Aspects of the Palestinian Refugee Question
The Beginning of the Refugee Problem / Who is a Refugee?
/ Do Refugees Have a Right to Return to Israel? / The Impact
of UN General Assembly Resolution 194 / After 1967 / The Refugee
Question in Arab-Israeli Agreements / A Right to Compensation?
Until September 2000, hopes were high that soon an agreement
on the final status of the West Bank and Gaza would pave the
way for peaceful coexistence between Israel and the Palestinians.
These hopes have unfortunately been shattered, as Palestinians
violently attacked Israelis in both the administered territories
and in Israel proper, provoking violent reactions by Israel.
One could wonder what purpose there is in analyzing legal
issues related to a peaceful settlement when violence is the
order of the day. If we nevertheless examine some of the legal
issues, it is because we have not yet lost hope that sooner
or later the guns will be silenced and the parties will return
to the negotiating table.
The underlying conflict is mainly of a political nature. However,
for several reasons it should also be analyzed from a legal
perspective. First, some of the questions involved are overwhelmingly
of a legal nature. Second, the parties base their claims on
legal arguments. And, third, if and when a compromise is reached,
it will be drafted in legal terms and be included in a legal
text. This is also true of the question of Palestinian refugees.
The Beginning of the Refugee Problem
The plight of the refugees is a serious human problem. During
the 1947-48 period, many Arabs "left, ran away, or were
expelled."1 At the same time, Jews escaped from Arab
countries. While the Jews were integrated into the countries
to which they fled, the Arabs were on purpose denied integration
in most Arab countries (except Jordan) in order to prevent
any possible accommodation with Israel. The refugees have
been receiving support and assistance from the United Nations
Relief and Works Agency for Palestine Refugees in the Near
East (UNRWA), established by the UN General Assembly in 1949.2
According to various estimates, the number of refugees in
1949 was between 538,000 (Israeli sources), 720,000 (UN estimates),
and 850,000 (Palestinian sources). By 2001, the number of
refugees registered with and supported by UNRWA had grown
to about 3.5 million, since also children, grandchildren,
and great-grandchildren are registered. Another reason for
this increase is the fact that UNRWA does not systematically
delete all deceased persons from its registry. According to
UNRWA, in 2000 there were about 550,000 refugees in the West
Bank, some 800,000 in the Gaza Strip, 1,500,000 in Jordan,
350,000 in Lebanon, and 350,000 as well in Syria. Only part
of them have lived in refugee camps. The situation of the
refugees has been particularly severe in the Gaza Strip and
The plight of the refugees raises at least three legal questions:
1. Who should be considered to be a refugee?
2. Do the Palestinian refugees have a right to return to Israel?
3. Do they have a right to compensation?
Who is a Refugee?
The question arises whether all those registered with UNRWA
should be considered as refugees. The 1951-1967 Convention
Relating to the Status of Refugees4 has adopted the following
...[A]ny person who: (2) owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion, is outside
the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection
of that country; or who, not having a nationality and being
outside the country of his former habitual residence, is unable
or, owing to such fear, is unwilling to return to it...
There is no mention in this definition of descendents. Moreover,
the convention ceases to apply to a person who, inter alia,
"has acquired a new nationality, and enjoys the protection
of the country of his new nationality."5
Under this definition, the number of Palestinians qualifying
for refugee status would be well below half a million. However,
the Arab states managed to exclude the Palestinians from that
definition, by introducing the following provision into the
1951-1967 Refugees Convention:
This Convention shall not apply to persons who are at present
receiving from organs or agencies of the United Nations other
than the United Nations High Commissioner for Refugees protection
In no official document have the Palestinian refugees been
defined, and UNRWA has been adopting varying definitions,
A Palestinian refugee is a person whose normal residence was
Palestine for a minimum of two years preceding the conflict
in 1948, and who, as a result of this conflict, lost both
his home and his means of livelihood and took refuge in one
of the countries where UNRWA provides relief. Refugees within
this definition and the direct descendants of such refugees
are eligible for Agency assistance if they are: registered
with UNRWA; living in the area of UNRWA operations; and in
This is a very broad definition under which the number of
refugees constantly increases. It may be appropriate for UNRWA
purposes in order to decide who qualifies for assistance,
but it is hardly suitable for other purposes. It follows that
the parties should agree on a more suitable definition.
