Why Palestinians have a right to return home

A thorough examination of the legal rights of all those displaced by the
creation of the state of Israel in 1948.

There are approximatley 6 million Palestinians who live
outside the pre-1967 borders
[EPA]

 

Mark LeVine asked three leading scholars of the “refugee problem” – Karma
Nabulsi (lecturer in international relations, Oxford University), Susan Akram
(Boston University Law School and founder of the Asylum and Human Rights Clinic
at Greater Boston Legal Services) and Ingrid Jaradat Gassner (Director of BADIL,
Resource Centre for Palestinian Residency and Refugee Rights) – to address some
of the key arguments surrounding the right of return. Some of the answers are
quite detailed and technical, but given the importance of this debate, we have
not edited them, so as to offer the most complete information possible on this
issue.

ML: Can you explain at its base what “right
of return” means? Is is merely a political concept or is it an accepted legal
concept as well? Is there one definition accepted by all Palestinians or is the
term contested within Palestinian society?

Everyone has the right to leave any
country, including his own, and to return to his
country.

– Article 13(b)
UDHR

KN: The right of return is a universal right that is binding
under international law, enjoyed by every people regardless of where they come
from. The idea of universal rights is an ancient one, but one of its first
international expressions is found in the Universal Declaration of Human Rights
(UDHR), which was proclaimed by the United Nations in 1948 “as a common standard
of achievement for all peoples and all nations”. One of the core rights set out
in the UDHR is the right of return. Article 13(b) of the UDHR states: “Everyone
has the right to leave any country, including his own, and to return to his
country.” Palestinian refugees are entitled to this binding universal right, in
the same way that all other refugees are, whether they come from Bosnia, Rwanda,
South Africa or anywhere else.

In spite of ill-founded – and quite
frankly racist – arguments concerned with denying this universal right to them,
the United Nations has frequently insisted on its particular applicability to
Palestinian refugees, who constitute the world’s largest refugee population. For
instance, General Assembly (UNGA) Resolution 2535, passed in 1969, recognises
“that the problem of Palestine Arab refugees has arisen from the denial of their
inalienable rights under the Charter of the United Nations and the Universal
Declaration of Human Rights”. In the same vein, UNGA resolution 3236 reaffirms
“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.”

UNGA Resolution 194

What is particular to the Palestinian case is the exceptional frequency with
which the right of return was insisted upon, time and again, by the United
Nations and the international community. UNGA Resolution 194 clearly 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 responsible”. Israel’s admission as a member of the UN was made
conditional on its acceptance and implementation of resolutions including UN
Resolution 194; this demonstrates that without question, the UN and the
international community saw Israel as fully responsible for the complete
implementation of this right. This right was further reaffirmed by the UNGA on
more than 135 occasions, clearly reflecting the consistent will of the
international community on this matter.

The majority of the Palestinian people
were forcibly displaced and uprooted from their homes and lands in
1948
.”

– Karma
Nabulsi

Of course, as well as being a universal right that
is clearly applicable to Palestinian refugees on an individual basis, the right
of return is conceptualised and understood by most contemporary international
jurists as a collective right. The most recent expression of this can be found
in Professor Guy Goodwin Gill’s recent opinion piece and further note of August and September 2011,
on the issue of refugees’ representation at the UN. As one of the world’s
leading international lawyer for refugee rights, he emphasised the commonly
understood legal position that the Palestinians’ inalienable right of self
determination and their right of return are both collective rights.

