Defining Palestinian Refugees – Making Sense of the Debate

Recent months have witnessed a steady stream of criticism directed towards the UN Relief and Works Agency for Palestine Refugees and how it defines persons falling under its mandate. Among the charges leveled against UNRWA is that it prolongs the Palestinian refugee situation through its registration practices. This includes the registration of the children of refugees along with refugees accorded citizenship in one of the Agency’s areas of operation, primarily Jordan, which hosts more than two million refugees from the 1948 Arab-Israeli war along with hundreds of thousands of refugees from the 1967 Arab-Israeli war.

Such criticisms have spawned a rather curious initiative by a handful of US congressmen for the declassification of a State Department report which allegedly puts the number of Palestinian refugees from the 1948 war at around 20-30,000. The assumption or rather conclusion drawn is that these elderly Palestinians comprise the actual number of refugees rather than the 5.4 million registered with UNRWA. The initiative is curious in part because estimates of first generation refugees from the 1948 war are part of the public record while their number is far from headline news given that the state of Israel has opposed the return of refugees to their places of origin, apart from a small number through family reunification, for some seventy years.

It is further alleged in this context that UNRWA’s registration criteria are not in line with global policy and practice, in particular, the refugee definition found in Article 1A(2) of the 1951 Convention relating to the Status of Refugees. In recent years, some members of the US Congress have also introduced bills that aim to replace UNRWA’s definition of a Palestine refugee with “the definition used by the UN High Commissioner for Refugees (UNHCR)” based on the apparent assumption that this will not only bring UNRWA in line with international standards, but will also help to resolve the Palestinian refugee situation, one of the core issues that stands in the way of a comprehensive solution to the long-standing Israeli-Palestinian conflict.

In a recent interview, Doug Lamborn (Republican/Colorado), sponsor of one of the most recent bills, innocuously titled The UNRWA Reform and Refugee Support Act, thus observed that

readjusting the official definition of a Palestinian refugee could change the calculus in the long-stalled peace process, a major sticking point of which has been the so-called right of return to Israel for Palestinian refugees. An influx of millions of refugees would erase Israel’s Jewish majority.

The latter point raises important questions that deserve further consideration. The issue here is that much like the Trump administration’s decision to recognize Jerusalem as the capital of Israel, the above measures, as Jared Kushner’s (the President’s son-in-law and the administration’s envoy to the region) leaked emails acknowledge, essentially aim to remove the Palestinian refugee issue from the negotiating table. In doing so, the Trump administration is not only rewriting decades of US policy, under which core issues would be resolved through negotiations, it also appears to have consigned peace agreements between Israel and the Palestine Liberation Organization (PLO) designating Jerusalem and refugees as final status issues to the dustbin of history.

It is important to note that the debate over UNRWA and how it defines refugees under its mandate is far from a straightforward issue in the US political arena. In late July, citing both humanitarian and security considerations, seventy House Democrats called upon the Trump administration to restore financial support of UNRWA, suspended since January in response to Palestinian opposition to US recognition of Jerusalem as Israel’s capital. Earlier in the month, seven former ambassadors to the United Nations, Republican and Democrat, similarly called upon the administration to restore financial support for the cash-strapped Agency. These interventions followed a May letter by thirteen Democratic Senators calling upon the Trump administration to reverse course and release funds for UNRWA’s humanitarian programs.

Nor is the debate over UNRWA’s refugee definition cut and dried when it comes to Israeli, Arab and Palestinian efforts to resolve the issue. Some fifty years ago, Israel and Jordan recognized UNRWA registration cards as proof of refugee status in relation to the return of Palestinians displaced during the 1967 Arab-Israeli war. Roughly three-and-a-half decades later, Palestinian and Israeli negotiators similarly agreed that registration with UNRWA would be considered prima facie proof of refugee status in the context of a solution to the refugee issue. They also agreed to establish a special committee to verify refugee status in accordance with a comprehensive definition to be set out in the final agreement between the parties. Similar recognition of UNRWA registration as proof of refugee status can be found in a number of unofficial agreements.

In the nearly two decades since the collapse of final status negotiations, however, the allegations leveled against UNRWA and how it defines a Palestinian refugee have become increasingly shrill. Much of the criticism originates from a small group of non-governmental organizations and think-tanks in Israel and the United States with members of Israel’s current government, including its Prime Minister, joining the fray. Speaking with US Ambassador to the United Nations, Nikki Haley, two months after UN Secretary-General, Antonio Guterres, submitted a major report on the sustainability of UNRWA funding early last year, Benjamin Netanyahu argued that “the time has come to disband UNRWA and integrate it into UNHCR” since the Agency “perpetuates – and does not solve – the Palestinian refugee problem”. According to recent press reports, however, the Israeli government lobbied against the suspension of US funding of UNRWA fearing such cuts would spark further instability in the Gaza Strip. This would not be the first time that it had done so.

The various campaigns directed against UNRWA, calling for the Agency’s reform or dissolution, come at a time when UNRWA is struggling to cope with humanitarian emergencies in multiple fields of operation, the Gaza Strip and Syria, in particular, further exacerbating the Agency’s ability to meet the basic needs of refugees in the absence of a political solution to the conflict. It is criticisms like the ones described above that often make resource mobilization even more challenging. Concerned about the public criticism directed at UNRWA, the Secretary-General, who also happens to be the former High Commissioner for Refugees, called upon member states

to continue their support of the Agency in order for UNRWA to be in a position to fulfill impartially and efficiently its essential role and to implement its humanitarian mandate to serve Palestinian refugees until a just and durable solution to their situation is found.

