Do Palestinian Refugees Have a Legal "Right of Return" to Israel?
by Ruth Lapidoth
In the media and in
interviews with Palestinian leaders, we often hear and read statements
asserting that the Palestinian
Refugees have a right to return to Israel.
As will be shown, these statements are based on an erroneous reading
of the relevant texts. We will discuss the subject from three points
of view: general international law, the most relevant UN resolutions,
and various agreements between Israel and her neighbors.
1. General International
Several international human
rights treaties deal with the freedom of movement, including the right
of return.1 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."2
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 for nationals of the State.3
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
2. Relevant UN
The first major UN Resolution
that refers to the refugees is Resolution
194 (III) of 11 December 1948, adopted by the General
Assembly.5 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 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 Governments or authorities
Though the Arab States
originally rejected the Resolution, they later relied on it heavily
and have considered it as a recognition of a wholesale right of
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 neighbours. The violence that
erupted in September 2000 forecloses any hope for a peaceful
co-existence between Israelis and masses of returning refugees. 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.
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
Finally, the reference to
principles of international law or equity applies only to compensation
and does not seem to refer to the 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 favourable to them) independently of all other matters.
As a result of the Six-Day
War in 1967, there were a great number of Palestinian displaced
persons (i.e. persons who had to leave their home and move to another
place in the same State). These were deal with by the Security
Council Resolution 237 of 4 June 1967,6 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
Of great importance in the
Arab-Israel peace process is Security
Council Resolution 242 of 22 November 1967.7 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.
3. Agreements between
Israel and Neighbours
Already in the Framework
for Peace in the Middle East agreed at Camp
David in 1978 by Egypt and Israel8 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
of Principles on Interim Self-Government Arrangements of 1993
between Israel and the Palestinians,9 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 Strip10 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 1994.11 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 programmes
and other agreed international economic programmes concerning refugees
and displaced persons, including assistance to their settlement."12
None of the agreements
between Israel and Egypt, the Palestinians and Jordan grants the
refugees a right of return into Israel.
This short survey has shown
that neither under the 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.
According to Palestinian sources, there are about 3.5 million
Palestinian refugees nowadays registered with UNRWA.13 If Israel were to allow all of them to return to her territory, this
would be an act of suicide on her part, and no state can be expected
to destroy itself.
Great efforts should be made
by all those involved, and with the help of friendly outside powers,
to find a reasonable, viable and fair solution to the refugee problem.14
Ruth Lapidoth is a Professor of International Law at the Hebrew
University of Jerusalem.
1) 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 on Human Rights, Article
22(5); The 1981 Banjul Charter on Human and Peoples' Rights, Article
12(2) - see Sir Ian Brownlie, ed., Basic Documents on Human Rights,
3rd edition, Oxford 1992, pp. 21, 125, 347, 495, 551. For additional
examples, see Paul Sieghart, The International Law of Human Rights,
1985, pp. 174-78.
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, at 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.I/Add.9, 2 November 1999, at
Jagerskiold, "The Freedom of Movement", in Louis Henkin,
ed., The International Bill of Rights, New York, 1981, pp. 166-184 at
Assembly Official Records, 3rd session, part 1, 1948, Resolutions, pp.
Council Official Records, 22nd year, Resolutions and Decisions, 1967,
7) Ibid., pp.
8) UN Treaty
Series, vol. 1138, (1987), no. 17853, pp. 39-45.
International Legal Materials, vol. 32, 1993, pp. 1525-44.
10) The full
text was published by the Ministry of Foreign Affairs of Israel, and
in Kitvei Amana, vol. 33, No. 1071, pp. 1-400 (Israel's publication of
treaties). For excerpts, see International Legal Materials, vol. 36,
1997, pp. 551-647.
International Legal Materials, vol. 34, 1995, pp. 43-66.
8, para. 2(c), at 49-50.
According to various estimates, the number of refugees in 1948 was
between 538,000 (Israeli sources), 720,000 (UN estimates) and 850,000
(Palestinian sources). The enormous growth in the number for UNRWA
purposes is the result of the fact that UNRWA has adopted a very broad
definition of Palestinian refugees, which is much broader than the one
adopted in the generally recognized 1951-1967 Convention Relating to
the Status of Refugees. For the UNRWA definition, see Don Peretz,
Palestinians, Refugees, and the Middle East Peace Process, Washington,
1993, pp. 11-12. For the definition adopted by the international
conventions, see UN Treaty Series, vol. 189, (1954, No. 2545, pp.
137-221, at pp. 152-156.
14) See e.g.
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, 1998.