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34 U. Pa. J. Int'l L. 149 (2012-2013)
Evaluating the Palestinians' Claimed Right of Return

handle is hein.journals/upjiel34 and id is 153 raw text is: EVALUATING THE PALESTINIANS' CLAIMED RIGHT OF RETURN ANDREW KENT* ABSTRACT This Article takes on a question at the heart of the longstanding Israeli-Palestinian dispute: did Israel violate international law during the conflict of 1947-49 either by expelling Palestinian civilians or by subsequently refusing to repatriate Palestinian refugees? Palestinians have claimed that Israel engaged in illegal ethnic cleansing, and that international law provides a right of return for the refugees displaced during what they call al-Nakbah (the catastrophe). Israel has disagreed, blaming Arab aggression and unilateral decisions by Arab inhabitants for the refugees' flight, and asserting that international law provides no right of the refugees to return to Israel. Each side has scholars and advocates who have supported its factual and legal positions. This Article advances the debate in several respects. First, it moves beyond the fractious disputes about who did what to whom in 1947-49. Framed as a ruling on a motion for summary judgment, the Article assumes arguendo the truth of the Palestinian claim that the pre- state Jewish community and later Israel engaged in concerted, forced expulsion of those Palestinian Arabs who became refugees. Even granting this pro-Palestinian version of the facts, however, the Article concludes that such an expulsion was not illegal at the time and that international law did not provide a right of return. A second contribution of this Article is to historicize the international Copyright © 2012 by Andrew Kent. * Associate Professor, Fordham Law School; Faculty Advisor, Center on National Security at Fordham Law School. This Article benefited from presentations at the Israel and International Law Conference at Northwestern Law School and faculty scholarship workshops at St. John's and Fordham Law Schools. In addition, thanks are due to Paolo Galizzi, Charlie Honig, Robert Kaczorowski, Tom Lee, Ethan Leib, Robert Sloane, Asher Steinberg, and David Wolitz for helpful comments, and to Joseph Tartakovsky for terrific research assistance and intellectual fellowship.

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