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BADIL Occasional
Bulletin No. 01 International Protection - Overview and Special Protection for Refugees This Bulletin aims to provide a brief overview of issues related to Palestinian Refugee Rights International law, the system of law that governs actions by states, defines the basic rights accorded to all persons. These rights stem from at least three bodies of international law: human rights law (1948 Universal Declaration of Human Rights, the two international covenants, commonly referred to as the 1966 "International Bill of Rights", a.o); humanitarian law which governs the actions of state in time of war and/or military occupation (1907 Hague Regulations, 1949 Geneva Conventions and the additional 1977 Protocols thereto, a.o.); and, as a sub-set of human rights law, the law concerning refugees and stateless persons (1950 Statute of the UNHCR, 1951 Convention Relating to the Status of Refugees and companion 1967 Protocol, the 1954 and 1961 Statelessness Conventions, a.o.).
Protection of the basic rights of individuals as delineated by these three inter-related bodies of law is a primary responsibility of the United Nations and its individual member states. This mandate emanates from the 1945 Charter of the United Nations, Article 1(1), which establishes the purpose of the UN as being: "to maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace."
The United Nations system provides for a wide variety of mechanisms for the implementation of international law and protection of the rights defined therein. These mechanisms include at least the following:
(1) Gathering and receiving information/complaints on the compliance of individual state parties to the various conventions administered under UN auspices through UN organs such as the UN Commission on Human Rights (e.g., international inquiries, special rapporteurs) and other treaty bodies (e.g., the Committees on Civil and Political Rights; Economic, Social, and Cultural Rights; Elimination of All Forms of Racial Discrimination, a.o.); the Office of the UN High Commissioner for Refugees (UNHCR); and the UN General Assembly and Security Council. Individuals and non-governmental/private organizations can play an important role in providing information to the various UN organs, creating international awareness, and calling for redress where rights have or are being violated. Reports submitted to the various UN organs over the past several years have raised the profile of Palestinian rights and have resulted in more thorough probing of Israel's non-compliance with treaties to which it is a signatory.
(2) Calling upon states to comply with international law and facilitating agreements to effectuate the rights defined and affirmed therein through the various UN organs mentioned above (1). This is most often implemented through resolutions and, in the case of the UNHCR, tripartite agreements with the state of origin and state of asylum to expedite the voluntary return of refugees to their homes. Repeated affirmation of Palestinian rights by a wide variety of UN organs, including the Security Council, General Assembly, Economic and Social Council, and Commission on Human Rights are grounded in customary norms of international law, which are, accordingly, binding upon all states, including Israel.
(3) Adjudication of disputes, where rights are being violated, through bodies such as the International Court of Justice (ICJ), which exercises jurisdiction over disputes between states according to the terms of the UN Charter and the Statute of the ICJ. For example, in an ICJ advisory opinion of 1971, requested by the UN Security Council, the ICJ found South Africa's military occupation of Namibia to be illegal and held that member states of the UN were under an obligation to refrain from any acts and, in particular, dealings with South Africa that implied recognition of the legality of the occupation or provided support and assistance to it. A second type of protection, less immediate though it may act as a type of restraining mechanism, are the war crimes tribunals for prosecution of violations of international law, as established by Security Council resolutions in the recent cases of the former Yugoslavia, and Rwanda, as well as the permanent international criminal law regime which is contemplated under the 1998 Rome Statute for the International Criminal Court (ICC). The UN Commission on Human Rights has considered Israel's continued "grave breaches" of the 1949 Fourth Geneva Convention as rising to the level of war crimes since 1972 and recently reaffirmed this view during a Special Session of the Commission in October of this year.
(4) International intervention when violations persist. Member states acting alone, or in concert under regional or security umbrellas such as the OAU, NATO, and the OSCE, etc. may choose to enact a variety of political, legal, or economic sanctions against offending parties. Protection against "threats to the peace, breaches of the peace, and acts of aggression" may be activated by the UN Security Council under Chapter VII of the UN Charter. This includes both sanctions as well as armed international protection forces. The UN Commission on Human Rights has previously called for the Security Council to endorse Chapter VII intervention in the 1967 occupied territories to protect Palestinians against Israel's "grave breaches" of the Fourth Geneva Convention. All High Contracting parties to the Fourth Geneva Convention are obligated by the express terms of the Convention itself to ensure compliance of state parties to the Convention, particularly with respect to grave breaches.
