2.1. Distinguishing forced displacement from evacuations

This section appraises the interrelations between two key international law norms, the prohibition on forced displacement and the right to leave any territory, including occupied territory. Consider, first, the prohibition on forced displacement, grounded in freedom of movement, insofar as it encompasses the right to remain in situ.Footnote ¹⁸ In occupation, Article 49(1) of the Fourth Geneva Convention (GCIV) states that ‘individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive’. There is no distinction between individual and mass transfers, and the destination of such transfers plays no role.Footnote ¹⁹

Some scholars claim that the Article 49(1) prohibition has become jus cogens.Footnote ²⁰ However, IHL permits an occupying power to undertake ‘total or partial evacuation of a given area if the security of the population or imperative military reasons so demand’.Footnote ²¹ Indeed, the crime against humanity of ‘deportation or forcible transfer of population’ is defined as ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’.Footnote ²²

Evacuations are thus an exception to the general prohibition in Article 49(1). The exception is phrased permissively (‘may’), not instructively. Hence, it must be interpreted restrictively, given it can easily be abused.Footnote ²³ In this vein, reasons related to ‘the security of the population’ pose fewer challenges than ‘imperative military reasons’. However, the worry is that the former justification would be used as a pretext for the latter, which in turn runs the risk of unlawfully encompassing political objectives. Imperative military reasons can only be invoked in pursuit of efforts directed at the realisation of a legitimate military advantage: there must thus be a connection between the military gain purportedly obtained by the evacuation and the pursued military objective.

Article 49(2) states that ‘evacuations may not involve the displacement of persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement’,Footnote ²⁴ indicating a strong preference for evacuations inside the territory.Footnote ²⁵ The International Committee of the Red Cross’ (ICRC) commentary to the four Geneva Conventions and their Additional Protocols (ICRC Commentary) notes that ‘as a rule … evacuation must be to locations within the [occupied] territory’.Footnote ²⁶ However, the application of Article 49(3) implicitly assumes either evacuation inside the territory or to the occupier’s territory, as it requires ‘an occupying power undertaking evacuations or transfers’ to ‘ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated’. At times of intense fighting requiring evacuations, an occupier may be best able to ensure such conditions in its sovereign territory. As a general rule, evacuations must only take place when it is safe to do so.Footnote ²⁷

Relatedly, Article 49(5) prohibits an occupier from detaining civilians in ‘any area particularly exposed to the dangers of war’. This provision is subject to identical qualifications as those set in Article 49(2): the two provisions must therefore be interpreted consistently, understanding the term ‘detain’ to mean to keep or retain, rather than penal detention.

Finally, Article 58 of Addition Protocol I to the Geneva Conventions,Footnote ²⁸ which applies ‘without prejudice to Article 49’, stipulates that ʻthe Parties to the conflict shall, to the maximum extent feasible … endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives’. An interpretation of ‘imperative military reasons’ consistent with the above provision would, in certain contexts, necessitate certain evacuations as a precaution.

To be legal, evacuations must be temporary. Article 49(2) states that ‘[p]ersons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased’.Footnote ²⁹ The ICRC Commentary frames evacuations as ‘a temporary and provisional measure that must not last longer than required’.Footnote ³⁰ Return must be secured once it has been assessed that the area is safe. Where an occupier fails to facilitate an individual’s return to their home following a lawful evacuation, this could constitute an unlawful forcible transfer or deportation, a fortiori when the occupier prevents or prohibits the return of protected persons to their homes. The obligation to transfer persons back to their homes applies irrespective of whether the evacuation was to a location inside or outside the territory, and should take place even when hostilities elsewhere continue. Finally, simply notifying evacuees that an area is safe for their return is insufficient:Footnote ³¹ it stands to reason that the party to the conflict that orchestrated an evacuation, i.e. the Occupying Power, is also responsible for their return, especially as it is the primary addressee of the Article 49 obligations.

2.2. The right to leave any territory and its conflict-induced qualifications

The right to leave any territory, including occupied territory, is grounded in Article 12(2) of the International Covenant on Civil and Political Rights (ICCPR), which states that ‘everyone shall be free to leave any country, including his own’.Footnote ³² Regional human rights instruments in Europe, the Americas and Africa similarly proclaim this right.Footnote ³³ Its application is not conditional on the nationality of the person seeking to leave.Footnote ³⁴ The UN Human Rights Committee (HRC) posits that the right to leave ‘exists independently of the length of time that the individual chooses to reside outside their state of current residence and the purpose of the leave’Footnote ³⁵ and ‘may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country’.Footnote ³⁶

Freedom of movement does not contain any requirement that persons must first prove that they will be admitted elsewhere.Footnote ³⁷ The absence of evidence of possible admission elsewhere cannot be used to restrict the application of the right to leave.Footnote ³⁸ For those controlling a territory, failure to respect, protect and fulfil the right to leave may expose individuals to persecution or other rights violations.Footnote ³⁹ There is thus a negative obligation not to impede the departure of those seeking to leave and a positive obligation to issue without undue delay documents necessary for international travel.Footnote ⁴⁰ A failure to do so simultaneously obstructs exit and entry.Footnote ⁴¹

The effective realisation of the right to leave is a necessary but insufficient condition to be able to ‘seek and to enjoy in other countries asylum from persecution’.Footnote ⁴² Whereas individuals have a right to leave any territory, there is no corresponding general right to enter other States:Footnote ⁴³ the right to leave is not matched by an obligation on a specific State to grant entry to a specific person. As Benhabib notes, the juxtaposition between the right to leave and the absence of a right to enter forms part of ‘a series of internal contradictions between universal human rights and territorial sovereignty’ that ‘are built into the logic of the most comprehensive international law documents in our world’.Footnote ⁴⁴ Nevertheless, as the analysis in Section 3 demonstrates, host States’ adherence to non-refoulement obligations can give effect to the right to leave for those fleeing persecution and rights violations.

