidates for voluntary immigration.

However, the question of whether there is a legal “right of return” remains both relevant and controversial in any attempt to resolve the Arab-Israel conflict.

In the many official, as well as unofficial “track two” meetings, between Israeli and Palestinian negotiators, the Palestinians inevitably raise the issue of a “right of return.” Since they are aware of the continually diminishing numbers of Palestinians who actually fled in 1948, the demand now is that a right of return applies to all descendants. This could be relevant for some five or six million persons of Palestinian descent, many of whom are now citizens or permanent residents of other States. A number of writers estimate that there are now some “seven million Palestinian refugees.”¹ Aware that that there is no feasibility in demanding that Israel accept such numbers, Palestinian negotiators, in private conversations, often, mitigate their demand asking only that Israel accept in principle that there is a legal “right of return, and then the question of numbers can be negotiated. Israel negotiators in response argue that there is no such “right” in international law. It is therefore still relevant to examine whether such a “right of return” does exist in international law.

Factual Background

As a result of the 1947-1948 war, the most common estimate is that some 600,000-700,000 Arab Palestinians fled or were expelled from the area that is now the area of the State of Israel.² Quigly writes “Israel would seem to be responsible for wrongfully inducing the departure of those Palestinians who left under direct compulsion, or out of fear instilled by acts calculated to create fear.”³ Quigly summarizes that there are two possible readings of the facts “hostilities created powerful incentives for the Palestinian exodus” or there was “a concerted Israeli effort to remove the Palestinians from their territory.”⁴ Kattan holds “Israel was largely responsible for their [the refugees’] flight and consequent plight.”⁵

Israel holds that the root cause of the fighting that caused such tragedy to the Palestinian Arabs, and such loss of lives to Israel, was the rejection by the Arab states of the proposal to partition Palestine into an Arab and a Jewish state.⁶ The Israel position is that prior to the actions by armed Arab forces in 1947-1948 there were no Palestinian Arab refugees. Armed attacks against the Jewish population commenced with the adoption of the UN Partition Plam on 29 November 1947 although the regular armies of the Arab States indeed did not invade Palestine until April 1948.

There have been a number of attempts to find a formula that would satisfy both positions. The unofficial understanding reached between Yossi Beilin from Israel and Abu Mazen of the PLO used language whereby “the Israel side acknowledges the moral and material suffering caused to the Palestinian people as a result of the war of 1947–1949.”⁷ The Clinton plan, presented orally to Israel and to the Palestinians by President Clinton at the 2000 Camp David summit, suggested that “Israel is prepared to acknowledge the moral and material suffering caused to the Palestinian people as a result of the 1948 War.”⁸

Who is a Palestinian Refugee?

There is no recognized international law general definition of the term refugee.

The UN Relief and Works Agency for Palestine Refugees in the Near East (“UNWRA”) is the body set up by the UN General Assembly (UNGA) to carry out direct relief and works programs for Palestine refugees, thus Palestinian refugees are excluded from being dealt with by the 1951 Convention or by the UN High Commissioner for Refugees.⁹ This exception was drafted explicitly to exclude Palestinian refugees from the ambit of the 1951 Convention.

Goodwin-Gil writes, “The primary consideration was the desire of the Arab States, concurred in by other States, to maintain the special status of Palestinian refugees.”¹⁰ The Arab States saw the Arab refugee issue as one of people wishing to return to their country and not being allowed to do so, in contrast to most refugees who wish to settle in the countries where they found asylum. UNGA did not define who is a Palestinian refugee. For purposes of providing services, UNWRA defines a Palestine refugee as “persons whose normal place of residence was Palestine during the period June 1, 1946, to May 15, 1948, and who lost both home and means of livelihood as a result of the 1948 conflict.”

UNWRA furthermore decided that the descendants of Palestine refugee males, including legally adopted children, are also eligible for registration.” Palestinian refugees need only to have been living in British Mandate Palestine for two years, between June 1946 and May 1948, to be eligible for UNRWA refugee status. They did not have to have nationality or even permanent residence in British Mandate Palestine to be considered UNRWA refugees.

