BADIL 2003 – 2004 Expert Forum for the

Promotion of a Rights-Based Approach to the Palestinian Refugee Question

  Summary of Proceedings, Seminar-3
 Closing the Gaps:
from Protection to Durable Solutions for Palestinian Refugees 

Hosted by
Hosted by the Al-Ahram Center for Strategic and Political Studies

Cairo, 5 – 8 March 2004

Contents 

1.  Protection: Definition, Scope and Gaps (Session One, 06-03-04)

2. Roles and Perspectives of International, Regional and National Actors (Session Two, 06-03-04)

3. Recent Proposals and Initiatives by Civil Society and Academia (Session Three, 07-03-04)

4. Summary Debate and Recommendations (Session Four, 07-03-04)

Notes

• This document does not include summaries of the presentations made in the public evening session of  6 March 2004. Copies of working papers submitted are available at: www.badil.org/Campaign/Expert_Forum.htm

• This seminar was sponsored by: Stichting Vluchteling and ICCO, Netherlands.

1.  PROTECTION: DEFINITION, SCOPE AND GAPS

(Session One, 06-03-04)

Presentation of Working Papers and Statements: three statements, summarized below, were presented for discussion. A fourth presentation on the situation of Palestinian refugees in Egypt had to be cancelled as the speaker was denied entry to Egypt by the Egyptian authorities.

1.1 ‘International Protection of Palestinian Refugees and the Relevant Rules of International Law,’ was presented by Lex Takkenberg (speaking in personal capacity and not necessarily expressing the views of UNRWA). He clarified concepts (international protection, international refugee protection) and instruments applicable to refugees in general and Palestinian refugees in particular (1950 Statute of the Office of the United Nations High Commissioner for Refugees, 1951 Convention and its 1967 Protocol relating to the Status of Refugees, 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness; universal human rights conventions and conventions based on humanitarian law; resolutions issued by the United Nations and the League of Arab States; and as well as past and current political agreements and models for a solution of the Israeli-Palestinian conflict.) The speaker argued that efforts at improving Palestinian refugee protection must tackle a number of key questions and provide adequate answers:

Demarcation of protection

Where is the borderline between assistance and protection? Does UNRWA only provide assistance? Should assistance and protection always be provided together? Where is the borderline between protection and the search for permanent solutions? Is the search for durable solutions also a form of international protection? Lex Takkenberg argued that there is a continuum between assistance and protection which is not strictly demarcated. UNRWA’s work was raised as an example: assistance activities, such as providing health care, education and welfare services, also protect basic rights of the refugees.

Specifying protection gaps

It was argued that current protection gaps in UNRWA’s area operations are best described as a de jure gap (due to the absence of an international agency specifically and explicitly mandated to protect Palestinian refugees there), while the situation in countries outside UNRWA’s area of operations, irrespective of whether states are signatories to the 1951 Refugee Convention, should be described as one of a de facto protection gap (due to UNHCR and states not always having provided adequate protection to Palestinians). In this context, Lex Takkenberg reminded participants of the fact that the Arab League and Arab states have played a significant role in providing protection to Palestinian refugees, irrespective of their position that responsibility for the Palestinian refugees is an obligation of the international community.

Possible solutions, i.e. ways to close current protection gaps

- Regarding the de jure protection gap (Palestinians within UNWRA’s area of operations), Lex Takkenberg outlined three basic options: (i) re-activation of the UNCCP; (ii) inclusion of Palestinian refugees into UNHCR’s mandate; and, (iii) expansion of UNWRA’s mandate to include protection in addition to its humanitarian assistance role (the latter requiring willingness of the Agency and (tacit) endorsement by the UN General Assembly). He argued that the first two options are not appropriate, in part because reactivating the UNCCP would require a new UNGA resolution. In this context, UNWRA is to be seen as the most realistic vehicle.

-Regarding the de facto gap (Palestinians outside UNWRA area), closing protection gaps requires UNHCR (and states party to the 1951 Refugee Convention) to take a more proactive role in protecting Palestinian refugees, in particular a more generous/correct interpretation of Article 1D of the Convention, and UNHCR (and states party to the 1954 and 1961 Statelessness conventions) to take a more proactive role in protection of stateless Palestinians.

The presentation concluded by highlighting recent positive developments, in particular the increased level of UNHCR interest in concerted efforts to improve protection. This is reflected, for example, in the 2002 UNHCR Note on the Applicability of Article 1D of the 1951 Convention to Palestinian refugees, which is an important step forward towards the correct interpretation and towards challenging some disturbing state practice vis-à-vis protection of Palestinian refugees. It is also reflected in the fact that UNRWA and UNHCR have decided to embark on much closer cooperation than in the past. While both agencies have worked together on various occasions in the past (e.g. issued a joint statement on travel documents in Lebanon, joint missions to Kuwait, Libya), this cooperation is now actively encouraged by the two Commissioners and becoming much more systematic. There is hope that UNWRA can develop an increased level of protection of Palestinian refugees, looking at UNHCR as a model.

