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THE RIGHT OF RETURN
OF THE PALESTINIAN PEOPLE
PRELIMINARY NOTE
This study has been prepared for the Committee on the Exercise of the Inalienable Rights of the Palestinian People, in pursuance of General Assembly resolution 32/40B of 2 December 1977, by the Special Unit on Palestinian Rights in keeping with guidance provided by the Committee.
United Nations
New York, 1978
CONTENTS
Chapter I. Introduction
Chapter II. The Right of Return as a Principle of International Law
Chapter III. The Diaspora of the Palestinian People
chapter IV. The Establishment of the Right of Return of the Palestinian People
Chapter V. Israel and the Right of Return
Chapter VI. The Conciliation Commission for Palestine
Chapter VII. The United Nations and the Right of Return
References and Notes
Annexes
I. INTRODUCTION
The right of a person to return to his home in his native country traditionally has been included among an individual’s fundamental rights. Only in the case of criminals was its denial regarded as a justifiable punishment, exile or banishment being regarded as one of the more severe penalties. Jurists were more concerned with securing the right of a person to leave his country freely, without unjustified interference from his ruler or government. The right of the individual to return home was taken as a corollary to the basic right of freedom of movement once this was established.
In cases where persons had been forced to leave their country because of force majeure, such as war, the right of return could not be questioned. So natural was this principle considered, so axiomatic a corollary to the fundamental considered self-evident.
The right of return normally would be a personal, an individual right. Only when large groups might have been displaced from their homes would it assume a collective dimension. But it is rare that the right of return should be invoked on a national scale, that there should be a situation where the greater part of an entire nation should be uprooted from its land, be exiled and then be denied the right to return. In our times a notable case in this dimension is that of the Palestinian people, forced to flee their ancestral land by reason of military and political action and then to find the right of return denied them on political and legal grounds.
In the case of the Palestinian people, the individual or personal right of return assumes a special significance for without its restoration, the exercise of the collective or national right of self-determination, itself guaranteed by a variety of international instruments, becomes impossible. Unable to exercise the fundamental right of self-determination during the period of a the mandate, although recognized in the Covenant of the League of nations as a provisionally “independent” nation, the Palestinian people have struggled to regain this right since 1947, when the United Nations became involved in the Palestine issue and recommended the partition of Palestine into two states – one Palestinian Arab and the other Jewish. While Israel declared independence on 14 May 1948, on the basis of the Untied nations partition resolution, war and politics (both Israeli and Arab) prevented the Palestinian Arab state envisaged in the resolution in the resolution from coming into existence. Instead, the first great exodus of Palestinians fleeing from their homeland took place in 1948, and the second great wave followed in the 1967 Middle East War. From then on the majority of the Palestinian people have been in exile, unable to return to their country, despite the right of those wishing to return to their homes and live at peace with their neighbours in Palestine having been endorsed repeatedly by the General Assembly since 1948.
For two decades from 1953 to 1973, the Palestinian issue was treated essentially as a “refugee problem”. Eventually, in 1974 the United Nations General Assembly explicitly recognized that the Palestinian people were entitled to self-determination in accordance with the United Nations Charter, and to reaffirm their inalienable right of return in this context. From then on the Palestine question was no longer only a refugee problem, but a crucial political issue acknowledged by the Assembly as a lying at the heart of the Middle East problem. There is increasing recognition in world opinion that any settlement of the Middle East dispute will not be possible without the restoration to the Palestinian people of their inherent and inalienable rights.
The study examines the right of return of the Palestinian people.
II. THE RIGHT OF RETURN AS A PRINCIPLE OF INTERNATIONAL LAW
The force of the call of one’s native country was known in the classical age. Euripides wrote, in Media:
“O country and home,
Never, never may I be without you,
Living the hopeless life,
Hard to pass through and painful,
Most pitiable of all.
Let death first lay me low and death
Free me from this daylight.
There is no sorrow above
the loss of a native land.” 1/
The right of return in legal theory
Classical political and legal theory was more deeply concerned with the right of a person to leave his country freely and without hindrance; the right of return was taken as a natural corollary that would follow the securing of the freedom of travel. Thus, in the dialogues, Plato has Socrates in a discourse on liberty, declaring:
“…we further proclaim to any Athenian by the liberty which we allow him that…he may go where he pleases and take his goods with him. Anyone…may go where he likes, retaining his property…”2/
The right of return is implicit in these words, particularly in the assertion of the right of retention of property
Fransisco de Vitoria, the Dominican political theorist of the 16th century, considered exile a punishment of extreme severity:
“Exile is included among the capital penalties”. 3/
One of the first recorded legal codifications of the natural right to return is found in the Magna Carta of 1215 A.D., which guaranteed the freedom:
“…to go out of our Kingdom and to return, safely and securely, by land or by water…”.
The same implicit recognition of the right of return can be discerned in political treaties and legal instruments asserting the freedom of movement as part of resurgence of liberal political thought in the 18th century. The Swiss jurist de Vattel states in “Le Droit des Gens” that forced exile without cause entitles the exile to refuge elsewhere since he is denied his natural right to return home:
“An exile is a person driven from his place of abode, or forced to leave it, without the stain of infamy… exile (does) not take away from a man his human personality, nor consequently his right to live somewhere…”4/
After the French Revolution, the constitution of 1791 guaranteed:
“…the freedom of everyone to go, to stay or to leave, without being halted or arrested unless in accordance with procedures established by the Constitution”.
The acknowledgment of the right of return is clearly implicit in these words.
Modern international jurists in the main have examined the question of the right of return on the traditional level of the individual. It usually has been treated in the context of denationalization or exile, and the resultant effect on the individual – that of statelessness and its adverse repercussions in a world consisting of nation-states-that make exigent the possession of nationality. Accordingly, during the first half of this century, international efforts in this field focussed on the establishment of a legal principle that would prohibit denationalization when it resulted in statelessness.
The establishment of the United Nations, at a time when the Second World War’s repercussions produced vast numbers of refugees, led to efforts to establish the principle of repatriation. At first, the Economic and Social Council, in a resolution on 21 June 1946 proposing the establishment of an International Refugee Organization, included the following in the preamble of the Organization’s Charter:
“…as regards displaced persons, the main task to be performed is to encourage and assist in every way possible their early return to their country of origin”. 5/
The Universal Declaration of Human Rights
A major advance by the United Nations in establishing international legal norms was in the Universal Declaration of Human Rights of 1948, which links the right of every person to leave and return to this country as inherent elements in the freedom of movement. Article 13 reads:
“1. Everyone has a right to freedom of movement and residence without the borders of each State.
“2. Everyone has the right to leave any country, including his own and to return to his country”.6/
The moral force of the Declaration in international relations is unchallenged. However, the question of the status of the Declaration as one of the sources of international law, as codifying some of “the general principles of law recognized by civilized nations” (in terms of Article 38 of the Statute of the International Court of Justice) is still a live question, with protagonists on both sides.
In the Advisory Opinion given by the International Court of Justice in 1971 on the issue of Namibia, the view was expressed that the Declaration’s codification of the fundamental right of equality, from which all other human rights flow, gives it the force of customary international law. The Court’s Vice-President stated:
“Although the affirmations of the Declaration are not binding qua international convention within the meaning of Article 38, paragraph 1 (a), of the Statute of the Court, they can bind states on the basis of custom through a general practice accepted as law, in the words of Article 36, paragraph 1 (b), of the Statute. One right which must certainly be considered a preexisting binding customary norm which the Universal Declaration of Human Rights codified, is the right to equality, which by common consent has ever since the remotest times been deemed inherent in human nature.
“It is not by mere chance that in Article 1 of the Universal Declaration of the Rights of Man there stands, so worded, this primordial principle or axiom: ‘All human beings are born free and equal in dignity and rights'”.
“From this first principle flow most rights and freedoms, the ground was thus prepared for the legislative and constitutional process which began with the first declarations or bills of rights in America and Europe, continued with the constitutions of the nineteenth century, and culminated in politive international law in the San Francisco, Bogota, and Addis Ababa charters, and in the Universal Declaration of Human Rights which has been confirmed by numerous resolutions of the United Nations, in particular the above-mentioned declarations adopted by the General Assembly in resolutions 1514 (XV), 2625 (XXV) and 2627 (XXV). The Court in its turn has now confirmed it.” 7/
The International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights of 1966 derives from the Declaration, and its status as an international treaty leaves little doubt as to its force. A study by the International Commission of Jurists supports the view that both the Declaration and the Covenant form sources of international law:
“The statue of the Universal Declaration is unique in international law, It is the product of a unanimous rote (but with 5 abstentions) of the General Assembly of the United Nations, and resolutions or declarations of the General Assembly, unanimous or not, of themselves have only the status of recommendations. However the Universal Declaration, over and above its status as a declaration of the General Assembly, has obtained a status similar to general principles of international law, by the repeated references to it in the practice of States. Whilst there remains some ambiguity about the legal status of the Declaration, the International Covenant on Civil and Political Rights is in the form of an international convention and will therefore be binding on the States which have become parties to it. This is on the level of principles; the possibility of enforcement depends on whether the ratifying State has made a declaration under Article 41 permitting complaints to be filed against it before a Committee set up under the Covenant by other State parties, and/or has ratified the Optional Protocol which would permit aggrieved individuals to file complaints against it..,.” 8/
The Covenant has been in force since 23 March 1976, and clearly establishes the principle of the right of return, in Article 12:
“2. Everyone shall be free to leave any country, including his own.
…
“[4]. No one shall be arbitrarily deprived of the right to enter his own
country. … ” 9/
The Human Commission on Human Rights
In 1973, the Economic and Social Council, which had first asserted the principle of the right of return in 1946, approved draft principles on the right of everyone to leave any country and to return to one’s own country. The Council also decided that the Commission on Human Rights should continue to retain on its agenda this important clement of human rights. The draft principles read as follows:
“(a) Everyone is entitled, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, marriage or other status, to return to his country.
“(b) No one shall be arbitrarily deprived of his nationality or forced to renounce his nationality as a means of divesting him of the right to return to his country.
“(c) No one shall be arbitrarily deprived of the right to enter his own country.
“(d) No one shall be denied the right to return to his own country on the ground that he has no passport or other travel document.” 10/
The juridical opinion, and the international instruments cited above show clearly that the natural and inherent right of return is an acknowledged norm of international law, as one of “the general principles of law recognized by civilized nations”.
In addition to establishing the right of return as a general principle of international law, however, the comity of nations, acting through the United Nations has specifically established the right of return of the Palestinian people. Before this is examined, it is necessary to trace the events by which the Palestinians were exiled from their country.
III. THE DIASPORA OF THE PALESTINIAN PEOPLE
The Historical Background
The course of historical events that created the “Palestine problem” where the majority of the indigenous people are in exile, denied the right of return to their homes, needs only a summary survey to place the issue in its politico-historical context.*
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*Note: Other studies in this series trace the origins and evolution of the Palestine problem.
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At the end of the First World War, Palestine was among the several former Ottoman Arab territories which were made mandated territories by the League of Nations. The relevant provisions of the League’s Covenant (Article 22) referred to these territories as “certain communities formerly belonging to the Turkish Empire (which) have reached a stage of development where their existence as independent nations can be provisionally recognized subject of the rendering of administrative assistance and advice by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.”
