Refugee Law and Right of Return

Framing Refugee Law in the Israel Palestine Context

Refugees are at the heart of the Israel Palestine conflict, both legally and emotionally. In this chapter, the focus is on how international refugee law and the concept of a right of return intersect with the specific situation of Palestinian refugees and, to a lesser extent, Jewish refugees from Arab and Muslim countries. The aim is not to decide who is right, but to explain the main legal frameworks, how they are interpreted, and why the questions remain unresolved.

Who Counts as a Refugee in International Law

Modern refugee law largely stems from the period after the Second World War. The central document is the 1951 Convention Relating to the Status of Refugees, later expanded geographically and temporally by the 1967 Protocol. According to the Convention, a refugee is a person who is outside their country of nationality or habitual residence, and has a well founded fear of persecution because of race, religion, nationality, membership of a particular social group, or political opinion, and cannot or does not want to seek protection from that country.

Two points are important in this definition. First, it is focused on individuals or groups at risk of persecution, not on all people displaced by war or disaster. Second, it is tied to crossing an international border. Internally displaced people, who flee their homes but remain inside their country, are protected by other bodies of law, but are not refugees under this Convention.

In practice, refugee status is often determined in two ways. One way is individual determination, where a person applies and proves they meet the definition. Another way is group or prima facie recognition, where a whole group fleeing a specific situation is recognized as refugees without each person proving their case separately. The Palestinian case developed along a different path, and that difference is key to understanding the legal debates surrounding the right of return.

The Special Regime for Palestinian Refugees

Soon after the 1948 war, the United Nations created a unique institutional framework for Palestinians who fled or were expelled from their homes. In 1949, the UN established the United Nations Relief and Works Agency for Palestine Refugees in the Near East, usually called UNRWA. Unlike the UN High Commissioner for Refugees, UNHCR, which handles most refugee situations worldwide, UNRWA is dedicated only to Palestinians in specific host areas, mainly Jordan, Lebanon, Syria, the West Bank, and Gaza.

UNRWA uses its own operational definition of a Palestine refugee. Originally, it referred to persons whose normal residence had been Palestine between June 1946 and May 1948 and who lost both home and means of livelihood as a result of the 1948 conflict. Over time, UNRWA extended its services to the descendants of these people. This means that children, grandchildren, and later generations of the original refugees are eligible for registration and services.

This approach differs from UNHCR practice, where the focus is frequently on ending refugee status through durable solutions such as voluntary repatriation, local integration in the host country, or resettlement in a third country. Palestinian refugee status under UNRWA is linked to the unresolved political question of Palestine and to the claim of a collective right of return. As long as that question is not resolved, UNRWA continues to consider both original refugees and their descendants as refugees in need of assistance and protection.

A particular legal clause in the 1951 Refugee Convention helps explain why Palestinian refugees fall under this special regime. Article 1D states that the Convention does not apply to persons who are currently receiving protection or assistance from other UN agencies than UNHCR. This was designed with Palestinians in mind. The second part of the same article says that, when such protection or assistance has ceased for any reason, these persons shall automatically be entitled to the benefits of the Convention. The meaning of this clause and how it should apply to Palestinians who leave UNRWA areas has been debated. European and other courts have had to interpret whether and when Palestinian refugees outside UNRWA’s areas can claim refugee status under the 1951 Convention.

This institutional separation creates a dual framework. Most refugees in the world are covered by UNHCR and the 1951 Convention. Palestinian refugees are, in principle, under UNRWA and a separate political framework, most clearly expressed in UN General Assembly Resolution 194, which explicitly refers to return and compensation.

The Concept of a Right of Return in International Law

The phrase “right of return” does not come from a single document but from the combination of different rules and practices in international law, especially human rights law. At its core is the idea that individuals have a right to enter their own country. This principle appears in the Universal Declaration of Human Rights (UDHR) and in binding human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR).

