Department of

Oxford Brooks University

United Kingdom

LL.M. 2018/19
REFUGEES’ ‘RIGHT OF RETURN’ TO THEIR
HOMELAND,
WITH SPECIAL REFERENCE TO PALESTINIAN
REFUGEES.

By: Hadil Haroun Louz

i
 Abstract

Refugees confront fear, distress, devastating despair, and sometimes misleading optimism

because of their vulnerability. However, all refugees are entitled to return to the

homelands from which they have fled because of persecution or fear of it. Conventions

and provisions of international law stipulate repatriation and/or compensation as

sustainable solutions for refugees. This paper introduces the definition of refugees and

their Right of Return, and the reasons that prompted the creation of this legally binding,

unconditional, and inalienable right and the rule of law in affirming it. The paper will

provide a summary survey of how this right has been applied in practice.

The second section of the paper considers the Right of Return as applied to refugees

resulting from the ethnic cleansing of Palestine, which began more than seventy years

ago. The current legal basis of the right of Palestinian refugees as ‘individuals’ to return

to their homeland, has been affirmed in many United Nations Resolutions, whether issued

by the General Assembly or by the Security Council. The Palestinian Right of Return has

never ceased to exist, but this right has been neglected and denied by Israeli practices and

policies, destroying the prospect of a viable peace in Palestine. For almost seventy-one

years, it has proved impossible to offer a sustainable solution to the Palestinian refugee

problem. The main obstacle has been the denial and refusal by the Israeli government of

the obligations it has as a Member Stateof the UN, under many UN Resolutions, to

facilitate and allow the Right of Return of Palestinian refugees to their homeland. Some

ii
of Israel’s laws have compromised the possibility of refugee return. These include the

Israeli Law of Return and its Law of Nationality.

Despite the UN Resolutions, the UN has been ineffective in defending Palestinian

refugees’ rights. Palestinian refugees continue to suffer miserable circumstances despite

successful UN interventions in other refugee situations. Notwithstanding this selective

access to justice, Palestinian refugees have not abandoned their right to return, as

illustrated recently by the Great March of Return at the armistice line between Israel and

the Gaza Strip. The paper concludes with a consideration of the failure of international

law to protect the inalienable right of Palestinian refugees more than seventy years after

the beginning of the ethnic cleansing which led to the Palestinian refugee problem.

Keywords: Palestine, Israel, Ethnic Cleansing, Refugees, Right of Return, United

Nations.

iii
 Table of Contents
I. INTRODUCTION ............................................................................................................................ 1
II. REFUGEES AND THE RIGHT OF RETURN ............................................................................. 4
A. WHO IS A REFUGEE?........................................................................................................................ 4
B. WHAT IS THE ‘RIGHT OF RETURN’ AND WHY WAS IT ESTABLISHED? .............................................. 7
C. THE DEVELOPMENT OF REFUGEES’ ‘RIGHT OF RETURN’ IN INTERNATIONAL LAW ........................ 11
1. The Refugee Convention 1951 ................................................................................................. 13
2. Human Commission on Human Rights (now replaced by the UN Human Rights Council
(UNHRC)) ......................................................................................................................................... 14
3. The Universal Declaration of Human Rights (UHDR) 1948: ................................................. 15
4. Humanitarian Law: The four Geneva Conventions of 1949: .................................................. 16
5. The International Covenant on Civil and Political Rights (ICCPR) 1966: ............................. 16
D. HOW HAS THE ‘RIGHT OF RETURN’ BEEN IMPLEMENTED? ............................................................ 17
.1 The difference between United Nations General Assembly and Security Council powers? ......... 17
a) The General Assembly....................................................................................................................... 17
b) The Security Council ............................................................................................. 18
2. The Right of Return in UN Resolutions in practice ................................................................. 20
III. CIRCUMSTANCES OF PALESTINIAN REFUGEES .............................................................. 25
A. 3.1. THE ORIGINS OF THE PALESTINIAN REFUGEE PROBLEM .......................................................... 25
1. The promotion of settler-colonialism in Palestine................................................................... 25
.2 United Nations proposing partition of Palestine.......................................................................... 29
B. UN RESOLUTIONS RELEVANT TO REPATRIATION OR COMPENSATION OF PALESTINIAN REFUGEES 34
1. The UN Mediator’s Proposals: ............................................................................................... 34
2. Resolution 194 ......................................................................................................................... 36
a) The Right of Return ........................................................................................................................... 36
b) Resolution 194 (The UNCCP) ........................................................................................................... 37
3. Resolution 513 ......................................................................................................................... 40
4. Resolution 237 ......................................................................................................................... 41
5. Resolution 242 ......................................................................................................................... 41
6. Resolution 2452A .................................................................................................................... 43
C. OBSTACLES TO APPLYING UN RESOLUTIONS RELEVANT TO THE PALESTINIAN REFUGEE PROBLEM
44
D. ISRAEL AND THE RIGHT OF RETURN.............................................................................................. 47
1. Implications of Israel’s admission as a UN Member State ..................................................... 49
a) The Defence (Emergency) Regulations, 1945 ................................................................................... 51
(1) Kafr Bar'am and Iqrit .................................................................................................................... 52
b) Relevant Israeli Laws ........................................................................................................................ 54
(1) The Israeli Law of Return ............................................................................................................. 54
(2) The Israeli Nationality Law .......................................................................................................... 55
(3) Absentees' Property Law .............................................................................................................. 56
IV. CONCLUSION ............................................................................................................................... 60
A. W HAT MAKES THE PALESTINIAN CASE DIFFERENT FROM THOSE OF OTHER REFUGEE
POPULATIONS? ...................................................................................................................................... 62
B. W HO SHOULD RESPOND TO THE PALESTINIAN REFUGEE ISSUE? ............................................... 64
C. PERSONAL REFLECTION ................................................................................................................ 67
V. APPENDICES ................................................................................................................................. 71

iv
A. MAPS ............................................................................................................................................ 71
B. BIBLIOGRAPHY ............................................................................................................................. 73
1. Primary Sources
............................................................................................................................... 73
2. Secondary Sources: ................................................................................................................. 75

v
I. Introduction
Refugees who have fled from wars, persecution, ethnic cleansing, massacres and other

threats to human rights and welfare have to confront fear, distress, devastating despair,

and sometimes misleading optimism. Under international laws, provisions and

conventions, refugees are entitled to repatriation, compensation for lost property, local

integration, and resettlement.1 This paper introduces the definition of refugees and their

Right of Return, and the reasons that prompted the creation of this legally binding,

unconditional, and inalienable right, and the rule of law affirming it. The paper will

provide a summary survey of how this right has been applied in practice. This survey has

drawn on law cases, law treaties, UN Resolutions and documents, books, journals, and

peer-reviewed articles.

The second section of the paper considers the Right of Return as applied to refugees

resulting from the ethnic cleansing of Palestine, which began more than seventy years

ago. The current legal basis of the right of Palestinian refugees as ‘individuals’ to return

to their homeland, has been affirmed in many UN Resolutions, whether issued by the

General Assembly or by the Security Council.2 The Palestinian Right of Return has never

1 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) Chapter (IX)
section (2). See Chapter II C1 of this paper.
2 Such as : 194 (III) of 11 December 1948, 302 (IV) of 8 December 1949, 393 (V) and 394 (V) of 2 and 14 December 1950, 512 (VI) and 513 (VI) of 26 January
1952, 614 (VII) of 6 November 1952, 720 (VIII) of 27 November 1953, 818 (IX) of 4 December 1954, 916 (X) of 3 December 1955, 1018 (XI) of 28 February
1957, 1191 (XII) of 12 December 1957, 1315 (XIII) of 12 December 1958, 1456 (XIV) of 9 December 1959, 1604 (XV) of 21 April 1961, 1725 (XVI) of 20
December 1961, 1856 (XVII) of 20 December 1962, 1912 (XVIII) of 3 December 1963, 2002 (XIX) of 10 February 1965, 2052 (XX) of 15 December 1965, 2154
(XXI) of 17 November 1966 and 2341 (XXII) of 19 December 1967

1
ceased to exist, but this right has been rejected and abused by Israeli expropriation of

Palestinian lands and properties, systematically destroying prospects of Palestinian

return.3 Israeli rejection of any Palestinian Right of Return contradicts the principles of

the UN Charter for all member states of the UN to facilitate and allow the Right of Return

of Palestinian refugees to their homeland.4 In addition, some of Israel’s laws have

compromised the possibility of refugee return. These include the Israeli Law of Return

and its Nationality Law (See III.D.3.

Despite UN Resolutions, the UN has been ineffective in defending Palestinian

refugees’ rights. Palestinian refugees continue to suffer miserable circumstances despite

successful UN interventions in other refugee situations, for example, in Bosnia and

Kosovo (See II.D.2). Notwithstanding this selective access to justice, Palestinian refugees

have not abandoned their right to return, as illustrated recently by the Great March of

Return at the armistice line between Israel and the Gaza Strip.5

Answers to two key questions are needed:

1 - Should the millions of Palestinians whose rights under international law have not been

protected resign themselves to refugee status and abandon what appears to have been the

cruel illusion that international law represented their route to protection and to the redress

of their plight?

3 Nur Masalha, The Palestine Nakba : Decolonising History, Narrating the Subaltern, Reclaiming Memory (London: Zed Books 2012).5
4 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI Chapter I

5 Al Jazeera, March 2019 <https://www.aljazeera.com/news/2019/03/gaza-great-march-return-protests-explained-

190330074116079.html> last accessed 11 July 2019

2
2 - Should Palestinians abandon aspirations for nationhood enjoyed by citizens of other

nations, and instead accept the reality that laws and legal conventions have not protected

their right to self-determination, and seem unlikely to do so in the foreseeable future?

The paper concludes with a consideration of the failure of international law to protect the

inalienable right of Palestinian refugees more than seventy years after the beginning of

the ethnic cleansing which led to the Palestinian refugee problem.

3
II. Refugees and the Right of Return
A. Who is a refugee?

The term ‘refugee’ has been defined in different conventions and provisions in

international law such as the Geneva Convention on the Status of Refugees, 1951. The

UN Refugee Convention) defines a refugee as a person who:

as a result of events occurring before 1 January 1951 and 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 as a result of such events, is unable or, owing
to such fear, is unwilling to return to it.6
In addition to this Convention, the Organization of African Unity has also stated that the

term ‘refugee’ shall apply to:

every person who, owing to external aggression, occupation, foreign

domination or events seriously disturbing public order in either part or
the whole of his country of origin or nationality, is compelled to leave
his place of habitual residence in order to seek refuge in another place
outside his country of nationality.7
Palestinian refugees were given a specific definition by the UN for their particular case.8

The definition of Palestinian refugees as articulated and determined by the UN Relief and

6 Convention Relating to the Status of Refugees (n 1) art 1

7 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969 entered into force
on 20 June 1974) CAB/LEG/24.3 art 1
8 United Nations Relief and Work Agency for Palestine Refugees, Palestinian Refugees <https://www.unrwa.org/palestine-
refugees> accessed 26 June 2019

4
Works Agency for Palestine Refugees (UNRWA) is: ‘persons whose normal residence

was Palestine between 1 June 1946 and 15 May 1948 and who lost their homes and means

of livelihood as a result of the 1948 war.’9

Hannah Arendt pointed to a definition of ‘refugee’ from a moral perspective. She

wrote:

Man is a social animal and life is not easy for him when social ties are
cut off. Moral standards are much easier kept in the texture of society.10

Arendt’s observation helps to shed light on the social condition of refugees who – living

in exile - are deprived of forming strong bonds with their own societies. Refugees the

world over, like all ordinary citizens, seek a homeland and a sense of belonging.

Refugeehood, in Arendt’s understanding, is a pursuit of dignity.

According to Shacknove, what determines refugee status is when bonds with the state,

particularly trust, loyalty and assistance, are cut.11 These dissolved bonds result in

persecution and alienation.12 Also, Shacknove considers that persecution and alienation

are not the main conditions qualifying someone as having refugee status; they are a

subcategory of a broader category.13 Shacknove describes refugees as persons

9 Ibid.
10 Hannah Arendt, The Jewish Writings (Jerome Kohn and H. Feldman ed, Schoncken Books, New York 1943)
<https://www.jus.uio.no/smr/om/aktuelt/arrangementer/2015/arendt-we-refugees.pdf>.[last accessed 22/08/2019]
11 Andrew E Shacknove, ‘Who Is a Refugee?’, vol 95 (1985).274. She added: ‘Very few individuals have the strength to conserve their own integrity if their
social, political and legal status is completely confused’.
12 Ibid.

13 Ibid.

5
unprotected by their own country for basic needs. He also analyses the status of refugees

as persons:

who have no remaining recourse other than to seek international

restitution of their needs, and who are so situated that international
assistance is possible.14
As indicated in the previous definitions from legal, moral and academic perspectives,

people become refugees because they leave, or unable to return to, their countries of origin

for underlying coercive reasons. Put simply, people do not choose to marginalise

themselves or to be refugees. Persecution is one cause of refugeehood.15 Persecution, as

defined by Shacknove, is not chosen but results from the force of a colonising power or

any power that compels refugees to seek protection. This thesis argues Palestinians were

specifically and intentionally targeted and forcibly expelled from their country by Zionist

forces during the first Arab-Israeli war of 1947-48. The UN issued relevant Resolutions

entitling Palestinian refugees to return to their homeland.16 Before the explanation of the

current status of these Resolutions and their role in facilitating the repatriation for

refugees, it is necessary to present some information about the Right of Return.

