2 February, 2011 Muftah
In 1948 when Palestinians fled from their homes in the war leading to the creation of the Israeli state, many assumed their lives would resume as soon as hostilities ceased. Nearly 63 years later, however, Palestinian refugees remain in suspension, still barred from returning to the villages, towns and cities inside Israel, which they left behind.
For generations now, the Palestinian “right of return” has been rejected and obstructed by the Israeli government. Today’s largest and longest standing refugee population, the Palestinians, have also been denied basic social and legal rights in many of the Arab countries they have called home since their expulsion. Sadly, Arab governments have cited the “importance” of the right of return as justification for these legal and social deprivations, making the lives of Palestinian refugees in these countries particularly perilous.Conversely, Israeli politicians have refused to implement this internationally recognized right on the grounds that a return of Palestinian refugees to Israel-proper would create a demographic threat to the country’s Jewish character. Two-time Israeli president Benjamin Netanyahu has been quoted as stating that there would be no “peace” with the Palestinians until they have completely dropped all demands relating to the right of return and that not one Palestinian refugee should ever expect to return to Israeli territory. Despite this emphatic rhetoric, international law has long enshrined the right of return for all people and has more recently established the right of Palestinian refugees to return to their lands, including those inside present-day Israel.
The Origins of the Right of Return
The right of return is more than an abstract moral or natural right. For centuries, international law has implicitly recognized the right of all displaced people to return home. Several elements of international law, including United Nations (UN) resolutions, the law of human rights, the law of nationality and humanitarian law offer concrete support for the right. As early as 1215, the Magna Carta declared that, “[i]t shall be lawful in the future for anyone … to leave our kingdom and to return, safe and secure.” More recently, the UN has described the right of displaced people to return to their homeland as inalienable. As the right of return has been enshrined in international law for an extensive period of time, it has become part of “customary international law”, which is composed of those aspects of international law that derive from custom, specifically the general and consistent practices of states. As customary international law is binding upon all states, respect for the right of return is obligatory for all countries in the global system.
The Right of Return and the United Nations
In 1948, shortly after the 1948 war, Count Folke Bernadotte, the UN mediator for Palestine, described the right of return of Palestinian refugees as one of the “seven basic premises” necessary to solving the conflict in the Holy Land. Subsequently, he issued a recommendation to the UN, in the form of a Progress Report, stating that the right of return of Palestinian refugees should “be affirmed by the United Nations.” Scholars have noted that, in doing so, Count Folke Bernadotte did not create a new right, but rather affirmed a right that existed in customary international law for generations.
The UN heeded Count Bernadotte’s advice in adopting Resolution 194. This Resolution explicitly resolved that, “[r]efugees [from Israel] wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date.” Resolution 194 also specified that those who chose not to return would be paid compensation. Israel’s admittance into the UN was in fact contingent on implementation of Resolution 194. Resolution 194 has also been re-affirmed annually by the UN since it was passed, despite Israel’s refusal to implement the right in any form.
The Right of Return and International Human Rights Law
The right of return is also spelled out in several international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), which Israel has signed and ratified.  Article 12(4) of the ICCPR states that, “no one shall be arbitrarily deprived of the right to enter his own country.” A contextual interpretation of this Article helps illuminate exactly how it applies to the Palestinian refugees.
The wording of “to enter” in Article 12(4) delineates a right that is wider in law than simply “to return”. This right of entering ones’ lands unambiguously applies to all generations of Palestinians, even those who have never set foot in Israel or Palestine. The descriptor “arbitrarily” is a limitation implying that a state can interfere with the right of return as long as this interference is not done in an unlawful manner. General Comment No. 27 of the ICCPR travaux préparatoires (General Comment 27) further explains that, “a State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning.” Therefore, the concept of “arbitrariness” is extremely restrictive, permitting a state to block a person’s right of return only as a penal sanction, and not as part of a discriminatory, ethnically-driven state policy.
The trickiest part of Article 12(4) lies in the phrase “to enter his own country”. This term points to the essence of nationality, and has earned a wide interpretation. General Comment 27 specifies that the term includes, “nationals of a country who have been stripped of their nationality in violation of international law … individuals whose country of nationality has been incorporated in or transferred to another entity … whose nationality is being denied them [and] stateless persons arbitrarily deprived of the right to acquire the nationality of the country of [their long term] residence.” Clearly Article 12(4) was meant to encompass the situation of Palestinian refugees who were expelled from or fled their home cities, towns and villages in a time of war. The landmark Nottebohm case, adjudicated by the International Court of Justice, further interprets nationality as something beyond merely holding a passport. Rather, nationality is conceived as, “a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.” Nationality is determined by assessing whether the national has a genuine or effective link with the nation.
As such, Article 12(4) of the ICCPR demonstrates that international human rights law supports the right of return of all Palestinian refugees and their descendants to the lands from which they have been exiled. To return, all the refugee or her descendants must do is demonstrate a genuine attachment and link. While scholars have suggested that time attenuates the link between an individual and her country, when the individual has unwillingly been deprived of her right to return this argument cannot be used to justify the deprivation. To do otherwise would be to use international law to legitimize a State’s arbitrary denial of the right of return,  which would be manifestly contrary to the goals of human rights law. As such, a “wait it out” approach, motivated by the hope that successive generations of refugees will lose their ties to their homeland, is legally unsound.