The right to leave in IHRL is qualified: it is subject to restrictions ‘which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other [ICCPR] rights’.Footnote ⁴⁵ In general ‘the relation between right and restriction, between norm and exception, must not be reversed’.Footnote ⁴⁶ However, in situations of conflict, derogations from some ICCPR rights, including freedom of movement, are permitted pursuant to Article 4 thereof ‘to the extent strictly required by the exigencies of the situation’. The measures must not be inconsistent with the State’s other obligations under international law, and must not ‘involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’. Faced with severe national security threats, States may claim that they must limit the right to leave. For instance, following Russia’s full-scale invasion of Ukraine in February 2022, Ukraine declared a state of emergency throughout its territory and notified the UN Secretary-General of its decision to derogate from the ICCPR.Footnote ⁴⁷ Since then, it has controversially restricted freedom of movement by preventing most of its male population aged 18–60 from leaving its territory, purportedly to enable effective conscription.Footnote ⁴⁸

The right to leave in IHL is also qualified: Article 35 GCIV states that protected persons who ‘desire to leave the territory at the onset of, or during a conflict shall be entitled to do so unless their departure is contrary to the national interests of the state’.Footnote ⁴⁹ Viewed through an IHL lens, Ukraine’s measures are directed towards parts of the State’s own population in pursuit of its perceived shared national interest: in contrast, an occupying power would need to demonstrate that the departure of protected persons from the territory undermines its national security, for example, if there is concrete evidence to suggest that the departed would assist an adversary.

In some cases, individuals may wish to leave conflict zones but consider it too difficult, dangerous or expensive to make it to the border of a neighbouring State, leading them to flee to purportedly safer areas within their territory.Footnote ⁵⁰ Exploring past conflicts, Schmitt notes that zones ‘providing shelter to the wounded, the sick, and civilians have been agreed upon in conflicts’,Footnote ⁵¹ sometimes with the assistance of international organisations.Footnote ⁵² While ‘safe zones’ may vindicate the right to remain,Footnote ⁵³ there is a risk that they may be relied on to prevent individuals from exercising their right to leave to seek asylum elsewhere.Footnote ⁵⁴ In the 1990s, some States seized on a ‘right to remain’ as a rationale to block asylum-seekers from fleeing Bosnia and Herzegovina, declaring the creation of supposedly safe areas to contain and protect the displaced; yet tragically, such a ‘safe zone’ in Srebrenica saw the massacre in July 1995 of more than 7,000 Bosniaks.Footnote ⁵⁵

2.3. Distinguishing ‘voluntary’ departure from ‘constructive’ deportation

Section 2.1 noted that an occupier is prohibited from forcibly displacing protected persons, and must not ‘evacuate’ them from an occupied territory unless it is ‘impossible’ to avoid such evacuation. Section 2.2 outlined the IHRL and IHL obligations to facilitate the exercise of protected persons’ right to leave, subject to clearly defined exceptions. How do the prohibition on forced displacement and the right to leave interact in conflict situations,Footnote ⁵⁶ and can one meaningfully distinguish between voluntary departure and forced displacement, particularly in a coercive environment where it may be impossible for civilians to remain in situ?Footnote ⁵⁷

When persons are loaded onto lorries and forcibly driven to the border, there is a clear-cut case of forced displacement. How should one assess cases where displacement results indirectly from the conditions of life created by the commission of unlawful acts against civilian persons? Chetail distinguishes lawful from unlawful displacement based on the genuine consent of the persons concerned.Footnote ⁵⁸ Yet, when one is faced with a choice, real or perceived, between leaving behind their home and all of their belongings, or having limited chance of survival, the notion of consent seems rather elusive. Cantor thus argues that the IHL prohibition on forced displacement is rooted in directly coercive acts:Footnote ⁵⁹ for him, Article 49 prohibits the forcible transfer of civilians, on an individual or collective basis, from occupied territory to the territory of the occupier or to another State,Footnote ⁶⁰ not least as such forcible transfer may itself threaten the life, liberty and security of the displaced.Footnote ⁶¹ Under both interpretations, however, parties to a conflict would be breaching other IHL obligations by inducing displacement through acts that may advance the party’s strategic objectives,Footnote ⁶² such as terrorising the civilian population, creating inhumane conditions of living or carrying out indiscriminate attacks.Footnote ⁶³

How should a departee’s wish to leave an occupied territory be addressed? The United States (US) Department of Justice’s appraisal of the legality of facilitation of departure from occupied Iraq provided a helpful illustration of interpretive and normative challenges. Its memorandum opined that ‘facilitating the voluntary decision of a “protected person” to leave an occupied country and go abroad should … not count as “deportation”’. The rationale given was that ‘otherwise, an Occupying Power could be required to force “protected persons” to remain within the territory, even if they desired to leave, or at least to avoid facilitating in any way those persons’ departure, for fear of being charged with having “deported” them’. Nevertheless, the memorandum required the Occupying Power to make clear to protected persons that they were not being deported and that they could return to Iraq at any time.Footnote ⁶⁴

In the final analysis, individuals must retain their agency to determine whether to flee their territory or remain in situ, even if the conditions to which they are subjected render their departure coerced and constitute violations of IHL norms. It would be a perverse outcome if, as a matter of international law, the right to leave were to be curtailed by an occupier’s unlawful actions, leaving protected persons trapped and exposed to rights violations. In turn, an occupier must facilitate departure, subject to the defined exceptions, irrespective of whether one would hold it responsible for constructive deportation.

