Category Archives: Right to free movement

David Ben-Gurion, Israel’s Segregationist Founder

http://forward.com/opinion/israel/308306/ben-gurion-israels-segregationist-founder/

David Ben-Gurion, Israel’s Segregationist Founder
Seth J. FrantzmanMay 18, 2015

‘The danger we face is that the great majority of those children whose parents did not receive an education for generations will descend to the level of Arab children,” Israel’s first prime minister, David Ben-Gurion, declared at a July 1962 meeting. He was speaking with the head of a teachers federation on the question of whether to segregate “Mizrahi” children, whose parents came from Muslim countries, from “Ashkenazi” children in school.

In the document from the Labor Party archives, revealed recently in Haaretz, a shocking image is conjured up. Did Israel’s first leader really consider segregating Jewish children according to country of origin? Why did he use racially tinged terms of abuse, worrying that Israel would become “Levantine” and “descend” to be “like the Arabs”?

The document is emblematic of a tragic Israeli problem, the legacy of the disastrous policies put in place in the early years of the state that at the time seemed in line with prevailing European concepts but did irreparable harm.

Consider the case revealed on April 9 by author Orna Akad at the blog +972. She related how 23 years ago she went to a workshop at the community of Neve Shalom. “One of the participants in the workshop was also a member of the community’s admission committee… we came up to her full of hope and said proudly that we are a couple, a Jewish woman and an Arab man, and that we would like to register and appear before the community’s admission committee,” Akad said. The woman had bad news: “We are a community which encourages life together in coexistence, but we are opposed to mixed marriage.”

If you are perplexed, you should be. Israel’s small communities have an unusual way of organizing themselves. An “acceptance” or admissions committee regulates almost every single community outside a major town. You can’t just move to a place, you have to ask to be admitted. It is why a May 2012 headline screamed, “Sderot activists win right to move to Kibbutz Gevim.” They didn’t want to be kibbutz members, just to live in an expansion area of the kibbutz. But one committee member had blocked them, reportedly saying, “We are trying to introduce new blood into the community, but new blood needs to match what is already there.” The newcomers were not “attuned to community life.”

  How did some 1,000 communities in Israel become gated communities, so that people who are Arab, Ethiopian or other minorities can be denied the right to live where they want either directly or as result of euphemistic rulings like that they are “not attuned to community”? This is one of the main legacies of 1950s Israel.

Admissions committees created ethnically homogenous Jewish communities (Yemenites in one place, Hungarians in another). Worse, a segregated education system for Jews and Arabs cemented total separation so that 99% of pupils study in either Jewish or Arab schools through the end of high school. The education system was put in place in 1949, but it should have been obvious that “separate development” was a road to future disaster.

David Ben-Gurion is often portrayed as a mythical formative figure in the early years of the Jewish state. In Anita Shapira’s 2014 biography she lionizes him: “He knew how to create and exploit the circumstances that made its [Israel’s] birth possible.” Peter Beinart similarly paints a picture of early Israel endowed with liberal and socialist principles. “Labor Zionists insisted that the character of Jewish life in Palestine, and of the eventual Jewish state, was as important as the state itself.” The well-known author Ari Shavit wrote in his book, “My Promised Land,” that “the newborn state [of Israel] was one of the most egalitarian democracies in the world.” Washington Post columnist Richard Cohen romanticized Israel’s early years as “fighting intellectuals, rifle in one hand and a volume of Kierkegaard in the other.”

There is a massive nostalgia and a total misunderstanding of the nature of the state in those years. Israel was not egalitarian in the 1950s; it was a divided society, in which Arab citizens, having watched the vast majority of their community flee or be expelled from the country in 1948, were kept under military-imposed curfew. It was a society in which security concerns trumped civil rights, in which nationalistic military parades were common, and ethnic and religious divisions were cemented.

The founders of the state saw themselves as embarking on a massive social engineering experiment. As these new documents reveal, Ben-Gurion imagined that the Jews who had come from Arab countries would soon outnumber Jews of European origin — “In another 10-15 years they will be the nation, and we will become a Levantine nation, [unless] with a deliberate effort we raise them…” he said. The country had a responsibility to elevate this population from its many generations of living in, as he disparagingly put it “downtrodden, backward countries.” The disdain for Arab culture was extreme, despite the fact that Arabs in British Mandatory Palestine held high positions, were the intellectual elite of the country and had a sophisticated society.

The discrimination of the 1950s haunts Israel today. It persists in the media, as when Tel Aviv’s Ashkenazi elite is referred to as a “white tribe,” or when Russian immigrants are mocked as having “crime in their blood” and a successful Arab citizen like TV host Lucy Aharish is described in one article as not “dressing like an Arab.” The segregated schools and admissions committees created a balkanized society. Rather than romanticizing the leader who perpetuated these divisions, people should imagine an Israel in the future that reforms the failed legacy. Reduce segregation and encourage diverse communities. Interrogate the past, don’t whitewash it.

Seth J. Frantzman is the opinion editor of The Jerusalem Post.

The quantum mechanics of Israeli totalitarianism

http://www.aljazeera.com/indepth/opinion/2015/05/quantum-mechanics-israeli-totalitarianism-150507072609153.html

The quantum mechanics of Israeli totalitarianism

To understand how it feels to be a Palestinian, you need to think like a particle physicist, not a social scientist.

Mark LeVine, Al Jazeera, 7 May 2015

With the coalition government formed by Prime Minister Benjamin Netanyahu easily the most ultranationalist and conservative government in Israel’s history, even the most cockeyed optimist would shrink from imagining that Oslo can still be revived, if only the right treatment were concocted.

The problem today is not that anyone but the most self-interested Israeli, Palestinian or US officials still pretends that the peace process is functioning. Rather, it’s that hardly anyone in a position of power can explain precisely when, how and especially why it died. To do so requires moving far more deeply into the dynamics of the endlessly troubled peace process than most policy-makers or commentators are willing to delve, into what I term the “quantum mechanics” underlying Oslo’s fatally flawed structures.

Israel has long claimed uniquely democratic credentials in a region besot with authoritarian regimes.

The unending occupation, the sheer chutzpah with which the Israeli government continues to expand its presence in the West Bank while sieging Gaza, the escalating protests by minorities inside the country’s 1967 borders, and the composition of the new government, all put the lie to such claims today.

Matrix of control

What’s still poorly understood by most non-Palestinians is just how deep the level of control has long been. Even if you’ve spent decades travelling through the West Bank and Gaza, the intensity of that control remains hard to grasp.

As I walked through the Jordan Valley last month near the front-line village of Fasayel, I began to understand how one reason why it’s been so difficult to explain the intensity and all-encompassing scope of Israel’s “matrix of control” over the Occupied Territories is that even its critics don’t use strong enough language to describe it.

Israel is not just an “occupier” or a “coloniser”. However democratic it may (or may not) be inside its 1967 borders, in the Occupied Territories Israel’s rule is nothing short of totalitarian.

In calling Israeli rule totalitarian, I am not arguing that the government mimics the worst policies of thought control and ideological purism practised by the 20th century’s Fascist and Communist states such as Nazi Germany, Stalinist Russia or Maoist China (although Israel’s constant harassment and imprisonment of Palestinian activists does reflect a desire to control how Palestinians think and act, at least publicly).

Rather, I’m talking about a much deeper level of control, at what can only be described as the quantum level of Palestinian daily life.

To understand how it feels to live as a Palestinian today you need to think like a particle physicist, not a social scientist. Moving through the space of Israel/Palestine involves negotiating a host of forces that the average Palestinian has about as much control over as the average electron or proton does of the nuclear and quantum forces determining its path. And it’s through this near total control of the space that Israel is able, in George Orwell’s description of totalitarianism, to “control the past as well as the future”.

