Jerusalem Letter / Viewpoints
No. 485 24 Elul 5762 / 1 September 2002
LEGAL ASPECTS OF THE PALESTINIAN REFUGEE QUESTION
The Beginning of the Refugee Problem / Who is a Refugee? / Do Refugees Have a Right to Return to Israel? / The Impact of UN General Assembly Resolution 194 / After 1967 / The Refugee Question in Arab-Israeli Agreements / A Right to Compensation?
Until September 2000, hopes were high that soon an agreement on the final status of the West Bank and Gaza would pave the way for peaceful coexistence between Israel and the Palestinians. These hopes have unfortunately been shattered, as Palestinians violently attacked Israelis in both the administered territories and in Israel proper, provoking violent reactions by Israel. One could wonder what purpose there is in analyzing legal issues related to a peaceful settlement when violence is the order of the day. If we nevertheless examine some of the legal issues, it is because we have not yet lost hope that sooner or later the guns will be silenced and the parties will return to the negotiating table.
The underlying conflict is mainly of a political nature. However, for several reasons it should also be analyzed from a legal perspective. First, some of the questions involved are overwhelmingly of a legal nature. Second, the parties base their claims on legal arguments. And, third, if and when a compromise is reached, it will be drafted in legal terms and be included in a legal text. This is also true of the question of Palestinian refugees.
The Beginning of the Refugee Problem
The plight of the refugees is a serious human problem. During the 1947-48 period, many Arabs "left, ran away, or were expelled."1 At the same time, Jews escaped from Arab countries. While the Jews were integrated into the countries to which they fled, the Arabs were on purpose denied integration in most Arab countries (except Jordan) in order to prevent any possible accommodation with Israel. The refugees have been receiving support and assistance from the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), established by the UN General Assembly in 1949.2
According to various estimates, the number of refugees in 1949 was between 538,000 (Israeli sources), 720,000 (UN estimates), and 850,000 (Palestinian sources). By 2001, the number of refugees registered with and supported by UNRWA had grown to about 3.5 million, since also children, grandchildren, and great-grandchildren are registered. Another reason for this increase is the fact that UNRWA does not systematically delete all deceased persons from its registry. According to UNRWA, in 2000 there were about 550,000 refugees in the West Bank, some 800,000 in the Gaza Strip, 1,500,000 in Jordan, 350,000 in Lebanon, and 350,000 as well in Syria. Only part of them have lived in refugee camps. The situation of the refugees has been particularly severe in the Gaza Strip and in Lebanon.3
The plight of the refugees raises at least three legal questions:
- Who should be considered to be a refugee?
- Do the Palestinian refugees have a right to return to Israel?
- Do they have a right to compensation?
Who is a Refugee?
The question arises whether all those registered with UNRWA should be considered as refugees. The 1951-1967 Convention Relating to the Status of Refugees4 has adopted the following definition:
...[A]ny person who:
(2) owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it...
There is no mention in this definition of descendents. Moreover, the convention ceases to apply to a person who, inter alia, "has acquired a new nationality, and enjoys the protection of the country of his new nationality."5
Under this definition, the number of Palestinians qualifying for refugee status would be well below half a million. However, the Arab states managed to exclude the Palestinians from that definition, by introducing the following provision into the 1951-1967 Refugees Convention:
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 and assistance...6
In no official document have the Palestinian refugees been defined, and UNRWA has been adopting varying definitions, such as:
A Palestinian refugee is a person whose normal residence was Palestine for a minimum of two years preceding the conflict in 1948, and who, as a result of this conflict, lost both his home and his means of livelihood and took refuge in one of the countries where UNRWA provides relief. Refugees within this definition and the direct descendants of such refugees are eligible for Agency assistance if they are: registered with UNRWA; living in the area of UNRWA operations; and in need.7
This is a very broad definition under which the number of refugees constantly increases. It may be appropriate for UNRWA purposes in order to decide who qualifies for assistance, but it is hardly suitable for other purposes. It follows that the parties should agree on a more suitable definition.