14 Ibid. He added: ‘Because this alternative conception of refugeehood accounts more comprehensively than does the current notion
for the dual extremes of tyranny and chaos which threaten the normal, minimal bonds of society, it has a stronger claim to moral
validity.’
15 Convention Relating to the Status of Refugees (n 1) art 1A,
According to this Article, the refugee is someone who :’is outside his or her country of nationality or habitual residence; has a well-founded fear of persecution
because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the
protection of that country, or to return there, for fear of persecution.’
16 (n 2)

6
 B. What is the ‘Right of Return’ and why was it
established?

Traditionally, all over the world, one of the most severe punishments considered by the

jurists and courts has been to send the criminals into exile and ban them from returning

to their homeland.17 It was natural for people to have the right to leave and to return to

their own country. Formerly, the Right of Return was internationally affirmed and

exercised to the extent that it was unnecessary to endorse or codify it in customary laws

because it was considered as self-evident.18 The right of people to move freely without

restrictions on their return was established without any ‘unjustified interference’ from the

government.19 ‘Only in the case of criminals was its denial regarded as a justifiable

punishment.’20 Although, these days, some refugees, such as the Palestinians, are not

criminals, they suffer the same fate as criminals because Palestinian refugees are denied

the right to return to their homes (see III.C).

During and after the two world wars of the 20th century, the world witnessed countless

human tragedies. Violence and persecution have had catastrophic consequences, among

which have been massive displacements and deportations of people from their homes.21

17 Special Unite on Palestinian Rights (1 November 1978) UN Doc ST/SG/SER.F/2 The Right of Return of Palestinian People p.1
18 Ibid
19 Ibid
20 Ibid
21 Peter Gaterell asserted: ‘In the aftermath of World War II, population displacements came into close linkage with the “creation and operation of an international
refugee regime, meaning in the first instance a set of legal rules, norms, and agreements between sovereign states about refugees and state’s responsibilities
towards them’. Peter Gaterell, The making of the Modern Refugee (2013) Oxford University Press p.5

7
Some of those displaced have remained within the borders of their own country, thus

becoming Internally Displaced Persons (IDPs).22 Others – refugees – have fled across

international borders in the pursuit of protection.23 The UN Refugee Agency, the UN

High Commission for Refugees (UNHCR), estimates the number of refugees globally at

25.9 million (20.4 million under the mandate of the UNHCR, and 5.5 million under the

mandate of UNRWA for Palestine Refugees).24 The total number of refugees is currently

at the highest level ever recorded, and half of the refugees are children. 25 The estimated

number of internally displaced persons (IDPs) - 41.3 million - now exceeds the number

of refugees.26 In situations of wars and ethnic cleansing in which people flee their own

country because of force majeure, the Right of Return for those refugees to their

homelands is non-negotiable.27

After the atrocities that people witnessed during the two world wars, many legal

instruments designed to promote and protect peace in the world were developed. ‘The

establishment of the UN, at a time when the Second World War’s repercussions produced

vast numbers of refugees, led to efforts to establish the principle of repatriation.’28 The

Right of Return is an individual right that anyone in the world should be able to exercise

and this right is addressed as a human rights obligation for states as stipulated in various

22 Inter-Agency Standing Committee, ‘Growing the Sheltering Tree. Protecting Rights Through Humanitarian Action’ (September 2002) available at
<http://www.globalprotectioncluster.org/_assets/files/tools_and_guidance/IASC_Growing_Sheltering_Tree_2002_EN.pdf> {last accessed 29 July 2019] p.1
23 Ibid.

24 Ibid.
25 Figures at a Glance, The United Refugee Agency (UNHCR), (2019) <https://www.unhcr.org/ph/figures-at-a-glance> last accessed 29 July 2019
26 Ibid.

27 Inter-Agency Standing Committee (n 22) p.1

28 Ibid, 4.

8
conventions and provisions such as in the ICCPR and others that will be explained later

in this section.29 This right is usually identified as an individual right; however, when an

entire land is depopulated of its people as groups, this constitutes a collective dimension,

such as the uprooting of Palestinian refugees collectively from their lands.

The meaning of the term ‘Return’ is not limited to the physical return to one’s place, but,

on a deeper level, it implies a return to one’s ordinary life, culture, traditions, property,

lands, villages and towns, society, and jobs.30 It does not mean a return to a wholly

damaged place where everything that once existed is now erased and destroyed. Instead,

as emphasised by the Palestinian lawyer Anis Al-Qasem ‘return is material, moral, and

cultural in the sense that one would not find in a foreign place.’31 Therefore, ‘Right of

Return’ is a metaphorical phrase indicating various intentions, including the return to

original lands, community roots, lost properties, dignity, independence, and freedom.32

The indigenous people of a particular country enjoy the right to leave or stay in their

homeland. This inalienable right implies the right to a permanent residence for native

indigenous persons.33 Accordingly, aboriginal people are ‘residents’ who cannot be

deprived of their residency in receipt of an order to leave or stay from a higher authority.

The original inhabitants have the right to remain, leave, or return whenever they wish

because they are indigenous. Also, the inhabitant or native persons of a country should

29 The International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
30 Ghada Karmi and others, Palestinian Exodus, 1948-1998 (1st edn, Ithaca Press 1999) 124
31 ibid.

32 Ruba Salih, ‘Palestinian refugees and the politics of return’ [ February-March 2014] The Middle East in London 12 <
https://www.soas.ac.uk/lmei/meil/2014/> last accessed 16-09-2019
33 Karmi and others (n 31).124

9
not need a ‘residence permit’ to have access to enter or to leave their country. 34 The

inhabitants with a ‘residence permit’ cannot go back home if their permit is expired.35

Therefore, issuing residence permits to native people of a particular country is a blatant

breach of international law, for example, Article 13(2) of the Universal Declaration of

Human Rights (UDHR) which grants everyone to return to this country. Article 13

confirms in paragraph 1: ‘Everyone has a right to freedom of movement and residence

within the borders of each state.’36

Nevertheless, such is the case in Palestine. Many Palestinians who live in Israeli-

controlled areas – for example, Palestinians living in East Jerusalem – face extreme and

inhumane restrictions on movement and travel.37 In 1967, when Israel occupied East

Jerusalem, the Israeli authorities issued a residence permit for the Palestinian inhabitants

of Jerusalem.38 Israeli-issued residency permits expire periodically and must be renewed

in situ, effectively preventing Palestinians from leaving. Those who travel abroad risk

losing their status as residents of Jerusalem, and risk being unable to return.39

34.Ibid.

35 Karmi and others (n 31).124

36 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 13. It reads in paragraph 2: ‘Everyone has the right to
leave any country, including his own, and to return to his country.’

37 Karmi and others (n 31).124

38 Ibid
39 Ibid

10
 Moreover, some Palestinians who wish to travel to another country are required to sign

a paper barring a return to Palestine until a fixed period has expired.40 To take my

experience as an example

as a Palestinian who travelled from Gaza through the Beit-Hanoun

border crossing with Israel, to Britain, Israel forced me to sign a paper
I would not return to Gaza for at least a year, whatever the
circumstances. This policy does not allow me to return or to stay in my
place whenever I want. Although I am a refugee in Gaza and I live in a
refugee camp, so also are my friends who travelled to Britain or any
place in the world to study are not permitted to return until a fixed time
has expired. The issue is very complex: my first city in Palestine is
Isdud41, but neither I am allowed to go back to Isdud, the town of my
father and grandparents, nor can I go back to Gaza, the city where I was
born, until a fixed time has expired.42

C. The development of refugees’ ‘Right of Return’ in

international law43

The Right of Return was considered as a ‘natural corollary’ to anyone’s desires to move

freely.44 As mentioned before, it was internationally affirmed and exercised to the extent

that it was unnecessary to endorse or codify it in customary laws.45 ‘In 1215 A. D., at a

time when rights were being questioned in England, the Magna Carta confirmed the Right

of Return as a basic right for anyone.46 The Magna Carta confirmed: ‘It shall be lawful in

40 Ibid
41 For more information about Isdud: <https://www.palestineremembered.com/Gaza/Isdud/> [las accessed 22/08/2019]
42 My personal experience

43 Under this heading I described the laws as they are, and under heading D2 of this chapter I will show where these laws are
applied and implemented.
44Special Unite on Palestinian Rights (n 17) p.2
45 W. Thomas Mallison and Sally V. Mallison, ‘The Right of Return’ (1980) Vol. 9 No. 3 University of California Press 125
46 Ibid.

11
future for anyone to leave our kingdom and to return, safe and secure by land and water.’

(Magna Carta as agreed by King John)47

In the modern age, this right is endowed by conventions and legal instruments such as

the Refugee Convention 1951 (Article 1.C), the Universal Declaration of Human

Rights(Article 13), the Human Commission on Human Rights (Resolution 1988 (LIV),

Humanitarian Law - the Fourth Geneva Convention the Protection of Civilians in Time

of War 1949 (Article 45), and the International Covenant on Civil and Political Rights

(ICCPR) 1966 (Article 12). There is an emphatic affirmation of the necessity to guarantee

the Right of Return for refugees and on the state of origin to facilitate the process and

provide the proper conditions to allow such return in freedom and dignity. This

affirmation is also clearly stated in UN Resolutions about the refugee tragedies around

the world, such as Resolution 1199 on Kosovo (1998)48 that ensured the Right of Return

to civilians who were forced to evacuate their homes as a result of the war.49

Moreover, under Article 42 of the Charter of the United Nation, State parties have to

commit to all the obligations to the UN principles, and in case of non-compliance, the

State member is subject to sanctions and other provisional measures as stipulated (see

II.D.1.b).50

47Special Unite on Palestinian Rights (n 17) p.2

48 UNSC Res 1199 (23 September 1998) UN Doc S/RES/1199 (1998)
49 A further explanation about this resolution can be found in Chapter II B2 of this paper.
50 Charter of the United Nations (n 4) chapter VII art.40,41,42.

12
 1. The Refugee Convention 1951
The refugee Convention constitutes the right to return through the emphasis it puts on

voluntary repatriation as the preferred solution of ‘three durable solutions’ to handle the

refugee crisis.51 The other two favoured solutions are the local integration and

resettlement in third countries.52

Refugee law concentrates on ‘voluntary repatriations’; accompanied by ‘the right not

to be returned, or forcibly repatriated’.53 Article 1.C of the Convention provides

conditions for what is known as ‘cessation clauses’, which means that international

protection for refugees ceases under some conditions.54

The ‘cessation clauses’ applied only when the refugee55

1- continues to refuse to avail himself of the protection of the country

of his nationality.’
2- having lost his nationality, has voluntarily re-acquired it, or
3- voluntarily re-established himself in the country which he left or
outside which he remained. [Emphasis added]
4- Being a person who has no nationality because the circumstances in
connexion with which he has been recognised as a refugee have ceased
to exist, able to return to the country of his former habitual residence.
[Emphasis added]

These ‘cessation clauses’ are very significant provisions that stipulate a refugees’ Right

of Return to their countries or the places where they remained. It is essential to highlight

51 Executive Committee Conclusions No. 29 (XXXIV) (1983), No. 50 (XXXIX) (1988), No. 58 (XL) (1989), No. 79 (XLVII) (1996), No. 81 (XLVIII) (1997),
No. 85 (XLIX) (1998), No. 87 (L) (1999), No. 89 (L) (2000), and No. 90 (LII) (2001).
52 Convention Relating to the Status of Refugees (n 1) ch.IX section 2.
53 Lex Takkenberg, The Status of Rights of Palestinians in International Law (1948); York: Oxford University Press, 1998) p. 233 para.2.
54 GUIDELINES ON INTERNATIONAL PROTECTION: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status
of Refugees (the “Ceased Circumstances” Clauses)
55 Ibid

13
that these clauses use concepts such as ‘country’ and ‘former habitual residence’ to refer

to the home of the returning refugees rather than using the ‘state’ or ‘country of

nationality’. It does not condition that the returning refugees should have a nationality of

the country where they used to live.

2. Human Commission on Human Rights (now replaced

by the UN Human Rights Council (UNHRC))
The UN Commission on Human Rights was founded in 1946.56It aimed to create an

international legal framework to sustain people’s fundamental rights and freedoms. It

focused on the question of the violation of human rights in the occupied Arab territories,

including Palestine.57 It is composed of 53 member states selected by the UN Economic

and Social Council (ECOSOC).58 ECOSOC issued a draft declaration on the right to

return under Resolution 1988 (LIV) because it recognised the denial by some states of

refugees’ Right to Return.59 In regards to this resolution, people are equal, whatever their

beliefs, origins, or colour in having a right to return to their homeland. The Resolution

also confirms that it is illegal to forbid the entrance of these people into their countries or

block their return by using polices to force them not to return. Moreover, it is essential to

highlight that this Resolution also affirmed that everyone is entitled to enter ‘his own

56 United Nations Human Rights Council, <https://www.ohchr.org/EN/HRBodies/CHR/Pages/Membership.aspx> last accessed 23/08/2019

57 Ibid
58 Ibid
59 The Resolution reads:
(a)Everyone is entitled, without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinions….to return to his country.
(b)No one shall be arbitrarily deprived of his nationality or forced to renounce his nationality as a means of divesting him of the right to return to his country.
(c)No one shall be arbitrarily deprived of the right to enter his own country.
(d)No one shall be denied the right to return to his own country on the ground that he has no passport or other travel documents.

