PALESTINIAN REFUGEES

Closing the Gaps: Between Protection and Durable Solutions

Inter-Agency and NGO Efforts to Make the

International Refugee Regime Relevant for Palestinian Refugees

A Memorandum Prepared by BADIL Resource Center

For the

UNHCR Pre-Excom NGO

Geneva, Switzerland, 28-30 September 2004

1. Background: Palestinian Refugees

1.1               The Palestinian refugee issue is the largest and one of the oldest unresolved refugee problems worldwide. At the end of 2003 it is estimated* that two-thirds of the Palestinian people worldwide are refugees. This includes: (a) 5.3 million refugees and their descendents who were displaced in 1948 – 4.1 million of whom (‘Palestine refugees’) are registered with the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) for assistance; (b) approximately 780,000 refugees (‘displaced persons’) and their descendents from the West Bank--including eastern Jerusalem--and the Gaza Strip displaced for the first time in 1967; and, (c) approximately 750,000 Palestinian refugees and their descendents from the 1967 occupied territories who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, are outside the 1967 occupied Palestinian territories and are unable (due to revocation of residency status, deportation, denial of family reunification, etc.) or, owing to such fear, unwilling to return there. It is our opinion that where host states are unable or unwilling to provide adequate protection consistent with relevant international and regional instruments, all of these individuals should be receiving protection from the international community, including in those jurisdictionsÆ where UNRWA operates under an “assistance” mandate. 

1.2               While there is an international consensus about the principles to be implemented in the framework of a durable solution of the Palestinian refugee problem (see, in particular, UN General Assembly Resolution 194/III (1948) calling for voluntary return, restitution of properties, and compensation, and UN Security Council Resolution 237 (1967) calling upon the Government of Israel to facilitate the return of those inhabitants of the West Bank and Gaza Strip who fled the hostilities), those Palestinian refugees wishing to do so have been unable to exercise a choice to return voluntarily to their homes of origin in safety and dignity. The Government of Israel opposes the return of refugees displaced in 1948 due to the ethnic, national and religious origins of the refugees and for security reasons. Israel’s protracted military occupation of the West Bank and Gaza Strip prevents the return of refugees displaced in 1967 and after to their homes of origin.

1.3               Due to specific political circumstances and legal interpretations (i.e. exclusion of Palestinian refugees from protection under the 1951 Convention Relating to the Status of Refugees) Palestinian refugees lack access to international mechanisms of rights protection available for all other refugee populations. Major reasons for the current protection gaps are: (a) lack of political support (political will) for a rights-based permanent solution by the parties to the conflict and members of the UN Security Council, especially permanent members of the Security Council; (b) states signatories to the 1951 Convention Relating to the Status of Refugees have not integrated Article 1D into domestic legislation and/or have not yet adopted interpretations of Article 1D that would provide protection; (c) limitations of the regional human/refugee rights regime in the Arab world; some Arab states signatories of the 1965 Casablanca Protocol, do not, in practice, implement its provisions; and, (e) the negative impact of regional and international politics on the ability of the PLO to provide effective diplomatic intervention and protection for Palestinian refugees. This ‘protection gap’ is significant, both with regard to the protection of Palestinian refugee rights in the context of a future durable solution to the Israeli-Palestinian conflict, and with regard to the protection of immediate economic, social, cultural, civil and political rights, as well as physical protection, in the context of exile.

2. BADIL Recommendations to the 2004 Pre-ExCom Meeting

2.1               Four years ago BADIL Resource Center, in conjunction with Palestinian and international experts and agencies, launched an initiative aimed at reviewing the current ‘protection gap’ concerning Palestinian refugees in the search for remedies to: (a) re-affirm, within the specific framework of UNGA Resolution 194/III and UNSC Resolution 237, existing international law and standards applicable to all other refugee groups; and (b) provide the basis for the application of international mechanisms of refugee rights protection to the Palestinian refugee case. BADIL considers the current Pre-ExCom Meeting to be a unique opportunity to broaden and deepen our dialogue with expert partners.

