Projecting the UNHCR’s role vis-à-vis Palestinian refugees

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The United Nations High Commissioner for Refugees’ (UNHCR) position vis-à-vis Palestinian refugees, particularly in the Arab world, can best be described as ambiguous and lacking political initiatives. The regional constraints imposed on the UNHCR have considerably undermined its role vis-à-vis Palestinians, particularly in the post-Oslo time-frame. The heightened level of protection that Article 1D of the 1951 Convention Relating to the Status of Refugees (hereinafter CR) was meant to guarantee, was further eroded by the narrow and historically disconnected interpretation given to it.

This paper will briefly outline the main issues to bear in mind when discussing the unique and complex relationship between the UNHCR and Palestinians. It will also forecast the organization’s role in light of regional changes.

1. History of the UNHCR and Palestinians

At the time of the adoption of the UNHCR’s Statute[1], and later of the 1951 Convention on Refugees, Palestinians were already benefiting from the protection of the United Nations Conciliation Commission (UNCCP)[2] and the assistance of the United Nations Relief Work Agency (UNRWA)[3]. It was therefore the drafter’s intention, as the Convention’s travaux préparatoires clearly demonstrate, to temporarily exclude Palestinians from the scope of the Statute through paragraph 7(c) and from the Convention through Article 1D, in order to preserve their special status and not dilute their plight among that of others[4]. As Professor Susan Akram noted: “[t]he delegates to the committee drafting the Refugee Convention considered that it was both unnecessary and inadvisable to include Palestinians in the Refugee Convention regime as long as two other UN agencies were providing them with the twin functions of protection and assistance.”[5] [emphasis added]

This exclusion however, would best be termed as a “suspensive clause” as Grahl-Madsen suggests[6], or as a “contingent inclusion clause” as Susan Akram proposes[7], rather than as an exclusion clause. While the first sentence of Article 1D seems to exclude Palestinians receiving protection or assistance, the second sentence leaves no room for misinterpretation by clearly stipulating 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 GA of the UN, these persons shall ipso facto be entitled to the benefits of this Convention.” [emphasis added]. Hence, in such circumstances, these persons would not have to be subjected to the definition criteria of Article 1A2 to fall under the umbrella of the UNHCR’s protection regime. Their inclusion in the Convention shall be automatic. The most common misinterpretation of the Convention’s application to Palestinians is caused by overlooking the contingent inclusion clause. Most modern immigration legislations typically borrow a literal definition of a refugee from Article 1A2 and uniformly apply it to all refugees, notwithstanding the Palestinians’ unique status in refugee law as per Article 1D. However, the most tragic misinterpretation of Article 1D results from the fact that since the UNCCP’s informal termination in 1964, the Palestinians have effectively lacked the protection of a UN organization. This should have prompted the UNHCR to fill the international protection gap created by the UNCCP’s emasculated activity; a step which the UNHCR has been reluctant to take.

Unfortunately, to date the UNHCR’s protection activities for Palestinian refugees can be “characterized by a limited degree of protection for a limited number of refugees based on geographical restrictions and subject to the cessation and exclusion clauses in the UNHCR Statute and the 1951 Refugee Convention”[8]. This obviously does not leave much scope for maneuver. Since its inception, the UNHCR has in fact had very few notable interventions on behalf of Palestinian refugees in the Arab world. For example in 1982, following the PLO’s departure from Lebanon, the UNHCR intervened with the Lebanese authorities to facilitate the renewal of Lebanese travel documents (laissez-passer) which were issued to Palestinian refugees. The UNHCR also intervened during the 1991 Gulf War by extending protection services and material assistance to hundreds of thousands of Palestinian refugees in the Gulf States who were forcibly expelled or arbitrarily detained. More recently, when Palestinians were expelled from Libya in 1995, the UNHCR intervened to provide assistance to the 200 Palestinian refugees who were stranded on the Libyan-Egyptian border from August 1995 until April 1997[9].

As Badil outlined, some of the most important factors underlining the UNHCR’s minimal activity towards Palestinians are: “the absence of an inclusion clause for Palestinian refugees in the 1950 Statute of the UNHCR, similar to the second clause of Article 1D of the 1951 Convention; the perception that the ‘political character’ of the Palestinian refugee case is incompatible with the ‘neutral character’ of UNHCR protection activities; financial concerns related to the inclusion of millions of additional refugees in UNHCR programs; and, combined Western and Arab opposition to the inclusion of all Palestinian refugees within the protection mandate of the UNHCR”[10].

