Palestinian Right of Return - Scope of The Issue - Supporters' Viewpoints

Supporters' Viewpoints

Supporters of the right of return assert it partly based on the following sources:

• Everyone has the right to leave any country, including his own, and to return to his country. -Article 13(2), Universal Declaration of Human Rights (10 December 1948).

• The Geneva Conventions of 1949.

• The General Assembly, Having considered further the situation in Palestine ... 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." -UN General Assembly Resolution 194 (11 December 1948)
• United Nations General Assembly Resolution 3236 which "reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return".

• Resolution 242 from the UN affirms the necessity for "achieving a just settlement of the refugee problem."

• Supporters of the Palestinian right of return maintain that "the right of return for the 1948 Palestinian refugees still exists according to international law. It exists despite the language of the Oslo agreements, insufficient as they are in this regard, and despite the position of the current Israeli government. Palestinian refugees should be free to seek their right to repatriation, regardless of what the PLO acquiesces to, so long as UN Resolution 194 remains in force".

• No one shall be arbitrarily deprived of the right to enter his own country. -Article 12, International Covenant on Civil and Political Rights (23 March 1976).

According to Akram although the status of Palestinian nationals/citizens after the creation of the State of Israel has been much debated, established principles of state succession, human rights and humanitarian law confirm that the denationalization of Palestinians was illegal and that they retain the right to return to their places of origin.

The author states that denationalization of Palestinians was illegal, because when denationalization is based on race or ethnic origin, it is a violation of the general principles of nondiscrimination in customary international law, as well as of Articles 1 and 16 of the ICCPR, 999 UNTS 173, 19 December 1966, and Article 5.d.ii of the CERD, 660 UNTS 221, 7 March 1966. According to Akram, humanitarian law is breached because its principles prohibit transferring civilian populations under the control of an occupier and require return of those expelled. The four Geneva Conventions of 1949, particularly the Fourth Geneva Convention, have explicit provisions affirming the right of return to persons forced from their homes by hostilities. For example the "Geneva Convention for the Protection of Civilian Persons in Time of War (Geneva IV) of 1949," 75 UNTS 31, 12 August 1949.

Akram states that since 1948, the principles of the internationally binding right of return have been strengthened by their inclusion in numerous treaties, many of which bind Israel as a signatory. The right of return is expressly recognized in most international human rights instruments, including, Article 13.2 of the Universal Declaration of Human Rights (1948); Article 12.4 of the ICCPR; Article 5.d.ii of the CERD, 7 March 1966; Article VIII of the American Declaration of the Rights of Man, Organization of American States (OAS), Res. XXX, OAS Official Records, OEA ser. L/w/I.4 (1965), Article 22.5 of the American Convention on Human Rights, 1144 UNTS 123, 22 November 1969; Article 12.2 of the African Charter on Human and Peoples' Rights, 1981, 21 ILM 59, 1982; and Article 3.2 of Protocol 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221, 1950.

Akram claims that after 1969, the UN General Assembly, partly in response to new Arab and PLO priorities, shifted its perspective to acknowledge the Palestinians as a people having rights under the UN charter (see, for example, the first paragraph of UNGA Res. 2535B of 10 December 1969, UN GAOR, 24th Sess., Supp. No. 30 at 25, UN Doc. A/8730 (1970). The author considers that recognition of the Palestinians' juridical status has been affirmed by all subsequent UN resolutions on the subject (see, for example, UNGA Res. 2672C, UN GAOR, 25th Sess., Supp. No. 28 at 36, UN Doc. A/8028; UNGA Res. 3210, UN GAOR, 24th Sess., Supp. No. 30 at 25, UN Doc. A/8730, 1970; UNGA Res. 3236, UN GAOR, 29th Sess., Supp. No. 31 at 4, UN Doc. A/9631).

Many Palestinians argue that they have an inherent right of return to land which they or their ancestors had owned or resided in previous to the establishment of the state of Israel, and that they must therefore be given full Israeli citizenship under the terms of any future peace agreement. They question the legality of Israeli control over these lands, and point out the necessity of said lands for their proper livelihood. UN General Assembly Resolution 194 supports this argument, and resolved that Israel should permit "refugees wishing to return to their homes and live at peace with their neighbors" to do so. Therefore, some have made the case that Israel is bound under international law to accept a full Palestinian right of return.