Broad consensus

Of course, the right of return is also a political and moral concept holding
enormous importance for the Palestinian people. There is broad consensus that
the right of return, along with the right of self-determination, is the
foundation of the 63-year-old struggle of the Palestinian people. The majority
of the Palestinian people were forcibly displaced and uprooted from their homes
and lands in 1948 and modern Palestinian politics begins with the establishment
of popular movements, parties, and associations concerned with claiming and
struggling for the right of return. Dozens of these groupings, voluntarily
founded and supported by thousands of refugees, had the term Al-Awda
[“return”] in their name. The foundation document of every major
Palestinian party, regardless of its ideology – ranging from Fatah’s Bayan
Harakatuna
(1958) and the Declaration of the Foundation of the PFLP (1967)
to the Hamas Charter (1988) – enshrines return as its first and foremost
principle. Above all, the PLO’s Palestine National Covenant, the basis of all
Palestinian law, defines the Palestinian people’s struggle as striving for the
following objectives: “to retrieve its homeland, liberate and return to it and
exercise the right to self-determination in it…” (Article 26).

The
principle of return goes well beyond politics and extends to the realm of
culture. The Palestinian artistic canon – comprising countless works, from the
novels of Ghassan Kanafani to the paintings of Ismail Shamout – created and
shaped what is commonly known as Thaqafat al-Awda [the “culture of
return”]. In this cultural realm, as with the political one, the right of return
is understood as return to the original homes, lands, cities and villages found
in the entirety of historic, mandate Palestine.

The national Palestinian consensus on this
matter cannot be doubted.

– Karma
Nabulsi

Finally, Palestinians throughout the world have
responded to the perceived threat to the right of return posed by the Oslo
process by founding hundreds of civic associations concerned with defending this
right wherever Palestinian refugees now live across the world, as well as active
legal committees and resource centres, such as Badil. The unwavering
commitment of refugees to this simple right has been illustrated time and again,
most comprehensively in the Civitas Register of 2006– which engaged the mobilisation of
thousands of Palestinian refugees in 26 countries, all reaffirming their
unwavering commitment to this right. In short, the national Palestinian
consensus on this matter cannot be doubted.

Contextualising

ML: Can you put the right of return into the context
of the expected UN vote to recognise Palestine as a
state?

KN: Palestinian legal advisors,
associations, and movements have highlighted various concerns pertaining to the
right of return that arise out of the September initiative at the UN as it is
currently formulated. In particular, they have asserted the need for maintaining
the PLO’s status as the sole legitimate representative of the Palestinian people
at the UN, and have warned of the dangers of replacing it with the state of
Palestine as its representative in the seat. The legal aspects of these concerns
have been discussed in detail in a significant opinion by Professor Guy Goodwin-Gill. One of the world’s
foremost authorities on refugee law, this issues have been further clarified by
him in a subsequent brief.

The right of return per se
is not threatened by the current initiative. It is, as highlighted earlier,
an inalienable universal right enshrined in international law and held fast to
by the Palestinian people. The concern is that changing the representative at
the UN from the PLO to the State of Palestine would adversely affect the ability
of Palestinian representatives at the UN to claim and advocate that right, and
that all Palestinians [should] have their representation at the UN. The PLO is
the national representative of the Palestinian people as a whole, representing
those inside and outside the 1967 occupied Palestinian territories. Being
confined to the 1967 boundaries, the State of Palestine (which is yet to attain
actual sovereignty on the ground), cannot claim to represent the refugees,
unlike the PLO.

Since the Oslo process began, the PLO has
been consistently undermined
.”

– Karma
Nabulsi

This is not a question
of names nor of titles. Indeed, the designation “Palestine” is currently used by our representatives at the UN. In
its resolution 43/177, the UNGA acknowledged “the proclamation of the
State of Palestine by the Palestine National Council on 15 November 1988” and it
decided that, “effective as of 15 December 1988, the designation ‘Palestine’
should be used in place of the designation ‘Palestine Liberation Organisation’
in the United Nations system, without prejudice to the observer status and
functions of the Palestine Liberation Organisation within the United Nations
system…” Significantly, this wording ensured that the status of the PLO as the
sole legitimate representative of the Palestinian people was preserved and
reaffirmed by the UN. This formulation can be preserved by the leadership,
whether or not it chooses to seek an upgrade to our representative status at the
UN.

