The Palestinian Refugee Exclusion from the 1951 United Nations Convention for Refugees, ensured their exclusion from international protection for over 50 years, along with the violation of their human rights!
On 14th May 1949, the British mandate terminated. The next day, the Jewish community proclaimed the state of Israel. The first Arab-Israeli war followed. At the heart of the Arab-Israeli conflict are two peoples who have much in common including the experience of suffering discrimination, expulsion and invasion. Tragically, these peoples are locked in a conflict which involves religion, ethnic identity, rival claims to the same land, the use of violent and terrorist methods, and mutual fears of extermination. Thousands of Palestinians fled to neighboring countries creating the largest group (numbering over five million) and longest standing refugee problem (being refugees for over five decades) in history.
It is most surprising that the Palestinian exclusion from the UNHCR is not dwelled upon in the manner that it should when discussing the Middle East peace processes. It is bewildering how the United Nations got away with excluding the largest group of refugees from the protection of the most important international refugee tool and in turn dooming it to the fate above. Till this day they account for about one fourth of the worlds refugees, an impressive figure until one imagines how many refugees there would be if all the Finns and Germans and Indian Hindus and Muslims ad European Jews who were made refugees after the Second World War (not to speak of the Greeks, Turks and Armenians who were made refugees during and after the First World War) were still considered refugees. For a need of a definition, we can say that any Arab who entered Israel up to two years prior to the rebirth of the Jewish state could claim to be a Palestinian refugee, even if he and his ancestors had lived elsewhere for generations before and he owned no land or property in Palestine. It seems the decision made then, has shaped their fate not only at the time of the Convention, but for fifty years after that and most probably for many decades to come.
In this paper I will be looking at the manner in which the exclusion came about, the reasons that appear to be behind it and the alternative care suggested and offered to the Palestinians. The essay will also examine how Palestinian human rights have been violated due to this exclusion and finally; if there is any hope now for the Palestinian refugee problem to come to an agreeable end in the light of the reasons under which it was created in the first place.
Hathaway describes the attitude of states perfectly regarding refugee law when he says, “States pay lip service to the importance of honouring the right to seek asylum, but in practice devote significant resources to keep refugees away from their borders. International refugee law is part of a system of state self regulation. It will therefore be respected only to the extent that receiving states believe that it fairly reconciles humanitarian objectives to their national interests. Much of the debate during the drafting of the Geneva Convention was devoted to how best to protect the national self interest of receiving states.”
HOW THE EXCLUSION CAME ABOUT AND THE ALTERNATIVE CARE:
Palestinian refugees were in the next miscalculated move, removed from international refugee law’s central instrument. The creation of the refugee problem was inevitable according to Morris who takes aboard the geographical intermixing of the population, the history of the Arab-Jewish hostility since 1917, the rejection of both sides of a binominal solution and the depth of the Arab animosity toward the Jews and fears of coming under Jewish rule. Ben Gurion said, “The transfer of Arabs is easier than the transfer of any other people. There are Arab states… and it is clear that if the Palestinian Arabs are transferred, this would improve their situation and not the opposite. Moshe Sharett, director of the Jewish Agency’s Political Department declared: “Transfer could be the crowning achievements, the final stage in the development of our policy, but certainly not the point of departure. By speaking publicly and prematurely we could be mobilising vast forces against the matter and cause it to fail, in advance.” He then added, “When the Jewish state is established it is very possible that the result will be the transfer of Arabs”.
