Palestinian statehood and the right of return

On 13 October 2014, the British House of Commons passed a motion stating that “this house believes that the government should recognise the state of Palestine alongside the state of Israel as a contribution to securing a negotiated two-state solution”. The non-binding back-bench motion passed 274 votes to 12.

This followed Sweden’s recognition of Palestine the week before, and Spain’s Parliament is next to vote on the issue in Europe.

While it is unclear as to the political implications of the recognition of Palestine as a state, since the occupation is still ongoing and Israel continues its settlement expansion,¹ there has been much discussion on what widespread recognition, and particularly Palestine’s upgrade to “non-member observer state” at the UN, could have legally on the rights of Palestinian people.

The most significant legal implication is whether Palestine could take Israel to the International Criminal Court, which has been widely discussed.²

Yet statehood could have a number of implications on other major Palestinian issues. The Israeli military occupation since 1967 and military actions in Gaza more recently have overshadowed what was once the focal issue of Palestinian self-determination: the right of return for Palestinian refugees to their original homes.

What are the rights of Palestine refugees and what legal implications, if any, does the statehood recognition bid have on them?

Where does ‘the right of return’ come from?

The right of return to one’s own country is a fundamental right under international law. Because of the complexities of the definition of Palestinian people as refugees under international refugee law³, it is worth taking a look at where this definition arises and how refugee status relates to international law and practice governing the right of return.

Palestine refugees make up the largest and most enduring refugee population today. While the original number of registered refugees was about 750,000 following the 1948 Arab-Israeli War, according to the United Nations Refugee and Works Agency (UNRWA), Palestine refugees today number over five million.⁴ Officially they are “Palestine” refugees and not “Palestinian” refugees, as they are defined as those “persons whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 conflict.”

The wording of UNRWA’s definition classifies Palestine refugees according to need, and so does not necessarily include all Palestinians who fled their homes to the neighboring towns and countries, such as Gaza, the West Bank, Lebanon, Syria, Egypt and Jordan.⁵ In the wake of this mass exodus, the United Nations General Assembly passed the follow resolution (194), resolving that:

Refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or equity, should be made good by the Governments or authorities responsible.⁶

Commenting on the situation of the refugees, Count Folke Bernadotte, the United Nations Mediator for Palestine at the time, stated that, “the right of the refugees to return to their homes if they so desire must be safeguarded.”⁷ United Nations General Assembly Resolution 3236, in 1974, was stronger in its wording, where it reaffirmed “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.”⁸

Palestinians were further displaced by the 1967 Six Day War, and continue to be uprooted to this day by various means, including deportations, construction of the Wall on Palestinian Territory, house demolitions, and revocation of residency. Many also move abroad for economic opportunity and are then prevented from returning, especially in East Jerusalem. These displaced Palestinian people do not fall within UNRWA’s mandate, but given the General Assembly Resolution 3236 may arguably be included within the definition of those entitled to exercise a right of return.

More generally, one of the provisions in the Universal Declaration of Human Rights of 1948, which applies to all people whether Palestinian or otherwise, is that “Everyone has the right to leave any country, including his own, and to return to his country.”⁹ This right is well established in international law and has been reaffirmed in subsequent international conventions and United Nations Security Council Resolutions. For example, Article 12(4) of the International Covenant on Civil and Political Rights (1966) states that, “No one shall be arbitrarily deprived of the right to enter his own country”. Following the First Gulf War, the United Nations Security Council stated in paragraph 31 of its resolution, that it “invites the International Committee of the Red Cross to keep the Secretary-General apprised as appropriate of all activities undertaken in connection with facilitating the repatriation or return of all Kuwaiti and third country nationals or their remains present in Iraq on or after 2 August 1990”.¹⁰ Another example of the international community’s reaffirmation of the fundamental right to return for refugees’ can be seen with the United Nations Security Council resolution dealing with the situation in Kosovo.¹¹

Thus it is clear that the principle of the right of return has only been strengthened since 1948 and the international community has been demonstrably willing to put it into practice. But how does this apply to Palestine refugees, and specifically in the context of the Palestinian statehood recognition bid?

So how could Palestine refugees’ rights be affected by Palestinian statehood?

Although the purpose of this post is to take a look at the right of return from a legal perspective, it is helpful to step back at this stage and briefly address the political history of the ways in which Palestinian rights have been represented, negotiated and interpreted in the past, which forms the context in which the right exists now.