All but one of these mandated territories (categorized as Class “A” Mandates) whose independence was provisionally recognized became fully independent states, as anticipated. The exception was Palestine where, instead of being limited to “the rendering of administrative assistance and advice” the Mandate had as a primary aim the implementation of the “Balfour Declaration” issued by the British Government in 1917, conveying that Government’s support for “the establishment in Palestine of a national home for the Jewish people”. This commitment was included in the mandate for Palestine, formally allotted in 1922 to Great Britain by the League of Nations, without having ascertained the wishes of the Palestinian people, as required by the Covenant.
During the twenty-five years of the Palestine Mandate, from 1922 to 1947, large-scale Jewish immigration from abroad, mainly from Eastern Europe took place, the numbers swelling in the 1930’s with the notorious Nazi persecution of Jewry. At this time, Palestine’s Jewish population, composed principally of immigrants, rose from under 10 per cent in 1917 to over 30 per cent in 1947. Palestinian demands for independence and resistance to Jewish immigration led to a rebellion in 1937, followed by continuing terrorism and violence from both sides during and immediately after the Second World War. Great Britain, as the Mandatory Power, tried to implement various formulas to bring independence to a land ravaged by violence. A partition scheme, a formula for provincial autonomy, a unified independent Palestine were all considered and abandoned, and in 1947, Great Britain in frustration turned the problem over to the United Nations.
The Partition of Palestine and the First Palestinian Exodus
After convening a special session and sending a special committee (United Nations Special Committee on Palestine – UNSCOP) to Palestine to study the problem and to present proposals, the UN General Assembly recommended the termination of the British Mandate and the partitioning of Palestine into two independent states – one Palestinian Arab and one Jewish. The territory of Palestine was divided into eight parts. Three were to form a “Jewish state” that became Israel, three were to form an “Arab state”, the seventh, Jaffa was to form an Arab enclave in the Jewish state, and the eighth, Jerusalem, was to be under a special international regime. The Arab states rejected this resolu-tion.
As the Mandate came to an end, the imminence of partition led to the esca-lation of the prevailing violence into full-scale war, involving the neighbouring Arab states. As the Mandate came to an end in May IP^S, Israel declared itself an independent state, and expanded its control beyond its assigned borders to occupy territory allotted to the Arab state by the partition resolution. Jaffa was occupied as were such towns as Acre, Haifa, Tiberias, as well as part of the international zone of Jerusalem.
Arab states bordering Palestine, rejecting the establishment of Israel as an illegal act, had sent troops into Palestine and, at the end of the hostilities, controlled the remaining territories of Palestine, Jordan occupying the West Bank, and Egypt controlling the Gaza strip. The “Arab State” of the partition resolution did not come into being.
A great exodus of Palestinians from their homes, both from Israeli territory as well as the territories occupied by Israel, resulted from these hostilities.
The United Nations Mediator
The UN appointed Count Bemadotte as Mediator for Palestine “to promote a peaceful adjustment to the future situation in Palestine”. His report described the nature and extent of the flight of refugees form the war:
“As a result of the hostilities in Palestine, an alarming number of persons have been displaced from their homes. Arabs form the vast majority of the refugees in Palestine and the neighbouring countries. The future of these Arab refugees is one of the questions under dispute, the solution of which presents very great difficulties…
“The majority of these refugees have come from territory which, under the Assembly resolution of 29 November, was to be included in the Jewish State. The exodus of Palestinian Arabs resulted from panic created by fighting in their communities, by rumours concerning real or alleged acts of terrorism, or expulsion…”1/
On the number of Palestinians affected, the Mediator’s report states:
“As a result of the conflict in Palestine, almost the whole of the Arab population fled or was expelled from the area under Jewish occupation. Of a population of somewhat more than 400,000 Arabs prior to the outbreak of hostilities, the number presently estimated as remaining in Jewish controlled territory is approximately 50,000″. 2/
This was a preliminary estimate. A UN Economic Survey Mission the following year reported far higher figures, estimating that 726,000 Palestinians had fled as refugees. 3/ Smaller numbers were displaced from the demilitarized zones in the following few years. The preliminary estimate by the Mediator for Jewish refugees in the 1948 war was 7,000, revised by the Economic Survey Mission to 17.000. 4/
The Palestinian Diaspora
By June 1967, before war again flared in the Middle East, the Palestinian Arab population numbered about 2.7 million. Of these a million were in exile, mostly in neighbouring Arab countries, particularly in Jordan. Another million lived in the “West Bank”, the portion of Palestine under Jordanian control. 400,000 lived in the Gaza strip under Egyptian control. The remaining 300,000 had remained in Israel and Israeli controlled territory. 5/
In the 1967 war, Israel occupied the entire territory of historical Palestine (and in addition areas in neighbouring Arab states). There was a second great exodus of Palestinian refugees – almost half a million. By 1970, according to expert demographic estimates, of about 3 million Palestinians, less than half lived within the borders of Palestine – about 400,000 as Israeli citizens, and about a million as inhabitants of the “occupied territories” of the West Bank and Gaza. Of the remaining 1,6 million, about 800,000 were in Jordan, 600,000 in Syria and Lebanon, and the remaining 200,000 scattered in other countries. 6/ This is the state of the Palestinian diaspora.
For almost two decades the Palestinian problem was treated essentially as one of “refugees” until its recognition by the U.N. General Assembly as a political issue concerning the existence of a Palestinian national identity with a right to self-determination. But, as already pointed out, this fundamental right has little meaning without the recognition and securing of the right of return.
IV. THE ESTABLISHMENT OF THE RIGHT OF RETURN OF THE PALESTINIAN PEOPLE
The Partition Resolution
The partition resolution. Resolution l8l (II) of 29 November 1947, which called for the establishment of an Arab state and a Jewish state in Palestine, did not refer to any right of return. No reference was necessary, since the rationale of the partition plan’s division of Palestinian territory had been to minimize the displacement of population. However, the violence that prevailed and continued as the Mandate terminated led to the exodus of Palestinian Arabs fleeing the ravages of war.
However, the partition resolution had included provisions for securing the rights of the minorities that, under the original plan, would have resulted from partition. It had been anticipated that there would be 10,000 Jews in the Arab State 1/, but the expansion of Israeli-occupied territory had obviated this situation. In the Jewish State, it had been estimated there would be 498,000 Jews and 497,000 Arabs 2/, but the great majority of the letter either “fled or was expelled”. 3/ Since, of the two states envisaged in the partition plan, Israel was the only one to come into existence, it bore the obligation of discharging the responsibilities toward its minority population as prescribed by the partition resolution. Their exodus did not automatically absolve the state of Israel of these responsibilities, as affirmed in reports of the UN Mediator. In fact, as also affirmed by the Mediator, an additional responsibility devolved upon Israel – to enable the refugees to exercise the right of return.
Before examining the establishment of the right of return of the Palestinians, it would be relevant to glance at the responsibilities that the partition resolution had assigned to the Government of Israel in respect of the Palestinian Arabs who were expected to form such a large minority in Israel. These stipulations were to be continued in a declaration, to be made to the United Nations, which would be “recognized as fundamental laws of the state and no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action prevail over them”. These stipulations, inter alia, were:
“Freedom of conscience and the free exercise of all forms of worship, subject only to the maintenance of public order and morals, shall be ensured to all.
“No discrimination of any kind shall be made between the inhabitants on the ground of race, religion, language or sex.
“All persons within the jurisdiction of the State shall be entitled to equal protection of the laws.
“No expropriation of land owned by an Arab in the Jewish State or by a Jew in the Arab State shall be allowed except for public purposes. In all cases of expropriation full compensation as fixed by the Supreme Court shall be paid previous to dispossession.
“Palestinian citizens residing in Palestine outside the City of Jerusalem, as well as Arabs and Jews who, not holding Palestinian citizenship, reside in Palestine outside the City of Jerusalem shall, upon the recognition of independence, become citizens of the State in which they are resident and enjoy full civil and political rights…
The UN Mediator’s Recommendations
During his mediation mission in Palestine, Count Bernadotte made it one of his first priorities to try to obtain from Israel the recognition of the right of return of the Palestinians. In his report, he declared:
“From the start, I held the firm view that, taking into consideration all the circumstances, the right of these refugees to return to their homes at the earliest practical date should be established. With this consideration in mind, following an exploratory conversation on the matter with the Minister of Foreign Affairs of the Provisional Government of Israel on 26 July 1948, in Tel-Aviv, I submitted to him by cable from Rhodes on the same day the following proposal :
“The resolution of the Security Council of 15 July urges the parties to continue their conversations with the Mediator in a spirit of conciliation and mutual concession, in order that all points under dispute may be settled peacefully… one of the points under dispute is the return to their homes in Jewish-controlled area of Palestine of Arab refugees who fled because of war conditions… “
“I recognize the basis for the misgivings which the Provisional Government might have with regard to the return of large numbers of these refugees during the war. These misgivings derive from security as well as economic and political considerations…”
“For humanitarian reasons and because I consider the principle sound and the danger to Jewish security slight, I make the following proposals :
‘ (1) That, without prejudice to the question of the ultimate right of all Arab refugees to return to their homes in Jewish-controlled Palestine if they desire, the principle be accepted that, from among those who may desire to do so, a limited number, to be determined in consultation with the Mediator… be permitted to return to their homes as from 15 August (1948).
‘ (2) That, among those who may wish to return, differentiation may be made between men of military age and all others in recognition of security considerations.
‘ (3) That the Mediator undertake to enlist the aid of appropriate international organizations and agencies in the resettlement and economic and social rehabilitation of the returning refugees”.
Israel refused to consider these recommendations. The report notes:
“These proposals were rejected by the Provisional Government of Israel in a reply received on 1 August. In this reply, the Provisional Government of Israel pointed out that it was aware of the serious plight of Arab refugees, but that action taken to deal with the problem on purely humanitarian grounds in disregard of its military, political and economic aspects might even aggravate this problem. In the circumstances of the truce, security considerations alone make it impossible for the Provisional Government to agree to the Mediator’s proposal. The problem would only be considerate by the Provisional Government when the Arab States are ready to conclude a peace treaty with the State of Israel.” 4/
(Full text of Israeli reply at Annex I)
The Mediator, however, insisted that it was imperative that the right of return of the Palestinian refugees be established by the United Nations:
“… notwithstanding the views expressed by the Provisional Government of Israel, it was my firm view that the right of the refugees to return to their homes at the earliest practicable date should be affirmed.
“It is not yet known what the policy of the Provisional Government of Israel with regard to the return of Arab refugees will be when the final terms of settlement are reached. It is, however, undeniable that no settlement can be just and complete if recognition is not accorded to the right of the Arab refugee to return of the home from which he has been dislodged by the hazards and strategy of the armed conflict between Arabs and Jews in Palestine.
“The majority of these refugees have come from territory which, under the Assembly resolution of 29 November, was to be included in the Jewish State. The exodus of Palestinian refugees resulted from panic created by fighting in their communities, by rumours concerning real or alleged acts of terrorism, or expulsion.
“It would be an offense against the principles of elemental Justice if these innocent victims of the conflict were denied the right to return to their homes while Jewish immigrants flow into Palestine, and indeed, at least offer the threat of permanent replacement of the Arab refugees who have been rooted in the land for centuries.
“There have been numerous reports from reliable sources of large-scale looting, pillaging and plundering, and of instances of destruction of villages without apparent military necessity. The liability of the Provisional Government of Israel to restore private property to its Arab owners and to indemnify those owners for property wantonly destroyed is clear, irrespective of any indemnities which the Provisional Government may claim from the Arab States.
