More International Protection for Palestinian Refugees? A Critical Analysis of the Revised UNHCR Interpretation of the Status of Palestinian Refugees under International Refugee Law

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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 aimed at upgrading international protection for Palestinian refugees. These efforts, however, have not brought about substantial improvements. 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 from the International Protection Regime

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 (See, Chapter IV  Exclusion Clauses).

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 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.

In 2002, UNHCR launched a first initiative to address the obvious gaps (protection gap) in the special protection regime for Palestinian refugees. Serious gaps 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.

The New UNHCR Interpretation of the Status of Palestinian Refugees under the 1951 Convention Relating to the Status of Palestinian Refugees

UNHCRs revised interpretation of the status of Palestinian refugees under the 1951 Refugee Convention was completed and published in September 2002. (For a complete copy of the revised interpretation, see, the reference at the end of this analysis)


Positive Aspects

1. 1. The revised interpretation addresses all categories of Palestinian refugees and one category of internally displaced Palestinians. The interpretation explicitly lists three categories of Palestinian refugees falling within the scope of the 1951 Convention.

a) a. 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. This category implicitly includes 1948 internally displaced Palestinians in Israel. The implications of this interpretation will require additional clarification. 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. They might, therefore, not be applicable to internally displaced Palestinians, citizens of Israel.

b) b. 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.

c) c. 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.

2. 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 (Chapter IV  Exclusion Clauses) treated it only as an exclusion clause. According to the new interpretation, 1948 refugees (category a) and 1967 refugees (category b) 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 c). The revised UNHCR interpretation should facilitate the harmonization and handling of protection requests submitted by Palestinian refugees/displaced persons to domestic state authorities.

3. The revised interpretation states that 1948 refugees (category a) and 1967 refugees (category b) are protected by the 1951 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. This interpretation should contribute to ending the controversy over the returnability in domestic immigration services and courts of Palestinians otherwise eligible for protection under the 1951 Convention.

4. The revised interpretation explicitly recognizes that descendents of 1948 refugees (category a) and 1967 refugees (category b) are entitled to protection under the 1951 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 Aspects

1. The major shortcoming of UNCHRs revised interpretation, from the perspective of Palestinian refugees in need of protection, is 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 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. While the interpretation states that neither the UN General Assembly nor any subsequent UN resolution has specifically limited the scope of UNRWAs mandate, it is equally true, with self-evident results, 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 fact that the United Nations set-up a specific protection agency for Palestinian refugees (UNCCP), which ceased to provide effective protection in the early 1950s, is addressed only in a footnote. As a result, 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?

 

2. The application of cessation clauses 1C, 1E, 1F under the 1951 Refugee Convention to 1948 refugees (category a) and 1967 refugees (category b) is especially problematic. Cessation clause 1E provides that protection under the 1951 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, which provides that protection by the Convention will cease only if the position of such persons is definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, i.e. implementation of a definite 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.

3. The revised interpretation does not provide clear legal analysis on the status of Palestinian refugees as stateless persons. The lack of clarity on this matter has negative implications concerning additional provisions for international protection under 1961 Convention on the Reduction of Statelessness.

4. 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.

BADIL calls upon the UNHCR, UNRWA and other UN agencies, as well as Palestinian civil society and its refugee community organizations, to 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 gap faced by Palestinian refugees and tackle the question of how and by whom the protection gap should be closed. It must also take into consideration UNHCRs revised 2002 interpretation of the status of Palestinian refugees under the 1951 Refugee Convention and lead to the clarification of issues raised in the above analysis. BADIL Resource Center will continue its efforts, within the confines of its modest means, to lead this concerted debate.

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Note:

*The original text of the new, September 2002 UNHCR interpretation (Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Palestinian Refugees to Palestinian refugees), as well as the


*Previous UNCHR interpretation of Article 1D, 1951 Refugee Convention can be found at:

http://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:

http://www.badil.org/Publications/Briefs/I&D_Briefs.htm

Additional Recommended Background Information:
(listing here does not necessarily imply BADIL's acceptance of all analysis points 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

 

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