2.
As for IHL, Customary Rule 133 states that “the property rights of
displaced persons must be respected.” A framework of protection for
private property is given by the Hague Regulations and the Fourth
Geneva Convention, where the latter also provides a particularly
strong prohibition against “extensive destruction and appropriation
of property, not justified by military necessity and carried out
unlawfully and wantonly”, which amounts to a grave breach of the
same Convention.113
3.
The Law on Succession of States postulates an additional basis for
the right of restitution of 1948 displaced Palestinians: the doctrine of
“acquired rights”, widely recognized as reflecting a customary norm
of international law, states that in case of a change of sovereignty over
territory the “acquired” rights of individuals regarding their property
located in that territory cannot be affected by the sovereignty change
itself, and remain instead vested in the original property owner.114
4.
The right to restitution is also contained in refugee law. UNHCR
considers “returnee recovery of access to land, housing and property
through the establishment of a fair and equitable restitution and
compensation framework” essential to repatriation programs,115 and
recognizes that “all returning refugees should have the right to have
restored to them or be compensated for any housing, land or property
of which they were deprived in an illegal, discriminatory or arbitrary
manner before or during exile.”116
More specifically, the Palestinian right to restitution is directly addressed
by international law. Resolution 194 is again the main point of reference.117
Even though the word “restitution” is not expressly mentioned, the
113 Hague Regulations, supra note 57, art. 46-55; GCIV, supra note 20, art. 53 and 147.
114 Gail Boling, “Absentees’ Property Laws and Israel’s Confiscation of Palestinian Property: a Violation
of UN Resolution 194 and International Law”, The Palestine Yearbook of International Law, 11,
(2000/2001): 117 [hereinafter Boling, Absentees’ Property Laws].
115 UNHCR, Handbook for integration and repatriation activities (Geneva: 2004), 16, available at:
http://www.unhcr.org/partners/guides/411786694/handbook-repatriation-reintegration-activitiesemcomplete-handbookem.html [accessed 27 Jul 2018].
116 UNHCR, Conclusion on Legal Safety Issues in the Context of Voluntary Repatriation of Refugees ,
No. 101 (LV) - 2004, 8 October 2004, available at: http://www.refworld.org/docid/417527674.html
[accessed 6 June 2018].
117 The right of Palestinian refugees and IDPs to restitution had also been affirmed by the UN in
numerous other General Assembly resolutions. See e.g. UN General Assembly, Question of Palestine,
22 November 1974, A/RES/3236, available at: http://www.refworld.org/docid/3b00f0468.html
[accessed 20 September 2018]; UN General Assembly, General Assembly Resolution 34/146, A/
RES/36/146, 16 December 1981, available at: http://www.un.org/documents/ga/res/36/a36r146.
htm [accessed 27 Jul 2018].
42
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