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The Palestinians' Right of Return Point Human Rights Brief Volume 8 | Issue 2 Article 2 2001 Point: The alesP tinians' Right of Return Hussein Ibish Ali Abunimah Follow this and additional works at: http://digitalcommons.wcl.american.edu/hrbrief Part of the Human Rights Law Commons, and the International Law Commons Recommended Citation Ibish, Hussein, and Ali Abunimah. "Point: The aleP stinians' Right of Return." Human Rights Brief 8, no. 2 (2001): 4, 6-7. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Ibish and Abunimah: Point: The Palestinians' Right of Return point/ The Palestinians’ Right of Return The Controversy Over the by Hussein Ibish and Ali Abunimah* Right of Return alestinians are the largest and In 1947, after a wave of Jewish immigration, the United Nations most long-suffering refugee pop- voted to divide Palestine into Arab and Jewish sectors, with Jerusalem Pulation in the world. There are administered as an international enclave. Despite Arab opposition, more than 3.7 million Palestinians reg- istered as refugees by the United the Jews began to build their own state. On May 14, 1948, Israel Nations Relief and Work Agency declared its independence. Shortly thereafter, the War of Indepen- (UNRWA), the UN agency responsi- dence broke out when Egypt, Syria, Jordan, and Lebanon refused to ble for them. During the 1948 war, accept the partition of Palestine. After nearly 15 months of fighting, these people and their descendants Israel emerged victorious and expanded its borders. As a result, an were expelled or fled from their homes in what is now Israel. Their future and estimated 700,000 Palestinians fled to refugee camps in Lebanon, Jor- the status of their right of return has dan, and Egypt. According to the United Nations Relief and Works become one of the most contentious Agency for Palestinian Refugees, Palestinian refugees are persons issues in the effort to find a lasting whose normal place of residence was Palestine between 1946 and peace between Palestinians and Israelis. 1948, who lost their homes and means of livelihood as a result of the Right of Return in International Law 1948 Arab-Israeli conflict, and who took refuge in Jordan, Lebanon, The right of refugees to return to Syria, the Jordanian ruled West Bank, or the Egyptian-administered their homes is embedded deeply in cus- Gaza Strip. This displacement of refugees is still an issue today, with tomary international law and the most fundamental human rights instruments. the number of registered refugees estimated at 3.7 million. According to prominent legal scholars Mallison and Mallison, “[h]istorically, the right of return was so universally rights with regard to the country in Convention have been terminated.” accepted and practiced that it was not which they had lived simply because of (Convention I, Article 63; Convention deemed necessary to prescribe or cod- a change in the nature of the state or II, Article 62; Convention III, Article ify it in a formal manner.” government in that territory. More- 142; Convention IV, Article 158). The Perhaps the most basic expression of over, where expulsion or prevention underlying assumption of these provi- the right, however, is contained in the from return results in denationaliza- sions, and the numerous prohibitions Universal Declaration of Human Rights tion and statelessness, Article 15 of the in international law against involun- (Declaration), Article 13, which states Declaration, which stipulates that tary repatriation under conditions of that “[e]veryone has the right to leave “[e]veryone has the right to a nation- danger, can only be that of an absolute any country, including his own, and to ality,” becomes a further relevant pro- and universally accepted right of return. return to his country.” It is a generally tection of the right of return. And cer- In 1948, the UN adopted Resolu- recognized principle of international tainly, where a population has been tion 194, which specifically applies the forcibly expelled, as Lex Takkenberg, right of return to the Palestinian the Chief of Field Relief and Social Ser- refugees. Paragraph 11 states “that the The right of refugees to return vices for UNRWA, points out “the right refugees wishing to return to their of return derives from the illegality of homes and live at peace with their to their homes is embedded the expulsion itself” because “those neighbors should be permitted to do so deeply in customary expelled clearly have the right to at the earliest practicable date, and that reverse an illegal act, that is to return compensation should be paid for the international law and the most to their homeland.” property of those choosing not to fundamental human rights The four Geneva Conventions (Con- return and