Palestinian Refugees: Listen their plea once and for all

How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/

ABSTRACT *

This article argues that the Palestinian refugee question cannot be removed from any settlement of Palestine’s status, and criticises the American Peace to Prosperity initiative for attempting to do so. The author sets out the distinctive legal position of Palestinian refugees, who fall under Article 1D of the 1951 Convention rather than Article 1A.2 and who, following the cessation of the mandate of the UN Conciliation Commission for Palestine, have remained without international legal protection. Drawing on reporting by Amnesty International and Human Rights Watch, the paper describes the resulting conditions in Lebanon, Jordan and Iraq. It concludes that mediators should press for recognition of return, repatriation and compensation, and that host and Western states should respect the collective rights framework of Resolution 194. The legal characterisations reflect the author’s own perspective; this journal’s editorial position is neutral.

KEYWORDS *

Palestinian refugees, right of return, UNRWA, UNCCP, Article 1D, 1951 Refugee Convention, Resolution 194, Peace to Prosperity, statelessness, Lebanon, Jordan, compensation

INTRODUCTION

Trump administration has increased efforts in an attempt to find a final solution on the Palestine status by removing the “refugee issue” from the negotiation table. The “refugee issue” is a central feature of the entire conflict between Israelis and Palestinians and is treated as inseparable from that of “self-determination.” Any future peace deal, therefore, must resolve this issue—in accordance with international law and the UN General Assembly’s resolutions—including the right of Palestinian refugees to return, repatriation, and compensation. Currently, there are 13 million Palestinian refugees worldwide—mostly concentrated in the Middle East and Gulf region.

In a recent meeting of the Security Council, the Arab nations—including League of Arab States and Organization for Islamic Cooperation—rejected in unison the US “Peace to Prosperity” plan for the Middle East, calling for a permanent settlement of Palestine’s status based on the two-state solution and in accordance with “Roadmap to Peace” provisions (SC/3997/2019). It must have been a punch for Trump and his senior advisor for the Middle East, Kushner—who hoped that Palestinians would eventually trade their national aspirations in exchange for economic prosperity. Contrarily, they won’t!!! The Palestinian Authority denied the “deal of the century” even before Kushner launched it in Bahrain Economic Workshop on June 25th (Deutsche Welle, June 25, 2019).

MAIN CORPUS

The Middle East Economic Plan dubbed as “Peace to Prosperity” has met huge resistance from all sides—including politics, experts, and academics. First and foremost, the plan doesn’t make any reference to Palestine’s political status that seeks to resolve through economic means, whereas, Palestinians are treated as customers not as political subjects. Second, the plan tends to exclude from the negotiation table the most fundamental issues—Jerusalem, borders, and Palestinian refugees—marking a departure from previous international and regional peace initiatives.

In such parameters, the “new deal” of the century, as Kushner called it, is doomed to fail. The American deal is deemed immoral and impractical—which in the worst scenario could blow the Middle East up, because economics, as Israelis’ diplomats and experts maintain, were never enough to solve the Israeli-Palestinian conflict (Politico, June 24, 2019). Moreover, the new deal violates international law, for it doesn’t address the right of Palestinian refugees to return, repatriation, and compensation, as stipulated in the UN General Assembly’s resolutions 194 (III) and the subsequent ones.

The Palestinian refugee issue is a central feature of the entire conflict between Israelis and Palestinians and is treated as inseparable from that of self-determination. Any future peace truce, therefore, must resolve this issue—along with four other ones—land and territory, the right of Palestinians to self-determination, Israel’s illegal settlements, and status of Jerusalem—about which Israelis and Palestinians hold diametrically opposing views.

With that being said, the international mediators, UN, US, EU, and Arab Nations, should increase pressure toward Israel to respect the international law and UN resolutions, which recognize the right of Palestinian refugees to return, repatriation, and compensation. Israel should acknowledge the Palestinian refugees’ predicament and perilous situation and agree to a permanent resolution based on the existing plans. The neighboring countries, Lebanon, Jordan, Egypt, Iraq, and Syria, should respect the human rights of Palestinian refugees, provide access to health, education, and employment services, and work to minimize their suffering. All other countries should treat Palestinian refugees’ claims based on collective rights as envisioned in the UNGA Resolution 194.