The UNHCR had in fact recognized the existence of that protection gap in the past, most notably following the 1982 massacre of thousands of Palestinian refugees in the Sabra and Shatila refugee camps in Beirut[11], as well as in the late 1980s following the eruption of the first Palestinian uprising (intifada) in the 1967 Occupied Territories[12]. Little has been done, however, by the UNHCR to remedy this protection gap, and even less has been said about it since the Oslo political process began in 1993.

2. The implications of the Geneva Accords

Before discussing the content and implications of the Geneva Accords[13] on the UNHCR’s role vis-à-vis Palestinian refugees, it is worth mentioning that the Accords are doomed to fail. Despite the mass media campaign to market the Accords and the lip service paid to them by politicians and diplomats, the majority of Palestinians and Israelis have not swallowed the pill.

To most Palestinians, particularly the refugees, the Accords fit in the sequence of negotiations, peace agreements, stalemates and one-sided compromises which have confirmed the dead-end reached by the peace process initiated in Oslo. According to Palestinian researcher on refugees, Dr. Salman Abu Sitta, the Accords are “in essence no more than the blueprint produced by the Israeli intelligence service to ‘solve’ the issue of Palestinian refugees”.[14] The Accords have not received the endorsement of any reputable organization advocating the right of Palestinian refugees such as Badil or Al-Awda. It is thus interesting to note that the purported “beneficiaries” of the Accords, the refugees, are the first in line to oppose them. It is also worth mentioning that the right of a Palestinian refugee to return and/or be compensated for the losses he or she has incurred is an individual, inalienable right which cannot be negotiated or relinquished in political agreements signed between self-appointed representatives.

One Article out of 17 in the Accords is dedicated to the question of refugees. Without delving into the details of the contents of this Article, the main sections relevant to the UNHCR’s projected role vis-à-vis Palestinian refugees can be summed up as follows:

– Article 7(2)(a): The Parties recognize that UNGAR 194, UNSC Resolution 242, and the Arab Peace Initiative (Article 2.ii.) concerning the rights of the Palestinian refugees represent the basis for resolving the refugee issue, and agree that these rights are fulfilled according to Article 7 of this Agreement. [emphasis added]

– Article 7(6): Palestinian refugee status shall be terminated upon the realization of an individual refugee’s permanent place of residence (PPR) as determined by the International Commission.

– Article 7(7): This agreement provides for the permanent and complete resolution of the Palestinian refugee problem. No claims may be raised except for those related to the implementation of this agreement.

– Article 7(11)(d)(ii) UNRWA registration shall be considered as rebuttable presumption (prima facie proof) of refugee status.

– Article 13(a) UNRWA should be phased out in each country in which it operates, based on the end of refugee status in that country. (b) UNRWA should cease to exist five years after the start of the Commission’s operations. The Commission shall draw up a plan for the phasing out of UNRWA and shall facilitate the transfer of UNRWA functions to host states.

– Sections 7(2) and 7(7) are relevant in light of the “inclusion clause” (i.e. the second sentence) of Article 1D of the CR. As discussed above, the inclusion clause renders persons who cease to receive assistance or protection ipso facto refugees only if the position of such persons has not been “definitively settled in accordance with the relevant resolutions adopted by the GA of the UN”. The main resolution pertaining to Palestinian refugees, which was omitted in the Oslo scheme and explicitly referred to in the Geneva Accords, is GA Resolution 194(III) of 11 December 1948. This Resolution has been reaffirmed over 100 times by the GA and has arguably become part of customary international law on the Palestinian refugee question. Paragraph 11 of Resolution 194 is the main source of law regarding Palestinian refugees’ right to return to their homes and/or be compensated for their losses. By stipulating the end of all refugee claims, the Accords are in fact rendering the contingent inclusion clause of Article 1D obsolete, thus depriving Palestinians of their special status as ipso facto refugees in areas where UNRWA does not operate.

– Section 13(a) calls for the phasing out of UNRWA and its complete dissolution within 5 years. This Section, in turn, will annul Article 1D in its entirety, as well as paragraph 7(c) of the UNHCR Statute. As discussed above, the purpose of these sections was to temporarily exclude Palestinians from the UNHCR’s mandate in order to give them special status in refugee law along with two UN agencies overseeing their protection (UNCCP) and their assistance (UNRWA). With the adoption of the Geneva Accords, Palestinian refugees, if any should remain, would fall under the 1951 Convention just like any other refugees and would have to satisfy the criteria in Article 1A2 to be granted refugee status. Article 7(6) of the Accords is the last nail in the coffin that seals the fate of Palestinian refugees by permanently terminating their status once they are resettled in what was termed their “Permanent Place of Residence” (PPR).