In accordance with this definition some five and a half million persons are registered with UNWRA.¹¹ UNWRA itself does not define descendants of refugees as refugees but claims that it grants such assistance for humanitarian reasons. This policy arouses a number of legal issues. Persons are not normally regarded as refugees if they have acquired the nationality or permanent residence status of another country.¹²

Goodwin-Gil writes that a refugee loses his status as a refugee through the voluntary “acquisition of new nationality and the protection which derives therefrom” and through such acquisition of an “effective nationality.”¹³ Many of the Arab “refugees” have acquired such nationality or residence rights, notably in Jordan.¹⁴

Another legal issue is that some 65% of the Arab refugees who fled to Arab-held areas in Palestine thus in fact remained in their country, Palestine.¹⁵ According to Kaplan¹⁶ if one deducts from the total who fled, those who stayed in Arab-held Palestine (West Bank and Gaza) and those who acquired Jordanian citizenship (West Bank and East Bank of Jordan) one is left only with those who fled in 1948 to Lebanon and Syria as bona fide refugees, namely some 175,000.¹⁷

The Legal Basis for Demanding a “Right of Return

Palestinian negotiators demand “Israel must recognize the right of the Palestinian refugees to return to their homes” in what is now Israel in accordance with “a well-established norm in international law and practice, namely the right of return.”¹⁸ If a “right of return” were to exist, it would need to be based on one of the two accepted sources of international law, namely an international treaty to which Israel is a party, or a rule of customary international law.¹⁹

Does a “Right of Return” Exist as a Treaty Obligation?

In the UN treaty that deals specifically with refugees, and to which Israel is a party, there is no reference to a “right of return.”²⁰ Israel is a party, however, to two general human rights treaties that refer to a right to return. The Convention on the Elimination of All Forms of Racial Discrimination²¹ which refers to “the right to leave any country, including one’s own, and to return to one’s country” and the 1966 International Covenant on Civil and Political Rights,²² which states: “No one shall be arbitrarily deprived of the right to enter his own country.”

The question arises as to the meaning of the phrase “one’s country” or “his own country” in the two treaties. State interpretation of a right to return appears to be applied only to nationals of the State.²³ This is the phrase used in the 1969 American Convention on Human Rights.”²⁴ The word “national” is also used in the 1950 European Human Rights Convention, Protocol No.4.”²⁵

Apparently, no government interprets the Conventions as meaning that the right applies to persons other than nationals or persons who were nationals or permanent residents of a country and other persons with ties to the country.²⁶

Israel would argue that the decision not to allow return is not arbitrary; as such a mass return would negate the very nature of Israel as a state for the Jewish people.

The “Right of Return” and Customary International Law

Another source of obligation is customary international law (“custom”).²⁷ If a right of return were a rule of custom, then of course, it would be binding on Israel, irrespective of Israeli agreement or recognition of the rule. The existence of a rule of custom requires both State practice²⁸ and opinio juris,²⁹ namely that the state practice was part of a general recognition that a legal obligation is involved. It has been claimed that such a customary rule can be ascertained from the 1948 Universal Declaration of Human Rights, which states in Article 13(2): “Everyone has the right to leave any country, including his own, and to return to his country.”

The Universal Declaration is a universally respected statement of ideals and it has inspired much human rights legislation, including legislation in Israel. It is not, however, binding law. Elements of the declaration have indeed been set out in various human rights treaties and they are binding on the parties to those treaties. Those elements of the Universal Declaration that have not been incorporated into international treaties remain lofty hortatory call to states; they are not, however, binding international law.

Article 13(2) of the Universal Declaration refers to “his country.” Article 21 of the Universal Declaration uses the same phrase and refers to the fact that “everyone has the right to take part in the government of his country.” The right to take part in the “government of his country” is clearly attributable only to citizens and since the same phrase is used in Article 13(2), it is logical to deduce that Article 13(2) also refers to citizens.³⁰

State experience shows that states have indeed often allowed the return of persons who fled during wars. There does not however appear to be precedent for a state allowing non-citizens to return because it was obliged to do so by international law. Furthermore, where there has been a division of a territory into two states, on an ethnic or religious basis, there has been no such “right of return.” The Muslims who fled India for Pakistan have no “right of return” to India, the same being true for Hindus who fled from what is now Pakistan to India. The Sudeten Germans have no “right of return” to the Czech Republic.