1.2 An Overview of the Legal Status and Protection of Palestinian Refugees in States Signatories to the 1951 Refugee Convention by Elna Sondergaard (BADIL) looked at the legal status of Palestinian refugees when seeking asylum abroad in states signatories to the 1951 Refugee Convention. The findings are part of ongoing research on the reality of state practice vis-a-vis the 1951 Refugee Convention. Information has been gathered with the help of a world-wide network of legal experts and in cooperation with UNHCR and UNRWA. The Handbook when complete will include case studies and patterns of practice in over 30 countries, and will draw practical recommendations of how to close the protection gap.

To date, research has been completed on 17 countries, four of which had no Palestinian asylum seekers (Croatia, Portugal, Iceland, Estonia), and one, Latvia, had only one case, leaving 12 countries which were researched in detail. Major factors determining the legal status of Palestinian refugees in these countries are: a) whether or not Article 1D/1951 Refugee Convention has been incorporated into domestic legislation; b) the specific interpretation of Article 1D; and, state legislation/policy regarding asylum seekers whose applications are rejected.

Sample Case Studies

Australia: The interpretation of the scope of the exclusion clause in Article 1D, first

paragraph, has been a source of ongoing debate in Australia. The leading case is Waqb (November 2002, involving a Palestinian from Syria). In this case the Full Federal Court concluded that Article 1D referred to a class of persons receiving ‘assistance or protection’ from UNRWA. The judges rejected the argument that Article 1D contains and inclusion clause which would automatically confer refugee status upon Palestinian refugees. Palestinian refugees falling within the second sentence of Article 1D are simply entitled to apply for recognition of their refugee status under Article 1A(2) of the Convention. With regard to the determination of the moment when Article 1D, sentence two, kicks in, i.e. the interpretation of the language, “when such assistance or protection has ceased,” the three judges expressed different views. Judge Hill concluded that given the inability of the UNCCP to carry out its mandate, it would be a question whether the UNCCP had provided protection at the time of the ratification of the Refugee Convention in 1951. The other two judges disagreed and stated that the question was not whether UNCCP had provided protection, but whether the protection provided by the UNCCP has ceased. This question was referred back to the Refugee Tribunal. Complementary forms of protection or permission to remain based on compassionate or practical considerations are not available in Australia for persons whose claims for refugee status under the 1951 Convention have been rejected.  The Minister of Immigration can, however, intervene under power personal to the Minister – if s/he wishes to exercise this power. Otherwise, refugees are detained pending return to the country of previous habitual residence. Australian authorities are often successful at returning refugees.

Germany: There is elaborate case law on Article 1D with a precedent-setting ruling by the Federal Administrative Court, Berlin, 1991. The Court concluded that Palestinian refugees who had ‘voluntarily’ relinquished UNWRA ‘protection’ are not entitled to refugee status under the 1951 Convention and to protection under German law. This interpretation is applied strictly, including to Palestinian refugees who are denied re-admission by their former country of habitual residence, if they knew that they would be denied readmission. Claims for refugee status under Art. 1A(2) of the 1951 Convention from stateless Palestinians are difficult, because courts have rejected the argument that denial of re-entry of stateless Palestinians to their former country of habitual residence constitutes a form of persecution. Once an asylum application is rejected, Palestinians are granted a ‘toleration permit.’ After one year, they can seek employment, but only if German nationals or other candidates from among other ‘priority aliens groups’ are not applying for the same position. Additional problems faced include lack of entitlement to family reunification, travel, a.o.

Following are the major problems identified across countries:

1)       Palestinian asylum seekers are generally required to fulfill the criteria set out in Article 1A(2) in order to qualify as refugees. Most countries do not implement the ‘ipso facto’ language of Article 1D. Only Denmark recognizes Palestinians from Lebanon as ‘prima facie’ refugees. Their claims for asylum are therefore assessed by the authorities in relation to the effective protection available for them in Lebanon.

2)       In some countries, including Germany, Palestinians have been denied protection under the 1951 Convention if they do not have a country to which return is possible. In such cases, the authorities have concluded that there was no ‘country of former habitual residence,’ as defined in Article 1A(2) and, hence, there was no country against which ‘persecution’ could be assessed.