In 1964, the Palestine Liberation Organization (PLO) was founded with the goal of the liberation of Palestine. In 1974, both the United Nations and the Arab League recognised the organisation as the “sole, legitimate representative of the Palestinian people”, which includes both those in the Occupied Territories as well as the Diaspora. The current state of Palestine is comprised of the West Bank (including East Jerusalem) and Gaza, which is much less than even what was envisioned under the United Nations Partition Plan of 1947. The five million Palestine refugees, including those currently resident in the West Bank and Gaza, are from villages and towns in 1948 Palestine, now present-day Israel.

Thus the statehood recognition bid brings up two important issues: Firstly, who will represent Palestinian refugees in the Diaspora if the state of Palestine replaces the PLO at the United Nations? The PLO itself was sidelined after the Oslo Accords in 1993 and 1995 in favor of the Palestinian Authority (PA), which is now the governing body for the West Bank and Gaza, and the refugee issue was relegated to “final status issues”, along with borders, settlements and East Jerusalem. It would seem that the PLO’s replacement at the United Nations would further weaken the representation of Palestinians’ rights in the Diaspora, including the right of return.

Secondly, could the statehood recognition bid be used to rob Palestine refugees of the right to return to their original homes now in Israel, and instead replace it with the return to Palestine just in the West Bank and Gaza? The Palestinian state with its current confinement to the West Bank and Gaza would not be able to accept a large number of refugees. Indeed, Gaza’s population is 80% refugees and is one of the most densely populated places on earth.¹² Since Israel has consistently rejected the return of any refugees within its current borders, while at the same time building illegal settlements in the Occupied Territories, the Palestinian statehood recognition bid could provide them with another argument, politically, for refusing the return of refugees. However this potential political argument holds no water from an international legal perspective.

The United Nations Human Rights Committee General Comment on Article 12 of the International Covenant on Civil and Political Rights states that the article:

… does not distinguish between nationals and aliens (“no one”). Thus, the persons entitled to exercise this right can be identified only by interpreting the meaning of the phrase “his own country”. The scope of “his own country” is broader than the concept “country of his nationality”. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.

The issue of right of return in the context of conflict resolution was addressed in the case of Bosnia and Herzegovina. The United Nations’ reasoning for the centrality of the right of return in Bosnia and Herzegovina can be said to be directly analogous to the Palestine case. The United Nations High Commissioner for Refugees (UNHCR) stated in 1999:

Annex 7 of the General Framework Agreement for Peace (GFAP) guarantees in Article I(1) the right of all refugees and displaced persons freely to return to their homes of origin. The underlying rationale for this position in international law is grounded on the fact that peace building, peace consolidation and the creation of secure and stable conditions in BH [Bosnia and Herzegovina] are related to reversing the effects of ethnic cleansing, that is, forced displacement to gain effective control over territory, which was the prime objective of the conflict.¹³

Even if it is held that citizenship is a condition for the right of return, inhabitants of Palestine were considered Palestinian citizens under the British Mandate’s Palestinian Citizenship Order-in-Council 1925, and thus were effectively denationalised by the newly created Israeli state. The selectivity of Israel’s denationalisation is apparent as the Israeli government permitted 17,000 Palestinian Jews who were displaced by the war in 1948 to return to their homes, whereas the overwhelming majority of Palestinian Arabs were prevented from doing so.¹⁴

Preserving the right of return

In order to preserve Palestine refugees’ right to return to their original homes, should they so wish, it must be made clear that statehood in the West Bank and Gaza does not negate the right of return to their original homes: in accordance with accepted principles and application of international law.

The question of how this could be achieved is bigger than this post would allow in order to address it comprehensively. But a few suggestions can be briefly made. For example, a provision in Palestine’s constitution could be used to ensure that the simple existence of a Palestinian state is not used to deny refugees their right to choose which state to return to (should an individual Palestinian refugee wish to exercise their right of return at all). It is also possible for the State of Palestine to represent the refugees, but this must also be made explicit. The General Assembly of the United Nations may additionally request the International Court of Justice for an Advisory Opinion on the status of Palestine refugees.

It is essential from an international legal and human rights perspective that those responsible for brokering the future of Palestine don’t ‘throw the baby out with the bathwater’ by jeopardising the fundamental right of individuals to return to their homeland; a move that would have consequences that could stretch across the generations.

Jinan Bastaki – LPHR member and PhD candidate at SOAS, University of London

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Footnotes: 

1 Huge new Israeli settlement in West Bank condemned by US and UK, The Guardian, http://www.theguardian.com/world/2014/sep/01/israeli-settlement-west-bank-gvaot-condemned