In part this exclusion clause was intended to prevent the overlapping of the mandates of the UNHCR and these pre-existing agencies. It’s noteworthy that the benefits of protection under specialised agencies were not truly replicative of the proposed protection function of UNHCR: “the UN assistance to Arab refugees was material assistance and could not be compared with the legal protection of the High Commissioner”
It was clear from the very beginning that the refugee problem was far more serious and graver than the UN General Assembly was demonstrating understanding for. Count Folke Bernadotte of Sweden, who was appointed as a UN mediator on Palestine under resolution 186 on 14th May 1948, wrote; “… I must emphasis again the desperate urgency of this problem. The choice is between saving the lives of many thousands of people now and permitting them to die. The situation of the majority of these helpless refugees is already tragic, and to prevent them from being overwhelmed by further disaster ad to make possible their ultimate rehabilitation… I believe that for the international community to accept its share of responsibility for the refugees of Palestine is one of the minimum conditions for the success of its efforts to bring peace to that land.” It does not appear in anyway that Bernadotte’s suggestion was taken in to consideration. In 1951, the international community did not take this responsibility. Bernadotte’s assassination later that year appears to have been in vain.
After a period of emergency aid, provided by voluntary agencies and coordinated by the UN relief for Palestinian Refugees UNRPR, it became clear that an early solution to the refugee problem was not in sight and that international assistance should be orientated towards development and resettlement. The UNWRA was subsequently established in 1949 by the General Assembly. The fact that these refugees continue to live in the cramped and inadequate camps after five decades highlights the failure of the international community to find a just solution the Palestinian-Israeli conflict, whose resolution lies at the heart of a border regional peace. The living conditions in the camps have not improved. Further disruptions caused by the wars as well as restrictions imposed by Israel in the West Bank and Gaza Strip, have hampered UNWRA efforts over the years.
The Arab states then, and now continue to use the Palestinian refugees as a political weapon against Israel, and so then resisted any move which might decrease the distinct visibility of the Palestinian’s predicament and hence undercut the political will to effect their repatriation: “if the GA were to include the Palestinian refugees in a general definition of refugees, they would become submerged and would be relegated to a position of minor importance. The Arab states desired that those refugees should be aided pending their repatriation, repatriation being the only real solution to their problem. To accept a general definition… would be to renounce insistence on repatriation”
In the result, the statute of the UNHCR provides for an interim suspension of eligibility, so long as the Palestinians needs in exile are met by the UNWRA… “The competence of the High Commissioner shall not extend to a person… who continues to receive from other organs or agencies of the UN protection or assistance…” But realistically, how can their need be sufficiently met by the UNWRA when they have billions of pounds worth of shortages for food, water and shelter?
The American representative warned that the inclusion of Palestinians, “would present contracting states with an undefined problem, and so reduce the number of states in Europe that would find it possible to sign the convention and ratify it.” Reflecting these concerns, delegates were faced with a draft which provided for the permanent exclusion from the convention definition of “persons who are at present receiving from other agencies of UN protection or assistance. Turning to the category to the category of these refugees who were excluded from the present convention under paragraph D, e.g. the Palestinian Arabs, in his view, the effect of the paragraph as drafted was to make the exclusion permanent. That was indeed, why the Egyptian representative had submitted his amendments… since he wanted to provide for the possible future inclusion of that group within the convention.”
“The phrase ‘at present’ implied that the convention should not apply to those persons receiving at a specific time protection or assistance from organs or agencies of the UN; it did not imply that when such protection seized, the refugees concerned would come under the protection of the convention.” The contrary position of the UK is noteworthy: “even if an influx into Europe did occur, was it conceivable that European country’s which had hitherto given refugees certain minimum rights would, even in the absence of a convention, give the new arrivals less?”
The French representative had rightly recalled that the Arab refugees from Palestine had been excluded from the mandate of the High Commissioner for Refugees as a result of action taken by the delegations of the Arab states at the fifth session of the General Assembly. The unbending focus on the propriety of the repatriation is clear from the comments of Mr. Mustafa Bey, the delegate of Egypt: “it should be noted… that the present situation of Palestinian refugees was a temporary one… and that the relevant resolutions of the General Assembly provided that they should return to their home.”