With increasingly high profile attention given to the allegation that UNRWA prolongs the refugee situation, in part through its registration practices, the emergence of a growing body of academic and policy-oriented research on the status of Palestinian refugees under international law over the past two decades seems to have been largely overlooked over simply ignored by the Agency’s critics. Part and parcel of a broader trend towards the mainstreaming of human rights in humanitarian action and development cooperation, it is the impact of this shift towards rights-based approaches on the framing of Palestinian/Israeli conflict, notwithstanding its limited impact on people’s day-to-day lives in the absence of effective enforcement, that perhaps helps to explain the allegations against UNRWA and concomitant efforts to shutter the humanitarian agency.

As Orit Gal explains in a recent book on refugee compensation,

Once the [Palestinian] refugee issue is no longer perceived in ‘collective national’ terms but rather in terms of ‘individual rights’, its function as a negotiable element between the two peoples becomes irrelevant. Under such circumstances, a trade-off no longer exists within the refugee issue between the principled collective concepts of the ‘right of return’ and the Jewish state.

Therefore, a comprehensive peace agreement that brings closure to all Palestinian and Jewish grievances cannot be reached.

Thus, history has in a way come full circle. With the collapse of UN-led negotiations on Palestinian refugees after the 1948 war, senior officials in Israel’s Foreign Ministry coined the phrase: “If you can’t solve, dissolve it”. What Israeli officials meant, as Nur Masalha goes on to explain in The Politics of Denial, was that “if you cannot solve the Palestinian refugee problem by political means, you can try to ‘dissolve’ the problem and disperse the refugees through economic means and employment projects”. Hence, the current controversy over how Palestinian refugees are defined and Jared Kushner’s reported effort to dissolve UNRWA with the offer of financial aid as enticement for the absorption of refugees in Arab host states. None of this, of course, is new in the long-running history of what has become known as the Palestinian refugee problem.

While it is far from certain that UNRWA’s critics will be mollified by the explanation that follows, given their apparent objective of removing the Palestinian refugee issue from the negotiating table, it is nonetheless important to address the errors and oversights upon which the above allegation against the Agency rests. UNRWA is certainly not beyond criticism, indeed, constructive critique from a range of stakeholders including refugees themselves over many decades of operation has contributed to various management and programme reforms that have enabled the Agency to sustain and improve the quality of its services notwithstanding chronic budget shortfalls and concomitant concerns about the sustainability of its services in the absence of a political solution to the conflict.

Such criticism, however, should be guided first and foremost by the protection principles set out in the Humanitarian Charter beginning with a commitment to avoid exposing people to further harm by one’s actions to ensuring people’s access to impartial assistance and protecting people from physical and psychological harm arising from violence and coercion. Equally important in light of the protracted nature of the Palestinian refugee situation is a commitment to assist people in claiming their rights, accessing remedies to related violations and providing assistance in recovering from abuse. It is these four principles which provide a useful framework for assessment of UNRWA’s many decades of service in meeting the needs and addressing the concomitant rights of Palestinians displaced as a result of the unresolved struggle over Palestine/Israel.

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Criticism of how UNRWA defines the refugees falling under its mandate appears to assume that there are only two refugee definitions, one used by UNRWA with reference to Palestinians and another used by UNHCR for all other refugees. It is this fundamental error that leads to the inaccurate comparison between a “Palestine refugee”, as defined by UNRWA, and the definition of a refugee found in Article 1A(2) of the 1951 Convention relating to the Status of Refugees. Indeed, the multiple definitions of a Palestinian refugee, as we shall see, help explain why UNRWA and UNHCR define refugees falling within their respective mandates in different ways.

While a comprehensive discussion of the multiple efforts to define who is a Palestinian refugee is beyond the scope of this commentary, important here is the fact that prior to UNRWA’s establishment in the fall of 1949, the UN Conciliation Commission for Palestine (UNCCP) had already made an initial effort to define a Palestinian refugee under General Assembly Resolution 194. In addition to providing a general “roadmap” for resolving the conflict, the resolution, which also established the UNCCP, provided specific directives for a solution to the refugee crisis arising from the 1948 war. In paragraph 11 the General Assembly

[r]esolv[ed] that the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible;

In the second clause the Assembly further instructed the UNCCP

to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees [UNRWA’s predecessor] and, through him, with the appropriate organs and agencies of the United Nations;

Paragraph 11 thus affirms the durable solutions afforded to refugees around the world, the principle of refugee choice, along with reparations for loss and damage with relevant rights enumerated in the first clause and the role accorded to the UNCCP elaborated in the clause that follows. Commenting on who was a refugee under paragraph 11, the Commission’s Secretariat concluded that

the term “refugees” applies to all persons, Arabs, Jews and others who have been displaced from their homes in Arab Palestine.

The only other definitions of a Palestinian refugee at the time comprised the registration criteria used by non-governmental organizations mandated to distribute relief to Palestinian refugees under the auspice of the above-mentioned UN Relief for Palestine Refugees. It was the recommendations of the UN Economic Survey Mission, a sub-organ of the UNCCP, that led to the creation of UNRWA which assumed responsibilities for relief with an expanded mandate for works, that is to say development projects that would contribute to self-reliance (then described as economic reintegration), from non-governmental organizations whose resources had reached the point of exhaustion.