UN General Assembly Resolution 194

Paragraph 11 of 1948 UNGA Resolution 194 states:

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 Government or authorities responsible. ³¹

All Arab state members of the UN voted against the resolution, and Israel, which was not a member of the UN at the time, objected to it. Nevertheless, it is now claimed that the resolution obliges Israel to recognize a right of return. It is also claimed that paragraph 11 of UNGA Res. 194 reflected customary international law at the time.³² It has been argued “Although UNGA resolutions are non-binding, they are crafted to reflect existing legal norms and principles that were already binding.”³³ Further it is argued that subsequent UNGA resolutions have repeatedly referred to Resolution 194 and described Palestine refugee rights as “inalienable” thus reflecting customary law. Some Arab spokesmen claim that Israel’s acceptance as a member of the United Nations was conditional on acceptance of UNGA Res. 194 and that Israel agreed to abide by all UNGA resolutions when it applied for membership.³⁴

A response could be that the UN Charter does not make any provisions for conditional membership and Israel did not make any assurance as regards UNGA resolutions. Claude comments on this issue that “The best evidence that Israel had made no such commitments was provided by the speeches of Arab delegates in the plenary meeting at which the resolution was voted; they regarded the admission of Israel as a repudiation of their demand for capitulation on the repatriation issue by the applicant state, and they asserted with bitterness that Israel ‘had given no definite assurances’.”³⁵

UNGA resolutions do not create international law. With the exception of resolutions dealing with budget and internal UN affairs, states are not obliged to comply with resolutions of the UNGA as it is is not a law-making body and neither the UN Charter nor any other legal instrument has empowered it with a law-making capacity.³⁶ The fact that the UN may repeat or reaffirm a resolution does not empower it with legal force. In Weil’s eloquent phrase, “Neither is there any warrant for considering that by dint of repetition, non-normative resolutions can be transmuted into positive law through a sort of incantatory effect.”³⁷

As to the actual text of the resolution, the word “right” is not used, The resolution uses the word “should” and not “shall.” In UN documents the word “should” is regarded as recommendatory language and is not used where an obligation is set out. “The term ‘should’ is clear on its face: it is hortatory, not obligatory.”³⁸ The reference to international law is as regards the clause on compensation and not on the issue of “return.”³⁹ The phrase “wishing to live at peace with their neighbours” would imply that those who return wish to live in a Jewish State as Israeli citizens under Israeli law, an unlikely scenario.

Israel as Successor State to Mandatory Palestine?

It could be argued that Israel is the successor State to Mandatory Palestine and hence an Arab Palestinian who was a citizen of Palestine should automatically be a citizen of Israel and entitled therefore to return to Israel. The Israel Nationality Law 1952 granted Israel nationality to all Arab Palestinians who were in Israel-controlled territory at the time of Israel’s independence and who had remained in Israel when the law came into force (14 July 1952) or who had entered Israel legally by that date. Some 150,000 Arabs who had been Palestinian citizens of Mandatory Palestine thus automatically acquired Israel citizenship. Quigly and others argue that Israel should have granted nationality not only to those Arabs present in Israel but also to those persons who were not present. A response could be that Israel has formally declared that it is not the successor state to Mandatory Palestine.⁴⁰ Even if it were, it is not clear on what basis descendants could also claim citizenship. An interesting consequence of claiming that Israel is the successor state might be that in accordance with the principle of Uti Possidetis, Israel should inherit the borders of Mandatory Palestine and the West Bank and the Gaza Strip are therefore sovereign Israel territory.

A “Right of Return” and Self Determination

Over the years, what was an issue of Palestinian refugees has been turned into an issue of Palestinian political rights. Palestinian demands for a right of return are coupled with their call for self-determination. One can clearly see the change reflected in UN resolutions over the years. What was originally portrayed as a claim of refugees to return has become a national Palestinian claim. A leading Arab Palestinian lawyer put it bluntly when he stated that “the Palestinian Arab refugees have certain inalienable rights including the right of sovereignty over Palestine.”⁴¹

Mass or Individual Rights

The human rights conventions referred to, insofar as they grant rights, do so to individuals and were not intended to deal with population exchanges such as occurred in the Arab-Israeli conflict. According to Jagerskiold, the right of return or the right to enter one’s country in the 1966 International Covenant

Is intended to apply to individuals asserting an individual right. There was no intention here to address the claims of masses of people who have been displaced as a by-product 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 the Palestinians from what became Israel, or the movement of Jews from the Arab countries.⁴²

It is clearly not realistic to suggest that millions of Palestinian Arab refugees feel such strong ties with Israel as a Jewish state that they wish to become loyal Israeli citizens. An Egyptian foreign minister explained that “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.”⁴³ Six years later, the prime minister of Lebanon declared that “the day on which the Arab’s hope for the return of the refugees to Palestine is realized will be the day of Israel’s extermination.”⁴⁴

Resettlement Into Arab Countries?

