obligations under international law and do not involve discrimination solely on the
grounds of race, colour, sex, language, religion or social origin”).
Some commentators have tried to argue that Article 12(4) only applies to individuals,
and not to large groups of people seeking to claim the right simultaneously. This
argument does not make sense logically, since all rights enumerated in the ICCPR are
granted to individuals personally, regardless of how many other people might be
seeking to exercise the same enumerated right, and at what point in time. Respected
commentators have rejected the concept that the Article 12(4) cannot apply to large
groups of people.[29] Additionally, various UN organs, including the UN High
Commissioner for Refugees, have expressly found that large groups of people do have
a right of return that is explicitly grounded in both Article 12(4) of the ICCPR and its
“mother” article, Article 13(2) of the UDHR. As one commentator has noted, “[T]he
right to return in both the UDHR and the ICCPR was the basis for guaranteeing this
right in recently signed peace agreements in order to resolve conflicts in Rwanda and
Georgia, both of which produced hundreds of thousands of refugees and displaced
persons.”[30]
Finally, it must be noted that the ICCPR contains a general non-discrimination
provision in Article 2(1), which categorically prohibits governmental interference
with ICCPR-guaranteed rights based on “race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.”
Returning to Israel’s two nationality laws – the 1950 Law of Return (for Jews) and the
1952 Nationality Law (for “non-Jews”) – it becomes immediately obvious that the
intended result of these two laws working together in tandem is precisely to use “race,
colour, [] language, religion, political or other opinion, national or social origin, []
birth or other status” as filters for administering the conferral of Israeli nationality
status. Such a blatant use of ICCPR-prohibited criteria to screen in and screen out
prospective nationals – particularly when the millions of persons thus screened out
already should have been considered nationals of Israel (the successor state) by
automatic operation of international law as detailed above – constitutes prima facie
discrimination expressly prohibited by the ICCPR and a violation of Israel’s treaty
obligations under the ICCPR.
Another major international human rights convention, the International Convention on
the Elimination of All Forms of Racial Discrimination (CERD), similarly incorporates
the right of return in its Article 5(d)(ii), phrasing it as "[t]he right to leave any
country, including one’s own, and to return to one’s country." Israel has signed and
ratified CERD and has made no reservation to this Article. CERD also lists the right
of return as an enumerated right subject to the categorical non-discrimination rule of
the opening paragraph of Article 5: “…States Parties undertake to prohibit and to
eliminate racial discrimination in all its forms and to guarantee the right of everyone,
without distinction as to race, colour, or national or ethnic origin, to equality before
the law, notably in the enjoyment of the following rights.” Israel’s use of prohibited
criteria to confer its nationality status therefore also violates its treaty obligations
under CERD.