Israeli geographer Jeff Halper, founder of the Israeli Committee Against Home Demolitions (ICAHD) coined the “matrix of control” to describe these forces. The name evokes numerous overlapping layers of control, including the physical infrastructure of settlements and their security corridors and zones, bypass roads, closed military areas and even “nature reserves”. The matrix also includes the bureaucratic and legal/planning levels, and the use of large-scale violence and imprisonment to control people’s behaviour and movement.

With its matrix of control, Israel has achieved an unparalleled and uniquely successful synergy of “bio” and “necro”-politics, controlling life and death at most every scale of Palestinian existence. The matrix is continuously adjusted with as much care as Israel has adjusted the caloric intake of Gazans during its periodic intensifications of the Gazan siege.

Three, four and five dimensions

A look at the group of detailed maps created by ICAHD reveals upwards of two dozen parameters of control that can intersect at any given coordinate on the map. But the map is only a two dimensional representation of a multidimensional and multi-levelled reality. It’s not just various forces meeting on the ground. When you’re walking through the 97 percent of the West Bank that is in Areas B or C and thus under Israel security control, you realise that the matrix extends both under the ground you’re walking on and above your head.

Below ground, Israel controls all the water resources in the West Bank, and for 50 years has systematically taken most every possible well, stream, aquifer or other water source from Palestinians (in direct violation of international law, it must be remembered).

It also controls the airspace above Palestinians’ heads, as the constant buzz of Israeli fighter jets training overhead in the Jordan Valley, and the ubiquitous presence of drones and helicopters almost everywhere at any time, and the prohibitions on building new floors on existing structures makes clear.

In whatever direction Palestinians look or want to step or reach – left or right, forwards or backwards, above or below them – the land, air and water surrounding them is largely outside their permanent control.

Blink of an eye

But it is not just that most of their territory is out of Palestinian hands. The quantum physics of Israel’s matrix of control also has its own Heisenberg, or uncertainty principle.

In quantum mechanics this principle asserts that it is impossible to know with precision the exact state of a particle because the very act of observing it changes its state. In the same way, merely by changing their location Palestinians change the state of territory upon which they are moving.

On the one hand, despite the rockiness of the landscape, the geography of the West Bank can be among the most liquid on earth. It changes as one moves through it, depending on who you are – Jew or Palestinian, settler or refusnik, soldier or international. Spaces that seems open and free can suddenly be surrounded by military forces and closed off, declared off limits for any length of time for a variety of reasons merely because Palestinians moved into and through it or used it for grazing, water, or other normal activities.

Moreover, their very movement through the geography can change it not just for a moment, but permanently. At the same time, the uncertainty principle can also operate with a time lag. If Palestinians decide to walk through a Jordan Valley village, for example, or to plant trees on their land in the hills around Hebron or Jenin, it’s not at all uncommon for the Israeli military to issue demolition or confiscation orders a few days later.

In particular, the movement of Jews has an even more profound effect than Palestinians especially when establishing an outpost or settlement. Once land is claimed even on the flimsiest of pretexts the military usually moves in and declares a still larger area a security zone, making it impossible for Palestinians to access the land for months, years or even decades.

And so, it seems that land in Palestine can change states from liquid to solid almost instantly, freezing in place whatever Israel decides it wants frozen, from people to legal categories. The quantum physics of Palestinian geography can thus produce permanent changes not just in the three normal dimensions of space, but in the conflict’s “fourth dimension” as well, namely time.

But however many dimensions one considers, the goal remains the same: to achieve, in the words of the Palestinian-Israeli hip-hop group DAM, “Maximum Jews on maximum land; minimum Arabs on minimum land.”

Neoliberal policies

There is even a fifth, economic dimension in which the physics of the Israeli-Palestinian conflict operates. The neoliberal policies imposed on the Occupied Territories under Oslo have ensured that when Palestinians aren’t being displaced by Israeli settlers or bombs, they are fixed in place as objects of development, whose economic life is confined to small spaces that remain largely under Israeli control. The possibility of their becoming subjects able to shape their own destinies is, it seems, outside the laws of physics operating in the Holy Land.

It is the changeling nature of the political, physical and economic geographies of the Israeli-controlled Occupied Territories that has made it so difficult for Palestinians and their supporters internationally (including in Israel) to develop effective strategies of resistance, nevermind transcending the occupation.

With Oslo’s final demise, Palestinians don’t just need new strategies for resisting an occupation without end; what’s needed is an entirely new physics as well.

Indeed, it has long been argued that Palestinians are still waiting for their Ghandi. It might well turn out that to overcome decades of totalitarian Israeli rule, a long-dead peace process, and ineptitude, corruption and authoritarianism internally, Einstein would be a far more useful figure.

Mark LeVine is a professor of Middle Eastern History at University of California, Irvine, and a Distinguished Visiting Professor at Lund University.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.
 
Source: Al Jazeera

Racism is the Foundation of Israel’s Operation Protective Edge

http://www.jadaliyya.com/pages/index/18732/racism-is-the-foundation-of-israels-operation-prot

Racism is the Foundation of Israel’s Operation Protective Edge
Jul 30 2014, by Joel Beinin

On 30 June Ayelet Shaked, chairwoman of the Knesset faction of the ultra-right wing ha-Bayit ha-Yehudi (Jewish Home) Party, a key member of the coalition government led by Prime Minister Netanyahu, posted on her Facebook page a previously unpublished article written by the late Uri Elitzur. Elitzur, a pro-settler journalist and former chief-of-staff to Netanyahu, wrote:

Behind every terrorist stand dozens of men and women, without whom he could not engage in terrorism… They are all enemy combatants, and their blood shall be on all their heads. Now, this also includes the mothers of the martyrs, who send them to hell with flowers and kisses. They must follow their sons. Nothing would be more just. They should go, as well as the physical homes in which they raised the snakes. Otherwise, more little snakes will be raised there.

Shaked’s post appeared the day the bodies of three abducted settler teens­—Naftali Fraenkel, Gilad Shaar, and Eyal Yifrach—were discovered. It has since received more than 5,200 “likes.”

For over two weeks, Netanyahu and the media whipped the country into a hysterical state, accusing Hamas of responsibility for abducting the teens without providing evidence to support the claim and promoting hopes that they would be found alive, although the government knew that the boys were likely murdered within minutes of their abduction. Their deaths provided a pretext for more violent expressions of Israeli anti-Arab racism than ever before.

The viciousness of Mordechai Kedar, lecturer in Arabic literature at Bar Ilan University, was even more creative than Shaked and Elitzur’s merely genocidal proposal. “The only thing that can deter terrorists like those who kidnapped the children and killed them,” he said, “is the knowledge that their sister or their mother will be raped.” As a university-based “expert,” Kedar’s heinous suggestion is based on his “understanding” of Arab culture. “It sounds very bad, but that’s the Middle East,” he explained, hastening to add, “I’m not talking about what we should or shouldn’t do. I’m talking about the facts.”

Racism has become a legitimate, indeed an integral, component of Israeli public culture, making assertions like these seem “normal.” The public devaluation of Arab life enables a society that sees itself as “enlightened” and “democratic” to repeatedly send its army to slaughter the largely defenseless population of the Gaza Strip—1.8 million people, mostly descendants of refugees who arrived during the 1948 Arab-Israeli war, and have been, to a greater or lesser extent, imprisoned since 1994.

Conciliatory gestures, on the other hand, are scorned. Just two days after Shaked’s Facebook post, Orthodox Jews kidnapped sixteen-year-old Muhammad Abu Khdeir from the Shu‘afat neighborhood of East Jerusalem and burned him alive in the Jerusalem Forest. Amir Peretz (Hatnua) was the only government minister to visit the grieving family. For this effort he received dozens of posts on his Facebook page threatening to kill him and his family. Meanwhile, vandals twice destroyed memorials erected to Abu Khdeir on the spot of his immolation.