“It must not be supposed, however, that the establishment of the right of refugees to return to their former homes provides a solution of the problem. The vast majority of the refugees may no longer have homes to return to and their resettlement in the State of Israel presents an economic and social problem of special complexity. Whether the refugees are resettled in the State of Israel or in one or other of the Arab States, a major question to be faced is that of placing them in an environment in which they can find employment and the means of livelihood. But in any case their unconditional right to make a free choice should be fully respected.” 5/
The Mediator repeated this stand in his recommendations to the UN:
“The right of innocent people, uprooted from their homes by the present terror and ravages of war, to return to their hones, should be affirmed and made effective, with assurance of adequate compensation for the property of those who may choose not to return…
“The right of the Arab refugees to return to their homes in Jewish-controlled territory at the earliest possible date should be affirmed by the United Nations, and their repatriation, resettlement and economic and social rehabilitation, and payment of adequate compensation for the property of those choosing not to return, should be supervised and assisted by the United Nations conciliation commission…” 6/
Count Bernadotte’s mediation mission was ended by his assassination by Israeli terrorists. The UN General Assembly, however, accepted his recommendations to establish formally the right of return of the Palestinians.
UN establishes right of return of Palestinians – Resolution 194 (III)
Based on a draft resolution presented by Great Britain, the General Assembly on 11 December 1948 passed resolution 194 (III) which, in paragraph 11, categorically declared:
“… that the refugees wishing to return to their homes and live at peace with their nieghbours 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.” Annex II – (Text of Resolution 194 (III) at Annex II).
This resolution also established the Conciliation Commission for Palestine, instructing it “to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation”.
The element of compensation for property abandoned by those who chose not to return, or for loss or damage to property of those returning, formed an essential component of the right of return. The Conciliation Commission for Palestine (CCP) gave the following interpretation of this provision of paragraph 11 of Resolution 194 (III).
“The General Assembly had laid down the principle of the right of the refugees to exercise a free choice between returning to their homes and being compensated for the loss of or damage to their property on the one hand, or, on the other, of not returning to their homes and being adequately compensated for the value of the property abandoned by them. A corollary principle emerged from the latter alternative, namely, that the refugees choosing not to return to their homes would be entitled to resettlement elsewhere, as indicated by the Mediator in his report. These principles applied equally to Arab refugees who had fled from Israel-controlled territory and to Jewish refugees who had left Arab-occupied territory in the course of the fighting in Palestine. It followed, in the Commission’s opinion, that the question of compensation was an integral part of the solution of the refugee problem based on the alternatives of repatriation or resettlement as envisaged by the General Assembly. The payment of indemnities to repatriated refugees for loss of or damage to their property was a question of considerable legal complication which the Commission considered unnecessary to enter into in detail until after repatriation became a practical prospect”. 7/
This basic resolution established the right of return three decades ago, and the General Assembly has reiterated it in virtually every session since then (list of relevant revolutions at Annex III). In every resolution reiterating the right of return, the Assembly has declared that it:
“… Notes with deep regret that repatriation or compensation of the refugees as provided for in paragraph 11 of General Assembly Resolution 194 (III) has not been effected…”
It is important to note that the right of return was established with the sole qualification that they “live at peace with their neighbours”.
In establishing the UN Relief and Works Agency for the Palestine Refugees (UNRWA) in 1949, and in prolonging its mandate, the General Assembly consistently specified that the financing and activities of UNRWA were without prejudice to the right of return established by Resolution 194 (III).
Following the 1967 War new UN resolutions called for the return of the Palestinian refugees. In 1967, Security Council resolutions, considered binding on all member states, required Israel to undertake obligations to cooperate in the return of the second wave of Palestinian refugees to their homes. Resolution 237 of 14 June 1967, endorsed by the General Assembly, in its Resolution 2252 (BS-V) of 4 July 1967, declared:
“… that essential and inalienable human rights should be respected even during the vicissitudes of war…
“Calls upon the Government of Israel… to facilitate the return of those inhabitants who have fled the areas since the outbreak of hostilities”.
Resolution 242 of 11 November 1967 called “for achieving a just settlement of the refugee problem.”
Thus all member states of the U.N., in particular Israel which is in occupation of the territories from which Palestinians have been exiled, are under obligation to facilitate the return of Palestinians to their homes.
The UN however, so far has been unable to secure Israel’s acknowledgment of the right of return, and therefore, the Palestinian people have not been able to exercise this fundamental right.
V. ISRAEL AND THE RIGHT OF RETURN
One of the major requirements of the partition resolution (as already mentioned) was that each of the two states to be established make a declaration to the UN undertaking to safeguard the fundamental rights of minorities. Since the Palestinian Arab state had not come into being, only Israel could make this declaration, and had committed itself to do so, informing the United Nations on the day it declared its independence:
“The state of Israel will promote development of the country for the benefit of all inhabitants, will be based on precepts of liberty. Justice and peace, will uphold full racial and political equality of all citizens without distinction of race, creed or sex, and will dedicate itself to principles of the United Nations Charter. The state of Israel will be ready to cooperate with organs and representatives of United Nations in implementation of the resolution of the Assembly of November 29, 1947 … accordingly I … declare on behalf of provisional government of state of Israel its readiness to sign the declaration and undertaking provided for in the resolution of the Assembly…”
Israel thus committed itself in principle to accepting the existence of minorities within its borders and to safeguarding their fundamental rights. The larger part of this minority was soon displaced, but it is evident that Israel, as a state created out of Palestinian territory in occupation of the lands from which Palestinians had been displaced, and lying at the centre of the Palestine issue, was under a direct obligation to respect the principle of the right of return established by the United Nations through the various resolutions cited, and to cooperate in its implementation.
The commitment of Israel to accept the will of the United Nations might be regarded as assuming a special significance arising out of the circumstances leading to the creation of Israel. During the discussion of Israel’s application for UN membership, the Israeli representative stated:
“Israel was the only state in the world which had sprung into existence at the summons of the international community”.1/
Israel’s Admission to U.N. Membership
During these discussions the Ad Hoc Political Committee tried to obtain explicit and specific assurances and clarifications form Israel concerning the implementation of the partition resolution, the return of the Palestinians and the status of Jerusalem. The replies of the Israeli representative in respect of the right of return of the refugees gave some indication of Israel’s intended policies. It was recalled that the Israeli Prime Minister had informed the Conciliation Commission for Palestine that he:
“… did not exclude the possibility of acceptance for repatriation of a limited number of Arab refugees, but (he) made it clear that the Government of Israel considered that the real solution of the major part of the refugee question lay in the resettlement of refugees in Arab States”. 2/
Asked whether Israel accepted or rejected paragraph 11 of Resolution 194 (III) providing for the return of displaced Palestinians, the Israeli representative replied:
“No, my Government does not reject that or any other paragraph of the General Assembly resolution of 11 December… the return of Arab refugees is conditioned by two over-riding considerations: first, the existence of peaceful conditions, for otherwise the whole criterion of living in peace with their neighbours would not arise; and secondly, practicability, at the earliest practicable date.
“In Mr. Ben-Gurion’s view… this passage made the possibility of the return of the refugees to their homes contingent, so to speak, on the establishment of peace;… the Government of Israel considered the refugee question as one of those which should be examined and solved during the general negotiations for the establishment of peace in Palestine”. 3/
The Israeli representative also stated:
“The Government of Israel was earnestly anxious to contribute to the solution of that problem although the problem was not of its making. That anxiety proceeded from moral considerations and from Israel’s vital interest in stable conditions throughout the Middle East. Any rehabilitation of Arab refugees in any part of the Middle East, whether in Israel or in the neighbouring countries, involved intricate tasks of resettlement. The two most widely advocated principles were (a) resettlement of the refugees in the places from which they had fled, thus creating a large minority problem and a possible menace in internal peace and stability and also placing masses of Arabs under the rule of a Government which, while committed to an enlightened minority policy, was not akin to those Arabs in language, culture, religion or social or economic institutions; (b) the resettlement of the refugees in areas where they would live under a Government akin to them in spirit and tradition and in which their smooth integration would be immediately possible with no resultant friction. A study of the economic, irrigation and other potentialities of the under-populated and under-developed areas of the Arab States revealed greater possibilities for a stable solution by the latter method than by resettlement in Israel. Therefore, the Government of Israel contended that resettlement in neighbouring areas should be considered as the main principle of solution …”4/
Attempts to obtain a clearer commitment to the principle of the right of return of the Palestinians to their homes were inconclusive Members of the Committee then tried to obtain clarifications on Israel’s position on the question of a possible claim of domestic Jurisdiction on the issue of the return of the Palestinians to their homes.
The following exchange ensued:
Question
“Could the representative of Israel tell us whether, if Israel were admitted to membership in the United Nations, it would agree to cooperate subsequently with the General Assembly in settling the question of Jerusalem and the refugee problem or whether, on the contrary, it would invoke Article 2, paragraph 7 of the Charter which deals with the domestic Jurisdiction of States?”
Answer
“… as a general theory … during the past year we arrived, in connexion with resolutions of the General Assembly, at the view that we must be very careful not to make an extreme application of Article 2, paragraph 7, if such an application would deprive Assembly decisions of all compelling moral force. The admission of Israel to the United Nations would obviously result in making applicable to it Article 10 of the Charter, and the General Assembly would then be able to make recommendations directly to the Government of Israel which would, I think, attribute to those resolutions extremely wide validity…”
Question
“I take it that the representative of Israel means that it would not be legitimate for a Government to refer to Article 2, paragraph 7, with regard to the question of refugees”.
Answer
“Lawyers would no doubt see that it is perfectly legitimate, but, whether it is legitimate or not, I am suggesting that it would be better not to do it. There are already enough obstacles in the way of solving this problem without there being any need to invoke legal rights to make the solution even more complicated. We feel that the difficulties which confront us in trying to find a solution are not legal but practical, and that we should not increase the practical complications by adducing legal Justifications.
“As far as I know, the Government of Israel, in frankly putting forward its difficulties, simply invoked the domestic Jurisdiction clause and therefore claimed the right to settle the problem as it wished. We claim no such moral right whether we are or are not legally entitled to wash our hands of it, and we carefully explained yesterday that we recognize it as a duty to make a contribution – considering it more as a moral than as a legal obligation. Even if our fortuitous legal opinion could be adduced to prove that, Juridically speaking, we are under no compulsion to make any restitution, that would still not affect our sense of moral obligation to contribute as much as possible to a solution of the problem.”5/
The Israeli representative’s statements were apparently considered sufficient assurance that Israel would abide by the UN resolutions on Palestine, including the right of return of the Palestinians. One member of the Ad Hoc Political Committee observed:
“… The representative of Israel had given an assurance that, if that country were admitted as a Member, such matters as the settlement of frontiers, the Internationalization of Jerusalem and the Arab refugee problem would not be regarded as within its domestic Jurisdiction and protected from intervention under the terms of Article 2, paragraph 7. He noted that those matters were being considered by the Conciliation Commission and that the admission of Israel would not change that situation…” 6/
The General Assembly took note of these assurances in admitting Israel to the United Nations. Its resolution specifically mentioned Resolution 194 (III) which established the right of return and thus linked Israel’s admission to the acceptance of this principle. The relevant paragraphs of [General Assembly]resolution 273 (III) of 11 May 1949 read:
“Noting … the declaration by the State of Israel that it unreservedly accepts the obligations of the United Nations charter and undertakes to honour them from the day when it becomes a Member of the United Nations’.