International Law Professor Julius Stone points out that resettlement

has been the effective solution for the far greater and more complex refugee problems in Europe after World War II. It is a melancholy fact that this more humane course came to so little in the Middle East over so long a time that, for the Arab States concerned, the refugee problem was more useful than its solution.⁴⁵

One academic study describes how resettlement has been the accepted method of solving refugee problems particularly where the refugees move from one part of their country to another such as in Cyprus and the Karelians in Finland.⁴⁶ The UNGA in its 1950 resolution dealing with UNWRA explicitly referred to the possibility of “resettlement” of the Arab Refugees and allocated sums for this purpose.⁴⁷ At first, UNWRA invested sums in economic projects intended to create employment for the refugees. However, the host Arab governments “feared the political implications of a programme which might appear to the refugees to involve permanent settlement away from Palestine”⁴⁸ and “refugees dug in their heels against resettlement.”⁴⁹ “The Arab states had no political and little humanitarian interest in resolving the refugee problem. Thus host Arab states perpetuated the refugee status for political purposes.”⁵⁰ At the insistence of the Arab states the reference to resettlement was omitted in later resolutions referring to UNWRA. One study of UNWRA summarizes the issue. “The refugees were not repatriated because Israel had no interest in permitting them to return, and they were not resettled because Arab states, other than Jordan, had little incentive to incorporate them into their citizenries, and the Palestinians developed a powerful nationalism that militated against their integration outside their traditional land.”⁵¹

The Issue of Refugees in the Legal Instruments of the Peace Process

There is no reference to a “right of return” or to UNGA Res. 194 in any of the documents which were agreed to between the parties. The first agreed framework for a peace settlement was the 1967 UN Security Council (UNSC) Resolution 242.⁵² The resolution was not adopted under Chapter VII of the Charter and therefore was not binding as such, but all parties to the conflict have subsequently accepted it as a binding framework. Res. 242 refers to the necessity of “achieving a just settlement of the refugee problem.” There is no reference to a “right of return” or to UNGA Res. 194. Res. 242 refers to refugees, without limiting the term to Palestinian refugees, thus enabling the issue of compensation for the property of Jews from Arab countries to come within its ambit.

The 1978 Camp David Framework for Peace in the Middle East stated “Egypt and Israel will work with each other and with other agreed parties to establish agreed procedures for a prompt and permanent implementation of the resolution of the refugee problem.”⁵³ The 1993 Declaration of Principles on Interim Self Government-The Oslo Agreement-reaffirmed UNSC Res. 242 and stated that the issue of refugees should be dealt with as part of “permanent status negotiations”.⁵⁴ The 1995 Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip agreement was signed, as witnesses, by representatives of the United States, the Russian Federation, Egypt, Jordan, Norway, and the European Union. There is no reference to a right of return or to UNGA Res. 194 in any of these agreements. The 1994 Treaty of Peace with Jordan states:

The Parties will seek to resolve the refugee problem, in accordance with international law, in appropriate forums, including the framework of the Multilateral Working Group on Refugees, and in negotiations, in a framework to be agreed, bilateral or otherwise, in conjunction with and at the same time as the permanent status negotiations pertaining to the Territories that came under Israeli military government in 1967.⁵⁵

Israel and the Arab states have agreed that the refugee issue should be resolved by negotiations. An argument can be made that, by making these agreements, none of which mention a “right of return” or UNGA Res. 194, the PLO and the Arab States, with the blessing of the world community, implicitly acknowledged the reality that a “right of return” is not an option in the Arab-Israeli dispute.

In 2001 the chief U.S. negotiator for the Middle East pithily summarized the issue, “The right of return of Palestinians to their State makes perfect sense, the right of return to Israel made no sense if you are going to have a two-state solution.”⁵⁶

U.S. President Clinton’s proposal, on the question of the refugees, presented two alternatives orally to both parties:

1. Both sides recognize the right of Palestinian refugees to return to historic Palestine, or

2. 2. Both sides recognize the right of Palestinian refugees to return to their homeland.

The agreement will define the implementation of this general right in a way that is consistent with the two-state solution. It would list the five possible homes for the refugees:

1. The State of Palestine

2. Areas in Israel being transferred to Palestine in the land swap

3. Rehabilitation in host country

4. Resettlement in third country

5. Admission to Israel

In listing these options, the agreement will make clear that the return to the West Bank, Gaza Strip, and area acquired in the land swap, would be right (sic) to all Palestinian refugees, while rehabilitation in host countries, resettlement in third countries and absorption into Israel will depend upon the policies of those countries.

Israel could indicate in the agreement that it intends to establish a policy so that some (sic) the refugees would be absorbed into Israel consistent with Israel sovereign decision.

I believe that priority should be given to the refugee population in Lebanon.