Relevance for the Palestinian Case
Each of these bodies of international law - human rights law, humanitarian law, and refugee law - are relevant to international protection in the Palestinian case. Despite a large body of information that documents gross, systematic, and persistent violations under all three bodies of law, as well as declaratory resolutions calling upon Israel for compliance, including GA Resolution 194, SC Resolution 242 and recommendations for Chapter VII intervention, the United Nations and its member states have failed to effectuate international protection for the Palestinian people. This is so mainly, as noted by the UN Commission on Human Rights in 1992, because of the "military, economic, and political support given by some States [e.g. the US and some European allies] to Israel, which encourages and supports Israel in its aggressive and expansionist policies." The failure to effectuate international protection of the rights embodied in international law for the Palestinian people represents a serious violation of the purposes and principles of the UN as defined in its Charter, and at base, is the cause of the collapse of the Oslo process, the Palestinian uprising, and the high number of Palestinian deaths (martyrs) (more than 160, of whom some 1/3 are children), injuries (more than 5,000), and property damage inflicted by Israel over the past month as confirmed in an increasing number of reports by international human rights organizations such as Amnesty International, Human Rights Watch, and Physicians for Human Rights.
International Protection for Palestinian Refugees
This violation by the United Nations and its member states of fundamental obligations under the UN Charter is particularly glaring in the case of Palestinian refugees who should be provided in accordance with international refugee law. Refugees, in general, are recognized as vulnerable persons in need of specific types of international protection to guarantee those rights normally protected by the state of residence or citizenship. There are two levels of international refugee protection: (a) the protection of refugees' human rights on a day-to-day basis (including physical safety, freedom of movement [identity papers and travel documents], access to employment, basic housing, welfare, education, labor and security rights, and freedom of religion); and, (b) the search for and implementation of durable solutions for refugees based on individual choice (including the right of return and restitution/compensation, or resettlement).
Most refugees receive international protection, as defined by the 1951 Convention Relating to the Status of Refugees, from the Office of the United Nations High Commissioner for Refugees (UNHCR). Under the Statute of the UNHCR, some protection duties include: (a) promoting ratification and implementation of conventions for the protection of refugees; (b) assisting governmental and private efforts to promote durable solutions, including voluntary repatriation; and (c) seeking to obtain permission for refugees to safeguard, manage, and access their assets.
In the case of Palestinian refugees, there is no international body at present that provides full protection. The UN Relief and Works Agency (UNRWA) has, on an ad hoc basis, as during the first intifada, assumed limited day-to-day protection functions by monitoring and reporting violations, and making interventions to Israel. The UN Conciliation Commission for Palestine (UNCCP), the body established by the UN under Resolution 194 to provide protection for Palestinian refugees ceased to work for the implementation of both levels of protection in the early 1950s. No other international body has stepped in to fill the vacuum left by the cessation of UNCCP protection, despite provisions in the 1951 Convention Relating to the Status of Refugees for the activation of the UNCHR, which should apply in this context.
The impact of this vacuum on a day-to-day basis is evident after a month of Palestinian uprising and Israeli repression in the occupied Palestinian territories. Palestinian refugee camps have been hit by Israeli helicopter gun-ships and tanks, surrounded and shot at by both the Israeli military and Israeli settlers. Freedom of movement to reach places of employment, education, and medical care has been denied. A significant number of Palestinians killed and injured, including a large number of children, are refugees. To whom do Palestinian refugees turn for protection? Moreover, what international body is responsible for the protection, promotion, and facilitation of the right of Palestinian refugees to repatriation, restitution and compensation according to Resolution 194 and the larger body of international law?
Recommendations
Based on resolutions of the UN General Assembly and Security Council, and the Special Summit of the Arab League (Cairo, 21-22 October 2000), the Palestinian delegation to the United Nations and Arab states have launched two initiatives which require approval by the UN Security Council: the deployment of an international protection force for the Palestinian people in the 1967 occupied territories; and, the establishment of a special war crimes tribunal for prosecution of Israeli violations of humanitarian law. In addition, Palestinian NGOs have appealed to the High Contracting Parties to the Fourth Geneva Convention to take measures, which can ensure Israel's compliance to the regulations of the Convention.
While these initiatives could effectuate immediate protection for the Palestinian people in the 1967 occupied West Bank and Gaza Strip, their approval remains in doubt as long as the United States and some European states maintain their unconditional support for Israel, support which violates their own obligations under the UN Charter and the three bodies of international law. A concerted and sustained effort by the PLO, the Palestinian Authority, the Arab League and Arab states, and governments supportive of Palestinian rights is required in order to: change the current unfavorable balance of forces in the powerful international organs, ensure that any international UN protection force is fully empowered to intervene to provide protection (unlike the Temporary International Presence in Hebron - TIPH, which is mandated only to monitor and report violations); and guarantee that any future negotiations are consistent with international law and relevant UN resolutions.
