This Article examines restitution as an autonomous human right for refugees displaced in the Israeli-Palestinian conflict, and assesses the implications of taking such a rights-based approach. The author concludes that the refugees have a strong legal claim to restitution. In international law, compensation is relevant only when restitution is materially impossible, where property has been damaged or declined in value so that restitution is not a complete remedy for the victim's loss or where a refugee chooses not to seek restitution. Current empirical research about land usage in Israel indicates that a great deal, and possibly the majority, of lost refugee property inside Israel is essentially vacant, and should still be available for restitution with little legal obstacle.
However, as in the Balkans, taking a rights-based approach has important implications for the way an abstract right will be implemented in actual practice. The most difficult cases for restitution in the context of a negotiated settlement between Israel and the Palestinians will involve properties that have been used and developed by secondary occupants, in this case mainly Israeli citizens. Cases of secondary occupation essentially present a situation of conflicting rights between returning refugees and secondary occupants. Both rights can in most cases be accommodated by providing one party compensation or alternative property, but the question will be whether the original property should go to the returning refugee (usually a Palestinian), or remain with the secondary occupant (usually an Israeli Jew or Israeli institution). The author argues that in the Israeli-Palestinian context the key question will be whether an eventual peace settlement makes reversing ethnic population displacement a high priority.
19:2 Fla. J. Int’l L. 421 (2007).
Kagan, Michael, "Restitution as a Remedy for Refugee Property Claims in the Israeli-Palestinian Conflict" (2007). Scholarly Works. Paper 628.