2.4. The armed conflict in Gaza since 7 October 2023: Gaza’s trapped residents

In his request of May 2024 for the issuance of arrest warrants against Israeli and Hamas leaders, the then Prosecutor of the International Criminal Court defined the conflict in Gaza since 7 October 2023 as comprising an international armed conflict (IAC) and a non-international armed conflict (NIAC) running in parallel; the panel of experts that he convened had reached a similar conclusion.Footnote ⁶⁵ The legal determination whether there is only an IAC or both an IAC and a NIAC in Gaza since 7 October 2023 falls outside the scope of this article: it suffices that Palestinian residents of Gaza are ‘protected persons’ within the meaning of Article 4 GCIV, namely, ‘those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals’.

The International Court of Justice (ICJ) concluded in its Advisory Opinion of 19 July 2024 on the Legality of Occupation that, even prior to 7 October 2023, ‘Israel remained capable of exercising, and continued to exercise, certain key elements of authority over the Gaza Strip, including control of the land, sea and air borders’ and that ‘this is even more so since 7 October 2023’.Footnote ⁶⁶ Applying a functional approach to occupation, the ICJ held that Israel’s legal obligations ‘have remained commensurate with the degree of its effective control over the Gaza Strip’.Footnote ⁶⁷

Against this background, the article proceeds to apply the IHRL and IHL norms analysed in Section 2 to displacement in and from Gaza.Footnote ⁶⁸ Even before 7 October 2023, and certainly since then, no Palestinian could leave the strip legally without being permitted to do so by Israeli military authorities.Footnote ⁶⁹ Article 49(1) GCIV prohibits Israel from forcibly transferring or deporting Gazans outside the territory. At the time of writing, Israel has not sought to pursue ‘evacuations’ outside Gaza or claim that, if pursued, they would meet the Article 49(2) threshold: namely, that it would be ‘impossible’ for Israel to conduct its military operations otherwise. Rather, Israel has been issuing increasingly restrictive internal evacuation orders, forcing the majority of Gazans to move to an ever smaller enclave in the strip’s south-west corner. For most of the period between October 2023 and September 2025, apart from a hiatus in early 2024, Palestinians ‘evacuated’ from their places of residence were generally not allowed to return. In summer 2025, Israeli officials floated the idea of creating a ‘humanitarian city’ to which Gazans will be confined, prohibiting their return to the rest of the strip,Footnote ⁷⁰ and cabinet members advocated reestablishing Israeli settlements in Gaza.Footnote ⁷¹

This article cannot consider in detail the impact that Israel’s military operations since 7 October 2023 have had on Gaza’s civilian population.Footnote ⁷² For present purposes, it suffices to note that, at the time of writing, Israel’s actions have rendered very large swathes of Gaza uninhabitable; that tens of thousands of civilians have been killed and many more have been injured; that the conditions in the ‘humanitarian’ area to which Israel has gradually confined the majority of the strip’s population have likely failed to meet the Article 49(3) GCIV criteria; and that, during the conflict, Israel has generally been preventing Gazans from returning to areas from which they had been displaced, likely breaching Article 49(2).

The harsh conditions of life imposed on Gazans would cast doubt on the voluntariness of any individual’s ‘desire’ to leave the strip. However, they must not deny Gazans their right to leave. Israeli facilitation would be required for Gazans to effectively exercise their right to leave, ensuring they can obtain appropriate travel documents and that they can arrive safely at a land border—the only route out of Gaza absent a functioning port or airport. Yet, whereas such facilitation would be necessary, it would not be sufficient: Gazans would need to be then admitted elsewhere—in the first instance, that would require one or both of Gaza’s neighbouring States, Egypt and Israel, to open their borders.

3.1. Non-refoulement obligations in IRL, IHRL and IHL: scope and relevance to conflict

Section 2 explored how the right to leave any territory, including occupied territory, interacts with the prohibition on forcible transfers or deportations. It concluded that, even in circumstances amounting to ‘constructive’ deportation, the right to leave must be honoured. When individuals flee conflict, which non-refoulement obligations follow, particularly for neighbouring States, and which factors may prompt their breach?

IRL non-refoulement obligations equally apply in peacetime and conflict and can be found in globalFootnote ⁷³ as well as regional instruments.Footnote ⁷⁴ Non-refoulement obligations under the 1951 Convention are non-derogable: they apply even ‘in time of war or other grave or exceptional circumstances’.Footnote ⁷⁵ The benefits of non-refoulement can only be denied to a ‘refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country’.Footnote ⁷⁶ This qualification applies only to a present or future danger which is assessed individually and thus cannot be the basis for general border closures. Host States can also impose temporary restrictions on the movement of those admitted, inter alia, to verify their identity and appraise the risk they may pose.Footnote ⁷⁷

Beyond IRL, States are also bound by their IHRL and IHL obligations,Footnote ⁷⁸ which protect everyone from refoulement—even persons formally excluded from refugee status under the 1951 Convention.Footnote ⁷⁹ In IHRL, non-refoulement is explicitly articulated in the Convention against TortureFootnote ⁸⁰ whereas the ICCPR right to life and its prohibition on torture and related forms of ill-treatment have been interpreted to include non-refoulement obligations.Footnote ⁸¹ A similar interpretation has applied to the prohibition on inhuman or degrading treatment or punishment in the European Convention on Human Rights,Footnote ⁸² to the right to life and prohibition on torture and related forms of ill-treatment in the Convention on the Rights of the ChildFootnote ⁸³ and to the right to security of person and protection by the State against violence or bodily harm in the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).Footnote ⁸⁴

In turn, in IHL, the only explicit prohibition on refoulement pertains to belligerent parties: Article 45(4) GCIV prohibits the return of protected persons to ‘a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs’. Nevertheless, this author has elsewhere argued, and the ICRC has agreed, that the obligation in Common Article 1 Geneva Conventions to ‘ensure respect for the present convention … in all circumstances’ prohibits all High Contracting Parties from returning persons to areas where, due to an armed conflict, they face a real risk of, at minimum, Common Article 3 violations.Footnote ⁸⁵

Further to its treaty bases, non-refoulement is arguably a customary international law (CIL) norm.Footnote ⁸⁶ Some claim that it has obtained jus cogens status,Footnote ⁸⁷ namely ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.Footnote ⁸⁸ However, the International Law Commission (ILC) has not included non-refoulement in its non-exhaustive list of jus cogens norms.Footnote ⁸⁹ It is unnecessary for this article to determine the jus cogens status of non-refoulement: when those fleeing conflict face a real risk of violations of recognised jus cogens norms, including the prohibition on genocide, the prohibition on crimes against humanity and the basic rules of IHL, a State refouling anyone to a territory where one or more of these jus cogens norms may be violated would clearly be breaching its non-refoulement obligations by exposing refouled persons to such dangers. The key question is then which States’ non-refoulement obligations are engaged.