Palestinian refugees’ legal status: (UN)protected

Palestinian refugees represent one of the most protracted refugee situations and the largest refugee population in the world—accounting for about 13 million—dispersed throughout the Middle East and Gulf region, and Western countries. The “Palestinian refugee” term, based on the UN Relief Works Agency for Palestine Refugees (UNRWA) definition, refers to “persons whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 conflict.” It’s estimated that some 750,000 Palestinians were driven or forced to flee their homes during the 1946-48 war between Israelis and Palestinian Arabs. Currently, about 6 million Palestinian refugees are eligible for UNRWA services, a UN agency mandated to provide work, education, relief, and health care services to them (UNGA Resolution A/302(IV).

Palestinian refugees are distinct from statutory refugees—those under the 1951 Convention on the Status and Rights of Refugees and UNHCR’s protection— therefore, they are eligible for exceptional treatment. First, Palestinian refugees are recognized by collective rights vs. individual rights: their claims are treated as a “group of people” based on Article 1A.2 of the 1951 Convention (Akram, 2002b). Second, this group of refugees is governed by a separate international regime, including the UN Conciliation Commission on Palestine (UNCCP, 1948), the UNRWA (1949), certain provisions of the 1951 Convention (Article 1D), and a series of UN resolutions (Res. 194, 242 and 338). In practice, however, Palestinian refugees are left without legal international protection.

Unlike other refugees whose status is determined by Article 1A.2 of the 1951 Convention, the status of Palestinian refugees is defined under Article 1D, which is interpreted as “severely restrictive and exclusive,” for it excludes this group of refugees from the most basic international human rights (Akram 2002a). Although the Article 1D doesn’t specifically mention them, it, according to Tekkenberg, applies exclusively to “Palestinian refugees.” (1999) The article reads as follows:

“This convention shall not apply to persons who at present are receiving from organs or agencies of the UN other than the UNHCR protection or assistance.”

The same provision provides Paragraph 7c of the UNHCR’s statute, which incorporates only the first sentence of Article 1D.

“The status of UNHCR will not extend to persons who at present receive protection or assistance from other organs or agencies of the United Nations.”

“Other agencies” operating “at the time” when the 1951 Convention was drafting was the UNCCP—designated to legally protect Palestinian refugees in the international arena—a mandate equivalent to that of UNHCR for other refugees (Rempel, 2000). Palestinian refugees were the only refugees receiving protection from other UN agencies (Tekkenberg, 1998).

According to the second sentence of Article 1D, however, “when protection or assistance” of the UN agencies has ceased without any settlement for such persons pursuant to relevant UN General Assembly’s resolutions, these persons shall ipso facto be entitled to the 1951 Convention’s benefits. The UNCCP mandate ceased in the early 1950s as the agency was unable to represent and promote Palestinian refugees’ rights and interests—repatriation and compensation (Rempel, 2000). In a progress report to the UN Secretary-General in 1951, the UNCCP confirmed the failure, stating that, “due to the unwillingness of the parties, the commission’s efforts to fully implement the mandate given by the UNGA resolutions had failed.” (UNCCP, A/1985)

The UNCCP’s focus then shifted to resettlement only, and was further curtailed with subsequent resolutions—ending up with the sole mandate to gathering information on refugee property in Israel and investigating the possibilities of property compensation (Akram, 2002b). Following the cessation of UNCCP’s mandate to protect and represent them, Palestinian refugees should have automatically been placed under the 1951 Convention and receive the UNHCR protection.