“Recalling its resolutions of 29 November 1947 (on partition) and 11 December 1948 (on refugees) and taking note of the declarations and explanations made by the representative of the Government of Israel before the Ad Hoc Political Committee in respect of the implementation of the said resolutions,
“The General Assembly …
“Decides to admit Israel to membership in the United Nations”.
In the light of the discussions on the admission of Israel to the UN, and the wording of the resolution, it can be argued that “the admission of Israel was linked with its cooperation in implementing the right of return.
Subsequent to its admission to the UN, however, Israel’s position on the point of the return of the Palestinians appeared to become inflexible. In the course of a statement to the Ad Hoc Political Committee in 1955, the Israeli representative said:
“Above any other consideration, we remind the Committee that Israel is a sovereign State; and in exercise of that sovereignty it must apply its own authority and discretion to the question, who shall and who shall not enter its territory”. 7/
Israeli Legislation and the Right of Return
Israel already had moved to promulgate legislation to determine who could enter and stay in Israel. Neither of the two major laws relevant to this issue conforms to the principle of the right of return established by the UN and creating obligations for Israel.
One of the laws is indeed entitled “The Law of Return”, but enables only Jews to exercise this right. The law enacted in 1950, reads as follows;
“1. Every Jew has the right to come to this country as an oleh.
“2. (a) Aliyah shall be by oleh‘s visa.
(b) An oleh‘s visa shall be granted to every Jew who has expressed his desire to settle in Israel, unless the Minister of Immigration is satisfied that the applicant –
(1) is engaged in an activity directed against the Jewish people;
or
(2) is likely to endanger public health or the security of the State.
“3. (a) A Jew who has come to Israel and subsequent to his arrival has expressed his desire to settle in Israel may, while still in Israel, receive an Oleh’s certificate.
(b) The restrictions specified in section 2 (b) shall apply also to the grant of an oleh‘s certificate, but a person shall not be regarded as endangering public health on account of an illness contracted after his arrival in Israel.
“4. Every Jew who has immigrated into this country before the coming into force of this Law, and every Jew who was born in this country, whether before or after the coming into force of this law, shall be deemed to be a person who has come to this country as an oleh under this Law. 8/
It is evident that Palestinians are completely excluded from the purview of this law. The Israeli Nationality Law also adversely affects the exercise of the right or return by a Palestinian.
Article 1 of the law lays down the criteria for nationality:
“Israel nationality is acquired –
“by return,…
“by residence in Israel,…
“by birth … or
“by naturalization…”
There shall be no Israel nationality save under this Law”.
Nationality by return is restricted to Jews, and specifically excludes cases such as refugees who fled:
“(a) Every oleh under the Law of Return … shall become an Israel national…
“(c) This section does not apply –
(l) to a person having ceased to be an inhabitant of Israel before the coming into force of this Law:”
Similarly, the provisions for nationality by residence do not appear to favour, prima facie, cases of Palestinian Arabs who fled during the wars:
“(a) A person who, immediately before the establishment of the State, was a Palestinian citizen and who does not become an Israel national under (the law of Return) shall become an Israel national with effect from the day of the establishment of the State if –
(1) he was registered on the 4th Adar, 5712 (1st March 1952) as an inhabitant under the Registration of Inhabitants Ordinance 7509-1949; and
(2) he is an inhabitant of Israel on the day of the coming into force of this Law; and
(3) he was in Israel, or in an area which became Israel territory after the establishment of the State, from the day of the establishment of the State to the day of the coming into force of this Law, or entered Israel legally during that period.”
Nationality by birth is an entitlement only for children born to Israeli citizen, and thus does not apply to Palestinian refugees.
Similarly, the provisions for nationality by naturalization appear to make it difficult for Palestinian refugees to qualify:
“(a) A person of full age, not being an Israel national, may obtain Israel nationality by naturalization if –
(1) he is in Israel; and
(2) he has been in Israel for three years out of five years preceding the day of the submission of his application; and
(3) he is entitled to reside in Israel permanently; and
(4) he has settled, or intends to settle, in Israel; and
(5) he has some knowledge of the Hebrew language; and
(6) he has renounced his prior nationality or has proved that he will cease to be a foreign national upon becoming an Israel national”. 9/
Israeli legislation in respect of the property belonging to the Palestinians or other Arabs who were forced to flee also militates against their right of return. The Absentees’ Property Law of 1950 defines an absentee any person who, between 29 November 1947 and 19 May 1948 owned property “in the area of Israel” and who at any time (duration unspecified) during this period:
“(i) was a national or citizen of the Lebanon, Egypt, Syria, Saudi-Arabia, Trans-Jordan, Iraq or the Yemen, or
“(ii) was in one of these countries or in any part of Palestine outside the area of Israel, or
“(iii) was a Palestinian citizen and left his ordinary place of residence in Palestine-
(a) for a place outside Palestine before the 27th Av, 5708 (1st September 1948); or
(b) for a place in Palestine held at the time by forces which sought to prevent the establishment of the State of Israel or which fought against it after its establishment;” 10/
The Law has no provision to exempt a person who may have left and then have returned; this can be done only by the Custodian at his discretion.
Property belonging to such absentees was declared absentee property and vested in the Custodian of Absentee Property “and the status of the Custodian shall be the same as was that of the owner of the property”. The Custodian has the power to sell the property. The rules of evidence to this law state:
“(a) Where the Custodian has certified in writing that a person or body of persons is an absentee, that person or body of persons shall, so long as the contrary has not been proved, be regarded as an absentee.
“(b) Where the Custodian has certified in writing that some property is absentees’ property, that property shall, so long as the contrary has not been proved, be regarded as absentees property.
“(c) A certificate of the Minister of Defense that a place in Palestine was at a particular time held by forces which sought to prevent the establishment of the State of Israel or which fought against it after its establishment shall be conclusive evidence of its contents.
“(d) A copy certified by the Custodian of an entry in his books or official files or of another document in his possession shall, in any action or other legal proceeding, be accepted as prima facie evidence of the correctness of its contents.
“(e) A written confirmation by the Custodian as to matters within the scope of his functions shall, unless the Court has otherwise directed, be accepted in any action or other legal proceeding as prima facie evidence of the facts stated in the confirmation.
“(f) The Custodian and his inspectors, agents and officials are not bound to produce in any action or other legal proceeding any book, file or other document the contents of which can be proved in accordance with this section, and are not bound to testify on matters which can be proved through a confirmation of the Custodian as specified in this section, unless the Court has otherwise directed.
“(g) The Custodian is not to be questioned regarding the source of his information that prompted him to issue a confirmation under this law unless the Court has otherwise directed for a special reason.
“(h) A certificate, a confirmation, a permit or any other document which purports to have been signed, issued, given or delivered by the Minister of Defence, the Minister of Finance or the Custodian shall, so long as the contrary has not been proved, be considered to have been so signed, issued, given or delivered.” 11/
The effect of the combined operation of these laws is that Palestinians who fled find legal obstacles, in addition to the political conditions, in the exercise of their inalienable right of return, a right whose principle is recognized by the Universal Declaration of Human Rights.
VI. THE CONCILIATION COMMISSION FOR PALESTINE
In establishing the right of return to their homes of those Palestinians who chose to return, paragraph 11 of its Resolution 194 (III) of 11 December 1948, the General Assembly had made this right unconditional, except for one proviso:
“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…”
Apart from this stipulation, that the return should be predicated on peaceful relations between Israelis and the Palestinians who elected to return, the Assembly prescribed no constraints on the right of return.
The right of return included, as an integral element, the question of compensation for property abandoned by Palestinian Arabs who, if the choice were given to them, chose not to return, and for property lost or damaged belonging to those who chose to return.
This premise received support in a document published in 1949 by the Keren Kayemeth Leisrael, or Jewish National Fund (JNF), which, during the Mandate period, had been the principal agency for acquiring land for the immigrants:
“Of the entire area of the State of Israel only about 300,000-400,000 dunams – apart from the desolate rocky area of the southern Negev, at present quite unfit for cultivation – are State Domain which the Israel Government took over from the Mandatory regime. The J.N.F. and private Jewish owners possess under two million dumans. Almost all the rest belongs at law to Arab owners, many of whom have left the country. The fate of these Arabs will be settled when the terms of the peace treaties between Israel and her Arab neighbours are finally drawn up. The J.N.F., however, cannot wait until then to obtain the land it requires for its pressing needs. It is therefore, acquiring part of the land abandoned by the Arab owners, through the Government of Israel, the sovereign authority in Israel.
“Whatever the ultimate fate of the Arabs concerned, it is manifest that their legal right to their land and property in Israel, or to the monetary value of then, will not be waived, nor do the Jews wish to ignore them. Legal conquest of territory is a powerful factor in determining the frontiers and the sovereignty of a state. But conquest by force of arms cannot, in law or in ethics, abrogate the rights of the legal owner to his personal property. The J.N.F., therefore, will pay for the lands it takes over, at a fixed and fair price. The Government will receive the money and in due time will make compensation to the Arabs” 1/.
Resolution 194 (III) established the Conciliation Commission for Palestine one of whose assigned duties was to facilitate the return of the Palestine refugees Excerpts from the reports of the Commission, which was particularly active in its first few years, provide an idea of how the principle of the right of return established by the General Assembly fared when efforts were made to give it practical effect.
During negotiations conducted by the Commission in 1949, in Lausanne, an Israeli memorandum stated, inter alia,
“The clock cannot be put back. … the individual return of Arab refugees to their former places of residence is an impossible thing. Not only can the whole Arab economic system not be simply restored because its basis has practically disappeared, but also the physical return of the Arab middle-class such as shopkeepers, tradesmen, free professions, has become a physical and geographical impossibility. Their houses have gone, their jobs have gone. Their previous means of livelihood have vanished with the disintegration of their economic organization. Instead, an entirely different kind of progressive agricultural as well as urban and industrial economy had made its appearance in the same area”. 2/
The Commission’s report in June 1949 stated:
“…The Arab delegations continue to hold the view that the first step must be acceptance by the Government of Israel of the principle set forth in resolution 194 (III) of 11 December 1948 concerning the repatriation of refugees who wish to return to their homes and live at peace with their neighbours. The Commission has not succeeded in achieving the acceptance of this principle by the Government of Israel.
“Israel’s refusal to accept the principle of repatriation is cited by the Arab delegations as the reason for their own reserved and reticent attitude on territorial questions…” 3/
Israel took the position that it was not prepared to negotiate on any point separately and outside the framework of a general settlement. It declared its willingness, however, to meet with the Arab States separately or collectively for the purpose of entering into general peace negotiations with a view to settling all problems outstanding between them and Israel.