The parties would agree that this implements Resolution 194.⁵⁷

Israel accepted the plan in principle but the Palestinians did not respond in substance.⁵⁸ In formal presentations, Arab representatives demanded an unconditional right of return. They pointed out, however, that not all refugees would choose to return but insisted that the individual refugee make the choice.

At the September 2000 Taba talks between Israel and the Palestinians, the refugee problem was perhaps the major issue. The Israeli proposal during the Taba talks⁵⁹ was that the Palestinians would have the right of return to the future Palestinian state together with the further options of being absorbed in the host states or immigrating to third states willing to absorb them. A further proposal was that Israel would agree to accept an, as yet, unarticulated number of refugees on the humanitarian basis of family reunification. An international fund would be set up to help cover the cost of resettlement and rehabilitation. The final settlement would be considered as implementation of all relevant international resolutions. A settlement of claims would also deal with the question of the property of Jews who fled Arab countries. No agreement was reached.

The Saudi-initiated Arab League peace plan of 28 March 2002 refers to “Achievement of a just solution to the Palestinian refugee problem to be agreed upon in accordance with UN General Assembly Resolution 194.”⁶⁰ This text, by using the word “agreed,” presumably attempts to soften the earlier Arab position that UNGA Res. 194 was mandatory.⁶¹ Israel’s apprehension is that to accept the wording of the Arab League proposal would oblige Israel to negotiate in good faith in accordance with the substance of UNGA Res. 194, a demand Israel has rejected for reasons set out above.

Compensation for Abandoned Property of Palestinian Refugees

The Palestinian Arab refugees left behind, in what is now Israel, large amounts of property. Most of the property was used by Israel to settle Jews who fled from Arab states. Benvenisti and Zamir point out that this is normal international procedure and that during population transfers in India, Pakistan, and cases in Europe, which they enumerate, “immovable property left by expellees was seized by the Governments, which then used it to settle the incoming refugees.”⁶² They add that in no case of massive relocation “have the refugees regained the property they left behind.”⁶³ There are, however, examples of states paying compensation for such property⁶⁴ and Israeli negotiators have agreed to pay compensation for the property Arab refugees left in what is now Israel.

The terms and conditions for such compensation will have to be agreed upon.

Some 700,000 Jews fled Arab countries in the years 1948-1949.⁶⁵ The Jews fled mainly because of anti-Jewish riots and persecution.⁶⁶ It can be argued that this, in fact, served as an exchange of population as the number of Jews who fled Arab countries corresponds to the number of Palestinian refugees. The Jewish “refugees” have been successfully absorbed by Israel and now form an integral part of the fabric of Israeli society. They do not regard themselves as refugees nor are they regarded as such. Needless to say, there is no talk of their “right to return to Arab countries.” On immigrating to Israel, they were often forced to leave their property behind and in many cases, such as in Iraq, special laws were passed depriving them of all rights to their property.⁶⁷ It is Israel’s position that when discussing issues of compensation, the property rights of the Jews who fled Arab countries be taken into account. In accordance with international law, the refugees are entitled to be compensated for property they left in Israel. The Jews who fled Arab States are also entitled to such compensation. Israel’s position is that such mutual claims will have to be negotiated in a multilateral forum.

Compensation for the Suffering of the Refugees

International law stipulates, “The breach of an engagement involves an obligation to make reparations in an adequate form.”⁶⁸ Palestinian negotiators claim that Israel unlawfully created the Palestinian refugee problem and demand that Israel compensate the refugees for their suffering. Such a demand is above and beyond the demand of compensation for property. Israel, on the other hand, sees the invasion by Arab armed forces as the primary cause of the Palestinian refugee problem and is not willing to accept responsibility or the consequent obligation to compensate.

Concluding Remarks

On the basic question of who is responsible for creating the Arab refugee problem, there are two opposing positions as to who violated international law to create the refugee problem. The Arab claim is that the refugees were illegally expelled by Israel or fled from fear of illegal Israeli actions. The Israeli position is that the refugees fled because they were caught in an armed conflict caused by the aggression of Arab armed attempts to prevent the creation of a Jewish state.

On the question of a “right of return” the Arab position is that such a right exists in international law, and although many refugees may not wish to return, they have the right to do so. Lapidoth summarizes the Israel legal position under international law as being that “neither under the general international conventions, nor under the major UN resolutions, nor under the relevant agreements between the parties, do the Palestinian refugees have a right to return to Israel.”⁶⁹ Furthermore, there does not appear to be any legal precedent for the claim that descendants of refugees also have a right of return.

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Notes