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Refugee Protection

Written by  BADIL Staff

A Critical Analysis of the Revised UNHCR Interpretation of the Status of Palestinian Refugees under International Refugee Law

During 2002 UNHCR launched a first initiative to address the obvious gaps (‘protection gap’) in the special protection regime for Palestinian refugees. The new UNHCR interpretation of the status of Palestinian refugees under the 1951 Refugee Convention was completed and published in October 2002. This brief analysis was prepared by BADIL in November 2002.

Since 1948 Palestinian refugees have called for international protection to enable them to exercise their right of return to homes and lands illegally expropriated by Israel. From places of exile in the Middle East, Europe, and elsewhere they have called for protection of their right to freedom of movement, family unity, access to education, work, and adequate housing. Too often, Palestinian refugees have raised desperate calls to the international community for protection from renewed forced displacement, collective punishment, arbitrary destruction of their properties, and war crimes.

The 1982 massacre at Sabra and Shatila (Beirut); Israeli human rights violations during the first Palestinian intifada in the occupied West Bank, eastern Jerusalem, and Gaza Strip (1987-1991); and mass expulsion from Kuwait and Libya in the early 1990s – all gave raise to new UN resolutions and initiatives to upgrade international protection for Palestinian refugees. These efforts, however, have not brought about substantial improvements. Serious gaps continue to exist in the protection of the day-to-day rights of Palestinian refugees in exile. The most severe problems are in Lebanon and the 1967 occupied Palestinian territories. Equally serious gaps exist in the search for durable solutions (i.e., return, restitution, and compensation) consistent with international law and UN resolutions. No agency is currently recognized as having an explicit mandate to provide international protection for Palestinian refugees. Confronted with massive Israeli military assaults against the civilian camp population in the current (second) intifada, Palestinian refugees from all areas of exile continue to call for international protection.

Five Decades of Exclusion

For more than five decades, the 1951 Convention relating to the Status of Refugees (‘Refugee Convention’) has provided a universal legal framework for international protection of refugees. Since 1950, the Office of the UN High Commissioner for Refugees (UNHCR) has served as the primary international agency mandated to provide protection for refugees.

To date, the majority of Palestinian refugees have derived few benefits from this international protection regime. UNHCR does not have a specific mandate to provide protection for Palestinian refugees. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, a major reference for policy makers and practitioners in the field of refugee law, has viewed Palestinian refugees primarily in terms of their exclusion from UNHCR mandate and concomitant protection.

UNHCR’s longstanding interpretation of the 1951 Refugee Convention as excluding Palestinian refugees (especially refugees residing in UNRWA areas of operation) has been based on the understanding that protection or assistance for Palestinian refugees was provided by the UN Relief and Works Agency (UNRWA). According to the 1951 Refugee Convention (Article 1D), persons receiving protection or assistance from an existing UN agency are excluded from the Convention until such time as protection or assistance has ceased for any reason. This interpretation did not distinguish between the protection mandate accorded to UN Conciliation Commission for Palestine (UNCCP), which ceased to provide protection in the early 1950s, and the assistance mandate of UNRWA.

 

Article 1D, 1951 Convention relating to the Status of Refugees

This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
 

The New UNHCR Interpretation – A Partial Remedy

The new UNHCR interpretation of the status of Palestinian refugees under the 1951 Refugee Convention includes some welcome changes, but only provides a partial remedy to the severe protection gaps in the special protection regime for Palestinian refugees. On the positive side, the new interpretation recognizes for the first time that Article 1D of the 1951 Refugee Convention also functions as an ‘inclusion clause’ for Palestinian refugees, thus providing access to the benefits of the Convention. Unfortunately, however, the new interpretation does not resolve the fundamental protection gaps for Palestinian refugees residing in UNRWA areas of operation (i.e., 1967 occupied Palestinian territories, Jordan, Lebanon, and Syria). The following paragraphs provide a brief analysis of the positive and negative aspects of the new UNHCR interpretation.

Positive Elements

On the positive side, UNHCR’s revised interpretation recognizes that Article 1D (second sentence) also functions as an “inclusion clause.” Previous reference to Article 1D in the UNHCR Handbook treated it only as an exclusion clause. According to the new interpretation, 1948 refugees (category “1”) and 1967 refugees (category “2”) are “Convention refugees” simply due to the fact that they belong to one of these groups (group refugee definition). UNHCR recognizes that members of this group do not need to prove individual persecution in order to be protected under the 1951 Refugee Convention. Proof of well-founded fear of persecution (Article 1A of the Convention; individual refugee definition) is required, however, for Palestinians from the 1967 occupied territories claiming refugee status (category “3”). The revised UNHCR interpretation should facilitate the harmonization and handling of protection requests submitted by Palestinian refugees/displaced persons to domestic state authorities.

Categories of Palestinian Refugees who Fall within the Scope of the 1951 Refugee Convention

The revised interpretation explicitly lists three categories of Palestinian refugees falling within the scope of the 1951 Convention:

(1) “Palestine refugees” within the sense of UN General Assembly Resolution 194 (1948), who were displaced from that part of Palestine which became Israel and who have been unable to return there;
(2) “Displaced Persons” within the sense of UN General Assembly Resolution 2252 (ES-V) of 4 July 1967, who have been unable to return to the Palestinian territories occupied by Israel since 1967; and.
(3) “Palestinian refugees”, who are neither 1948 refugees nor 1967 displaced persons, and are outside the Palestinian territories occupied by Israel since 1967 and unable, or unwilling, to return there owing to a well-founded fear of persecution.