3)       It is often impossible to return Palestinians who have received a negative decision. Many of them, for example, are stateless persons and have nowhere to go to. Moreover, some countries do not offer complementary forms of protection or permission to remain on other grounds, and people are left in limbo without any legal status in the country of asylum. Sweden, for example, receives many Palestinian asylum seekers from Saudi Arabia and other Gulf States. In the Gulf they only have an employment permit as long as they have a sponsor. After 6 months the permit expires and they can only stay if they have a new sponsor. After reaching Sweden and applying for asylum they are not recognized as refugees. They are not eligible for another protection status and thus end up with no legal status at all. Swedish authorities demand that they find employment and a sponsor in the Gulf from Sweden which can prove to be an impossible task.

4)       In countries where leave to remain for humanitarian, compassionate or practical reasons is available, it is often very difficult to obtain such status.

In summary, research shows a strong diversity in state practice and interpretation of the 1951 Convention, largely to the detriment of Palestinian refugees. The new 2002 UNHCR Note on the Applicability of Article 1D of the 1951 Convention to Palestinian Refugees appears to have not (yet) impacted jurisprudence and/or state practice. Once denied asylum, other forms of protection are available for them in very few countries only. For those who do not obtain any status, the return of Palestinian refugees to countries of former residence becomes a matter for the police. Yet many refugees have nowhere to be returned to. Subsequent legalization of their presence then becomes the major problem, involving lengthy procedures and much hardship for the refugees. The graphic below illustrates major decisions to be made by courts/authorities and problems encountered in by Palestinian asylum seekers. 

Palestinian Asylum Seekers

Protection Denied                                                   Protection Granted

Recognition of Refugee Status on the Basis of:

      Article 1A(2)    N                                                                                 Article 1D         

                            O                                                                                                        

                            T                                                    

                                                      QUALIFYING                       Recognition of Refugee       

Prob. 1:               Q                                                                   Status on the basis of

1D Not                 U                                                                   Article 1A (2)      

implemented       A

                            L

                I

Prob. 2:                F

CFHR*                  Y

                            I

                            N

                            G                                                                Complementary Form of

RETURN / DEPORTATION                                                        Protection**

      RETURN IMPOSSIBLE                                                       Temporary Leave to

                                                                                               Remain***

Prob. 3:

Nowhere to go                                                                         Toleration permit (bar to

deportation)

          DETENTION                                                         Prob 4: Legalization

* country of former habitual residence; ** for those with other international protection needs;

*** Permission to remain for humanitarian, compassionate or practical reasons.

1.3 Presentation on the ‘Current protection situation of Palestinian refugees in Iraq and in the Ruweished Camp in Jordan/the No Man’s Land on the border between Iraq and Jordan’ by Gabriela Wengert, Assistant Protection Officer, Legal Unit/ CASWANAME, UNHCR Geneva.

Currently, a total of 22,706 Palestinian refugees are registered with UNHCR Iraq. Additional numbers are present in other parts of Iraq but remain unaccounted for by UNHCR in view of the current security situation.

UNHCR has identified a number of needs of the Palestinian refugee population in Iraq:

-          The most immediate protection concern in the view of UNHCR and the refugee community relates to the physical protection of refugees. Physical threats against “foreigners”, including the refugee population, increased in the aftermath of the conflict. The perception that the refugee population was closely associated with the previous regime seems to be the motive behind these threats.

-          The refugee population is in immediate need of material assistance. Despite the fact that Palestinian refugees are allowed to work, the worsening economic situation coupled with decreased employment opportunities have sharply impacted on their chances to have sustainable jobs and left many of them in a critical situation.

-          Following the war in April 2003, a total number of 406 families have been evicted from their often subsidized houses, and others are still considered to be at risk of being evicted. In some instances, the eviction was accompanied by threats against the physical safety of the tenant. Among those evicted, 293 families are currently hosted in the premises of the Haifa Sports Club in Baghdad, while the rest found temporary accommodation with friends and families.

-          Another issue to be addressed is that of legal protection. The former Iraqi government had issued on an ad hoc basis various decrees relating to Palestinian refugees. It is safe to assume that a future government will review at some point all decrees issued by the previous regime. It is therefore of outmost importance to ensure that future legislation provides safeguards for refugees in order to avoid a legal gap in the protection of Palestinian and other refugees.

UNHCR is addressing these protection and assistance needs in close collaboration with the Iraqi authorities, the CPA, the Palestinian Red Crescent Society, the refugee community and relevant UN agencies.

UNHCR Activities

The refugee population in Iraq is in a precarious situation in the aftermath of the regime change with the absence of a national authority willing and capable of providing the needed protection and assistance. As a result of this gap, UNHCR assumed added responsibility by providing immediate shelter to evicted Palestinians. Basic relief items such as tents, mattresses, blankets etc. were provided to the most vulnerable among the Palestinian refugees, in particular those evicted and occupying the vicinities of the Haifa Sports Club.