UNRWA’s definition underwent several revisions during its early years of operation with the primary aim of reducing the number of Agency beneficiaries given the finite resources available to meet the basic needs of the refugees after the 1948 war. As of the mid-1950s, UNRWA defined “Palestine refugees” in relation to its relief and works programmes as

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.

In the absence of a political solution to the conflict UNRWA also began for humanitarian reasons to register the new-born children of refugees. Writing in 1965 to the General Assembly, the Agency’s Commissioner-General explained that

so long as international assistance is given to the Arab refugee community, third generation children cannot humanely be denied health services at the time of birth (since their mothers receive medical care) nor use of UNRWA shelters. As these children grow up, it would be harsh and uneconomic to deny them access to nearby UNRWA health services and to force them to use more distant facilities. When they reach school age, it would similarly be difficult to insist that such children, especially those who parents live in camps, be excluded from UNRWA schools, and to demand that they travel to more distant government or private schools. As for including such children in the distribution of rations, the fact is that, if limitations such as the present ration ceilings have to be maintained in the future, third generation children would in any event have to join a waiting list. From the humanitarian standpoint, the exclusion of these children from eligibility for rations would mean that, within a given refugee family whose need for rations was not in doubt, some members would receive rations because their parents were born in Palestine and others be denied them because their parents were born after the family was uprooted from its home.

It is the continuation of this practice over time, as noted earlier, that has led in part to allegations that the Agency is out of line with international policy and practice regarding the registration of refugees. This criticism will be examined shortly after taking a brief look at some of the additional definitions of a Palestinian refugee.

Having previously examined, in general terms, who might qualify as a refugee under paragraph 11 of Resolution 194, the UNCCP’s Refugee Office, in consultation with legal experts from UNHCR’s protection department, subsequently drafted a more detailed refugee definition to determine those persons eligible for durable solutions under paragraph 11. This included

persons of Arab origin, who after 29 November 1947, left territory at present under the control of the Israeli authorities and who were Palestinian citizens at that date. Are also to be considered as refugees under the said paragraph stateless persons of Arab origin who after 29 November 1947 left the aforementioned territory, where they had been settled up to that date. Persons who have resumed their original nationality or who have acquired the nationality of a country in which they have racial ties with majority of the population are not covered by the provisions of the above paragraphs of this Article. It is understood that the majority of the said population should not be an Arab majority.

Given the stalemate in political negotiations, the Refugee Office also drafted a second definition to determine those Palestinians who would qualify as refugees in relation to the protection of their rights in the countries that hosted them until they were able to choose between the various solutions set out in paragraph 11. The text of this definition is unfortunately not part of the public record. We will return to the significance and fate of these additional definitions of a Palestinian refugee later as they are important in understanding the frequent association made between registration with UNRWA and the legal status of Palestinian refugees.

Lastly, while not a definition, per se, it is common to draw a distinction between Palestinians displaced during the two major Arab-Israeli wars of 1948 and 1967. Thus, in its first annual report after the second war, UNRWA explained that

the term “refugees”, “displaced refugees” or “newly displaced refugees” refers to those persons who were registered with UNRWA prior to the June 1967 hostilities; the term “displaced persons” or “other displaced persons” refers to those who were displaced after the outbreak of the June 1967 hostilities and who are not registered with UNRWA.

In its Guidelines on International Protection (No. 13), UNHCR similarly defines displaced persons as

[p]ersons who are “displaced persons” within the sense of UN General Assembly Resolution 2252 (ES-V) of 4 July 1967 and subsequent UN General Assembly resolutions, and who, as a result of the 1967 conflict, have been displaced from the Palestinian territory occupied by Israel since 1967 and have been unable to return there;

adding, in line with UNRWA’s registration criteria, that the category of displaced persons

also includes those persons displaced by “subsequent hostilities” [under General Assembly Resolution 37/120 of 16 December 1982].

While UNRWA provides assistance to this second major group of Palestinian refugees, at the request of the UN General Assembly, they are not counted in the Agency’s registration statistics. In other words, the 5.4 million refugees registered by UNRWA in 2017 comprise a subset, albeit the largest, of the total Palestinian refugee population.

Important here then is the general distinction between the definitions drafted or used by the UNCCP and UNRWA. The draft UNCCP definitions described above dealt with durable solutions and international protection of refugees in host countries pending a political settlement that would enable them to choose among the solutions set out in paragraph 11 of Resolution 194. What became of these additional and related definitions of a Palestinian refugee will be addressed shortly. The evolving definition used by UNRWA, by way of contrast, determined eligibility for assistance through the Agency’s relief and works programmes, which not unlike UNHCR’s programmes, have also evolved over time in response to the changing needs of refugees. As we shall also see, the fact that UNRWA’s definition of a Palestine refugee also acquired additional meanings further helps to explain the comparison, albeit inaccurate, with the definitions used by UNHCR.