The international community typically sees the manifestations of Israel’s violent racism only when they erupt as assaults on the Gaza Strip, the West Bank, or Lebanon. But Israel’s increasingly poisonous anti-Arab and anti-Muslim public culture prepares the ground of domestic public opinion long before any military operation and immunizes the army from most criticism of its “excesses.” Moreover, Israeli anti-democratic and racist sentiment is increasingly directed against Palestinian citizens of Israel, who comprise twenty percent of the population.

Foreign Minister Avigdor Lieberman of the Yisrael Beytenu (Israel Is Our Home) Party made his political reputation on the slogan “No Loyalty, No Citizenship”—a demand that Palestinian Israelis swear loyalty oaths as a condition of retaining their citizenship. Since 2004 Lieberman has also advocated “transferring” Palestinian-Israelis residing in the Triangle region to a future Palestinian state, while annexing most West Bank settlements to Israel. In November 2011 Haaretz published a partial list of ten “loyalty-citizenship” bills in various stages of legislation designed to “determine certain citizens’ rights according to their ‘loyalty’ to the state.”

While Lieberman and other MKs pursue legal channels to legally undermine the citizenship of Palestinian-Israelis, their civil rights are already in serious danger. In 2010 eighteen local rabbis warned that the Galilee town of Safed faced an “Arab takeover” and instructed Jewish residents to inform on and boycott Jews who sold or rented dwellings to Arabs. In addition to promoting segregated housing, Safed’s Chief Rabbi, Shmuel Eliyahu, tried to ban Arab students from attending Safed Academic College (about 1,300 Palestinian-Israelis are enrolled, some of whom live in Safed). The rabbinical statement incited rampages by religious Jews chanting “Death to the Arabs,” leading Haaretz columnist Gideon Levy to dub Safed “the most racist city” in Israel. In Karmiel and Upper Nazareth—towns established as part of Israel’s campaign to “Judaize the Galilee”—elected officials have led similar campaigns.

Palestinian Israeli Knesset members receive regular verbal abuse from their Jewish “colleagues.” For example, Hanin Zoabi (National Democratic Alliance), who participated in the 2010 Freedom Flotilla to the Gaza Strip, which Israeli naval commandos attacked, killing nine Turks (one of whom also held US citizenship), has been particularly targeted. In the verbal sparring over the murder of the three teens Foreign Minister Lieberman called her a “terrorist.” Not to be outdone, Miri Regev (Likud) said Zoabi should be “expelled to Gaza and stripped of her [Knesset] immunity.” Other Knesset members—some from putatively “liberal” parties—piled on. [Update: Yesterday—29 July—Hanin Zoabi was suspended from Knesset].

Violence against Arabs in and around Israeli-annexed “Greater Jerusalem” is particularly intense. Much of it is the work of Orthodox Jews. The Jewish Defense League, banned in Israel in 1994 and designated a terrorist organization by the FBI in 2001, and several similar groups regularly assault and harass Arabs. The day of the funeral of the three abducted teens, some two hundred Israelis rampaged through the streets of Jerusalem chanting “Death to Arabs.” The previous evening, hardcore fans of the Betar Jerusalem football club, known as La Familia, rallied chanting, “Death to the Arabs.”  The same chant is frequently heard at games of the team, which is associated with the Likud and does not hire Arab players. Hate marches, beatings and shootings of Arabs, and destruction of their property, long common in the West Bank, have become regular events in Israel-proper in the last month.

The citizenship-loyalty bills, Safed’s designation as “the most racist city,” the attacks volleyed at Palestinian elected officials, and mob violence against Arabs all took place before Israel launched Operation Protective Edge on 8 July. The operation—more aggressively dubbed “Firm Cliff” in Hebrew—constitutes Israel’s third assault on the Gaza Strip since 2008. As of yesterday, 29 July, the Palestinian death toll in that operation has reached over 1,200, the great majority of them civilians. Thirty-two Israeli soldiers and three civilians have also died. Israeli security officials sardonically call these operations “mowing the lawn” because well-informed observers know that Hamas cannot be uprooted and is capable of rebuilding its military capacity. There is no long-term strategy, except, as Gideon Levy put it, to kill Palestinians. Major General (res.) Oren Shachor elaborated, “If we kill their families, that will frighten them.” And what might deter Israel?

[This piece originally appeared in a special weeklong series on the Stanford University Press blog, and is reposted here in partnership with SUP blog. The entire ten-part series can be found on the SUP blog.]

General Comment 27, Art. 12 (ICCPR) (Freedom of movement)

Human Rights Committee, General Comment 27, Freedom of movement (Art.12),
U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999).

1. Liberty of movement is an indispensable condition for the free development of a person. It interacts with several other rights enshrined in the Covenant, as is often shown in the Committee’s practice in considering reports from States parties and communications from individuals. Moreover, the Committee in its general comment No. 15 (“The position of aliens under the Covenant”, 1986) referred to the special link between articles 12 and 13. 1

2. The permissible limitations which may be imposed on the rights protected under article 12 must not nullify the principle of liberty of movement, and are governed by the requirement of necessity provided for in article 12, paragraph 3, and by the need for consistency with the other rights recognized in the Covenant.

3. States parties should provide the Committee in their reports with the relevant domestic legal rules and administrative and judicial practices relating to the rights protected by article 12, taking into account the issues discussed in the present general comment. They must also include information on remedies available if these rights are restricted.

Liberty of movement and freedom to choose residence (para. 1)

4. Everyone lawfully within the territory of a State enjoys, within that territory, the right to move freely and to choose his or her place of residence. In principle, citizens of a State are always lawfully within the territory of that State. The question whether an alien is “lawfully” within the territory of a State is a matter governed by domestic law, which may subject the entry of an alien to the territory of a State to restrictions, provided they are in compliance with the State’s international obligations. In that connection, the Committee has held that an alien who entered the State illegally, but whose status has been regularized, must be considered to be lawfully within the territory for the purposes of article 12. 2 Once a person is lawfully within a State, any restrictions on his or her rights guaranteed by article 12, paragraphs 1 and 2, as well as any treatment different from that accorded to nationals, have to be justified under the rules provided for by article 12, paragraph 3. 3 It is, therefore, important that States parties indicate in their reports the circumstances in which they treat aliens differently from their nationals in this regard and how they justify this difference in treatment.

5. The right to move freely relates to the whole territory of a State, including all parts of federal States. According to article 12, paragraph 1, persons are entitled to move from one place to another and to establish themselves in a place of their choice. The enjoyment of this right must not be made dependent on any particular purpose or reason for the person wanting to move or to stay in a place. Any restrictions must be in conformity with paragraph 3.

6. The State party must ensure that the rights guaranteed in article 12 are protected not only from public but also from private interference. In the case of women, this obligation to protect is particularly pertinent. For example, it is incompatible with article 12, paragraph 1, that the right of a woman to move freely and to choose her residence be made subject, by law or practice, to the decision of another person, including a relative.

7. Subject to the provisions of article 12, paragraph 3, the right to reside in a place of one’s choice within the territory includes protection against all forms of forced internal displacement. It also precludes preventing the entry or stay of persons in a defined part of the territory. Lawful detention, however, affects more specifically the right to personal liberty and is covered by article 9 of the Covenant. In some circumstances, articles 12 and 9 may come into play together. 4

Freedom to leave any country, including one’s own (para. 2)

8. Freedom to leave the territory of a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country. Thus travelling abroad is covered, as well as departure for permanent emigration. Likewise, the right of the individual to determine the State of destination is part of the legal guarantee. As the scope of article 12, paragraph 2, is not restricted to persons lawfully within the territory of a State, an alien being legally expelled from the country is likewise entitled to elect the State of destination, subject to the agreement of that State. 5

9. In order to enable the individual to enjoy the rights guaranteed by article 12, paragraph 2, obligations are imposed both on the State of residence and on the State of nationality. 6 Since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents. The issuing of passports is normally incumbent on the State of nationality of the individual. The refusal by a State to issue a passport or prolong its validity for a national residing abroad may deprive this person of the right to leave the country of residence and to travel elsewhere. 7 It is no justification for the State to claim that its national would be able to return to its territory without a passport.

