Closing the Gaps: from Protection to Durable Solutions for Palestinian Refugees
Report from the Third BADIL Expert Forum, 5-8 March 2004, Cairo
Hosted by the Al-Ahram Center for Strategic and Political Studies
evere gaps exist in protection currently available for Palestinian refugees, mainly due to the absence of mechanisms – international and regional – with an explicit protection mandate, as well as lack of clarity about strategies that could link day-to-day protection with efforts for rights-based durable solutions for Palestinian refugees.
Oroub El-Abed, an independent researcher based in Jordan and invited to present a case study on unprotected Palestinian refugees in Egypt was denied entry to Egypt by the Egyptian authorities, an event which illustrated once more the urgency of issues raised by this seminar. (For more on Palestinians in Egypt see, Oroub El-Abed, “The Unprotected Palestinians of Egypt,” al-Majdal 19).
This summary report provides an overview over papers, statements and suggestions presented at the Cairo Seminar. A final and complete summary of seminar proceedings and electronic copies of working papers will be published on the BADIL website: www.badil.org/Campaign/Expert_Forum.htm. The seminar was sponsored by Stichting Vluchteling and ICCO, Netherlands.
Protection: Definition, Scope and Gaps
Lex Takkenberg (Deputy Director of UNRWA Operations in Syria) speaking in his personal capacity, presented an overview of concepts and instruments applicable to refugees in general and Palestinian refugees in particular. He argued that efforts at improving Palestinian refugee protection must tackle a number of key questions related to: a) demarcation between assistance, protection, and the search for durable solutions; b) identification of gaps; and, c) solutions which can be both effective and feasible in the current, unsupportive political environment.
Takkenberg suggested that day-to-day assistance, protection and durable solutions should be considered as a continuum rather than strictly separate concepts. UNWRA’s work was presented as an example: health care, education and welfare services are assistance services, which, at the same time, ensure protection of basic rights. The current protection gap in areas of UNRWA operation should be described as a de jure gap, because no international agency is mandated to protect Palestinian refugees there. The situation outside areas of UNRWA operation, on the other hand, should be characterized as one of a de facto protection gap, because partial protection is provided by the UNHCR.
With regard to possible improvements and solutions Takkenberg suggested that UNWRA (rather than the UNCCP or UNHCR) is the agency that could best help close protection gaps in its areas of operation. Outside areas of UNRWA operations, UNHCR could take on a more proactive role in protecting Palestinian refugees and stateless Palestinians based on its 2002 revised interpretation of Article 1D of the 1951 Refugee Convention.
He concluded by highlighting recent positive developments, such as increased interest and involvement by UNHCR and the fact that UNRWA and UNHCR have decided to embark on much closer cooperation than in the past. He expressed the hope that UNWRA will be able to develop, alongside UNHCR, a model for improving scope and quality of protection available for Palestinian refugees.
An overview of the legal status and protection of Palestinian refugees in states signatories to the 1951 Refugee Conventionwas presented by Elna Sondergaard on behalf of BADIL. Findings presented are part of ongoing research, conducted in cooperation with a global expert network, UNHCR and UNRWA, about the reality of state practice in implementation of the Convention, in particular regarding Palestinian refugees. Findings will be published in a Handbook scheduled to include case studies and patterns of practice in over 30 countries, as well as practical recommendations for closing current protection gaps.
Preliminary findings presented to the seminar were based on research of 17 countries and showed that the legal status of Palestinian refugees was determined mainly by the following factors: a) whether or not Article 1D/1951 Refugee Convention has been incorporated into domestic legislation; b) the specific interpretation of Article 1D used by states and domestic courts; and, c) state legislation and policy regarding asylum seekers whose applications are rejected. In summary, research shows a strong diversity in state practice and interpretation of the 1951 Convention/Article 1D, largely to the detriment of Palestinian refugees. The new 2002 UNHCR interpretation appears to have not (yet) impacted jurisprudence and/or state practice.
Once denied asylum, temporary protection status is available in very few countries only, and 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 issue, involving lengthy procedures and much hardship for the refugees.
Gabriela Wengert (Assistant Protection Officer, Legal Unit/ CASWANAME, UNHCR HQ, Geneva) gave a report on the current protection situation of Palestinian refugees in Iraq and in the Ruweished Camp and no-man’s land (NML) on the border between Iraq and Jordan. Hundreds of Palestinians left Iraq in the aftermath of the war and headed for Jordan. Around 800 were allowed to enter Jordan and were accommodated in the Ruweished camp; others were denied access into Jordan and remained in no-man’s land (NML) on the border between Iraq and Jordan. By March 2004, some 400 Palestinians still remained stranded in these two sites.
In the past, UNHCR has had limited contact with Palestinian refugees in Iraq as they were receiving protection and assistance from the Iraqi authorities. 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 agency, has generated internal discussions, and UNHCR is currently reviewing the question of how to strengthen its involvement with Palestinian refugees outside UNRWA’s area of operation, mainly in the region.