3.2. Non-refoulement obligations of neighbouring States

Non-refoulement clearly applies to refugees already within the State’s territory. It should be equally clear that it applies to those arriving at the State’s frontier.Footnote ⁹⁰ Whereas the 1951 Convention does not reference ‘rejection at the frontier’, subsequent regional instruments in Africa and the Americas explicitly present it as a manifestation of refoulement.Footnote ⁹¹ In Europe, the European Court of Human Rights held that it is ‘crucial to observe … that the prohibition of refoulement includes the protection of asylum-seekers in cases of both non-admission and rejection at the border’.Footnote ⁹² UNHCR’s note on externalisation claims that ‘the responsibility of all states … to protect a person from refoulement is engaged as soon as individuals present themselves at the border’.Footnote ⁹³

The normative basis for this understanding is that effective protection begins with a refugee’s ability to secure admission.Footnote ⁹⁴ As UNHCR notes, the decisive factor is whether persons ‘come within the effective control and authority of that state’.Footnote ⁹⁵ Yet, attempts to expand non-refoulement’s reach to require European States to issue ‘humanitarian visas’ to persons seeking to travel safely to their territories in order to seek asylum there have failed hitherto.Footnote ⁹⁶ In conflict situations generating a ‘mass influx’ of persons, the ramification is that the initial ‘burden’ of protection falls, legally and practically, on neighbouring States. UNHCR’s longstanding position is that ‘access to asylum and the meeting by states of their asylum obligations should not be dependent on burden-sharing arrangements first being in place’.Footnote ⁹⁷ Asylum-seekers should be admitted where they first seek refuge and, if that State is unable to admit them on a durable basis, it should always admit them at least on a temporary basis.Footnote ⁹⁸ Therefore, the absence of responsibility-sharing arrangements must not lead States to close their borders.

Protected persons may flee their territory to a neighbouring State that is a party to the conflict. As the case of over a million Russian-speaking Ukrainians who have fled to Russia since 2022 demonstrates, this is more likely to happen when the persons fleeing are aligned, ethnically and/or politically, with that party to the conflict. It seems counter-intuitive, for instance, that after 7 October 2023, Gazans would have sought protection in Israel, a party to the conflict whose actions have led to their internal displacement, even if it would in fact be the safer option for them. Legally though, a belligerent neighbouring State is bound by non-refoulement obligations. To the extent that border arrivals raise security concerns, they must be addressed through means other than refoulement.

3.3. Border closures: rationales and institutional responses

When a neighbouring State opens its borders during conflict, it does not know how long the conflict will last and, consequently, for how long protection would be needed. Ordinarily, it has no assurance that it would be able to return refugees when the conflict concludes, especially if one of the aims of a party to the conflict is to ethnically cleanse part or all of the territory.

Section 1 demonstrated that Gaza’s border closures are unusual in comparison with State practice in recent conflicts. In the few past cases when neighbouring States have shut their borders, they typically invoked two rationales: security concerns and an expectation of ‘burden-spreading’.Footnote ⁹⁹ States have conceived of large refugee flows as likely to exacerbate ethnic tensions, and have insisted that the international community provides long-term solutions, generally by facilitating repatriation, so that the ‘burden’ does not fall exclusively or primarily on them.

How has the international community previously responded to such concerns? The displacement from Kosovo to North Macedonia offers a useful comparative lens. As the North Atlantic Treaty Organization’s bombing campaign in Serbia commenced, ethnic Albanians were fleeing Kosovo towards its neighbour, North Macedonia. They were stranded at Blace without shelter and with minimal other assistance. North Macedonia refused to allow them to proceed into its territory, fearing a destabilising effect and demanding assurances that ethnic Albanians would not remain on its territory.Footnote ¹⁰⁰ Two evacuation programmes summarily followed suit: a responsibility-sharing humanitarian evacuation programme to non-neighbouring States and a humanitarian transfer programme from North Macedonia to its neighbour, Albania.Footnote ¹⁰¹

UNHCR was unwilling to explicitly demand the unconditional opening of North Macedonia’s borders, reflecting unease at the prospect that advocating refugee hosting may inadvertently facilitate ethnic cleansing aspirations.Footnote ¹⁰² A policy report written in the early stages of the conflicts in the former Yugoslavia addressed the argument that ‘providing refuge … is to conform to the policy of ethnic cleansing’ head-on by suggesting that ‘it is essential to reaffirm and provide lasting protection for the right to return’.Footnote ¹⁰³ Recognising that evacuation of vulnerable groups can assist the perpetrators of ethnic cleansing, the report submitted that ultimately, UNHCR was obliged to concede that evacuation was the lesser of two evils. As UNHCR’s senior official in the Balkans later observed, ‘we chose to have more displaced persons and refugees, rather than more dead bodies’.Footnote ¹⁰⁴ International actors’ responses to displacement from Kosovo demonstrate that, when such actors are willing and able to provide assurances to host States, that can assuage their concerns and enable persons to flee conflict to safety.