Realising that this clause would leave Palestinians without aid or protection id UNWRA were to cease operation, the Arab states secured their automatic “deferred inclusion” at such time as specialized relief operations in Palestine might come to an end. It is none the less clear from the drafting history that the shared intention of the Arab and Western states was to deny Palestinians access to the convention based regime so long as the UN continues to assist them in their own region. It was obvious that if the Egyptian amendment was rejected, the refugees it was designed to protect might eventually find themselves deprived of any status what so ever.
Happily Canada has chosen not to apply this part of the convention definition, as a result of which Palestinian claims in Canada are to be assessed without differentiation of any kind. Is it the case for Palestinians that people who are not recognised as refugees under the terms of the Geneva conventions may never the less be allowed to stay for temporary periods for various “humanitarian” reasons? In Britain, they can be given exceptional leave to remain, but without the right to be joined by their families or to travel abroad. In Germany, they may be given temporary residence permits.
This exclusion clause applies to all Palestinians eligible to receive UNWRA assistance in their home region. Those who remain in Palestine and those who seek asylum abroad, it affects only Palestinians, since its scope is limited to persons in receipt of UN assistance or protection from a specialised agency other than the UNHCR, in existence in 1951, under the terms of the convention, exclusion is automatic once UNWRA’s eligibility is established. While not all Palestinians could not meet the criteria of the convention definition, their whole scale exclusion is inconsistent with the commitment to a truly universal protection system.
RESPONSIBILITY:WHO HAS TAKEN IT AND SHOULD IT BE SHARED?
“Since 1948 we have been demanding the return of the refugees to their homes. But we ourselves are the ones who encouraged them to leave. Only a few months separated our call for them to leave and our appeal to the UN to resolve on their return”. The question of whose fault it was that the Palestinians fled their homes is important and controversial enough for an essay in its own rights. Yet many believe that it is not the most obvious candidate, Israel, which should take sole responsibility for the problem. Many argue that Britain, which ruled Palestine from 1917-1948, was responsible for the Balfour declaration which resulted in the building of a “Jewish National Home” in Palestine. Therefore, Britain, according to this line of argument has an historic duty to see that a just settlement for these refugees is reached. For if it had not relinquished its mandate without first ensuring that a lasting and fair settlement had been reached by the new settlers and Palestinians, there may have been peace in the Middle East today.
Others argue that “The Palestinian refugees… differed from all other refugees. In all other cases, persons had become refugees as a result of action taken contrary to the principles of the UN, and the obligation of the Organisation toward them was a moral one only. The existence of the Palestinian refugees, on the other hand, was the direct result of a decision taken by the UN itself with full knowledge of the consequences. The Palestinian refugees were therefore a direct responsibility on the part of the UN and could not be placed in the general category of refuges without betrayal of that responsibility”.
At present the 1951 convention has 140 state parties, Israel is one of them, this is not surprising as it has nothing to answer to the Refugee Convention regarding its responsibilities towards Palestinian refugees and the Jordon, Lebanon and Syria are not parties to it despite the fact that they have taken in the majority of the fleeing Palestinians. They have nothing to gain by doing so than to invite scrutiny of its own treatment of the Palestinian refugees.
Israel was the only Middle Eastern country to take over from the UN agency. However, the significance of this step should also be compared with at least two more factors: the ratio between the refugees found in Israel and the total Arab post 1948 refugee population, and the ratio between the Israeli refugee population and its total Arab body. Comparing these two sets of figures might facilitate an understanding of the reasons for the disappearance of the problem in Israel, yet have no affect whatsoever on the refugee issue in its entirety. The Western powers insisted on initiating a resettlement process in Israel in order to appease the Arab countries whose support for the West was essential with the raging Cold War. Transferring responsibility to Israel had to be interpreted by Arab governments as making Israel admit its formal guilt in creating the problem. Perhaps the issue of guilt associated with taking care of the refugees was the main reason for the Arab governments’ consistent refusal to take over from the UNWRA in their sovereign territories, despite economic benefits which might have accompanied such an agreement. More profoundly, however, it resulted from the strongly held view of Arab states that because the plight of Palestinian refugees was the consequence of the establishment of Israel by the UN, they should bear a more direct and obvious responsibility of their wellbeing.