Article 13(2) of the UDHR states that everyone has the right to leave any country, including their own, and to return to their country. Article 12(4) of the ICCPR uses similar language. Courts and human rights bodies have interpreted “his own country” broadly. It can mean not only a formal nationality but also, in some circumstances, a close and lasting connection with a territory, such as long term residence or statelessness tied to that territory.

The principle that arbitrary deprivation of the right to enter one’s own country is prohibited is generally seen as strong. However, human rights treaties mainly create obligations of states toward individuals under their jurisdiction. They do not, by themselves, solve questions of state succession, mass population movements, or claims involving several states and groups at once. For example, they do not clearly dictate what should happen when two groups claim the same territory as “their own country,” or when a new state is created in a territory where some residents have been displaced.

Another relevant area is humanitarian law, specifically the rules applicable during armed conflict and occupation. These rules require that displaced persons be allowed to return to their homes after hostilities have ceased, and they prohibit forcible transfer or deportation of civilians from occupied territory. However, applying these rules retroactively to past conflicts, or determining whether they create an ongoing legal obligation decades later, is difficult and contested.

Property law and restitution practices also play a role in shaping what is called right of return. After conflicts in Europe, the Balkans, or elsewhere, international bodies have sometimes supported or supervised the return of displaced persons to their homes and the restitution of their property, or compensation when return was not possible. These experiences are often used as comparative examples by both Palestinian and Israeli advocates, but each case has its own context and legal instruments.

UN General Assembly Resolution 194 and Its Interpretations

UN General Assembly Resolution 194, adopted in December 1948, is a central reference point for Palestinian claims about the right of return. It is not a treaty, so it does not create binding obligations in the same way as a ratified convention, but it carries significant political and, according to some interpretations, normative weight.

Paragraph 11 of Resolution 194 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 states that compensation should be paid for the property of those choosing not to return and for loss of or damage to property. A Conciliation Commission was created to facilitate these tasks, but its efforts were soon blocked by political disagreements.

Palestinian representatives and many states interpret this paragraph as recognizing an individual and collective right of Palestinian refugees to return to their homes in what became the State of Israel, or in the territories later occupied in 1967, and to receive compensation. They often argue that repeated reaffirmations of Resolution 194 by the General Assembly over decades strengthen this interpretation, and that it reflects or has contributed to the formation of customary international law regarding refugees displaced by conflict.

Israeli governments and legal scholars generally reject the idea that Resolution 194 creates a binding legal obligation for mass return. They emphasize that General Assembly resolutions are recommendations, not enforceable decisions, and argue that the phrasing “should be permitted” and “at the earliest practicable date” leaves room for political negotiation and security considerations. They also highlight the condition that refugees must be willing to “live at peace with their neighbors,” and claim that this has not been clearly guaranteed. In this view, return, resettlement in host states, or third country resettlement, combined with compensation, are all possible political solutions, but not legally mandated in a specific form.

Legally, the status of Resolution 194 remains disputed. Some international lawyers see it as an important piece of evidence that, at least as early as 1948, the international community recognized a principle that displaced persons from Palestine had claims to return and compensation. Others consider it mainly as a political expression that must be implemented through agreements between the parties, not enforced as a stand alone right in court.

Palestinian Refugees and Their Specific Claims

Palestinian refugees base their claims on several overlapping arguments. One is the general human right to return to one’s country, extended in this case to the land and towns from which individuals and their families were displaced. Another is the specific reference to return and compensation in Resolution 194. A third element is the continued recognition of their refugee status through UNRWA and various UN resolutions, which they see as confirmation that their situation is not resolved.

For many Palestinians, the right of return is not only about physical movement but also about recognition of injustice and legal continuity with the pre 1948 legal status of property and residence. Deeds, land registries, and other documents from the British Mandate period are often cited as proof of ownership and as a basis for restitution or compensation. Some legal scholars argue that, even if full physical return for all is not feasible, individual rights to property and to reparation remain valid under general principles of international law.