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.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. 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. UNHCR provided basic relief items such as tents, mattresses, blankets etc., and has been in close contact with the Iraqi provisional government (CPA) in order to identify a suitable place for relocating the evicted Palestinians.
On 1 November 2003, UNHCR signed an agreement with the Ministry of Labor, 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 Haifa Club camp is taking place with the aim to close the refugee camp 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.
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 utmost 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 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. UNHCR has regular access to the tented camps, 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.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; and, voluntary return to Iraq. Negotiations are still underway with various Arab States, the Palestinian Authority, 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.
Roles and Perspectives of International, Regional and National Actors
A perspective of UNWRA’s Role in Protecting Palestine Refugees was presented by HarishParvathaneni (Chief, Policy Analysis Unit, UNWRA). Providing an historical overview of the evolution of current protection gaps and the lack of durable solutions, the speaker reminded participants of the fact that the UN General Assembly established two ad hoc bodies to provide relief and assistance and to seek durable solutions for Palestinian refugees – the United Nations Conciliation Commission for Palestine (UNCCP) and the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNWRA) - just prior to the creation of UNHCR. For political considerations, the assistance, protection and durable solutions mandate for Palestine refugees remained with these institutions, and Palestinians were excluded from the global protection regime administered by UNHCR, particularly the 1951 Refugee Convention.
While 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, the international community’s approach to protecting Palestine refugees has not sufficiently evolved in accordance with universal protection practices.UNHCR efforts to provide protection to refugees outside the area of UNWRA operations have been thwarted by the way in which states have interpreted the 1951 Convention. While UNWRA was specifically mandated to provide essential humanitarian and relief assistance, not protection, UNCCP was charged with facilitating the search for durable solutions and the provision of protection to the Palestine refugees. 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.
The fact that the international community continues to uphold the position that the Palestinian refugee question must be resolved in the context of an overall solution to the Israeli-Palestinian conflict, represents a major political challenge. Successful resolution of a conflict requires either political 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. With regard to 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, Bosnia-Herzegovina, and elsewhere.
UNRWA’s role has developed from efforts at refugee integration through works programs to efforts for 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 inherent component of its services in the field of health, education and social welfare. Currently, 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 be on redoubling the effort to ensure Israel respects the law of belligerent occupation, in particular the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.In addition, energies must be devoted to ensuring Israeli and host state compliance with international human rights instruments.UNRWA can contribute to this effort by upgrading what it has been doing in the past, i.e. by providing more ‘passive protection.’
Mohammed Khaled Al-Az’ar (independent Palestinian researcher) analyzed past and present refugee protection as provided by the League of Arab States and Arab host countries. He argued that the ongoing lack of protection of basic rights of Palestinian refugee in the Arab world is mainly the result of the legitimate refusal by Arab states to surrender to external pressure for involuntary refugee re-settlement in their countries, combined with the general weakness of democracy and respect for the rule of law and human rights in Arab states and societies.
He emphasized that Arab neglect and violation of Palestinian refugee rights is not an isolated issue, but must be seen in the wider context of the violation of human rights of Arab individuals, especially vulnerable minorities, women and refugees, and the general lack of democracy in the region. In most Arab countries citizenship, for example, is perceived as a privilege granted by the ruler and not as a matter of right. Citizenship and passports are not a means to facilitate people’s movement, but rather a means to ensure control by the government and its security apparatus.
Based on an overview of the development of Palestinian refugee status and rights in several Arab countries (Egypt, Jordan, Lebanon, Syria, Iraq), Az’ar also argued that the level of protection available for Palestinian refugees in Arab states has been determined much more by political events and the relationship between governments and the PLO, rather than by legal instruments and mechanisms. A review of Arab League mechanisms and resolutions relevant to Palestinian refugee protection (Arab League Council, Heads of Departments of Palestine Affairs, Conference of Supervisors of Palestinian Affairs in Arab Host Countries, 1965 Casablanca Protocol, a.o.), moreover, leads to the conclusion that the lack of Arab states’ commitment and the gap between theory and practice, i.e. between existing declarations and resolutions and actual implementation, are additional factors accounting for the deplorable situation of Palestinian refugee rights in Arab countries.
The review of Arab League mechanisms and resolutions and actual state practice re-affirms the conclusion that treatment of Palestinian refugees by Arab states is not so much the result of endorsement of Arab or international refugee rights instruments, but rather shaped by the specific and changing relationship of Arab regimes with the PLO.
Civil Society Initiatives and Proposals
Jaber Suleiman (Aidun-Lebanon) presented a summary of the recommendations issued by a 2003 workshop on Palestinian refugee protection held in Beirut (Aidun, BADIL). These included more systematic efforts to identify and find the most appropriate remedy to the protection gaps in host countries – that will also protect the basic rights of Palestinian refugees to durable solutions; involvement of a wider spectrum of the refugee community; reactivation of PLO offices in host countries in order to effectively provide legal assistance to refugees, especially those without documents; and resolution of the question of which international mechanism/s is responsible for the protection of Palestinian refugees and the search for durable solutions.