The solutions offered by these Sections are highly problematic for more than one reason. First of all, the Geneva Accords negate the existence of a Palestinian right of return by giving Israel the privilege to accommodate Palestinians at its discretion and solely on the grounds of humanitarian needs and family reunification. Israel thus absolves itself of any legal obligation vis-à-vis Palestinian refugees and assimilates its status to that of any other resettlement country in the world. Israel could then argue that it is granting Palestinians refugees permission to enter Israel as part of a historical compromise, instead of acknowledging that their return is a legal obligation on Israel stemming from a historical wrongdoing. The Accords lay the burden of a durable solution on Arab states which will have to locally integrate the majority of Palestinian refugees, while others will have to be resettled in third countries or absorbed by the Palestinian state-to-be.

This setting is not likely to be peacefully accepted, considering the politically charged environment in the region and the Arab countries’ unwillingness for over 50 years to permanently accommodate Palestinians. The enforcement of the Geneva Accords may thus lead to catastrophic scenarios in the region whereby hundreds of thousands of Palestinians will be expelled en masse from Arab countries and stranded on the border with Israel. It is not unforeseeable for Arab states to use Palestinian refugees as political pawns. As mentioned above, Libya did it in 1995 when it expelled all of its Palestinians in response to the Oslo Accords, notwithstanding the fact that Lebanon had sealed its borders at the time to those Palestinians carrying Lebanese travel documents. The Gulf States also expelled hundreds of thousands of Palestinians in response to Yasser Arafat’s stance vis-à-vis the Iraqi invasion of Kuwait.

One can thus forecast two equally disturbing scenarios. If the Geneva Accords are smoothly implemented in the region and gain the acquiescence of all Arab countries, then UNRWA will be phased out, Palestinian refugee status will be terminated, Article 1D will be obsolete and the UNHCR will assume its role towards Palestinian refugees as it would towards any other refugees in the region. It would apply Article 1A2 to grant refugee status and would accordingly provide assistance and protection.

A more probably scenario would suppose the rejection of the Geneva Accords by Arab countries. In that case, the UNHCR would have to anticipate the mass expulsions of Palestinian refugees across the Arab world. It would thus have to fully assume its protection role in the region while UNRWA would continue to provide assistance to registered Palestinians. Thousands will continue to be excluded from UNRWA’s scope of assistance[15], thus triggering the application of Article 1D and the involvement of the UNHCR in providing both assistance and protection.

It is worth mentioning that the issue of UNRWA’s narrow definition will also be problematic if the Geneva Accords are implemented (first scenario discussed above). Article 7(11)(d)(ii) of the Accords stipulate that UNRWA’s definition will merely be used as a “rebuttable presumption” of Palestinian refugee status. Hence, thousands of Palestinian refugees are likely to fall out of the loop of the regional settlement imposed on them. The UNHCR would then have to determine their status using the definition in Article 1A2, instead of applying the more generous inclusion clause of Article 1D.

3. Recommendations and initiatives

Throughout its history, whether willingly or unwillingly, the UNHCR has been rather idle in coping with the plight of Palestinian refugees. Political and budgetary constraints have reduced the UNHCR’s scope of action, but they cannot be used forever to deny the world’s largest and oldest refugee population the heightened level of protection it so rightly deserves. The UNHCR must assume a more pro-active role, particularly in light of disturbing political changes and the likely scenario of a forced regional settlement of the Palestinian refugee issue. It must not wait until hundreds of thousands of Palestinian refugees are threatened with expulsion or worse, lining up the border with Israel in make-shift camps. The future must not be that bleak and there can be ways of alleviating these refugees’ suffering until a just and durable solution, in line with Resolution 194, is found to their cause.

