Palestinian Refugees and International Law

By Jinan Bastaki

Palestinians continue to be displaced in an ongoing Nakba that began even before the start of the 1948 War. Thousands were displaced under the British Mandate, and the 1948 War saw the expulsion and forced displacement of over 750,000 Palestinians to the neighboring territories and states. Since then, Palestinians continue to be forcibly displaced through wars, deportation, revocation of residency, and the daily violence of the occupation, as well as secondary displacement from host countries.

While there is an intuitive moral argument for the rights of Palestinian refugees, in particular the right of return, international law codifies their rights as legal rights. Since the very beginning, Count Folke Bernadotte, the UN Mediator for Palestine, in his September 1948 Progress Report, stated, “The right of innocent people, uprooted from their homes by the present terror and ravages of war, to return to their homes, should be affirmed and made effective, with assurance of adequate compensation for the property of those who may choose not to return.”

He further asserted, “No settlement can be just and complete if recognition is not accorded to the right of the Arab refugee to return to the home from which he has been dislodged.”¹ Indeed, the Syrian representative at the Security Council in 1948 wanted to take the question of Palestine to the International Court of Justice, but did not get the required number of votes. The General Assembly, however, adopted Bernadotte’s recommendations in Resolution 194, affirming that those refugees wishing to return to their homes 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, essentially giving Palestinian refugees the choice of whether to return or not. While some argue that the language of Resolution 194 does not make it mandatory, the right of return of displaced persons is a right of refugees in general, found in customary international law (and therefore binding on all states), human rights law, humanitarian law, the law of state succession, and under the principle of self-determination. Indeed, the United States commented at the time that the relevant paragraph of Resolution 194 “endorsed a generally recognized principle and provides a means for implementing that principle…” affirming that this was not something new or unique to the Palestinians.

Indeed, it was a time when new states were being created, old empires were crumbling, and borders were being drawn and imposed. Under international law, when territory undergoes a change of sovereignty, the habitual inhabitants of the territory coming under new sovereignty must be offered nationality by the new state. Before the creation of Israel, Palestinians who were resident in Palestine were recognized citizens of Mandate Palestine and Ottoman citizens before that; an additional reason entitling them to Israeli citizenship, if they so chose. Denationalization is prohibited under international law for individuals; it is even a more severe violation when this denationalization happens en masse. Hence those displaced due to the 1948 Arab-Israeli War were entitled to Israeli citizenship and to return to their homes. This is not a rereading of international law.

In a decision of the Tel Aviv District Court in 1951, Justice Zeltner stated: “It seems to me, with all respect, that the point of view according to which there are no Israel nationals is not compatible with public international law… my view is that every individual who, on the date of the establishment of the State of Israel was resident in the territory which today constitutes the State of Israel, is also a national of Israel. Any other view must lead to the absurd result of a State without nationals – a phenomenon the existence of which has not yet been observed.”²

Furthermore, under refugee law, refugees have a voluntary right of return to their place of origin. In fact, it is the preferred durable solution of the UN High Commissioner for Refugees (UNHCR). When the displacement is due to a legal wrong that is attributed to a state, that state is under the obligation to make restitution, which means that it is obliged to bring about a return to the situation had the legal wrong not been committed. There is ample evidence today showing how Palestinians were massacred, ethnically cleansed, and forcibly displaced from their homes and villages, and then prevented – many times violently – from returning. The involuntary transfer of civilians is prohibited under humanitarian law, with its basis in the Lieber Code and the Fourth Geneva Convention.

With regard to self-determination, this is a right that has been recognized for the Palestinian people, and arguably from the days of the Mandate, when Palestine was classed as an “A” Mandate, meaning that they were ready to be an independent state. Britain violated the terms of the League of Nations Charter by not enabling an independent Palestinian state to come into being in all of the territory, and by not acting in the best interests of the people. As self-determination is linked to territory, Palestinians must be able to return in order to decide their political destiny on that territory.

Finally, Palestinians more specifically have had their right to return affirmed in consecutive General Assembly resolutions. Resolution 3236, for example, “Reaffirms also the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted, and calls for their return.” Moreover, the Committee on the exercise of the inalienable rights of the Palestinian people affirmed in 1978 that “the exercise of the individual right of the Palestinian to return to his homeland was a conditio sine qua non for the exercise by this people of its rights to self-determination.” More recently, after recounting the numerous Israeli violations of international law, and Israel’s legal responsibility to make restitution, the ICJ stated that Israel must “allow all Palestinians displaced during the occupation to return to their original place of residence” in its 2024 Advisory Opinion on the illegality of Israel’s occupation. This was limited to the OPT because the question posed to the ICJ only concerned that area. Yet the obligation to make restitution for a legal wrong is a general principle of international law, applied here in a specific case. This same principle applies to those displaced in 1948 and their descendants.

As a settler colonial state, Israel has sought, through various means, to remove Palestinians from their land, including during the current genocide in Gaza. Yet, international law is clear on the question of the right of return of Palestinian refugees, as well as to the protection of their properties. Civil society must keep up the pressure on states to reaffirm and work toward the rights of the refugees to return in safety.

¹ “Sixty-fifth Anniversary of Count Bernadotte’s Death Commemorated at Jerusalem Event–UNRWA Spokesperson Speech,” United Nations, September 17, 2013.

² The 1948 Palestinian Refugees and the Individual Right of Return: An International Law Analysis, Badil Resource Center for Palestinian Residency and Refugee Rights, 2007.