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Florida Journal of International Law

Abstract

My goal in this Article is to examine restitution as an autonomous human right for refugees displaced in the Israeli-Palestinian conflict, and to assess the implications of taking such a rights-based approach. I conclude that the refugees have a strong legal claim to restitution. In international law, compensation is relevant only when restitution is materially impossible, where property has been damaged or declined in value so that restitution is not a complete remedy for the victim’s loss or where a refugee chooses not to seek restitution. Current empirical research about land usage in Israel indicates that a great deal, and possibly the majority, of lost refugee property inside Israel is essentially vacant, and should still be available for restitution with little legal obstacle.

However, as in the Balkans, taking a rights-based approach has important implications for the way an abstract right will be implemented in actual practice. The most difficult cases for restitution in the context of a negotiated settlement between Israel and the Palestinians will involve properties that have been used and developed by secondar occupants, in this case mainly Israeli citizens. Cases of secondary occupation essentially present a situation of conflicting rights between returning refugees and secondary occupants. Both rights can in most cases be accommodated by providing one party compensation or alternative property, but the question will be whether the original property should go to the returning refugee (usually a Palestinian), or remain with the secondary occupant (usually an Israeli Jew or Israeli institution).

The trend in international law is to allow restitution and provide secondary occupants alternative housing or compensation. Yet, because Israel has been a recognized sovereign state for more than fifty years, private property acquired legally under Israeli law may be entitled to more protection than was afforded secondary occupants in the Balkans. Israel may also be able to offer defenses to restitution in cases where property was used for military necessity or for genuine public purposes that were free of discrimination.

At the end of this Article, I analyze how such conflicting rights may be measured and balanced. The resolution of such conflicts will depend in many cases on how much emphasis an eventual peace agreement places on actual return. As Rhodri C. Williams wrote recently about Bosnia and Herzegovina: “[o]ne of the main obstacles to coherent implementation of post-conflict property restitution in Bosnia… is ambiguity regarding the legal source and justification for the right to post-conflict property restitution.” Williams advises that peace settlements need to address “uneasy questions regarding the relationship between restitution and return.” I argue that in the Israeli-Palestinian context the key question will be whether an eventual peace settlement makes reversing ethnic population displacement a high priority.

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