On contrary, since the 1950s, Palestinian refugees are left without international protection. No agency, as Akram argues, has the authority to intervene, represent, or protect them against infringement by states (2000). Because, the UNRWA has no political power to protect neither to represent or find a durable solution for Palestinian refugees—other than providing relief and assistance (Reem, 2008; Roberts, 2010). As a result, Palestinian refugees are ineligible for the most basic rights guaranteed under international refugee law, including freedom of movement, right to seek political asylum, residence and citizenship.

Besides that, UNRWA’s operation is impeded by its mandate that is renewed each year, limited donations, and limited geographic area of operations (Roberts, 2010). One of the main concerns raised at the UNSC last week was the UNRWA’s lack of funding, too.

The situation of Palestinian refugees: Perilous

Given the legal gaps on their status and rights, Palestinian refugees, as Human Rights Watch reports, have lived in a precarious situation—subjugated to discriminatory laws and restrictions to employment and social services—because none of the Middle East and Gulf region countries, except Israel, Egypt, and Yemen, are legally abided to the 1951 Convention and the 1967 Protocol—UNHCR (2014). The situation is especially dire in Lebanon—home of 300,000—450,000 Palestinians—and to some extent in Jordan, which deteriorated since 2005, respectively 2013 following Iraq’s and Syria’s wars. The majority of Palestinian refugees in Lebanon and Jordan, as Amnesty International observes in a recent report, remain stateless, consequently, they have no access to public services (2019).

Furthermore, in Lebanon, Palestinian refugees, as this organization revealed, are prohibited from practicing over 30 professions, including medicine, dentistry, law, architecture, and engineering. Mohammad, a 21-year-old, is among those who can’t work as a professional dentist simply because he is Palestinian. “I am surrounded by poverty…I want to create a better life for myself, away from all of this misery,” he told Amnesty.

In similar conditions live 2.1 million Palestinian refugees in Jordan—most of which are not allowed to work in government offices and banks (Amnesty International, 2019; Khaled Muhammed, 2009). In Iraq—out of the UNRWA’s mandate of operations, meanwhile, Palestinians have been a deliberated target of violence, harassment, and evictions under the suspicions they had cooperated with Saddam’s regime (Human Rights Watch, 2006). In almost all Western countries, on the other hand, Palestinian refugees’ claims are treated in the same way as those of other refugees—on an individual basis—as prescribed in Article 1A.2—thus violating the UNGA 194(III) resolution that acknowledges their “unique status.” (Akram, 2002b).

SUMMARY *

The author establishes two distinct arguments that reinforce one another. The first is legal: a drafting decision taken in 1951, combined with the early collapse of the body created to protect Palestinian refugees, left the largest and longest standing refugee population in the world outside the protection regime that applies to all others, with no agency mandated to represent it. The second is practical: this protection gap translates directly into statelessness, exclusion from professions and denial of public services across the principal host countries. From this the author concludes that any settlement which sets the refugee question aside addresses neither the legal anomaly nor the conditions it produces.

CONCLUSION

Solution: Respects Palestinian refugees’ right to return

There is a tentative within the US administration to exclude the “refugee issue” from the package deal on Palestine’s status. Trump’s White House through Special Envoy to the Middle East, David Satterfield, has intensified efforts to find a resolution on Palestinian refugees currently residing in Lebanon and Jordan (Haaretz, June 2019). Eventually, pressuring respective governments to accept Trump’s deal that would strip Palestinian refugees’ right to return to Israel. In fact, cutting the UNRWA’s funds and punishing refugees is viewed as a strategy to deny the refugee status of Palestinians. Trump eliminated all financial assistance for Palestinians, including the assistance to Palestinian security forces and contributions to the UNRWA, hoping to force Palestinians to make necessary concessions to Israel.

The “Peace to Prosperity” plan seems to have been designed with that intent in mind—omitting the “refugee issue” of the package deal and depriving refugees of the right to return to Israel. For Kushner, integrating Palestinian refugees within Arab countries is the most pragmatic, achievable, and viable solution in the modern age. He even tried to equate Palestinian refugees—driven or forced to flee out of Israel in 1948 with the Jews “exodus” from Arab countries—apparently an inadequate and misleading comparison (Times of Israel, June 2, 2019).

