Evaluating the Palestinians' Claimed Right of Return

Abstract

This Article takes on a question at the heart of the longstanding Israeli-Palestinian dispute: did Israel violate international law during the conflict of 1947-49 either by expelling Palestinian civilians or by subsequently refusing to repatriate Palestinian refugees? Palestinians have claimed that Israel engaged in illegal ethnic cleansing, and that international law provides a “right of return” for the refugees displaced during what they call al-Nakbah (the catastrophe). Israel has disagreed, blaming Arab aggression and unilateral decisions by Arab inhabitants for the refugees’ flight, and asserting that international law provides no right of the refugees to return to Israel. Each side has scholars and advocates who have supported its factual and legal positions. This Article advances the debate in several respects. First, it moves beyond the fractious disputes about who did what to whom in 1947-49. Framed as a ruling on a motion for summary judgment, the Article assumes arguendo the truth of the Palestinian claim that the prestate Jewish community and later Israel engaged in concerted, forced expulsion of those Palestinian Arabs who became refugees. Even granting this pro-Palestinian version of the facts, however, the Article concludes that such an expulsion was not illegal at the time and that international law did not provide a right of return. A second contribution of this Article is to historicize the international law relevant to the dispute. Many relevant areas of international law have changed significantly since 1947-49 -- such as the law of armed conflict, refugee law, human rights law, and law regarding nationality, statelessness, and state succession. Previous scholarship and advocacy finding that international law requires return of Palestinian refugees have impermissibly sought to hold Israel to legal standards developed decades after the relevant events. This Article’s third contribution is to assemble detailed data, summarized in several tables in the Appendix, on the actual practices of states regarding expulsions of ethnic groups and repatriation of refugees. Analysis of these data sets allows the Article to conclude that Israel’s actions regarding the refugees of 1947-49 was legal and consistent with the actions of many other members of the international community.

Keywords: Palestinian-Israeli conflict, right of return, refugees, public international law, laws of war, 1948 Arab-Israeli war