In an analysis of the implications of the right of return the Conciliation Commission for Palestine commented:
“It was apparent that in adopting paragraph 11 of resolution 194 (III) the General Assembly had envisaged the settlement of the refugee question as involving simply the passage of the necessary legislation by the Governments concerned to permit the return of refugees to their homes. Compensation for those choosing not to return was also apparently considered a fairly simple operation and one of secondary importance in comparison with the major movement of repatriation. Within this framework, compensation appeared a question of no great urgency which could be settled at leisure. Upon assuming its functions, however, the Conciliation Commission found that the situation envisaged by the Assembly was far from the realities of the problem. A large proportion of the dwellings of Arab refugees had either been demolished, or occupied by new Jewish immigrants and their former sources of economic sustenance were no longer solution of the refugee question based on repatriation, resettlement and compensation would involve not only the passive acquiescence but the active participation of the Governments concerned…
“With regard to the question of compensation, the position adopted by the Government of Israel was…
‘To help finance resettlement projects in neighbouring countries Israel is prepared to pay compensation for land abandoned in Israel by Arabs who have fled. This, again, can only be arranged as part of a general peace settlement. For when peace is negotiated the payment of compensation by Israel for land abandoned by Arabs will not be the only financial item discussed. Israel will claim damages from the aggressor States for losses sustained as the result of their aggression and the crushing burden of war expenditures inflicted upon its population…
‘[The Government of Israel] accepts the principle of compensation for land abandoned and previously cultivated…the proprietary rights of the refugees are recognized by the Government for the purposes of such compensation, but that this recognition does not bind the Government as far as concerns the use or restitution of the lands involved. The Government reserves the right to enact legislation for the more rational use of absentee property and for the purpose of guarding against speculation in such property, of course without prejudice to the payment of compensation or to such limited measure of repatriation as may be agreed upon.'”4/
The Conciliation Commission for Palestine established an Economic Survey Mission, among whose tasks was “to facilitate the repatriation, resettlement and economic and social rehabilitation of refugees and the payment of compensation”. The Chairman of this Mission, after a legal analysis of the compensation issue, made the following recommendations:
“(a) The Israeli Government should be urged to agree to the principle that payment of compensation for abandoned property (both movable and immovable) should be separate from a general peace settlement with the Arab States. In support of this position the following points might be mentioned:
“(i) The principle of compensation for the property of non-returning
refugees has been clearly established by the General Assembly, and has been basically acknowledged by Israel. However, to link the payment of compensation to the problem of reparations would deprive the refugees of all or part of the benefit to which they arc entitled and defeat the purpose of the resolution.
“(ii) The bulk of the refugees from Israeli territory were not citizens of the Arab States at the time of their displacement, and therefore their right to compensation should not be confused with the claims and counter-claims between the contending States and their nationals.
“(iii) The early payment of compensation to non-returning refugees would give them an incentive to choose to resettle outside of Israeli territory, which would conform with the expressed wish of the Israeli Government.” 5/
Israel, however, continued to insist that the return of the Palestinian Arabs, including the question of compensation, could only be considered in the context of negotiations for a general peace settlement.
After another year of negotiations, the Conciliation Commission for Palestine’s report appeared to lean toward the approach that the principle of the right of return should be approached along with other political questions, reporting in October 1950:
“The Arab delegations pointed out that, up to the present, the Government of Israel not only had not accepted that principle but had endeavoured to create a de facto situation which would render the practical application of the principle more difficult or even impossible. In this connexion the Arab delegations mentioned the complete absence of security for the Arabs in areas under Israel control, in violation of guarantees provided for minorities under the partition plan, and the measures taken by the Israel Government to block the bank accounts of the refugees and to liquidate their real and personal property. They requested the Commission to obtain from the Government of Israel a clarification of these matters.
“The Conciliation Commission recognized the validity of the Arab contention contained in point (a) of the foregoing paragraph. The visits paid by members of the Commission to several refugee camps gave them an opportunity to see for themselves the deplorable material and moral situation of the refugees. Moreover, the desperate uncertainty of the future for these unfortunates made it imperative that measures be taken towards a prompt and permanent solution of the question.
“As regards the principle of the return of the refugees, the Commission admitted the validity of the Arab position, but considered it necessary to make certain observations regarding the practical application of this principle. The Commission was of the opinion that even if this principle were to be accepted, it would be necessary to take into account the possibility that not all the refugees would decide to return to their homes. The Commission believed, therefore, that the Arab States should agree in principle to the resettlement of those refugees who did not desire to return to their homes…The Commission was also of the opinion that the refugee problem could not be permanently solved unless other political questions, notably the question of boundaries, were also solved.
“In the Commission’s interview with Mr. Ben Gurion, Prime Minister of Israel…the refugee question was examined in detail. The Commission explained that the Arab States firmly took the view that the refugee question must be considered as the most urgent problem constituting an imperative task of the Commission. They had, however, relinquished their insistence that a settlement of the refugee question must precede the consideration of other outstanding matters. The Commission asked if the Government of Israel accepted the principle established by the General Assembly’s resolution, permitting the return to their homes of those refugees who expressed the desire to do so. The Commission stressed the importance which the acceptance of this principle, and its implementation by such steps as were then possible, would have in creating an atmosphere favourable to the success of the exchanges of views.
“Mr. Ben Gurion, without replying directly to this question, called attention, in particular, to the passage in paragraph 11 of General Assembly resolution 194 (III) which states that refugees who wished to go to their homes should “live at peace with their neighbours”. In Mr. Ben Gurion’s view, this passage made the possibility of a return of the refugees to their homes contingent, so to speak, on the establishment of peace: so long as the Arab States refused to make peace with the State of Israel, it was evident that Israel could not fully rely upon the declaration that Arab refugees might make concerning their intention to live at peace with their neighbours. Mr. Ben Gurion did not exclude the possibility of acceptance for repatriation of a limited number of Arab refugees, but he made it clear that the Government of Israel considered that a real solution of the major part of the refugee question lay in the resettlement of the refugees in Arab States… 6/
The Conciliation Commission for Palestine’s report introduced additional factors in the issue of the right of return:
“The Commission has always been guided by the recommendation made by the General Assembly in resolution 194 (III) that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so. At the same time, the Commission believes that, having the interests of the refugees themselves in mind, attention should also be devoted in the future to the resettlement in the Arab countries of non-returning refugees, to their economic rehabilitation and to the payment of compensation, as also recommended by the above resolution. The Commission considers that the refugees should be afforded every opportunity to realize that the conditions which they would find on returning to their homes would differ greatly from those to which they were accustomed. As has been indicated in its previous report, the Commission believes that the refugees who decide not to return to their homes should receive, and be made aware of the fact that they will receive. Just compensation for the loss of their property, as provided for by General Assembly resolution 194 (III)…
“The following are the broad lines along which international assistance to the refugees could be directed, in order to help them find a new life which would be politically and economically normal, ..the return of that number of refugees to Israel which would be consistent with their own best interests; the immediate payment of compensation for property of non-returning refugees; the adoption of measures by the Arab States for assuring the full reintegration of non-returning refugees; and the providing of all necessary facilities for resettlement by the Governments directly concerned, with the technical and financial assistance of the United Nations.” 7/
After a further year’s talks and a conference arranged in Paris, the Commission in November 1951 presented specific proposals. The one dealing with the right of return in terms of paragraph 11 of Resolution 194 (III) read:
“That the Government of Israel agree to the repatriation of a specified number of Arab refugees in categories which can be integrated into the economy of the State of Israel and who wish to return and live in peace with their neighbours;
“That the Government of Israel accept the obligation to pay, as compensation for the property abandoned by those refugees not repatriated, a global sum based upon the evaluation arrived at by the Commission’s Refugee Office; that a payment plan, taking into consideration the Government of Israel’s ability to pay, be set up by a special committee of economic and financial experts to be established by a United Nations trustee through whom payment of individual claims for compensation would be made.” 8/
The Israeli response to these proposals had the effect of adding even more conditions to the established principle of the right of return, including compensation for abandoned, lost or damaged property:
“With regard to the repatriation of refugees…the delegation of Israel stated that major considerations of security and of political and economic stability made the return of Arab refugees impossible. Moreover, the gulf between the Israelis and the Arabs who fled Palestine was wider than it had been in 1948. The integration of the refugees into the national life of Israel was incompatible with present realities. Responsibility for their rehabilitation lay with the Arab States, not with Israel…
“With regard to the question of compensation, the Government of Israel stated…
‘The fact that there is abandoned Arab property in Israel is a direct consequence of the war undertaken by the Arab States against the State of Israel…Moreover, the state of preservation and the conditions of exploitation of the property were seriously affected by the military events of 1948 and their consequences. The problem of abandoned Arab property cannot be completely dissociated from the facts of the Palestine war and the responsibility of those who set it in motion.
‘Moreover, the total Israel contribution and the methods of payment will be directly dependent on the capacity of the State of Israel to meet this charge mainly resulting from the Arab war, without harming its economic stability…
‘…the final agreement regarding the total Israel contribution to compensation for abandoned Arab property will, in the opinion of the Israel delegation, have to put an end to the whole problem of the Arab refugees in all its aspects, both humanitarian and material, so far as the State of Israel is concerned. More particularly, it is to the United Nations body charged with settling the question of compensation that the Arab owners concerned will have to address any individual claims they may have.'” 9/
The Arab delegations protested against the addition of conditions to the principle of the right of return established by the General Assembly.
“With regard to the repatriation of refugees the delegations of the Arab States maintained that there could be no limitations on the return of the refugees. In making its proposal, the Commission had not only contravened paragraph 11 of General Assembly resolution 194 (III), which set no limit on the right of the refugees to return, but had also sanctioned a flagrant injustice and had disregarded a right confirmed by the Declaration of Human Rights. This proposal further incited Israel to continue its mass immigration policy, thus intensifying the causes of disturbances in the Middle East. As long as Israel refused to allow the return of the refugees, there could be no peace in the Middle East. The Commission should forthwith take practical measures to bring about the return of the refugees and, as a first step should ascertain which of them wished to return. In their view, the criteria proposed by the Commission did not offer a practical basis for the solution of the problem.” 10/
In conclusion, the Conciliation Commission for Palestine commented:
“This final effort at the Paris Conference was no more successful than the prior attempts by the Commission during the past three years…
“In particular, the Government of Israel is not prepared to implement the part of paragraph 11 of the General Assembly resolution of 11 December 1948 which 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.
“The Arab Governments, on the other hand, are not prepared fully to implement paragraph 5 of the said resolution, which calls for the final settlement of all questions outstanding between them and Israel. The Arab Governments in their contacts with the Commission have evinced no readiness to arrive at such a peace settlement with the Government of Israel.” 11/.
The Paris conference of 1951 was the last major effort of the COP to mediate a solution on the basis of Resolution 194 (III), except for a brief revival in 1961, which was as fruitless as its earlier efforts. Nevertheless, the Commission remains symbolic of commitment of the United Nations, through resolution 194 (III), to the right of return of the Palestinian people.
VII. THE UNITED NATIONS AND THE RIGHT OF RETURN
The 1949 Lausanne Conference under the auspices of the Conciliation Commission for Palestine had resulted in the “Lausanne protocols” by which Israel on the one hand, and the Arab states on the other, agreed to treat the territorial provisions of the partition resolution to negotiate territorial adjustments to achieve the objectives of Resolution 194 (III). In actual fact, these protocols led to no further substantial agreement on either territorial questions or the return of the Palestinians to their homes. The lines established by the separate Armistice Agreements of 1949 between the Arab states on one side and Israel on the other were to become de facto frontiers, with the Palestinian refugees barred from exercising their right of return. Only a few thousand were allowed by the Israeli Government to enter the areas under Israeli control, on the basis of specific limited agreements. Otherwise the vast majority of the Palestinian people remained in exile.
