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34 Crim. L.F. 1 (2023)

handle is hein.journals/crimlfm34 and id is 1 raw text is: Criminal Law Forum (2023) 34:1-41 © The Author(s), under exclusive licence to Springer Nature B.V. 2023 https://doi.org/10.1007/s10609-022-09450-8 JOHN QUIGLEY* PROHIBITION OF PALESTINE ARAB RETURN TO ISRAEL AS A CRIME AGAINST HUMANITY Accepted: 3 December 2022; Published online: 15 February 2023 ABSTRACT. A displaced population of Palestine Arabs, numbering over seven million, is dispersed around the world, with major concentrations in Lebanon, Jordan, Syria, and Palestine itself. This population is prohibited from entry for renewed residence in home areas situated in Israel. In international law a right of return to one's country is guaranteed as a matter of fundamental rights. Severe deprivation of internationally defined rights victimizing a civilian population based on ethnicity or nationality constitutes the crime of persecution, a sub-category of crimes against humanity, prosecutable at the International Criminal Court. With respect to a major portion of the displaced Palestine Arabs, jurisdictional prereq- uisites obtain for the opening of an investigation that might lead to charges against Israeli officials responsible for denying return to the Palestine Arabs. I SCOPE OF ANALYSIS In 2011, Israel's Prime Minister Benjamin Netanyahu, in a speech to the US Congress, declared that 'the Palestinian refugee problem will be resolved outside the borders of Israel'.1 That statement was con- sistent with a practice Israel has followed since the departure in 1948 of the majority of the Arab population from the segment of Palestine over which Israel gained control in that year. The prohibition of return to the displaced Arabs of Palestine (to whom we will refer as 'the Palestine Arabs') has been condemned in regard to the respon- sibility of Israel as a state.2 The question arises whether Israeli offi- cials who implement the policy thereby commit a crime that could be prosecuted at the International Criminal Court (ICC). This question will be addressed by examining ICC jurisdiction and how it applies in this situation. The ICC has jurisdiction to prosecute only for * John Quigley is Professor Emeritus, Moritz College of Law, The Ohio State University, Columbus. E-mail: quigley.2@osu.edu. US Congress, 157 Congressional Record 72, at H3350, 24 May 2011. 2 See, eg, Assistance to Palestine refugees, UN General Assembly Res. 76/77, 9 September 2021 noting that repatriation ('has not yet been effected'). And see Sec- tion VI infra.

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