Professor Susan Akram of Boston University School of Law had suggested that temporary protection be granted to Palestinian refugees[16]. The benefits of were summed up as follows:

Temporary protection would provide Palestinian refugees in Arab states, as well as other states of the Palestinian diaspora, a recognized legal status. […It] specifically addresses the real needs of Palestinians refugees: the need to work, to travel freely, to live where s/he chose within the temporary protection state, to reunite with family members, and to travel outside and return with special permission. Temporary protection also specifically addresses the fears of both the Arab and other states that they would either have to grant asylum or some more permanent type of status to the refugees or expel them. Finally, it addresses the ongoing concern of Palestinian refugees and the PLO that the post-Oslo process might subvert the international consensus that the durable solution for Palestinian refugees is repatriation to their place of origin and compensation, as embodied in UN General Assembly Resolution 194.[17]

Although presented as a novel concept, temporary protection for Palestinian refugees would be no more than the revival of the 1965 Casablanca Protocol[18] which was once ratified by a number of Arab countries, yet never implemented and finally abolished[19]. The UNHCR must use its influence in the region, and its protection role, to lobby Arab governments into granting Palestinians temporary protection until they are able to safely repatriate to their homes as per UN Resolution 194.

Should Arab countries prove to be uncooperative, the UNHCR should facilitate the resettlement of Palestinians to third countries where they would be able to benefit from temporary protection, while promoting their right of return.

These initiatives would force the UNHCR to walk a tight rope from fear of suffering the same fate as the UNCCP, and incurring the wrath of Arab and Western governments alike. It will undoubtedly be accused of furthering the Zionist agenda and promoting the permanent resettlement of Palestinians anywhere except in Israel. However, the UNHCR’s mandate is to ensure the legal protection of refugees, regardless of the political implications that it may entail. It is only by challenging the status quo that the UNHCR will live up to its standards and uphold its independence.

Notes:

[1]. UNHCR’s Statute is annexed to UNGA res. 428(V), 14 Dec. 1950.

[2]. UNGA res. 194(III), 11 Dec. 1948, established the UNCCP.

[3]. UNGA res. 302(IV), 8 Dec. 1949, established UNRWA.

[4]. For more on the interpretation of Article 1D, please refer to Takkenberg, L., The Status of Palestinian Refugees in International Law, Oxford, Clarendon Press, 1998 at pp.90-123. For an updated statement of the UNHCR’s own interpretation of the Article, please refer to the “Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian refugees” which can be found on the UNHCR’s website (www.unhcr.ch).

[5]. Akram, S., “Temporary Protection and its Applicability to the Palestinian Refugee Case”, Badil Information and Discussion Brief, Issue No.4, (June 2000) at p.9 (www.badil.org).

[6]. See Takkenberg, supra note 4 at p. 93.

[7]. Akram, S., “Reinterpreting Palestinian Refugee Rights Under International Law, and a Framework for Durable Solutions”, Badil Information and Discussion Brief, Issue No. 1 (February 2000) at p.8 (www.badil.org).

[8]. Badil, “The Office of the UN High Commissioner for Refugees”, www.badil.org/Protection/UNHCR/Overview.htm (accessed on 22/01/2004) at p.1.

[9]. Takkenberg, supra note 4 at pp. 166-7.

[10]. Badil, supra note 8.

[11]. In 1982, the UNHCR Executive Committee, the advisory body to the High Commissioner, “expressed the hope that measures would be taken to protect refugees against such attacks and to aid the victims”, quoted in Badil, supra note 8 p.2.

[12]. In the late 1980s, early 1990s, the UNHCR issued numerous executive committee conclusions that “[e]xpress concern about the lack of adequate international protection for various groups of refugees in different parts of the world, including a large number of Palestinians, and hoped that efforts would be undertaken within the United Nations system to address their protection needs.” [emphasis added], quoted in Badil, supra note 8 p.2.

[13]. A full text of the Geneva Accords can be found at the following website http://informationclearinghouse.info/article5019.htm.

[14]. Abu-Sitta, S., “Racism repackaged”, Al-Ahram Weekly (Jan 1-7, 2004).

[15]. Takkenberg notes that UNRWA’s definition “was narrowly drawn and excluded some categories of persons who, although not meeting the criteria of the UNRWA definition, became refugees as a result of the 1948 conflict.” Supra note 4 at p. 70.

[16]. Akram, supra note 5.

[17]. Ibid p. 14.

[18]. See Takkenberg, supra note 4 at chapter IV.

[19]. Shiblak, A., “Residency Status and Civil Rights of Palestinian Refugees in Arab Countries”, XXV, no.3, Journal of Palestine Studies (Spring 1996), 36 at p. 42. Shiblak notes that “many [Arab states], such as Lebanon and the Gulf states, never fully implemented the 1965 Protocol […]” and in 1991, Arab League Resolution 5093, officially revoked it.

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