In terms of Palestinians in the Americas, they are the largest group of Palestinians outside the Arab world. While the majority of them were not forcibly displaced from their homes, especially in the case of Palestinians in Latin American countries, many became refugees sur place as they were unable to return to their homes of origin and their citizenship was revoked. After the establishment of the British Mandate of Palestine, returning home became difficult for Palestinians in the Americas. They had the right to opt for Palestinian citizenship only if they had left Palestine after 1924 and fulfilled certain legal conditions, but 90 percent had left Palestine before 1924, making them ineligible for the Palestinian citizenship option.1 Return to Palestine remained out of reach for Palestinian emigrants after the 1948 war. Jordan also deprived those originating from the West Bank of Jordanian citizenship in 1950, on the basis that they were not in Jordan when the West and East Banks of the River Jordan were united.2 Since 1967, return to the Israel-occupied West Bank has been obstructed by Israeli restrictions of movement of Palestinians in the 1967 occupied Palestinian territory (oPt).3
The articles in this issue provide an overview of these communities as well as the situation of more recent Palestinian refugees arriving to the Americas in the last two decades. The regional and national instruments and policies show gaps in the protection Palestinian refugees are entitled to. Although there have been some improvements in the Latin American asylum process, these countries must also continue to advance their protection mechanisms vis-à-vis Palestinian refugees and signatory states should broaden their interpretation of Article 1D to ensure the continuity of their protection. In cases of non-signatories, like the US, it is of the utmost importance that they adhere to the basic principles of customary international law regarding the treatment of asylum seekers and refugees, binding on all states, when dealing with Palestinian refugees as well as all other asylum seekers and refugees.
The secondary displacement of Palestinian refugees is becoming a regular phenomenon. Palestinian refugees, who have previously resided in countries like Iraq, Kuwait, and other host countries, have been forced to flee due to the lack of protection and/or to escape armed and violent conflict. This phenomenon is most obvious in the situation of Palestinian refugees in Syria. According to UNRWA, there were around 560,000 Palestinian refugees in Syria prior to the outbreak of war which began in 2011. Approximately 110,000 have managed to flee to neighboring countries or Europe; of the remaining 450,000, 280,000 are internally displaced within Syria.
The not-so-startling discovery is that many countries have in one way or another have fallen consistently and remarkably short of providing the requisite international protection to Palestinian refugees seeking asylum in their countries. In other words, the international community, and more specifically powerful western states, has failed to uphold many of their obligations as dictated by international law vis-à-vis the Palestinian refugee population. This situation has resulted in extreme marginalization of Palestinian refugees, especially with respect to international protection.
Reiterated in Articles 1, 31, and 32 of the 1951 Convention Relating to the Status of Refugees (herein after referred to as the 1951 Convention), customary international law defines the core minimum obligations of states (which must be adhered to regardless of whether the states are signatories to the 1951 Convention or not) in providing international protection to refugees and asylum seekers. According to the United Nations High Commissioner for Refugees (UNHCR), these non-derogable principles include: the right of the person to seek asylum; that this process and refugee entitlements occurs without discrimination (irrespective of nationality, race, religion, color, etc.) between refugee groups; and that they are not forcibly returned to a country where their safety or survival is threatened (the principle of non-refoulement). Furthermore, international protection only ceases when the refugee can and does avail of durable solutions.4 One source of the protection gap faced by Palestinian refugees results from states’ violations of the non-discrimination and non-refoulement principles of customary international law.
Another source of the protection gap characterizing the Palestinian refugee case is the one resulting from the ineffective special framework created for Palestinian refugees in the form of the United Nations Relief and Works Agency (UNRWA) and the United Nations Conciliation Commission on Palestine (UNCCP). While the former was mandated to provide humanitarian aid and assistance to Palestinian refugees, the latter was tasked with providing international protection, including durable solutions. The UNCCP has been dormant since 1952 while UNRWA lacks a comprehensive protection mandate and struggles with a host of issues, not the least of which, are chronic financial shortages. The failure of this special framework, designed originally for the purpose of ensuring protection to Palestinian refugees is symptomatic of the lack of political will of the international community to address the ‘Question of Palestine’ and hold Israel accountable. As such, another fundamental protection gap faced by Palestinian refugees is acutely obvious in Israel’s continued flagrant disregard for international law and the right of Palestinian refugees to return to their homes of origin.