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Criticism of how UNRWA defines a Palestinian refugee also appears to rest on the assumption that UNHCR defines refugees around world in only one way. While the above-mentioned bills in the US Senate and House of Representatives refer, generally, to “the definition used by UNHCR”, it seems that sponsors may be referring more specifically to the definition codified in Article 1A(2) of the 1951 Refugee Convention. Indeed, the critique laid out in the various bills closely tracks arguments commonly made by some of UNRWA’s more stalwart critics. Sometimes described as the “classic” definition of a refugee, the comparison with Article 1A(2) overlooks or ignores the multiple definitions of a refugee under international and regional instruments, not to mention domestic legislation governing immigration and asylum procedures around the world.

UNHCR’s Statute incorporates both group and individual definitions with the agency also responsible for refugees falling under the group and individual definitions codified in Article 1A(1) and 1A(2) of the 1951 Refugee Convention. The UN General Assembly and the Economic and Social Council have since called upon UNHCR to accept responsibility for certain groups of displaced persons whose circumstances do not meet the definitions found in the above instruments. UNHCR thus considers refugees to include persons recognized as such under

  • the 1950 Statute of the UNHCR;
  • the 1951 Refugee Convention and/or 1967 Protocol;
  • the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa; and
  • the 1984 Cartagena Declaration on Refugees.

UNHCR also recognizes as refugees persons granted residence on humanitarian grounds along with persons granted temporary protection on a group basis. The majority of the world’s refugees falling under UNHCR’s mandate today, moreover, are recognized as such on a prima facie basis, that is to say, on the basis of readily apparent, objective circumstances in the country of origin, rather than under the individualized definitions found in the above instruments.

The above ways in which UNHCR defines who is a refugee are relevant to the definition of a Palestinian refugee in multiple ways. First, displaced Palestinians who are neither “Palestine refugees” nor “displaced persons”, as defined by UNRWA, and are outside the state of Israel and the territories it has occupied since 1967, namely, the West Bank, East Jerusalem, Gaza Strip, may qualify as refugees in states signatory to the 1951 Refugee Convention within the meaning of the refugee definition found in Article 1A(2), that is to say, a person who

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Second, Palestinians who became refugees as a result of the 1948 and 1967 Arab-Israeli wars, that is to say, “Palestine refugees” and “displaced persons”, and are likewise outside UNRWA’s areas of operation, namely, the West Bank, Gaza Strip, Jordan, Lebanon and Syria, may qualify as refugees under the Convention within the meaning of Article 1D which states that

[t]his 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.

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.

Implicit in the 1965 (Casablanca) Protocol for the Treatment of Palestinians in Arab States is a third definition of a Palestinian refugee. Through the Protocol, the League of Arab States sought to regularize the treatment of displaced Palestinians in member states, a form of temporary protection, pending the realization of durable solutions to their situation. As Lex Takkenberg observes in his book on The Status of Palestinian Refugees under International Law, the reference to Palestinians rather than “Palestinian refugees” as used in previous League resolutions

was apparently initiated by the realization that the legal position of non-refugee Palestinians was much the same as that of those who had become refugees during the 1948 war. Both categories of persons being largely composed of de facto or de jure stateless persons, they are equally in need of the status provided for in the Protocol.

The use of the term Palestinian may have also reflected League recognition of the Palestinian people in contrast to the prevailing view of Palestinians after the 1948 war as refugees. Of further significance to the discussion here is Takkenberg’s additional observation that

[with the exception of] several resolutions of the Arab League there are no international instruments [akin to the 1951 Refugee Convention] dealing specifically with Palestinian refugees. As a consequence there is also no generally accepted definition of who are considered to be Palestinian refugees in a legal context.

A fourth possible definition can be found in the draft Arab Convention on Regulating Status of Refugees in the Arab Countries although the applicability of the Convention to the Palestinian situation remains unclear. Similar to the above-mentioned regional convention in Africa and the Latin American declaration, the draft convention incorporates the individual definition codified in the 1951 Refugee Convention supplemented by an expanded definition which defines a refugee as any person

who unwillingly takes refuge in a country other than his country of origin or his habitual place of residence because of sustained aggression against, occupation and foreign domination of such country or because of the occurrence of natural disasters or grave events resulting in major disruption of public order in the whole country or any part thereof.

The expanded refugee definitions found in the Protocol and draft Convention essentially aim to address the specific circumstances of forced displacement in the Arab world.

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To this point we have described the wide range of refugee definitions, Palestinian and other, along with the relevance of the latter to the Palestinian refugee situation. The fact that there is more than one way to define a refugee obviously undermines the argument that UNRWA’s definition of a Palestine refugee is out of line with international policy and practice, or as critics have put it, how UNHCR defines refugees around the world. More to the point, the existence of multiple refugee definitions underscores the fact that how a refugee is defined as others have pointed out is a product of the specific circumstances of forced displacement and the balance of interests of those taking part in the drafting of relevant definitions. This also helps to explain what has been perceived or described as a discrepancy between UNRWA’s definition of a Palestine refugee and the definition codified in Article 1A(2) of the 1951 Refugee Convention.

Thus, in the case of the Article 1A(2), the primary objective was to ensure the protection of individuals, primarily in Europe (Article 1B allowed contracting states the option of extending Convention protections to refugees elsewhere), fleeing persecution based on civil and political status before the 1 January 1951. The above geographical and temporal limits were removed under the 1967 Protocol to the Convention. As Jennifer Hyndman further explains

[d]espite claims to the contrary, the Convention definition was never intended to be universal. The geographically exclusive definition of a refugee underplayed violence and material deprivation that was the result of colonialism and imperialism.