Do Refugees Have a Right to Return to Israel?
Another legal controversy concerns the question whether the
refugees, whatever their definition, have a right to return
to Israel. We will discuss this subject from three points
of view: general international law, the most relevant UN resolutions,
and various agreements between Israel and its neighbors.
Several international human rights treaties deal with freedom
of movement, including the right of return.8 The most universal
provision is included in the 1966 International Covenant on
Civil and Political Rights, which says: "No one shall
be arbitrarily deprived of the right to enter his own country."9
The question arises, who has the right of return, or: what
kind of relationship must exist between the state and the
person who wishes to return? A comparison of the various texts
and a look at the discussions which took place before the
adoption of these texts lead to the conclusion that the right
of return is probably reserved only for nationals of the state.10
Even the right of nationals is not an absolute one, but it
may be limited on condition that the reasons for the denial
or limitation are not arbitrary.
Moreover, according to Stig Jagerskiold, the right of return
or the right to enter one's country in the 1966 International
is intended to apply to individuals asserting an individual
right. There was no intention here to address the claims of
masses of people who have been displaced as a by-product of
war or by political transfers of territory or population,
such as the relocation of ethnic Germans from Eastern Europe
during and after the Second World War, the flight of the Palestinians
from what became Israel, or the movement of Jews from the
In the context of general international law one also has to
observe that humanitarian law conventions (such as the 1949
Geneva Conventions for the Protection of Victims of War) do
not recognize a right of return.
The Impact of UN General Assembly Resolution 194
The first major UN resolution that refers to the Palestinian
refugees is Resolution 194 (III) of 11 December 1948, adopted
by the General Assembly.12 This resolution established a Conciliation
Commission for Palestine and instructed it to "take steps
to assist the Governments and authorities concerned to achieve
a final settlement of all questions outstanding between them."
Paragraph 11 deals with the refugees:
The General Assembly...resolves that the refugees wishing
to return to their homes and live at peace with their neighbors
should be permitted to do so at the earliest practicable date,
and that compensation should be paid for the property of those
choosing not to return and for loss of or damage to property
which, under principles of international law or in equity,
should be made good by the Governments or authorities responsible...
Though the Arab states originally rejected the resolution,
they later relied on it heavily and have considered it as
recognition of a wholesale right of repatriation.
This interpretation, however, does not seem warranted: the
paragraph does not recognize any "right," but recommends
that the refugees "should" be "permitted"
to return. Moreover, that permission is subject to two conditions
- that the refugee wishes to return, and that he wishes to
live at peace with his neighbors. The violence that erupted
in September 2000 forecloses any hope for a peaceful co-existence
between Israelis and masses of returning refugees. Moreover,
the Palestinians have linked the request for return to a claim
for self-determination. If returning refugees had a right
to external self-determination, this would mean the end of
the very existence of the State of Israel. Under the 1948
resolution, the return should take place only "at the
earliest practicable date." The use of the term "should"
with regard to the permission to return underlines that this
is only a recommendation - it is hortatory.13 One should also
remember that under the UN Charter the General Assembly is
not authorized to adopt binding resolutions, except in budgetary
matters and with regard to its own internal rules and regulations.
Finally, the reference to principles of international law
or equity refers only to compensation for property and does
not seem to refer to permission to return.
It should also be borne in mind that the provision concerning
the refugees is but one element of the resolution that foresaw
"a final settlement of all questions outstanding between"
the parties, whereas the Arab states have always insisted
on its implementation (in accordance with the interpretation
favorable to them) independently of all other matters.