10. The practice of States often shows that legal rules and administrative measures adversely affect the right to leave, in particular, a person’s own country. It is therefore of the utmost importance that States parties report on all legal and practical restrictions on the right to leave which they apply both to nationals and to foreigners, in order to enable the Committee to assess the conformity of these rules and practices with article 12, paragraph 3. States parties should also include information in their reports on measures that impose sanctions on international carriers which bring to their territory persons without required documents, where those measures affect the right to leave another country.

Restrictions (para. 3)

11. Article 12, paragraph 3, provides for exceptional circumstances in which rights under paragraphs 1 and 2 may be restricted. This provision authorizes the State to restrict these rights only to protect national security, public order (ordre public), public health or morals and the rights and freedoms of others. To be permissible, restrictions must be provided by law, must be necessary in a democratic society for the protection of these purposes and must be consistent with all other rights recognized in the Covenant (see para. 18 below).

12. The law itself has to establish the conditions under which the rights may be limited. State reports should therefore specify the legal norms upon which restrictions are founded. Restrictions which are not provided for in the law or are not in conformity with the requirements of article 12, paragraph 3, would violate the rights guaranteed by paragraphs 1 and 2.

13. In adopting laws providing for restrictions permitted by article 12, paragraph 3, States should always be guided by the principle that the restrictions must not impair the essence of the right (cf. art. 5, para. 1); the relation between right and restriction, between norm and exception, must not be reversed. The laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution.

14. Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.

15. The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided.

16. States have often failed to show that the application of their laws restricting the rights enshrined in article 12, paragraphs 1 and 2, are in conformity with all requirements referred to in article 12, paragraph 3. The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality. These conditions would not be met, for example, if an individual were prevented from leaving a country merely on the ground that he or she is the holder of “State secrets”, or if an individual were prevented from travelling internally without a specific permit. On the other hand, the conditions could be met by restrictions on access to military zones on national security grounds, or limitations on the freedom to settle in areas inhabited by indigenous or minorities communities. 8

17. A major source of concern is the manifold legal and bureaucratic barriers unnecessarily affecting the full enjoyment of the rights of the individuals to move freely, to leave a country, including their own, and to take up residence. Regarding the right to movement within a country, the Committee has criticized provisions requiring individuals to apply for permission to change their residence or to seek the approval of the local authorities of the place of destination, as well as delays in processing such written applications. States’ practice presents an even richer array of obstacles making it more difficult to leave the country, in particular for their own nationals. These rules and practices include, inter alia, lack of access for applicants to the competent authorities and lack of information regarding requirements; the requirement to apply for special forms through which the proper application documents for the issuance of a passport can be obtained; the need for supportive statements from employers or family members; exact description of the travel route; issuance of passports only on payment of high fees substantially exceeding the cost of the service rendered by the administration; unreasonable delays in the issuance of travel documents; restrictions on family members travelling together; requirement of a repatriation deposit or a return ticket; requirement of an invitation from the State of destination or from people living there; harassment of applicants, for example by physical intimidation, arrest, loss of employment or expulsion of their children from school or university; refusal to issue a passport because the applicant is said to harm the good name of the country. In the light of these practices, States parties should make sure that all restrictions imposed by them are in full compliance with article 12, paragraph 3.

18. The application of the restrictions permissible under article 12, paragraph 3, needs to be consistent with the other rights guaranteed in the Covenant and with the fundamental principles of equality and non-discrimination. Thus, it would be a clear violation of the Covenant if the rights enshrined in article 12, paragraphs 1 and 2, were restricted by making distinctions of any kind, such as on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In examining State reports, the Committee has on several occasions found that measures preventing women from moving freely or from leaving the country by requiring them to have the consent or the escort of a male person constitute a violation of article 12.

The right to enter one’s own country (para. 4)

19. The right of a person to enter his or her own country recognizes the special relationship of a person to that country. The right has various facets. It implies the right to remain in one’s own country. It includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person’s State of nationality). The right to return is of the utmost importance for refugees seeking voluntary repatriation. It also implies prohibition of enforced population transfers or mass expulsions to other countries.

20. The wording of article 12, paragraph 4, 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”. 9 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. This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them. The language of article 12, paragraph 4, moreover, permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence. Since other factors may in certain circumstances result in the establishment of close and enduring connections between a person and a country, States parties should include in their reports information on the rights of permanent residents to return to their country of residence.

21. In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.



Notes

1/ HRI/GEN/1/Rev.3, 15 August 1997, p. 20 (para. 8).

2/ Communication No. 456/1991, Celepli v. Sweden, para. 9.2.

3/ General comment No. 15, para. 8, in HRI/GEN/1/Rev.3, 15 August 1997, p. 20.

4/ See, for example, communication No. 138/1983, Mpandajila v. Zaire, para. 10; communication No. 157/1983, Mpaka-Nsusu v. Zaire, para. 10; communication Nos. 241/1987 and 242/1987, Birhashwirwa/Tshisekedi v. Zaire, para. 13.

5/ See general comment No. 15, para. 9, in HRI/GEN/1/Rev.3, 15 August 1997, p. 21.

6/ See communication No. 106/1981, Montero v. Uruguay, para. 9.4; communication No. 57/1979, Vidal Martins v. Uruguay, para. 7; communication No. 77/1980, Lichtensztejn v. Uruguay, para. 6.1.

7/ See communication No. 57/1979, Vidal Martins v. Uruguay, para. 9.

8/ See general comment No. 23, para. 7, in HRI/GEN/1/Rev.3, 15 August 1997, p. 41.

9/ See communication No. 538/1993, Stewart v. Canada.

* Adopted at the 1783rd meeting (sixty-seventh session), held on 18 October 1999.

 

Palestinian Right of Return: International Law Analysis

BADIL – Information & Discussion Brief

Issue No.8 , January 2001

Palestinian Refugees and the Right of Return: An International Law Analysis

Gail J. Boling

BADIL-Briefs aim to support the Palestinian-Arab and international debate about strategies for promotion of Palestinian refugees’ right of return, restitution, and compensation in the framework of a just and durable solution of the Palestinian/Arab – Israeli conflict.


Background

Brief No. 8 is the first of three Briefs (covering the right of return, restitution, and compensation), that examine the basis in international law for a framework for durable solutions for Palestinian refugees. This Brief examines the individual right of return of Palestinian refugees displaced in 1948 as set forth in UN General Assembly Resolution194 (III) of 11 December 1948 as grounded in international law. It is important to note that the individual right of return is completely separate from any collective right of return. However, individual and collective rights are not mutually exclusive under international law but rather supplementary and complementary; the exercise of one right can never cancel out the exercise of another and should never be viewed as doing so.

In this Brief, the author argues that the right of refugees to return to their homes and properties had already achieved customary status (binding international law) by1948 . UN Resolution194 , therefore, simply reaffirms international legal principles that were already binding and which required states to allow refugees to return to their places of origin, and prohibited mass expulsion of persons – particularly on discriminatory grounds. UN Resolution194 ‘s consistency with international law and practice over the past five decades further strengthens its value as a normative framework for a durable solution for Palestinian refugees today.