The OAU definition [referred to above] translated the core meaning of refugee status to the economic and geopolitical realities of the Third World. The definition also recognized in law the concept of group disenfranchisement and the legitimacy of flight where there was generalized danger, not limited to individual persecution.

Tasked by the UN Security Council in the fall of 1949 with looking into the status of Palestinian refugees in the months preceding UNRWA’s establishment, legal experts employed by the International Refugee Organization (IRO), UNHCR’s predecessor organization, pointed out that unlike post-war European refugees Palestinians were displaced as a result of armed conflict and did not fall within the individualized and persecution-based approach used by the IRO and later codified in the 1951 Refugee Convention. As Gerard Cohen goes on to explain in his book on Europe’s Displaced Persons in the Postwar Order

the IRO concluded that the determination of a legal status for Palestinians was less urgent than the delivery of humanitarian help: the need for material assistance is much greater.

Hence, the focus on determining eligibility for relief (and later works) in UNRWA’s definition of a Palestine refugee based on criteria used by non-governmental organizations distributing relief under the Agency’s predecessor organization, the UN Relief for Palestine Refugees, which was set up in the fall of 1948 under General Assembly Resolution 212 several weeks prior to the establishment of the UNCCP. The League of Red Crescent Societies, one of the above-mentioned non-governmental organizations, thus held that

any person who had permanent residence and principal occupation in Palestine from which as a result of the Palestine conflict he has been deprived and who is without sufficient resources for basic maintenance shall be considered a refugee eligible for UNRPR relief.

The first major definition of a Palestinian refugee drafted by the UNCCP Secretariat similarly reflected its drafting context. To begin, in both form and content, the Commission’s first effort to define a refugee under paragraph 11 is similar to the group-based definitions used by the League of Nations during the interwar period beginning with the definition of Russian and Armenian refugees. While the UNCCP had a much broader mandate under Resolution 194 to facilitate a comprehensive solution to the conflict, the General Assembly gave the Commission specific directives in paragraph 11, as noted earlier, on how to resolve the Palestinian refugee situation. It was the emphasis on refugee return and the principle of choice in the first clause that also appears to explain in part why the acquisition of a new nationality in an Arab state would not lead to the cessation of their status as refugees in relation to durable solutions. This is an interesting point which we will return to at the end of the commentary.

That the Commission’s Refugee Office drafted a second definition relating to the protection of refugees in the host countries essentially acknowledged that the context (and initial assumptions that led to the drafting of its first definition relating to durable solutions) had changed in light of the political stalemate. Recognition of this change and the concomitant importance of protection in the context of an increasingly protracted refugee situation is also reflected in UNRWA’s 1952 annual report which included an annex on the legal status of Palestinian refugees in their respective host countries. Introducing the annex, UNRWA noted that

[i]n principle the status of refugees [in the host countries] is a matter out-side the terms of reference of UNRWA; it nevertheless has a close bearing upon the activities and programme of the Agency. It was therefore considered advisable to make a separate study of this question.

Thus, as we have seen so far, there are multiple refugee definitions each of which serve different purposes with the situation further complicated by multiple interpretations and the concomitant application of each definition in different ways. This background is essential in understanding the differences between the definitions used by UNRWA and UNHCR and why they define refugees in different ways. In his discussion of UNRWA’s definition of a Palestine refugee Takkenberg offers the following summary:

[t]he UNRWA definition of a Palestine refugee was developed to meet a condition [i.e., to prevent conditions of starvation and distress among them and to further conditions of peace and stability (Res. 302, paragraph 5)], not to satisfy a theory.

Elaborated for operational purposes and tacitly accepted, but never formally approved in the General Assembly, the definition was designed solely for the determination of eligibility for UNRWA assistance.

It should also again be stressed that the refugee concept, embodied in the UNRWA definition, does not necessarily coincide with the one generally employed in the context of international refugee law.

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This still leaves us with the question of why various state and non-state actors frequently associate UNRWA’s definition of a Palestine refugee with their legal status as refugees under international law. The first reason can be traced back to the 1951 Refugee Convention itself, in particular, the above-mentioned Article 1D which was inserted into the Convention (the reasons for this have been dealt with extensively by Lex Takkenberg, Guy Goodwin-Gill and Susan Akram) with the specific situation of Palestinian refugees in mind. As Takkenberg explains with specific reference to UNRWA,

it may be argued that indirectly the [Agency’s] definition has become part of the definition of the [Refugee Convention through reference to organs or agencies of the United Nations other than the UNHCR under Article 1D].

This would arguably apply as well to the above-mentioned UNCCP definitions with one important caveat, which brings us to the second possible reason why UNRWA’s definition of a Palestine refugee is frequently associated with refugee status. With the UNCCP’s mandate essentially reduced to the documentation and valuation of property losses arising from the 1948 war after the collapse of political negotiations in late 1951, implementation of the broader directives in paragraph 11 of Resolution 194 were marginal to the Commission’s work. As for its draft definitions of a Palestinian refugee, they were never adopted and operationalized.

What might have resulted from the apparent shift towards protection and the drafting of a second definition as described above is little more than historical conjecture. Shrouded in secrecy, with UNCCP archives still inaccessible to researchers, notwithstanding the digitization of a significant number of documents, this early “definitional history” of a Palestinian refugee was either quickly forgotten or remains largely unknown. In any case, the UNCCP’s effective demise some three years after its establishment likely contributed to the widely-held assumption that UNRWA’s definition was the only definition of a Palestinian refugee, hence the comparison with the definition codified in the 1951 Refugee Convention.

