The plight Palestinian refugees have endured since the Nikba does not seem to ease up, despite repetitive attempts to put the issue on the international agenda. Although the UN Security Council has passed resolutions and the international community has mobilised to protect these refugees with a special status, the situation remains dramatic decades later.The situation of Palestinian refugees remains extremely complex for political and legal reasons: the protection afforded is clearly incomplete; the right to return remains a debatable legal issue; and the right to reparation seems bound to remain a rhetorical question. These failures to comply with the spirit and the rules of international law do not mean that this branch of law does not address the issue. On the opposite, international law, in its doctrine but also in its case law is concerned with the well being of all refugees and offers a range of solutions to the ongoing kafkaian situation in which Palestinian refugees are. This brief piece explains why and how international refugee law has failed to protect these people. It concludes by demonstrating how international law if approached in a less political fashion could grant a better protection to Palestinians.
Two institutions were created to protect and assist Palestinian refugees: the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) which provides humanitarian assistance and the United Nations Conciliation Commission for Palestine (UNCCP) which has a mission of protection. Since the UNCCP has failed in its mission, most of the focus has been set on UNRWA. When the latter was established in 1949, two years before the Convention relating to the Status of Refugee, its mission was to bring humanitarian relief to a special category of refugees, Palestinians who had to flee when they lost their homes and means of livelihood as a result of the 1948 conflict. UNRWA defines a refugee as a person “whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict.” The status of refugees was later extended to Palestinians who flee after 1948.
The specificity of the UNRWA refugee status is that it is granted to the initial refugees as well as their descendants: children and grand children of the first refugees are also considered as refugees. In that sense the curse continues through generations, without the international community or the States hosting these refugees living in UNRWA protected zones having to worry about their status of the refugees’ offspring. The heritage of the status of refugee is a unique in international law. Another specificity of the UNRWA definition is that the status of refugees is based on years of residency rather than nationality: this is because Palestinians fleeing are stateless and it was necessary to create a definition that is not based on the criteria of nationality.
UNRWA decides who is eligible to benefit from the assistance provided, which encompasses education, health care, social services and emergency aid. One of the criteria to become a UNRWA protected refugees is based on gender: Palestinian refugees males are the only ones eligible to register for UNRWA services. This gender-bias approach means that some women are not covered by UNRWA. Another issue deals with the definition of beneficiaries provided by UNRWA: its specificity excludes Palestinians who took refuge in countries other than Jordan, Syria, Lebanon, the West Bank and the Gaza.
This special treatment was supposed to be a tailored-made approach to the problem of Palestinian refugees, approach that differed from the 1951 Convention’s approach. The outcome is that Palestinian refugees do not benefit from the same protection as other refugees do: they are under protected. This negative difference which was originally supposed to benefit Palestinian refugees was later reinforced by Article 1D of the 1951 Convention that states: “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.” UNRWA being a UN agency, this means that those who do not qualify as refugee by the UNRWA definition might not be regarded as refugees by the UNHCR. An outcome of the creation of a special protection status coupled the exclusion of Article 1D has lead to a “protection gap” as denounced by Susan Akram.
Yet, it is clear from the debates during the creation of UNRWA and the Travaux Préparatoires to the 1951 Convention that the intention was not to have a protection gap but to grant a special protection for people in an extraordinary situation. UN delegates never intended to have refugees falling short of protection: a clear indication of this is the end of the Article 1D which states “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 verb “cease” should be interpreted in a broad meaning: it does not only mean that a protection could stop being afforded by UNRWA. It could also be understood as a situation when UNRWA protection is not enough and needs to be completed. The main issue is that the UNHCR, which is the institution monitoring the implementation of the 1951 Convention, has interpreted its mandate in a restrictive fashion: it does not consider UNRWA protected Palestinian refugees as falling under the scope of the 1951 Convention. It also does not afford protection to non UNRWA registered Palestinian refugees who flee UNRWA zones.
The UNRWA specificity coupled with this UNHCR approach has dire consequences. For instance, the broadest part of the special protection granted by UNRWA relates to humanitarian relief (food, clothing and shelter) and not to basic protection and basic human rights that the 1951 Convention covers. In that regard, Palestinian refugees are granted revocable privileges but no rights. As a result, they are less protected under international law than any of their counterparts in the world. This is why in UNRWA zones Palestinian refugees can be forced to live in camp, prohibited from working or cannot benefit from family reunification. This is occurring at times when the UNHCR seems to extend its mandate to internally displaced people and has widened its understanding of the concept of refugee. UNRWA was not created to bring a solution to the refugee problem but to provide assistance. Another institution was created, the UNCCP which was set up to provide protection. It has been unable to achieve its goal, leaving Palestinian refugees without a durable protection. The failure of the UNCCP is another reason for the involvement of the UNHCR which could have stepped in to ensure some form of protection.
The current limited status and protection do not only affect UNRWA protected refugees: States that are not in UNRWA areas and that do host Palestinian refugees are often not signatories of the 1951 Refugee Convention. This means that some refugees fall through the loop. This explains why Palestinian refugees’ basic rights are often violated. As for refugees in Western countries, the UNHCR standard to benefit from protection is the following: they have to demonstrate that they are fleeing their place of “last habitual residence due to a well-founded fear of persecution on the basis of one or more of the five required grounds. However, they cannot claim the original persecution in Israel because they do not hold Israeli citizenship. Besides, most refugees actually come from UNRWA protected zones and it is sometimes extremely difficult to prove the persecution in those zones, especially when it is the result of non state actors groups. As for unregistered Palestinians fleeing UNRWA zones, they cannot benefit from the protection of the UNHCR. Eventually, rules tend to be restricted for refugees fleeing to the EU and who are already refugees registered elsewhere, may it be with UNRWA.
Although the UNHCR adopted in 2002 a revised set of guidelines to fill some of these gaps, it remains clear that Palestinian refugees throughout the world are under protected. This is the result of a legal exceptionalism coupled with the non application of UNHCR refugee guidelines. This raises questions as to the future of Palestinian refugees and that of UNRWA, a year after its 60th year of existence: is there the need for a more specific protection for Palestinian refugees? Should UNRWA assume its ever-evolving role by becoming a protection institution? It seems that the United Nations is taking that direction and UNRWA appears more and more as a protection institution. Another strategy would be to understand the mandate of UNRWA in light of UN Resolution 194 which encourages return.
by Anicée Van Engeland
International Law Expert in the UK
 Lecturer in law, Exeter University
Michel Kagan, Is there really a protection gap? UNRWA’s role vis-à-vis Palestinian Refugees, Refugee Survey Quarterly (2009) 28 (2-3): 511-530
Michel Kagan, The (Relative) Decline of Palestinian Exceptionalism and its Consequences for Refugee Studies in the Middle East, Journal of Refugee Studies (2009) 22 (4): 417-438.
Susan Akram, Palestinian Refugees and Their Legal Status: Rights, Politics and Implications for a Just Solution, Journal of Palestine Studies (Spring 2002), 31 (3): 36–51.