NOTE: Brief No. 8 is based on a longer legal analysis prepared by Gail J. Boling, Coordinator of BADIL?s Legal Unit. To make the subject of this Brief accessible to the widest possible audience, we have chosen a summarized format with minimal legal citations. The full legal analysis with a complete set of legal citations is available from BADIL upon request.  

Introduction

For more than fifty years, Israel has based its refusal to allow Palestinian refugees to exercise their right of return on a number of key arguments. These include: the lack of physical space, the desire to maintain a demographic Jewish majority, state security, and international law. This Brief addresses the right of return in international law. While supporters of the Israeli position try to attack the right of return as articulated in General Assembly Resolution 194 (III) – for example, by attempting to argue that the right of return is not mandatory, that it does not apply to mass groups and that it is only reserved for “nationals” of Israel – these claims, in fact, have no basis in international law.

The right of refugees to return to their homes and properties – sometimes referred to as their place of last habitual residence – is anchored in four separate bodies of international law: the law of nationality, as applied upon state succession; humanitarian law; human rights law; and refugee law (a subset of human rights law which also incorporates humanitarian law). The right of return applies in cases where persons have been deliberately barred from returning after a temporary departure and in cases of forcible expulsion (on a mass scale, or otherwise). In the latter case, the obligation of the state of origin under international law to receive back illegally expelled persons is even stronger. Any type of governmental policy designed to block the voluntary return of displaced persons is strictly prohibited.

Historically speaking, the right of return had achieved customary status in international law by 1948. Customary norms are legally binding upon all states, and states are, therefore, legally obligated to follow the rules codified by these norms. The United Nations reaffirmed the status of the right of return as a customary norm applicable to Palestinian refugees in General Assembly Resolution 194. The obligation of the United Nations to uphold the rule of law and to ensure the immediate and full implementation of the right of return is even greater due to the role that the UN played (for example, through General Assembly Resolution 181 proposing “partition” of Palestine) in the chain of events that led to the creation of the Palestinian refugee situation in the first place. Israel, however, as the sole “state of origin,” is the only state with the binding obligation under international law to receive back the 1948 Palestinian refugees.

This Brief examines the right of return of Palestinian refugees as grounded in the four relevant bodies of international law. The first section of the Brief examines the right of return as set forth in UN Resolution 194. After reviewing each relevant body of international law, the Brief reviews Resolution 194 once more, in light of international law principles and state practice. The conclusion demonstrates that the responsibility of the international community to ensure that Israel immediately and fully implements the Palestinian refugees’ right of return has not diminished but has, on the contrary, gained even greater weight with the intervening passage of more than fifty years since the period of initial displacement.

UN General Assembly Resolution 194 (III) and the Right of Return

In December 1948, the UN General Assembly established a mechanism, the United Nations Conciliation Commission (UNCCP), to facilitate implementation of durable solutions for refugees in Palestine, based on recommendations of the UN Mediator Count Folke Bernadotte. UN General Assembly Resolution 194, paragraph 11, sets forth the framework for a solution to the plight of Palestinian refugees. Resolution 194, paragraph 11, sub-paragraph 1, by its express terms, identifies three distinct rights that Palestinian refugees are entitled to exercise under international law – return, restitution, and compensation. Resolution 194 further affirms that those refugees choosing not to exercise their right of return are entitled to be resettled and receive compensation for their losses. Paragraph 11, sub-paragraph 2, then instructs the UNCCP to facilitate implementation of the complete set of solutions to the plight of the refugees. These include, in order of reference, repatriation, resettlement, compensation, and economic and social rehabilitation.

Of primary relevance to this Brief is the right of return. Paragraph 11, sub-paragraph 1 of Resolution 194 states the right of return clearly, declaring that the General Assembly:

     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, 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.” 

The emphasis on repatriation as the preferred solution for Palestinian refugees reflects several principles, including the right of displaced persons to return to their homes, as well as the prohibitions against arbitrary denationalization and mass expulsion (explained in the sections below), that were customary norms of international law by 1948. This is reflected in the language of the UN Mediator’s recommendation for a solution to the plight of the refugees, which acknowledges the fact that no new rights were being created. “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”.” (emphasis added).

The UN Mediator’s recommendation was subsequently incorporated into Resolution 194. Commenting on the original draft of paragraph 11, the representative of the United States acknowledged that the General Assembly was creating no new rights, stating that paragraph 11 “endorsed a generally recognized principle and provides a means for implementing that principle”. By contrast, it is important to note that sub-paragraph 1, which delineates the rights of the refugees, does not include resettlement. Resettlement is only included in sub-paragraph 2, which instructs the UNCCP to facilitate implementation of the rights affirmed in sub-paragraph 1 according to the choice of each individual refugee. The emphasis on repatriation was consistent with the mandates of several international agencies established to facilitate solutions for other groups of refugees predating the events of 1948.

The UN Mediator clearly regarded the right of return as the most appropriate remedy to correct the mass expulsion of Palestinians and the massive violation of their fundamental human rights. “The exodus of Palestinian Arabs resulted from panic created by fighting in their communities, by rumors concerning real or alleged acts of terrorism, or expulsion,” wrote Count Bernadotte in his September 1948 report. “There have been numerous reports from reliable sources of large-scale pillaging and plundering, and of instances of destruction of villages without apparent necessity”. It would be an offence against the principles of elemental justice,” Bernadotte concluded, “if these innocent victims of the conflict were denied the right to return to their homes”.”

Several principles are relevant to the implementation of the right of return as delineated in Resolution 194 . First, the Resolution clearly identifies the exact place to which refugees are entitled to return – i.e., to their homes. The drafting history of this provision is instructive. In choosing the term “to their homes,” the UN Secretariat stated that the General Assembly clearly meant the return of each refugee specifically to “his house or lodging and not [just generally to] his homeland.”The General Assembly rejected amendments that referred generally to “the areas from which they [i.e. the refugees] have come.”

Second, the Resolution affirms that return must be guided by the individual choice of each refugee. According to the UN Mediator’s report, it was an “unconditional right” of the refugees “to make a free choice [which] should be fully respected.” Reviewing the drafting history of Resolution 194, the UN Secretariat stated that paragraph 11 “intended to confer upon the refugees as individuals the right of exercising a free choice as to their future.” The legal advisor to the UN Economic Survey Mission reached the same conclusion: “The verb ‘choose’ indicates that the General Assembly assumed that the principle [i.e., the right of return] would be fully implemented, and that all the refugees would be given a free choice as to whether or not they wished to return home.” The principle of refugee choice had also recently been incorporated into the mandate of the International Refugee Organization, established in 1947 to facilitate solutions for WWII refugees in Europe, and would subsequently become a key principle governing durable solutions to refugee flows.

Third, Resolution 194 identifies the time frame for the return of refugees – i.e., “at the earliest practicable date.”  That the General Assembly intended for Israel to repatriate the Palestinian refugees immediately, and without waiting for any final peace agreement with the other parties to the conflict, is indicated by the chosen phrasing of paragraph 11. Based on the drafting history and debate, the UN Secretariat concluded that “the Assembly agreed that the refugees should be allowed to return when stable conditions had been established. It would appear indisputable that such conditions were established by the signing of the four Armistice Agreements in 1949.

Fourth, Resolution 194 imposes an obligation on Israel to re-admit the refugees. The UN Secretariat held the view that Israel was obligated under the provisions of Resolution 194 to create the conditions that would facilitate the return of the refugees. Reviewing the meaning of the phrase that refugees wishing to return to their homes “should be permitted to do so,” the UN Secretariat noted that the injunction imposed an obligation “to ensure the peace of the returning refugees and protect them from any elements seeking to disturb that peace.”