In any case, recent events, including the September
initiative, have raised the vital question of representation and democracy.
Since the Oslo process began, the PLO has been consistently undermined, and
political fragmentation has been imposed upon the Palestinian people through the
establishment of the Palestinian Authority (PA). In theory and on paper, the
Palestinian Authority is a subsidiary body of the PLO – and the West Bank and
Gaza’s Legislative Council is incorporated into the Palestinian National Council
(PNC) so there is one legislative body for all Palestinians, and all are equal
politically under the law. In practice however, the PA is emerging as a parallel
structure which excludes the refugees who constitute the majority of the
Palestinian people. It is essential that this parallel structure not take the
PLO seat at the UN, as the Palestinian refugees would be politically
disenfranchised and legally and institutionally disempowered from making their
claims to their rights at the only place that matters, the United
Nations.

The PLO and the PNC

Furthermore, it is essential that the PLO and the PNC recover their
legitimate role in Palestinian politics. Article 7(a) of the Fundamental Law of
the PLO states: “The Palestine National Council is the highest authority of the
Palestinian Liberation Organisation, and it is the body that draws the policy of
the PLO and its plans and programs.” Moreover, Article 5 of the Fundamental Law
states that the PNC is to be directly elected by the Palestinian people. The
electoral system, issued on 17 July 1965, states: “Every Palestinian has the
right to vote in PNC elections if he/she is 18 years old, if his/her name has
been recorded in the final electoral registers, if he/she is of sound mind, and
has not been convicted of a crime against national honour.”

In line with
these fundamental laws of the Palestinian people, there has been broad Palestinian mobilisation in recent months, and especially in
the wake of the Arab Spring and in response to the September initiative , to reclaim and democratise the PLO and the PNC . In particular, there is a growing movement
for holding direct elections to the Palestine National Council, which is the
highest Palestinian legislative body, and which represents all Palestinians,
whether they are refugees or not. The PNC is the body that creates the national
strategies, platforms and policies of the Palestinian people, which the PLO
executive committee should implement. Only a rejuvenated, democratically elected
PNC can lay the foundation for effective representation of Palestinian rights,
including the right of return.

A young demonstrator bears
the Arabic numerals ‘194’ on his forehead, referring both to Palestine becoming
the 194th UN member and UNGA resolution
194 [EPA]

 

 

ML: When Palestinians demand that Israelis recognise
the right of return it is not always clear whether what is being demanded of
Israel is that it merely “recognise” that Palestinians have this right, without
committing to actually letting hundreds of thousands – or millions – of
Palestinians move into Israel, or whether Palestinians are demanding the actual
implementation of this right? Is there agreement among Palestinians on this
issue and if not, where are the issues?


KN
: Palestinians do not simply demand
the recognition of their right to return, but also its implementation, its
exercise, and its translation into reality. This is not merely a moral
theoretical stance, but a lived and concrete one, agreed upon by both the
Palestinian people and the many host countries in the Arab world which they
currently live, including Jordan, Syria, and Lebanon and the Gulf. In accordance
with international law, all refugees must be allowed to return. Whether they
choose to exercise that right or not is a matter for each individual refugee to
decide for themselves.

ML: If the broad consensus
is to demand an implementation of the right, is there a general understanding of
which and how many Palestinians would be expected to move within Israel’s 1967
border? Which groups would be prioritised?

IJG:
The right to return is a right held by all Palestinians who were forced to leave
their homes and properties, as well as their descendants. Two groups of
Palestinians would exercise their right of return in what is today Israel: the
so-called 1948 refugees who live outside Israel’s pre-June 1967 borders
(approximately 6 million persons today), and Palestinians who have become
internally displaced persons (IDP) since 1948 (approximately 300,000 persons
today).

There is no understanding of how many Palestinian refugees and
IDPs would actually decide to return to their homes and properties in Israel,
because such understanding would require that these refugees and IDPs are
offered an opportunity to make a free choice about whether or not they want to
return, based on detailed information about the conditions of return, including
the procedure for reclaiming their property and available support, and other
options available for them. No such opportunity has ever been offered to
Palestinian refugees or IDPs since 1948.