UNHCR has been in close contact with the CPA in order to identify a suitable place for relocating the evicted Palestinians. A compound offering housing for some 400 families was identified and initial approval was obtained from the CPA. The process recently came to a deadlock when the CPA advised that the building was needed for security purposes.

In an effort to address the immediate shelter problem, UNHCR signed an agreement with the Ministry of Labor on November 1, 2003, whereby the latter will implement a rental scheme funded and monitored by UNHCR. Apartments have been identified and negotiations with landlords have been carried out for an initial rent period of one year. Relocation from the camp is taking place with the aim to close the refugee camp in the Haifa Club in the near future. The rental scheme, nevertheless, is of a temporary nature and a longer-term housing solution is under active consideration and is being discussed with the CPA, the Iraqi authorities and the Palestinian refugee community.

Furthermore, UNHCR started a registration exercise in July 2003, which was aimed at collecting credible information on the Palestinian refugees in Iraq, a prerequisite to ensuring protection. Vulnerable cases such as those evicted from their homes were prioritised. The registration was to proceed on a geographical basis, but due to the security constraints UNHCR only succeeded in registering the caseload in Baghdad, which is believed to represent the majority of the Palestinian caseload in Iraq. Once security allows, UNHCR will proceed with the remainder of the group. In total, 22,706 Palestinian refugees were registered to date; approximately half of them are female. This number already includes some 1000 Palestinian refugees that were deported from Kuwait in the aftermath of the Gulf war, and had already been registered with UNHCR Iraq in 1991.

Palestinians in the Ruweished Camp in Jordan and in the No Man’s Land on the border between Iraq and Jordan

Following is a short overview on the situation of the some 400 Palestinians in the Ruweished Camp in Jordan and in the No Man’s Land (NML) on the border between Iraq and Jordan, and UNHCR’s efforts to find durable solutions for their plight.

In view of the difficulties encountered by Palestinians in Iraq in the aftermath of the war, a number of them left Iraq and headed to Jordan. Around 800 were allowed to enter Jordan and were accommodated in the Ruweished camp that was established in the expectation of an outflow from Iraq. Others were denied access into Jordan and remained in the NML on the border between Iraq and Jordan. Even though the NML technically belongs to Jordan, the Jordanian authorities do not consider these persons to have entered Jordanian territory.

UNHCR has regular access to the tented camps in Ruweished and the NML, and the refugees are provided with basic food and non-food items. The level of frustration in the camps is high, as the refugees have been there for more than 10 months, under particularly harsh conditions in view of the desert nature of the area, the lack of freedom of movement, and the uncertainty of future prospects.

In late August 2003, the Jordanian authorities agreed to admit 386 Palestinians from the Ruweished population that had a spouse with Jordanian nationality. Jordan furthermore showed flexibility in postponing the closure of the Ruweished camp until April 2004.

Since November 2003, UNHCR has been appealing to all concerned parties to address the situation in a comprehensive manner and a spirit of burden sharing. UNHCR has stressed the need to look at the situation from a humanitarian rather than a political perspective.

Various options are being considered:

-          Admittance to Israel or the West Bank and the Gaza Strip, based on humanitarian considerations and with an emphasis on family links;

-          Resettlement in third countries, be it on a temporary basis until their return to Iraq becomes feasible. This solution should preferably be found within the region, in particular for those with family links or those holding travel documents issued by some of the States in the region. Under certain circumstances, resettlement outside the region could be envisaged for persons with close family links abroad or for whom no other solution would work;

-          Return to Iraq should not be excluded for those that wish to voluntarily return.

Negotiations are still underway with various Arab States, the Palestinian Authorities, Israel, as well as major resettlement countries outside the region. So far, UNHCR’s efforts have not yielded positive results, however, UNHCR continues to pursue the various options with all stakeholders concerned in order to ensure a dignified and safe solution for all.

The experience in Iraq, where UNHCR was rather surprisingly confronted with a caseload, that is clearly of its concern, but has not been well-known to the Office, has generated discussions within UNHCR, and the Office is currently reviewing the question of how to strengthen UNHCR involvement with Palestinian refugees outside UNRWA’s area of operation, mainly in the region.

Discussion, Session One

(Issues raised in response to the working papers and reports, responses by speakers and other participants)

On institutional mechanisms for closing the current gap in international protection:

-    It was noted that the UNCCP option is also problematic because of the three members of

it: U.S., France and Turkey, i.e. hardly “honest brokers” for protecting the legal rights of Palestinian refugees.

