Background
During the war of 1948, some eight hundred thousand of the approximately
nine hundred thousand Palestinians who originally resided in the area
that became Israel, were forced to leave their homes to seek refuge
in the West Bank and Gaza Strip, Jordan, Syria, Lebanon, Egypt and
further afield. Approximately 400 villages and towns depopulated by
the Jewish armed forces under the cover of the war were razed to the
ground. Historical research, carried out in part by Israeli historians,
reveals that these events were carried out with the aim of establishing
an ethnically homogeneous Jewish State.
The injustice
inherent in these ethnically-motivated mass expulsions was internationally
recognized. For example, UN Mediator Count Folke Bernadotte stated
that: "It would be an offence 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" (UN Doc Al 648, 1948).
In response
to these events, the UN General Assembly adopted Resolution 194 on
December 11, 1948, calling for the return of the refugees. Paragraph
11 of the Resolution states 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... 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." Resolution 194 was affirmed practically every year
since with almost universal consensus -- the one constant exception
being Israel.
Resolution
194 restated and reaffirmed a well-established norm in international
law and practice, namely the right of return. This norm is reiterated
in several international law instruments such as Article 13 of the
Universal Declaration of Human Rights which states that: "everyone
has the right to
return to his country." In practice, this
right has been exercised recently in various parts of the world such
as Central America, the Balkans, Southern Africa, and parts of Asia.
The universal
recognition of the right of refugees to return to their homes is not
only legal and moral in character. It also responds to practical necessities
and considerations. The return of refugees is an essential component
of generating public confidence in peace: it plays an essential part
in validating and stabilizing the post-conflict political order. The
return of refugees is an essential part of the transition to peace,
rather than simply a result of it. The end of a conflict is inconceivable
without bringing closure to refugee problems.
The stability
generated by the return of refugees is an essential element of any
post-war security regime. This was most recently recognized in Article
22 of the Charter for European Security, adopted by the Organization
for Security and Cooperation in Europe, which states: "We reaffirm
our commitment
to facilitate the voluntary return of refugees
and internally displaced persons in dignity and safety. We will pursue
without discrimination the reintegration of refugees and internally
displaced persons in their places of origin."
Palestinian
position
The Israeli
authorities have constantly refused to allow the refugees to return
to their homes. In addition to being a contravention against international
law, basic human rights and United Nations resolutions, this refusal
also contravenes the agreed basis for the permanent status negotiations,
namely Security Council Resolution 242, which calls for "a just
settlement of the refugee problem". To date, General Assembly
Resolution 194 remains the only internationally agreed basis for a
just settlement of the Palestinian refugee problem.
In order
to bring the Palestinian-Israeli conflict to an end, and so as to
reach a peace settlement that is indeed "just and lasting",
the refugee problem has to be definitively resolved. To that end,
Israel must recognize its responsibility for the forced displacement
and dispossession of the Palestinian people and for the subsequent
prevention of their return to their homes. Besides its symbolic significance,
such recognition entails Israeli responsibility for the eventual resolution
of the problem.
Israel
must recognize the right of the Palestinian refugees to return to
their homes. Every refugee should be permitted to return if he or
she chooses to do so. This should be done pursuant to a detailed repatriation
plan that includes the modalities, timetables and numbers for a phased
return of the refugees. This plan must ensure the safety and dignity
of return in accordance with international human rights norms.
In addition
to enabling their return, Israel must compensate the refugees for
the damages inflicted upon them as a result of their dispossession
and displacement. Refugees are entitled to compensation for loss of
or damage to property, personal injury, mental pain and anguish, and
any other damage arising as a result of their displacement and dispossession.
Palestinian refugees are entitled to compensation whether or not they
choose to exercise their right to return.
Moreover,
real property owned by the refugees at the time of their expulsion
should be restored to its lawful Palestinian owners or their successors.
International law regards private ownership as sacrosanct. Accordingly,
the various discriminatory laws and administrative schemes, notably
the Absentee Property Law, enacted by the Israeli authorities since
1948 to seize the property of the refugees and transfer it to the
state of Israel, its agencies, or to the hands of Jewish individuals
must be repealed and the seized property should be restored whether
the refugee chooses to return or not.
To date,
Palestinian refugees and their descendants constitute the largest
and most longstanding refugee population in the world. Keeping such
a population without connection to, or inclusion in peace will contribute
to the perpetuation of the conflict. Only a just settlement of the
refugee problem based on Resolution 194 could lead to the achievement
of a truly lasting and comprehensive peace in the Middle East.