On 11 December 1948, seven decades ago this year, the General Assembly adopted Resolution 194, the United Nation’s second “peace plan” for Palestine. The resolution effectively superseded the Assembly’s first plan, namely, Resolution 181, otherwise known as the partition plan, adopted just over a year earlier. It was the recommendation to divide Palestine into politically distinct but economically linked Arab and Jewish states against the express will of the country’s indigenous majority that sparked hostilities leading to the first Arab-Israeli war.
The UN’s new peace plan, approved months before the state of Israel and neighbouring Arab states signed armistice agreements marking the official end of hostilities, not only had to address issues which had nearly led to the failure of the Assembly’s first plan even before its adoption, it also had to contend with an entirely new situation which had arisen during and as a result of the war, namely, the forcible displacement of around half of Palestine’s Arab population. In those areas held by Israeli military forces only 15 percent of the pre-war Arab population remained by the time hostilities came to an end.
While much of the substantive content of Resolution 194 seems to have been forgotten, the Assembly’s resolve that
the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible
continues to be a lightening rod of sorts for debate, not only in relation to a solution to what has become the world’s most protracted refugee situation, but also with regard to a solution to broader struggle over self-determination in Palestine/Israel.
Resolution 194 was the General Assembly’s third resolution on refugees, its second case-specific resolution on refugees, and its first resolution which explicitly affirmed that refugees should be allowed to return to their homes. In her book on refugee repatriation, Long describes the resolution as the “genesis” of the modern refugee right to return. It is this broader context, aside from the ongoing controversies that paragraph 11, quoted above, continues to provoke, that has likely added to the resolution’s “staying power” nearly three-quarters of a century after its adoption.
It is somewhat ironic that at the time of its drafting the provision on refugee return were barely discussed. More controversial at the time, at least in terms of the exchanges among those taking part in the drafting of paragraph 11 and the number of changes to the text, was the provision relating to compensation for loss and damage. Moreover, relative to the plan’s recommendations on refugees, which drafters spent little time discussing, the most difficult aspects of the text to resolve were those relating to territory and the composition and powers of the United Nations Conciliation Commission Commission for Palestine which would also come to play a short-lived role in trying to resolve the refugee issue.
In the second part of paragraph 11 on refugees, the Assembly instructed the Commission to
facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations.
The Commission was only one of several UN organs that attempted, in various ways, to address the political and humanitarian crisis arising from Assembly’s partition recommendation and the war that followed.
Aside from operational aspects of dealing with the refugee crisis, the situation in Palestine/Israel also “interacted” with the UN’s early law-making initiatives. One day before the adoption of Resolution 194, the Assembly gave its nod of approval to the Universal Declaration of Human Rights, the first post-war treaty to affirm the right to return as a fundamental human right. In her historical account of Declaration’s drafting, Glendon observes that it was the refugee situation in Palestine in October 1948 after the collapse of the second truce that led, on the motion of Lebanon, to the addition of the “right to return” to existing provisions on freedom of movement which had focused up to that point on the right to leave one’s own country.
The situation in Palestine also came up in the context of drafting discussions of what would eventually become the Convention on the Prevention and Punishment of the Crime of Genocide. Among the concerns of those who raised the issue was whether forced displacement comprised an act of genocide. In addition, during the above-mentioned Commission’s three year effort to facilitate negotiations that would lead, among others, to the implementation of paragraph 11 of Resolution 194, the refugee crisis in Palestine, as others have documented, arose repeatedly during the drafting of the 1951 Convention relating to the Status of Refugees. While scholars have examined elements of this intersection between the refugee crisis arising from the first Arab-Israeli war and early law-making initiatives in the UN a comprehensive analysis of how the situation in Palestine contributed to the development of international law in these years has yet to be written.
Finally, to return to the discussion of Resolution 194, it wasn’t long after the General Assembly adopted the resolution that Israeli authorities, who had already taken the decision during the war to prevent refugees from returning to their homes and properties, began to argue that Resolution 194 did not affirm a right to return, pointing in particular to the absence of the specific term “right” in paragraph 11. It seems that Joseph Schechtman, an expert on population transfer who was closely associated with the Revisionist wing of the Zionist movement and had already begun to advise the Israeli government during the war, was one of the earliest proponents of this argument which has since become central to arguments put forward by successive Israeli governments and several Israeli legal scholars.
Setting aside the interpretive history of Resolution 194, the archival record indicates that this was not Israel’s initial interpretation of paragraph 11. In late November as members of the General Assembly’s First Committee struggled to come to a consensus on language around compensation, Israel sent a telegram to the US delegation with its own comments on the evolving draft resolution. In short, officials appeared to be pleased with revisions on compensation which had made the text “more non-committal”, however, they were less than happy with the related provision on refugee repatriation which in their own words “still establish[ed] the principle of absolute and unrestricted return”. While it took some days to arrive at agreed upon language on compensation, the draft language in which the Assembly resolved that refugees wishing to return to their homes remained intact through the adoption of Resolution 194 some two weeks later.
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