Economic and Social Council Resolution 1988 (LIV) of 18 May 1973. See also the UN Doc. ST/SG/SER./2

14
country’ as affirmed previously in the refugee convention. This is thus another affirmation

that proves that no conditions are applied relating to the nationality of the returnee to enter

his country.

3. The Universal Declaration of Human Rights (UHDR)

1948:
The UHDR is based on the perspective that the ‘rule of law’ should protect every human

being.60 It represents significant progress made by the UN to have established legal norms

of human rights to promote freedom, peace, and integrity as inherent elements in human

life. Representatives drafted the general principles of law in the Declaration. With various

‘legal and cultural backgrounds from all regions of the world, it set out, for the first time,

fundamental human rights to be universally protected.’61

The Declaration’s moral authority should be definitive and unquestioned; however, as

expressed by Article 38 of the Statute of the International Court of Justice (ICJ) ‘the

general principles of law are recognised by civilised nations.’62 As understood within the

meaning of Article 38, the Declaration’s affirmations are not binding; nevertheless, the

ICJ can sometimes use these affirmations to ‘bind states on the basis of custom through

a general practice accepted as law.’63 (See Chapter 2B)

60 Universal Declaration of Human Rights (n 55) the Preamble

61 United Nations Human Rights Office of the High Commissioner, <https://www.ohchr.org/EN/UDHR/Pages/UDHRIndex.aspx> Last accessed 23-08-2019

62 United Nations, Statute of the International Court of Justice (ICJ) (18-04-1946) art. 38
63 The International Court of Justice, ‘Legal consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding
Resolution 267 (1970)’ I.C.J Reports, 1971- pp.77-78

15
 4. Humanitarian Law: The four Geneva Conventions of
1949:
Several specific provisions have been affirmed in the four Geneva Conventions to protect

the repatriation of victims of armed conflict. For example, Article 45 of the fourth

Convention states:

Protected persons shall not be transferred to a Power which is not a

party to the Convention. This provision shall in no way constitute an
obstacle to the repatriation of protected persons or their return to their
country of residence after the cessation of hostilities.64
In addition to paragraph II, Article 49 of the fourth Convention confirms that: ‘Persons

… evacuated shall be transferred back to their homes as soon as hostilities in the area in

question have ceased.’65 This Convention thus manifestly declares the indisputable right

of victims of wars to be repatriated to the country in which they used to reside.

5. The International Covenant on Civil and Political Rights

(ICCPR) 1966:
The ICCPR was adopted on 16 December 1966 and came into force on 23 March 1976

in conformity with Article 49 of the Covenant.66 It is derived from the UDHR and

confirmed by the UN General Assembly.67 Under Article 12 of the Covenant, it asserts

the Right of Return for everyone to their ‘own country’.68 The Article establishes the

principle of repatriation to be to one’s ‘own country’, which is, as affirmed before, a broad

64 Geneva Convention relative to the Protection of Civilian Persons in Time of War (2nd part)
(adopted 12 August 1949, entered into force 21 October 1950) art 45 <https://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtectionOfCivilianPersons.aspx>
last accessed 23-08-2019
65 Ibid. Article 49
66 The International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
67 Ibid

68 Ibid, art 12

16
meaning that does not restrict somebody to limited criteria for the place of return. Article

12 reads within paragraph 2 that ‘Everyone shall be free to leave any country, including

his own…’ and paragraph 4: ‘No one shall be arbitrarily deprived of the right to enter his

own country.’69

D. How has the ‘Right of Return’ been implemented?

1. The difference between United Nations General

Assembly and Security Council powers?

The UN Charter established six principal organs of the UN that are relevant to the

protection of international human rights law.70 Two of these major organs are the

General Assembly and the Security Council.

a) The General Assembly

The declarations of the General Assembly can be adopted either by a two-thirds majority,

or a simple majority.71 Decisions concerning international peace and security, or the

admission of new Member States, for example, require a two-thirds majority, while

decisions on other subjects require a simple majority.72 Over the past few years, decisions

were taken by consensus, instead of taking a formal vote.73

69 Ibid

70 Charter of the United Nations (n 4) art. 7

71 Ibid, art. 8
72 Ibid

73 United Nations, ‘United Nations at a Glance’ New York (2012) 23

17
The Resolutions of the General Assembly are not legally binding upon the Member States

of the UN, and these Resolutions are only recommendations that do not constitute a legal

obligation on the Member States but require a moral obligation.74 The UN Charter limits

the powers of the General Assembly as being ‘merely recommendatory’.75

b) The Security Council

The Security Council is more authoritative than the General Assembly. 76 Like all UN

organs, it aims to sustain world peace and security. The UN Charter empowers the

Security Council to act with regard to grave human rights violations. 77 The Security

Council can ‘investigate and mediate, dispatch a mission, appoint special envoys, or

request the Secretary-General to use his good offices’.78 In times of conflict, the Security

Council can ‘issue a ceasefire directive, dispatch military observers or a peacekeeping

force’.79 When none of the interventions of the Security Council solves the conflict, the

Security Council can adopt provisional (enforcement) measures under the seventh chapter

of the Charter, such as ‘economic sanctions, arms embargoes, financial penalties and

restrictions, travel bans, the severance of diplomatic relations, a blockade, or even

collective military action.’80

74 United Nation General Assembly, Thirty-fifth session (3 July 1980) A/35/316-S/14045, P5

75 Ibid.
76 United Nations, ‘Protect Human Rights’ <https://www.un.org/en/sections/what-we-do/protect-human-rights/> [Last accessed 19th August 2019]
77 Ibid.
78 Ibid
79 Ibid.
80 Ibid.

18
 Under Article 25 of the Charter, the Security Council can create legally binding

obligations on Member States.81 Article 25 reads: ‘The Members of the United Nations

agree to accept and carry out the decisions of the Security Council in accordance with

the present Charter’.82 Its resolutions are legally binding, to the extent to which they are

adopted under Chapter VII of the UN Charter designated as ‘action with respect to threats

to the peace, breaches of the peace and acts of aggression’.83

The Member States in the UN have undertaken a commitment to act in accordance with

the UN Charter. According to Chapter VII of the UN Charter, if there is a breach of the

Charter’s principles by Member States, some effective provisional measures must be

taken by the UN to ensure Member States’ fulfilment of their obligations.84 When the UN

issues a Security Council Resolution, this confirms the existence of a serious threat to a

just and lasting peace, opening the way for the Security Council to take action under

Chapter VII ‘to restore international peace and security’ and to protect human rights.85

The Permanent Members of the Security Council can use the Veto to reject a Resolution.86

81 Charter of the United Nations (n 4) art. 25

82 Ibid.
83 Charter of the United Nations (n 4) chapter VII
84 Ibid
85 <https://www.un.org/securitycouncil/sanctions/information> Last accessed 30/08/2019
86 A veto in the United Nations Security Council is the negative vote of a Permanent Member cast during consideration of a substantive issue so that the draft
resolution is not adopted. A vetoed draft resolution had to have 7 positive votes out of 11 before the end of 1965 and 9 votes out of 15 after 1965 (ie the draft
resolution would have been passed if the Permanent Member’s negative vote had not been cast). Procedural issues are not subject to
veto. When there is disagreement between Council members on whether an issue is procedural or substantive, the question is itself
treated as substantive and therefore subject to veto; the so-called “double veto” Foreign and Commonwealth Office, ‘Vetoed Draft
Resolutions in the United Nations Security Council 1946-2012’ (3 September 2012)

19
 The above-mentioned provisional measures can take different forms, depending on the

case itself and what it requires. Under Article 41 of the Charter, sanctions include a variety

of enforcement options, without ‘involving the use of armed force’.87 According to Article

41, such measures ‘may include complete or partial interruption of economic relations

and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and

the severance of diplomatic relations.’88

Pursuant to Article 29 of the Charter, the Security Council established subsidiary

organs that are necessary to implement its functions, including Sanctions Committees,

and each committee is ‘chaired by a non-permanent member of the Security Council’.89

The Security Council has adopted 30 sanctions against regimes since 1966 such as in

Southern Rhodesia and South Africa, to name a few.90

2. The Right of Return in UN Resolutions in practice

The Right of Return has been addressed in several UN Security Council (UNSC)

Resolutions to solve various refugee crises. For example, UNSC Resolution 242 (1967)

on Palestine, Resolution 688 (1991) on Iraq, Resolution 819 (1993) on Bosnia, and

87 (Charter of the United Nations (n 4) art. 41

88 Charter of the United Nations (n 4) art.29. Under Article 29 of the United Nations Charter entitles, the Security Council is entitled to
establish ‘such subsidiary organs as it deems necessary for the performance of its functions.’
89 United Nations Security Council, ‘Subsidiary Organs of the United Nations Security Council’ (8 February 2019) ,
<https://www.un.org/securitycouncil/content/committees-working-groups-and-ad-hoc-bodies.> Last accessed 24 August 2019 p.4
90 (in Southern Rhodesia, South Africa, the former Yugoslavia (2), Haiti, Iraq (2), Angola, Rwanda, Sierra Leone, Somalia and
Eritrea, Eritrea and Ethiopia, Liberia (3), DRC, Côte d’Ivoire, Sudan, Lebanon, DPRK, Iran, Libya (2), Guinea-Bissau, CAR,
Yemen, South Sudan and Mali, as well as against ISIL (Da'esh) and Al-Qaida and the Taliban)

20
Resolution 1199 (1998) on Kosovo.91 These Resolutions condemned unlawful practices

leading to the forced eviction of civilians, expressed its concern about the flow of refugees

and emphasised the refugees’ Right of Return.

For example, UNSC Resolution 1199 expressed its deep concern regarding the

displacement of 230,000 refugees from Kosovo into northern Albania, Bosnia and

Herzegovina and other European countries as a result of the use of force in Kosovo.92 The

Security Council recalled Resolution 1160 of 31 March 1998 and reaffirmed ‘the right of

all refugees and displaced persons to return to their homes in safety and underlining the

responsibility of the Federal Republic of Yugoslavia for creating the conditions which

allow them to do so.’93

The role of the UN Security Council was not limited to condemning the atrocities

associated with refugee flows. The UN also acted on the ground under chapter VII of the

UN Charter by taking some measures to facilitate the honourable and safe repatriation for

refugees.94 Resolution 1199 asserted the necessity of acting under the Chapter VII of the

Charter.95 It emphasised in paragraphs 4 (C) and 5 (D) (E) that the refugees should be

granted proper access to humanitarian support and that their repatriation should be

facilitated.96

91 UNSC Res 688 (1991) UN Doc. S/RES/688 (1991), UNSC Res 819 UN Doc.(1993) S/RES/819,
UNSC Res 1199 (1998) UN Doc. S/RES/1199, UNSC Res 242 (1967) UN Doc.S/RES/242
92 UNSC Res. 1199 (1998) [The situation in Kosovo], 23 September 1998, UN Doc.S/RES/1199 (1998)
93 Ibid.
94 Ibid.
95 Ibid
96 Ibid

21
Paragraph 4 reads:
C. to facilitate, in agreement with the UNHCR and the International
Committee of the Red Cross (ICRC), the safe return of refugees and
displaced persons to their homes.97

On 22 June 1999, the UNHCR acted on the ground and announced the success of the

return of more than 170,000 refugees from Balkan countries (Albania, Macedonia and

Montenegro) to their homes in Kosovo within only 9 days.98

Another example of UN action was during the ethnic cleansing of Muslims in Bosnia

between 1990-1993.99 The United Nations, the European Union, the United States, and

the international relief and refugee organizations were on the ground supporting victims

with medical supplies and dealing with the displacement of people.100 The UN intervened

to resolve the refugee issue during the conflict and initiated a reconstruction system.101

This intervention represents a success story in guaranteeing the Right of Return for

refugees by means of proper implementation by the UN of the laws of return.

Although there are some encouraging successful interventions with regard to the

repatriation of refugees under the UN system, there is one long-standing and glaring

exception to the UN’s success in securing implementation of the Right of Return – the

Palestinian Refugee situation. The Right of Return has been systematically denied to

97 Ibid. Paragraph 5 adds: to ensure full and unimpeded access for humanitarian organizations, the ICRC and the UNHCR, and delivery of humanitarian supplies.
to facilitate the unimpeded return of refugees and displaced persons under programmes agreed with the UNHCR and the ICRC, providing State aid for the
reconstruction of destroyed homes, and calls for the full implementation of these commitments.
98 United Nations High Commissioner for Refugees, <https://www.unhcr.org/uk/news/briefing/1999/6/3ae6b82760/kosovo-170000-return-9-days.html> Last
accessed 24 August 2019
99 Karmi and others (n 31).
100 Ibid.
101 Ibid.