-    It was noted that there is a fourth option for the re-arrangement of institutional

mechanisms, one that is not based on geographical division of tasks between UNRWA and UNHCR, but a division based on mandates.  UNWRA could assist all Palestinian refugees and UNHCR could be charged with ensuring their protection, thus taking on the protection role previously held by the UNCCP which has become defunct. The speaker argued that closer cooperation between the two agencies is very important, but there should not be a campaign for mandate change, which might stir up adverse response from donors and result in withdrawal of crucial funding.

-     One participant was of the opinion that there is a big gap between how UNHCR presents

itself and how things happen in practice on the ground. Notably, UNHCR has become, contrary to its founders’ original intentions, concerned with humanitarian assistance as its principal activity, which has in certain instances resulted in a compromising of its protection mandate. Thus, for example, humanitarian assistance staff is rarely adequately trained in refugee protection matters. UNCHR clarified that the legal basis for its assistance activities was established in UNHCR’s Statute and was subsequently enlarged and consolidated through various General Assembly and ECOSOC resolutions. In legal terms, UNHCR’s assistance activities have remained, in principle, inextricably linked with the primary tasks of providing international protection and seeking durable solutions.

-     Additional concerns regarding the division of protection tasks among UNRWA and

UNHCR: Participant liked idea of closer cooperation between UNRWA and UNHCR in principle but wondered how UNWRA would be able to raise its standards of protection to the same level as UNHCR? And how could UNRWA work to seek durable solutions? It was also raised that a geographic division of the international protection role (UNRWA in its area of operation; UNHCR outside areas of UNRWA operation) may lead to different levels of protection in both areas and to geographic fragmentation.

On the need to develop the role of other humanitarian and human rights law for Palestinian refugee protection:

-    Mechanisms available under international humanitarian law (IHL) should be activated for

  Palestinian refugee protection, in addition to international refugee law. A legal argument

  should be developed for the applicability of the Fourth Geneva Convention to all

  Palestinians currently living in countries that are in a state of war with Israel (e.g.

  Lebanon,   Syria); potential benefits of war crimes suits, fact finding missions, and

  engagement of the Protecting Power and High Contracting Parties should be explored

  more. The speaker agreed, and pointed to the importance of involving the ICRC in this

  debate.

-   It was also pointed out that while the 1951 Convention is relevant to the question

of international protection, other international instruments may also afford a remedy     depending on the situation; for instance , the Fourth Geneva Convention is crucial for protection in the 1967 OPT. In the case of Lebanon and Syria, efforts based on human rights conventions (e.g. ICCPR, ICESCR) may be even more important.

-     It was pointed out that Article 85(4)(b)  of the First Additional Protocol (Protocol I) of 8

June 1977 to the four Geneva Conventions identifies ‘unjustifiable delay in the repatriation of prisoners of war or civilians’ as a grave breach/war crime. This provision has not yet been made use of sufficiently for advancing legal arguments supporting Palestinian refugees’ right of return.

On the current situation of protection of Palestinian Refugees outside UNRWA’ area of operations:

-           What about current efforts by Canada to deport Palestinian refugees?

Canada has not incorporated Article 1D/1951 Convention into its national legislation so the matter is not one of interpreting this Article. The case there is one of Palestinians who came to Canada via the United States. Canada is now trying to return them to the US where they will be detained. There is a campaign to stop these deportations. Canada is a good case – as groups have been working to raise awareness of possible interpretations of Article 1D, a debate has been started. Many of the Immigration Board members had not been aware of this.

-           It could also be argued that there is a de jure protection gap everywhere (i.e., both within UNRWA jurisdictions and without), due to the current narrow (and hence arguably incorrect) interpretations of Article 1D by national authorities.

-           There are important questions that must be addressed, such as: what are the results of past advocacy efforts around Article 1D? How do we deal with states that have not incorporated Article 1D? What are the implications of the paradigm shift that occurred after September 11 in domestic law, especially in Canada, the US and Britain, regarding security issues and detention of asylum seekers?

-           Existing litigation on prohibition of detention of asylum seekers should be explored.

-           The problem of ‘airport refugees’ was raised. While it is true that the phenomenon is

found not only among Palestinian refugees, one speaker questioned whether Palestinians were more vulnerable to this fate. Refugees have been forced to spend days, months and years trapped between airports as no country will accept them.

