Refugee Issues

Unfreezing the Right of Return: First Stop, Gaza

Overview

The Palestinian authorities should immediately start implementing the right of return, beginning with Gaza and without waiting for Israel, argues Al-Shabaka Policy Advisor Munir Nuseibah. While mindful of the political and physical pitfalls and problems, he carefully constructs the arguments in favor of the move in this policy brief. He cites the legal obligations, the ways in which the continuing occupation of Gaza need not be an obstacle, and the practical steps for beginning the implementation of the right of return, in however limited a manner.

The Legal Case for the Return of the Displaced Gazans

Israel has displaced the Palestinians from the Gaza Strip and prevented them from returning at different times and by using a variety of methods. Many were displaced by the wars of 1956 and 1967, and are still taking refuge in Egypt, Jordan or elsewhere. Others managed to stay after the 1967 war and were counted in the Israeli census and issued red-colored Gaza Strip ID cards. However, they were later forcibly displaced by Israel’s status revocation policy in two ways. First, Israel issued Palestinians travelling abroad Israeli exit permits or travel documents with an expiry date; if the permits expired, the Palestinians were not allowed to return and their status was moved to “ceased residency.” Israel also assigned this status to those who failed to participate in its 1981 and 1988 censuses. Israel exercised this policy until 1995 after the Palestinian Authority (PA) was installed in parts of the West Bank and Gaza, and only stopped after the interim peace agreement entered into force. As many as 108,878 Palestinians had their residencies revoked, a figure that only came to light last summer after the Israeli human rights organization HaMoked filed an application based on the Freedom of Information Act.

Obviously Israel, as the state that has committed mass displacement of the Palestinian people since 1947, is responsible for their displacement, and the leaders who ordered it are criminally liable according to international criminal law. This is clearly set out in the Fourth Geneva Convention and in human rights law. There is nothing new about the illegality of Israel’s displacement of Palestinians and its responsibility. What is new is that there are now authorities that can begin the process of return without in any way negating Israel’s responsibility.

When Israel unilaterally “disengaged” from the Gaza Strip it ended its physical presence and canceled the military legal regime, although it remains the occupying power because it maintains ultimate control of Gaza’s land, sea, and airspace. However, the overthrow of the Mubarak regime in Egypt raises hopes for consistent opening of the Rafah Crossing, even though the government of Muhammad Mursi is still applying the same Israeli guidelines to passage through the Crossing.

The potential of a change in the regime governing the Rafah Crossing places a serious responsibility on the Ramallah-based PA, the de facto government in Gaza, and/or the Palestine Liberation Organization (PLO), as well as the Egyptian government to facilitate the return of every person who was displaced from the Gaza Strip, regardless of how this displacement happened and when it took place. Of course, we know that Israel is not going to cooperate, but there is nothing to stop the Palestinian authorities and Egypt from taking the right of return out of the deep freeze to the extent possible and establishing a process of return and property restitution.

Indeed, it is urgent that the Palestinian authorities take action. First, there is an international legal obligation on any authority in control of a territory from which persons were displaced to allow for their full repatriation, regardless of whether it was responsible for the displacement or not.