22
Palestinian refugees since the ethnic cleansing events of 1947 and 1948. In the case of the

Palestinian refugee problem, UN declarations and their implementation under Chapter

VII of the UN Charter have been hampered by a discriminatory system (see III.C).102

To conclude, refugees who were forcibly expelled from their homelands are entitled

to the Right of Return. The Right of Return is confirmed in several international

conventions that used as sources for issuing the UNGA and UNSC Resolutions against

State parties that violate the provisions of these conventions. The UNSC resolutions can

force the Member States to compel with its obligations while the UNGA resolutions are

only recommendations that has no powerful authority. It has been shown in this chapter

that there are ‘provisional measures’ which can be used by the Security Council to force

the concerned states to abide by its obligations. In order to understand the particular

circumstances of the Palestinians in the discussion that follows, I draw heavily on

Shakenove’s concept of persecution, as well as Arendt’s notion of human dignity. In

addition, I emphasis on how Israel as a Member State in the UN deprive the vanquished

Palestinian refugees of their Right of Return and make them homeless and stateless.

And how Israel formulated laws that confiscate the property of Palestinian refugees and

hamper their return to their lands. Questions must be raised here and will be answered in

the following chapter: What are the roots of the Palestinian refugees’ problem? How

102 Karmi and others (n 31). Anis Al-Qasem has highlighted the discriminatory approach by the UN in respect of the Right of Return for Palestinians in
comparison to other refugees in the world. He says: ‘In our day, we have witnessed in Bosnia the return of people in their cities, villages, homes, and communities
from where they had been expelled or forced to leave by hostilities. Other parts of the same country may not qualify as ‘home’; the return must be what was home.
The case was the same with the Rwandan Refugees. They were returned not only to their own country but also to the places they considered as their homes in that
country.

23
many UNSC and UNGA resolutions has been created in favour of the Palestinian return

to their land? How did these resolutions enforce on the ground? Did the Security

Council force sanctions against Israel for the non-compliance with its obligations? And

How did Israel manipulate the international law to postpone the return of Palestinian

refugees?

24
III. Circumstances of Palestinian refugees
A. 3.1. The origins of the Palestinian refugee problem

1. The promotion of settler-colonialism in Palestine

The 19th century witnessed a proliferation of nation-states. This trend, combined with

widespread anti-Semitism (hatred of and/or discrimination against Jews) in Europe, led

Theodore Herzl – an Austrian Jew - to propose the creation of a Jewish state to address

anti-Semitism.103 Although Herzl made no specific recommendations for a location of the

Jewish state he had proposed, it became increasingly clear that, because Palestine – and

Zion (Jerusalem) in particular - was part of Jewish culture and ‘sentimental heritage’,

Palestine should be the location for the proposed state.104 ‘Political Zionism’ (as the

settler-colonialist movement came to be known) was formally born at the first Zionist

Congress in Basel, Switzerland, in 1897.105 The conference called for Jewish immigrants

to Palestine to establish a home for Jews in Palestine ‘secured by public law’. 106 To

support this colonial endeavour, a Jewish National Fund (JNF) was established to secure

Jewish properties and lands in Palestine and to ensure that they were not sold or leased to

non-Jews, and that only Jews would be hired to work on Jewish-owned properties, and

that Arab guards would be replaced by Jewish guards.107

103 David Hirst, The Gun and the Olive Branch : The Roots of Violence in the Middle East (Futura Publications Limited 1978). P.16
104 Ibid.
105 Ibid.
106 Avi Shlaim, The Iron Wall : Israel and the Arab World. Penguin (20 Oct. 2014) P.3
107 ibid.148

25
 Imperial support for Zionist settler-colonisation of Palestine was needed to create the

circumstances needed to establish a Jewish state in Palestine. Between 1922 and 1948

Britain became the imperial guarantor of the Zionist project under the aegis of the League

of Nations.108 The award of the League of Nations mandate for Palestine to Britain built

on two critical British government documents: the Sykes-Picot Agreement (1916),109

which divided between Britain and France the Arab territories expected to become

available with the predicted collapse of the Ottoman Empire; and the text of a letter sent

in 1917 by the British Foreign Secretary, Arthur Balfour, to the head of Anglo-Jewry,

Baron Rothschild.110 The letter reads as follows:

His Majesty's government view with favour the establishment in

Palestine of a national home for the Jewish people and will use their
best endeavours to facilitate the achievement of this object.111

The text of the Balfour Declaration was incorporated in the League of Nations

document assigning its Mandate for Palestine to Britain from 1922. Chaim Weizmann,

the Zionist who was to become the first president of Israel, subsequently observed that:

‘The Balfour Declaration is the golden key that unlocks the doors of
Palestine and gives you the possibility to put all your efforts into the
country… We were asked to formulate our wishes. We said we desired
to create in Palestine such conditions, political, economic and
administrative, that as the country is developed, we can pour in a
considerable number of immigrants, and finally to establish such a
society in Palestine that Palestine should be as Jewish as England is
English, or America is American. I hope that the Jewish frontiers of
Palestine will be as great as Jewish energy for getting Palestine.’112

108 Doreen Ingrams, Palestine Papers 1917-1922, Seeds of Conflict, Jhon Murray, London, 1972. P.73
109 Marina Ottaway and Julia Craig Romano, ‘OCCASIONAL PAPER SERIES Learning from Sykes-Picot’ (2015) 1.
110 Hirst (n 105).p.38
111 Ibid. He added: ‘ it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities
in Palestine, or the rights and political status enjoyed by Jews in any other country’.
112 Chaim Weizmann, The Letters and Papers of Chaim Weizmann: August 1898-July 1931. P.257

26
 The League of Nations Mandatory system was intended to prevent imperial and

colonial exploitation of the mandated territories and to assist in developing the territories

for the well-being of their native peoples.113 While committed by the Balfour Declaration

to support the creation of an ill-defined ‘national home’ for the Jews, Britain was thus

supposed to support the rights of the majority indigenous Arabs (Moslem, Christian and

Jews) in Palestine. As it was, from the very beginning of its Mandate, Britain contributed

significantly to the development of the Zionists' colonialist aspirations. 114

Throughout the Mandate, indigenous Palestinian Arabs repeatedly protested at these

developments and submitted petitions to the High Commissioner and the government

against the immigration of Jewish colonists and the takeover of indigenous Palestinian

lands.115 The failure of these non-violent ways of protesting this settler-colonialism led

eventually to a Palestinian Arab revolt between 1936 and 1939, which was directed

against both the Zionists and the British.116 The revolt was brutally suppressed by the

British troops and Zionists armed by Britain.117 With the failure of indigenous

Palestinians to secure the rights of self-determination envisaged in the League of Nations

113 Matz, Nele. "Civilization and the Mandate System under the League of Nations as Origin of Trusteeship." Max Planck Yearbook of United Nations Law
(2005) p. 70-71
114 James Renton, The Zionist Masquerade: The Birth of the Anglo-Zionist Alliance, 1914-1918 (2007) 155
He also said: ‘there was a certain continuity between the history of the Mandate and the making of the Balfour Declaration. However, the eventual result of the
Mandate, in which the Zionist movement came to undermine and supersede the rule of its protector [Britain] in less than a generation, could not have been further
from the aims of those who were responsible for the letter that became known as the Balfour Declaration.’
115 Hirst (n 105).27
116 Walid Khalidi, ‘ed., From Haven to Conquest’ Beirut (1971) P. 846–9
117 Ibid.

27
mandatory system by non-military and military means, the Zionists turned their attention

to attacking Britain, the imperial facilitator of Zionism and now the principal obstacle

standing in the way of the creation of a Zionist state.118 These attacks led Britain to

indicate in 1947 that it wished to hand over responsibility for Palestine to the UN.119

The UN proposed dividing Palestine into an Arab state and a Jewish state.120 This

established the basis for achieving the principal objective of the Zionist movement, but a

Zionist state would need a Jewish majority population.121 To meet this need, ethnic

cleansing of the indigenous people of Palestine was required to turn a majority Arab

geography into a majority Jewish one.122 This ethnic cleansing began in 1947 and

accelerated the following year during the first Arab-Israeli war.123 The Palestinian refugee

problem was born with the expulsion or flight from the danger of between 700,000 and

800,000 Palestinian Arabs124, and the Zionist razing of over 650 of their villages.125 Pappé

has estimated that 85% of the Palestinians who were living in the area which is now called

Israel became refugees. (See V.A).126Nearly one-third of the registered Palestinian

refugees, more than 1.5 million individuals, live in 58 recognised Palestinian refugee

118 Renton (n 114) P. 110

119 Ilan Pappé, The Ethnic Cleansing of Palestine, Oneworld (2006). 31
120 UNGA Res. 181(1947), UN Doc.A/RES/181(II)
121Shlaim (n 108).26
122 Pappé (n 121).35
123 Ibid.Xiii
124 Ibid.Xiii
125 Salman Abu Sitta, ‘The Denied Inheritance: Palestinian Land Ownership in Beer Sheba’ p.2 available at <
https://www.academia.edu/5294952/The_Denied_Inheritance_Palestinian_Land_Ownership_in_Beer_Sheba> last accessed 19-09-2019
126 The map shows the number of refugees expelled among the Nakba and the areas where they fled from and to.

28
camps. These camps are in Jordan, Lebanon, the Syrian Arab Republic, the Gaza Strip

and the West Bank, including East Jerusalem.127

2. United Nations proposing partition of Palestine

Britain’s attempts to find a sustainable solution to the conflicts were doomed to failure

because of Zionist riots and the firm Arab rejection to Britain’s proposals. Ilan Pappé

asserts:

Earlier, the British had put forward several other options, notably the
creation of a bi-national state, which the Jews had rejected, and a
cantonised Palestine (following the Swiss model), which both sides had
refused to consider.128
Britain gave up its efforts to find a resolution of the conflict. In February 1947 the British

foreign secretary Ernest Bevin handed over the Palestine problem to the UN.129 Shlaim

considers the UN Partition plan represents ‘a major triumph for Zionist diplomacy.’130

Also, Pappé describes that the UN ‘Favoured by the Zionist leadership’.131

The UN decision of partitioning evoked violence between Arabs and Jewish people.

The UN at this period was only two years old yet agreed to partition a nation that was

already full of inhabitants.132 The Arab High Committee rejected the UN Partition Plan

127 United Nations Relief and Work Agency for Palestine Refugees (n 8)
128 Pappé (n 121).31
129 Ibid.
130 Shlaim (n 108).26
131 Pappé (n 121).31 He added: ‘, and now backed by Britain, partition became the name of the game. The interests of the Palestinians were soon almost totally
excised from the process.’
132 Ibid.

29
and condemned it as ‘absurd, impracticable, and unjust.’133 On the other hand, most of

the Jews welcomed the plan ‘with jubilation and rejoicing.’134

A special Committee for Palestine (UNSCOP) was established ‘to prepare for the

consideration of the question of the future government of Palestine.’135This gave the

Committee responsibility of proposing the fate of the future of Palestine. The UNSCOP

was supposed to study the problem and provide proposals. It favoured and sponsored the

decision of partitioning Palestine ‘with economic union approved by the majority of the

Special Committee’.136 The UNSCOP recommended, in a report to the General Assembly,

to partition Palestine: one for Arab Palestinians, the other for Jews, with Jerusalem

considered as ‘corpus separatum (separate entity) to be controlled under a special

international regime.’137 The UNSCOP proposal accepted and the General Assembly

issued Resolution 181 in 1947.138

Resolution 181 carries significant implications that shaped the modern history of

Palestine. It declared the termination of the Mandate for Palestine no later than August

1948 and to situate a proper area for the Jewish people where they can also facilitate and

receive more Jews immigrating through a seaport.139 The Resolution asserts

133 Shlaim (n 108).26

134 Ibid.
135 UNGA Res. 181(1947), UN Doc.A/RES/181(II)
136 Ibid.
137 Ibid.
138 Ibid.
139 Ibid.

30
 Independent Arab and Jewish States and the Special International
Regime for the City of Jerusalem.140
The Resolution passed with thirty-three votes in favour, thirteen against, and ten

abstentions.141 It aims to establish a Jewish State in Palestine based on the law, despite

the refusal of the inhabitants of Palestine.

The Resolution was unequal and unfair for the following reasons:

i. The Resolution ignored the Palestinian objection to the partition plan, and this is

a breach of the Palestinian fundamental rights.

ii. The Resolution did not divide the land justly but gave the minority (Jews) more

than half of the land and less than the proportion that was given to the indigenous

people who were the majority in their homeland.

Israel/Palestine Population in 1947 The percentage of the given territory

Israel 498,000 Jews (37.5) % 57%

818,000 Palestinians and 10,000 Jews

Palestine 43%
included (65.6) %

iii. The map indicates in brown the territories allocated for Arabs and with blue shows

the areas allocated for Jews. (See V.A map 1)

iv. The inequality did not exist only in the denial of the ethnic composition of the

population but also, in the kind of land offered to Palestinians, which were ‘unfit

for agriculture.’142

140 Ibid.
141Ibid.
142 Shourideh C Molavi, Stateless Citizenship : The Palestinian-Arab Citizens of Israel' (2013). p.126
'

31
 v. The release of this Resolution was supposed to solve the complicated situation;

on the contrary, it provoked violence and exacerbated tensions between Arabs and

Jews and ‘directly caused the country to deteriorate into one of the most violent

phases in its history.’143

vi. An unethical and unconscionable aspect of the Resolution was that it did not

include any provision to protect Palestinians from ethnic cleansing nor guarantee

their rights to stay in their homeland.

vii. ‘the resolution was invalid ab initio, violating the Mandate for Palestine’.144

The adoption of Resolution 181 heralded the catastrophe (Nakba) in 1948. The

Resolution aimed primarily to establish ‘legally’ a Jewish State in Palestine (emphasis

added). ‘The imminence of partition led to the escalation of the prevailing violence into

full-scale war, involving the neighbouring Arab States.’145 Despite the rejection of the

inhabitants of Palestine, the UN issued the Resolution. Therefore ‘the UN members who

voted in favour of the Partition Resolution contributed directly to the crime that was about

to happen.’146

To conclude, tensions between Arabs and Jews in Palestine began with the

implementation of the Zionists’ aspirations, the withdrawal of the British Mandate and

143 Pappé (n 121).31

144United Nation General Assembly, Thirty-fifth session (n 74) p.15
145 Special Unite on Palestinian Rights (n 17) p.2
146 Pappé (n 121).35.