Finally, Resolution 194 was drafted to apply to all refugees in Palestine. While the first two drafts of paragraph 11 used the term “Arab refugees” the final draft approved by the General Assembly on 11 December only used the term “refugees.” The discussion in the General Assembly concerning the draft resolutions indicates that the term “Arab refugees” was initially used simply because most of the refugees were in fact Palestinian Arabs. By using the broader term “refugees,” however, the General Assembly indicated that the rights reaffirmed in paragraph 11 were to be applied on a non-discriminatory basis.

The fact that the General Assembly made Israel’s admission as a member to the United Nations conditional upon implementation of Resolution 194 clearly indicates that the Assembly considered Israel to be fully bound to ensure full implementation of the Palestinian refugees’ right of return. The UN General Assembly has reaffirmed Resolution 194 annually without diminution since its original promulgation in 1948. The right of return, as set forth in Resolution 194, continues to conform with binding norms of international law as explained below, strengthening its relevance as a durable solution for Palestinian refugees.

The Right of Return in the Law of Nationality

The law of nationality is a subset of the larger “law of nations,” which regulates state-to-state obligations. The first major principle of relevance to the right of return is that while states do have some domestic discretion in regulating their nationality status (i.e., determining who is a national of their country) such discretion has clear limits under international law. The domestic discretion of states to regulate their nationality status will only be recognized at the international level to the extent that it complies with international law.

This principle is universally recognized and has been reaffirmed by a 1923 advisory opinion rendered by the Permanent Court of International Justice, in the authoritative 1930 Hague Convention on Certain Questions relating to Conflict of Nationality Laws, and by the International Court of Justice in 1955. It has also been clearly formulated by various United Nations bodies, including the General Assemblx’s Sixth (Legal) Committee and the UN High Commissioner for Refugees. Under the law of nationality, states are limited in their domestic discretion to regulate their own nationality status by several additional binding obligations under international law, as described in the following section.

The Law of State Succession

The law of state succession applies whenever one state (a predecessor state) is followed in the international administration of a geographical territory by another state (the successor state). In the case of Palestinian refugees, the predecessor state was the embryonic state of Palestine for which, under international law, the British Mandate for Palestine constituted a “stand-in,” “custodian” or “guarantor,” and was succeeded, in part, by the state of Israel. When territory undergoes a change of sovereignty, the law of state succession requires that habitual inhabitants of the geographical territory coming under new sovereignty be offered nationality by the new state. Furthermore, this rule applies regardless of whether the habitual residents of the territory so affected are actually physically present in the territory undergoing the change of sovereignty on the actual date of the change or not. This rule represents a customary norm of international law and is binding upon all states.

Article14 (2) of the Articles on Nationality of Natural Persons in Relation to the Succession of States drafted by the International Law Commission and adopted verbatim by the General Assembly, specifically enumerate a right of return in the law of state succession for all habitual residents of a territory undergoing a change in sovereignty. Three aspects of Article 14 are significant in clarifying the rules the mandatory obligation of the successor state (Israel) to implement the right of return of Palestinian refugees in this specific context of state succession. First, irrelevant to (in other words is not a required element for) for habitual residents of a territory undergoing a change of sovereignty to have a right to return to that geographical area. Second, Article 14(2)’s right of return applies by its express terms to all habitual residents of a given territory undergoing a change of sovereignty even if they were actually outside the geographical territory concerned on the actual date of succession. Third,mandatory for all successor states, as is indicated by use of the word “shall” in Article14 (2). Article 5 reiterates the rule of Article 14(2).

Under these rules, the presumption that habitual residents of a territory undergoing a change of sovereignty will acquire the nationality status of the successor state can only be rebutted by nationality procedures, which are themselves in conformity with international law. This rule was recognized by the legal advisor to the UN Economic Survey Mission in 1949 and by a Tel Aviv district court in a 1951 case, in which the judge’s opinion expressly stated that international law and the rules of the law of state succession, in particular, were specifically relied upon. The judge came to the conclusion that in the absence of any law to the contrary (and since the opinion was rendered in 1951, Israel had not yet enacted its 1952 Nationality Law), all Palestinians who remained inside the 1949 armistice lines should automatically be considered nationals of the state of Israel, through the automatic operation of international law. The law of state succession requires the same result as well for all Palestinian refugees who were temporarily outside the territory on the date of succession.

There are two more provisions of the Articles on Nationality, which are extremely relevant to the case of the Palestinian refugees: Article 15, which prohibits governments from practicing discrimination in the conferral of nationality status; and Article 16, which requires that adequate due process safeguards be provided in the determination of nationality status.  Israel has violated Article 15 by drafting its 1952 Nationality Law for “non-Jews” (explained in the section on the prohibition against denationalization below) in such a way as to effectively denationalize Palestinian refugees, while allowing Jews from anywhere in the world to acquire “nationality” status through the much more generous terms of Israel’s Law of Return for Jews (also explained below).  Israel has violated Article  16 by failing to allow Palestinian refugees to re-enter Israel, thereby denying them the basic opportunity to be heard in a court of law to challenge the legality – particularly under international law – of Israel’s 1952 Nationality Law.

Implementing the Right of Return Is an Obligation Owed by a State to All Other States

Under the law of nationality, the duty to implement the individual’s right of return is an obligation owed by a state to all other states. The rule is that states are required to readmit (i.e., allow to exercise their right of return) their own nationals – including temporarily displaced persons in cases of state succession – because to refuse to do so would impose on some other state a resulting obligation to receive, or to host, the rejected individual. This principle is known as the “rule of readmission.”  The rule rests upon the premise that a state may not choose to reject, or leave stranded, a national outside its borders by refusing readmission because such an action would impose an unacceptable corresponding burden upon another (receiving) state to accept the stranded individual. Under international law, states may not burden each other in this way.

The Prohibition against (Mass) Denationalization

There exists another customary (binding) rule under the law of nationality known as the  “prohibition against denationalization.”  This rule follows as a natural corollary to the rule of readmission, already discussed above.  The prohibition against denationalization prevents a state from using revocation of nationality status (i.e., denationalization) as a means of avoiding its obligation to admit its own nationals. This rule – like the rule of readmission, which is its “sister” rule in the law of nationality – had attained customary status well before the events of 1948. The prohibition against denationalization exists in an authoritative draft international convention dating from 1930, various regional declarations (such as the 1986 Strasbourg Declaration on the Right to Leave and Return), in resolutions by UN organs, and numerous respected commentators have written of the prohibition against denationalization as a binding norm of customary law since as early as 1927. The entry for “Population, Expulsion and Transfer” in the authoritative Encyclopedia of Public International Law puts the rule categorically, stating that nationals may not be denied re-admission on the rationale that they are no longer nationals.

Denationalization is prohibited under international law in the case of a single instance affecting a single person. The prohibition against denationalization is therefore much stronger when denationalization is implemented on a mass scale and is intended by the government so acting, to cast out a whole large class of nationals from the body politic of the state. Israel’s 1952 Nationality Law (for “non-Jews”) completely violates the rule of the law of nationality prohibiting denationalization. While the 1952 Nationality Law carefully avoids the use of the term “non-Jew” in describing the narrowly defined categories of persons who might be eligible for Israeli citizenship thereunder, it was clearly intended to apply to non-Jews only because Jews would obviously avail themselves of the easier terms and procedures under the Law of Return (for Jews). The vast majority of Palestinian refugees are factually incapable of meeting the strict requirements of Israel’s 1952 Nationality Law and have therefore been effectively denationalized.

