act had not been committed.”37 It should, in other words, restore the status
quo ante the commission of the international wrong. This is a principle that
recognizes the obligation of reparation vis-à-vis states and, as IHRL and IHL
have developed, particularly with regards to peremptory norms, so too
has the understanding and acceptance through customary international
law that obligations with respect to reparations apply also to the benefit
of individuals wronged by breaches of international legal principles.
This evolution in state practice is reflected in the Draft Articles on State
Responsibility and in the findings of the International Court of Justice (ICJ)
in its Advisory Opinion on the Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory (hereinafter referred to as the
Advisory Opinion on the Wall).38
Based on the legal framework outlined above, Israel is therefore obliged to
end all arbitrary forced displacement of the Palestinian population who hold
Israeli citizenship, and to end all forcible transfer of Palestinians in the oPt.
Moreover, it has the obligation to provide reparations for the injuries caused,
which take the form of restitution, compensation and/or satisfaction.39
This framework is analogous to the framework of reparations for refugees
and IDPs provided by international law itself: according to the pivotal
principle of voluntariness,40 both refugees and IDPs must have access to
durable solutions of their choice, which include the realization of their right
of return to their previous homes, restitution of properties and compensation
for all losses suffered.41 While Israel’s international responsibility is triggered
37 ILC, Draft Articles on Responsibility, supra note 34, 91-94.
38 ICJ, Advisory Opinion on the Wall, supra note 15.
39 ILC, Draft Articles on Responsibility, supra note 34, art. 34-38.
40 UNHCR, Guiding Principles, supra note 5, Principle 28(2); UNHCR, Handbook - Voluntary Repatriation:
International Protection, January 1996, available at: http://www.refworld.org/docid/3ae6b3510.html
[hereinafter Handbook on Voluntary Repatriation], chapter 2.3; UN Human Rights Council, Report
of the Representative of the Secretary-General on the Human Rights of Internally Displaced Persons,
Walter Kälin: addendum, A/HRC/13/21/Add.4, 29 December 2009, 24-33, available at http://www.
refworld.org/docid/49abc00d2.html [accessed 27 Jul 2018]
41 UN General Assembly, 194 (III). Palestine -- Progress Report of the United Nations Mediator, A/
RES/194 (III), 11 December 1948, available at: https://unispal.un.org/DPA/DPR/unispal.nsf/0/
C758572B78D1CD0085256BCF0077E51A [hereinafter UN General Assembly Resolution 194]; UNHCR,
Guiding Principles, supra note 5, Principle 6, 2(a). As noted above, some Palestinian IDPs were
previously 1948 refugees: such persons retain their refugee legal status, but the Guiding Principles
apply by analogy “to the extent that applicable refugee law does not address their displacementrelated needs (Brookings Institute, Protecting Internally Displaced Persons: a Manual for Law and
Policy Makers, October 2008, 13).
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