32
the prominent immigration of Jews into Palestine, but Resolution 181 strengthened the

rejection of the partition by the Arabs.147 As a result, the chaos started and the wars

between Arabs and Israel have raised causing the ethnic cleansing of Palestinians.148 The

United Nations role in partitioning Palestine was illogical and unjust. In spite of the fact

that resolution 181 was a General Assembly resolution, but it was effectively applied on

the ground. However, the UNGA and UNSC resolutions that issued in favour of

Palestinians refugees’ return were ineffective. The following discussion shows how

Palestinians enjoy popular support in the General Assembly. In addition, few times, they

enjoyed the Security Council support, but their aspirations are repeatedly cut short at the

last moment by US vetoes.

147 Hirst (n 105).133-137. Hirst in these pages described in detail the planned strategies of Haganah and Zionists army to defeat the Arabs and the Arabs
reactions. He disrespected the UN for its decision, he provided:’ The UN had been illogical; the creature which it brought forth was vigorous, but the conditions
imposed upon it almost denied it the means of survival. The creature was bound to grow, to throw off its crippling handicaps, to achieve its full Zionist stature.
Israel more than any other nation, is the child of the UN…’ P.133.
148 Pappé (n 121).33

33
 B. UN Resolutions relevant to repatriation or
compensation of Palestinian refugees
‘The tragedy of the people of Palestine is that their country was “given”
by a foreign power to other people for the creation of a new state. The
result was that many hundreds of thousands of innocent people were
made permanently homeless. With every new conflict, their numbers
increased. How much longer is the world willing to endure this
spectacle of wanton cruelty? It is abundantly clear that the refugees
have every right to the homeland from which they were driven, and the
denial of this right is at the heart of continuing conflict.’ (Bertrand
Russell, 1952)149

This letter was written more than 49 years ago, and the issue of the Palestinian refugees

is still not settled. The Israeli strategy in forcing the Palestinians to flee was by conquering

their land and making them homeless. Israel’s permission to the United Nations as a

Member State was conditioned by facilitating the return of Palestinian refugees (See

III.D.1). However, Israel seized every opportunity to launch wars (such as 1948 and 1967

wars) and increase the number of refugees without a practical fulfilment to the UN

principles. The following discussion shows some of several dozens of UNGA and UNSC

resolutions that has confirmed the Right of Return of Palestinian people to their homes,

but none has been effectively applied.

1. The UN Mediator’s Proposals:

The tragedy of the Palestinian refugees was drawn to the attention of the UN through

proposals that were recommended and written by Count Bernadotte, the UN Security

Council Mediator in Palestine of 1947-1948, who ‘was assassinated on Friday 17

149 Written by British Philosopher and political activist, Bertrand Russell. This message is the last message written by the British Philosopher and political activist
Bertrand Arthur William Russell, 3rd Earl Russell. He sent this message to the International Conference of Parliamentarians in Cairo in 31st of January 1970, and
was read on 3rd of February, the day after Russell’s death. Francis A. Boyle, The Palestinian Right of Return in International Law. And see Ron Forthofer,
‘Palestine: The Crime of Partition - Palestine Chronicle’ <http://www.palestinechronicle.com/palestine-the-crime-of-partition/>

34
September 1948 by members of the armed Jewish Zionist group LEHI (commonly known

as the Stern Gang or Stern Group)’.150 Despite Bernadotte’s help and support for the Jews

who suffered the holocaust, they killed him because he declared to the UN the necessity

of affirming and applying the Right of Return to the Palestinian refugees.151 He proposed:

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 UN, and their repatriation, resettlement and economic and social
rehabilitation, and payment of adequate compensation for the property
of those choosing not to return, should be supervised and assisted by
the United Nations Conciliation Commission..152

Bernadotte asked for affirmation to guarantee the right of refugees to be repatriated to

their homes which were under the ‘Jewish control’. It is essential to highlight that he did

not create a new law concerning the return but recommended that the Right of Return had

to be affirmed by the UN. Anis Al-Qasem, a respected Palestinian lawyer, explains

regarding Bernadotte’s recommendation, that it does not matter if the homes of refugees

are now under Jewish control or not, because it could not, in law, deny them their Right

of Return.153 As understood from Bernadotte’s proposal, it is the choice of refugees

themselves to decide to return to a Jewish controlled area or not and to be compensated

or not. Consistent with Bernadotte’s proposals and his progress report, the UN General

Assembly regarding the Right of Return as an existing right.

150 Amitzur Ilan, Bernadotte in Palestine Palgrave Macmillan UK (1948) p. 193

151 Ibid.
152 Ibid
153 Karmi and others (n 31).

35
 2. Resolution 194

a) The Right of Return

The General Assembly adopted and declared Resolution 194 (III), proposing that:

Refugees wishing to return to their homes and live at peace with their
neighbours should be permitted to do so at the earliest practicable date,
and that compensation should be paid for the property of those
choosing not to return and for loss of or damage to property which,
under principles of international law or equity, should be made good
by the Governments or authorities responsible.154

The Resolution considers many vital points about the Palestinian refugees’ plight, and

one of them is the Right of Return to their homes at the earliest practicable date and

receiving compensation for their damaged properties. It categorises refugees in two

groups, depending on their choice either return or not to return. They can be resituated,

repatriated, and compensated for their lost properties or to be resettled, rehabilitated, and

compensated; and their rights would have to be considered seriously and respected by the

concerned state under principles of international law and in equity.155

Moreover, the Resolution confirms the return ‘to their homes’, that is, refugees have a

clear right to return to their homes as they used to live in their regular life previously,

even if their place is now considered a Jewish-controlled area. Furthermore, refugees who

wish to return must be ready ‘to live at peace with [his] neighbours’, so every individual

has to be responsible for his/her acts toward his/her neighbours. If he/she violates this

provision, he/she will be subjected to law. Simultaneously, there should not be any

154 UNGA Res. 194 (1948) UN Doc.A/RES/194 (III)

155 UNGA Res. 194 (1948) UN Doc.A/RES/194 (III)

36
assumption of misconduct by refugees with their neighbours and conditioning their right

to return on these bases.156 Currently, there are many Palestinians within Israel who live

in peace with their neighbours, so the assumption of violent acts by the returning refugees

should not be assumed.157

According to the Resolution, return should be at the earliest practicable date, but until

now, 71 years later, the date has still to arrive. The wording of the resolution such as

‘practicable date’ weakened the context. It is unclear what the timing that seems

practicable to allow the return? Obviously, Israel uses this lack of clarity to postpone the

return to the time that they see possible. However, the time factor is a dangerous threat to

the return.

b) Resolution 194 (The UNCCP)

Conciliation Commission to facilitate the repatriation, resettlement and
economic and social rehabilitation of the refugees and the payment of
compensation, and to maintain close relations with the Director of the
United Nations Relief for Palestine Refugees and, through him, with the
appropriate organs and agencies of the United Nations.158

The Resolution’s primary purposes included the establishment of the UN Conciliation

Commission for Palestine (UNCCP), which consisted of three member states of the UN

(France, Turkey and the United States).159 The Commission was given a crucial

156 Ibid.
157 Ibid.
158 Ibid.
159 UN document A/AC.25/W.81/Rev. 2, Historical Survey of Efforts of the UN Conciliation Commission for Palestine to Secure the Implementation of
Paragraph 11 GAUN Resolution194(III).

37
responsibility and authority to protect refugees and to facilitate consensus respecting the

proper recommendations for the refugees by achieving ‘a final settlement of all questions

outstanding between them’.160Within the context of paragraph 11, the Resolution

endorsed an essential function under the supervision of the UNCCP, to implement

functions that were previously entrusted to the UN mediator for Palestine by facilitating

the process of providing refugees with their rights of compensation and repatriation.161

These functions can determine the Palestinian refugees’ fate, and once they are resolved,

a substantial positive difference will occur in the Palestinian plight; the return of refugees

in the former Yugoslavia is an example.

The UNCCP mission is crucially important. The Palestinian refugees held little hope

for it to make a difference on the ground, and indeed, it has made no significant difference

until now. Since the declaration of UN Resolution 194 until now, the UNCCP has not

been able to implement the Resolution’s recommendations. On 18 December 2018, the

General Assembly adopted Resolution(A/RES/73/92), Home/Assistance to Palestine

Refugees, which declared:

notes with regret that the United Nations Conciliation Commission for
Palestine has been unable to find a means of achieving progress in the
implementation of paragraph 11 of General Assembly Resolution 194
(III), and reaffirms its request to the Conciliation Commission to
continue exerting efforts towards the implementation of that paragraph
and to report to the Assembly on the efforts being exerted in this regard
as appropriate, but no later than 1 September 2019.162

160 Karmi and others (n 31).128

161 Ibid.
162 UNGA Res. UN Doc. (2018) A/RES/73/92.

38
The result of the vote for this Resolution was 163 in favour, two against, with 13

abstentions. This is an explicit confirmation of the validity of the internationally binding

inalienable right of the Palestinian refugees. However, this Resolution also shows the

failure of the UNCCP to implement its mission to achieve justice for Palestinian refugees.

‘It was realized later that the efforts of the Conciliation Commission,
like those of the United Nations mediator before it, failed and did not
effectuate the Right of Return of the Palestinian Arab refugees.’163
The UNCCP made some efforts to politically intervene with Israel in order to

guarantee the Right of Return to Palestinian refugees.164 As a result, Israel offered

repatriation of 100,000 refugees, but in 1951, Israel officially withdrew its decision.165

By 1951 the role of the UNCCP was reduced to a limited position as an ‘intervenor

with Israel (or other states) ‘to protect refugees’ rights.166 As a result of the failure of the

UNCCP to perform the functions assigned to it, it was stripped of its significant role of

protection and reduced to a collection of information about refugees’ property in Israel.

As a result, the UNCCP office in New York currently has the largest collection of data

about Palestinian refugees’ property and land ownership during Mandate Palestine.167

The question remains, however: after seven decades of the unsolved Palestinian refugee

problem, to what extent can the data collected in the UNCCP office help to facilitate the

return of the refugees to their homes and properties? There should be a pressure by the

163 Carl Dahlman and Gearóid Ó Tuathail, ‘The Legacy of Ethnic Cleansing: The International Community and the Returns Process in Post-Dayton Bosnia-
Herzegovina’ (2005) 24 Political Geography 569.127
164 Karmi and others (n 31).41
165 Ibid.
166 Ibid.
167 Ibid.

39
nations of the UN and the UN organs on the UNCCP to achieve its mission on the ground.

Obviously, Israel does not cooperate with the work of the UNCCP, but this should not be

ignored by the General Assembly and Security Council. To compare the UNCCP efforts

to the UNHCR efforts in facilitating the return of the refugees to their homelands, the

UNHCR proved to be successful and more authoritve with regards to refugees rights.

3. Resolution 513
The General Assembly adopted Resolution 513 (VI), on 26 January 1952. It issued the

Resolution based on the failure to implement the Right of Return for Palestinian

Refugees.168 The Resolution commended UNRWA’s role in facilitating and accelerating

the reintegration of Palestine refugees and providing access to welfare for them. Besides,

paragraph 2 of the Resolution adopts:

without prejudice to the provisions of paragraph 11 of Resolution 194

(III) of 11 December 1948 or to the provisions of paragraph 4 of
Resolution 393 (V) of 2 December 1950 relative to reintegration either
by repatriation or resettlement, the programme recommended by the
United Nations Relief and Works Agency for the relief and reintegration
of Palestine refugees.169
As it provided within the context of the Resolution, the reintegration should be

achieved either by repatriation, as stipulated in Resolution 194 para.11, or by resettlement

elsewhere. ‘Resettlement apparently offered as a practical alternative to the principle of

repatriation which had thus far not been practically obtainable.’170

168 Assistance to Palestine Refugees: reports of the Director and the Advisory Commission of the United Nations Relief and Works Agency for Palestine
Refugees in the Near East, A/RES/513 (VI) 26 January 1952
169 Ibid.
170 Karmi and others (n 31).130

40
 4. Resolution 237
The UNSC Resolution 237 was adopted on 14 June 1967, after the further exodus of the

Palestinian refugees in 1967.171 The Resolution was confirmed by the Security Council;

15 voted for, and none vetoed or abstained. The main aim of this Resolution is to call

Israel to comply with the principles of the Geneva Convention relative to the Treatment

of Prisoners of War. The resolution also endorsed facilitation of the return of the refugees

who had evacuated their homes as a result of the 1967 War. It requested the Secretary-

General to monitor ‘the effective implementation of this resolution and to report to the

Security Council’.172

Paragraph 4 of the Resolution calls:

upon the Government of Israel … to facilitate the return of those
inhabitants who have fled the areas since the outbreak of hostilities.173

Despite this legally binding Resolution, Palestinians are still scattered in refugee camps

across the Middle East.