Reflections on possible regional approaches to refugee protection and permanent solutions (Terry Rempel, BADIL) addressed the question of how to bridge the gap between protection and durable solutions for Palestinian refugees. It was argued that separation of these two concepts is problematic, because: a) exclusive focus on protection deals with the symptoms but not with root-causes and raises concerns about de-facto refugee resettlement; b) exclusive focus on solutions in a situation of protracted conflict where free and voluntary solutions are not available causes unnecessary suffering. The speaker then suggested that regional approaches, specific to the circumstances of displacement/dispossession in the region, could be developed, in order to strengthen Palestinian refugee rights to protection and durable solutions based on their right of return. Such regional approaches would not be a substitute for, but rather complementary to the international system.
Susan Akram (Boston University School of Law) presented ‘A Plan for Temporary Protection and Durable Solutions.’ The proposal calls for the establishment of a unified and special temporary protection regime for all Palestinian refugees worldwide. The new protection regime would be limited in time (5 years), renewable, and would provide protection standards at least equal to those set by the 1951 Refugee Convention and the 1965 Casablanca Protocol. The new protection regime would be launched in the framework of an international conference, which would, at the same time, establish mechanisms and procedures for the implementation of durable solutions based on refugee choice and in line with options promoted by UNHCR (voluntary return to Israel, local integration into Arab host states, resettlement in third countries). A set of incentives and disincentives would be put in place, in order to guarantee participation of all states party to the conflict.
Conclusions and Suggestions for Action
Conclusions and suggestions for action, summarized below, were compiled in the final debate.
Identification of Especially Vulnerable Groups
Protection: Palestinian refugees in Iraq and the NML, in the 1967 OPT, and in Egypt; refugees in Lebanon, especially those not registered with UNRWA (registered with DPA or unregistered); Gaza refugees in Jordan (not registered with UNRWA and not citizens of Jordan); and, unprotected Palestinians outside the Arab world (forced return to previous host coutries, detention, ‘airport refugees’).
Durable Solutions Based on the Right of Return: All Palestinian refugees.
Issues Requiring Additional Research and Clarification
Protection gaps in the Arab world; ‘returnability’ of refugees to Arab states of former habitual residence; applicability of statelessness conventions to Palestinian refugees; international humanitarian law and human rights law as instruments for Palestinian refugee protection.
Roles of International Agencies in Protection and the Search for Durable Solutions
Participants generally welcomed the decision of UNRWA and UNHCR to cooperate and increase their efforts for Palestinian refugee protection and agreed that a division of tasks based on existing institutional mandates may serve best to avoid adverse political and financial consequences. NGO participants also welcomed the interest of both agencies in cooperating with civil society organizations on a regular basis. A number of recommendations were made relating to the concern that the geographic division between UNRWA and UNHCR of responsibilities for protection and search for durable solutions might both fail to provide adequate and equal protection and lead to the fragmentation of the Palestinian case. Participants also agreed on the importance of engaging others in the debate on enhancing protection and searching for rights-based permanent solutions: ICRC, UNSCO, League of Arab States, PLO, Council of Europe, European Union etc.
Civil Society Initiatives
Expand public awareness-raising campaigns on the Palestinian refugee issue, its causes, the right to return, reasons for the absence of permanent solutions and the on-going need for protection. Focus for such efforts would be Europe and North America where public pressure is the only way to change government and EU political positions;
Increase awareness in the Arab world of human and refugee rights in general and Palestinian refugees’ right to protection and durable solutions in particular. Target both Arab citizens and Palestinian refugees and promote an understanding that protection improvement does not negate the right of return. Organize and support public conferences, seminars and workshops on the refugee issue;
Support initiatives promoting the rule of law and human/refugee rights in the Arab world such as: joint efforts to strengthen the language on protection and durable solution rights in current drafts of the Arab Human Rights Convention and an Arab Refugee Convention; lobby for the endorsement of improved regional conventions as well as the 1951 Refugee Convention; and promote introduction of refugee law in university law departments;
Support Palestinian NGOs and community organizations in Arab host countries in an effort to form broad Palestinian ‘referential representation’ and/or the reactivation of PLO representation as a way of enhancing both protection and political support for durable solutions based on the right of return;
Disseminate the ‘Plan for Temporary Protection and Durable Solutions’ presented by Susan Akram through community meetings, seminars and workshops to obtain both public and professional feedback to serve as the basis for a coordinated decision on whether this plan should be promoted by Palestinian civil society organizations;
Identify policy makers, legal experts or groups worldwide who look for contact and ways to work within a rights based approach on the Palestinian refugee issue; communicate and exchange contacts;
Participate in NGO meetings (Pre-Excom) held annually prior to the UNHCR Excom meetings in October/November. Palestinian NGOs should coordinate their participations, present statements and lobby participants (mainly northern NGOs) and officials.