At the same time that Israel had denied citizenship to the majority of Palestinian Arabs, the Arab countries of refuge have, for the most part, consistently rejected local integration and citizenship as a solution to a problem which, in their view, can only be resolved by repatriation and self determination. Their policy was based on a genuine economic inability to properly absorb hundreds of thousands of refugees and feared refugees as a major potential subversive element vis-à-vis their own regimes. The failure of the Arab League to provide a satisfactory regional refugee regime which could address the Palestinian refugees, more than 50years after the refugee convention had kept them out, has only further reinforced the statelessness of the Palestinian refugee.
Because Jordon formally annexed the West Bank in 1950, most Palestinian refugees in Jordon hold Jordanian citizenship. Moreover, Palestinians fully participate in the political and economic life of the country. Palestinians in Lebanon are marginalised. Few (mostly Christians) have managed to obtain Lebanese citizenship, few are granted the permits required for legal employment, and legally most are excluded from employment in many professions. Palestinians are also denied access to government services, and hence heavily depend on UNWRA. Lastly, Palestinians in Syria do not enjoy citizenship; however, they do enjoy full legal equivalency with local nationals in almost all areas, including both employment and access to government services. However, there are some restrictions on Palestinian property ownership, and there are tight controls on all political activity. Palestinian refugees in Syria, largely depend on their refugee documents for travel purposes, thus restricting their mobility.
DOES PALESTINIAN EXCLUSION FROM PROTECTION VIOLATE THEIR HUMAN RIGHTS?
Palestinians in the occupied territories face a wide variety of human rights violations. These include their collective rights e.g. their right to self determination, others include individual rights such as freedom of speech, freedom of assembly, freedom of movement, as well as the property rights and their rights to life and security of the person. The 1951 convention has violated the basic right of non discrimination! By discriminating against the Palestinian refugees and not including them with the rest of the world refugees, it has denied them all the rights they are entitled to, such as Welfare, Administrative Measures and Judicial Status.
One of the cornerstone issues, which are increasingly threatened, undermined or ignored by governments around the world wide is human rights protection at the international level- action to ensure that human rights considerations are paramount in decisions about refugee protection issues, such as the need for protection of people internally displaced within their own countries, developments in international refugee law and practice and programmes for refugees return home.
The clearest example of how Palestinian human rights have been violated is their deportation and the illegality of it. Many books and articles have focused on this very point. The 1945 Charter of the International Military Tribunal at Nuremberg, widely considered to be declarative of international customary law, explicitly condemns deportation. The tribunal defined deportation “for slave labour or any other purpose” as a war crime, and deportation as a crime against humanity. This was also the case in the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 was signed by Israel on 8th December 1949 and ratified on 6th January 1952. Article 49 of this convention provides that: “individuals or moss forcible transfers, as well as deportations of protected persons… are prohibited, regardless of their motives.” Not only does the Fourth Geneva Convention proscribe deportation, but it also expresses the International community’s particular and absolute condemnation of this practice by defining “unlawful deportation” in Article 147, together with inter alia, wilful killing and torture, as a grave breach of the convention. The only legitimate options open to the Israeli authorities would have been to impose measures of assigned residence or internment. However, the Israel’s continue to deport Palestinians claiming that the Fourth Geneva Convention does not apply to the Occupied Palestinian Territories.
Even if Israel had its own idiosyncratic view of the status of the occupied territories, it did not openly challenge the status of the inhabitants as people entitled to protection under the relevant rules of international law. Israel is also bound, like any other state, by international customary law, and by the relevant provisions of the human rights conventions to which it is a party. This means that there has always been room for international intervention, yet none effective measures have been applied.