5. Resolution 242
The UN Security Council Resolution (242) was unanimously approved on 22 November

1967.174 It was interpreted differently because of its broad language.175

171 SCUN Res. 237 (June 14, 1967) S/RES/237

172 Ibid.
173 Ibid.
174 UNSC Res 242 (1967) S/RES/242
175 Amb. Meir Rosenne, ‘Understanding UN Security Council Resolution 242’ Jerusalem Centre for Public Affairs < http://jcpa.org/requirements-for-defensible-
borders/security_council_resolution_242/> Last accessed 25 August 2019

41
 This Resolution, particularly paragraph 2, calls for a just settlement of the Palestinian

‘refugee problem’. The ‘just settlement’ presumably, as emphasised in the above-

mentioned Resolutions, means fulfilling the obligations of Israel toward Palestinian

refugees by promoting the return or providing compensation. However, there is no

specific reference to the Palestinian ‘Right of Return’. The broad language used in this

Resolution is open to many interpretations. The ‘just settlement’ can be interpreted

variously. It can be taken to refer to local integration, resettlement, compensation or

return.

The Palestine Liberation Organization (PLO) rejected this Resolution because it

obliterates the national rights of ‘Palestinian people’ and because it deals with their

problem as a ‘refugee problem’ not as a ‘national issue’.176 Instead, the Resolution deals

with their cause as ‘a random agglomeration of atomised individuals of no fixed identity

whose future was to be determined in accordance with whatever arrangements were most

convenient to the powers that be.’177The PLO also considered the language of Resolution

242 as insulting because it did not consider the Palestinians as ‘a people with a right to an

equal voice’ in the settlement process.178

The Resolution is very important since no Member States of the Security Council

vetoed it; however, its language made it difficult to interpret and implement.179 Moreover,

the Security Council did not act under Chapter VII of the Charter because the events

176 Rashid I Khalidi, ‘Observations on the Right of Return’ (1992) 21 Journal of Palestine Studies 29.
177 ibid.
178 ibid.
179 Rosenne (n 222)

42
concerned in the Resolution, the Six-Day War, did not fit the characterisation of this

Chapter. However, it was affirmed under Chapter VI, which ‘deals with pacific resolution

of disputes.’180 Under this Chapter, the Security Council does not act, but calls upon the

parties to the dispute to ‘seek a solution by negotiation, enquiry, mediation, conciliation,

arbitration, judicial settlement, resort to regional agencies or arrangements, or other

peaceful means of their own choice’.181

It is difficult to know how negotiations between the concerned parties can be solved

without an intervention by the Security Council. For example, until now, the Palestinian

Authority and Israeli government have not reached any solution yet despite the several

negotiations that had been conducted between them, such as the Oslo Process Agreement

in 1993. While neither the Palestinian Authority or the Israeli government has cooperated

to address the issue, the Security Council can act effectively to put both under the

pressure of the sanctions previously mentioned (See chapter II D1 b).

6. Resolution 2452A
On 19 December 1968, the General Assembly purported to reaffirm the Right of Return

in Resolution 2452A. This calls upon Israel to take effective and immediate steps for the

return for those who had become refugees since the outbreak of the 1967 war, some of

whom had become refugees for the second time since the 1948 exodus182. This Resolution

180 Ibid.
181 Charter of the United Nations (n 4) chapter VI
182 GAUN Res. 2452 A(XIII) UN Doc. (December 19, 1968) A/RES/2452(XXIII)(A-C)

43
recalled many other Resolutions previously adopted.183 It also confirmed the

ineffectiveness in applying the provisions of these Resolutions, particularly Resolution

194.

C. Obstacles to applying UN Resolutions relevant to the

Palestinian refugee problem
‘The tragedy in Palestine is not just a local one; it is a tragedy for the world because it

is an injustice that is a menace to world peace’.184 It is apparent that the more Resolutions

are issued, the more it shows the ineffectiveness of the UN in establishing peace and

justice in Palestine. While there are obligations on Member States within chapter VII of

the UN Charter, to bring peace, there must be UN action on the ground toward Israel as a

Member State party. For instance, the UNSC Resolutions 237 and 242, Israel either

ignored them or interpreted them differently. The critical questions for consideration here

can be articulated clearly as follows: Why has the UN not sanctioned Israel, as a Member

State, for continuing noncompliance with its obligations to respect the UN principles,

particularly chapter I of the UN Charter?185 What effects can the UN claim by declaring

183 Resolution s 194 (III) of 11 December 1948, 302 (IV) of 8 December 1949, 393 (V) and 394 (V) of 2 and 14 December 1950, 512 (VI) and 513 (VI) of 26
January 1952, 614 (VII) of 6 November 1952, 720 (VIII) of 27 November 1953, 818 (IX) of 4 December 1954, 916 (X) of 3 December 1955, 1018 (XI) of 28
February 1957, 1191 (XII) of 12 December 1957, 1315 (XIII) of 12 December 1958, 1456 (XIV) of 9 December 1959, 1604 (XV) of 21 April 1961, 1725 (XVI) of
20 December 1961, 1856 (XVII) of 20 December 1962, 1912 (XVIII) of 3 December 1963, 2002 (XIX) of 10 February 1965, 2052 (XX) of 15 December 1965,
2154 (XXI) of 17 November 1966 and 2341 (XXII) of 19 December 1967.
184 Arnold Toynbee, a British historian, philosopher of history, author of numerous books and research professor of international history at the London School of
Economics and King's College in the University of London. <https://en.wikipedia.org/wiki/Arnold_J._Toynbee> accessed 30-06-2019
185 Charter of the United Nations (n 4) art.2
The Article reads: 1- The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles
2- The Organization is based on the principle of the sovereign equality of all its Members.
3-All Members, in order to ensure, to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in
accordance with the present Charter.
4-All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

44
even more Resolutions without being able to force Israel to fulfil its commitments and

responsibilities to Palestinian refugees? Palestinian refugees are still waiting for the

answer for their calls of justice over the past 71 years.

The quotation that follows seems to address the main barrier to implementing UN

Resolutions:

‘[T]he main obstacle has been the American Veto which has been used
to protect Israeli violations. In recent years, in the wake of the Gulf War,
the world has been a witness to the double standards being applied by
the United States (and Great Britain) regarding the implementation of
United Nations Resolutions. The United States as a sole superpower, is
in open and persistent support of Security Council Resolutions on Iraq
to the extent of waging unilateral war on Iraq, while is against even
condemnation of Israel of its continuous violation of Security Council
Resolutions on Jerusalem and UN Resolution 194(III) on the Right of
Return of Palestinian refugees. This policy has seriously undermined
US credibility, not only in the Arab World, and has left the problem of
the refugees without the active support of the Security Council’ 186

The Resolutions mentioned above are not the only Resolutions proposed by the United

Nations. There are many other Security Council resolutions relevant to the Palestinian

problem, but the United States has been the main UN Member State vetoing these

Resolutions. Some of these vetoed Resolutions, as shown in Table 2, aim to find a durable

solution to the need for Palestinians to exercise their inalienable rights. The United States

has used the Veto on approximately 80% of Middle East resolutions.187 ‘The US is

5-All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations.
6-All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance
to any state against which the United Nations is taking preventive or enforcement action.
7-The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for
the maintenance of international peace and security.
186 Karmi and others (n 31). 154
187 Foreign and Commonwealth Office, ‘Vetoed Draft Resolutions in the United Nations Security Council 1946-2012’ (3 September 2012)

45
 currently the most frequent user of the veto. Its veto of thirteen draft resolutions on

Israel/Palestine between May 1995 and February 2011 continued a long tradition of US

support for Israel on this issue’.188

Table -2- 189

Veto date & UNSCR reference Subject Resolution would have …/ Reference to UN
Charter

29/06/76 Question of the exercise affirmed the inalienable

of the inalienable rights of
S/12119
the Palestinian people
30/04/80 Question of exercise by
the Palestinian people of
S/13911
their inalienable rights
Situation in the occupied
1/2/88
territories: Palestine
S/19466
9/6/89 Situation in the occupied
S/20677 territories: Palestine
rights of the Palestinian
people to self-determination
including the right to return
and national independence
and sovereignty in Palestine
reaffirmed that Israel should Reference to guarantees
withdraw from all occupied to be established for all
territories including States in the area in
Jerusalem and affirmed that accordance with the
the Palestinians’ right to self- with the Charter –
determination included right operative paragraph 3
to establish independent State
in Palestine
calls on Israel to accept the Reference in
de jure applicability of the preambular paragraph 3
Geneva Convention to to the inalienable rights
territories occupied since of all peoples
1967 and comply with recognised by the
obligations under the Charter
Convention, and requested
continued monitoring by the
UN Secretary-General
strongly deplored Israel’s Reference in
policies and practices in the preambular paragraph 2
occupied Palestinian to the inalienable rights
territories; demanded that of all peoples
Israel desist from deporting recognised in the
Palestinians from the Charter
occupied territories;
expressed concern about
prolonged closure of schools
in parts of the occupied
territory and requested the

188 Ibid. p.9

189 Ibid, p. 12-62

46
 Secretary-General to report
no later than 23 June

In summary, the UN’s purpose as stipulated in Chapter I Article (1) of the UN Charter

is ‘to take effective collective measures for the prevention and removal of threats to

peace, and for the suppression of acts of aggression or other breaches of the peace’.190

However, these measures have not been implemented on the ground when it comes to

Israel. The threat to peace in the Middle East exists in the continuation of Israel’s denial

of the refugees’ Right of Return.

It cannot be denied that the UN made some efforts to support Palestinian refugees’

Right of Return. However, these efforts were restricted to the adoption of UNGA or

UNSC Resolutions without requiring Israel to abide by the resolutions. In Gaza, there are

nearly 1.4 million Palestine refugees existing blockade imposed by Israel on land, air, and

sea since 2007. Refugees in Gaza are very close to the areas from which they were

displaced, but their return has been blocked because of Israel’s denial of the principles of

the UN Charter and international law. The following discussion explains and shows

Israel’s attempts to suppress the question of Palestinian refugees.

D. Israel and the Right of Return

Israel’s Declaration of Independence states the nation’s vision and beliefs as follows:

The state of Israel will promote the development of the country for the
benefit of all its inhabitants; will be based on precepts of liberty, justice
and peace taught by the Hebrew prophets; will uphold the full social

190 Charter of the United Nations (n 4) chapter I art.1.

47
 and political equality of all its citizens without distinction of race, creed
or sex …and will dedicate itself to the principles of the Charter of the
United Nations.191
Israel’s policies toward the Palestinian refugee problem and the Palestinians, including

those who were internally displaced within Israel, makes clear that these principles have

been systematically ignored. As a Member State of the UN, Israel is expected to comply

with the principles of the UN Charter, as mentioned in the state’s Declaration of

Independence.

According to proposition articulated within the 1947 UN Partition Plan, both states -

Israel and Palestine - should protect the fundamental rights of minorities.192 When the

Partition Plan came into force, Israel came into being shortly thereafter; while Palestine

is still only partially recognized.193 Therefore, it is the responsibility of Israel to safeguard

the rights of minorities. Israel is recognized as a member state of the UN, while Palestine

is a non-member state UN observer state.194 Israel’s admission as a member state in the

UN meant that it was expected to respect the inalienable Palestinian right. But has Israel

adhered to the conditions of its admission to the UN? What policies has Israel used to

abide by its obligation toward the refugees? In the following discussion, I will review the

implications of Israel’s admission to the UN as a Member State. This will be followed by

a few examples of the Israeli policies with regards to the exportation of the Palestinians

properties and lands; also, some cases of the lack of cooperation of the Israeli government

191 Israeli Government Official website <https://www.archives.gov.il/en/chapter/the-declaration-of-independence/> Last accessed 28,08,2019

192 181 resolution
193 Special Unite on Palestinian Rights (n 17) p.2
194 Ibid.

48
with the Israeli Supreme Court such as the rulings for Kafer Bara’m and Iqrit villages.

Finally, the Israeli laws that used to impede the return of Palestinian refugees will be

summarized.

1. Implications of Israel’s admission as a UN Member

State

As a ‘sovereign state’, Israel is supposed to safeguard the fundamental rights non-Jewish

minorities, most of whom are displaced Palestinians living within Palestine or in

neighboring countries. The rights of Palestinians as outlined in several Resolutions have

never been implemented, and these rights are always rejected by the Israeli government.

