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MORE INTERNATIONAL PROTECTION FOR PALESTINIAN
REFUGEES?

A Critical Analysis of the September 2002
Revised UNHCR Interpretation of the Status of
Palestinian Refugees under International Refugee
Law

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 gaps') 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. 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) "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)  "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) "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
ARE 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 DESCENTENTS of 1948 refugees
(category "a") and 1967 refugees (category "b")
ARE ENTITLED TO PROTECTION under the 1951
Convention, EVEV 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 ASSITANCE" 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?"

1. The APPLICATON 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.

2. 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.

3. The revised interpretation, which includes detailed information about
UNRWA
criteria and standards of refugee registration, DOES N
OT CRITICALLY REFELCT 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 wil
l continue its efforts, within the confines of
its modest means, to lead this concerted debate.
------------------------------------------

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:
www.badil.org/Protection/Documents/Protect_Docs.h
tm

 * Relevant background information can be found
in BADIL Briefs No. 5 (UNCCP), No. 6 (UNRWA),
and No. 7 (UNHCR) at:
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:
www.badil.org/Publications/Other/Refugees/amicus.
pdf

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