Do Refugees Have a Right to Return to Israel?
Another legal controversy concerns the question whether the refugees, whatever their definition, have a right to return to Israel. We will discuss this subject from three points of view: general international law, the most relevant UN resolutions, and various agreements between Israel and its neighbors.
Several international human rights treaties deal with freedom of movement, including the right of return.8 The most universal provision is included in the 1966 International Covenant on Civil and Political Rights, which says: "No one shall be arbitrarily deprived of the right to enter his own country."9
The question arises, who has the right of return, or: what kind of relationship must exist between the state and the person who wishes to return? A comparison of the various texts and a look at the discussions which took place before the adoption of these texts lead to the conclusion that the right of return is probably reserved only for nationals of the state.10
Even the right of nationals is not an absolute one, but it may be limited on condition that the reasons for the denial or limitation are not arbitrary.
Moreover, according to Stig 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.11
In the context of general international law one also has to observe that humanitarian law conventions (such as the 1949 Geneva Conventions for the Protection of Victims of War) do not recognize a right of return.
The Impact of UN General Assembly Resolution 194
The first major UN resolution that refers to the Palestinian refugees is Resolution 194 (III) of 11 December 1948, adopted by the General Assembly.12 This resolution established a Conciliation Commission for Palestine and instructed it to "take steps to assist the Governments and authorities concerned to achieve a final settlement of all questions outstanding between them." Paragraph 11 deals with the refugees:
The General Assembly...resolves that the refugees wishing to return to their homes and live at peace with their neighbors 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...
Though the Arab states originally rejected the resolution, they later relied on it heavily and have considered it as recognition of a wholesale right of repatriation.
This interpretation, however, does not seem warranted: the paragraph does not recognize any "right," but recommends that the refugees "should" be "permitted" to return. Moreover, that permission is subject to two conditions - that the refugee wishes to return, and that he wishes to live at peace with his neighbors. The violence that erupted in September 2000 forecloses any hope for a peaceful co-existence between Israelis and masses of returning refugees. Moreover, the Palestinians have linked the request for return to a claim for self-determination. If returning refugees had a right to external self-determination, this would mean the end of the very existence of the State of Israel. Under the 1948 resolution, the return should take place only "at the earliest practicable date." The use of the term "should" with regard to the permission to return underlines that this is only a recommendation - it is hortatory.13 One should also remember that under the UN Charter the General Assembly is not authorized to adopt binding resolutions, except in budgetary matters and with regard to its own internal rules and regulations.
Finally, the reference to principles of international law or equity refers only to compensation for property and does not seem to refer to permission to return.
It should also be borne in mind that the provision concerning the refugees is but one element of the resolution that foresaw "a final settlement of all questions outstanding between" the parties, whereas the Arab states have always insisted on its implementation (in accordance with the interpretation favorable to them) independently of all other matters.
In this context one should bear in mind that the General Assembly has also recommended the "reintegration of the refugees into the economic life of the Near East, either by repatriation or resettlement" (emphasis added, R.L.).14
As a result of the Six-Day War in 1967, there were about 200,000 Palestinian displaced persons (i.e., persons who had to leave their home and move to another place in the same state). These were dealt with by Security Council Resolution 237 of 4 June 1967,15 which called upon the government of Israel "to facilitate the return of those inhabitants [of the areas where military operations have taken place] who have fled the areas since the outbreak of hostilities." The resolution does not speak of a "right" of return and, like most Security Council resolutions, it is in the nature of a recommendation. Nevertheless, Israel has agreed to their return in various agreements, to be studied later. Some 30 percent of the displaced persons of 1967 had already been counted as refugees of 1948.16
Of great importance in the Arab-Israel peace process is Security Council Resolution 242 of 22 November 1967.17 In its second paragraph, the Council "Affirms further the necessity...(b) for achieving a just settlement of the refugee problem." The Council did not propose a specific solution, nor did it limit the provision to Arab refugees, probably because the right to compensation of Jewish refugees from Arab lands also deserves a "just settlement." There is no basis for the Arab claim that Resolution 242 incorporates the solution recommended by General Assembly Resolution 194 of 1948 analyzed above.