2.2               Positive developments since 2000 towards rectification of the current ‘protection gap’ concerning Palestinian refugees include: (a) UNHCR’s revised interpretation of the status of Palestinian refugees under Article 1D of the 1951 Convention Relating to the Status of Refugees (see, ‘Note on the Applicability of Article 1D of the 1951 Convention Relating to the Status of Refugees to Palestinian Refugees); (b) increased co-ordination between UNHCR and UNRWA based on existing mandates in addressing the protection problems faced by Palestinian refugees; and, (c) recommendation by the Council of Europe (Parliamentary Recommendations 1338, 25 June 2003) calling upon members states to review their policies in respect of Palestinian asylum seekers, with a view to effectively implementing UNHCR’s new guidelines on the applicability of the 1951 Refugee Convention to Palestinian refugees.  Among others, the CoE recommends harmonization of Council of Europe member states' policies in this respect, calls upon member states to ensure that Palestinian refugees who are legally recognized have access to all benefits of socio-economic rights, and calls for the organization of an international conference devoted entirely to the question of Palestinian refugees. (CoE Recommendations 1338, relevant items of paragraphs 9 – 11 are attached in full as annex-1 to this memorandum.)

2.3               Specifically, BADIL asks participants at this Meeting to consider the following recommendations:

2.3.1          Countries which have not yet incorporated Article 1D into national legislation should do so in accordance with their international obligations; Palestinian refugees should be recognized as refugees under Article 1D as recommended by UNHCR and the Council of Europe; countries which do not recognize Palestinian refugees as such should at least grant them a complementary form of protection which entitles them to a formal legal status and basic civil rights; and, Palestinian refugees should not be returned to countries in which there is no guarantee of effective protection;

2.3.2         The Council of the European Union should review its 1996 Joint Position regarding Article 1D of the 1951 Refugee Convention in light of the 2002 UNHCR Note on the Applicability of Article 1D of the 1951 Convention Relating to the Status of Refugees to Palestinian Refugees. The 1996 EU Council’s Joint Position according to which “any person who deliberately removes himself from the protection and assistance referred to in Article 1D of the Geneva Convention is no longer automatically covered by that Convention,” is based on an inaccurate reading of the law. The EU Council should therefore seek issuance of a new Joint Position that complies with proper interpretation of Article 1D.

2.3.3         UNHCR should continue efforts to enhance legal protection available to Palestinian refugees, including further clarification on the issue of ‘returnability’; UNHCR, UNRWA and other UN agencies, as well as NGOs and refugee community organizations, should continue with a sense of urgency the constructive debate about principles and mechanisms, which could enhance the scope and quality of international protection for Palestinian refugees. Such debate must establish exactly the scope and magnitude of the protection gaps faced by Palestinian refugees and tackle the question of how and by whom the protection gaps should be closed;

2.3.4         UNHCR, UNRWA and other UN agencies, as well as NGOs and refugee community organizations, should work together with states members of the Arab League to strengthen regional instruments and related mechanisms for monitoring protection of refugees as part of a wider effort to close the gap between protection and durable solutions for Palestinian refugees, in particular, and refugees in the Arab world in general. Further development of regional instruments to address the specific nature of mass displacement in the Arab world should be viewed as part of a concerted effort to lay the groundwork for national authorities to accede to the 1951 Convention Relating to the Status of Refugees and the statelessness conventions.

2.3.5         International assistance, protection and the search for durable solutions consistent with international law and relevant UN resolutions are part of a continuum and should not be seen in isolation. While addressing the immediate ‘protection gap’ relative to Palestinian refugees, the United Nations and the international community should engage in parallel efforts to ensure that Palestinian refugees have access to durable solutions to their plight based on international law, including the right to voluntarily return to their homes of origin in safety and dignity.

2.3.6          European NGOs, including the European Council on Refugees and Exiles (ECRE), should encourage the Council of Europe to follow-up on its 2003 recommendations, in particular organization in 2005 of an international conference dedicated entirely to the question of Palestinian refugees. Such a conference would provide the appropriate platform for an in-depth study by state, UN, and NGO actors, of current protection gaps as well as concrete and concerted efforts for their remedy.