Another legal aspect concerns descendants. Palestinian refugees and their supporters argue that, because displacement and denial of return have continued for generations, the right of return is inherited, in the same way that unresolved property or citizenship claims can pass from parent to child. The continuing status of descendants as refugees under UNRWA reinforces this view. Critics, including many Israeli analysts, respond that most refugee situations in the world are eventually resolved without recognizing an unlimited multigenerational right of physical return to original homes, and that applying such a standard specifically in the Palestinian case would create unique demographic and political consequences.

Debate also exists about how the right of return, if recognized, would operate in practice. Some proposals distinguish between returning to the territory of a state and returning to specific homes or villages. Others suggest a combination of options, including symbolic return, limited quotas, return to a future Palestinian state, or compensation and recognition for those who cannot or do not wish to return physically.

Jewish Refugees from Arab and Muslim Countries

The discussion of refugee law in this conflict also involves a second, often parallel, group. After 1948, large numbers of Jews left or were expelled from Arab and Muslim countries such as Iraq, Egypt, Yemen, Syria, and others. Many had lived there for centuries. Their departure was influenced by a mix of rising hostility, state policies, economic pressure, and the broader Arab Israeli conflict.

Israel and some Jewish organizations argue that these Jews should also be recognized as refugees under international law, with rights to restitution or compensation. They point to the same general principles of refugee protection and property rights, and they sometimes advocate what they call “two refugee populations” whose claims need to be addressed together. In this framing, Palestinian refugees and Jewish refugees from Arab states are both victims of the regional conflict, and a comprehensive settlement would include compensation and recognition for both.

Palestinian advocates often respond that these two cases are not symmetrical. They argue that many Jews who left Arab countries received full citizenship and integration in Israel, and that treaties between Israel and some states already addressed or implicitly absorbed those claims. They also note that recognition of Jewish refugee claims does not cancel Palestinian individual and collective rights under international law.

Legally, the existence of Jewish refugees from Arab countries does not erase Palestinian refugee claims, and Palestinian claims do not erase Jewish ones. International law usually treats each refugee situation on its own merits. However, in political negotiations, these two refugee histories are sometimes linked as part of broader packages of compensation and mutual recognition.

Durable Solutions: Return, Integration, and Resettlement

International refugee law speaks of three main “durable solutions” for refugees. These are voluntary repatriation to the country of origin, local integration in the host country, and resettlement in a third country. In principle, voluntary repatriation is often seen as the preferred solution, but it must be safe, dignified, and genuinely voluntary.

For Palestinian refugees, voluntary repatriation in the full sense has not occurred. Most host states in the region did not offer full integration with equal citizenship rights, with partial exceptions, such as Jordan, where many Palestinians received citizenship under specific conditions. Large scale resettlement to third countries has also been limited. As a result, the Palestinian refugee issue has remained suspended between these three options, with none fully realized.

From a legal perspective, many human rights bodies and refugee experts emphasize that long term exile without a durable solution violates fundamental rights. They call for a combination of measures, which may include full or partial return, naturalization in host countries, resettlement, and a broad program of restitution or compensation. However, in the case of Israel and Palestine, any such combination is deeply entangled with questions of statehood, identity, and security, which go beyond the normal remit of refugee law.

Israel has frequently argued that a full scale Palestinian right of return to its territory would alter its demographic character and threaten its definition as a Jewish and democratic state. Palestinian representatives and many international lawyers respond that demographic concerns cannot justify permanent denial of individual rights to return or restitution, and that solutions can be designed which protect both individual rights and collective self determination.

Because of these tensions, political negotiations, such as those in Oslo and later rounds, often approached the refugee question as one of mutual compromise rather than strict legal implementation of one side’s interpretation. Proposed solutions have included limited return to Israel; return for others to a future Palestinian state; family reunification schemes; international compensation funds; and symbolic recognition of responsibility. None of these proposals has yet been agreed upon in a final status agreement.

Human Rights, Statelessness, and Citizenship

Another dimension of refugee law in this context is statelessness. Many Palestinian refugees, especially those in Lebanon and Syria and some elsewhere, do not hold recognized full citizenship in any state. Stateless persons are protected under specific international conventions and under general human rights law, but they often face severe restrictions on movement, employment, property ownership, and political participation.