The “deal of the century” is strongly rejected because it doesn’t take into consideration the Arab Peace Initiative plan, standing, as Kushner explained for Al Jazeera, somewhere in between the Arab plan and Israel’s position towards Palestine status (August 19, 2019). Regarding refugees, the plan departs from the UN resolutions and previous peace agreements between Palestinian and Israel’s leaders on the resolution of this problem that includes a combination of resettlement of Palestinian refugees in Palestine, third-country resettlement, symbolic absorption of a small number of Palestinian refugees in Israel, and compensation (Id.).

Thus, any attempt to remove the “refugee issue” from the status settlement, as Lorenzo Kamel, Associate Professor of History at the University of Turin, argues, is doomed to fail (Al Jazeera, June 24, 2019). Even worse, it would further exacerbate the Israeli-Palestinian conflict. As Philip Luther, Director at Amnesty International, warns, “There can be no lasting solution to the Palestinian refugee crisis until Israel respects Palestinian refugees’ right to return.” (2019) This year marked 71 years of what is known to Palestinians as “Nakba”—meaning of catastrophe—and Israel still denies Palestinian refugees the right to return to their land, posing a flagrant violation of international law (Id.).

The international mediators, UN, US, EU + Arab Nations should stick to the existing peace plans by pressuring Israel to recognize the Palestinian refugees’ right to return, repatriation, and compensation. The receiving countries in the region should respect Palestinian refugees’ human rights by repealing discriminatory laws and removing obstacles blocking refugees’ access to employment and essential services pursuant to international law. All Western countries should treat Palestinian refugees’ claims based on the collective rights as envisioned on the UNGA Res. 194.

POTENTIAL SOLUTION *

Refugee questions are among the most difficult in mediation because they combine a legal claim, a material loss and a demand for acknowledgment, and because these three do not respond to the same remedies. Where they are treated as one indivisible issue, negotiation stalls; where they are separated, movement becomes possible on at least some of them, and every historical settlement of a comparable displacement has proceeded in that way.

Acknowledgment is the element most often omitted and the least costly to provide. What survivors and their descendants ask first is that what happened is named and recorded, and this can be offered through joint historical documentation and formal recognition of suffering without either party conceding its legal position. The survey evidence cited elsewhere in this journal indicates that willingness to compromise on the material questions rises significantly where acknowledgment is given, which makes it not a concluding gesture but an opening move.

The material claim is the most tractable of the three. Property loss can be documented, valued and compensated, and the records assembled by the Conciliation Commission before its mandate was curtailed remain the largest existing archive of Palestinian property holdings. Reviving and completing that work, under a body with a clear mandate and international funding, would establish the factual basis on which any compensation mechanism must rest, and it can proceed independently of agreement on return.

Return itself is where the positions are genuinely irreconcilable in their maximal forms, and no mediator can dissolve that. What earlier negotiations produced, and the article records this, was a composite formula: the majority of refugees settling in a Palestinian state, third country resettlement for those who choose it, a limited and symbolic absorption in Israel, and compensation for all. The importance of such a formula is that it converts an absolute claim into a set of individual choices, and choice is what the parties can actually deliver.

Two matters cannot wait for a settlement. The legal anomaly the author sets out means that several million people fall between two protection regimes, and closing that gap, whether by a revised interpretation of Article 1D, a strengthened protection mandate for an existing agency, or a dedicated mechanism, would be a substantial humanitarian achievement even in the absence of any political agreement. And the conditions in the host countries are the immediate reality of most of these lives. Access to work, education and health does not prejudice any legal claim, since the right of return is not extinguished by employment, yet host states have often treated the two as linked. Separating them, with international support for the costs, would end an impasse in which people are kept without rights in order to preserve a right, and it is the single change that would improve the largest number of lives soonest.

