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LEGAL ASPECTS OF THE PALESTINIAN REFUGEE
QUESTION
Ruth Lapidoth
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
After 1967
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.
* * *
Notes
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.
* * *
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).
The
Jerusalem Letter and Jerusalem Letter/Viewpoints
are published by the Jerusalem Center for Public Affairs, 13 Tel-Hai
St., Jerusalem, Israel; Tel. 972-2-5619281, Fax. 972-2-5619112,
Internet: jcpa@netvision.net.il. In U.S.A.: Center for Jewish Community
Studies, 1515 Locust St., Suite 703, Philadelphia, PA 19102; Tel.
(215) 772-0564, Fax. (215) 772-0566. © Copyright. All rights reserved.
ISSN: 0792-7304.
The opinions expressed by the authors of Viewpoints do not necessarily
reflect those of the Jerusalem Center for Public Affairs or Scottish
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