under the Law of State Responsibility and IHL in its 1948 borders and the oPt,42
Palestinian refugees and IDPs rights simultaneously arise under IHRL.43 As
Theo Van Boven, the Special Rapporteur for the United Nations Commission
on Human Rights, stated in his final report in 1993, “the principal right victims
[of human rights violations] are entitled to under international law is the right
to effective remedies and just reparations.”44
Importantly, upon establishment as a state, Israel inherited responsibility for
the illicit conduct of Zionist paramilitary and military forces of the provisional
government during its establishment, whose acts significantly contributed
to the displacement of Palestinians before, during and after the 1948 War.45
According to a report from Haganah, the paramilitary organization that
subsequently became the Israeli military forces, “at least 55% of the total of
the exodus was caused by our [Haganah/Israeli forces] operations”. To this,
the report adds the results of the operations of paramilitary organizations
Irgun and Lehi, which “directly [caused] some 15%… of the emigration.”46
According to the Law on State Responsibility, actions taken by a movement,
whether insurrectional or not, which succeeds in establishing a new state
in part of the territory of a pre-existing state or in a territory under its
administration are to be considered as acts of the new state.47 Therefore,
Israel is required to provide reparations for the consequences of wrongful
acts committed by its provisional government and armed forces.48
42 IHL, rather than being a separate, autonomous (or “self-contained”) system, spells out in details or
modify the general mechanism provided by the Law of State Responsibility, and can therefore be
understood only within that framework. See Marco Sassoli, “State Responsibility for Violations of
International Humanitarian Law”, International Review of the Red Cross, 84, No. 846 (2002): 404.
43 While the Law of State Responsibility and IHL generate obligations upon States, IHRL directly
recognizes rights to individuals.
44 Theo van Boven (UN Special Rapporteur on the Right to Restitution, Compensation and Rehabilitation
for Victims of Gross Violations of Human Rights and Fundamental Freedoms), Study concerning the
right to restitution, compensation and rehabilitation for victims of gross violations of human rights
and fundamental freedoms : final report, E/CN.4/Sub.2/1993/8, 2 July 1993, para. 45, available at:
http://www.refworld.org/docid/3b00f4400.html [accessed 27 Jul 2018][hereinafter Study of Special
Rapporteur on the Right to Restitution]
45 On the policies of displacement carried out by Zionist militias before the establishment of Israel,
see Benny Morris, The Birth of the Palestinian Refugee Problem Revisited (Cambridge : Cambridge
University Press, 2004).
46 Benny Morris, “The causes and Character of the Arab Exodus from Palestine: the Israel Defense Forces
Intelligence Branch Analysis of June 1948”, Middle Eastern Studies, 22, No. 1 (1986): 5-19.
47 ILC, Draft Articles on Responsibility, supra note 34, art. 10(2). In such cases, the attribution to the new
State of the conduct of the previous movement “is justified by virtue of the continuity between the
organization of the movement and the organization of the state to which it has given rise”, Yearbook
of the International Law Commission 2 (2001), Part Two, 50.
48 Victor Kattan, From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli
Conflict, 1891-1949 (London: Pluto Press, 2009), 173.
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