Since UN Resolutions 181 and 194, Israeli representatives at the UN have given

unsatisfactory answers to questions about the implementation of Israel’s obligations

towards the Palestinian refugee problem.195 In response to questions about the Palestinian

refugee problem which had been formulated by the UN Conciliation Commission, the

Prime Minister of Israel replied: ‘The government of Israel considered that the real

solution of the major part of the refugee question lay in the resettlement of refugees in the

Arab States.’ 196

Moreover, when the commission asked if the government of Israel accepted paragraph

11 of Resolution 194(III) affirming the Right of Return of Palestinians, he answered:

The two most widely advocated principles were (a) resettlement of the
refugees in the places from which they had fled, thus creating a large
minority problem and a possible menace in internal peace and stability
(b) the resettlement of the refugees in areas where they would live under

195 Special Unite on Palestinian Rights (n 17) p.2

196 Ibid 18

49
 a Government akin to them in spirit and tradition and in which their
smooth integration would be immediately possible with no resultant
friction.
During the thirty-fifth session of the General Assembly and Security Council in 1980, the

committee stated that the declarations of the Israeli government and representatives

concerning resolution (194) did not unqualifiedly accept the Resolution. Therefore, their

declarations does not create a legal obligation.197 Moreover, it can be understood that

Israel wishes to relieve itself of responsibility towards the Palestinian refugee problem,

which it claims, ‘was not of its making’.198 Furthermore, their intended policies clearly

stated in their proposals, which is to aim to resettle refugees in adjacent countries. He did

not mention anything about repatriation or compensation for refugees.

The UN considered that some replies provided by the Israeli representative showed

that the Israeli government would commit to the Right of Return in principle, as a step

towards sustaining peace in the Middle East.199The acceptance of the principle of the

Right of Return is a primary condition for the admission of Israel as a member state in

the UN.200

197United Nation General Assembly, Thirty-fifth session ( (n 74) p.20

198Special Unite on Palestinian Rights (n 17) p.18
199 Ibid
200 Special Unite on Palestinian Rights (n 17) p. 20. The General Assembly took note of these assurances in admitting Israel to the United Nations. Its Resolution
specifically mentioned Resolution (194) which established the Right of Return and thus linked Israel ́s admission to the acceptance of this principle.

50
 Despite this condition that stated clearly above by the General Assembly, Israel has

not conformed to its obligations yet, and it still a Member State in the UN. The next

paragraphs explain how Israel hindered the return of refugees to their homes.

2. The Defence (Emergency) Regulations, 1945

The British Mandate government passed Defence Regulations in 1945.201These

regulations established some provisions regarding illegal immigration, imprisonment of

civilians for an indefinite period without trial or warrant, the deportation of citizens from

their homeland without explanation, destruction of houses, imposition of curfews, and

restriction of access to particular territories.202

A former Israeli Justice Minister deemed the British Defence Regulations as

‘officially licensed terrorism’.203 And Yaakov Shapira, an Israeli jurist and Socialist

Zionist politician, declared: ‘It is our duty to tell the whole world that the Defense Laws

passed by the British Mandatory Government of Palestine destroy the very foundations

of justice in this land’.204

However, except for ‘changes resulting from the establishment of the State or its

authorities’ Israel constituted these Regulations into its official law ‘pursuant to section

201 The Israeli Information Centre for Human Rights in the Occupied Territories ( B’Tselem) website <
https://www.btselem.org/legal_documents/emergency_regulations> Last accessed 28 August 2019
202 Ibid
203 Hirst (n 105). 185
204 Ibid

51
11 of the Government and Law Arrangements Ordinance 205 and used them to act against

Palestinians ‘with greater severity’ than the British had done.206

Despite an attempt by the Knesset to object and abolish Defense Regulations because

they ‘oppose the basic principles of democracy’, the Israeli government retained them.207

Instead, they considered the Regulations as the ‘legal basis for the military rule’ that they

later forced on Israel's Arab citizens.208 Hirst affirmed that under these laws Israel can

deport and transfer Palestinians and then declare their zones as security zones where no

Arab could enter without a permission.209 Another example of these regulations: under the

tenth part of the Defence Regulations, the High Commissioner was able to deport any

person from Palestine for an indefinite period while the ‘Order remains in force’.210 And

this person can be detained without warrant by any of the police officers or His Majesty’s

forces.211 Israel seized every opportunity to use the Defence laws, which Hirst described

as ‘Draconian powers.’212Some of the villages that confronted the consequences of the

application of these laws were the villages of Kafer Bar’am and Iqrit.

a) Kafr Bar'am and Iqrit

205 B’Tselem (n 250)

206 Hirst (n 105). 185
207 B’Tselem (n 250)
208 Ibid
209 Hirst (185) He said: Under these laws, the army could uproot whole communities at will, deporting them or transferring them from one security zones which
no Arab could enter without permission; any place; imprison a man without trial or confine him to his home or outside Israel, or expel him without explanation
from his native land. The only means of redress, through a military court, was wholly futile
210 The British Mandate, Palestine Defence Emergency Regulations 1945 ( 27th September, I945)The Palestine Gazette No. 1442
211 Ibid
212 Hirst (n 105).186

52
Kafr Bara’am (1953) and Iqrit (1948) are uninhabited villages which used to be the homes

of Palestinian Christian villagers.213 The Israeli military expelled the residents, some to

other villages in the Galilee, others to Lebanon.214 The villagers were told that they would

be able to return within two weeks, but the Israeli authorities declared the villages to be

closed military zones.215 The villagers expelled to Galilee became Israeli citizens as they

lived in an Israeli controlled area.216 However, in enforcing Israeli law, Israel used

discriminatory approaches to its Jewish and non-Jewish Arab citizens. The residents of

these two villages appealed to the Israeli Supreme Court to allow them to return to their

homes,217 and the Court ruled in their favour.218 The Israeli army and officials did not

accept the Court’s ruling. Indeed, the Israeli Air Force used explosives and bombed both

villages to prevent the return of the original residents.219

The Israeli polices, and actions show their intention to colonialize more Palestinian

lands, conceal former Palestinian existence, and frustrate the return of Palestinians.

Justice for Palestinians seems to be impossible to be achieved by Israeli laws. With no

doubts, Israel wants to achieve its own interests, even if this deprives Palestinians of their

inalienable rights. And this contradicts their declared principles in their declaration of

213 Hirst (n 105).187

214 Ibid.
215 Matthew Cassel, ‘Palestinians camp out for Right of Return’ (10 Sept 2013) p.6
216 Ibid
217 Ibid
218 Ibid
219 Ibid.

53
independence that supposed to ‘dedicate itself to the principles of the Charter of the

United Nations.’220

Israel has not only imposed such policies but has also passed laws to achieve its

expansionist and exclusivist nation purpose at the expense of Palestinian lives and rights.

These include the Israeli Law of Return, the Israeli Nationality Law, and the Absentees'

Property Law.

3. Relevant Israeli Laws

a) The Israeli Law of Return

Israel ignores the Palestinian Right of Return, but, concurrently, applies its Law of Return

only to Jews, regardless of where they were born or are living. The first Article of this

law declares: ‘Every Jew has the right to immigrate to this country as an oleh

[immigrant]’.221 And Article 3 (a) reads: ‘A Jew who comes to Israel and subsequently

expresses his desire to settle may, whilst still in Israel, receive an oleh’s [immigrant’s]

certificate.’222 As indicated in these Articles, any Jew born has the right to seek Israeli

citizenship and residence, but the Palestinian people who were born in historic Palestine

(which is now called Israel) and who had documents to prove their residency and birth

are excluded from this law.223 The Israeli Law of Return is a breach of international law

under the UDHR Article 13 which obliges all the nations to allow the residents to move

220 Israeli Government Official website <https://www.archives.gov.il/en/chapter/the-declaration-of-independence/> Last accessed 28,08,2019

221 Law of Return, < https://www.jewishvirtuallibrary.org/law-of-return> Last accessed 30-06-2019
222 Ibid.
223 Karmi and others (n 31).134

54
freely and return to their country. Additionally, Israel is a state party of the 1951 Refugee

Convention under Article 1.C that emphasised the Right of Return of the original

inhabitants to their country. However, Israel declared its Law of Return without being

held accountable for its breach of refugee law.

b) The Israeli Nationality Law

The Israeli Nationality Law is further evidence of Israeli’s policies to frustrate a just to

solution to the Palestinian refugees’ problem. This law is linked to the Law of Return,

which eventually leads to the reality that only Jews can apply for nationality while

Palestinians who fled their homes during ethnic cleansing are excluded.224 As stipulated

in Article 1 of this law, the Israeli nationality can only be given in the existence of some

characteristics.225 The Article reads as follows:

‘Israel nationality is acquired- By return ….; by residence in Israel….;

by birth ….; by birth and residence in Israel ….; by naturalization...or
by grant…... There shall be no Israel nationality save under this Law.’226
Under this Article in Section 2, Paragraph (a), in respect to acquiring nationality ‘by

return’, it declares that ‘Every immigrant under the Law of Return...shall become an Israel

national’. Moreover, paragraph (C) of this Article states: ‘This section does not apply to

a person having ceased to be an inhabitant of Israel before the coming into force of this

law’.227 This clearly states that Palestinian refugees who were expelled during the war are

excluded from the Nationality Law.

224 Israel: Nationality Law, 5712-1952, (14 July 1953), available at: https://www.refworld.org/docid/3ae6b4ec20.html [accessed 26 August 2019]
225 Ibid
226 Ibid.
227 Ibid.

55
 c) Absentees' Property Law

In 1950, Israel sent its army to expel Palestinians who had remained in Ashkelon

(Magdal) during the 1947 ethnic cleansing.228 Israeli soldiers ‘put all the inhabitants on

trucks, took them to the Gaza frontier and, with the help of some shooting in the air, told

them to go and join the refugees who had passed that way two years before.’229

At that time, the international community was concerned and sensitive about the

refugee issue after World War II. Israel had always portrayed itself as a democratic

state.230 To prevent any criticism of it as a state, in 1950, Israel issued a law called ‘the

Acquisition of Absentee Property Law’ or the ‘Absentees' Property Law ’ to justify

Israel’s exploitation and expropriation of the lands, homes and properties of refugees.231

The Absentees' Property Law was ‘the main legal instrument used by Israel to take

possession of the land belonging to both internal and external Palestinian refugees’.232

228 Hirst (n 105). 188

229ibid.188
230 Ibid.
231 Ibid.
232 Israel: Absentees' Property Law (1950) Available at < https://www.adalah.org/en/law/view/538> Last accessed 26 August 2019

56
This law defined the ‘Absentee’ as persons who fled the ethnic cleansing after 29

November 1947 and was a national or a citizen in areas including Lebanon, Egypt, Iraq,

Yemen, Syria, Saudi Arabia and Jordan, or in an area of Palestine outside Israel’s control.

Property belonging to absentees was placed under the control and the law of Israel and

then handed over to the Custodian.233 The absentees’ property was transferred to the

control of the Custodian for ‘development of Israel’ and the benefits of the Israeli

residents.234 Under this law, the Custodian was able to ‘lawfully’ sell or lease to others -

on behalf of absentees - properties that belonged to them. Also, the Custodian was enabled

to transfer and sell the property to Israel ‘Development Authority at a price not less than

the official value of the property’.235

Hirst demonstrated the effects of this law as follows

the simple villager of Galilee had not been vouchsafed the power to tell
the future, and little did he realize that for this offence’ committed two
years before it actually became one, all these worldly possession - his
homes and field - could be taken away from him and given to somebody
else, a total stranger who came from across the seas. It did not matter
how long he had been away; it could have been for one day only. No
matter where he had gone; it could have been to the next village. No
matter why he left; perhaps it was to buy some sheep. Moreover, it was
so much easier for the custodian in that he was not expected to furnish
proof of absence.236

233 Article 2 (a) of the law reads ‘The Minister of Finance shall appoint, by order published in Reshumot, a Custodianship Council for Absentees' Property, and
shall designate one of its members to be the chairman of the Council. The chairman of the Council shall be called the Custodian.’ Under Article 7 of this law, the
Custodian shall ‘take care of held property, either himself or through others having his consent’ and can ‘make any investments necessary for the care,
maintenance, repair or development of held property or for other similar purposes.’
234 Lizzie Dearden , ‘Israel can now legally seize Palestinian homes in Jerusalem under 'absentees' property law’ (17 April 2015)
<https://www.independent.co.uk/news/world/middle-east/israel-can-now-legally-seize-palestinian-homes-in-jerusalem-under-absentees-property-law-
10184483.html> Last accessed 26 August 2019
235 Israel: Absentees' Property Law (1950) art.19 Available at < https://www.adalah.org/en/law/view/538> Last accessed 26 August 2019
236 Hirst (n 105). 189

57
 There have been arguments over the implementation of the Absentees' Property Law

for decades and ‘the latest Supreme Court ruling was in response to high numbers of

appeals from Palestinians who have lost their homes’.237 The Absentees’ Property Law

aims to ‘legally’ take possession of Palestinian refugee (inside Palestine and in exile)

lands and Muslim Waqf properties.238 Adalah, a Nazareth NGO defending the rights of

Palestinian in Israel, discovered that these properties were being offered for sale to

‘private individuals’. In a letter sent to the Attorney General and Director-General of the

Israel Lands Administration, Adalah asserted: ‘Selling these properties constitutes the

final expropriation of the right to property of Palestinian refugees, despite the special

legal, historical and political status of these properties.’239 Furthermore, selling the

absentee’s properties to individuals violates international humanitarian law that endorses

the necessity to ‘respect the right of private property and explicitly prohibits the final

expropriation of private property following the termination of warfare.’240

To conclude, the accounts of Kafr Qasem, Kafr Bar'am, and Iqrit are examples of the

lack of respect by Israeli authorities and officials of the rulings of their Supreme Court.