The question of whether certain
groups would be prioritised during return is part of the numerous technical
matters that could be agreed upon by the PLO and Israel in conjunction with the
international agencies responsible, with the aim of ensuring a smooth and
sustainable process of return and absorption.

ML:
Would Palestinian returnees who became Israeli citizens also have Palestinian
citizenship?

IJG: In a scenario where the right
of return is implemented, all 1948 Palestinian refugees who decide exercise
their right to return are entitled to Israeli citizenship. The question whether
they should also be offered Palestinian citizenship is outside of the scope of
the right to return. It is a sovereign matter of the state of Palestine, and its
practical legal implications for Palestinians who opt for such dual citizenship
would be subject to bilateral diplomatic agreements with
Israel.

SA: Although it is true that citizenship is an
internal matter for the Palestinian state, it does have ramifications for
Palestinian refugees, Palestinians in the diaspora, and those who are Israeli
citizens. There are many options for defining who is entitled to citizenship,
each with its own set of ramifications. The main criteria for determining
nationality are set out in the Nottebohm (Guatemala v Lichtenstein) case, which
focuses on a “genuine link” between the individual and the territory. Palestine
would have great latitude under international law in defining the scope of the
link for its nationals, and what the criteria would be for obtaining or claiming
citizenship.

Defining nationals

Consider some of the ramifications, however, of the state defining its
“nationals” in one of the two main ways that states grant citizenship: by
jus sanguinis, blood relationship, or by jus soli, birth on
the territory. As to the first, Palestine might define as its nationals anyone
whose parent, grandparent or great-grandparent was born on the territory of
historic Palestine, or whose ethnic origin was Palestinian during any (defined)
period. If these were the criteria, without more, the risk is that states in
which Palestinians fitting that criteria reside could determine that they are
Palestinian citizens, remove whatever temporary status they have in that state,
and deport them to the Palestinian territory. In the worst-case scenario, if
Palestinians who are citizens of other states are subject to laws disallowing
dual citizenship, or disallowing dual citizenship with states that have a
conscription law, they could also be deprived of their second-state citizenship
and removed to Palestine. As a matter of international law, this would be legal,
as no individual has a “right” to more than one citizenship.

The citizenship/nationality question also
has a significant bearing on the refugee issue.

– Susan
Akbar

Consider some of the ramifications of the state defining its “nationals” as
including those born in the territory of Palestine. Under international law, a
successor state (or a new state) must grant citizenship to all habitual
residents of the territory, and it cannot arbitrarily withhold citizenship or
denationalise any segment of the population habitually residing on the territory
(“arbitrary” is defined on the basis of race, sex, ethnicity or religion). If
Palestine were to be consistent with international law, it may be required to
confer citizenship on Israeli settlers, if they are considered “habitual
residents of the territory” – this, however, is highly ambiguous when settlers
already have Israeli citizenship, and the uncertainty of whether prolonged
occupation and settler implantation can “ripen” into habitual
residence.

The citizenship/nationality question also has a significant
bearing on the refugee issue, as I will discuss
further.

ML: Let’s look at some of the key Israeli
objections to the right of return. First, Israelis argue that there is in fact
no “right” of return because: 1) UN General Assembly Resolution 194 is
non-binding since it’s only a GA and not a Security Council Resolution, and 2),
the language of the resolution itself merely states that Palestinians “should
be” allowed to return, rather than what they argue is the more forcible and
legally binding “shall be” allowed to return. Indeed, the phrase “right of
return” was, according to the documentary record, removed from an earlier draft
of 194 – precisely because the GA would not pass a resolution with that
language. In trying to counteract this claim, an article by Salman Abu Sitta
argues that UNGAR 194 “has been affirmed by the international community 135
times in the period 1948-2000. There is nothing like it in UN history. This
universal consensus elevates the weight of this resolution from a ‘recommendation‘ to an expression of the determined will of the
international community”. But this language doesn’t actually challenge the
argument that it’s non-binding. “Determined will” is not the same thing as
international law, is it?