On March 15, 2000, a group of 100 prominent Palestinians from around the world expressed their opinion that the right of return is individual, rather than collective, and that it cannot therefore be reduced or forfeited by any representation on behalf of the Palestinians in any agreement or treaty. They argued that the right to property "cannot be extinguished by new sovereignty or occupation and does not have a statute of limitation," and asserted that "it is according to this principle that the European Jews claimed successfully the restitution of their lost property in World War II." Their declaration partly rested on the assertion that, on certain occasions, Palestinians were expelled from their homes in Israel. The declaration placed the number of towns and villages in which this occurred at 531.

Some also regard as a massive injustice the fact that Jews are allowed to immigrate to Israel under Israel's Law of Return, even if their immediate ancestors have not lived in the area in recent years, while people who grew up in the area and whose immediate ancestors had lived there for generations are forbidden from returning. -

• The Israeli Law of Return grants citizenship to any Jew from anywhere in the world and is viewed by some as discrimination towards non-Jews and especially to Palestinians that cannot apply for such citizenship nor return to the territory from which they were displaced or left.

The Global Policy Forum asserts its support for a Palestinian Right of Return on the grounds of international customs and law:

It is a generally recognized principle of international law that when sovereignty ... over an area changes hands, there is a concurrent transfer of responsibility for the population of that territory. Therefore it cannot be argued that Palestinians ... no longer had any rights with regard to the country in which they had lived simply because of a change in the nature of the ... government in that territory. Moreover, where expulsion or prevention from return results in ... statelessness, Article 15 of the Declaration, which stipulates that "veryone has the right to a nationality," becomes a further relevant protection of the right of return.

Some libertarians have argued for the Palestinian right of return largely from a private property rights perspective. In "Property Rights and the 'Right of Return'" professor Richard Ebeling writes: "If a settlement is reached between the Israelis and the Palestinians, justice would suggest that all legitimate property should be returned to its rightful owners and that residence by those owners on their property should be once again permitted." Attorney Stephen P. Halbrook in "The Alienation of a Homeland: How Palestine Became Israel" writes: “Palestinian Arabs have the rights to return to their homes and estates taken over by Israelis, to receive just compensation for loss of life and property, and to exercise national self-determination.” In "War Guilt in the Middle East" Murray Rothbard details Israel's "aggression against Middle East Arabs," confiscatory policies and its "refusal to let these refugees return and reclaim the property taken from them."

Palestinian and international authors have justified the right of return of the Palestinian refugees on several grounds:

• Several authors included in the broader New Historians assert that the Palestinian refugees were chased out or expelled by the actions of the Jewish militant groups Haganah, Lehi and Irgun.

A report from the military intelligence SHAI of the Haganah entitled "The emigration of Palestinian Arabs in the period 1/12/1947-1/6/1948", dated 30 June 1948 affirms that up to 1 June 1948:

"At least 55% of the total of the exodus was caused by our (Haganah/IDF) operations." To this figure, the report’s compilers add the operations of the Irgun and Lehi, which "directly (caused) some 15%... of the emigration". A further 2% was attributed to explicit expulsion orders issued by Israeli troops, and 1% to their psychological warfare. This leads to a figure of 73% for departures caused directly by the Israelis. In addition, the report attributes 22% of the departures to "fears" and "a crisis of confidence" affecting the Palestinian population. As for Arab calls for flight, these were reckoned to be significant in only 5% of cases...

• The traditional Israeli point of view arguing that Arab leaders encouraged Palestinian Arabs to flee has also been disputed by the New Historians, which instead have shown evidence indicating Arab leaders' will for the Palestinian Arab population to stay put. Historians such as Benny Morris, Erskine Childers, and Walid Khalidi state that no evidence of widespread evacuation orders exists, and that Arab leaders in fact instructed the Palestinian Arabs to stay put. According to Morris, whatever the reasons driving many into flight, temporary evacuation under local orders, contagious panic, fear of Jewish arms, or direct expulsion manu militari, the 700,000 odd Palestinians who did become refugees acquired that status as a result of compulsory displacement or expulsion, since they were not permitted by Israel to return. In any case, even if the 1948 exodus had not been caused by Israel, the claimed right of return is not contingent on Israeli responsibility for the displacement of refugees.