3.4. The right of return of persons displaced by conflict

A key concern for persons displaced by conflict is whether and when they will be able to return to their places of residence, particularly when their displacement has been driven by ethnic cleansing aspirations. The harm of exile has been described as a ‘fundamental deprivation of homeland, a deprivation that goes to the heart of those immutable characteristics that comprise our personal and collective identities’.Footnote ¹⁰⁵ The right to return reflects people’s strong interest in being able to return to the place that they regard as their homeland.Footnote ¹⁰⁶

Section 2 explored the unequivocal IHL obligation to return ‘protected persons’ to their former places of residence once hostilities in that area cease.Footnote ¹⁰⁷ A fortiori there is an obligation to facilitate their return to the territory post-conflict. The ICRC states that ‘displaced persons have a right to voluntary return in safety to their homes or places of habitual residence as soon as the reasons for their displacement cease to exist’, referring to it as a CIL norm.Footnote ¹⁰⁸ The norm applies to those who have been displaced from conflict, whether voluntarily or involuntarily, and the UN Security Council (UNSC) recognised it with respect to conflicts in Abkhazia, Afghanistan, Bosnia and Herzegovina, Croatia, Korea, Liberia, Sudan and Tajikistan.Footnote ¹⁰⁹

In IHRL, Article 12(4) ICCPR enunciates that ‘no one shall be arbitrarily deprived of the right to enter his own country’.Footnote ¹¹⁰ The right to return to one’s ‘own country’ does not require the person to be a national.Footnote ¹¹¹ This is important because a change of borders and/or sovereign affecting the territory of origin may lead to a formal severance of the State-national legal bond.Footnote ¹¹² Relatedly, it ‘includes not only the right to return after having left one’s own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country’.Footnote ¹¹³ The HRC opines that ‘[t]he scope of “his own country” is broader than the concept “country of his nationality”’, embracing individuals whose special ties to a place mean they cannot be considered to be a mere alien.Footnote ¹¹⁴ Although the notion of arbitrariness is not defined, the HRC posits that ‘there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable’.Footnote ¹¹⁵

Whether the right to return in IHRL covers situations of ‘mass influx’ has been contested. Writing in 1981, Jagerskiold claimed that, in the drafting of Article 12(4),

Yet nothing in the text of Article 12 or in the travaux préparatoires limits the provision’s application to individual instances.Footnote ¹¹⁷ Jagerskiold’s position implies that one’s right to return becomes less compelling if others are in the same situation: yet, normatively, it would be wrong to conclude that an individual’s rights as a displaced person are weakened by virtue of being part of a displaced group.Footnote ¹¹⁸

In the first half of the twentieth century, internationally-endorsed post-conflict bilateral or multilateral population-exchange agreements were common.Footnote ¹¹⁹ A shift has since occurred, and population transfers and mass expulsions have been held to violate international law.Footnote ¹²⁰ In turn, voluntary return and repatriation form a key part of global refugee policy.Footnote ¹²¹ Since the early 1990s, UN organs have called for or supported the return of all refugees and displaced persons in respect of conflicts that resulted in mass displacement.Footnote ¹²² The Dayton Accords pertaining to post-conflict returns to Bosnia and Herzegovina stipulate that ‘[a]ll refugees and displaced persons have the right freely to return to their homes of origin’.Footnote ¹²³ The right to return features also in Bosnia and Herzegovina’s Constitution, proclaiming that ‘[a]ll refugees and displaced persons have the right freely to return to their homes of origin’.Footnote ¹²⁴ Relatedly, the CERD Committee’s general recommendations stipulate that ‘[a]ll such refugees and displaced persons have the right freely to return to their homes of origin under conditions of safety’.Footnote ¹²⁵ Yet, despite the emergence of a clear global norm, mass returns have become less prevalent: in 2024, the UNHCR reported that 67 per cent of persons displaced under its mandateFootnote ¹²⁶ are in a ‘protracted situation’, defined as ‘one in which 25,000 or more refugees from the same nationality have been in exile for five consecutive years or more in a given asylum country’.Footnote ¹²⁷

A recent case of ‘mass influx’ to a neighbouring State may put to the test the global commitment to the realisation of the right to return. Azerbaijan’s attack on the Nagorno-Karabakh region in September 2023 caused the displacement of nearly all of its ethnic Armenian population to neighbouring Armenia via the ‘Lachin corridor’.Footnote ¹²⁸ On 28 September 2023, Armenia submitted to the ICJ a request for indication of provisional measures in its pending contentious case against Azerbaijan. Granting the request, the ICJ ordered Azerbaijan to:

1. (i) ensure that persons who have left Nagorno-Karabakh after 19 September 2023 and who wish to return to Nagorno-Karabakh are able to do so in a safe, unimpeded and expeditious manner;

2. (ii) ensure that persons who remained in Nagorno-Karabakh after 19 September 2023 and who wish to depart are able to do so in a safe, unimpeded and expeditious manner; and

3. (iii) ensure that persons who remained in Nagorno-Karabakh after 19 September 2023 or returned to Nagorno-Karabakh and who wish to stay are free from the use of force or intimidation that may cause them to flee.Footnote ¹²⁹

UNGA resolutions consider Nagorno-Karabakh to be part of Azerbaijan.Footnote ¹³⁰ Hence, for the UN, the displacement of ethnic Armenians from Nagorno-Karabakh engages their right to return to the territory qua individuals, not as part of a RSD. It is notable that, at the time of writing, most ethnic Armenians from Nagorno-Karabakh have not sought Armenian citizenship, potentially due to fear of forgoing a right to return.Footnote ¹³¹ Ultimately, while demanding the realisation of the right of ethnic Armenians to return to Nagorno-Karabakh, Armenia has opened its borders, effectively facilitating what appears to be a successful ethnic cleansing campaign.Footnote ¹³²

3.5. Return and RSD

The ICCPR proclaims that ‘all peoples have the right to self-determination’.Footnote ¹³³ The ICJ characterised the RSD as a fundamental human right.Footnote ¹³⁴ In its Legality of Occupation Advisory Opinion, the Court held that in cases of foreign occupation it is ‘a peremptory norm of international law’.Footnote ¹³⁵ It is conceivable that, by complying with its non-refoulement obligations, a State would effectively facilitate ethnic cleansing. Relatedly, even though displaced persons have a right to return, their displacement could impede the future realisation of a collective RSD. This is because a people ordinarily exercises its RSD in a bounded territory: the presence or absence of parts of the people in that territory may affect its implementation. However, it is also conceivable that if at least part of the population remains in the territory, persons present there will be able to exercise their collective RSD, and displaced persons will eventually be able to return to the territory.