The Right of Return in Humanitarian Law

The right of return is also anchored in humanitarian law, the body of law regulating what states are permitted to do during war. Both the Hague Regulations annexed to the 1907 Hague Convention Respecting the Laws and Customs of War on Land (which are universally recognized, including by Israel, to have achieved customary status by 1939) and the 1949 Geneva Civilians Convention (to which Israel is a signatory) provide for the right of return of displaced persons to their homes following the cessation of hostilities.  The provisional government of Israel (through responsibility for its army and the Zionist paramilitary forces which preceded it) was fully bound by the rules of humanitarian law when Zionist forces unilaterally embarked upon the enterprise of trying to establish a state through military means. Palestinian communities were progressively displaced in 1948 as Zionist/Israeli forces established successive “zones of military occupation” as they gained control over specific geographical areas. 

The “general” Right of Return in Humanitarian Law

Under humanitarian law, there is a general right of return, which applies to all displaced persons, irrespective of how they came to be displaced during the period of conflict. This rule was first codified in Article 43 of the Hague Regulations (and incorporated into all subsequent customary humanitarian law, including the Geneva Conventions and their related Protocols). According to this rule, a belligerent occupant must preserve the legal and social status quo in the occupied territory to the maximum extent possible, pending the final legal resolution of the conflict (i.e., a peace agreement). The content of the rule of Article 43, which is broader in the official (French) version than in the unofficial English translation, means, in practical terms, that a belligerent occupant must let the population continue its normal existence with a minimum of interference. This would logically include a requirement that the local population be permitted to remain in, or return to, their place of origin following the cessation of hostilities.

While the Hague Regulations do not specifically articulate the obligation of a state to repatriate (i.e., allow to exercise their right of return) civilian residents of the territory who may have become temporarily displaced during the conflict, the entire purpose of the Hague Regulations – as is clearly stated in the Preamble to the Hague Convention – and indeed of all humanitarian law generally is to mitigate the severity of war as much as possible and to spare the local inhabitants to the maximum extent possible. Accordingly, it must be logically obvious that the rule of humanitarian law requiring the repatriation of prisoners of war following the cessation of hostilities (which is stated in Article 20 of the Hague Regulations) must necessarily include a rule requiring the repatriation of civilian residents to their place of origin following the cessation of hostilities. 

The sources of the right of return in the Fourth Geneva Convention are Article 4, Article 6(4) and Article 158(3). Article 4 defines protected persons who are covered by the Convention. The definition of protected persons covers all habitual residents of a territory who may have become temporarily displaced from their place of origin during the conflict (for whatever reason), and provision for their repatriation has been made in two separate articles of the Convention. The first repatriation provision appears in Article 6(4), which covers the end dates of the applicability of the Convention.  Specifically, Article 6(4) states that the Convention shall remain in effect, even after the cessation of hostilities, for those protected persons in need of repatriation. The second repatriation provision appears in Article 158, which covers the procedures whereby a state may “denounce” the Convention.  Specifically, Article 158(3) states that a denunciation may not take effect until after the repatriation of protected persons has occurred.

The Right of Return in Cases of Forcible (Mass) Expulsion

There is a second type of right of return provided for in humanitarian law. This applies when persons have been displaced through a forcible expulsion (for example, at gunpoint, under threat of fire or through the deliberate military “stampeding” of a population out of its place of habitual residence). The involuntary transfer of even a single individual – e.g., through deportation – is conclusively prohibited under humanitarian law. Deliberate, forcible expulsion – when carried out on a mass scale – is therefore even more strongly prohibited under humanitarian law. The only appropriate corrective remedy for forcible expulsion, under international law, is implementation of the right of return.

The prohibition against forcible expulsion has its basis in Article 46(1) of the Hague Regulations. Pierre Mounier, an assistant prosecutor for the Allies in the criminal prosecution of the Nazi leaders in the International Military Tribunal (IMT) at Nuremberg, stated in his opening arguments on November 20, 1945 that deportation violated Article 46 of the Hague Regulations, as well as customary international law in general. For that reason, the Charter of the International Military Tribunal included deportation in the definition of both “war crimes” (in Article 6(b) of the IMT Charter) and “crimes against humanity” (in Article 6(c) of the IMT Charter). Barring the return of forcibly expelled persons was similarly condemned as illegal.

The prohibition against forcible expulsion – and the related remedy of repatriation (the right of return) – appear in three articles of the Fourth Geneva Convention. Article 45 strictly limits the circumstances under which protected persons may be temporarily transferred (i.e., only to the care of another state party to the Fourth Geneva Convention) and categorically requires repatriation of protected persons to their (habitual) residence following the cessation of hostilities. Article 49 prohibits forcible expulsion in quite express terms: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”  Like Article 45, Article 49 also requires immediate repatriation “to their homes” of all persons (including those temporarily evacuated during extreme necessity) following the cessation of hostilities.

Article 147 of the Fourth Geneva Convention defines “grave breaches” of the Convention, which are violations of humanitarian law of such egregious severity that they are required to be made subject to penal (criminal) sanctions by all other “Contracting Parties” to the Convention (i.e., states which have signed the Convention).  Deportation and forcible population transfer are classified as grave breaches. Under the theory developed by the prosecutors at the IMT in Nuremberg, deliberately blocking the right of return of persons forcibly expelled also falls well within the scope of a grave breach of the Fourth Geneva Convention. Yet another prohibition against forcible expulsion appears in Article 17 of Protocol II to the Fourth Geneva Convention, which applies in cases of non-international armed conflict.

The Right of Return in Human Rights Law

Human rights law – which confers rights directly upon individuals and not through states – also contains the right of return. Every individually-held right recognized under human rights law imposes a corresponding duty upon states to recognize that enumerated right. The right of return is a customary norm of international human rights law and is found in a vast array of international and regional human rights treaties. The Universal Declaration of Human Rights (UDHR), which the General Assembly adopted in 1948 one day prior to Resolution 194, is the foundation for the right of return in human rights law. Article 13(2) of the UDHR phrases the right of return broadly and simply, as follows: “Everyone has the right to leave any country, including his own, and to return to his country.” Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) phrases the right of return fairly similarly: “No one shall be arbitrarily deprived of the right to enter his own country.” Israel has signed and ratified the ICCPR and has not made any reservations to Article 12(4), containing the right of return.

The phrasing of the right of return under Article 12(4) of the – which uses the term “enter” rather than “return” – is broader than the phrasing of the right under the UDHR.  Thus, the ICCPR phrasing of the right of return would accommodate the situation of second-, third- or fourth-generation Palestinian refugees. Article 12(4) of the ICCPR uses the phrase “his own country” to specify the destination or location where the right of return is to be exercised. [According to] General Comment No. 27 […] Article12(4) establishes that the phrase “his own country” applies to a much broader group of persons than merely “nationals” of a state. The language is intended to include: “nationals of a country who have been stripped of their nationality in violation of international law, […] individuals whose country of nationality has been incorporated in or transferred to another entity, whose nationality is being denied them [and] stateless persons arbitrarily deprived of the right to acquire the nationality of the country of [their long-term] residence.”

Understanding the precise intent of the ICCPR drafters in incorporating the word “arbitrarily” into the formulation of the ICCPR Article 12(4) is critical to understanding the scope of right guaranteed because “arbitrarily” is the only […] Analysis of the drafting history is useful, and the commentators are in uniform agreement that the word arbitrarily refers to only one specific factual instance, that of the use of exile as a penal sanction (i.e., sentencing a person charged with a criminal offense to exile or banishment). Otherwise, the right of return as articulated in Article 12(4) is absolute, subject only to the general qualification provisions of Article 4(1) of the ICCPR (which themselves only permit derogations which are “not inconsistent with other obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion or social origin?). qualification on the right of return listed in Article 12(4).