“UNWRA mandate extends only to assisting Palestinian refugees and not protecting them. The Palestinian, therefore, have the unfortunate distinction of being the only group of refugees in the world who are excluded formally from any International protection.” In practice, assistance has been provided to Palestinian refugees by UNWRA, within the area of its operations and subject to the conditions of entitlement and registration. No international agency has been charged with providing protection to Palestinian refugees. And while refugee camps exist on the map, there is little concern about the fate of refugees living within and their rights are framed as a series of trade offs with other bands of political issues.
The UN mediator in Palestine, Count Bernadotte, in his report submitted to the general assembly on 16th September 1948, stated: “it is, however, undeniable that no settlement can be just and complete if recognition is not accorded to the right of the Arab refugee to return to their home from which he has been dislodged by the hazards and strategy of the armed conflict between Arabs and Jews in Palestine. It would be an offence against the principle of elemental justice if these innocent victims of the conflict were denied the right to return to their homes while Jewish immigrants flow into Palestine and indeed offer the threat of permanent replacement of the Arab refugees who have been rooted in the land for centuries.” This report was discussed in February 1949 and resolved that, “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.” This resolution has been annually re-affirmed by the UN ever since, but Israel continues to defy the UN and prevent the return of the refugees to their homes
It must be noted that civilians in occupied territories are completely reliant upon the international community of states for protection against such violations by an occupying power. International humanitarian law recognises the vulnerability of civilians in occupied territories and accordingly, provides mechanisms for enforcing the law which have yet to be applied to the Israeli occupation of the West Bank and Gaza Strip. Only international intervention, as happened in Kosovo and East Timor, will ensure that the rights of refugees are upheld.
Because UNWRA has collapsed, article 1D should apply. Goodwin-Gill claims that the provision is “not so much an exclusion” clause as a contingent inclusion clause, merely postponing the incorporation of Palestinian refugees. Yet Article 1D is not free from ambiguity; however, on the one hand, it premises exclusion upon the continuing receipt of protection or assistance; on the other hand, it premises entitlement to the benefits of the convention on the cessation ipso-facto of protection or assistance, without the situation of such persons having been resolved, for example, through legal provision for and the recognition of a separate nationality. UNHCR has taken the view that a refugee from Palestine outside the UNWRA area, “may be considered for determination of refugee status under the criteria (well founded fear of persecution) of the 1951 convention. This interpretation does not seem correct on initial reading of article 1D. Palestinian refugees, who leave UNWRA’s area of operations, being without protection and no longer in receipt of assistance, would seem to fall by that fact alone within the convention, whether or not they qualify independently as refugees with a well founded fear of persecution. In practice however, many states have resisted providing automatic convention protection, contrary to what appears to be the clear intent of its terms.
The 1951 convention is a prime example of existing international agreements and legal principles are seen, not as a means of mediating of conflict, but instruments which can be rolled and used as truncheons with which to hit the other side. The non-recognition of Palestinian refugees by the refugee convention in itself may not be fatal, because it is a limited regime that does not address causes, temporary protection or repatriation. But this, added to the lack of protection by the UNHCR, comprises access to general provisions under international refugee law, the application of the relevant UN resolutions and general principles of international law.
Refugee law serves less and less people, less and less well as time goes on. The time is right to focus on preserving the essence of international refugee law as a system for the protection of persons, whose basic human rights are at risk in their own state, including a commitment to working towards repatriation in safety and dignity.
Violators of human rights appear to have unlimited resources at their disposal, not to mention the coercive power of the state, and the leeway they are given under international law. The inadequacy of the international system in dealing with violators, the cynical use of the veto by the super powers, the maddening slow pace of the evolution of international law and the accession to human rights protocols and conventions that have any effective enforcement mechanisms- all these and much more can easily provoke depression, cynicism, or at least severe frustration.
