LEGAL ASPECTS OF THE PALESTINIAN REFUGEE QUESTION (JCPA-JERUSALEM CENTER FOR PUBLIC AFFAIRS) Ruth Lapidoth Jerusalem Letter / Viewpoints No. 485 09/01/02)
JCPA-Jerusalem Center Public Affairs
JCPA-Jerusalem Center Public Affairs Articles-Index-Top
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
The plight of the refugees raises at least three legal questions:
1. Who should be considered to be a refugee?
2. Do the Palestinian refugees have a right to return to Israel?
3. 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
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
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
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
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
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
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
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
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,
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
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
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
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-
4. UN Treaty Series, vol. 189, no. 2545 (1954), pp. 152-156, article
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
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
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,
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-
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