Some commentators have tried to argue that Article 12(4) only applies to individuals, and not to large groups of people seeking to claim the right simultaneously. This argument does not make sense logically, since all rights enumerated in the ICCPR are granted to individuals personally, regardless of how many other people might be seeking to exercise the same enumerated right, and at what point in time.  Respected commentators have rejected the concept that the Article 12(4) cannot apply to large groups of people. Additionally, various UN organs, including the UN High Commissioner for Refugees, have expressly found that large groups of people do have a right of return that is explicitly grounded in both Article 12(4) of the ICCPR and its “mother” article, Article 13(2) of the UDHR. As one commentator has noted, “[T]he right to return in both the UDHR and the ICCPR was the basis for guaranteeing this right in recently signed peace agreements in order to resolve conflicts in Rwanda and Georgia, both of which produced hundreds of thousands of refugees and displaced persons.”

Finally, it must be noted that the ICCPR contains a general non-discrimination provision in Article 2(1), which categorically prohibits governmental interference with ICCPR-guaranteed rights based on “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Returning to Israel’s two nationality laws – the 1950 Law of Return (for Jews) and the 1952 Nationality Law (for “non-Jews”) – it becomes immediately obvious that the intended result of these two laws working together in tandem is precisely to use “race, colour, language, religion, political or other opinion, national or social origin, birth or other status” as filters for administering the conferral of Israeli nationality status.  Such a blatant use of ICCPR-prohibited criteria to screen in and screen out prospective nationals – particularly when the millions of persons thus screened out already should have been considered nationals of Israel (the successor state) by automatic operation of international law as detailed above – constitutes prima facie discrimination expressly prohibited by the ICCPR and a violation of Israel’s treaty obligations under the ICCPR.

Another major international human rights convention, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), similarly incorporates the right of return in its Article 5 (d)(ii), phrasing it as “[t]he right to leave any country, including one’s own, and to return to one’s country.” Israel has signed and ratified CERD and has made no reservation to this Article. CERD also lists the right of return as an enumerated right subject to the categorical non-discrimination rule of the opening paragraph of Article 5: “States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights.” Israel’s use of prohibited criteria to confer its nationality status therefore also violates its treaty obligations under CERD.

International human rights law also incorporates the general prohibition against forcible expulsion (mass or otherwise) from one’s home or place of origin. Forcible expulsion violates a vast host of specifically enumerated rights contained in the broad corpus of human rights law generally, and specifically violates the protection of freedom of movement. “[Any] form of forced population transfer from a chosen place of residence, whether by displacement, settlement, internal banishment, or evacuation,” states a UN report to the Sub-commission on the Prevention of Discrimination and Protection of Minorities, “directly affects the enjoyment or exercise of the right of free movement and choice of residence within States and constitutes a restriction upon this right.” Similarly, the UN Sub-commission has invoked both Article 12(4) of the ICCPR and Article13 (2) of the UDHR regarding the inadmissibility of mass expulsions.Finally, General Comment No. 27 specifically states that ICCPR Article 12(4) applies in cases of “enforced population transfers or mass expulsions” and, therefore, reinforces Article 12(4)’s applicability to large groups of people as discussed above.

The Right of Return in Refugee Law and State Practice (Opinio Juris)

The right of return also exists in a special sub-set of human rights law, which is the law relating to refugees. The primary instrument governing rights of refugees and states’ obligation towards them is the 1951 Convention Relating to the Status of Refugees and its related 1967 Protocol. The juridical source of refugees’ right of return in refugee law is human rights law (see above for the foundation of the right of return in human rights law), while actual implementation of the right of return is through the Office of the UN High Commissioner for Refugees (UNHCR). Article 1 of the1950 Statute of the UNHCR delineates the mandate of the Agency as being to “facilitate the voluntary repatriation of  refugees, or their assimilation within new national communities.”

Under refugee law, the principle of refugees’ absolute right of return on a voluntary basis to their place of origin (including to their homes of origin) is central to the implementation of durable solutions designed by the international community to address refugee flows. Of the three durable solutions – voluntary repatriation (i.e., return), voluntary host country integration, and voluntary resettlement – the UNHCR considers voluntary repatriation to be the most appropriate solution to refugee problems. Only voluntary repatriation represents a right accorded to the individual (and a corresponding obligation on the part of the country of origin, from which the refugee flow was generated). The other solutions are neither rights of refugees nor obligations of receiving states. According to the former High Commissioner for Refugees, Ms. Sadako Ogata:

the ultimate objective of the international protection of refugees is not to institutionalize exile, but to achieve solutions to refugee problems.  Voluntary repatriation, whenever possible, is the ideal solution.  [This is why] “I have stressed the refugees” right to return home safely and in dignity.

State practice regarding implementation of bilateral or multilateral mechanisms for repatriation of refugees provides rich precedent for – and evidence of opinio juris (which is a sense of binding legal obligation on the part of states) regarding – the existence of a customary norm requiring countries of origin to receive back persons displaced or expelled therefrom. Returns of mass groups of displaced persons have occurred in conjunction with the express acknowledgment of the international community – as well as the explicit recognition by the parties to the underlying conflict themselves – that the persons returning are doing so as a matter of right.

Prominent examples include the 1994 Bosnia agreement, the 1995 Dayton Accord, the 1995 Croatia agreement, and the 1994 Guatemala agreement.  All four agreements describe the right of refugees and displaced persons to return to their homes of origin (just as the right was phrased in Resolution 194) as being unqualified. Looking at the Dayton Accord, in particular, one notes immediately that the primary rights accorded to displaced persons in that agreement mirror exactly the three rights articulated for Palestinian refugees in Resolution 194 – namely: (1) the right of return (repatriation); (2) the right of restitution (repossession); and (3) the right of compensation.

The sheer magnitude of the numbers of refugees whose voluntary return and reintegration into their respective places of origin UNHCR has proactively facilitated as an integral part of crafting durable solutions as part of comprehensive peace settlements is impressive. “During 1994 and 1995, some three million refugees returned to their countries, the largest numbers to Afghanistan, Mozambique, and Myanmar.  Late 1996 and early 1997 saw a massive return of over one million Rwandan refugees who fled during the more than four years of civil war.”During the 1990’s, an estimated 12 million refugees exercised their right to return to their homes and places of origin. By comparison some 1.3 million refugees and persons of concern to the UNHCR were voluntarily resettled during the same period.

Numerous UN resolutions relative to other refugee cases reaffirm the right of return for displaced persons. The UN Security Council has unambiguously declared that the right of refugees (and displaced persons) to return to their homes of origin (which is strikingly similar to the way the right of return is phrased in Resolution 194) is absolute.  In the context of the conflict in Bosnia and Croatia, for example, the Security Council has issued numerous resolutions affirming this particularly relevant formulation of the right of return. Similarly, in the case of the conflict in Georgia, the Security Council again affirmed the right of refugees to return to their homes of origin. In a further strong resemblance to another important aspect of Resolution 194, the Security Council specifically stated that in the case of Georgia, the right of the refugees to return was independent of any final political solution (and therefore could not be conditioned upon political demands made by any of the parties to the conflict).

Finally, in another important parallel to the Palestinian case, in both the Bosnia and Kosovo repatriation schemes devised by the international community, individual and collective rights were jointly protected. In both Bosnia and Kosovo, “the collective rights to an independent entity or statehood were preserved, along with a mechanism for individual refugees to assert their claims to repatriate and obtain restitution and/or compensation.  Each of these situations involved the establishment of claims commissions as part of a negotiated settlement, but the right of the individual to assert his/her claim was preserved independently of the outcome of the self-determination issue.” The General Assembly also has issued resolutions in the context of its initiative on state cooperation to avert new flows of refugees, which have reaffirmed “the right of refugees to return to their homes in their homelands.”

Conclusion

Discussion of the implementation of the right of return of Palestinian refugees raises all sorts of questions regarding the nature of the state of Israel and the legality of its actions vis-