Palestinians Right of Return Under International Law
The following article is excerpted from an essay by Wadie Said which appeared in Palestine Chronicle, 6/2/02.
The principle of a "right of return" for the Palestinians who became refugees in 1948 and 1967 is premised on the notion that they should be allowed to return to their areas of origin, even if such areas are currently within the state of Israel.
This is among the most controversial issues in the ongoing Arab-Israeli conflict. Israel continues to refuse to repatriate the Palestinian refugees, claiming that they fled of their own accord in 1948 and that it is under no obligation to take them back.
UN Resolution 194: The clearest and most direct piece of international law that affirms the right of the Palestinian refugees to be repatriated is Article 11 of UN General Assembly Resolution 194, ratified on 11 December 1948. Vis-a-vis the situation in Palestine, the General Assembly declared that "the refugees wishing to return to their homes and live in 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 the loss of or damage to property which, under the principles of international law or in equity, should be made good by the Governments or authorities responsible." The resolution also created the Conciliation Commission for Palestine, which it instructed to "facilitate" the aforementioned purpose. This resolution has been affirmed by the General Assembly over 40 times (most recently in General Assembly Resolution 45/73 of 11 December 1990), and represents the strongest claim under international law for the inalienable rights of repatriation available to the Palestinian refugees. Its language is clear and exacting, yet its goal remains as far from realization as the day the resolution was enacted.
The Universal Declaration of Human Rights: Articulating several principles upheld by Resolution 194 and applying them on a universal scale, the Declaration states in Article 13(2) that "[e]veryone has the right to leave any country, including his own, and return to his own country." In a similar vein, Article 17(2) declares that "[n]o one shall be arbitrarily deprived of his property." These provisions would seem to support the contention that the Palestinian refugees from the 1948 hostilities should be allowed to repatriate. Although, strictly speaking, the Declaration is not legally binding upon the member states of the UN, it effectively articulates the standards through which stateless Palestinian refugees can make a plausible case for their own repatriation.
Fourth Geneva Convention: Article 49 of the Fourth Geneva Convention of 1949 provides more legal authority for the Palestinian refugees' case. Israel has signed and ratified the Convention, and therefore its provisions can be construed as applicable, even retroactively, to the events of 1947-48. Article 49 states that "[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying power or to that of any other country, occupied or not, are prohibited, regardless of their motive." Since Israel has actually carried out such mass population transfers of Palestinian refugees by means of force and psychological warfare, it stands in violation of the Fourth Geneva Convention.