The right to a nationality is recognized in several human rights instruments, including the UDHR. However, international law does not force any particular state to grant citizenship, except in limited circumstances. This creates a gap between the principle that everyone has a right to a nationality and the reality that states control their nationality laws. In the Palestinian case, this gap has been filled by policies that, on the one hand, preserve Palestinian identity and the possibility of return and, on the other hand, expose generations to precarious legal and social status in their host countries.

Israel offers citizenship to Jews worldwide under its Law of Return, while Palestinian refugees displaced in 1948 and their descendants generally cannot acquire Israeli citizenship, except in exceptional cases. Advocates for Palestinian rights often highlight this contrast in order to argue that it violates the principle of non discrimination in human rights law. Israeli legal arguments typically respond that states are allowed to define their criteria for citizenship and immigration in ways that reflect their national character, as long as they do not discriminate among current citizens.

International courts have rarely been asked to directly rule on the Palestinian right of return. Most of the debate takes place in political, diplomatic, and academic forums, and in the decisions of domestic courts in other countries dealing with the status of Palestinian asylum seekers or with the interpretation of Article 1D of the Refugee Convention.

Right of Return in Negotiations and Public Discourse

Legally informed concepts of the right of return have been used in different ways in political negotiations and public debates. For many Palestinians, “right of return” refers to the full range of claims, including the possibility of physically going back to villages and urban neighborhoods inside Israel, recognition of wrongs committed during the Nakba, restitution of property, and compensation for suffering and lost opportunities. It is often seen as a non negotiable right, even if individuals may choose among different options in practice.

For most Israeli governments, “refugee question” refers to a problem that should be solved through resettlement and compensation, with perhaps limited family reunification or symbolic return, but not through a sweeping right that would allow large numbers of Palestinians to enter Israel as citizens. In this view, a solution must preserve Israel’s demographic and political character, while addressing humanitarian needs and offering fair compensation.

Between these positions, many international mediators and legal experts have tried to design formulas that link law and politics. These often include recognition of the principle of return, acknowledgment of suffering, and a menu of specific options. For example, some proposals speak of the right of Palestinian refugees to return to the “homeland,” which could mean either Israel or a future Palestinian state. Others envision a choice among permanent residence in host states with citizenship, resettlement elsewhere, or limited return, all backed by an international fund for compensation and reconstruction.

The gap between legal language and political reality remains wide. Some Palestinians fear that accepting anything less than full implementation of their understanding of right of return would undermine their legal claims and historical narrative. Many Israelis fear that any formal recognition of a right of return would open the door to demands they consider existentially threatening. As a result, legal arguments about refugee law and right of return are closely linked to questions of identity, memory, and security.

Unresolved Legal Questions and Possible Paths

From a strictly legal perspective, several questions remain open. One is whether the combination of human rights law, humanitarian law, and repeated UN resolutions has created a binding legal right of return for Palestinian refugees and their descendants, enforceable against Israel. Another is how long such rights can persist through generations, and whether they can be limited or shaped by later political agreements without violating international law.

A further question concerns the interaction between individual rights and collective self determination. If Palestinian refugees have an individual right to return to their homes, how does that interact with the collective right of Israelis to maintain a state that expresses their self determination, and vice versa? International law does not offer simple formulas for resolving competing rights claims of this kind.

Possible legal paths include negotiated agreements that explicitly address refugees and right of return, incorporating elements of return, integration, and compensation; international mechanisms for property restitution or compensation; and greater use of domestic and international courts to clarify specific aspects such as property ownership, statelessness, and discrimination. Each path, however, depends on political will and on the readiness of the parties to accept legal outcomes that may challenge deeply held narratives.

In the meantime, refugee law and the concept of right of return continue to serve as key reference points in debates about justice and solutions. They shape how Palestinians understand their demands, how Israelis frame their concerns, and how the international community evaluates proposals for peace. Understanding these legal dimensions does not determine what the outcome must be, but it clarifies the language in which claims are made and the boundaries within which solutions will be judged.