Refugees - Hope for return

This text was last updated in June 2018

The Palestinian refugee question is unique in terms of the large size of the affected population and the duration of the problem. The refugee population has its origin in the first Arab-Israeli war that erupted 1948 in reaction to the declaration of Israeli independence on parts of the territory of the former British Mandate for Palestine. The United Nations (UN) estimate that the war led to the flight or expulsion of around 774.000 Palestinians. Refugee movements took place to the West Bank and the Gaza Strip; significant populations moved also to Jordan, Syria and Lebanon. Around 48.000 Palestinians remained as internally displaced persons within the borders of the newly established Israeli state.

The events of the war have been commemorated in the collective Palestinian memory as „the catastrophe” (Arabic: al-Nakba). The experience of flight and expulsion constitutes a cornerstone of the Palestinian collective identity and the Palestinian narrative. Many Palestinians hope also 70 years after the war to return to their home or to the home of their ancestors. These hopes provoke deeply rooted fears within the Israeli society. The refugee problem touches historical narratives and the Israeli identity that until today rejects any responsibility for flight and expulsion that occurred during the war. The possible return of refugees is perceived as a threat for the Jewish character and the Jewish majority of the country. The question of Palestinian refugees thus remains one of the most emotional issues of the Israeli-Palestinian conflict.

UNRWA

As reaction to the refugee crises, the “United Nations Relief and Works Agency for Palestine Refugees in the Near East” (UNRWA) was established in 1949 as a subsidiary body of the UN General Assembly. UNRWA’s mandate defines the agency as a temporary humanitarian program that is charged to provide continued assistance to “prevent conditions of starvation and distress and to further conditions of peace and stability”. In the fulfillment of these tasks it is restricted to the five fields of operation West Bank (including East-Jerusalem), Gaza Strip, Jordan, Syria and Lebanon, despite sizable refugee populations in further countries such as Egypt, Iraq and Saudi Arabia. UNRWA focuses nowadays in particular on social services in the areas of education, health and social welfare. All persons registered with UNRWA and present in one of the five fields of operation can utilize these services.

UNRWA is a strictly humanitarian program and therefore has no political mandate to mediate a solution for the refugee problem. Such a permanent solution can only be achieved in direct negotiations between the conflicting parties and with the adequate involvement of the refugees. Within the structures of the UN, this task lies with the Security Council, the Secretary General, the Special Coordinator for the Middle East Peace Process (UNSCO) and the General Assembly. Since a political solution has not yet been reached, the General Assembly establishes regularly that the work of UNRWA continues to be necessary. Since 1951 the UNRWA-Mandate has been extended evert three years, the last time in 2017. UNRWA furthermore needs the continuous approval of the hosting countries to carry out its activities. Israel asked UNRWA in the aftermath of its occupation of the West Bank and the Gaza Strip in 1967 to continue its humanitarian work in these fields of operation. Despite continuous Israeli criticism, especially from the right of the political spectrum, of UNRWA’s organizational arrangements, Israel has never revoked its permission for the humanitarian mission.

UNRWA’s definition of „Palestine refugees“

The UN General Assembly never adopted a definition of the term “Palestine refugee”, despite its importance for UNRWA’s work. However, the General Assembly approves implicitly the working definitions that are included in the yearly reports of the UNRWA secretary general. Article III.A.1. of the latest Eligibility and Registration Instructions defines Palestine refugees 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. Palestine refugees, and descendants of Palestine refugee males, including legally adopted children, are eligible to register for UNRWA services. The Agency accepts new applications from persons who wish to be registered as Palestine refugees.”

As of January first, 2017, UNRWA counted around 5.340.000 registered Palestine refugees. According to the Palestinian Central Bureau of Statistics, the overall Palestinian population worldwide stood at the end of 2016 at approximately 12.7 million. This translates into a share of registered Palestine refugees of about 42 percent. Yet not all individuals with the theoretic right to register with UNRWA have done so. The Palestinian NGO BADIL assumes that around 25 percent of the eligible persons are not registered as Palestine refugees. Not all registered Palestine refugees are furthermore present in one of UNRWA’s five fields of operation. A Lebanese Census from 2017 found, for instance, that around 175.000 Palestinians are staying in Lebanon while the number of registered Palestine refugees in Lebanon stands at 465.000. Since the status as Palestine refugee is a legal status it is independent from the place of residence and is also maintained when the registered person moves to a country outside UNRWA’s five fields of operation. Once registered Palestinians return to one of the five fields of operation they are again eligible to receive UNRWA’s services.