Interestingly, the first category (“Palestine refugees”) implicitly includes 1948 internally displaced Palestinians in Israel. The implications of this interpretation will require additional clarification as many of the norms relating to the status of refugees in international refugee law guarantee equal treatment only with aliens in the country of refuge.

Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees. UNHCR (October 2002)

The revised interpretation should also contribute to ending the controversy over the “returnability” in domestic immigration services and courts of Palestinians otherwise eligible for protection under the 1951 Convention. The revised interpretation states that 1948 refugees (category “1”) and 1967 refugees (category “2”) are protected by the 1951 Refugee Convention as long as they reside outside the area of UNRWA operations. Based on Article 1D (paragraph 2) such persons do not need to prove that they are outside that area involuntarily. Finally, the revised interpretation explicitly recognizes that descendents of 1948 refugees (category “1”) and 1967 refugees (category “2”) are entitled to protection under the 1951 Refugee Convention, even if such descendents have never lived in an area of UNRWA operations. UNHCR thus affirms the refugee status and protection rights of Palestinians refugees and displaced persons as applied in previous UN resolutions and practice of UN agencies (e.g. UNRWA).

Negative Elements

The major shortcoming of UNCHR’s revised interpretation, from the perspective of millions of Palestinian refugees in need of protection, is the fact that the revised interpretation does not contribute to resolving the important question of: “Which agency is responsible for the provision of international protection to Palestinian refugees?” This is due, in large part, to the absence of a clear interpretation of the language “protection or assistance” in reference to the special UN regime for Palestinian refugees. The revised interpretation continues to use the phrase “protection or assistance” solely in relation to UNRWA without explicit reference to the protection mandate of the UN Conciliation Commission for Palestine (UNCCP) even though both UN agencies existed at the time of the drafting of the 1951 Refugee Convention. UNRWA only has an assistance mandate with limited protection options.

UNHCR appears to explain this interpretation by arguing that neither the UN General Assembly nor any subsequent UN resolution has specifically limited the scope of UNRWA’s mandate. It is equally true, however (and the results for Palestinian refugees are self-evident in most areas of exile), that neither the General Assembly nor any subsequent UN resolution specifically expanded the scope of UNRWA’s mandate to provide comprehensive protection to Palestinian refugees. The UNHCR interpretation is difficult to understand given the fact that early statements issued by the UN Refugee Agency clearly recognized the distinct mandates of the UNCCP and UNRWA.

The application of cessation clauses 1C, 1E, 1F under the 1951 Refugee Convention to 1948 refugees (category “1”) and 1967 refugees (category “2”) is especially problematic. Cessation clause 1E provides that protection under the 1951 Refugee Convention does not apply to persons who have obtained nationality/citizenship rights in another country. This interpretation disregards the fact that Palestine refugees and displaced persons are Convention refugees under Article 1D. According to Article 1D, protection by the Convention will cease only if “the position of such persons is definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations,” i.e. implementation of a solution in accordance with UN General Assembly Resolution 194. The revised interpretation is therefore inconsistent with the language and intent of the 1951 Convention itself. This interpretation could have dangerous political implications for Palestinian refugees who have obtained permanent residency/citizenship elsewhere, while still wishing to exercise their rights (return, restitution, compensation) in the context of a durable solution of the Palestinian refugee question.

The revised interpretation also fails to provide clear legal analysis on the status of Palestinian refugees as “stateless persons.” Stateless persons who are refugees are covered by the 1951 Refugee Convention. For stateless persons who are excluded from the coverage of the Refugee Convention, the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness provide an additional regime for protection under international law. Finally, the revised interpretation, which includes detailed information about UNRWA criteria and standards of refugee registration, does not critically reflect or comment on UNRWA’s policy of refugee registration according to descendants of the male line. Registration according to male lineage violates principles on non-discrimination and gender equality otherwise promoted by the United Nations.

Further discussion and debate amongst UNHCR, UNRWA, and other relevant UN agencies, as well as Palestinian civil society and its refugee community organizations, will be necessary to build on the positive aspects of UNHCR’s new interpretation of the status of Palestinian refugees in international law, and remedy the ongoing protection gaps that are not resolved by the new interpretation.

The original text of the new UNHCR interpretation (“Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian refugees”) is reprinted in the Document Section of this issue of al-Majdal. It can also be found at: www.badil.org/Protection/Documents/Protect_Docs.htm

Relevant background information can be found in BADIL Briefs No. 5 (UNCCP), No. 6 (UNRWA), and No. 7 (UNHCR) at: www.badil.org/Publications/Briefs/I&D_Briefs.htm

Additional Recommended Background Information:
(BADIL 's does not necessarily endorse all analysis contained therein)
• Lex Takkenberg: The Status of Palestinians in International Law; Oxford University Press, 1998.
• Susan Akram and Guy Goodwin-Gill: Brief Amicus Curiae, at: http://www.badil.org/Publications/Other/Refugees/amicus.pdf

 

BADIL Staff

BADIL Staff

BADIL Resource Center for Palestinian Residency and Refugee Rights is an independent, community-based non-profit organization mandated to defend and promote the rights of Palestinian refugees and IDPs. Our vision, missions, programs and relationships are defined by our Palestinian identity and the principles of international law, in particular international human rights law. We seek to advance the individual and collective rights of the Palestinian people on this basis.