In this context one should bear in mind that the General Assembly
has also recommended the "reintegration of the refugees
into the economic life of the Near East, either by repatriation
or resettlement" (emphasis added, R.L.).14
As a result of the Six-Day War in 1967, there were about 200,000
Palestinian displaced persons (i.e., persons who had to leave
their home and move to another place in the same state). These
were dealt with by Security Council Resolution 237 of 4 June
1967,15 which called upon the government of Israel "to
facilitate the return of those inhabitants [of the areas where
military operations have taken place] who have fled the areas
since the outbreak of hostilities." The resolution does
not speak of a "right" of return and, like most
Security Council resolutions, it is in the nature of a recommendation.
Nevertheless, Israel has agreed to their return in various
agreements, to be studied later. Some 30 percent of the displaced
persons of 1967 had already been counted as refugees of 1948.16
Of great importance in the Arab-Israel peace process is Security
Council Resolution 242 of 22 November 1967.17 In its second
paragraph, the Council "Affirms further the necessity...(b)
for achieving a just settlement of the refugee problem."
The Council did not propose a specific solution, nor did it
limit the provision to Arab refugees, probably because the
right to compensation of Jewish refugees from Arab lands also
deserves a "just settlement." There is no basis
for the Arab claim that Resolution 242 incorporates the solution
recommended by General Assembly Resolution 194 of 1948 analyzed
The Refugee Question in Arab-Israeli Agreements
Turning now to agreements between Israel and its neighbors,
we find that already in the Framework for Peace in the Middle
East agreed at Camp David in 1978 by Egypt and Israel,18 the
refugee problem was tackled: It was agreed that a "continuing
committee" including representatives of Egypt, Israel,
Jordan, and the Palestinians should "decide by agreement
on the modalities of admission of persons displaced from the
West Bank and Gaza in 1967" (Article A, 3). Similarly,
it was agreed that "Egypt and Israel will work with each
other and with other interested parties to establish agreed
procedures for a prompt, just and permanent implementation
of the resolution of the refugee problem" (Article A,
In the Declaration of Principles on Interim Self-Government
Arrangements of 1993 between Israel and the Palestinians,19
again it was agreed that the modalities of admission of persons
displaced in 1967 should be decided by agreement in a "continuing
committee" (Article XII). The issue of refugees should
be negotiated in the framework of the permanent status negotiations
(Article V, 3). The 1995 Israeli-Palestinian Interim Agreement
on the West Bank and the Gaza Strip20 adopted similar provisions
(Articles XXXVII, 2 and XXXI, 5).
Somewhat more detailed is the relevant provision (Article
8) in the Treaty of Peace between Israel and Jordan of 1994.21
As to the displaced persons, they are the object of a text
similar to the above ones. As to the refugees, the peace treaty
mentions the need to solve their problem both in the framework
of the Multilateral Working Group on Refugees established
after the 1991 Madrid Peace Conference, and in conjunction
with the permanent status negotiations. The treaty also mentions
"United Nations programs and other agreed international
economic programs concerning refugees and displaced persons,
including assistance to their settlement."22
None of the agreements between Israel and Egypt, the Palestinians,
and Jordan, respectively, has granted the refugees a right
of return into Israel.
This short survey has shown that neither under the general
international conventions, nor under the major UN resolutions,
nor under the relevant agreements between the parties, do
the Palestinian refugees have a right to return to Israel.
In 2000 there were about 3.8 million Palestinian refugees
registered with UNRWA. If Israel were to allow all of them
to return to its territory, this would be an act of suicide
on its part, and no state can be expected to destroy itself.
On the other hand, at least some of the refugees would object
to and try to delegitimize any agreement that did not grant
a wholesale right of return.23 Moreover, they threaten those
who would like to settle for a different solution. It seems
to be a vicious circle.
The solution may include a right to return to the new Palestinian
homeland, settlement and integration in various other states
(Arab and non-Arab), and possible return to Israel if compelling
humanitarian reasons are involved, such as family unification.24
A Right to Compensation?
The third legal problem pertaining to refugees is the question
of whether they have a right to compensation for their lost
property, and to a subsidy for their rehabilitation, i.e.,
integration or resettlement or return, respectively.25 General
international law recognizes the obligation to pay compensation
in case of confiscation of property belonging to foreigners.