IJG: Israeli arguments
of the above kind are flawed mainly because the right of return is not some
“special right” claimed by Palestinians, but rather a universally recognised
human right of all persons, irrespective of the reason why they have left their
country. The right of return is not created by this or that UN resolution, but
enshrined in numerous bodies of international law, including customary and
treaty law. For refugees, who are persons who left their country involuntarily,
this right is so widely respected and recognised as key to resolving refugee
situations, that it is hardly ever questioned. Israeli efforts to argue that
Palestinians are different have, therefore, no basis in international law. The
language of UN General Assembly Resolution 194 and the more than 100 UN
resolutions which affirm the right to return of Palestinian refugees, including
UN Security Council Resolution 237 of 1967 which affirms this right for the 1967
Palestinian refugees, must be understood in this context. The real problem is
the lack of political will of powerful UN member states to enforce Israel’s
respect of the right of return of Palestinians. Israel has used this kind of
flawed argument in order to deflect debate about its own legal responsibility
towards the Palestinian refugees.

SA: Argument one
misconstrues the significance of General Assembly versus Security Council
resolutions. The binding nature of any resolution from the UN depends, not on
whether it is issued by the GA or the SC, but whether it rests on existing
international law. The difference between GA and SC resolutions is a matter of
the way powers are allocated within the UN organs. Only the SC can “enforce” a
resolution through the use of armed intervention – the GA has no such power.
That has nothing to do with the binding nature of international law, however,
and if a GA resolution rests on binding principles of law, then whether those
are enforced or not through the UN is a political, not a legal, issue.

Customary law

Palestinian refugees have an absolute
right to return to their original places of origin and obtain full
restitution.

– Susan
Akbar

Resolution 194 incorporated what was already
customary international law in 1948, and has become an even stronger set of
principles through widespread state practice to the present. Paragraph 11 of
UNGA resolution 194 means that Palestinian refugees must be permitted to return
to their precise homes and lands if they so choose. This is obligatory because
only the return to one’s place of origin is required of a state, since no state
is obliged to absorb or resettle a refugee in a place not of his origin. That
was law in 1948, and remains the state of the law today. Paragraph 11’s
requirements that Palestinian refugees have an absolute right to return to their
original places of origin and obtain full restitution and compensation for
properties taken or destroyed, were all binding legal principles at the time the
resolution was drafted, and were meant to preclude political solutions that did
not meet these legally required criteria for Palestinian refugees.

It is
curious that states such as the United States now challenge the ‘legality’ of
resolution 194. When the original draft of paragraph 11 was submitted to the
General Assembly, the United States delegate confirmed that no new rights were
being created. He commented that 194, paragraph 11, “endorsed a generally
recognised principle and provided a means for implementing that
principle”.

Quite aside from 194 being a specific source of the right of
return for Palestinian refugees, the right of return in general represents a
complex interrelated set of rights grounded in distinct bodies of treaty and
customary international law. The right of return is found in the major treaties
and rules protecting individuals and groups in times of armed conflict under
humanitarian law and the laws of war; it is found in treaties and principles
governing issues of nationality and state succession; and it is found in the
core human rights conventions governing state obligations in both war and
peacetime, particularly in refugee provisions.

State practice

Since 1948, the evidence is overwhelming that the right of return for
refugees – as an aspect of nationality, humanitarian, human rights and,
specifically, refugee law – has become one of the strongest of existing state
obligations. The widespread incorporation of the principle in international
treaties and regional instruments has been reinforced by incorporation in peace
agreements and state practice in virtually every part of the globe. State
practice reflects this in the millions of refugees that have returned to their
countries and homes of origin on the basis of bilateral and tripartite
agreements involving both states and specialised agencies such the Office of the
UN High Commissioner for Refugees, without states questioning their right to do
so.

