What caused the Palestinian refugee problem?

Immigration, Displacement and Asylum: Current Issues

Susan M. Akram

is a clinical professor at Boston University Law School, Massachusetts, USA. She teaches at the International Human Rights clinic and holds seminars on refugee law, international human rights law and US immigration law. This article is based on the author's research and publications on Palestinian refugees and the United Nations Agency for Palestine Refugees in the Middle East (UNRWA).

UNRWA supports Palestinians and their descendants in Jordan, Lebanon, West Bank, Gaza Strip and Syria, who became refugees in the wake of the Arab-Israeli war of 1948.

Gaza City, December 2015: Bo Schack, head of operations of UNRWA (United Nations Relief Agency for Palestine Refugees in the Middle East) holds a press conference. (& copy picture-alliance, AA)

Publisher's Note: The United Nations Agency for Palestine Refugees in the Middle East (UNRWA) supports Palestinians and their descendants in Jordan, Lebanon, West Bank, Gaza Strip and Syria, who became refugees in the wake of the 1948 Arab-Israeli war. The charity takes care of health care, education, runs schools, clinics and community centers and is responsible for the provision of services such as the maintenance of roads and sewers, garbage collection and water supply. UNRWA's mandate is renewed every three years. The relief organization is dependent on voluntary donations to support its activities.

On the background to the establishment of the aid organization: Towards the end of the British mandate over Palestine in 1948, the General Assembly of the United Nations spoke out on November 29, 1947 in favor of the division of Palestine into a Jewish state and a Palestinian Arab state (Resolution 181 II; 33 For and 13 against with ten abstentions). The Arab League founded in 1945 and its six UN member states vehemently rejected the partition decision. In the event of its implementation, they announced that they would take military measures. The UN decision was followed by an attack by the Arab armies of Syria, Lebanon, Jordan, Egypt and Iraq, in the course of which hundreds of thousands of people on both the Jewish and Palestinian sides were forced to flee. In connection with the Palestinian refugees, the United Nations passed a number of other resolutions that still affect the rights and status of the Palestinian refugees to this day. Further information on the prehistory of the conflict is explained in detail in the following texts:
  • Flight and expulsion of Jews from Arab countries: of the almost 900,000 Jews who lived in Arab countries before 1948, only a few thousand remain today.
  • Middle East (Internal Conflicts Dossier): Fifty years after the Six Day War there is no sign of the conflict being resolved.
  • The First Arab-Israeli War: Why Didn't the UN Partition Plan Work? How did Israel win the war against the Arab invasion?
  • History of the Middle East Conflict: On the Armed Conflicts Since the Establishment of the State of Israel.
  • Dossier Israel: The dossier looks back at the structure of the founding generation, traces the development of the country and asks about the challenges of the future.

Formation of three UN organizations

Between 1948 and 1950, the UN General Assembly passed resolutions that established three different international UN refugee organizations: the United Nations Conciliation Commission (UNCCP), the United Nations Relief Agency for Palestine Refugees in the Middle East (United Nations Relief and Works Agency for Palestine Refugees in the Near East - UNRWA) and the United Nations High Commissioner for Refugees (UNHCR). These three bodies had different international commitments with regard to Palestinian refugees that were well defined at the time of their creation but have since become obscure and poorly understood. Their unclear roles and powers created what is now commonly referred to as the "protection gap" for Palestinian refugees.

As all three bodies are involved in the situation of Palestinian refugees, it is important to understand their respective roles and powers before going into the UNRWA at the heart of this paper. The UNCCP was the first of the three agencies set up by the UN. The resolution on which it is based (UNGA 194 (III) of December 1, 1948) defined the scope of its mandate and the refugee population for which it should be responsible. The resolution included a group definition that included all people who were ordinarily resident of Palestine or who had Palestinian citizenship and who were either displaced during the 1947-49 conflict or were unable to return to the area under Israeli control. This definition was set out in the authoritative working documents of the UN Secretariat and its legal advisers and the delegates referred to it during the drafting of the resolution. The UNCCP received two different mandates: On the one hand, it was supposed to protect the rights and interests of the refugees and to achieve a specific permanent solution for them, which was set out in paragraph 11 of resolution 194. On the other hand, it should resolve all open disputes between the conflicting parties. The UNCCP was tasked with protecting all Palestinians who had become refugees during the conflict and finding a permanent solution for them. In addition, the UNCCP was envisaged as a permanent UN body that would continue to exist until the conflict ended and all refugees were allowed to return to their hometowns.

The second UN refugee agency set up a year later was UNRWA. The relief organization had a significantly different mandate than the UNCCP. UNGA Resolution 302 (IV) of December 8, 1949 established UNRWA as a temporary UN body for three years to provide aid and assistance to refugees until the UNCCP found a permanent solution for them. Originally, their services only covered a subset of the population defined by the UNCCP as "Palestinian refugees", i.e. only people in need and only Palestinians in the five main reception areas: Jordan, Lebanon, Syria, West Bank and Gaza Strip. Since then, the UNRWA definition and its tasks have evolved. The reasons for this are firstly the ongoing Palestinian refugee crisis, secondly the loss of the importance of the UNCCP as a protective body for Palestinian refugees (see below) and thirdly the fact that Palestinians continue to be displaced repeatedly from one host country to another. Today the UNRWA definition of refugees therefore includes both group definitions and definitions that refer to individual individuals. What they have in common is that they continue to focus on the need for aid and are not geared towards the need for refugee protection.

