legislative history of the document reveals that “[t]here is no doubt that
in using this term [‘to their homes’] the General Assembly meant “the
return of each refugee from Palestine (Arab, Jewish or other) to “his [her]
house or lodging and not to his [her] homeland.”118 In a working paper
on historical precedents for property restitution and compensation the
United Nations Conciliation Commission for Palestine (UNCCP) Secretariat
emphasized that “the underlying principle of paragraph 11, sub-paragraph
1, is that the Palestine refugees shall be permitted [. . .] to return to their
homes and be reinstated in the possession of the property which they
previously held.”119
The right to restitution has been also mentioned by the ICJ, in its
Advisory Opinion on the Wall, where it rules that “Israel is accordingly
under an obligation to return the land, orchards, olive groves and other
immovable property seized from any natural or legal person for purposes
of construction of the Wall in the Occupied Palestinian Territory.”120
Protection and administration of Refugees’ and IDPs’ property
Refugee and IDP properties and possessions should be protected
“against destruction and arbitrary and illegal appropriation, occupation
or use.”121 As a corollary to this principle, it is fair to assume that the
same properties have to be protected and administered until a durable
solution is implemented. When, on 11 April 1949, the UNCCP expressly
demanded Israel suspend the Emergency Regulations (Absentees’
Property) Law, 5709-1948 and to place refugee property under a
“custodian”, the Israeli Representative responded that indeed they had
done so, noting “the custodian acts as a trustee for the absentee owners,
whose property is administered in their interests,” and recognizing the
118 United Nations Conciliation Commission for Palestine (UNCCP), Analysis of Paragraph 11 of
the General Assembly Resolution of 11 December 1948, Working Paper Prepared by the UN
Secretariat, A/AC.25/W/45, 15 May 1950, available at: https://unispal.un.org/DPA/DPR/UNISPAL.
NSF/796f8bc05ec4f30885256cef0073cf3a/94f1c22721945319852573cb00541447?OpenDocument
[accessed 7 June 2018].
119 UNCCP, Historical Precedent for Restitution of Property or Payment of Compensation for Refugees,
Working Paper of the UN Secretariat, A/AC.25/W.81/Rev.2 (Annex 1), 23 October 1961, available at
https://unispal.un.org/DPA/DPR/unispal.nsf/0/3E61557F8DE6781A052565910073E819 [ accessed 7
June 2018], para 1.
120 ICJ, Advisory Opinion on the Wall, supra note 15, para 153.
121 UNHCR Guiding Principles, Principle 21. A fortiori, this principle has to be regarded as effective also
for refugees.
43
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