Other recipients of UNRWA services

Some groups of persons who do not meet UNRWA’s Palestine refugee criteria can nevertheless register for the purpose of receiving UNRWA services without being counted as part of the official registered Palestine refugee population of the Agency. They consist of persons who at the time of the original registration did not satisfy all of UNRWA’s Palestine refugee criteria, but who were determined to have suffered significant loss and/or hardship for reasons related to the 1948 conflict in Palestine. Descendants of such persons through the male line are also entitled to register to receive UNRWA services; new registrations to this category are not accepted anymore. In addition, some persons who belong to the families of Registered Persons are eligible to receive UNRWA services. As of January first, 2017, a total of 511.00 other registered persons brought the number of total registered persons to approximately 5.870.000.

Initiated by the UN General Assembly, UNRWA’s mandate was extended in certain situations to provide flexible humanitarian aid to additional groups of people. While due records of these persons are kept, they are not included in the Agency’s registration system. The most prominent of these groups are non-registered persons that were displaced as a result of the 1967 war during which Israel occupied the Gaza Strip, the West Bank and the Golan Heights. UNRWA assessed the number of displaced persons immediately after the war at 300.000 out of which 120.000 were already registered as Palestine refugees. Around 200.000 crossed from the West Bank to Jordanian territory, half of them registered Palestine refugees. Since then, the UN General Assembly extended UNRWA’s mandate to assist further groups of persons, for instance after the Israeli invasion of southern Lebanon in 1982 and the fighting in Lebanon and the Gaza Strip in 2006.

UNRWA budget and budget crisis 2018

UNRWA’s budget is being approved annually by the UN General Assembly. All UNRWA operations and projects depend on voluntary contributions of donor countries, with the exception of around 100 international staff members that are being financed through the UN Secretariat’s regular budget. Changes in donor policies can therefore have a strong influence on UNRWA’s operational capability. In 2017, UNRWA received about 635 million US Dollar for its programme budget. The single largest donor was the United States with 157 million US Dollar, followed by the European Union with 113 million US Dollar. Germany contributed in 2017 around 11 million US Dollar to the programme budget. UNRWA received in 2017 another 487 million US Dollar for its non-programme budget that covers emergency appeals and other projects in Lebanon, Syria, the Gaza Strip and the West Bank.

In early 2018, the Trump administration announced to withhold 65 million US Dollar out of its projected contribution of 125 million US Dollar for the 2018 programme budget. Future payments for the non-programme budget were also called into question. The US administration justified this step with their perceived lack of willingness on the part of the Palestinian Liberation Organization (PLO) to engage with Israel in direct negotiations. This made the continuation of humanitarian aid explicitly dependent on political concessions by the Palestinian negotiators.

These developments induced fears of a massive budgetary deficit of up to 500 million US Dollar for 2018. UNRWA warned that this deficit would force it to reduce its humanitarian help or to shut down certain projects completely in case no alternative funding will be available. This would have far-reaching repercussions for the weakest parts of the Palestinian society. In the Gaza Strip alone, more than 240.000 pupils received in 2018 secular and free education through the 250 UNRWA schools. UNRWA launched in response to the cuts the #DignityIsPriceless campaign. A pledging conference in March was able to raise additional contributions of 165 million US Dollar. The largest single contribution of 50 million US Dollar was announced by Qatar. The Organisation of Islamic Cooperation (OIC) announced in Mai 2018 its intension to establish a religious endowment (Waqf) to consolidate the future funding of UNRWA.

Protection of Palestine Refugees within UNRWA’s fields of operation

UNRWA is not grounded in a statute or charter that defines the rights of registered refuges in their host countries. Each of these countries is individually responsible to formulate these rights. Lebanon, Syria and Jordan base their treatment of Palestinian refugees on the „Casablanca Protocol“ that was drafted by the Arab League in 1965. The non-binding protocol calls upon its signatory states to withhold citizenship from Palestinian refugees. Most Arab states continue to follow this policy, despite Palestinian President Mahmud Abbas’ call in 2005 to grant Palestinian refugees a path to citizenship in their host countries. The Casablanca Protocol furthermore defines far-reaching rights to movement and work for Palestinian refugees. A look at Lebanon, Syria and Jordan reveals that these provisions have been implemented to varying degrees.