ANNEX  I

Council of Europe, Parliamentary Assembly

The Situation of Palestinian Refugees, Recommendations 1612 (2003)

Paragraph 9: The question of the legal status of the Palestinian refugees outside the region remains a point of concern. Yet, legal status is essential for the legal, social and economic situation of persons in general, and Palestinian refugees are at a clear disadvantage in this respect and must therefore be given a recognized legal status.

Paragraph 10: Accordingly, the Assembly recommends that the Committee of Ministers calls on Council of Europe members states:

i.                     to review their policies in respect of Palestinian asylum seekers, with a view to effectively implementing United Nations High Commission for Refugees’ (UNHCR) new guidelines published in 2002 on the applicability of the 1951 Convention relating to the Status of Refugees;

ii.                   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 recognized refugees in these member states;

iii.                  to include the information on the Palestinian origin in the statistics concerning asylum seekers and refugees;

iv.                  to support the activities of UNRWA by providing or stepping up voluntary financial contributions to its budget; []

Paragraph 11: The Assembly recommends the Committee of Ministers:

i.                     to instruct the appropriate committee to examine the issues relating to the legal status of Palestinian refugees in Council of Europe members states, and come up with concrete initiatives to ensure that all Palestinian persons displaced from their homes of origin are provided with an appropriate legal status entitling them to all basic socio-economic rights;

ii.                   to review, with a view to recommending harmonization, Council of Europe members states’ policies in this respect, notably by effectively implementing UNHCR’s new guidelines published in 2002 on the applicability of the 1951 Convention relating to the Status of Refugees;

iii.                  to initiate the organization of an international conference devoted entirely to the question of Palestinian refugees;

iv.                  to promote research aimed at obtaining statistics concerning Palestinian refugees and their status in Council of Europe member states; []

ANNEX II – Supplementary Reading

BADIL Resource Center

Survey of Palestinian Refugees and Displaced Persons 2002. (2003 edition forthcoming)

Handbook on Protection of Palestinian Refugees in States Signatories to the 1951 Refugee Convention (forthcoming)

BADIL Information & Discussion Briefs

(available at, www.badil.org/Publications/Briefs/I&D_Briefs.htm), including:

• Brief No. 1: Reinterpreting Palestinian Refugee Rights Under International Law, and a Framework for Durable Solutions (Susan M. Akram, February 2000)

• Brief No. 2: Fora Available for Palestinian Refugee Restitution, Compensation and Related Claims (Susan M. Akram, February 2000)

• Brief No. 3: The Evolution of an Independent, Community-Based Campaign for Palestinian Refugee Rights (Ingrid Jaradat Gassner, February 2000)

• Brief No. 4: Temporary Protection and its Applicability to the Palestinian Refugee Case (Susan M. Akram, June 2000)

• Brief No. 5: The United Nations Conciliation Commission for Palestine, Protection, and a Durable Solution for Palestinian Refugees (Terry Rempel, June 2000)

• Brief No. 6: The UN Relief and Works Agency (UNRWA) and a Durable Solution for Palestinian Refugees (Terry Rempel, July 2000)

• Brief No. 8: Palestinian Refugees and the Right of Return: An International Law Analysis (Gail J. Boling, January 2001)

BADIL Legal Papers
(available at, www.badil.org/Publications/Legal_Papers/L_Papers.htm), including:

• The 1948 Palestinian Refugees and the Individual Right of Return: An International Law Analysis (Gail J. Boling, January 2001)

Other Publications

Susan M. Akram and Terry Rempel, “Recommendations for Durable Solutions for Palestinian Refugees: A Challenge to the Oslo Framework,” Palestine Yearbook of International Law, volumes #11 and #12 (for the years 2000/1), co-published by the Birzeit University Institute of Law and Kluwer Law International.

Susan M. Akram and Terry Rempel, “Temporary Protection as an Instrument for Implementing the Right of Return for Palestinian Refugees,” 22 Boston University International Law Journal 1 (Spring 2004): 1-162.

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