The Refugee Question in Arab-Israeli Agreements
Turning now to agreements between Israel and its neighbors, we find that already in the Framework for Peace in the Middle East agreed at Camp David in 1978 by Egypt and Israel,18 the refugee problem was tackled: It was agreed that a "continuing committee" including representatives of Egypt, Israel, Jordan, and the Palestinians should "decide by agreement on the modalities of admission of persons displaced from the West Bank and Gaza in 1967" (Article A, 3). Similarly, it was agreed that "Egypt and Israel will work with each other and with other interested parties to establish agreed procedures for a prompt, just and permanent implementation of the resolution of the refugee problem" (Article A, 4).
In the Declaration of Principles on Interim Self-Government Arrangements of 1993 between Israel and the Palestinians,19 again it was agreed that the modalities of admission of persons displaced in 1967 should be decided by agreement in a "continuing committee" (Article XII). The issue of refugees should be negotiated in the framework of the permanent status negotiations (Article V, 3). The 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip20 adopted similar provisions (Articles XXXVII, 2 and XXXI, 5).
Somewhat more detailed is the relevant provision (Article 8) in the Treaty of Peace between Israel and Jordan of 1994.21 As to the displaced persons, they are the object of a text similar to the above ones. As to the refugees, the peace treaty mentions the need to solve their problem both in the framework of the Multilateral Working Group on Refugees established after the 1991 Madrid Peace Conference, and in conjunction with the permanent status negotiations. The treaty also mentions "United Nations programs and other agreed international economic programs concerning refugees and displaced persons, including assistance to their settlement."22
None of the agreements between Israel and Egypt, the Palestinians, and Jordan, respectively, has granted the refugees a right of return into Israel.
This short survey has shown 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. In 2000 there were about 3.8 million Palestinian refugees registered with UNRWA. If Israel were to allow all of them to return to its territory, this would be an act of suicide on its part, and no state can be expected to destroy itself. On the other hand, at least some of the refugees would object to and try to delegitimize any agreement that did not grant a wholesale right of return.23 Moreover, they threaten those who would like to settle for a different solution. It seems to be a vicious circle.
The solution may include a right to return to the new Palestinian homeland, settlement and integration in various other states (Arab and non-Arab), and possible return to Israel if compelling humanitarian reasons are involved, such as family unification.24
A Right to Compensation?
The third legal problem pertaining to refugees is the question of whether they have a right to compensation for their lost property, and to a subsidy for their rehabilitation, i.e., integration or resettlement or return, respectively.25 General international law recognizes the obligation to pay compensation in case of confiscation of property belonging to foreigners. There is, however, disagreement about the amount that should be paid. In this case, two experts have suggested a standard of "adequate compensation," taking into account the value of the property and the specific needs of the respective refugee.26 If a definitive solution to the problem is sought, one should consider paying - either by law or ex gratia - not only compensation for lost property but also a reasonable subsidy for rehabilitation, and perhaps also compensation to the host country, where the refugee has lived and where he should settle. Since Israel had not started the 1947-48 war but was attacked by the Arabs, it is not responsible for the creation of the refugee problem. Hence it is not under an obligation to recruit the necessary sums. Preferably an international fund should be established for that purpose, to which other countries as well as Israel would contribute. The difficulty is the enormous sums which would be needed.27
It is advisable to resort to a lump sum arrangement which would settle all financial claims between the parties and preclude any further claims. A way would have to be found in order that the arrangement would bind not only Israel and the Palestinian Authority, but also all the refugees.