Lebanon withholds citizenship from Palestinian refugees and restricts their participation in public life. Only since 2005 are Palestine refugees given the possibility to apply for work permits, while up to 20 professions that require higher education remain off limits. The application is furthermore subject to a lengthy administrative process and depends on the cooperation of the employer. Palestinian refugees are also restricted in their access to public services. They are, for example, not allowed to visit public schools and enjoy only limited access to the public health sector. In addition, the right to movement is restricted outside the 12 recognized refugee camps in which about half of the Palestine refugees are registered. Due to these factors, Lebanon’s refugee community continues to depend heavily on UNRWA’s services. UNRWA’s infrastructure is put under additional pressure by thousands of Palestine refugees that fled from the Syrian civil war. A Lebanese census from 2017 put the number of Palestinian refugees from Syria at roughly 18.000. Many of them continued to stay illegally in the country after Lebanon toughened its refugee policy in 2015.

While Syria withholds citizenship from Palestine refugees, it grants them rights similar to those of its regular citizens, including the access to the labor market and the health sector. However, the outbreak of the Syrian civil war in 2011 has hit Palestine refugees particularly hard. Most of them have been displaced internally several times and UNRWA assumes that until 2018 more than 120.000 of them have fled the war-torn country. Those fleeing the country are in a precarious situation since refugees without a valid citizenship often encounter problems when registering in other countries. This is further complicated by the unfamiliarity of many bureaucracies with the special status of Palestine refugees.

In 1950, Jordan annexed the West Bank which it occupied a decade earlier during the first Arab-Israeli war. The (Nationality Law) from 1954 grants the Jordanian citizenship to all persons that between 1949 and 1954 stayed on Jordanian territory. This included the Palestine refugees and the inhabitants of the West Bank and East Jerusalem. The Israeli occupation of the West Bank in 1967 ushered two decades later in a renewed policy shifts. In 1988, king Hussein of Jordan renounced its claims to the West Bank and revoked the Jordanian citizenship for the population of the West Bank and East Jerusalem, including the Palestine refugees of this area. Also Palestine refugees remaining within Jordan continue to complain about arbitrary citizenship revocations. that ostensibly are meant to strengthen their Palestinian identity. Despite this policy, most of the two million Palestine refugees living in the country hold until today the Jordanian citizenship. As Jordanian citizens they enjoy full access to all public services and only around 17.4 percent of the registered refugees live in one of the 10 official UNRWA camps. However, the resident of these camps have a low socio-economic status compared to their peers outside the camps, a factor that is among others reflected in an underrepresentation in institutions of higher education.

Applicability of the Geneva Conventions

The United Nations High Commissioner for Refugees (UNHCR) was founded in 1950 as a subsidiary organ of the UN General Assembly. Unlike the previously established UNRWA, the UNHCR is rooted in the Geneva Convention of 1951 and its protocol from 1967 that grant refugees comprehensive rights. The convention stipulates for instance that the freedom of movement in the hosting country has to be guaranteed (Article 26) and that refugees should be treated as is accorded to nationals in respect to labor legislation and social security (Article 24). As of 2017, 148 states ratified the Geneva Convention from 1951 and/or its protocol from 1967. Signatory states are among others Egypt and Israel, other countries such as Lebanon, Syria and Jordan did neither join the conventions nor its protocol.

Unlike previously established organizations such as UNRWA that were intended to deals with specific refugee populations, the UNHCR applies a universal definition. Article 1A(2) of the Geneva Conventions defines a refugee as a person “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, is unable or, owing to such fear, is unwilling to return to it.” Based on this definition, three groups of Palestinians can be considered to be refugees. These are “Palestine refugees” who were displaced from that part of Palestine which became Israel and that have been unable to return there and “displaced persons” who have been unable to return to the Palestinian territories occupied by Israel since 1967. The third group are individuals who are neither “Palestine refugees” nor “displaced persons” but who, owing to a well-funded fear, are outside the Palestinian territories occupied by Israel since 1967 and are unable or, owing to such fear, are unwilling to return there.

