Prevention from Return and International Law

Another way in which Israel violated international law is by preventing the Palestinian refugees and displaced persons from return as explained in Chapters 2 and 3. This policy was in violation of Israel’s obligations toward other states, and toward its own citizens’ human rights in 1948, and the human rights of the residents of the occupied territory in 1967. This section will briefly examine prevention of return as a violation of international law in two international legal bodies: the law of Nationality, and International Human Rights Law. It should be noted that the right of the Palestinian refugees and IDPs to return as a remedy to forced displacement will be analysed in

262

See sec. ‎4.2.2.2 above.

263

170 Chapter 5, which will discuss this right and its relationship with other remedies within a transitional justice framework. This section’s scope is limited to presenting an analysis of how the prevention from return, itself, has been in violation of international law.

The first ground regarding the illegality of the prevention of one’s right to enter his own country is the international norms regulating nationality, which developed to be known as the “Law of Nationality.”264 A violation toward the state to which this person is forced to go, which “according to accepted principles of international law” has no obligation to admit him.265 States have no obligation to allow aliens to reside in their territory.266 Thus, any state is under an obligation vis-à-vis other states to admit its nationals, that is, to allow them to return to its territory.267 While this obligation toward other nations is not provided in positive law, it is considered to be part of customary international law.268 Weis explains the logic behind this as being based on the “conception of nationality:”

If states were to expel their nationals to the territory of other states without the consent of those states or were to refuse readmission, thus forcing states to retain on their soil aliens whom they have the right to expel under international law, such action would constitute a violation of the territorial supremacy of these states. It would cast a burden on them which, according to international law, they are not bound to undertake, and which, if persistently exercised, would necessarily lead to a disruption of orderly, peaceful relations between states within the community of nations.269

Following on the same logic, a country may not revoke a citizen’s nationality in order to expel him or deny him readmission to his own country. Similarly, in cases when the state has actually denationalized a citizen, this state has an obligation to readmit him

264

As will be explained later, these regulations started to get codified in the first half of the last century. See, Harvard Research in International Law, “Nationality; Responsibility of States; Territorial Waters. Drafts of Conventions Prepared in Anticipation of the First Conference on the Codification of International Law, The Hague, 1930.”

265

Weis, Nationality and Statelessness in International Law, 45.

266 _{Boling, The 1948 Palestinian Refugees and the Individual Right of Return: An International Law}

Analysis, 24.

267

Weis, Nationality and Statelessness in International Law, 45.

268 _{Boling, The 1948 Palestinian Refugees and the Individual Right of Return: An International Law}

Analysis, 24.

269

171 in its territory.270 Hannum argues that while denationalization per se might be admissible, it is prohibited if it is done in violation of the principle of non-discrimination, or if its intention was to expel or prevent the return of a citizen.271 In 1927, Sir John Fischer Williams wrote:

There will be general agreement that a state cannot, whether by banishment or by putting an end to the status of nationality, compel any other state to receive one of its own nationals whom it wishes to expel from its own territory.272 In 1924, the Fifth Assembly of the League of Nations instructed the codification of international legal principles on several issues, including the international law concerning nationality.273 The School of Law at Harvard University organized the research, and in collaboration with international legal scholars, took the responsibility to present a draft of the international law of nationality to the Assembly of Nations. Article 20 of this document stated:

A state may not refuse to receive into its territory a person, upon his expulsion by or exclusion from the territory of another state, if such person is a national of the first state or if such person was formerly its national and lost its nationality without having or acquiring the nationality of any other state.274

In its commentary, the drafters of the articles gave several examples of how this article applies. In one of the examples, the commentary explains that even if a citizen takes an oath of allegiance to another country and fights in the armed forces of his own, his country, even if it had a law withdrawing nationality for taking an oath of allegiance to a foreign state, has the obligation to allow him the right to return to it.275

270

Ibid., 53–9.

271 _{Hurst Hannum, The Right to Leave & Return in International Law and Practice (Martinus Nijhoff}

Publishers, 1987), 60–1.

272

John Fischer Williams, “Denationalization,” British Year Book of International Law 8 (1927): 61.

273

League of Nations General Assembly, “Resolution Establishing Committee of Experts for the Progressive Codification of International Law,” September 22, 1924, League of Nations, Official Journal, Special Supplement, No. 21, p. 10.

274

Harvard Research in International Law, “Nationality; Responsibility of States; Territorial Waters. Drafts of Conventions Prepared in Anticipation of the First Conference on the Codification of International Law, The Hague, 1930”, Article 20.

275

172 This duty to admit, which Goodwin-Gill argues is a basic obligation and is “beyond dispute,”276 and exists in an additional basis in international law, namely the right to return as guaranteed by international human rights law. Such right has been repeatedly confirmed by human rights instruments as will be shown below.