As for Argument two, this is inaccurate. Resolution 194 requires that
refugees be allowed to return immediately as a matter of right, and without
preconditioning such return on a general peace agreement or other criteria.
Earlier proposed language intended to weaken, rather than strengthen, the notion
of absolute right to return, was rejected by the drafters. This is apparent in
the drafting history, in which amendments to make return contingent, for
example, on the signing of a comprehensive peace agreement, were
rejected.

The UN Secretariat, answering the question: “What is the
meaning of the term ‘at the earliest practicable date?’ reviewed the record of
UN proceedings. The proceedings reflect that the UK draft resolution included
the word “possible” rather than “practicable”. The Guatemalan delegation
proposed the phrase “after the proclamation of peace between the contending
parties in Palestine, including the Arab States…” In opposing this amendment,
the UK delegate and the US delegates stated that proclamation of peace should
not be prerequisites to the refugees’ right to return, as their return must be
immediate and obligatory. As the US delegate stated: “these unfortunate people
should not be made pawns in the negotiations for a final settlement”. The word,
“practicable” was substituted for “possible”, and the Guatemalan amendment
watering down the absolute and immediate right to return was rejected by 37
votes to 7. The UN Secretariat concluded that there could be no doubt that once
the Armistice agreements were signed, the conditions of stability required the
return of the refugees.

Population
transfer has happened before, but almost all such forced migrations have been
regarded as illegal [EPA]

ML: Another objection is that the international
humanitarian law, such as the fourth Geneva Convention or the Universal
Declaration of Human Rights, which recognise the right of people fleeing war to
return to their homes after cessation of hostilities, were enacted after 1948
and referred to “international conflict” rather than intercommunal/civil war,
and therefore do not cover Palestinian refugees from that war. Can a Palestinian
be considered “denationalised” or possessing the right to return to “his own
country” when he or she was not living in a recognised state in
1948?

IJG: Palestinian refugees can be considered
to be “denationalised” and possessing the right to return to their “own country”
because they held the citizenship of Palestine under the British Mandate. They
were citizens of their country, and their country was to be led to independence
by the British, in line with the mandate of the League of Nations. Israel is the
“successor state” in part of British Mandate Palestine, and under international
law governing state succession, Israel is obliged to permit return and grant
citizenship to all Palestinians who had lived there previously and to respect
their right to their property.

‘Israel’s ethnic
cleansing’

Moreover, although drafting and enacting the fouth Geneva Convention and the
Universal Declaration of Human Rights coincided with Israel’s ethnic cleansing
of Palestine, a strong legal argument can be made for the applicability of their
provisions, due to Israel’s continuing policy of forcible displacement of
Palestinians, and because all wars in Palestine since 1948, including Israel’s
occupation since 1967, are recognised as international armed conflicts by the
United Nations. The drafting history of the Universal Declaration of Human
Rights, moreover, indicates that the language on “the right to leave and to
return to one’s country” was adopted because the drafters were conscious of the
coinciding tragedy in Palestine.

SA: These are actually
separate arguments: 1) whether the Fourth Geneva Convention (GC IV) applies to
Israel’s occupation of Palestinian territory (on several grounds); 2) whether
Palestinians were ever “nationals” of “Palestine” for purposes of their
citizenship/nationality status for application of the right of return. As to the
first, Israel and a few Israeli academics have argued that GCIV is not
applicable to the West Bank, East Jerusalem or Gaza because these were not
territories under the sovereignty of any state, hence when they were captured by
Israel, they were not captured from a recognised sovereign. They thus did not
fall under GC IV provisions and should not be considered occupied
territories.

This view has never been accepted by legal consensus and was
firmly rejected by the International Court of Justice in its 2004 Advisory
Opinion on the Wall. The High Contracting Parties to GC IV in December 2001
reaffirmed their position on this, stating that they “have always affirmed the
… applicability of the Fourth Geneva Convention to the territories occupied
since 1967 by the state of Israel, including East Jerusalem”.

The law of state succession required that
all persons who are habitual residents of a territory be granted
citizenship/nationality in a successor state.