To conclude our discussion of the refugee problem, it is recommended that the parties agree on a reasonable definition of the refugees and not automatically adopt the one used by UNRWA. The refugees do not have a right of return to Israel, neither under general nor special international law; the adequate solution seems to be return to the Palestinian homeland, resettlement and absorption in other countries (preferably according to the wishes of each refugee), and some may be allowed to return to Israel. A prompt and adequate solution will also involve the payment of compensation for lost property and a subsidy for rehabilitation.
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1. Eyal Benvenisti and Eyal Zamir, "Private Claims to Property Rights in the Future Israeli-Palestinian Settlement," American Journal of International Law 89 (1995):297.
2. UN General Assembly Resolution 302 (IV) of 8 December 1949, adopted at the 273rd plenary meeting.
3. Yitzhak Ravid, The Palestinian Refugees (Ramat Gan, 2001), pp. 1-12 (Hebrew).
4. UN Treaty Series, vol. 189, no. 2545 (1954), pp. 152-156, article 1A (2).
5. Ibid., Article 1 C (3).
6. Ibid., Article 1 D.
7. Don Peretz, Palestinians, Refugees, and the Middle East Peace Process (Washington, D.C., 1993), pp. 11-12.
8. The 1948 Universal Declaration of Human Rights, Article 13 (2); the 1966 International Covenant on Civil and Political Rights, Article 12 (4); the 1963 Protocol IV to the European Convention on Human Rights, Article 3 (2); the 1969 American Convention of Human Rights, Article 22 (5); the 1981 Banjul Charter on Human and Peoples' Rights, Article 12 (2) - see Basic Documents on Human Rights, Sir Ian Brownlie, ed., 3rd ed. (Oxford, 1992), pp. 21, 125, 347, 495, 551; for additional examples, see Paul Sieghart, The International Law of Human Rights (Oxford, 1985), pp. 174-178.
9. 1966 International Covenant on Civil and Political Rights, Article 12 (4).
10. Paul Sieghart, The International Law of Human Rights, p. 179; Geoffrey R. Watson, The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements (Oxford, 2000), p. 283; Ruth Lapidoth, "The Right of Return in International Law, with Special Reference to the Palestinian Refugees," Israel Yearbook on Human Rights 16 (1986), pp. 107-108.
Some experts are of the opinion that the right of return applies also to "permanent legal residents" - see, e.g., the discussion that took place in the sub-commission on Prevention of Discrimination and Protection of Minorities, as reported in the Report by Chairman-Rapporteur Mr. Asbjorn Eide, UN Doc. E/CN.4/Sub.2/1991/45, of 28 August 1991, p. 5. The Human Rights Committee established under the International Covenant on Civil and Political Rights has adopted an interpretation according to which the right of return belongs also to a person who has "close and enduring connections" to a certain country - UN Doc. CCPR/C/21/Rev. 1/Add. 9, 2 November 1999, pp. 5-6.
11. Stig Jagerskiold, "The Freedom of Movement," The International Bill of Rights, Louis Henkin, ed. (New York, 1981), p. 180. For a different opinion, see Geoffrey Watson, Oslo Accords, p. 283.
12. GAOR, 3rd session, part I, 1948, Resolutions, pp. 21-24.
13. Geoffrey Watson, Oslo Accords, p. 281.
14. UN General Assembly Resolution 393 (V), 2 December 1950, adopted at the 315th plenary meeting. See also the second paragraph of UN General Assembly Resolution 194 (III), 11 December 1948, and Resolution 513 (VI), 26 January 1952, adopted at the 365th plenary meeting.
15. SCOR, 22nd year, Resolutions and Decisions, 1967, p. 5.
16. Salim Tamari, "The Future of Palestinian Refugees in the Peace Negotiations," Palestine-Israel Journal 2 (1995):12.
17. SCOR, 22nd year, Resolutions and Decisions, pp. 8-9. For its legislative history, see, e.g., Arthur Lall, The U.N. and the Middle East Crisis 1967 (New York, 1968). For an analysis, see, e.g., Adnan Abu Odeh, Nabil Elaraby, Meir Rosenne, Dennis Ross, Eugene Rostow, Vernon Turner, articles in UN Security Council Resolution 242: The Building Block of Peacemaking (Washington, D.C., 1993); Ruth Lapidoth, "Security Council Resolution 242 at Twenty Five," Israel Law Review 26 (1992):295-318.