Photo: A Greek policeman pushes refugees behind a barrier at Greece’s border with Macedonia,
near the Greek village of Idomeni. (© Yannis Behrakis/Reuters)
In addition to the principles of customary international law, the main international instrument designed to provide protection to refugees is the 1951 Convention. Article 1D of the 1951 Convention incorporates both inclusionary and exclusionary clauses for the protection of Palestinian refugees. The exclusionary clause provides that the 1951 Convention: “Shall not apply to persons who are at present receiving from organs or agencies of the UN other than the UNHCR.”5 However, the second paragraph of 1D provides that: “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” then these persons should receive protection through the 1951 Convention.6 Considering the precarious situation of UNRWA, its limited mandate and the defunct UNCCP, Palestinian refugees should fall under the inclusionary clause of Article 1D of the 1951 Convention.7 While 142 countries are state signatories to both the 1951 Convention and its 1967 Protocol,8 the lack of protection faced by Palestinian refugees is exacerbated due to states’ inconsistencies and ambiguities in interpreting and applying the 1951 Convention, particularly concerning Article 1D. Buy CVV
In terms of secondary displacement of refugees, the concept of ‘effective protection’ should be taken into consideration. While not an established principle of refugee law, ‘effective protection’ is a framework designed to handle secondary movement of refugees and asylum seekers through ensuring international cooperation (burden sharing), states’ responsibilities and continuity of protection as long as concerned people are in need of it. It is designed to ensure that refugees, if displaced from the first country of refuge, remain entitled to international protection in the second host country.9 Thus, Palestinian refugees, whose refugee status has been determined by the UN, should be recognized as such without re-examination of their case, or at least should be treated on equal footing with other refugees.
The conventions, provisions and principles of international law presented above should guide states in the development of mechanisms that afford Palestinian refugees their due protections. However, the case of Palestinian refugees has highlighted that states have fallen deplorably short of meeting the core minimum obligations set by international law. Further, as indicated in the selection of articles contained within this issue of al-Majdal, states not only fail to meet the minimum core obligations but are actively implementing policies that hinder and deny Palestinian refugees the ability to seek, obtain and avail of international protection standards.
Achieving a just and durable solution based on international law will only be possible by adopting and supporting rights-based mechanisms to ensure the effective protection of Palestinian refugees worldwide, having an active and robust agency dedicated to pursuing such a solution, and pressuring Israel into compliance with international law. As long as these steps are not taken, Palestinian refugees and asylum seekers will continue facing acute hardship and discrimination, lacking international protection as the phenomenon of secondary and multiple displacements continues.
1 Adnan Musallam, Folded Pages from Local Palestinian History in the 20th Century: Developments in Politics, Society, Press and Thought in Bethlehem in the British Era 1917-1948, (Bethlehem: WIAM - Palestinian Conflict Resolution Center, 2002), 47–48.
2 Ibid., 51.
3 BADIL Resource Center for Palestinian Residency and Refugee Rights, Closing Protection Gaps: A Handbook on Protection of Palestinian Refugees in States Signatories to the 1951 Refugee Convention, 299. (Herein after “BADIL, Closing Protection Gaps”)
4 UNHCR, “An Introduction to International Protection,” 1 August 2005. Available at: http://www.unhcr.org/publications/legal/3ae6bd5a0/self-study-module-1-introduction-international-protection-protecting-persons.html.
5 UN General Assembly, “Convention Relating to the Status of Refugees,” 28 July 1951, Article 1(D).
6 UNHCR, “Revised Note on the Applicability of Article 1(D) of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees,” 2009.
7 For more information see BADIL, Closing Protection Gaps: Handbook on Protection of Palestinian Refugees in States Signatories to the 1951 Refugee Convention, 2nd Edition, February 2015 (“BADIL, Closing Protection Gaps”). Available at: http://www.badil.org/phocadownloadpap/badil-new/publications/Handbook-art1d/Art1D-2015Handbook.pdf.
8 UNHCR, “State Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol,” Available at: http://www.unhcr.org/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.html. Of the countries covered in this issue of al-Majdal, Cuba is neither a signatory of the 1951 Refugee Convention nor its 1967 Protocol and the United States of America is only a signatory to the 1967 Protocol.
9 BADIL, Closing Protection Gaps, 300.