The third international organ for refugees established by the UN was the UNHCR. The UNHCR mandate extends international protection and humanitarian aid to groups of refugees and individual refugees. It was laid down in the statutes (UNGA Resolution 428 (V) of December 14, 1950) and the 1951 Geneva Refugee Convention, compliance with which the UNHCR is supposed to promote and monitor. [1] According to Article 1A (1) of its statutes, the mandate of the UNHCR covers categories of refugees set out in previous refugee treaties; Subsequent UN resolutions authorized the UNHCR to extend its protection mandate to other refugee groups or groups of persons affected ("persons of concern"). In addition, Article 1A (2) of its statutes contains the universal individualized definition of refugee: According to this, a refugee is any person who is outside the country of which he or she is a national and who has a well-founded fear of persecution because of his or her race, religion, nationality, political conviction or belonging to a certain social group cannot or does not want to return there. Because the definitions in the UNHCR Constitution and the Geneva Convention on Refugees were supposed to be universal, Palestinians should have come under the definition set out in Article 1 of the UNHCR Constitution - either as a refugee population, as defined in Resolution 194, or as individuals. However, for a number of reasons (see below), during the preparation of the aforementioned provisions, their status was hotly debated and finally a separate article, which applies only to Palestinian refugees, was included in both instruments.

The role of the UN in relation to the Palestinian exemption

During the preparation of the UNHCR statutes and the Geneva Convention on Refugees, concerns of Arab states about bearing the brunt of the Palestinian refugee drama became the focus of attention. Among them, Jordan, Lebanon, Syria and Egypt hosted most of the estimated 700,000-800,000 refugees who had been displaced from their hometowns in Palestine and lived penniless in neighboring Arab states. The Arab states pointed out that the UN had a special responsibility for the Palestinian refugees, as the refugee movements had been triggered directly by a decision by the UN - the plan to partition Palestine. They also emphasized that the establishment of the UNCCP and UNRWA had established a "separate and separate regime" for Palestinians: the UNCCP had been entrusted with a protection mandate and the UNRWA with an aid mandate for refugees. In addition, the UN tasked the UNCCP with finding a specific permanent solution for Palestinian refugees, which was set out in paragraph 11 of resolution 194. Accordingly, refugees should be allowed to return to their homes at the earliest possible point in time. Those who would choose not to return home should be compensated for loss or damage to their property on the basis of international law or on equity. Return, return of property and compensation were the necessary solutions for Palestinian refugees. Against this background, the Arab states argued that a convention and a UN body like the UNHCR that would focus on the responsibility of third countries for resettlement of Refugees alleged that it was inappropriate for Palestinian refugees. In addition, the concerns of Palestinian refugees should not be covered by regulations and actors that contradict the refugee regime already established for Palestinians. For these reasons, the Arab states introduced additions to the definition of refugee, which were included in both the UNHCR's statutes (Paragraph 7 (c)) and the Geneva Convention on Refugees (Article 1D).

Paragraph 7 (c) of the UNHCR statutes reads: "The competence of the High Commissioner [...] does not extend to any person who continues to receive protection and assistance from other organs or organizations of the United Nations." Article 1D of the Geneva Refugee Convention reads: "This Convention does not apply to any person currently enjoying the protection or assistance of any United Nations agency or body other than the United Nations High Commissioner for Refugees. Is that protection or assistance of any kind? Basically, without the fate of this person having been finally settled in accordance with the relevant resolutions of the General Assembly of the United Nations, then these persons fall ipso facto under the provisions of this agreement. " The UNHCR took the position that Palestinian refugees in Arab host countries are excluded from the mandate of the UNHCR. The UNHCR can only offer help and protection to those Palestinians who are located outside of the areas under UNRWA and who correspond to the individualized definition of refugees in Article 1A (2) of the GRC. Most states interpreted Article 1D of the Geneva Refugee Convention in the same way, which excludes Palestinians in UNRWA jurisdictions from access to aid and protection from UNHCR. So only Palestinians could be recognized as refugees who were outside the areas under UNRWA support and who corresponded to the individualized refugee definition from Article 1A (2) of the GRC. Unfortunately, the UN withdrew much of the UNCCP's funds in the late 1950s because the organization failed to fulfill both parts of its mandate. By 1966, it only had the resources necessary to fulfill one aspect of its protective role: the compilation and digitization of the documents that documented the original possession of Palestinian refugees.

