What Does International Law Say About the Right of Return?

Most refugees around the world have been able to return to their homes once armed conflicts ended. Examples include refugees who returned to Bosnia, Kosovo, Burundi, Cambodia, East Timor, Georgia, Guatemala, Mozambique, Rwanda, South Africa, Tajikistan, Iraq, Kuwait, and Afghanistan. Palestinian refugees, however, have been denied this right because Israel prevents them from returning to their homes and has replaced them with Jewish immigrants.

The right of return is a fundamental human right and, as such, is inalienable. Article 13(2) of the Universal Declaration of Human Rights, adopted in 1948, states that: “Everyone has the right to leave any country, including his own, and to return to his country.” About Palestinian refugees, the United Nations has reaffirmed this right more than 135 times through the well-known UN General Assembly Resolution 194, which states that refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date. It also provides compensation for those who choose not to return, as well as for loss of or property damage, in accordance with international law and principles of justice.

The right of return is also enshrined in a broad range of international legal frameworks, including international human rights law, international humanitarian law (also known as the law of war), and nationality law. More recently, the United Nations adopted the Pinheiro Principles, which establish legal standards for the restitution of housing, land, and property to refugees and displaced people. These principles affirm that the right of return “cannot be impaired by the transfer of sovereignty to another state or by unlawful limitations on its duration.” The right to return includes not only the return to one’s homeland but also the restoration of housing and property.

The Fourth Geneva Convention further affirms that refugees must not be prevented from returning. Similar protections are found in numerous international and regional treaties. The right of return is both an individual right, rooted in personal human rights, and a collective right linked to the principle of self-determination. It also derives from the sanctity of private property rights, which are not extinguished by the passage of time, military occupation, or changes in sovereignty.

In addition to the right of return, refugees possess other rights, including the right to compensation for material and moral damages suffered as a result of displacement. They may also seek reparations for war crimes and crimes against humanity committed against them, both as individuals and as a people.

More than six decades of war, displacement, and suffering have demonstrated that neither war, occupation, nor the passage of time has diminished the determination of Palestinians to demand the implementation of their right of return. Indeed, many believe that the realization of this right is essential to achieving justice and a lasting peace.

Like other refugee populations around the world, Palestinians can return to their homes. The process is both feasible and well documented. Studies and research, including the Atlas of Palestine and various return-planning initiatives, demonstrate that return can take place without displacing the vast majority of current Jewish residents. Much of the land from which Palestinians were displaced remains sparsely populated or undeveloped.

Under international law, the fact that others currently occupy lands belonging to Palestinian refugees does not extinguish the refugees’ ownership rights. Prolonged occupation does not transfer legal title. Palestinian land ownership is documented in United Nations records, Israeli archives, and Palestinian records. The current status of land use does not negate the original owners’ legal claims.

Research on land distribution in Israel and the occupied Palestinian territory indicates that a large proportion of the land historically owned by Palestinians remains lightly populated. During the 1990s, Israel absorbed approximately one million immigrants from the former Soviet Union—roughly equivalent to the total number of registered Palestinian refugees in Lebanon and Gaza at the time—demonstrating a significant capacity for population absorption.

Those who visit the country and examine historical land records, maps, and demographic studies often conclude that the principal obstacle to refugee return is neither geography,

 

Source: The Return Road, Salman Abu Sitta, 2007