-           Response by a speaker of the UNHCR, re: current situation of protection: While it is agreed that the findings of the research presented by BADIL do not show a favorable situation, UNHCR hopes that the refined interpretation of Article 1D as elaborated in its recent Note of 2002 will begin to have impact. The Parliamentary Assembly of the Council of Europe in the spring of 2003 adopted Recommendation 1612 (2003) on the Situation of Palestinian Refugees, paragraph 10 of which recommends that the Committee of Ministers calls on Member States to review their policies in respect of Palestinian asylum seekers, with a view to effectively implementing UNHCR’s new guidelines published in 2002; and to ensure that where Palestinian refugees are legally recognized, they should be entitled to all benefits of socio-economic rights, including family reunion, normally accorded to refugees in these member states. The BADIL Handbook will be a useful tool to see where we are with regard to state practice. It is important for UNHCR to work in partnership with NGOs and civil society, and to enter into dialogue, so that together we can work to encourage states to implement the provisions of the 1951 Convention.

On the 2002 UNHCR Note on the Applicability of Article 1D of the 1951 Refugee Convention to Palestinian Refugees, participants made the following comments:

-           Even the new 2002 UNHCR  Note on the Applicability of Article 1D to Palestinian refugees remains ambiguous on some issues, such as the precise meaning of ‘when such protection or assistance has ceased for any reason:’ What about persons who can go back to countries of UNRWA operation? Does persecution have to be assessed in the case of refugees included by Article 1D/paragraph 2?

-           Criticism of the language of the 2002 UNHCR note was raised in particular with regard to the following:

            a) It is problematic to define groups of refugees according to whether or not they had left ‘the area of Palestine that became Israel,’ because Israel does not have internationally recognized borders until today, and because the area of Israeli sovereignty or effective control has changed over time (e.g. post 1967 annexation of East Jerusalem and the Golan Heights). A better alternative would be to define Palestine refugees as persons displaced from the area of British Mandate Palestine.

            b) The reference in the UNHCR note to 1967 displaced persons who are registered with UNRWA is a mistake, because UNRWA never registered these people.

            c) Regarding the 3^rd group of Palestinian refugees entitled to the benefits of the 1951 Convention under Article 1A (well founded fear of persecution), it is not clear why this should include only persons from the 1967 OPT. There may be also Palestinians in other countries (e.g. Jordan, Lebanon, Syria), who are not covered by Article 1D and in need for protection based on persecution.

            d) There is a need for further interpretation about the applicability of the cessation or exclusion clauses 1C and 1E, because passports and travel documents issued by Arab host states do not per se indicate citizenship, but should rather be seen as a form of temporary protection. There are so many types of ‘citizenship,’ and even in Jordan it can be argued that citizenship gives a non-Palestinian Jordanian many more rights than a Jordanian of Palestinian origin. The level of effective protection must be examined much more than formal status. Wouldn’t lack of effective protection, for example, prevent a Palestinian refugee from being returned to a country of UNRWA operation?

-           Response by a UNHCR speaker, re: Article 1D:

a) Article 1D of the 1951 Convention was drafted at a time when Palestine was on the mind of the drafters, however, this article could possibly apply to other groups, and has in the past. At present, it is only relevant to Palestinian refugees.

b) It is UNHCR’s position that no assessment of persecution under Article 1A (2) is necessary for Palestinian refugees who are found to fall within the scope of the second paragraph of Article 1D.

c) UNHCR interprets Article 1D of the 1951 Convention to be applicable to two groups of Palestinian refugees: ‘Palestine refugees’ displaced from that part of Palestine which became Israel, and ‘displaced persons’ who have been unable to return to the Palestinian territories occupied by Israel since 1967. To define ‘Palestine refugees’ as those displaced from the area of British Mandate Palestine would be incorrect. In addition, not all those who qualify as Palestinian refugees can benefit from the provisions of the 1951 Convention because of the exclusion or cessation clauses contained in that instrument.  The Convention does not apply to persons who have committed serious crimes (Article 1F), as well as those persons who are recognized by the competent authorities of their country of residence as having the rights and obligations which are attached to the possession of nationality of that country (Article 1E, a provision which has rarely been used). Moreover, the Convention ceases to apply to persons who have acquired a new nationality and who enjoy the protection of the country of his or her new nationality (Article 1C).  However, exclusion or cessation must be determined on a case-by-case basis.

d) On the issue of returnability: In order for a Palestinian refugee to be returned to his/her country of former habitual residence, the person must be able to return (i.e. the state must accept re-admission) and willing to return. The latter is directly related to the level of protection available in the country of former habitual residence, i.e. it is a matter of assessment. UNHCR is planning to issue more public information about the current situation of Palestinian refugees in areas of UNRWA operation.

On an alternative interpretation of Article 1D:

-           Based on a different interpretation of the international protection regime, the question of whether or not a person is present in a country of UNRWA operation is irrelevant to the determination of his/her status under the 1951 Convention. UNCCP protection has ceased for all refugees, therefore all Palestinian refugees are entitled to protection under the 1951 Convention. This alternative interpretation is being promoted by Susan Akram and is being tested in courts. In Australia and the UK, two decision have adopted this interpretation : the Federal Court of Australia decision of Minister for Immigration & Multicultural Affairs v. Quiader (Oct. 2001); and the U.K Adjudicator decision of Isam El-Issa v. Secretary of State for the Home Department (Feb. 2002).