How one can expect Israeli authorities to comply with international law given the

impunity with which fails to act in cooperation with its own laws? Israel has always

claimed that it applies the same laws to its Arabs as to its Jewish citizens. That is how it

237 Dearden (n 293)

238 Adalah to Attorney General and Custodian of Absentee Property: Israel's Sale of Palestinian Refugee Property Violates Israeli and International Law, available
at <https://www.adalah.org/en/content/view/7003> Last accessed 26 August 2019
239 Ibid.
240 Ibid.

58
may have seemed on the surface. The truth is that Israel discriminates against non-Jews.

Israel does not permit Palestinians holding Israeli citizenship to return to their original

homes; while at the same time acquiescing in Jewish Israeli citizens building settlements

and confiscating the properties of Palestinians. Masalaha concluded that the reason for

Israel’s fear of allowing return of the Palestinian refugees is that: ‘opening the door to a

potential 4 million returnees would threaten the demographic balance - and thus the very

nature - of the world's only Jewish state’241 – a policy paid for by the denial of inalienable

Palestinian rights.

241 Heather Sharp, ‘Right of Rreturn: Palestinian dream’ (15 April 2004) < http://news.bbc.co.uk/1/hi/world/middle_east/3629923.stm> [Last accessed 25 August
2019]

59
IV. Conclusion

As a result of continuing ethnic cleansing and settler-colonialism, Palestinians

are scattered across the world, half of them in historic Palestine (in Israel, East

Jerusalem, the West-Bank and the Gaza Strip), while others are spread over the

Middle East and other regions. Their status varies depending on where they live.

Those who live in the West Bank and Gaza are refugees and non-refugees living

under belligerent occupation; Palestinians in East-Jerusalem are ‘permanent

residents’ but are not considered as citizens of Israel; while other who live ‘inside

Israel’ are citizens of Israel. Palestinian refugees have been suffering the

consequences of ethnic cleansing for the past seventy-one years. Some live in

refugee camps in Lebanon in desperate circumstances; others live in refugee

camps in Jordan, where their living conditions are little better. Others have

suffered the consequences of the civil war that erupted in Syria and were forced

to evacuate once again to other countries to seek protection.242

Whatever their social status, most Palestinians are united by two realities:

the first is that their grandparents or parents had to flee ethnic cleansing and

settler colonialism; the second is that Israel has banned them from living in their

ancestral lands. Palestinians endure an unjust situation due to the rejection of

their Right of Return. Israel has an obligation toward Palestinian refugees, either

242
These Palestinians are called (Falstinyeen al-shatat) which means (Palestinians of the diaspora), and they obtain various types of
passports; some of whom use refugee document, and others hold travel documents (laissez-passer).

60
by facilitating their repatriation or by compensation, depending on the decision of

the Palestinian refugees. However, this right has been blocked by Israeli laws

and destruction of Palestinian villages, so removing evidence of their heritage

and culture.

Although the Palestinian Right of Return is universally declared, legally

binding, non-negotiable, and incorporated in the Universal Declaration of Human

Rights and the International Covenant on Civil and Political Rights, this

Palestinian right has been denied by successive Israeli governments. Even

though the UN is aware of these Israeli laws and their discriminatory effects Israel

remains a Member State of the UN which has not had to face any consequences

of its rejection of international law.

Some refugees in other parts of the world, for example, Iraq, Bosnia and

Kosovo - have been repatriated to their original homes in conformity with UN

principles, the international community has cooperated in facilitating the

repatriation of these refugees, some with enforcement by NATO forces. By

contrast Palestinian refugees have been denied return to their homelands since

1948.

61
 A. What makes the Palestinian case different from those of other
refugee populations?

There are essential reasons for considering Palestinian refugees separately from

other refugee populations. First, they do not come under the protection of the

1951 Refugee Convention (UNHCR) because they are supposed to be covered

by the protection mandate of the UNCCP. As has been mentioned above (see

Chapter II D2), there are some encouraging successful attempts to return

refugees to their homes using legal efforts used by through UNHCR and the

UNSC resolutions. The UNHCR proved to be effective in facilitating repatriation

in contrast to the UNCCP’s failure to protect Palestinian refugees’ repatriation

and compensation.

Second, Palestinians have had to confront a powerful settler-colonial

movement, so the return of refugees elsewhere has not been hampered by the

Israeli occupation and Israeli laws that are inconsistent with international law. The

Israeli government has failed even to cooperate with its own Supreme Court when

the latter has issued rulings that favour Palestinian rights

Although the Palestine Liberation Organization (PLO) is supposed to

represent Palestinian interests, it has failed to do so because it rarely involves

the Right of Return in its negotiations with Israel, for instance, in the Oslo

62
Accords.243 The collective interests of more than seven million Palestinian

refugees should be represented by a proficient human rights protection agency,

alongside the PLO in negotiations in the international arena.

Third, although Palestinians enjoy popular support in the UN General

Assembly, their aspirations are repeatedly frustrated by vetoes of UN Security

Council resolutions, usually by the US. As mentioned above, UN General

Assembly Resolutions do not create international legal obligations on the UN

Member States. However, the Security Council Resolutions are legally binding

and can use the power of action when it is agreed among the permanent Member

States under Chapter IIV.

Israel’s denial of the Right of Return for Palestinian refugees is a dangerous

threat not only to Palestinians but also in the wider world. The world’s silence in

the face of Israel’s denial of Palestinian refugee rights makes clear to other states

contemplating ethnic cleansing that they can expect to do so with impunity.

Myanmar’s treatment of the Rohingya people and India’s treatment of Moslems

in Kashmir may be examples.

243
Einat Wilf, ‘The Fatal Flaw That Doomed the Oslo Accords’ <
https://www.theatlantic.com/ideas/archive/2018/09/the-oslo-accords-were-doomed-by-their-
ambiguity/570226/> Last accessed [23-09-2019]

63
 It is clear that international law has not protected Palestinian refugees. In

answering the two questions posed in the introduction to this dissertation, I

believe that Palestinians must not resign themselves to refugee status and

abandon what appears to have been the cruel illusion that international law would

protect them. Nor do they have to abandon aspirations for nationhood enjoyed by

others. They do not have to accept the reality that laws and legal conventions

have not so far protected their right to self-determination. As long as Palestinian

refugees exist and claim their Right of Return, their right will not be lost.

Palestinians have struggled for elusive justice for over seventy years.

Although it is clear that justice is difficult to achieve, the struggle for it must

continue. When Palestinians decide to protest peacefully, Israel claims that they

constitute a danger to Israel’s security. When Palestinians resist an illegal

occupation using violence, those countries that have contributed to the creation

and perpetuation of the Palestinian refugee problem, deem them to be terrorists.

It is time for all-powerful nations committed to observing international law to make

clear what they expect of 7 million Palestinian refugees.

B. Who should respond to the Palestinian refugee issue?

Palestinian refugees have pinned their hopes on the UN; while the UN had

responded to injustice with words, but not practical actions. The Member States

64
of the United Nations can pressure Israel to address the Palestinian refugee

problem, using means ranging from economic sanctions to arms embargoes.

Pursuant to the UN Charter, the Security Council is the responsible UN body

for the maintenance of international peace and security, and it can declare legally

binding Resolutions that would force Israel to comply with UN principles, or

sanction it for its rejection of the Palestinian Right of Return. However, between

1972 and 2017, the United States vetoed Security Council resolutions forty-three

times to serve Israel’s interests.

A just settlement of the Palestinian refugee problem would seem more likely

to be achieved under the aegis of the UNHCR than it has been through the

UNCCP. Palestinian refugees are the only refugees who are treated separately

from other refugee populations in the world. Including Palestinian refugees under

the protection of the UNHCR seems more appropriate to provide for their

‘protection’ while continuing to receive ‘relief and social, health, and educational

services’ from UNRWA.

The primary responsibility for implementing a durable solution for the

Palestinian refugee problem rests with Israel because of its obligations, as

stipulated in international law. The settler-colonial Israeli state was established

on Palestinian land, ignoring the indigenous Palestinian people's rights. Israel

65
continues to commit ethnic cleansing of Palestinians, demolishing their homes,

annexing their lands, and building settlements for Israelis in their stead. If the

international community does not put an end to the continuing Israeli failure to

fulfil its obligations, this will be used to justify other states to ignore their

obligations under international law. The silence of the international community in

the face of Israeli denial of Palestinians rights has provoked violence, hate, and

racism. While Palestinians are being deprived of their legally affirmed rights,

Israeli people are enjoying most of their rights as citizens on the occupied

Palestinian territory.

Britain played a significant role in the dispossession of the Palestinian people.

During the British Mandate, Palestinians were promised sovereignty and self-

determination. However, to forge the concept of a national home for Jews, Britain

supported the illegal settler-colonial project. Britain thus has a primary

responsibility to work to solve the Palestinian refugee problem by playing its part

in ensuring that Israel fulfils its obligations, starting by suspending its arms trade

with Israel.244

To conclude, Palestinians are justified in expecting a united voice from

international human rights agencies and institutions to address and solve the

244
< https://www.stoparmingisrael.org/stop-arming-israel-week-of-action-1st-7th-july-
2017/#more-962> Last accessed [23-09-2019]

66
continuing struggle of the Palestinian refugees for justice. Prospects would seem

to be better if Palestinian refugees were to be brought under the mandate

protection of the UNHCR, or if the UNCCP system was to be dramatically

strengthened to replace words with actions. Whichever of these two possibilities

is pursued, a powerful, authoritative, clear, and legal resolution to reiterate and

preserve the Palestine Right of Return is required.

C. Personal Reflection

Because international law did not give you your rights, from the
beginning to the end. No law or international society nor the United
Nations guaranteed you the Right of Return, not of reclaiming the lands
occupied in 1967 or any right that had been usurped from you. How
many resolutions were adopted by the United Nations? How many
massacres occurred afterwards? Was Israel punished, even once?245
Palestinians ask such questions frequently as they doubt the effectiveness of international

law in bringing peace and justice for them. The situation in Palestine has been the same

and even worse since 1947, and the answers for these questions are still needed: what has

the law has ever done for Palestinians? What evidence is there to show that the law has

ever helped Palestinians to achieve their fundamental rights? When will justice prevail?

Many UN Resolutions, law provisions, and instruments declare the rights of human

beings to live in dignity and peace and are applicable for most of the people in the world,

but not for the Palestinians. The discrimination against Palestinians makes people lose

faith in the illusion of law in sustaining peace and security.

245
Radwa Ashour, The Woman from Tantoura.(2014)

67
 After studying the laws concerning the right of Palestinian refugees to return to their

homeland, I am not going to remain ‘academically objective’ anymore. I have more than

an academic interest in the topic of this thesis. As a Palestinian refugee myself, I have

grown up with the hope that I would return to Isdud (Ashdod), my family’s original home

in Palestine. After fleeing the terror of ethnic cleansing, my family and I had to endure

miserable circumstances in Jabalya Refugee Camp. This experience made me determined

not to abandon our Right of Return. Isdud is only 38 km north of Gaza, 246 and I can see it

from my room. But the barrier between me and my hometown is the Beit Hanoun-Erez

armistice line, which is guarded by the Israeli army.

Along with tens of thousands of other Palestinians in Gaza, and at no trivial risk of

injury and death, my family (including my grandparents) and I have participated in the

unarmed demonstrations of the Great March of Return. In these, we wished to remind the

world that we have not surrendered what I strongly believe to be our legally confirmed

Right of Return.

What the law and the United Nations offered did not heal what we have suffered. I

want to negotiate this issue from the perspective of a human being who suffered

immensely from being a refugee and continuously being abused by this status. The abuse

68
lies in how people see me and treat me; or what the Swedish rejection letter to my visa

provided: ‘You do not have a strong link with your community back home.' Whatever

country I wish to travel to, I am obliged to try and prove that I am not seeking

asylum. They know that I am a Palestinian refugee; thus, I may try and seek refuge. Given

the fact that they are already aware of the situation that we are forced to live through, why

can’t the international community cooperate to hold Israel accountable for its denial to

the Palestinian refugees’ issue?

Also, in Gaza, the idea of escaping the persecution and fear is impossible because we

are surrounded by a permanent Egyptian closure to the borders from the southeast and by

Israel from the other sides. Also, if you had the opportunity to leave Gaza, you cannot

guarantee coming back. And that is because of the continuous closure to the borders by

Egypt and Israel. The Egyptian-Palestinian crossing borders are always under the mercy

of the political situation. On top of that, Palestinians do not have an airport to practice

their right of movement. Hence, Palestinian refugees in Gaza are entirely under the mercy

of the neighbouring countries and the occupation.

In summary, international law has not served the Palestinian cause on the ground;

instead, it has done more to satisfy Israel’s interests than the Palestinians’. International

law has, in general, proved that it is all about politics and powers. It seemed to be futile.

Palestinian refugees are in need of justice to live in peace and harmony. The application

of law should be separated from politics because serving other nation’s interests at the

69
expense of other nation’s lives is not fair. International law should implement action and

bring attention to the Palestinian refugee problem.

70
V. Appendices
A. Maps

1- Plan of Partition

71
2-

3-

72
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73
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