The UNCCP’s demise, however, was not the end of the definitional story. As Ilana Feldman explains in her discussion of UNRWA’s refugee definition based on a careful sifting of the Agency’s archives, the differentiation between refugee status and refugee eligibility for UNRWA assistance “quickly emerged” and repeatedly arose in the years and decades that followed the cessation of most of the UNCCP’s activities on behalf of Palestinian displaced as a result of the 1948 war.

All parties were aware of the fact that even as UNRWA’s refugee definition was humanitarian in orientation (directed toward defining those who received assistance), its effects were also both social and political.

Definition did not have a single effect. Even as it could produce loss, UNRWA’s definitional practice sometimes created political possibility, offering a category and a label through which Palestinian national loss could be acknowledged and perhaps rectified. This possibility was as contested as any other aspect of definition and has never been wholly or adequately realized.

It is this second and political rather than humanitarian aspect of UNRWA’s definition of a Palestine refugee that is arguably primary to the above-mentioned criticism and the concomitant efforts to dismantle the Agency.

Jalal al-Husseini further suggests that the association between UNRWA’s definition and the legal status of refugees may also be attributed to early donor efforts to reduce the number of Agency beneficiaries. In the absence of a political solution to the conflict, it was only a matter of time before donor fatigue led to questions about whether Palestinian refugees could still be described as being in need, a second definitional issue that was problematic from the outset. As al-Husseini goes on to explain

[t]he criterion of “being in need” that was initially conceived as a key registration criterion determined only eligibility for services (not registration per se) as early as 1953, precisely as a means of encouraging refugees to find jobs without affecting their “self-perceived” status as Palestine refugees.

In other words, while some refugees would be deemed ineligible for assistance, they would nevertheless retain their UNRWA registration cards. Thus, in the mid-1950s the Agency introduced various categories (later phased out) to determine levels of need including a so-called “N” category for registered refugees who no longer qualified for UNRWA services. The idea being put forward by Jared Kushner and his team appears to be precisely the opposite, conditioning further assistance to a limited number of refugees via host states on the cessation of an assumed “refugee status” through UNRWA’s dissolution.

The above commentary usefully brings us to the fourth and related reason for the frequent association between UNRWA’s definition of a Palestine refugee and refugee status, namely, the perception among many refugees themselves of a direct link between registration with UNRWA and their legal status. As UNRWA itself acknowledged in the mid-1950s at the same time that it introduced the above-mentioned categories of need: “The Agency’s ration card was regarded by refugees as their only evidence of refugee status”. As the literature on refugees makes clear, this subjective or self-definition as a refugee is hardly unique to displaced Palestinians.

It also brings us back to the above-mentioned allegation that UNRWA prolongs the refugee situation through its registration practices. Political efforts to replace UNRWA’s definition or dissolve the Agency entirely essentially comprise an effort to (re)define Palestinian refugees out of existence without regard to their rights, claims and needs, not to mention their participation in decisions that affect their lives. It also brings to fore the short-sightedness of such efforts in the sense that like other refugees around the world, Palestinians are unlikely to (re)define themselves otherwise simply because they are told that they are no longer refugees.

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While the above discussion helps to explain the persistent association between registration with UNRWA and the legal status of Palestinian refugees, the fundamental point is that the substantive differences between UNRWA’s definition of a Palestine refugee and the refugee definition codified in Article 1A(2) as described above makes criticism of UNRWA’s registration practices largely irrelevant from a legal perspective. The second definition drafted by the UNCCP’s Refugee Office may have afforded a better opportunity for comparison given its focus on international protection pending a durable solution to the Palestinian refugee situation, notwithstanding the absence of a treaty setting out the rights of refugees and corresponding obligations of states akin to the 1951 Refugee Convention, but as we have seen the Refugee Office was shuttered before the definition was adopted and operationalized.

Even if one accepts the comparison at face value, however, the argument that UNRWA’s registration practices are out of line with international policy and practice governing the registration of other refugees faces two additional challenges. First, the assumption that UNHCR does not register the children or descendants of refugees is not entirely accurate. While critics of UNRWA’s registration practices sometimes argue that Article 1A(2) of the 1951 Refugee Convention does not refer to descendants, neither does UNRWA’s definition of a Palestine refugee. In both cases, one has to look at each of the two agency’s registration criteria where one discovers that, with certain caveats specific to their respective mandates, UNRWA and UNHCR for humanitarian reasons each consider the descendants of refugees as refugees until a durable solution is found to their situation. Thus, according to UNHCR’s registration criteria:

184. If the head of a family meets the criteria of the definition, his dependants are normally granted refugee status according to the principle of family unity. It is obvious, however, that formal refugee status should not be granted to a dependant if this is incompatible with his personal legal status. Thus, a dependant member of a refugee family may be a national of the country of asylum or of another country, and may enjoy that country’s protection. To grant him refugee status in such circumstances would not be called for.