The Establishment of UNRWA
In this situation, the UN in December 1949 established the UN Relief and Works Agency (UNRWA) to provide relief and assistance to the Palestinian refugees in their plight. The relevant resolution 1/ however, explicitly provided that the establishment of UNRWA did not prejudice the right of return established in December 1946 by the General Assembly. UNRWA became a major source of sustenance for what came to be known as the “old refugees” from 1949 who continued to live in refugee camps. As the mandate of UNRWA was extended year after year for nearly three decades, the General Assembly, while reiterating its deep regret that repatriation or compensation of the refugees had not been effected, consistently maintained the safeguard that the support for the Palestinian people exiled from their homes did not prejudice their right of return as embodied in paragraph 11 of Resolution 194 (III) (List of relevant resolutions at Annex III).
In 1950 and 1951 the Security Council called for the return of persons displaced from the demilitarized zones established by the Armistice Agreements. 2/
In December 1966, Israel signed the International Covenant on Civil and Political Rights.* In June 1967, the Arab-Israel war resulted in a further expansion of Israel’s control to the West Bank and Gaza, those parts of mandated Palestine that, until the war, had been under Arab control. The second exodus of Palestinians occurred.
—
* Cited in Chapter II ante. Israel so far has not ratified its signature of the Covenant.
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Security Council Resolution 237 of 14 June 1967, endorsed by the General Assembly, calling upon Israel “to facilitate the return of those inhabitants who have fled the areas since the outbreak of hostilities” brought these “new refugees” within the purview of the established right of return. Security Council resolution 242 of 22 November 1967, on which all subsequent UN efforts for a Middle East solution have been based, emphasizing “the inadmissibility of the acquisition of territory by war” and calling for “withdrawal of Israel armed forces from territories occupied in the recent conflict”, affirmed the necessity “for achieving a Just settlement of the refugee problem”.
In the face of non-compliance with the numerous resolutions, starting with Resolution 194 (III) of December 1946, encompassing the right of return of the Palestinian people, the General Assembly moved to assert explicitly this basin inalienable right, and to link it with the fundamental right of self-determination.
In December 1968, the General Assembly, referring to the Universal Declaration on Human Rights and to the resolution of the International Conference on Human Rights which affirmed the inalienable rights of the displaced persons to return home, established a “Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories”. 3/
The Assembly also explicitly called upon Israel “to take effective and immediate steps for the return without delay of those inhabitants who had fled the areas since the outbreak of hostilities”.4/
The General Assembly Reiteration of the Right of Return
In 1969, with no progress apparent in the issue, a General Assembly resolution, referring to “the people of Palestine” and not simply to “refugees”, read:
“Recognizing that the problem of the 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…
“Desirous of giving effect to its resolutions for relieving the plight of the displaced persons and the refugees,
“1. Reaffirms the inalienable rights of the people of Palestine;
“2. Draws the attention of the Security Council to the grave situation resulting from Israeli policies and practices on the occupied territories and Israel’s refusal to implement the above resolutions;
“3. Requests the Security Council to take effective measures in accordance with the relevant provisions of the Charter of the United Nations to ensure the implementation of these resolutions”. 5/
In 1970, the Assembly recognized:
“… that respect for the rights of the Palestinians is an indispensable element in the establishment of a just and lasting peace in the Middle East”. 6/
It was also resolved that the Assembly:
“Recognizes that the people of Palestine are entitled to equal rights and self-determination in accordance with the Charter of the United Nations… (and)
“Calls once more upon the Government of Israel to take immediately and without any further delay effective steps for the return of the displaced persons”. 7/
In 1971, resolutions of the Assembly reiterated the essential elements of the resolutions of previous sessions. In 1972, the Assembly categorically requested the Security Council:
“To take all appropriate steps with a view to the full speedy implementation of Security Council Resolution 242 (1967), taking into account all the relevant resolutions and documents of the United Nations in this connexion”. 8/
The “relevant resolutions” starting with Resolution 194 (III) had repeatedly reiterated the right of return of the Palestinians to their homes.
Also in 1972, a General Assembly resolution stated that it:
“Expresses once more its grave concern that the people of Palestine have not been permitted to enjoy their inalienable rights and to exercise their right of self-determination: (and)
“Recognizes that full respect for and realization of the inalienable rights of the people of Palestine are indispensable for the establishment of a Just and lasting peace in the Middle East”. 9/
In 1973, the General Assembly specifically and strongly again endorsed the right of return of the Palestinian people, tracing it directly to Resolution 194 (III) of twenty-five years earlier, declaring that the Assembly:
“1. Reaffirms that the people of Palestine is entitled to equal rights and self-determination, in accordance with the Charter of the United Nations;
“2. Expresses once more its grave concern that the people of Palestine has been prevented by Israel from enjoying its inalienable rights and from exercising its right of self-determination;
“3. Declares that full respect for and realization of the inalienable rights of the people of Palestine, particularly its right to self-determination, are indispensable for the establishment of a just and lasting peace in the Middle Bast, and that the enjoyment by the Palestine Arab refugees of their right to return to their homes and property, recognized by the General Assembly in Resolution 194 (III) of 11 December 1948, which has been repeatedly reaffirmed by the Assembly since that date, is indispensable for the achievement of a just settlement of the refugee problem and for the exercise by the people of Palestine of its right to self-determination.” 10/
The following year the General Assembly once more categorically detailed the world community’s call for the restoration of the inherent and inalienable rights of the Palestinian people, including the right of return. The resolution declared that the Assembly:
“1. Reaffirms the inalienable rights of the Palestinian people in
(a) The right to self-determination without external interference;
(b) The right to national independence and sovereignty;
“2. 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;
“3. Emphasizes that full respect for and the realization of these inalienable rights of the Palestinian people are indispensable for the solution of the question of Palestine,” 11/
Israel has refused to allow the repatriation of the Palestinian people in exercise of their right of return. The prevailing Israeli position is outlined in the following extract of a statement in the General Assembly:
“The origin of the Palestinian Arab refugee problem was the Arab rejection of the United Nations partition resolution and the war which they declared against the State of Israel one day after its establishment. The responsibility is therefore theirs. Had the Arabs accepted the resolution, there would have been no refugee problem. Furthermore, because of the wars conducted by the Arab States against Israel, Jews who had lived for thousands of years in Arab lands were forced to leave, abandoning all their property and possessions. Per about 590,000 Arab refugees there were about 600,000 Jewish refugees from Iraq, Yemen, Syria, Egypt, Libya and the rest of North Africa.
“Refugees in other parts of the world have been successfully integrated into the national community to which they belong. The only exception to the general rule is the situation of the Arab refugees. The Arab States have refused to absorb and integrate their brothers into their respective societies. The Arab States have made the “restoration” of the “legitimate rights” of those refugees – namely, their return to Israel – the central demand. That demand constitutes a serious distortion of the realities of the refugee problem.
“We do not intend to send back Jews to Iran, Syria, Egypt, Morocco, Yemen and other Arab countries, to be hanged in the public squares of Baghdad and to be deprived of their human rights and become third-class citizens, imprisoned in ghettoes, as in Syria now, in order to take Arab refugees in their place. The fact is that an exchange of population has taken place between Israel and the Arab countries.
“The difference between Israel and the Arab States is that while we in Israel from the outset integrated all the Jewish refugees into our society, the Arab States deliberately perpetuated the “refugee status” of their own brethen in order to use them as a political weapon against Israel. The Arab demand for the return of the refugees to Israel, coupled with proposals for the establishment of a Palestinian State, is calculated to bring about the destruction of Israel. The refugees should be resettled and integrated into the Arab societies in which they now live. In any peace settlement specific provisions should be made to enable all refugees to find accommodation and employment and receive adequate compensation.
“In any discussion of reparations for the refugees, Israel will raise the question of reparations for Jewish refugees from Arab lands and insist that all their claims be settled within the framework of the final peace agreement.”12/
The Committee on Palestinian Rights
In 1975, reaffirming to the previous year’s resolution, the General Assembly established the Committee on the Exercise of the Inalienable Rights of the Palestinian People. 13/
The Committee on Palestinian Rights presented its report in May 1976. Excerpts in the right of return follow:
“It was emphasized that the inalienable rights of the Palestinian people to self-determination could be exercised only in Palestine. Consequently, the exercise of the individual right of the Palestinian to return to his homeland was a conditio sine qua non for the exercise by this people of its rights to self-determination, national independence and sovereignty.
“In this respect, it was pointed out that Israel was under binding obligation to permit the return of all the Palestinian refugees displaced as a result of the hostilities of 1948 and 1967. This obligation flowed from the unreserved agreement by Israel to honour its commitments under the Charter of the United Nations, and from its specific undertaking, when applying for membership of the United Nations, to implement General Assembly resolutions l8l (II) of 29 November 1947, safeguarding the rights of the Palestinian Arabs inside Israel, and 194 (III) of 11 December 1948, concerning the right of Palestinian refugees to return to their homes or to choose compensation for their property. This undertaking was also clearly reflected in General Assembly resolution 273 (III). The Universal Declaration of Human Rights, as well as the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, also contained relevant provisions concerning these rights. The States directly involved were parties to this Convention.
“The opinion was expressed that whatever modalities or procedure were envisaged for the implementation of the right of return of the Palestinians – whether such return would be carried out by phases or by quotes according to a definite timetable – that right should be absolute for every Palestinian and must have priority over any other form of substitute arrangements, such as compensation. The Palestinians should be afforded the widest practical opportunities to exercise their right of return, in regard both to the time element and to procedural conditions. Only those Palestinians who would choose not to avail themselves of those opportunities after a predetermined period of time should be considered as opting for compensation instead of actual repatriation. In this regard, it was recalled that an assessment of the value of the property left behind by displaced Palestinians had been made by the United Nations Conciliation Commission for Palestine and was available on microfilm in the archives of the United Nations.
“To implement the right of return, a two-phase programme was proposed. In the first phase, the Palestinians displaced in 1967 should be allowed to return to the territories which have been under Israeli military occupation since 1967. In accordance with Security Council resolution 237 (1967), the return of these Palestinians should be immediate and not related to any other condition.
“During this first phase, certain preparations should be undertaken for the second phase of such a programme, namely, the phase relating to the Palestinians displaced in 1948 from territories occupied by Israel before 1967. These preparations could involve the following elements:
(a) Designation or creation of a competent agency to be entrusted with the organizational and logistical aspects of the mass return of displaced Palestinians;
(b) Creation and financing of a fund for that purpose;
(c) Registration of displaced Palestinians other than those already registered with UNRWA;
(d) Request by either the Security Council or the General Assembly for an advisory opinion of the International Court of Justice, in accordance with Article 96 of the Charter of the United Nations, on certain legal aspects of the right of the Palestinians to return to their homes.
“The problems related to the second phase – of Palestinians displaced between 1948 and 1967 – would be solved on the basis of the relevant resolutions of the General Assembly and the Security Council and by agreement between the parties involved.
“The suggestion concerning the unconditional return to their homes, in a first phase, of Palestinians displaced in 1967 was unanimously supported by the Committee as a judicious approach in the search for a solution to the question of Palestine. As for its practical implementation, several delegates expressed doubts as to whether those Palestinians would be able to exercise fully their right to return as long as the territories in question remained under foreign occupation. They felt that the presence of Israeli occupying forces might inhibit and adversely influence the free exercise of the right of return of the Palestinian people, In the view of those delegations, it would be more realistic to expect the Palestinians displaced In 1967 to exercise their right of return after Israel had vacated the occupied areas according to an established timetable…” 14/
(The Committee’s specific recommendations are at Annex IV).