On the current situation of Palestinian refugees in Arab host countries, UNRWA’s area of operations and Iraq some participants noted:

-           What has happened to Palestinian refugees from the first Gulf War who were put in camps on the Kuwaiti-Iraqi border? The UNHCR speakers promised to follow up on this question.

-           Temporary protection in Arab states changes with regime change. The case of Iraq is a good example for this fact. It is the responsibility of the occupying power in Iraq now to provide protection for Palestinian refugees there.

-           Particularly vulnerable groups of Palestinian refugees were identified as: refugees in Iraq, Lebanon (those not registered with UNRWA, but only with the Department for Palestinian Affairs or not at all); Gaza refugees in Jordan, refugees in Egypt and the 1967 OPT.

-           It was noted that in Arab states Palestinian nationality was a more important cause for problems and lack of protection than the actual refugee status of Palestinians there.

-           It was also noted that theory and practice quite different. Some Arab states which signed the 1951 Refugee Convention and or the 1965 Casablanca Protocol fail to fulfill their obligations, while others who did not sign on to these instruments in practice fulfill many of their obligations.

-           Participants encouraged UNHCR to give widest possible publicity to its opinion that Iraq was not yet safe enough for refugees to return. This because some countries, such as the United States and Netherlands, hold that refugees from Iraq can be sent back.

-           UNHCR referred to the Update to the International Protection Response to Asylum Seekers from Iraq that has first been issued on 7 March 2003, and has since then been regularly updated. It requests that governments uphold the ban on forced returns to all parts of Iraq given the precarious security situation and the lack of monitoring capacities on the ground and recommends that States continue to grant a temporary form of protection (outside of the context of mass influx, this would mean a complementary form of protection) to Iraqi asylum seekers, including rejected cases. It further provides guidance for States that decide to resume individual decision-making on Iraqi asylum claims. The Update has been shared with all relevant governmental and non-governmental counterparts.

On the debate about Palestinian ‘statelessness:’

-           Concern was expressed over language describing Palestinians as ‘stateless’, because they are sovereign Palestinian nationals under the League of Nations at least as of 1924. Other participants replied that it was possible to reconcile the historical legal argument for Palestinian sovereignty and ‘statelessness’ under the 1954 and 1961 Statelessness Conventions, because the 1954 Convention provides a legal definition for a stateless person as being someone “who is not considered as a national by any State under the operation of its law.” It was also noted that more research and clarification of this issue was necessary, in order to clarify the relationship between nationality and statelessness.

On the importance of linking protection to durable solutions based on the right of return:

-           Several participants expressed concern about a too narrow focus on ‘filling gaps’ and temporary solutions. It was raised that a durable solution is essential and the main protection, and that a durable solution must be based on the right of return and self-determination. UNHCR speakers commented that even if Palestinian refugees are found to be no longer entitled to the benefits of the 1951 Refugee Convention, this does not preclude that they remain ‘Palestine refugees’ or ‘displaced persons’ whose position is yet to be settled definitively in accordance with the relevant UN General Assembly Resolutions.

-           Is there something in legal theory that could explain how the issue became hostage to politics? Is there something in the legal tradition that could explain why and how these international institutions became paralyzed? What has prevented Palestinian refugees from laying claim to property? Why are Western states not more interested in pursuing international law? Lex Takkenberg noted that there was no obvious legal answer to this question. At the same time, it is clear that already in the early days after the 1948 war, international pressure changed from pushing for the right to return to working on addressing compensation for refugees. The international community decided collectively that the ‘right of return’ approach was not going to be forced, so emphasis was moved on to processing property claims. It is unclear why this approach was dropped by UNCCP in the early 1950s, and why property archives have been allowed to rot, only to be uncovered and documented in Michael Fischbach’s recent book. (Michael R. Fischbach, Records of Dispossession, Palestinian Refugee Property and the Arab-Israeli Conflict, 2003, Institute of Palestine Studies & Columbia University Press).

On fundamental alternatives to the ideas proposed in the debate:

-           While the majority of participants agreed that efforts for closing current protection gaps should be advanced in the framework debated above, two participants raised fundamentally different suggestions: (i) Previous efforts at advancing protection and durable solutions have failed. The whole issue should, therefore be referred back to the UN Trusteeship Council with a request for a new framework for protection; (ii) UN agencies are not the proper forum, because the right of return addresses the right of a nation, while UN agencies can only address the needs and rights of individuals.