for loss of or damage to instruments. ventions) assume the right of return property which, under principles of in numerous articles and provisions. international law or in equity, should be For example, all four Conventions made good by the Governments or provide that any formal denunciation authorities responsible.” The UN has law that when sovereignty or political of one state by another for violating reaffirmed this resolution practically control over an area changes hands, provisions of the Conventions “shall every year since its adoption with near there is a concurrent transfer of respon- not take effect until peace has been unanimity. sibility for the population of that terri- concluded, and until after operations It is sometimes argued by opponents tory. Therefore it cannot be argued connected with the release and repa- of the right of return that because Res- that Palestinians, who were expelled triation,” and in the case of Convention olution 194 is a General Assembly res- or fled from what became Israel during IV, Article 158, re-establishment “of a period of conflict, no longer had any the persons protected by the present continued on page 6 4 Published by Digital Commons @ American University Washington College of Law, 2001 1 Human Rights Brief, Vol. 8, Iss. 2 [2001], Art. 2 Right of Return, continued from page 4 out, “[i]t should be noted that the UN olution, rather than a Security Council Mediator recom- resolution, it is “non-binding.” The gen- mended that the right eral principle of when and if a Gen- to return be affirmed eral Assembly resolution can be “bind- rather than be estab- ing” need not be debated to invalidate lished. Although the this argument. Israel’s admittance to issue is not explicitly Photo courtesy of UNRWA the UN as a member state, through addressed in the report, Resolution 273, was conditioned on Count Bernadotte was acceptance and implementation of Res- apparently of the opin- olution 194. Therefore, Israel is bound, ion that the right of as a condition of membership in the refugees to return UN, to implement 194 and to facilitate already formed part of the return of the Palestinian refugees. existing international Despite this commitment, Israel has law.” consistently denied the right of return. In the late 1940s and early 1950s, Israel The Right of Return in passed laws forbidding the return of Other Conflicts refugees and expropriating their prop- These assumptions— erty. Israel also routinely killed in cold that the right of UNRWA emergency food distribution center in Beach blood Palestinians who attempted to refugees to return is an refugee camp, Gaza Strip, 2001. cross its borders in order to return to established and univer- their homes. sally accepted principle Shea told the press that “[t]he most Resolution 194 is particularly note- of international law and that this right important thing is that at the end of the worthy in that it provides for the return is linked to homes and property, not day… that those people should be able of the refugees not simply to “their just to a country or homeland—formed to exercise their right to return….” country” or homeland, but to “their the basis for much of the discourse of United Nations humanitarian offi- homes.” The former UN Mediator for the United States, NATO, and the UN cials agreed with NATO political and during the Kosovo conflict in 1999. military leaders that the right of return Indeed, this conflict appears to have was a fundamental aspect of interna- been a massive reaffirmation of the tional human rights law as demon- Obviously, if the property right of return as a general principle of strated by the crisis in Kosovo. On April international law, and even a valid casus 19, 1999, Dennis McNamara, Director rights of Jewish Europeans sur- belli for “humanitarian intervention” in of Protection at the Office of the United vive after more than 56 years the internal affairs of sovereign states, Nations High Commissioner for following expropriation, those as well as being inextricably linked to Refugees (UNHCR) said of the Kosovo specific homes and property rights. conflict, “[h]uman rights were at the of Palestinian refugees must During the Kosovo crisis, on April heart of the exodus— the right to asy- similarly survive after 53 years 6, 1999, former U.S. president Clinton lum was critical to saving thousands of or less. Moreover, if such declared that “[w]e cannot say, well, lives, and the right to return would ‘we’ll just take all these folks and forget have to be honored for any lasting solu- property rights survive after so about their rights to go home.’ The tion to be achieved.” many years and pass from one refugees belong in their own homes on The principle of the right of return their own land.
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