of meeting the strict requirements of Israel’s 1952 Nationality Law and have therefore
been effectively denationalized.
The Right of Return in Humanitarian Law
The right of return is also anchored in humanitarian law, the body of law regulating
what states are permitted to do during war. Both the Hague Regulations annexed to
the 1907 Hague Convention Respecting the Laws and Customs of War on Land
(which are universally recognized, including by Israel, to have achieved customary
status by 1939) and the 1949 Geneva Civilians Convention (to which Israel is a
signatory) provide for the right of return of displaced persons to their homes
following the cessation of hostilities. The provisional government of Israel (through
responsibility for its army and the Zionist paramilitary forces which preceded it) was
fully bound by the rules of humanitarian law when Zionist forces unilaterally
embarked upon the enterprise of trying to establish a state through military means.
Palestinian communities were progressively displaced in 1948 as Zionist/Israeli forces
established successive “zones of military occupation” as they gained control over
specific geographical areas.
The “General” Right of Return in Humanitarian Law
Under humanitarian law, there is a general right of return, which applies to all displaced persons, irrespective of how they came
to be displaced during the period of conflict. This rule was first codified in Article 43 of the Hague Regulations (and incorporated
into all subsequent customary humanitarian law, including the Geneva Conventions and their related Protocols). According to
this rule, a belligerent occupant must preserve the legal and social status quo in the occupied territory to the maximum extent
possible, pending the final legal resolution of the conflict (i.e., a peace agreement). The content of the rule of Article 43, which is
broader in the official (French) version than in the unofficial English translation, means, in practical terms, that a belligerent
occupant must let the population continue its normal existence with a minimum of interference. This would logically include a
requirement that the local population be permitted to remain in, or return to, their place of origin following the cessation of
hostilities.
While the Hague Regulations do not specifically articulate the obligation of a state to
repatriate (i.e., allow to exercise their right of return) civilian residents of the territory
who may have become temporarily displaced during the conflict, the entire purpose of
the Hague Regulations – as is clearly stated in the Preamble to the Hague Convention
– and indeed of all humanitarian law generally is to mitigate the severity of war as
much as possible and to spare the local inhabitants to the maximum extent possible.[24]
Accordingly, it must be logically obvious that the rule of humanitarian law requiring
the repatriation of prisoners of war following the cessation of hostilities (which is
stated in Article 20 of the Hague Regulations) must necessarily include a rule
requiring the repatriation of civilian residents to their place of origin following the
cessation of hostilities.
The sources of the right of return in the Fourth Geneva Convention are Article 4,
Article 6(4) and Article 158(3). Article 4 defines protected persons who are covered
by the Convention. The definition of protected persons covers all habitual residents of
a territory who may have become temporarily displaced from their place of origin
during the conflict (for whatever reason), and provision for their repatriation has been
made in two separate articles of the Convention. The first repatriation provision
appears in Article 6(4), which covers the end dates of the applicability of the
Convention. Specifically, Article 6(4) states that the Convention shall remain in