185. As to which family members may benefit from the principle of family unity, the minimum requirement is the inclusion of the spouse and minor children. In practice, other dependants, such as aged parents of refugees, are normally considered if they are living in the same household. On the other hand, if the head of the family is not a refugee, there is nothing to prevent any one of his dependants, if they can invoke reasons on their own account, from applying for recognition as refugees under the 1951 Convention or the 1967 Protocol. In other words, the principle of family unity operates in favour of dependants, and not against them.

In its more recent Guidelines on International Protection (No. 13), UNHCR further observes with specific reference to the status of descendants, as defined in UNRWA registration criteria, that

[b]ased on principles of gender equality and non-discrimination on the basis of sex, as well as the principle of family unity, these descendants, whether they are descended through the male or female line, would be considered to fall within the purview of Article 1D. This includes descendants who were born outside of and who have never resided in UNRWA’s areas of operation, where the criteria for the application of Article 1D are met.

The Guidelines further state that

[i]t would also be incorrect to read Article 1D as applying only to those persons who were Palestinian refugees in 1951. This would run contrary to the intentions of the Convention’s drafters, who sought to ensure continuity of protection for the specific class of persons addressed in Article 1D until their position was definitively settled, a need which continues not only for those who were Palestinian refugees in 1951, but also persons who were displaced by the 1967 conflict as well as their descendants.

This information is publicly accessible so it is not clear, other than the objectives described above, why critics of UNRWA continue to propagate the idea that the Agency’s registration of descendants in the absence of a solution to the Palestinian refugee situation is out of line with international policy and practice. Indeed, a recent report on US assistance to Palestinians by the Congressional Research Service cites communication with the State Department which noted that

[i]n protracted refugee situations, refugee groups experience natural population growth over time. UNHCR and UNRWA both generally recognize descendants of refugees as refugees for purposes of their operations; this approach is not unique to the Palestinian context. For example, UNHCR recognizes descendants of refugees as refugees in populations including, but not limited to, the Burmese refugee population in Thailand, the Bhutanese refugee population in Nepal, the Afghan population in Pakistan, and the Somali population seeking refuge in neighboring countries.

This is essentially the same explanation that appears in the State Department’s above-mentioned declassified and redacted report to Congress on protracted refugee situations under which the Department was required to report on the number of refugee descendants registered with UNRWA.

Starting from the same assumption – for the sake of argument – that UNRWA’s definition of a Palestine refugee is equivalent to the refugee definition in Article 1A(2) of the 1951 Refugee Convention, the question of whether UNRWA’s registration of refugees is out of line with criteria for the cessation of refugee status, including the acquisition of a new nationality, depends in part on one’s interpretation of the Refugee Convention. Relying upon the plain language of Article 1C, for example, Susan Akram argues that cessation of refugee status under Article 1D as a result of the acquisition of a new nationality

[does] not apply to Palestinians, as Article 1C [plainly] states, “This Convention shall cease to apply to any person falling under the terms of section A”. Article 1D refugees do not fall “under the terms of Section A”, hence 1C does not refer to Palestinians at all.

This does not appear to be the case with Article 1E governing the cessation of refugee status for persons “having the rights and obligations which are attached to the possession of the nationality of [their country of residence]”. In its above-mentioned Guidelines on International Protection, UNHCR acknowledges the implications of the plain language of Article 1C for Palestinian refugees under Article 1D, but further argues that

such an interpretation no longer corresponds to the reality that a number of Palestinian refugees have acquired the nationality and protection of other countries, such that they no longer need the protection of the 1951 Convention.

UNHCR’s departure from the plain language of Article 1C appears to be a pragmatic response to the evolving status accorded to Palestinian refugees by host states in the context of a protracted situation. It would, at present, affect only a small number of refugees who find themselves outside UNRWA areas of operation. Should UNRWA cease to exist, however, UNHCR’s interpretation of Article 1C would create an entirely different set of challenges, substantively and in order of magnitude, given the different mandates of the two refugee agencies as described earlier. UNHCR’s interpretation nevertheless brings Article 1C in line with Article 1E in relation to Palestinian refugees albeit for reasons that are admittedly inconsistent with the plain language of the Convention.

Akram and UNHCR agree, however, that regardless of their status under the 1951 Refugee Convention, Palestinians remain refugees in the sense of General Assembly (Resolution 194) and Security Council (Resolution 237) resolutions until their situation is settled in accordance with the terms set out in the respective resolutions. As UNHCR explains in its Guidelines on International Protection relating to Article 1D

[t]his interpretation of [Article 1C of] the 1951 Convention is necessarily without prejudice to the meaning of “the Palestinian people”, as well as to the meaning of the terms “refugees” and “displaced persons” as used in various UN General Assembly and UN Security Council Resolutions.

This interpretation is also consistent with the UNCCP’s above-mentioned draft definition of a refugee with respect to the implementation of paragraph 11 of Resolution 194. UNHCR adds that

[d]espite the decision by the UN General Assembly in 2012 to accord non-member observer State status in the United Nations to Palestine, Article 1D should continue to be interpreted and applied as outlined in these Guidelines and until the situation of Palestinians is definitively settled in accordance with General Assembly resolutions. It is premature to consider that the protection of the 1951 Convention should cease to apply to Palestinian refugees, merely by reason of Palestine having been accorded non-member observer status.

