In August 2010, the position paper, “The Return of Palestinian Refugees to the
State of Israel,” was published by the Metzilah Center for Zionist, Jewish,
Liberal and Humanist Thought and presented to Prime Minister Binyamin Netanyahu,
and to other decision-makers and academic experts. The paper examined all
sources in international law dealing with questions of refugee return. It also
reviewed the methods recognized throughout the world for dealing with refugee
International law does not obligate/recognize the legal right
of Palestinian refugees to settle in Israeli territory. Such large-scale
return was not standard at the time the problem emerged, and it is not used
effectively today. While the issue of the refugees needs to be dealt with
seriously, Israel should be careful not to recognize a right of return for
refugees under international law, since this may be the basis for new legal
Arrangements and declarations must not include the
recognition of a right of return, which may be later invoked as a right of
individual refugees and their descendants, which may not be waived by their
While there should be an end to the suffering of the Palestinian
refugees, large-scale return to Israel of a population so different from the
Jewish population culturally and socially, and harboring memories of the
“disaster” and claims that justice requires a full return, is not the right
solution. It might not be best for the refugees, and it certainly is not the way
to achieve regional stability.
Discussing this question within the
human-rights discourse may well limit the ability to reach a viable agreement.
Close examination of sources of international law supports the conclusion that
it does not confer upon them a right to return to Israel, and that Israel is
under no obligation to let them return.
THE PRIMARY resolution on which
the Palestinians base their claim to a ‘right of return’ is General Assembly
Resolution 194 (III) from 1948. A close examination of that resolution, as well
as later ones, reveals that these resolutions do not grant Palestinian refugees
the right of return to Israeli territory. This was true at the time the
resolutions were adopted, and is certainly true now, more than 60 years later,
when the number of refugees, together with their descendants, has increased
Another important international document on human
rights on which the Palestinians rely, is the freedom-of-movement clause in the
International Covenant on Civil and Political Rights from 1966. This
document did not exist when the Palestinian refugee problem came into being, but
in any event, a careful examination of it indicates that it also does not
obligate Israel to allow the entrance of Palestinian refugees who were never
Israeli citizens or residents.
International citizenship law, refugee law
(as defined in the various refugee covenants), humanitarian law and
international criminal law do not place any obligation on Israel to admit
Palestinian refugees, or grant them citizenship.
In the absence of such
an obligation, Israel may well refuse to admit a large number of refugees and
their descendants, who may weaken the Jewish majority in Israel and its stable
existence as a Jewish and democratic state (next to a Palestinian one). The same
reasons might support a reluctance by Israel to open up massive immigration of
Palestinians through family reunification. Implementing the “right” of return
may well undermine any solution to the conflict that would permit the two
peoples to live in two separate states in independence, peace and dignity.
Experience indicates that it is extremely difficult to reintegrate populations
divided by violent and extended conflict.
The same conclusion is reached
by historic and comparative analysis. In reviewing a series of historic ethnic
conflicts, we find that after an ethnic separation has actually taken place, an
arrangement preserving the separation is frequently preferable to the
reintegration of populations divided by violence. Thus, for instance, the
Dayton Agreement, signed at the end of the Bosnian War – a war that led to a
flood of refugees – stated that they had a right to return to their homeland. In
practice, however, the actual return is hindered to this day by numerous
obstacles, including ethnic animosity and severe incidents of
International recognition that political resolution or
management of conflicts is more effective than recognition of refugee return
rights has been reinforced in a new ruling by the European Court of Human
Rights. The court rejected claims of Greek refugees exiled from northern
Cyprus in 1974 that they should be allowed to settle in their homes as a matter
of human rights.
The fact that Palestinian refugees are treated the way
they are stems solely from political considerations. There is complete
legal justification for the Israeli position on this subject.
Gavison is an Israel Prize winner, a law professor and president of the Metzilah
Yaffa Zilbershats is an authority on international and
constitutional law and deputy president of Bar-Ilan University.
Goren-Amitai is a research scholar at Bar- ilan University.
Jerusalem Post Annual Conference. Buy it now, Special offer. Come meet Israel's top leaders