The ILC’s non-exhaustive list of jus cogens norms is instructive when considering the interrelations between non-refoulement and RSD. The list includes, alongside RSD, prohibitions on genocide and crimes against humanity, as well as basic principles of IHL. When there is a real risk of breaches of any of these norms in conflict situations, non-refoulement is clearly ‘triggered’ for States whose border closures could expose persons to such breaches. This article argues that States must abide by non-refoulement obligations which seek to prevent immediate and concrete harm to individuals, even at a potential cost to the future realisation of RSD. It would be legally—and morally—wrong to refoule persons to places where they face tangible risks of violations of their rights, purportedly to protect the same persons’ RSD.

Section 3 contended that, in international law, persons fleeing rights violations in conflict must be protected from refoulement at the frontier, and that they retain an individual right to return which may also facilitate the realisation of collective self-determination. However, the reality facing many displaced persons and their host States is one of protracted displacement. Against this background, Section 4 explores Palestinian displacements and their ensuing predicament.

4.1. Palestinian displacements: UNRWA’s areas of operation and Arab host States

The predicament of Palestinian refugees remains unresolved since their mass displacement in 1948 and the subsequent, smaller-scale displacement in 1967.Footnote ¹³⁶ UNRWA’s mandate, to provide protection and assistance in its five areas of operations—Syria, Lebanon, Jordan, the West Bank and GazaFootnote ¹³⁷—is occasionally renewed by the UN.Footnote ¹³⁸ Despite the temporary suspension of funding by some donor States in early 2024, the organisation continues to operate.Footnote ¹³⁹ UNRWA entitles ‘any person whose normal place of residence was Palestine during the period June 1, 1946 to May 15, 1948 and who lost both home and means of livelihood as a result of the 1948 conflict’ as well as their descendants living in an UNRWA area of operation to register for its services, and has extended registration to those displaced in the 1967 war.Footnote ¹⁴⁰

The majority of Palestinians reside in UNRWA’s five areas of operation. Yet, many other Palestinians reside in the wider region, including in Egypt—the only Arab State bordering the Occupied Palestinian Territory (OPT) where UNRWA does not operate. To understand Egypt’s response to the prospective flight of Palestinians to its territory after 7 October 2023, it is instructive to consider its early decisions regarding Palestinian displacement. Following the 1948 Israeli-Arab war, the Gaza Strip, which was previously part of the British mandate, was placed under Egyptian military administrationFootnote ¹⁴¹ and became one of UNRWA’s areas of operation. Egypt did not want UNRWA to operate in its sovereign territory.Footnote ¹⁴² Instead, an agreement was signed between Egypt and UNRWA.Footnote ¹⁴³ Article 1 thereof ensured freedom of movement between Egypt and ‘southern Palestine’ and inside both areas. In turn, Egypt signed a Memorandum of Understanding with the UNHCR, delegating the functional responsibilities for all aspects related to asylum-seekers and refugees, including registration, status determination, resettlement and voluntary repatriation.Footnote ¹⁴⁴ Subsequently, it acceded to the 1951 Convention (on 22 May 1981) as well as to the Organization of African Unity Convention governing the Specific Aspects of Refugee Problems in Africa (on 17 November 1980). Yet, those Palestinians who had relocated from Gaza to Egypt over the years have not been enjoying UNHCR or, indeed, Egyptian Government support.Footnote ¹⁴⁵

Unlike Egypt, other Arab neighbours that host Palestinian refugees, including Jordan, Syria and Lebanon (where UNRWA operates) have not acceded to the 1951 Convention. Attempts to ensure regional standards of protection for Palestinians have had limited success. In 1965, the League of Arab States (LAS) sought to regulate the treatment of Palestinians across the Arab world: its Casablanca ProtocolFootnote ¹⁴⁶ required Arab host States to provide the same treatment to Palestinians as the treatment given to their nationals concerning residence and employment; to issue and renew travel documents and visas to Palestinians; and to grant them the right to leave and return to their host State. Yet, the Protocol also emphasised the importance of preserving Palestinian identity and maintaining Palestinian refugee status, professedly to enable their return.Footnote ¹⁴⁷ In 1991, the LAS decided that the Casablanca Protocol could be applied according to the national laws of each State party, a resolution which Arab States have interpreted as permitting suspension of the Protocol’s guarantees.Footnote ¹⁴⁸ Ultimately, the status and rights of Palestinians in Egypt and elsewhere in the region outside UNRWA’s areas of operation remain precarious and are subject to national discretion.