-           The latter was strongly contested by participants, who argued that to the contrary, the UN and/or its agencies also have a mandate over minority groups, refugee groups and indeed nations. The principle of voluntary repatriation as a durable solution is regularly invoked by UNHCR in respect to groups of refugees, whether recognized as refugees under the 1951 Convention or otherwise of concern to the agency.  A UNHCR delegate explained that it was not correct to say that UNHCR only works on individual cases and not with groups of refugees. While remaining non-political, the agency advocates with States to create the conditions conducive for refugees to return. When there is a mass displacement, people are often recognized as refugees on a prima facie basis without an individual examination of their reasons for fleeing. In terms of voluntary repatriation, UNHCR seeks, in cooperation with States a solution where all refugees, and not just specific individuals, have the possibility to return in safety and dignity.

On the importance of lobbying by civil society:

-           According to some participants, it seems rather irrelevant whether or not states sign up to international law and human rights conventions, regimes will continue to do as they please. This demonstrates the importance of civil society intervention, which can be more effective than the international community and the signing of conventions which end up being ignored. If mechanisms of international legal protection have failed, campaigners must think of new ways to give civil society a larger role in demanding protection.

2.  ROLES AND PERSPECTIVES OF INTERNATIONAL, REGIONAL AND NATIONAL ACTORS

(Session Two, 06-03-04)

Two working papers were presented as summarized below. Additional clarification was requested from UNHCR and ECRE, and their statements are summarized in this section.

2.1 A paper entitled ‘UNWRA’s Role in Protecting Palestine Refugees’ was presented by Harish Parvathaneni, Chief, Policy Analysis Unit, UNWRA Headquarters: All persons have the same basic human rights, but refugees require international protection because there is no state authority to provide this critical function. UNHCR developed in the years following WWII when the world was facing an unprecedented refugee crisis. Just prior to the creation of UNHCR, the UN General Assembly established a series of ad hoc bodies to provide relief and assistance and to seek durable solutions for the Palestinian refugees, such as the United Nations Conciliation Commission for Palestine (UNCCP) and finally the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNWRA).

The speaker argued that the assistance and durable solutions mandate for Palestine refugees remained with these ad hoc institutions for political reasons, and they were excluded from the global protection regime administered by UNHCR, particularly the 1951 Refugee Convention. The speaker further argued that at no point has the international community attempted to incorporate Palestine refugees into the global refugee protection system. This approach has resulted in much lower levels of protection for Palestinians than other refugees.

The Protection Gap: Mechanisms of international refugee protection have evolved globally in a manner that has constantly challenged the state-centered foundation upon which the international system was founded. Yet, the international community’s approach to protecting Palestine refugees has not sufficiently evolved in accordance with universal protection practices. Efforts of UNHCR to provide protection to refugees outside UNWRA’s areas of protection have been thwarted by the way in which states have interpreted the 1951 Convention. UNCCP was expressly charged with facilitating the search for durable solutions and the provision of protection to Palestine refugees, while UNWRA was specifically mandated to provide essential humanitarian and relief assistance, not protection. Yet UNCCP neither succeeded in repatriating or compensating refugees. Cataloguing of property records of Palestine refugees was completed in 1964, and UNCCP has not made any contribution towards protection since then.

UNRWA activities have developed from efforts at refugee integration through works programs to efforts at human development. Starting from the 1967 Israeli occupation of the West Bank and Gaza Strip, UNRWA has engaged in ‘passive protection.’ This role has been expressly affirmed by the UN General Assembly since the 1982 Israeli invasion of Lebanon. ‘Passive protection’ has been provided by UNRWA also during the first and second intifada by means of special programs and is an integral component of its services in the field of health, education and social welfare.

Political Challenges: It is the international position that the Palestinian refugee question must be resolved in the context of an overall solution to the Israeli-Palestinian conflict. Successful resolution of a conflict requires either support and will of the international community as manifest in the Security Council, or the political will of the parties directly involved in the conflict. In the context of the Palestine refugees, neither of these conditions is present. The Security Council has failed to make a strong stand in the case of Palestinian refugees in comparison with its firm position on the right of return in other situations, such as East Timor and Bosnia-Herzegovina

Conclusion: Any approach to protecting Palestine refugees and implementing a just and durable solution must begin by acknowledging and dealing with the root of their problem: the unresolved territorial conflict and the denial of the right of the Palestinian people to self-determination, including statehood, prolonged occupation, settlement construction and consequent dispossession and exile. An international protection regime already exists in form of the relevant legal principles related to the rights of protected persons.

The need for meaningful protection is greatest in the 1967 OPT, mainly in terms of physical protection. Major progress depends on a clearer and stronger position to be taken by the international community. In the short term, focus must