In 1948, the Universal Declaration of Human Rights (UDHR) states in Article 9 that: “No one shall be subjected to arbitrary arrest, detention or exile,”277 and in Article 13 (2) expresses that: “Everyone has the right to leave any country, including his own, and to return to his country.”278 The International Covenant on Civil and Political Rights (ICCPR) states: "no one shall be arbitrarily deprived of the right to enter his own country."279 The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) prohibited the prevention of the “right of return to one’s country” on discriminatory grounds based on, among other criteria, race and religion.280 Regional human rights treaties also incorporate the right of one to enter his country.281 This wide adoption of the “right to return” to or “right to enter” one’s country has been adopted by so many human

276 _{Guy Goodwin-Gill, “The Right to Leave, the Right to Return and the Question of a Right to}

Remain,” in The Problem of Refugees in the Light of Contemporary International Law Issues: Papers Presented at the Colloquium Organized by the Graduate Institute of International Studies in Collaboration with the Office of the United Nations High Commissioner for Refugees, Geneva, 26 and 27 May, 1994, ed. Vera Gowlland Debbas (Martinus Nijhoff Publishers, 1996), 100.

277

“The Universal Declaration of Human Rights” (G.A. Res. 217A (III), U.N. Doc. A/810, at 71, 1948), http://www.un.org/en/documents/udhr/index.shtml, Article 9.

278

Ibid., Article 12.

279

UN General Assembly, “International Covenant on Civil and Political Rights”, Article 12(4).

280 _{UN General Assembly, “International Convention on the Elimination of All Forms of Racial}

Discrimination” Article 5(d)(ii) .

281

Organization of American States, “American Convention on Human Rights, ‘Pact of San Jose’” (Costa Rica, November 22, 1969), Article 22(5) stating: “No one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it.”; Organization of African Unity, “African Charter on Human and Peoples’ Rights,” June 27, 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 12(2) stating: “Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.”; Council of Europe, “European Convention for the Protection of Human Rights and Fundamental Freedoms, as Amended by Protocols Nos. 11 and 14,” November 4, 1950, ETS 5, Protocol no. 4, Article 3. Stating that “No one shall be expelled either of an individual or a collective measure from the territory of a state of which he is a national,” and that: “No one shall be deprived of the right to enter the territory of the state of which he is a national.”

173 rights instruments that it became widely considered as a norm of customary international law.282

The use of the term “arbitrarily” in both the UDHR and ICCPR, the established understanding is that the only exception to the right to enter would be for the cases where exile is a recognized penalty in the law itself, which has almost disappeared.283 When these instruments were introduced, a number of countries still had exile as a recognized punishment in their penal laws. Beyond this exception, human rights law has not accepted any other ground for the prevention from return.

The UN Human Rights Committee, which has the official responsibility to interpret the ICCPR, has provided some useful guidance to understanding the term “arbitrarily” and how widely or narrowly it can be interpreted. Their 1999 “General Comment No. 27” provided:

In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.284

Hannum, commented providing useful insight to interpreting the concepts explained above. He argues that while there are limited cases under international law where the prevention from return is lawful, this is not applicable when such prevention is

282 _{Boling, The 1948 Palestinian Refugees and the Individual Right of Return: An International Law}

Analysis, 36; Kathleen Lawand, “The Right to Return of Palestinians in International Law,” International Journal of Refugee Law 8, no. 4 (October 1, 1996): 544; Hannum, The Right to Leave & Return in

International Law and Practice, 60; Eric Rosand, “The Kosovo Crisis: Implications of the Right to Return,” Berkeley Journal of International Law 18, no. 2 (2000): 232; Henckaerts, Mass Expulsion in Modern International Law and Practice, 79.

283

Henckaerts, Mass Expulsion in Modern International Law and Practice, 78–9; Boling, The 1948 Palestinian Refugees and the Individual Right of Return: An International Law Analysis, 38.

284

UN Human Rights Committee, “ICCPR General Comment No. 27: Article 12 (Freedom of Movement),” November 2, 1999, para. 21, U.N. Doc. CCPR/C/21/Rev.1/ Add.9.

174 discriminatory, and as such, in violation of the well-established principle in international law preventing racial discrimination, even if it is based on a legal and judicial system.285

This right to return or enter is guaranteed to every person in relation to “his own country.” The meaning of this expression (i.e. “own country”) could be interpreted widely to include not only the country to which one is a citizen, but also other types of links with the country including permanent residency; but it can also be interpreted narrowly to include only citizens.286 This has also been articulated by the UN Human Rights Committee in its “General Comment No. 27,” where it first explained that the term “his own country” does not only mean the country of his citizenship. In addition to citizens, it also

embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them. The language of article 12, paragraph 4, moreover, permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence.287

Hence, according to this interpretation, the right of return is not only for citizens, but also for those who never managed to gain the citizenship of a country but at the same time cannot be considered aliens. It then includes several categories of persons including stateless persons and permanent residents.