Much was made of the extraordinary achievements of Israel on the 50th anniversary of its establishment. Yet the triumph of one people was the tragedy of another. It is ironic that the creation of a state for the Jewish Diaspora led to the creation of another Diaspora, that of the Palestinians, who lost their homeland at a time when Jews gained theirs. Sait’s conclusion in regards to the state of the Palestinian refugees is the perfect way to end this essay, he concludes, “Palestinians are a casualty of laws’ abdication and face an unforgivable constellation of political stars… a lapse in international law… it conspired to strip them of their most obvious status, removing them from the laws protection and banishing them forever from their homes..”
REFERENCES AND BIBLIOGRAPHY
Teresa Hyter Open Borders: The Case against Immigration Controls Pluto 2000
Benny Morris The Birth of the Palestinian Refugee Problem 1947-1949 Cambridge University Press 1987
Siraj Sait. International Refugee Law: Excluding the Palestinians. in “Law after Ground Zero”. Ch 7 Chap.7. Ed John Strawson
Costas Douzinas The End of Human Rights Hart 2000
Guy Goodwin-Gill The Refugee in International Law Oxford: Clarendon Press 2nd Ed 1998
James C Hathaway The Law of Refugee Status Butterworths 1991
Reconcieving International Refugee Law 1997
Jeremy Harding The Uninvited: Refugees at the Rich Mans Gate Profile 2000
Michael Dummett On Immigration and Refugees Routledge 2000
Emma Playfair International Law and the Administration of the Occupied Territories Clarendon Press Oxford 1992
A. Roberts & F. Newman Academic Freedom under Israeli Military Occupation London 1984
Jonathan Kuttab Avenues Open for Defence of Human Rights in the Israeli Occupied Territories Chap. 17 in Emma Playfair ed. International law and the Administration of the Occupied Territories.
Mazen Qupty The Application of International Law in the Occupied Territories as Reflected in the Judgements of the High Court of Justice in Israel
Adam Roberts Prolonged Military Occupation in the Israeli Occupied Territories 1967-1988 in Emma Playfair ed. International law and the Administration of the Occupied Territories.
Mark Heller No Trumpets, No Drums: A Two State Settlement of the Israeli-Palestinian Conflict
Haled El Azm The Memoirs of Haled El Azm Beirut 1973
Theodore Meron Human Rights and Humanitarian Norms as Customary Law Oxford: Clarendon Press 1989
Papers, Lectures and Journals:
Abbas Shibak In Search of a Durable Solution: Residency Status and Civil Rights of Palestinians in Host Arab States Paper presented to the conference of the Middle East multilateral talks. Los Angeles June 1993
Amnesty International Report Refugees: Human Rights have no Boundaries March 1997
Rex Brynen Palestinian Refugees and the Middle East Process Lecture in University of New Hampshire 3rd April 1998
Centre for Policy Analysis on Palestine, Facts and Figures about the Palestinians Information Paper 1 Washington CPAP 1992
Meir Shamgar The Observance of International Law in the Administered Territories Israeli Year Book on Human Rights Vol.1 1971
Alexander Bligh From UNWRA to Israel: The 1952 Transfer of Responsibilities for Refugees in Israel. Refuge Vol.14 No.6 November 1994
Adam Roberts The Palestinians, the Uprising, and International Law Journal of Refugee Studies Vol.2 No.1 1989
Guy Goodwin-Gill A Convention and a Purpose The International Journal of Refugee Law Vol.13 No.1/2 2001
Ahilan T. Arulanantham Restructured Safe Havens: A Proposal for Reform of Refugee Protection Systems. Human Rights Quarterly Vol.22 No.1 February 2000
UNWRA: A Brief History Report 1950-1982
Middle East Digest October 1998
Sejal Mandalia Out in the Cold: The Palestinian Refugees CAABU Briefing April 1998 No.50
Al- Haq An Illusion of Illegality: A Legal analysis of Israel’s Mass Deportation of Palestinians on 17th December 1992 Occasional Paper No. 9
Jean S Pictet The Fourth Geneva Convention Relative to the Protection of Civilian Persons in the Time of War 1949 Commentary Geneva: International Committee of the Red Cross 1958