This brings us to a final problem that is common to much of the criticism of how UNRWA defines Palestinians as refugees, namely, the conflation of one’s legal status as a refugee with the right to return to one’s country of origin or place of habitual residence. The assumption is that if Palestinian refugees are no longer considered refugees in the legal (or political) sense of the term, through the acquisition of a new nationality or equivalent status (or through de-registration with UNRWA), they will no longer have a right to return to their places of origin inside the state of Israel. This is arguably the driving motivation to (re)define a Palestine refugee and dissolve the UN Agency set up to assist them until they are able to realize durable solutions to their situation.

The above discussion already makes clear that neither UNHCR nor UNRWA support this interpretation of the relationship between the cessation of refugee status and the right of Palestinian refugees to return to their homes and places of origin under relevant UN resolutions. As both agencies point out in a joint publication on The United Nations and Palestine Refugees

generally, the two latter options [for durable solutions, namely, local integration and third country resettlement] do not prevent refugees from returning to their former country of origin if they so wish and conditions allow.

The UNCCP’s Special Representative, Dr. Joseph Johnson, then head of the Carnegie Endowment for International Peace, similarly recommended in 1960-61 that Palestinian refugees who chose to remain in their host states or opted for resettlement elsewhere could at a later date still exercise their right to return to their places of origin inside the state of Israel.

While some would argue that with the acquisition of a new nationality, a refugees’ right to return under international human rights law hence applies to the country where he or she has acquired such nationality, others point out that the above argument misconstrues the relationship between international refugee and human rights law with potentially serious implications for refugees, host countries along with the country of origin and the international community. As Mazen Masri explains

[r]efugee law is meant to determine when refugee status begins—a status which is triggered by alienage and the lack of protection by the state of origin. Once the status is determined, refugee law determines what kind of protection a refugee should be entitled to, the rights of the refugee, and the obligations of the host state until the status ceases.

As opposed to the 1951 Convention, which deals with the relationship between the refugee and the country of refuge, Article 12(4) of the ICCPR deals with a right that is triggered by the arbitrary action of the refugee’s state of origin, which denies the refugee the right to enter the country. The Article’s focus is on the issue of freedom of movement and the relationship between the individual and the country she resides in, and the obligations that are imposed on states as a result of this link. The right, in this situation, is invoked vis-a-vis the state of origin.

It is therefore clear that the 1951 Convention and the ICCPR are meant to serve different objectives and functions, and protect different interests, although there may be some, albeit minimal, overlap between them. Therefore, there is no contradiction in asserting that an individual retains the right to return even if her refugee status has been terminated.

Masri goes on to explain that to argue otherwise, setting aside relevant legal arguments, would potentially create a situation in which many refugees may forego improving their situation through naturalization in order to maintain a right to return to their homes and places of origin. As many protracted situations evidence, this often contributes to instability in host countries, tensions between hosts and countries of origin and a drain on limited resources directed towards the long-term care and maintenance of refugee populations absent durable solutions to their situation. This brings us back to refugees themselves, the starting point in the search for durable solutions. As Masri concludes:

One cannot expect that, with the cessation of the refugee status, the refugee would relinquish all legal, social, and spiritual links with her country of origin. It is hard to conceive of the legal status of individuals as encompassing all aspects of her life, and as the determinate factor in deciding her belonging and links. Similarly, it would be naive and even ridiculous to see the acquisition of a new nationality as an event that ‘‘resets’’ the human experience, and as an event that transcends human belonging, social links, culture, and life.

***

Lest the wrong impression be given, the above analysis is not an argument for a return to the status quo, that is to say, the period prior to the suspension of US funding of UNRWA and the concomitant efforts within and outside the administration to (re)define Palestinian refugees whether through a change in the Agency’s registration criteria or through the dissolution of UNRWA itself. To the extent that something useful can be gleaned from the Trump administration’s apparent effort to remove the Palestinian refugee issue from the negotiating table, it brings into focus, or rather, makes a clean break from what might be described as the janus-faced nature of US policy on Palestinian refugees once officials decided many decades ago that more could be gained vis-a-vis US interests in the region from an alliance with Israel than from prodding the country to implement obligations which the US had initially pushed for under General Assembly Resolution 194, namely, the voluntary return of Palestinian refugees to their homes and places of origin once hostilities had ceased.

So yes, while the US has been UNRWA’s largest single donor over time, not unlike its status vis-a-vis UNHCR and the UN refugee organizations that preceded it, the US has also been the primary actor, beyond the state of Israel itself, that has arguably blocked a solution to the Palestinian refugee situation by failing to ensure, to the extent that it is able and legally required to do so, that its long-time ally in the region upholds its fundamental obligations under international law. This contradiction, that is to say, providing aid while standing in the way of solutions, as afforded to refugees around the world, is something that surely deserves more consideration, whether or not the administration decides to restore UNRWA’s funding and cooperate with other states in ensuring its sustainability until a durable solution to the refugee situation can be found.

That said, the restoration of US funding and the cessation of baseless criticism of UNRWA alone will not resolve the problem of the Agency’s sustainability which can only be addressed effectively through a political solution that deals with the root and proximate causes of forced displacement and enables each refugee to exercise a free and informed choice about her or his future. Indeed, a mere return to the status quo would arguably run counter to the Humanitarian Charter and the protection principles briefly described above. In simple terms, the Charter reminds us that what is desperately needed today is a return to first principles and best practices and with that as a foundation a concomitant willingness to free our minds from the grip of present realities which so often seem to constrain future possibilities. But that’s another story.

 

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