4.2. Palestinians fleeing conflicts and border closures

The conflict in Syria in the 2010s saw mass cross-border displacement, primarily to neighbouring States.Footnote ¹⁴⁹ When Palestinian residents sought to flee Syria, the reaction of its neighbours was mixed.Footnote ¹⁵⁰ In January 2013, the Jordanian Government decided to refuse their admission.Footnote ¹⁵¹ In May 2014, Lebanon started requiring Palestinians from Syria to demonstrate that they meet conditions for temporary residence or that they are only transiting through Lebanon, thereby effectively denying them entry.Footnote ¹⁵² In contrast, Palestinians from Syria have generally been able to enter and remain in Türkiye, although they were neither granted refugee status there nor direct access to UNHCR services.Footnote ¹⁵³ Some Palestinians who have managed to flee Syria were granted asylum in non-neighbouring States, primarily in EU Member States.Footnote ¹⁵⁴ Akram notes that, by 2021, about 60 per cent of Palestinian refugees in Syria had been displaced,Footnote ¹⁵⁵ reflecting both the scale of displacement generally and the fact that, at all times, at least one of Syria’s borders remained open for Palestinians seeking to flee the conflict.

Not so for Palestinians seeking to flee Gaza since 7 October 2023. Its two neighbouring States, Israel and Egypt, have generally kept their borders shut. No official Israeli communication contemplated the construction of temporary displacement camps for Gazans inside Israel, should Palestinians wish to flee the armed conflict, and appraisals of the legality of Israel’s internal evacuation orders had not generally entertained this option.Footnote ¹⁵⁶ This is despite the fact that the risk of ethnic cleansing leading to protracted displacement, which arises in the context of displacement to non-belligerent States, would arguably have been much reduced, as it would have been in Israel’s interest to seek Gazans’ repatriation to their former places of residence as soon as practicable.

In contrast, an Israeli Intelligence Ministry policy paper detailing strategic options, including the permanent removal of Gaza’s civilian population, was leaked soon after 7 October 2023.Footnote ¹⁵⁷ The paper advocated pressuring Egypt and European countries to ‘absorb’ Palestinians. According to the paper, mass migration from conflict zones is a ‘natural and expected outcome’ of conflict which has occurred in Syria, Afghanistan and Ukraine, and is the only way to generate ‘meaningful deterrence’ throughout the region.Footnote ¹⁵⁸ In turn, senior Israel Government ministers, including Finance Minister Betzalel Smotrich, have been making explicit calls for the ethnic cleansing of Palestinians from GazaFootnote ¹⁵⁹ that would facilitate the reestablishment of Israeli settlements.Footnote ¹⁶⁰ Newspaper reports in March 2025 suggested that the US and Israel were seeking to persuade Sudan, Somalia and Somaliland to admit Gazans, thereby making way for turning Gaza into a ‘Riviera on the Mediterranean’.Footnote ¹⁶¹

In turn, Egypt’s response to demands that it allow Gazans to enter its territory was defiant and unequivocal: a near-hermetic border closure policy.Footnote ¹⁶² On 21 October 2023, prior to the commencement of Israel’s ground operation in Gaza, the Egyptian President Abdel Fattah el-Sisi stated that:

Egyptian sources subsequently affirmed Palestinians’ ‘right to self-determination, the right to remain on their land, and the right to independence’ as well as ‘the right of Palestinian refugees—who were forcibly displaced from their homeland—to return’, clearly omitting their right to leave Gaza or, indeed, Egypt’s non-refoulement obligations.Footnote ¹⁶⁴ Notwithstanding the public protestations, it was reported in February 2024 that Egypt had been building a cement- walled security perimeter, purportedly to hold up to 150,000 people in an enclosed area should the Israeli offensive in Rafah lead to a breach of its border.Footnote ¹⁶⁵ Ultimately, no such breach has occurred.

It is noteworthy to contrast Egypt’s closure of its Gaza border with its approach to the armed conflict in Sudan that was happening in parallel. Over a million displaced Sudanese nationals have crossed into Egypt since the conflict in Sudan intensified in 2023, making it at the time of writing the largest host State for Sudanese refugees.Footnote ¹⁶⁶ Egypt has reportedly not welcomed displaced Sudanese with open arms,Footnote ¹⁶⁷ nor does it officially recognise them as refugees. However, they were able to cross its border and, crucially, are not subject to refoulement. Hence, in addition to breaching its non-refoulement obligations towards Gazans, Egyptian border policy is arguably also a case of discriminatory non-admission.Footnote ¹⁶⁸

Egypt’s Gaza border closure has been criticised by many scholars.Footnote ¹⁶⁹ Others have sought to explain or justify it, including by highlighting additional concerns pertaining to the risk of Gazans engaging in hostile activities in the Sinai directed against the Egyptian regime.Footnote ¹⁷⁰ However, as Section 3 demonstrated, while IRL permits taking measures to address such security concerns, they do not include wholesale rejection of fleeing populations at the border. In turn, the reactions of international organisations displays an unusual and questionable degree of understanding for border closures. For instance, in October 2024, one year into the conflict, UN Secretary-General António Guterres stated: ‘[t]he intention might be for the Palestinians to leave Gaza, for others to occupy it … but … the courage and the resilience of the Palestinian people and … the determination of the Arab world … avoid[ed] the ethnic cleansing becoming a reality’.Footnote ¹⁷¹

At the time of writing, none of the UNSC’s four resolutions on the conflict in Gaza since 7 October 2023 have referred to non-refoulement or a right to asylum.Footnote ¹⁷² None of UNRWA’s statements directly referred to potential departures from Gaza.Footnote ¹⁷³ In turn, the UNHCR, entrusted in Article 35 1951 Convention to ‘supervise’ its implementation, has refrained from calling on Egypt to allow those seeking to flee to do so or from suggesting that other States should ease Egypt’s potential burden by offering temporary protection.Footnote ¹⁷⁴ Stating on 21 February 2024 that ‘[t]here is no safe place in Gaza’, UNHCR proceeded to list ‘ten requirements to avoid an even worse catastrophe’, none of which concerned the right to seek asylum.Footnote ¹⁷⁵ A UNHCR spokesperson posited that ‘[a]dding another complex layer of crisis and exodus will make the original solution to these problems even more intractable’.Footnote ¹⁷⁶ This statement is hardly compatible with the UNHCR’s approach to displacement in other conflicts.

