UNHCR, UNRWA, Palestinian statehood, and refugee status

Posted: December 30, 2014 by Rex Brynen in UNHCR, UNRWA

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Some of my recent comments regarding refugee status appear to have caused confusion among ideologues, so I thought it might be time for an end-of-year post to clear things up. Specifically, what would happen if UNHCR status rules were applied to Palestinian refugees?

1) It should be noted, for a start, that UNRWA only determines refugee status for service eligibility, not for the purposes of rights or protection under the 1951 Refugee Convention. To some extent, therefore, it is a bit like comparing apples and oranges. Palestinian refugees under the care of UNRWA are excluded from the Convention under Article 1 D. However, that same Article notes that such persons would be eligible for Convention protections if their situation is not otherwise “definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations.” In other words, the international community insisted on a multiple layers of protection for Palestinian refugees from the outset: UNRWA, the 1951 Convention in UNRWA’s absence, and a requirement that their situation be resolved in accordance with relevant UNGAR resolutions, meaning UNGAR 194 (1948).

2) It has been alleged that I claimed that “UNHCR and UNRWA definitions for refugees were virtually identical,” which is a (deliberate?) misreading of my position and the nuances of the international refugee regime. As I have argued many times before, it is my view that Palestinian citizens of Jordan—who are clearly able to avail themselves of the protection of a state—would not normally be eligible for UNHCR refugee status. (The Jordanians could, however, argue that the wording of the Convention rendered them eligible nonetheless under the terms of cessation clause of paragraph 2 of Article 1D.)

3) Palestinians in Syria and Lebanon are generally stateless, and would certainly be considered for multi-generational derivative refugee status in accordance with existing practice under UNHCR rules. Indeed, non-UNRWA, subsequent generation, stateless Palestinian refugees (i.e, those without citizenship and outside UNRWA’s area of operations) are quite regularly treated as Convention refugees by both UNHCR and Western countries. A case in point is Iraq, where UNHCR treated Palestinians there as refugees under the 1951 Convention:

Palestinian refugees in Iraq, being outside UNRWA’s area of operations fall within UNHCR’s competence by virtue of paragraph 2 of Art.1D of the 1951 Convention relating to the Status of Refugees.

It should be noted that UNHCR also insisted that third country resettlement of such refugees should only be considered as an “exceptional humanitarian response and an option of last resort.” They urged that Palestinian refugees be permitted by Israel to repatriate to the West Bank and Gaza (Israel refused, while the PA was unenthusiastic). UNHCR also aserted that “resettlement should be seen as a temporary solution for Palestinians, without jeopardizing their right to return.”

4) Palestinians in the West Bank and Gaza are, de jure, citizens of the State of Palestine. Given this, do they therefore lose their refugee status or representation (or, more accurately, would they lose the former under UNHCR/Convention rules)? This concern was raised by some Palestinian refugee advocates at the time that Palestine applied to the UN for recognition as a state, and has also been raised by others as invalidating Palestinian refugee claims and status. However, despite UN recognition, in no way can Palestine be considered a de facto functioning state, able to provide protection for its citizens.

Therefore, no country—not even Israel—has seriously claimed that recognition of Palestine invalidates the refugee status of Palestinian refugees in the West Bank and Gaza. Moreover, UNGAR 67/19 (2012) on the “Status of Palestine in the United Nations” explicitly invokes prior UN resolutions  (including UNGAR 194). The Israeli government in particular has no interest in pursuing this, since this would result in a termination of UNRWA services in these areas, severely destabilizing the PA while enabling Hamas to assume full control over the Gaza education system—something it has been anxious to avoid. Indeed, Israeli officials continue to urge donor countries to increase, not reduce, their financial support for the Agency in these areas.

Finally, it should be noted that debates over UNHCR vs UNRWA refugee eligibility are largely an irrelevant red herring. The refugee issue does not derive from UNRWA service eligibility rules, and Palestinian concern with return, repatriation, and refugee rights would not end even if the Agency were to disappear in a puff of blue smoke tomorrow. Moreover, if somehow—perhaps due to intervention by a herd of magical, fluffy flying unicorns, since there is no other imaginable way it would occur otherwise—UNRWA were dissolved, UNHCR would almost certainly treat most Palestinian refugees as refugees. Furthermore, the General Assembly would, with absolutely certainty, direct it to do so. Indeed, some years ago some Palestinian refugee activists favoured a shift of the Palestinian case from UNRWA to UNHCR for precisely that reason, feeling the latter had a much stronger protection mandate, was far more activist, and would more explicitly press for the refugees’ “right of return.”

And with that, best wishes to everyone from PRRN for a happy, peaceful, and rights-based New Year!

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