There is, however, disagreement about the amount that should
be paid. In this case, two experts have suggested a standard
of "adequate compensation," taking into account
the value of the property and the specific needs of the respective
refugee.26 If a definitive solution to the problem is sought,
one should consider paying - either by law or ex gratia -
not only compensation for lost property but also a reasonable
subsidy for rehabilitation, and perhaps also compensation
to the host country, where the refugee has lived and where
he should settle. Since Israel had not started the 1947-48
war but was attacked by the Arabs, it is not responsible for
the creation of the refugee problem. Hence it is not under
an obligation to recruit the necessary sums. Preferably an
international fund should be established for that purpose,
to which other countries as well as Israel would contribute.
The difficulty is the enormous sums which would be needed.27
It is advisable to resort to a lump sum arrangement which
would settle all financial claims between the parties and
preclude any further claims. A way would have to be found
in order that the arrangement would bind not only Israel and
the Palestinian Authority, but also all the refugees.
To conclude our discussion of the refugee problem, it is recommended
that the parties agree on a reasonable definition of the refugees
and not automatically adopt the one used by UNRWA. The refugees
do not have a right of return to Israel, neither under general
nor special international law; the adequate solution seems
to be return to the Palestinian homeland, resettlement and
absorption in other countries (preferably according to the
wishes of each refugee), and some may be allowed to return
to Israel. A prompt and adequate solution will also involve
the payment of compensation for lost property and a subsidy
1. Eyal Benvenisti and Eyal Zamir,
"Private Claims to Property Rights in the Future Israeli-Palestinian
Settlement," American Journal of International Law 89 (1995):297.
2. UN General Assembly Resolution 302 (IV) of 8 December 1949,
adopted at the 273rd plenary meeting.
3. Yitzhak Ravid, The Palestinian Refugees (Ramat Gan, 2001),
pp. 1-12 (Hebrew).
4. UN Treaty Series, vol. 189, no. 2545 (1954), pp. 152-156,
article 1A (2).
5. Ibid., Article 1 C (3).
6. Ibid., Article 1 D.
7. Don Peretz, Palestinians, Refugees, and the Middle East Peace
Process (Washington, D.C., 1993), pp. 11-12.
8. The 1948 Universal Declaration of Human Rights, Article 13
(2); the 1966 International Covenant on Civil and Political
Rights, Article 12 (4); the 1963 Protocol IV to the European
Convention on Human Rights, Article 3 (2); the 1969 American
Convention of Human Rights, Article 22 (5); the 1981 Banjul
Charter on Human and Peoples' Rights, Article 12 (2) - see Basic
Documents on Human Rights, Sir Ian Brownlie, ed., 3rd ed. (Oxford,
1992), pp. 21, 125, 347, 495, 551; for additional examples,
see Paul Sieghart, The International Law of Human Rights (Oxford,
1985), pp. 174-178.
9. 1966 International Covenant on Civil and Political Rights,
Article 12 (4).
10. Paul Sieghart, The International Law of Human Rights, p.
179; Geoffrey R. Watson, The Oslo Accords: International Law
and the Israeli-Palestinian Peace Agreements (Oxford, 2000),
p. 283; Ruth Lapidoth, "The Right of Return in International
Law, with Special Reference to the Palestinian Refugees,"
Israel Yearbook on Human Rights 16 (1986), pp. 107-108.
Some experts are of the opinion that the right of return applies
also to "permanent legal residents" - see, e.g., the
discussion that took place in the sub-commission on Prevention
of Discrimination and Protection of Minorities, as reported
in the Report by Chairman-Rapporteur Mr. Asbjorn Eide, UN Doc.
E/CN.4/Sub.2/1991/45, of 28 August 1991, p. 5. The Human Rights
Committee established under the International Covenant on Civil
and Political Rights has adopted an interpretation according
to which the right of return belongs also to a person who has
"close and enduring connections" to a certain country
- UN Doc. CCPR/C/21/Rev. 1/Add. 9, 2 November 1999, pp. 5-6.