It should be noted that this right has appeared in the form of “right to return” in the UDHR, and “right to enter” in the ICCPR. The reason for the use of the wording “enter” rather that “return” in the ICCPR was in order to include those who might have never been in their country but were still entitled to be admitted therein, such as children of nationals or residents born abroad. This has also been addressed by the UN Human Rights Committee. It interpreted “enter” as follows:

285

Hannum, The Right to Leave & Return in International Law and Practice, 45.

286 _{Ibid., 56–7.} 287

UN Human Rights Committee, “ICCPR General Comment No. 27: Article 12 (Freedom of Movement),” para. 20.

175 The right of a person to enter his or her own country recognizes the special relationship of a person to that country. The right has various facets. It implies the right to remain in one's own country. It includes not only the right to return after having left one's own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (for example, if that country is the person's State of nationality). The right to return is of the utmost importance for refugees seeking voluntary repatriation. It also implies prohibition of enforced population transfers or mass expulsions to other countries.288

The UN Human Rights Committee’s interpretation indicates that those who were born outside their own country have the same right to enter as those who exited their country.

In addition to the right to enter one’s country being protected as such, it has also been frequently rightly given special significance because of its relation to other rights that can only be enjoyed by one if he was allowed to enter his country. In 1963, the United Nations published a study prepared by Special Rapporteur of the Sub-Commission on Prevention of Discrimination, Jose Ingles discussing discrimination in relation to the right to leave and enter one’s own country.289 He stressed in his study that discrimination in respect to the right to return needs to be understood in the context of the ability to fulfil other rights. He argued:

A national normally has considerable interests and ties in his own country and there are many rights which he can enjoy fully only in his own country. These include the right to social security and other cultural life and government of one’s own country. In the case of naturalized citizens, denial of the right to return to their country could have the effect of arbitrarily depriving them of their nationality.290

Indeed, it is inconceivable how one can enjoy his basic rights without being allowed to live in his own country. Alfred De Zayas has agreed with the approach of explaining the right to enter one’s country as an essential one to the exercise of other rights. He argued that one can derive from several principles of international human rights

288

Ibid., para. 19.

289 _{José D. Inglés, Study of Discrimination in Respect of the Right of Everyone to Leave Any Country,}

Including His Own, and to Return to His Country (New York: United Nations, 1963), 14–5.

290

176 law what he describes as a “right to a homeland,” that prevents the expulsion from one’s homeland, and gives him the right to return therein.291

Implementing these principles on the Israeli conduct in both, its sovereign territory and the OPT will reveal that Israel has violated the internationally recognized right of return. As argued above, Israel is bound by customary international law as well as human rights conventions that it ratified which include the ICCPR and the ICERD.292 Accordingly, it can be argued that by preventing its own nationals and the inhabitants of the OPT from return or entry; Israel has violated international law on a number of grounds. Firstly, it breached the right of all its neighbouring countries as well as others who were obliged to receive the majority of the Palestinian population on their lands, and to settle many of them in poorly built refugee camps. As discussed above, no state has the obligation to receive aliens. Secondly, Israel has violated human rights law by not allowing those who had been displaced to exercise their right to return to Israel or the OPT. As shown above, the bearers of this right are not only the nationals of a country, but also those who were deprived from their nationality, permanent residents and children of nationals (or persons who were illegally deprived of nationality) born aboard.

What can be concluded by the discussion in the present section is that the bearers of the right to return or enter and as such the victims of Israel’s denial of this right include all those who were displaced by Israel’s consistent policies of displacement, citizenship revocation, and residency revocation. Furthermore, the children of these three categories are also victims of Israel’s policy and would be entitled to remedies as will be shown in Chapter 5.

4.4 Conclusion

After examining the legal statuses of the areas from which Palestinians have been forcibly displaced since 1948, this chapter has argued that Israel’s long, widespread and

291

Alfred de Zayas, “Illegality of Population Transfers and the Application of Emerging International Norms in the Palestinian Context, The,” Palestine Yearbook of International Law 6 (1991 1990): 17; Alfred De Zayas, “The Right to a Homeland, Ethnic Cleansing, and the International Criminal Tribunal for the Former Yugoslavia,” accessed January 12, 2013, http://alfreddezayas.com/Articles/crimlawforum.shtml.

292

177 systematic policy to forcibly displace the majority of the Palestinian population has been contrary to international law on several grounds. First, while forced displacement was condemned since the beginning of the twentieth century, it has actually been consistently prosecuted in international tribunals and courts as a war crime and a crime against humanity since the end of the Second World War. This meant that it was considered a