– Susan
Akbar

As to the second, this relates to the interpretation of two provisions, Art.
13(2) of the UDHR and Art. 12(4) of the International Convention on Civil and
Political Rights (ICCPR), which states that everyone has the right to return to
“his own country”. But the drafting history of these provisions shows that the
phrase “one’s country” was chosen precisely to include those persons who are not
nationals of that country de jure but fit the established criteria of
the “genuine link” that, by that time, was the criteria for determining
“nationality” under the Nottebohm case. The phrase “the country of which one is
a national” was specifically rejected in favour of the phrase “one’s own
country” for that very reason.

As noted above, the law of state
succession required that all persons who are habitual residents of a territory
be granted citizenship/nationality in a successor state, and that such successor
state could not legally “denationalise” such habitual residents on arbitrary
grounds. These principles have been incorporated into treaties to which Israel
is a party, including the ICCPR and the Convention on the Elimination of Racial
Discrimination (CERD).

ML: Israelis also argue,
based on the 1952-67 UN Convention on Refugees, that the internationally
accepted definition of a refugee does not include their descendents – or to
refugees who have taken on another nationality (eg, Jordanian, British, or
Canadian). Is this true?

IJG: The notion that the
1951 Refugee Convention and its 1967 Protocol do not cover the descendants of
refugees has no basis in these instruments and international law in general. In
fact, UNHCR as the responsible agency, treats all descendants of refugees as
refugees, until they have obtained voluntary durable solutions, including
revolutionary repatriation (return), integration in host countries and
resettlement in third countries.

Different refugees

SA: In addition to this, Palestinian refugees have a
different status under international law than other refugees, by reason of their
distinct definitions in the relevant treaties, resolutions and agency mandates.
The first definition is that incorporated into UNGA resolution 194, which
defines the population for whom the UNCCP was given responsibility and the
obligation to find durable solutions. This is the definition incorporated into
the “Palestinian clause” of the Refugee Convention, Article 1D, and which
applies to the global population of Palestinian refugees, no matter where they
were located. This definition is linked to paragraph 11 of resolution 194, which
requires the durable solution of return, restitution and compensation, and
maintains refugee status (regardless of generation) until that solution is
accomplished. This definition is also incorporated into the second definition,
meeting UNRWA’s eligibility guidelines.

UNRWA’s definitions of “refugee”
and “displaced persons”, but with the additional criteria of “need”, that
applies to the approximately 5 million UNRWA-registered refugees. This
needs-based definition is also not generationally linked, but continues as long
as the person remains a 194-defined refugee, who is in need of assistance.
Because of the unique character of Palestinian refugees under international law,
there is no generation-limitation to the
status.

ML: They also argue, variously, that the
right of refugees to return to their homes is an individual right, not a
collective right. Moreover, the example of large scale population exchanges –
Poland and the Soviet Union after World War II, India and Pakistan after
Partition, Greece and Turkey after World War I – point to the international
legitimacy of forcibly transferring people outside a new state, in order to
ensure demographic coherence of that new
state.

SA: As to your first point, in all of the
provisions in which aspects of the right of return are found, no distinction is
made between its applicability to individuals or groups.

As to your
second point, although transfers of populations have taken place historically,
they have been almost universally considered illegal under modern principles of
international law. A concise statement of the state of the law on this issue is
that of the UN Special Rapporteur on the Prevention of Discrimination and
Protection of Minorities: “International law prohibits the transfer of persons,
including the implantation of settlers, as a general principle.”

The
governing principle is that the transfer of populations must be done with the
consent of the population involved – because [these transfers are] subject to
consent, this principle reinforces the prohibition against such transfer. Aside
from the historical-factual question of whether there ever was a “population
exchange”, any prior justification for population exchanges involving coerced
movement of peoples was put to rest by the entry into force of the International
Military Tribunal which established the Nuremburg Tribunal, and the Fourth
Geneva Convention. These established forced movement of populations as a “grave
breach” [of law]. Since then, the International Criminal Court has classified
forced population transfers as a war crime.

(english.aljazeera.net / 23.09.2011)

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