The gap in protection that exists for Palestinians also relates to their status as stateless persons. The vast majority of Palestinians are both refugees and stateless persons - whether factually (de facto) or from a purely legal point of view (de jure). The 1954 Convention on the Status of Stateless Persons, which was supposed to protect Palestinians as stateless persons, contains a provision similar to that set out in Section 7 (c) of the UNHCR Constitution. Article 1 (2) (i) of the Convention excludes from its jurisdiction any person to whom any body or agency of the United Nations other than the UNHCR provides protection or assistance for as long as they enjoy such assistance. Therefore, the convention cannot be applied to Palestinians and the UNHCR, which is entrusted with monitoring compliance with the statelessness convention, has so far not done anything to address this gap in protection.

UNRWA and the protection gap

Because of its limited mandate, its inadequate governance structure and its lack of resources, UNRWA cannot bridge the protection gap - Palestinians are excluded from global instruments for the protection of refugees. UNRWA's original focus on caring has changed over time. The organization put support services more in the foreground after the UN business survey mission recommended comprehensive development projects aimed at the permanent settlement of refugees in the Arab host countries. Political opposition from the Arab states and the Palestinian refugees to integration effectively blocked any attempt to expand the role of UNRWA. In the early 1960s, UNRWA therefore focused its resources on education and devised an ambitious plan to build schools. The agency then turned to health care, improving housing and refugee camps, and launched microfinance programs and programs to set up micro-businesses. The UNRWA was also forced to respond to the increasing need for measures to protect human rights due to repeated conflicts and displacements of Palestinians. The UN General Assembly began to use the terms "protection" and "legal rights" more frequently in connection with the activities of UNRWA. This comes about in the course of three developments: the recommendation of "protective measures", the praise of UNRWA for the implementation of activities to protect refugees, and the recognition that the role of UNRWA includes "aid and protection". UNRWA has put in place a number of both ad hoc and permanent measures to seek to expand its refugee protection activities.

This includes, for example:
  • its Refugee Affairs Officer Program in the 1990s,
  • its medium-term strategy 2010-2015 to anchor protective measures,
  • the establishment of protection officers
  • and its cooperation with the UNHCR in the context of the armed conflicts in Iraq and Syria. Their aim was to find solutions for individual Palestinian families and groups of Palestinians who were stranded in reception camps near the border.
Despite these efforts, it is not certain whether UNRWA can really promote refugee protection activities or extend the legal rights of the approximately five million Palestinian refugees that the agency is responsible for. Regardless, the UNRWA mandate cannot cover the most critical aspect of protection denied to the majority of Palestinians: the search for and access to lasting solutions. UNRWA confirms that it has no mandate to look for and implement lasting solutions. Instead, the relief agency can only repeatedly point out the need to find a fair and comprehensive solution to the Palestinian refugee problem. On the basis of binding international laws and with the consent of the international community, the solution to the question of the Palestine refugees remains that which was set out in resolution 194. This includes the right to return to the place of origin, the return of Palestinian property and compensation for losses on the basis of international law or on equity.

Conclusions and Implications

The definition of "Palestinian refugee", laid down in resolution 194 of the UN General Assembly, applies today to around 7.4 million of the approximately 11.8 million Palestinians worldwide and already includes a third generation of refugees. The body that should identify all persons falling under this definition and grant them the full range of international protection, the UNCCP, no longer exists legally, but in practice it does. UNRWA's definition of aid delivery includes 5.4 million registered Palestinian refugees. The level of care that UNRWA can give them, in addition to the basic education and health care offered in the refugee camps, depends, however, on the generosity of the main donor countries. UNRWA has been chronically underfunded for years.

The UNHCR's definition of who is a Palestinian refugee and who has a right to protection outside of the five reception areas managed by UNRWA has evolved over the years. Today, in light of two recent judgments by the European Court of Justice - Bolbol v. B.A.H (2010) and El Kott v. B.A.H (2012) - three definitions to:
  1. "Palestinian refugees" who meet the group definition in Resolution 194, who are outside the UNRWA-managed areas and who cannot return for the reasons set out in the judgments of the European Court of Justice, are eligible under Article 1D of the Geneva Convention automatically entitled to protection;
  2. Palestinians who became displaced persons due to the conflict of 1967, but whose legal status is unclear and
  3. "Palestinian refugees" who do not fall into any of the above categories but who are outside the UNRWA-managed areas due to well-founded fear of persecution and whose status is thus determined by Article 1A (2) of the Geneva Refugee Convention.
However, these definitions are insufficient to close the protection gap that exists for Palestinians because, under Article 1D of the Geneva Refugee Convention, a definition designed for a permanent solution only applies to about half of the global Palestinian refugee population. The majority of Palestinians will not be able to make use of the right to protection defined in Article 1A (2). The United Nations established two UN organs to ensure protection and assistance for Palestinian refugees as a whole population and to enable them to return and receive compensation. However, this "separate and special regime" has developed into a regime of inconsistent and inadequate protection, with the result that the majority of the approximately 11.8 million Palestinian population in the world still has no access to permanent solutions under international law .

Translation from English: Vera Hanewinkel

This text is part of the policy brief "Actors in the (inter) national (refugee) migration regime".