* Added by the WMO Editorial Team

REFERENCES

Literature cited:

Akram, Susan, M. 2002. Palestinian Refugees and Their Legal Status: Rights, Politics and Implications for a Just Solution, Journal of Palestine Studies XXXI, No. 3, pp.36-51.

Akram, Susan, M. 2000. Reinterpreting Palestinian Refugee Rights under International Law, and a Framework for Durable Solution, BADIL, Issue No.1.

Akram, S. M. & T. M. Rempel. 2009. “Temporary Protection for Palestinian Refugees: A Proposal.” In Rights in Principle, Rights in Practice: Revisiting the Role of International Law in Crafting Durable Solutions for Palestinian Refugees, ed. Rempel, T. M. BADIL Resource Center for Palestinian Residency& Refugee Rights.

Amnesty International. 2019. “Israel’s refusal to grant Palestinian refugees right to return has fueled seven decades of suffering.”

Diana Hodali and Emad Hassan, “Jared Kushner’s plan for Palestinians: What’s (not) in it?” DeutcheWelle, June 25, 2019.

Human Rights Watch. 2014. “Not Welcome: Jordan’s Treatment of Palestinians Escaping Syria.”

Human Rights Watch. 2006. “Nowhere to Flee: The Perilous Situation of Palestinian in Iraq.” Vol. 18, No. 4.

Khaled Muhammed, A. 2009. “Arab Protection for Palestinian Refugees, Analysis and Prospects for Development in Rights”. In Rights in Principle, Rights in Practice: Revisiting the Role of International Law in Crafting Durable Solutions for Palestinian Refugees, ed. Rempel, Terry, M. BADIL Resource Center for Palestinian Residency & Refugee Rights.

Khailidi, M. A. 1995. “Palestinian Refugees in Lebanon.” Middle East Report, 197, Vulnerabilities in the Gulf.

Lorenzo Kamel, “The Palestinian refugees and the ‘monologue of the century,’ Al Jazeera, June, 24, 2019.

Raphael Ahren and Agencies, “Kushner hints Palestinian refugees won’t return, says Trump ‘very fond’ of Abbas,” Times of Israel, July 3, 2019

Rempel, T. M. 2000. “The United Nations Conciliation Commission for Palestine, Protection and a Durable Solution for Palestinian Refugees.” Coordinator of Research and Information, BADIL, Issue No. 5.

Roberts, R. 2010. Palestinians in Lebanon: Refugees Living with Long-term Displacement. I.B. Tauris & Co Ltd.

Salahi, R. 2008. “Reinterpreting Article 1D: Seeking Viable Solutions to the Palestinian Refugee Anomaly.” Berkley Journal of Middle of Eastern & Islamic Law, Vol. 1 No. 7.

Takkenberg, Lex. 1998. The Status of Palestinian Refugees in International Law, Clarendon Press Oxford.

“Trump: US peace plan likely to be released after Israel election,” Al Jazeera, August 19, 2019.

UN Relief and Works Agency for Palestine Refugees in the Near East: Palestinian Refugees

UN Security Council SC/13997. “Preventive Diplomacy Needed to Ensure Lasting Peace in Middle East amid Dangerous Emerging Flashpoints, Special Coordinator Tells Security Council.” October 28, 2019.

Zvi Bar’el, “Analysis: Trump’s Peace Plan Would Give Palestinian Refugees Many, Many Countries,” Haaretz, June 02, 2019.

Supplementary references added by the WMO Editorial Team

United Nations General Assembly Resolution 194 (III), 11 December 1948, and Resolution 302 (IV), 8 December 1949 establishing UNRWA.

Convention Relating to the Status of Refugees, 1951, Article 1D, and the Protocol of 1967.

UNHCR, Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention Relating to the Status of Refugees to Palestinian Refugees, Geneva, 2017.

Arab Peace Initiative, Beirut Summit of the League of Arab States, 28 March 2002.

Government of Israel, official positions on the refugee question in final status negotiations, as recorded in the documentation of the Camp David (2000) and Annapolis (2007 to 2008) talks.