11. Stig Jagerskiold, "The Freedom of Movement," The
International Bill of Rights, Louis Henkin, ed. (New York, 1981),
p. 180. For a different opinion, see Geoffrey Watson, Oslo Accords,
12. GAOR, 3rd session, part I, 1948, Resolutions, pp. 21-24.
13. Geoffrey Watson, Oslo Accords, p. 281.
14. UN General Assembly Resolution 393 (V), 2 December 1950,
adopted at the 315th plenary meeting. See also the second paragraph
of UN General Assembly Resolution 194 (III), 11 December 1948,
and Resolution 513 (VI), 26 January 1952, adopted at the 365th
15. SCOR, 22nd year, Resolutions and Decisions, 1967, p. 5.
16. Salim Tamari, "The Future of Palestinian Refugees in
the Peace Negotiations," Palestine-Israel Journal 2 (1995):12.
17. SCOR, 22nd year, Resolutions and Decisions, pp. 8-9. For
its legislative history, see, e.g., Arthur Lall, The U.N. and
the Middle East Crisis 1967 (New York, 1968). For an analysis,
see, e.g., Adnan Abu Odeh, Nabil Elaraby, Meir Rosenne, Dennis
Ross, Eugene Rostow, Vernon Turner, articles in UN Security
Council Resolution 242: The Building Block of Peacemaking (Washington,
D.C., 1993); Ruth Lapidoth, "Security Council Resolution
242 at Twenty Five," Israel Law Review 26 (1992):295-318.
18. UN Treaty Series, vol. 1138 (1987), no. 17853, pp. 39-45.
19. International Legal Materials 32 (1993), pp. 1525-1544.
On this declaration, see, e.g., Joel Singer, "The Declaration
of Principles on Interim Self-Government Arrangements,"
Justice (Tel Aviv), no. 1 (1994):4-21; Eyal Benvenisti, "The
Israel-Palestinian Declaration of Principles: A Framework for
Future Settlement," European Journal of International Law
4 (1993):542-554; Antonio Cassese, "The Israel-PLO Agreement
and Self-Determination," ibid., pp. 564-571; Raja Shihadeh,
"Can the Declaration of Principles Bring About a 'Just
and Lasting Peace'?" ibid., pp. 555-563; Karin Calvo-Goller,
"Le regime d'autonomie prevu par la declaration de principes
du 13 Septembre 1993," Annuaire Francais de Droit International
39 (1993):435; K.W. Meighan, "The Israel-PLO Declaration
of Principles: Prelude to a Peace?" Virginia Journal of
International Law 34 (1994):435-468.
20. Articles 1, 3, 4, 7, 13 and Annex I of the Declaration of
Principles. Excerpts of the 1995 agreement were published in
International Legal Materials 36 (1997), p. 551. For the full
text, see Kitvei Amana (Israel's publication of treaties), vol.
33, no. 1071, pp. 1-400. For commentaries, see Joel Singer,
"The West Bank and Gaza Strip: Phase Two," Justice,
no. 7 (1995):1-12; Rotem M. Giladi, "The Practice and Case
Law of Israel in Matters Related to International Law,"
Israel Law Review 29 (1995):506-534; Raja Shihadeh, From Occupation
to Interim Accords: Israel and the Palestinian Territories (London,
1997), pp. 31-72; Geoffrey Watson, Oslo Accords.
21. International Legal Materials 34 (1995), pp. 43-66.
22. Article 8, para. 2 (c), pp. 49-50.
23. Salim Tamari, "The Future of Palestinian Refugees,"
24. For possible solutions, see Geoffrey Watson, Oslo Accords,
pp. 286-290; Donna E. Arzt, Refugees Into Citizens: Palestinians
and the End of the Arab-Israeli Conflict (New York, 1997); Joseph
Alpher and Khalil Shikaki, The Palestinian Refugee Problem and
the Right of Return, Harvard University, Weatherhead Center
for International Affairs; Working Paper no. 98-7 (Cambridge,
25. Geoffrey Watson, Oslo Accords, pp. 286-290; Eyal Benvenisti
and Eyal Zamir, "Private Claims."
26. Ibid., pp. 331 and 338. However, Resolution 194 (III) spoke
only of compensation for property.
27. Yitzhak Ravid, The Palestinian Refugees, pp. 36-40.