The Committee’s report was discussed by the Security Council in June 1976. A draft resolution was submitted affirming:
“The inalienable rights of the Palestinian people to self-determination, including the right of return and the right to national independence and sovereignty in Palestine, in accordance with the Charter of the United Nations”.
The resolution failed due to the negative vote of a permanent member (the USA).
The Committee’s report was endorsed by the General Assembly in November 1976 15/ and in December 1977 16/; the Assembly on both occasions re-endorsed the right of return of the Palestinian people. The Security Council has still to resume consideration of the question of Palestine.
|
[Notes] |
Chapter II: The Right of Return as a Principle of International Law (pp. 3-7)
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(1) |
Euripides |
Medea (Translation by R. Warner)
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(2) |
Plato |
Dialogues (Translation by B. Jowett)
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(3) |
De Vitoria, Francisco |
Relaciones sobre los lidios y el derecho de gureea (Buenos Aries, Espasa – Calpe, 1946) p.103
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(4) |
De Vattel, Emmerich |
The Law of Nations – (Book, Chap. XIX, 228) (1758 Translation by Charles Fenwick) (Washington D.C., Carnegie Institute, 1916) vol. 3, pp. 91-92
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(5) |
United Nations |
Economic and social council document E/81/Rev.1
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(6) |
The Declaration was adopted by 48 votes in favour, none against, with 8 abstentions.
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|
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(7) |
International court of Justice |
“Legal consequences for States of the continued Presence of South Africa in Namibia (south West Africa) Notwithstanding Resolution 276 (1970) I.C.J. Reports, 1971 – pp. 77-78.
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(8) |
“Loss of Nationality and Exile” The Review of the International commission of Jurists No. 12 (June 1974) p. 24
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(9) |
The International Covenant on civil and Political Rights was opened for signature on 19 December 1966. The position on 31 December 1977 as follows: Egypt: signed on 4 August 1967, no ratification Israel: signed on 19 December 1966, no ratification Jordan: signed on 30 June 1972, no ratification Lebanon: acceded on 3 November 1972 Syria: acceded on 21 April
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(10) |
Economic and social Council resolution 1988 (IV) of 18 May 1973. |
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Chapter III: The Diaspora of the Palestinian People (pp.8-10)
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(1) |
United Nations |
Official Records of the General Assembly, Third Session, Supplement 11, (Progress Report of the UN Mediator in Palestine) pp.13-14
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(2) |
Ibid., p. 47
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(3) |
United Nations Conciliation Commission for Palestine: Report of the UN Economic Survey Mission for the Middle East Document A/AC.25/25/6 – p. 18
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(4) |
Ibid.
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(5) |
Abu Lughod, Janet
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“The Demographic Transformation of Palestine” in Abu Lughod, Ibrahim (ed.) The Transformation of Palestine (Evanston, III: Northwestern University Press, 1971) p. 162
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(6) |
Ibid., p. 163 |
Chapter IV: The Establishment of the Right of Return of the Palestinian People (pp. 11-16)
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(1) |
United Nations |
Official Records of the General Assembly. Second Session. Supplement No. 11. (Report of the UN Special Committee on Palestine), Vol. I, p. 54
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(2) |
Ibid
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(3) |
Official Records of the General Assembly. Third Session, Supplement Ho. 11, Document A/648 (Progress Report of the UN Mediator in Palestine) P. 47
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(4) |
Ibid., pp. 13-l4
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(5) |
Ibid., p. 14
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(6) |
Ibid., 17-18
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(7) |
Official Records of the General Assembly. Sixteenth Session, Document A/AC.25/W.8l/Rcv.2 (Historical Survey of Efforts of the UN Conciliation Commission for Palestine to secure the implementation of Paragraph 11 of G.A. resolution 194 (III)) para. 38 |
Chapter V: Israel and the Right of Return (pp. 17-24)
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(1) |
United Nations |
Official Records of the Security council: Third Year, Plenary, Document S/745
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(2) |
Official Records of the General Assembly, Third session, part II, Ad Hoc Political committee 45th meeting, p. 246
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(3) |
Ibid., 46th meeting – pp. 261-262
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(4) |
Ibid., 46th meeting – p. 264
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(5) |
Ibid., 45th meeting – p.239-240
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(6) |
Ibid., 47th meeting – pp. 286 – 287
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(7) |
Ibid., 51st meeting – p.341
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(8) |
Badi, Joseph (ed.) |
Fundamental Laws of the State of Israel New York, Twayne Publishers, 1961) p.156
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(9) |
Ibid., pp. 254-258
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(10) |
Ibid., p. 129
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(11) |
Ibid., p. 146 |
Chapter VI: The Conciliation Commission for Palestine (pp. 25-32)
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(1) |
Karen Kayemeth Leisrael |
Jewish villages inIsrael (Jerusalem, 1949) pp.xxi-xxii
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(2) |
United Nations |
Official Records of the General Assembly, Fifth Session, Supplement No. l8, Document A/1367/Rev.l (General Progress Report of the UK Conciliation Commission for Palestine) Appendix 4, para.36
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(3) |
Official Records of the General Assembly, Fourth Session, Plenary, General Series Document A/927 (UN Conciliation Commission for Palestine, Third Progress Report) paras. 13 and 15
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(4) |
Official Records of the General Assembly. Sixteenth Session, Document A/AC.25/V.8l/Bcv.2 (Historical Survey of Efforts of the UN Conciliation Commission for Palestine to secure the implementation of paragraph 11 of General Assembly Resolution 194 (III)) paras. 39 and 46
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(5) |
Ibid. para. 53
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(6) |
Document A/1367/Rev.l, o-p. cit., chap. III, paras. 7 and 8
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(7) |
Ibid., Supplementary Report, para. 9
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(8) |
Document A/AC.25/W.81/Rev.2, op. cit., para. 88
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(9) |
Ibid., paras 100 and 101
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(10) |
Ibid., para. 103
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(11) |
Official Records of the General Assembly, Sixth Session, Supplement No.18. l8 – Document A/1985 (Progress Report of the UN Conciliation Commission for Palestine) paras. 83-85 |
Chapter VII : The United Nations and the Right of Return
|
(1) |
United Nations |
General Assembly resolution 302 (IV) of 9 December 1949
|
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(2) |
Security Council resolution 89 (1950) of 17 November 1950 Votes : 9 in favor, 0 against, 2 abstentions
Security Council resolution 93 (1951) of l8 May 1951 Votes : 10 in favour, 0 against, 1 abstention
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(3) |
General Assembly resolution 2443 (XXIII) of 19 December 1968 Votes : 60 in favour, 22 against, 30 abstentions
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(4) |
General Assembly resolution 2452 A (XXIII) of 19 December 1968 Votes : 100 in favour, 1 against, 6 abstentions
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(5) |
General Assembly resolution 2535 B (XXIV) of 10 December 1969 Votes : 47 in favour, 22 against, 47 abstentions
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(6) |
General Assembly resolution 2628 (XXV) of 4 November 1970 Votes : 57 in favour, l6 against, 39 abstentions
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(7) |
General Assembly resolution 2672 C (XXV) of 8 December 1970 Votes : 47 in favour, 5 against, 28 abstentions
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(8) |
General Assembly resolution 2949 (XXVII) of 13 December 1972 Votes : 86 in favour, 7 against, 31 abstentions
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(9) |
General Assembly resolution 2063 E (XXVII) of 13 December 1972 Votes : 67 in favour, 21 against, 37 abstentions
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(10) |
General Assembly resolution 3236 (XXIX) of 22 November 1974 Votes : 89 in favour, 8 against, 37 abstentions
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(11) |
General Assembly resolution 3089 D (XXVIII) of 7 december 1974
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(12) |
Doc. No. A/32/PV.27, pp. 86-87
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|
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(13) |
General Assembly resolution 3376 (XXX) of 10 November 1975 Votes : 93 in favour, l8 against, 27 abstentions
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(14) |
Official Records of the General Assembly. Thirty-first Session. Supplement No. 35 Document A/31/35 parars. 18-24.
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(15) |
General Assembly resolution 31/20 of 24 November 1976 Votes: 90 in favour, 16 against, 30 abstention
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(16) |
General Assembly resolution 32/40 of 15 December 1977 Votes – part A: 100 in favour, 12 against, 29 abstentions Part B: 95 in favour, 20 against, 26 abstentions
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ANNEXES
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I |
Reply of the Provisional government of Israel to the proposal regarding the return of Arab refugees
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Page
47
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II
|
General Assembly Resolution 194 (III) of 11 December 1948 – Text
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50 |
|
III |
General Assembly Resolutions referring to Resolution 194 (III) – List |
53 |
ANNEX I
Reply of the Provision Government of Israel
to the proposal regarding the return of Arab refugees
(Letter from the Minister for Foreign Affairs of the Provisional
Government to the United Nations Mediator)
Hakirya, 1 August 1948
1. The Provisional Government has duly considered your note on the question of the return of Arab refugees and has authorized me to convey to you the following reply.
2. As I mentioned in the course of our interview on Monday 26 July, we are not unmindful of the plight of the Arabs who, as a result of the present war find themselves uprooted from their homes and cast adrift. Our own people have suffered too much from similar tribulations for us to be indifferent to their hardships. If, nevertheless, we find ourselves unable to agree on their readmission to the Israel-controlled areas, it is because of overriding considerations bearing on our immediate security the outcome of the present war and the stability of the future peace settlement. We feel convinced that any measure of repatriation undertaken solely on humanitarian grounds, in disregard of the military, political and economic aspects of the problem, would prove to have been falsely conceived; it would defeat its purpose and result in graver complications than those which already exist.
3. The resolution of the Security Council of 29 May, the terns of which were renewed by the resolution of 15 July, specifically provided that the truce should not prejudice the rights, claims and position of either party. You interpreted this principle, as meaning that no advantage should accrue to either side, at the expense of or as compared with the other. There can be no doubt that the return during the truce of thousands of displaced Arabs to the State of Israel – which is still beset by enemy armies, forms the target of violent political attack and may yet again become the object of a renewed military onslaught – would, in fact, gravely prejudice our rights and position. It would relieve the aggressor States of a large part of the pressure exerted on them by the refugee problem, while, on the other hand, it would most seriously handicap the war effort and war-readiness of Israel by bringing into its territory a politically explosive and economically destitute clement and by saddling its Government with responsibility for all the ensuing complications.
4. Against this background, your reference to the return of Arab refugees as being one of the questions under dispute which it is the duty of both parties to try and settle peacefully, appears to us to miss the main point at issue. The root cause of the present conflict – of which the mass flight of Arabs and their consequent suffering are mere corollaries – is the refusal of the Arab League to accept the State of Israel either as a matter of right or as an accomplished fact.
As long as this intransigence persists, any attempt to tear the problem of Arab refugees out of its context and treat it in isolation can only, as already stated, aggravate the issue: it will render rightful defence more difficult and lend further encouragement to wanton aggression.
