Is there a right of return for Palestinians?

By Sammy Stein

Next time someone claims that Israel is breaking international law by refusing to allow Palestinian refugees to return to their homes, ask them a simple question: which international law is Israel breaking? Then wait for the answer.

In most cases, no answer will come.

For decades Palestinians and their supporters have attempted to frame the conflict in legal terms, frequently accusing Israel of violating international law. Yet when the claim is examined closely, it becomes clear that there is no binding international law that requires Israel to allow Palestinian refugees and certainly not their descendants, to return to homes within Israel’s borders.

The argument most frequently advanced in support of a Palestinian “Right of Return” is based on UN General Assembly Resolution 194, adopted on 11 December 1948.

However, resolutions of the UN General Assembly are examples of what is known as “soft law.” They express political positions and recommendations but are not legally binding and do not create enforceable obligations under international law.

Resolution 194 contains fifteen paragraphs and calls on the Arab states and Israel to resolve the conflict through negotiations, either directly or with the assistance of a Palestine Conciliation Commission created by the resolution.

While it was adopted by the General Assembly, it does not constitute international law.

Supporters of the Palestinian Right of Return rely almost entirely on one paragraph of the resolution, paragraph 11, which states that refugees wishing to return to their homes and live at peace with their neighbours “should be permitted” to do so at the earliest practicable date.

Several important details are frequently overlooked.

First, the resolution does not refer specifically to Palestinian refugees. It simply refers to “refugees”, a term that in the context of the 1948 war also included those displaced on the Jewish side of the conflict.

Second, the wording uses the term “should” rather than “shall.” In legal language this distinction is significant. “Shall” indicates a mandatory obligation, whereas “should” expresses a recommendation.

Third, the paragraph specifies that returning refugees must be willing “to live at peace with their neighbours.” Given that the 1948 war began when several Arab states attempted to destroy the newly established Jewish state, this condition was clearly intended to form part of a negotiated settlement rather than an automatic entitlement.

In other words, paragraph 11 was never intended to impose a unilateral legal obligation on Israel. At most, it envisioned the refugee question being resolved through negotiations as part of a broader peace settlement between the parties.

This interpretation is reinforced by the fact that the resolution itself emphasised negotiations as the mechanism for resolving the conflict. The refugee issue was therefore only one element among several unresolved matters, including borders, security arrangements and recognition between the parties.

Today the issue has moved even further from the original circumstances of the 1948 war. The United Nations Relief and Works Agency (UNRWA) currently have nearly six million registered Palestinian refugees. Interestingly, unlike every other refugee population in the world, Palestinian refugee status is inherited by descendants.

The original refugee population of around 750,000 people has therefore grown across generations. Some Palestinian organisations now claim that more than seven million people possess a supposed “Right of Return”.

This approach has no parallel elsewhere in the international refugee system. The United Nations High Commissioner for Refugees (UNHCR), which deals with every other refugee population in the world, focuses primarily on resettlement, integration or naturalisation as durable solutions. The Palestinian case therefore remains unique, both in the definition of refugee status and in the political demands attached to it.

If implemented, such a demand would effectively eliminate Israel as the Jewish national home by demographic means. No sovereign state would agree to such a transformation.

Even some Palestinian leaders have privately acknowledged that insisting on the return of millions of refugees to Israel is unrealistic. Any workable peace agreement would almost certainly involve refugees being resettled in a future Palestinian state, accompanied by compensation and international support.

Proposals along these lines have been made before.

Between 2006 and 2008, Israeli Prime Minister Ehud Olmert held more than thirty meetings with Palestinian Authority leaders in an attempt to reach a comprehensive peace agreement. As part of the negotiations Israel proposed accepting 1,000 refugees per year for five years as part of a humanitarian family reunification programme.

The wider proposal included the creation of a Palestinian state with territorial contiguity and the establishment of an international compensation fund for Palestinian refugees, alongside compensation for the roughly 850,000 Jews who were forced to flee Arab countries after 1948.

Other diplomatic initiatives have also explored similar compromises. During earlier negotiations at Camp David in 2000 and the Taba talks in 2001, various proposals were discussed that would have allowed a limited number of refugees to enter Israel while the majority would be resettled in a future Palestinian state or third countries with international support.

Like previous Israeli peace offers, these proposals were ultimately rejected.

This raises an uncomfortable question. Is the demand for a full “Right of Return” genuinely about providing homes for refugees, or is it intended to undermine the continued existence of Israel as a Jewish state?

History suggests that refugee crises created by war are rarely resolved through mass return. The twentieth century witnessed numerous large-scale population displacements. Around 15 million Hindus and Muslims were displaced during the 1947 Partition of India, while millions of Germans were expelled from Eastern Europe after the Second World War.

In almost every case, the refugees were resettled rather than returned.

International law at the time of the 1948 war did not prohibit population displacement in the way later conventions attempted to regulate it. Nor did it impose a legal obligation requiring repatriation.

Yet critics frequently attempt to judge events that took place in the late 1940s using legal norms developed decades later. International law does not operate retroactively.

Even organisations that accuse Israel of violating international law often fail to identify the legal basis for their claims. Amnesty International’s widely criticised report accusing Israel of apartheid, for example, asserts that Israel’s refusal to recognise a Palestinian Right of Return is a violation of international law.

But the report never specifies which law Israel is supposedly breaking.

And that omission reveals the core problem with the entire argument.

The claim that Israel is violating international law by refusing a Palestinian Right of Return is repeated endlessly in political speeches, activist campaigns and media commentary. Yet repetition does not transform a political demand into a legal obligation.

The reality is far simpler.

There is no binding rule of international law that requires Israel to absorb millions of descendants of refugees from a war fought more than seventy-five years ago.

The “Right of Return” may be a powerful political slogan. But it is not a legal right under international law — and never has been.