The Right of Return and the Law of Nationality
The law of nationality also supports Palestinian refugees’ right of return through the mechanism of state succession. State succession occurs whenever “there is a definitive replacement of one state by another in respect of sovereignty over a given political territory in conformity with international law.” In the event of such a change in sovereignty, the population of the previous state usually follows the territory, such that its members acquire citizenship in the new state. Under this principle, all Palestinians who were habitual residents of those parts of Mandate Palestine that became Israel proper ought to be considered Israeli citizens, and those who were habitual residents of the West Bank or the Gaza strip should be entitled to legal status that permits them to return to their homes there.
Ironically, through its “Nationality Law”, which was passed in 1952, Israel has blocked all Palestinian refugees from returning to the Israeli state. The Nationality Law accords all Jewish residents of Israel automatic citizenship, whereas all non-Jewish residents become citizens only if they meet three conditions: (1) they resided in Israel on the day of its founding; (2) they were resident in Israel on the day the Nationality Law came into force; and (3) they were registered as such in a specific Registry. For many Palestinian refugees, the effects of this law have been stark, preventing them from ever acquiring Israeli citizenship and returning home. However, domestic law cannot trump customary international law and many have stated that Israel’s Nationality Law breaches its legal obligations towards the Palestinian refugees and violates international norms against arbitrary denationalization and discrimination.
The Right of Return and Humanitarian Law
Humanitarian law, which governs and regulates armed conflict, also supports the right of return of Palestinians. The body of law firmly establishes that during times of war people may not be expelled from their lands and must be allowed to return to their homes after the conflict comes to an end. The 1949 Geneva Conventions, to which Israel is a signatory, specify in Article 49(1), that civilians in a territory may not be removed or transferred to another country. This rule aims to prevent expulsion and, therefore, any need for implementation of the right of return in the first instance. The Fourth Geneva Convention and its related Protocols also incorporate the general right of return of displaced persons, following the cessation of hostilities. Humanitarian law further dictates that people displaced through forcible expulsion possess an additional basis for return to their homes – after the Holocaust, the Nuremberg trials established that the only appropriate remedy for forced expulsion is repatriation. As such, under Humanitarian law, Palestinians have a general right to return, with repatriation, a more robust form of the right, demanded in cases where individuals were forcibly expelled.
Various strands of international law support the rights of Palestinians exiled from their lands to return. This right is an individual right, and its strength will depend upon the particular factors surrounding the individual or her ancestors’ flight. While this piece has focused on the 1948 refugees, the analysis can also be applied to Palestinians exiled after 1948, with similar consequences for their right to return.
Recently, PLO negotiation documents leaked to the press have shown that lead Palestinian negotiators have been willing to sacrifice the right of return, and have planned to submit any peace agreement reached with Israel to a vote limited to Palestinians living in the Gaza Strip and the West Bank. No peace agreement valid under international law can, however, nullify the right of return of Palestinian refugees – many of whom live in the Diaspora – without first consulting the refugees themselves. Indeed, since each refugee has an independent and individual claim for return, any peace agreement that deals with this right cannot be implemented without first being submitted to a referendum canvassing all Palestinians.
Given the strong support given by international law to respecting the right of return, it is no coincidence that, during peace negotiations, the Israeli Camp has consistently attempted to shift the discourse on the right of return away from this legal regime. While on this issue Israel undoubtedly benefits from current realities, if negotiations between the two sides are to succeed the issue cannot be simply dismissed or brushed under the table. Rather, any discourse must anchor the refugee issue in international law. To do otherwise would deny Palestinians the basic human dignity that this body of law upholds for all other humans, regardless of ethnicity.
 Gail J. Boiling, “The 1948 Palestinian Refugees and the Individual Right of Return: An International Law Analysis” (2007) Badil Resource Center for Palestinian Residency and Refugee Rights Legal Brief 5 at 21-22.
 The right of return is also enshrined in the Convention on the Elimination of All Forms of Racial Discrimination (CERD), where Article 5(d)(ii) lays out “The right to leave any country, including one’s own, and to return to one’s country.”
 Ibid at 67 (a state’s discretion to block a person’s right of return in times of national emergency is subject to Article 4(1) of the ICCPR, countries may not act in a manner “inconsistent with … other obligations under international law” and cannot discriminate “solely on the grounds of race, colour, sex, language, religion or social origin.”).
 See e.g. Justus R. Weiner, “Palestinian Refugees’ ‘Right to Return’ and the Peace Process” (1997) 20 B.C. Int’l & Comp. L. Rev. 1 at 9 (Regarding an Arab Israeli quadrilateral meeting in Amman in 1995, “at the initial meeting the Arab delegations attempted unsuccessfully to ground the talks in international law and U.N. General Assembly and Security Council resolutions on the matter. At Israel’s insistence, however, the parties agreed that the frame of reference for the talks would be the D.O.P., as well as relevant provisions in the Jordanian-Israeli Peace Treaty and the Camp David Accords.”).