5. Nor do we feel that the issue is met by your argument that the present truce is of indefinite duration and that, therefore, the security aspect of Arab repatriation should not present a special problem. To begin with, once a large-scale return is authorized, it may be found difficult, if not impossible, to keep it within bounds. Even if formally men of military age are excluded, the practical result may well be the increase of irregulars inspired by the Mufti, who knows no truce. Moreover, the Arab States themselves, in their Joint communication to the Security Council, have hedged their acceptance of the present truce with several conditions. They have thus reserved to themselves the right to terminate the truce whenever it suits them to resume the fighting. They continue to maintain an attitude of obstinate intransigence and defiance of the Security Council and the Mediator in regard to such basic provisions of the truce as the Jerusalem water supply and the opening of the Jerusalem-Tel-Aviv highway. Not a day passes without some prominent Arab spokesman threatening the resumption of hostilities. In these circumstances, the mere fact that the Security Council has ordered the truce to be of unlimited duration is not a firm enough foundation on which the Provisional Government could build so farreaching a measure as the readmission en masse of Arab refugees.
6. The difficulty is not minimized if the return is limited to the former residents of Jaffa and Haifa, for whom you enter a special plea. Both these cities constitute vulnerable points, on the peace and stability of which the well being of Israel in the present delicate stage very largely depends. Both were centres of grave menace to Jewish security, and the recreation of a situation pregnant with potential trouble in areas such as these is the last thing that any State still engaged in a struggle for its existence would contemplate. Incidentally, we fail to appreciate why on purely humanitarian grounds the former residents of Jaffa and Haifa have been singled out for special treatment and found, as a class, to be more deserving than those of any other town or village.
7. On the economic side, the reintegration of the returning Arabs into normal life, and even their mere maintenance, would present an insoluble problem. The difficulties of accommodation, employment and ordinary livelihood would be insuperable. You will, we feel sure, readily admit that the international assistance which you envisage is for the time being purely hypothetical. On the other hand, the Provisional Government would resist as utterly unjust an attempt to impose on its limited and heavily strained resources any part of the financial liability for the relief and resettlement of returning Arabs. Far from being ready to shoulder responsibilities on behalf of Arabs whom the Jews never intended to harm – with whom they were, indeed, anxious to live at peace – the Provisional Government considers itself entitled and is indeed determined, to claim compensation from the Arab States for all the havoc and destruction, the loss of life, property and livelihood, which the criminal folly of their armed intervention in Palestine has wrought.
8. Arab mass flight from within Israel and Israel-occupied areas is a direct effect of Arab aggression from outside. In Justifying their invasion the Arab Governments claimed that they had responded to the call for rescue addressed to them by the Arabs of Palestine. The plain fact is, however, that but for the intervention of the Arab States, there would have been an overwhelming measure of local Arab acquiescence in the establishment of the State of Israel, and by now peace and reasonable prosperity would have reigned throughout its territory, to the enjoyment of Jews and Arabs alike. If the war has brought, in its wake a mass exodus, mostly spontaneous and the exodus has resulted in great suffering, the responsibility for it rests on those who fomented and have carried on the war, as well as on those who aided and abetted them. The Arab Governments and the great Power which espoused their cause cannot have it both ways do everything they can to undermine and destroy the State of Israel, and then, having failed, require the State of Israel to take over the liability for the results of their own reckless action.
9. For the political, economic and security reasons stated, the Provisional Government is not in a position, as long as a state of war exists, to readmit the Arabs who fled from their homes, on any substantial scale. The Palestinian Arab exodus of 1948 is one of those cataclysmic phenomena which, according to the experience of other countries, change the course of history. It is too early to say exactly how and in what measure the exodus will affect the future of Israel and of the neighbouring territories. When the Arab States arc ready to conclude a peace treaty with Israel, this question will come up for constructive solution as part of the general settlement and with due regard to our counter-claim in respect of the destruction of Jewish life and property. The longterm interests of the Jewish and Arab populations; the stability of the State of Israel and the durability of the basis of peace between it and its neighbours; the actual position and fate of the Jewish communities in the Arab countries: the responsibility of the Arab Governments for their war of aggression and their liability for reparations, will all be relevant to the question of whether, to what extent and under what conditions, the former Arab residents of the territory of Israel should be allowed to return. For such a comprehensive and lasting peace settlement the Provisional Government is ever ready, but it holds that it cannot in fairness be required to carry through unilateral and piecemeal measures of peace while the other side is bent on war.
(Signed) Mr. Shertok
Minister for Foreign Affairs
AMNEX II
UN General Assembly resolution 194 (III)
of 11 December 1948
The General Assembly
Having considered further the situation in Palestine,
1. Expresses its deep appreciation of the progress achieved through the good offices of the late United Nations Mediator in promoting a peaceful adjustment of the future situation of Palestine for which cause he scarified his life: and
Extends its thanks to the Acting Mediator and his staff for their continued efforts and devotion to duty in Palestine;
2. Establishes a Conciliation Commission consisting of three States Members of the United Nations which shall have the following functions;
(a) To assume, in so far as it considers necessary in existing circumstances, the functions given to the United Nations Mediator on Palestine by Resolution l82 (S-2) of the General Assembly of 14 May 1948;
(b) To carry out the specific functions and directives given to it by the present resolution and such additional functions and directives as may be given to it by the General Assembly or by the Security Council;
(c) To undertake upon the request of the Security Council, any of the functions now assigned to the United Nations Mediator on Palestine or to the United Nations Truce Commission by resolutions of the Security Council; upon such request to the Conciliation Commission by the Security Council with respect to all the remaining functions of the United Nations Mediator on Palestine under Security Council resolutions, the office of the Mediator shall be terminated;
3. Decides that a Committee of the Assembly, consisting of China, France, the Union of Soviet Socialist Republics, the United Kingdom and the United States of America, shall present, before the end of the first part of the present session of the General Assembly, for the approval of the Assembly, a proposal concerning the names of the three States which will constitute the Conciliation Commission;
4. Requests the Commission to begin its functions at once, with a view to the establishment of contact between the parties themselves and the Commission at the earliest possible date;
5. Calls upon the Governments and authorities concerned to extend the scope of the negotiations provided for in the Security Council’s resolution of l6 November 1948 and to seek agreement by negotiations conducted either with the Conciliation Commission or directly, with a view to the final settlement of all questions outstanding between them:
6. Instructs the Conciliation Commission to take steps to assist the Governments and authorities concerned to achieve a final settlement of all questions outstanding between them:
7. Resolves that the Holy Places – including Nazareth – religious buildings and sites in Palestine should be protected and free access to them assured, in accordance with existing rights and historical practice; that arrangements to this end should be under effective United Nations supervision; that the United Nations Conciliation Commission, in presenting to the fourth regular session of the General Assembly its detailed proposals for a permanent international regime for the territory of Jerusalem, should include recommendations concerning the Holy Places in that territory, that with regard to the Holy Places in the rest of Palestine the Commission should call upon the political authorities of the areas concerned to give appropriate formal guarantees as to the protection of the Holy Places and access to them, and that these undertakings should be presented to the General Assembly for approval;
8. Resolves that, in view of its association with three world religions, the Jerusalem area, including the present municipality of Jerusalem plus the surrounding villages and towns, the most eastern of which shall be Abu Dis; the most southern, Bethlehem, the most western, Ein Karim (including also the built-up area of Motsa): and the most northern Shu’fat, should be accorded special and separate treatment from the rest of Palestine and should be placed under effective United Nations control;
Requests the Security Council to take further steps to ensure the demilitarization of Jerusalem at the earliest possible date;
Instructs the Commission to present to the fourth regular session of the General Assembly detailed proposals for a permanent international regime for the Jerusalem area which will provide for the maximum local autonomy for distinctive groups consistent with the special international status of the Jerusalem area;
The Conciliation Commission is authorized to appoint a United Nations representative, who shall cooperate with the local authorities with respect to the interim administration of the Jerusalem area;
9. Resolves that, pending agreement on more detailed arrangements among the Governments and authorities concerned, the freest possible access to Jerusalem by road, rail or air should be accorded to all inhabitants of Palestine, Instructs the Conciliation Commission to report immediately to the Security Council, for appropriate action by that organ, any attempt by any party to impede such access;
10. Instructs the Conciliation Commission to seek arrangements among the Governments and authorities concerned which will facilitate the economic development of the area, including arrangements for access to ports and airfields and the use of transportation and communication facilities;
11. Resolves that the refugees wishing to return to their homes and live at each 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 for authorities responsible:
Instructs the Conciliation Commission to facilitate the repatriation, settlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations;
12. Authorizes the Conciliation Commission to appoint such subsidiary bodies and to employ such technical experts, acting under its authority, as it may find necessary for the effective discharge of its functions and responsibilities under the present resolution;
The Conciliation Commission will have its official headquarters at Jerusalem:
the authorities responsible for maintaining order in Jerusalem will be responsible for taking all measures necessary to ensure the security of the Commission. The Secretary-General will provide a limited number of guards for the protection of the staff and premises of the Commission;
13. Instructs the Conciliation Commission to render progress reports periodically the Secretary-General for transmission to the Security Council and to the Members the United Nations;
14. Calls upon all Governments and authorities concerned to cooperate with the conciliation Commission and to take all possible steps to assist in the implementation of the present resolution;
15. Requests the Secretary-General to provide the necessary staff and facilities d to make appropriate arrangements to provide the necessary funds required in carrying out the terms of the present resolution.
ANNEX III
General Assembly resolutions referring to
resolution 194 (III) of 11 December 1948
1. Resolution No. 302 (IV) of 8 December 1949
2. Resolution No. 394 (V) of 14 December 1950
3. Resolution No. 513 (VI) of 26 January 1952
4. Resolution No. 6l4 (VII) of 6 November 1952
5. Resolution No. 720 (VIII) of 27 November 1953
6. Resolution No. 8l8 (IX) of 6 December 1954
7. Resolution No. 9l6 (X) of 3 December 1955
8. Resolution No. 1018 (XI) of 28 February 1957
9. Resolution No. 1191 (XII) of 12 December 1957
10. Resolution No. 1315 (XIII) of 12 December 1958
11. Resolution No. l456 (XIV) of 9 December 1959
12. Resolution No. l604 (XV) of 21 April 1961
13. Resolution No. 1725 (XVI) of 20 December 1961
14. Resolution No. 1856 (XVII) of 20 December 1962
15. Resolution No. 1912 (XVIII) of 3 December 1963
16. Resolution No. 2052 (XX) of 15 December 1965
17. Resolution No. 2154 (XXI) of 17 December 1966
18. Resolution No. 234l A (XXII) of 19 December 1967
19. Resolution No. 2452 B (XXIII) of 19 December 1968
20. Resolution No. 2535 A (XXIV) of 10 December 1969
21. Resolution No. 2672 A (XXV) of 8 December 1970
22. Resolution No. 2792 A (XXVI) of 6 December 1971
23. Resolution No. 2963 A (XXVII) of 13 December 1972
24. Resolution No. 3089 B (XXVIII) of 7 December 1973
25. Resolution No. 3331 A (XXIX) of 17 December 1974
26. Resolution No. 3419 B (XXX) of 8 December 1975
27. Resolution No. 31/15 of 23 November 1976
28. Resolution No. 32/90 of 13 December 1977
Document Type: Arabic text, Chinese text, French text, Publication, Russian text, Spanish text, Study
Document Sources: Committee on the Exercise of the Inalienable Rights of the Palestinian People (CEIRPP), Special Unit on Palestinian Rights (SUPR) (See also - CEIRPP > DPR)
Subject: Agenda Item, Expulsions and deportations, History, Human rights and international humanitarian law, Inalienable rights of the Palestinian people, Legal issues, Occupation, Palestine question, Refugees and displaced persons, Right of return, Self-determination
Publication Date: 01/11/1978