4.3. Putative displacement from Gaza after 7 October 2023: ramifications for refugee status pursuant to the 1951 Convention

In August 2023, UNRWA reported that 1.47 million Gazan residents were registered for its ‘protection or assistance’ out of 1.7 million Gazans eligible for such services: most of them are descendants of Palestinians displaced in 1948.Footnote ¹⁷⁷ Article 1D(1) 1951 Convention excludes from refugee protection Palestinians who are ‘at present receiving protection or assistance’Footnote ¹⁷⁸ from UNRWA. However, per Article 1D(2), when such ‘protection or assistance’ has ceased ‘for any reason’ such persons are ipso facto entitled to the benefits of the 1951 Convention,Footnote ¹⁷⁹ subject only to the 1951 Convention’s exclusion (Article 1F) and cessation (Article 1C) clauses.

Article 1D(2) can only be triggered by leaving an UNRWA field of operation, and case law suggests that the departee must demonstrate that their departure was involuntary.Footnote ¹⁸⁰ Bulbul poignantly observes that the phrase ‘for any reason’ has been effectively supplanted by a requirement for there to be ‘objective reasons’.Footnote ¹⁸¹ The UNHCR describes four such alternative scenarios:Footnote ¹⁸² first, termination of UNRWA’s mandate; second, inability of UNRWA to fulfil its protection or assistance mandate in one or more of its areas of operation by guaranteeing there living conditions compatible with its mission; third, a threat to the applicant’s life, physical integrity, security or liberty or other serious protection-related reasons; fourth, practical, legal and/or safety barriers preventing an applicant from (re)availing themselves of the protection or assistance of UNRWA.Footnote ¹⁸³

Beyond UNRWA’s general financial challenges, its ability to operate in Gaza since 7 October 2023 has been severely curtailed. In June 2024, the Fourth Chamber of the European Court of Justice (ECJ) held that, in exceptional circumstances, Palestinian applicants that meet the Article 1D(1) criteria do not need to show they are personally targeted or that they are affected to a greater degree by risks generated from a general situation in UNRWA’s area of operation where they reside.Footnote ¹⁸⁴ The court found that the extreme poverty and generalised insecurity in Gaza are sufficient to establish that UNRWA is unable to fulfil its mandate.Footnote ¹⁸⁵ Notably, the applicants had left Gaza well before 7 October 2023, so the ECJ’s determination would apply a fortiori to the worsened situation there. Yet, trapped in Gaza, Palestinians cannot avail themselves of the 1951 Convention protections to which they would be entitled.

4.4. Non-Refoulement and Palestinians’ RSD

The ICJ’s longstanding position, first expressed in its Wall Advisory Opinion, is that ‘the existence of a “Palestinian people” is no longer in issue’ and that the rights of the Palestinian people ‘include the right to self-determination’.Footnote ¹⁸⁶ In its Legality of Occupation Advisory Opinion, the ICJ held that ‘by virtue of the right to self-determination, a people is protected against acts aimed at dispersing the population and undermining its integrity as a people’.Footnote ¹⁸⁷ Hence, forced displacement and/or ethnic cleansing, in addition to being themselves violations of international law, may affect a people’s ability to exercise their RSD. Yet, it would be wrong to suggest that the forced displacement of parts of a people whose RSD is at stake weakens that people’s RSD. The converse position creates a perverse incentive to alter the demographic composition of a territory in order to weaken a displaced population’s RSD.Footnote ¹⁸⁸

The UNGA has repeatedly stated that the RSD of Palestinians ‘extends to the displaced Palestinian population’,Footnote ¹⁸⁹ and nearly 150 States have recognised the State of Palestine, despite the fact that part of its putative population resides outside its territory.Footnote ¹⁹⁰ This article argues that, even if Palestinians had been able to leave Gaza after 7 October 2023, it would not have normatively affected their RSD. ‘Palestinian exceptionalism’Footnote ¹⁹¹ should be rejected, and the reticence of international actors to call out breaches of rights of individual Gazans to flee should itself be called out. As Crisp noted, no UN agency has ever intimated that ‘the stateless Rohingya population of Myanmar should be prevented from seeking asylum in Bangladesh because allowing them to leave it would facilitate the very evident ethnic cleansing objectives of the armed forces in their homeland’.Footnote ¹⁹² Hathaway poignantly described Egypt’s border closure as ‘reducing at-risk Palestinians to little more than collateral damage in the quest for self-determination’.Footnote ¹⁹³ Indeed, if asylum can be effectively denied on the grounds that it would facilitate mass expulsions, how many other States, confronted with an impending influx, would use this argument as a pretext for the closure of their borders?

Writing before 7 October 2023 in relation to Palestinian displacement from UNRWA areas of operations to the European Union, such as in the case of Palestinian residents of Syria (explored in Section 4), Mann analysed legal and policy dilemmas concerning the effects of expansive interpretations of Article 1D(2) which widen the scope of beneficiaries of protection on the realisation of the Palestinian people’s RSD.Footnote ¹⁹⁴ He noted ‘an assumption of an inverse correlation’ between international protection and self-determination.Footnote ¹⁹⁵ Mann contemplated that, in deciding whether to leave an UNRWA area of operation and seek asylum elsewhere, individual Palestinians may be undertaking a balancing act: making a sacrifice for the collective by staying versus personal and familial survival which may require leaving.Footnote ¹⁹⁶ Yet, even if Mann’s description holds true for some Palestinians, it should be their balancing act, rather than that of external actors. Ultimately, for such a dilemma to arise, the individual Palestinian’s agency to decide whether to leave or remain must be accompanied by an effective and realisable right to leave and go somewhere where they will be protected. A Palestinian seeking to leave an UNRWA area of operation needs to be able to cross an international border in order to receive protection in a State that adheres to its non-refoulement and other IRL obligations. It is their right, and it must be protected.