18. UN Treaty Series, vol. 1138 (1987), no. 17853, pp. 39-45.
19. International Legal Materials 32 (1993), pp. 1525-1544. On this declaration, see, e.g., Joel Singer, "The Declaration of Principles on Interim Self-Government Arrangements," Justice (Tel Aviv), no. 1 (1994):4-21; Eyal Benvenisti, "The Israel-Palestinian Declaration of Principles: A Framework for Future Settlement," European Journal of International Law 4 (1993):542-554; Antonio Cassese, "The Israel-PLO Agreement and Self-Determination," ibid., pp. 564-571; Raja Shihadeh, "Can the Declaration of Principles Bring About a 'Just and Lasting Peace'?" ibid., pp. 555-563; Karin Calvo-Goller, "Le regime d'autonomie prevu par la declaration de principes du 13 Septembre 1993," Annuaire Francais de Droit International 39 (1993):435; K.W. Meighan, "The Israel-PLO Declaration of Principles: Prelude to a Peace?" Virginia Journal of International Law 34 (1994):435-468.
20. Articles 1, 3, 4, 7, 13 and Annex I of the Declaration of Principles. Excerpts of the 1995 agreement were published in International Legal Materials 36 (1997), p. 551. For the full text, see Kitvei Amana (Israel's publication of treaties), vol. 33, no. 1071, pp. 1-400. For commentaries, see Joel Singer, "The West Bank and Gaza Strip: Phase Two," Justice, no. 7 (1995):1-12; Rotem M. Giladi, "The Practice and Case Law of Israel in Matters Related to International Law," Israel Law Review 29 (1995):506-534; Raja Shihadeh, From Occupation to Interim Accords: Israel and the Palestinian Territories (London, 1997), pp. 31-72; Geoffrey Watson, Oslo Accords.
21. International Legal Materials 34 (1995), pp. 43-66.
22. Article 8, para. 2 (c), pp. 49-50.
23. Salim Tamari, "The Future of Palestinian Refugees," pp. 11-12.
24. For possible solutions, see Geoffrey Watson, Oslo Accords, pp. 286-290; Donna E. Arzt, Refugees Into Citizens: Palestinians and the End of the Arab-Israeli Conflict (New York, 1997); Joseph Alpher and Khalil Shikaki, The Palestinian Refugee Problem and the Right of Return, Harvard University, Weatherhead Center for International Affairs; Working Paper no. 98-7 (Cambridge, MA, 1998).
25. Geoffrey Watson, Oslo Accords, pp. 286-290; Eyal Benvenisti and Eyal Zamir, "Private Claims."
26. Ibid., pp. 331 and 338. However, Resolution 194 (III) spoke only of compensation for property.
27. Yitzhak Ravid, The Palestinian Refugees, pp. 36-40.
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Ruth Lapidoth is a Fellow of the Jerusalem Center for Public Affairs and Professor at the Law School of the College of Management as well as Greenblatt Professor Emeritus of International Law at the Hebrew University of Jerusalem. Professor Lapidoth's areas of expertise include Public International Law, Law of the Sea, the Arab-Israeli conflict and its resolution, and specifically the juridical status of Jerusalem, and autonomy. Her books include The Arab-Israel Conflict and Its Resolution: Selected Documents (1992), The Jerusalem Question and Its Resolution: Selected Documents (1994), Autonomy: Flexible Solutions to Ethnic Conflicts (1997), and The Old City of Jerusalem (2002). This Jerusalem Viewpoints is based on a more comprehensive study, "Israel and the Palestinians: Some Legal Issues," that originally appeared in Die Friedens-Warte (Journal of International Peace and Organization), 76:2-3 (2001):211-240 (www.friedens-warte.de).
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