Palestinian, Arab, and international non-governmental organizations and the solidarity movement can encourage and facilitate such concerted effort by:
1. Conducting broad public awareness campaigns about Palestinian rights anchored in international law and UN resolutions (especially UN resolutions 181, 194, and 242) as well as Israeli violations of these international standards. An initial set of recommended references is attached below. [The full text documents are available on the BADIL website: www.badil.org/Refugee/Protection/overview.html]
2. Engaging in a sustained effort of reporting of Israeli human rights violations to the UN Commission of Human Rights (CHR) and other treaty bodies, accompanied by extensive media dissemination of reports and resolutions issued by these UN organs. Of particular relevance are resolutions of the CHR, the 1998 Concluding Observations of the various UN human rights treaty bodies, and recent reports of the CHR Special Rapporteur. [Documents are available on the BADIL website] Media strategies should be considered to maintain maximum public visibility on the upcoming UN Commission on Human Rights international inquiry commission to the occupied territories.
3. Empowering the Palestinian community in Palestine and in exile to mobilize, advocate and lobby on behalf of their rights. Recent successful efforts by refugee students in Lebanon to lobby for UNRWA secondary schooling, combined with support from Palestinian, Arab, and international non-governmental organizations, is one example of a successful strategy for empowering the Palestinian refugee community.
4. Lobbying governments, policy makers, and their policy advisors to take a clear stand in favor of Palestinian rights, as defined by international law and UN resolutions. Individuals and organizations should examine the voting record in the UN and policy statements of their governments and question votes and statements that are not consistent with those rights defined by international law. [An initial review of the US voting record in the UN Commission on Human Rights is available on the BADIL website with further analysis of other states forthcoming]
5. Launching a special lobby effort aimed at making UN organs and mechanisms accessible to especially vulnerable sectors of the Palestinian people (refugees, internally displaced persons, and the Palestinian community in occupied eastern Jerusalem and inside Israel) who have remained excluded from the international protection system. Lobby efforts regarding the need for an international protection agency for Palestinian refugees should be addressed in particular to UNRWA, UNHCR, and the ICRC, calling for immediate joint consultations in the UN and with other relevant international agencies towards implementation of refugee protection.
6. Encourage experts to provide research and legal expertise in order to support governmental and non-governmental efforts in professional lobbying of UN organs and the submission of legal petitions (e.g., ICJ; regional and domestic courts, and special war crimes tribunal). [An initial list of research topics is available on the BADIL website]
Selected Recommended References (BADIL Website):
General Protection - Charter of the UN, 1945, Article 1(1) (UN mandate to maintain international peace and security according to international law) - UN Commission on Human Rights Resolution No. 3 (XXVIII), 22 March 1972 (recognizing Israel's grave breaches of the Fourth Geneva Convention as constituting war crimes) - UN Commission on Human Rights Resolution No. 1984/1, 20 February 1984 (calling for UN Chapter VII intervention to protect Palestinians in the occupied West Bank, East Jerusalem, and Gaza Strip) -UN Commission of Human Rights Resolutions No. 2 (XXXVI), 14 February 1980 and No. 1992/4, 14 February 1992 (affirming that negotiations and any peace agreement must be consistent with international law) - CHR Report - Special Rapporteur, October 2000 (documenting Israel's widespread human rights violations and the absence of a human rights framework in the Oslo process)
Refugee Protection - UN General Assembly Resolution 194(III), 11 December 1948 (right to return, restitution, and compensation) - UN Sub-Commission on Prevention of Discrimination and Protection of Minorities Resolution E/CN.4/SUB.2/RES/1998/26, 26 August 1998 (Housing and property restitution in the context of the return of refugees and internally displaced persons) - 1998 Concluding Observations of the UN Committees on Economic, Social and Cultural Rights, and on the Elimination of All Forms of Racial Discrimination (reaffirming the right of return and restitution and calling into question Israel's 1950 Law of Return, Absentees' Property Laws, and 1952 Status Law devolving responsibility for implementing discriminatory land management policies upon private, "parastatal" entities.) - UN Guiding Principles on Internal Displacement E/CN.4/1998/53/Add.2 (right of return, restitution and compensation) © 1999-2004 www.badil.org unless otherwise noted. This page may be copied, distributed and reprinted for informational purposes. To republish material from the BADIL website please add the author's name where applicable and the following credit: "Reprinted with permission of BADIL Resource Center for Palestinian Residency and Refugee Rights. For more information visit the BADIL website, www.badil.org." Please send us an email if you republish material from the BADIL website so we can more effectively monitor use and distribution of BADIL materials. BADIL Resource Center for Palestinian Residency and
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