This definition is, despite its universal character, not applied to all persons that otherwise would fulfill its criteria. Article 1D of the Geneva Conventions states that the regulations are not applicable to persons that are at present receiving protection or assistance from organs or agencies of the United Nations other than the UNHCR. According to a UNHCR legal assessment from 2002, the convention excludes Palestinian refugees who are inside one of UNRWA’s fields of operation and who are registered, or are eligible to register, with UNRWA. If, however, the person is outside UNRWA’s fields of operation, he or she is automatically entitled to the benefits of the convention and falls within the competence of UNHCR. This protection ceases once the person returns to one of UNRWA’s fields of operation. In 2016, UNHCR counted 89.000 registered Palestinian refugees, out of which 70.000 were registered in Egypt and 8.000 in Iraq. The actual number of Palestinians refugees is difficult to determine since not all of those eligible to register with UNHCR indeed do so.

UNRWA vs. UNHCR

UNRWA and UNHCR differ in their regulations to revoke the status of the registered refugees. With the exception of administrative corrections, UNRWA has no possibility to revoke the status of registered Palestine refugees. They keep their status also when temporarily falling under the protection of the UNHCR or when adopting the citizenship of another state. As long as the UN General Assembly extends UNRWA’s mandate every three years, the registered Palestine refugees retain their legal status. The UNHCR on the other hand has the clear mandate to seek “permanent solutions for the problem of refugees” (Statute UNHCR, annexed to resolution 428). Persons registered with the UNHCR lose their refugee status once one of the so called cessation clauses applies. This is the case, among others, when they voluntarily gain the citizenship of their host country or a third country or when they voluntarily repatriate to their home country. The voluntary repatriation is deemed to be the most sustainable and therefore most desirable outcome for the refugees and the international community.

Both UNRWA and UNHCR enable the passing down of the refugee status to the next generation as long as the circumstances legitimizing the original registration persist. UNRWA’s Eligibility and Registration Instructions specify that descendants of Palestine refugee males are eligible to register with the agency. The UNHCR grants descendants of currently recognized refugees a derivative refugee status that guarantees the holder of this status the same rights as other recognized refugees. This derivative refugee status is applicable as long as none of the secession clauses applies. While seen as problematic by the UNHCR, long-term refugee populations are not uncommon. Examples are the so called Sahrawi-refugees that were forced to leave Western-Sahara during the 1970s. According to UNHCR statistics from 2016, there still remain around 90.000 Sahrawi-refugees in Algeria and another 26.000 persons with a refugee-like status in Mauretania.

Right of Return and International Law

Palestinians demand a comprehensive right of return as well as compensation for Palestinians and their descendants that were rendered refugees by the Arab-Israeli war of 1948/49. This demand is based on the non-binding UN General Assembly Resolution 194 that was issued shortly after the end of the war in December 1948. Article 11 “resolves 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.” The right of return is also demanded for those that were displaced as a result of the 1967 war and the Israeli occupation of the Gaza Strip and the West Bank. This demand is based on UN Security Council Resolution 242 from 1967 tat in Article 2b demands to achieve “a just settlement of the refugee problem.” Palestinians argue that several international agreements support their claim of a right of return for Palestinian refugees. The Universal Declaration of Human Rights from 1948 defines in Article 14 (2) that “everyone has the right to leave any country, including his own, and to return to his country.” The International Covenant on Civil and Political Rights from 1966 adds in Article 12 (4) that “no one shall be arbitrarily deprived of the right to enter his own country.”

Israel rejects the Palestinian interpretation of a general right of return for Palestinian refugees and displaced. Legal arguments are that UN General Assembly Resolution 194 and UN Security Council Resolution 242 include vague language such as “should” and “permit”. Israelis interpret this not as an implicit right, but rather as a recommendation. Israel also rejects the Palestinian interpretation of international agreements. It argues, for instance, that the International Covenant on Civil and Political Rights is only applicable to citizens and that it is restricted to cases of arbitrary deprivation.

The Palestinian refugee question in the Peace Negotiations

First direct negotiations between Israel and the Palestinian Liberation Organization (PLO) took place during the Oslo Peace Process of the 1990s. The first milestone of these negotiations was the “Declaration of Principles on Interim Self-Government Arrangements” from 1993. Article 3 of the declaration stipulates that core conflict issues such as Jerusalem, settlements, security, borders and refugees are to be negotiated in so called final status negotiations that were supposed to conclude the peace process. Article 7 furthermore describes a special mechanism for Palestinians that were displaced from the Gaza Strip and the West Bank in 1967. The modalities of their return were to be decided in a “Continuing Committee” with participation of Egypt and Jordan.

The first final status negotiations took place in 2000 in Camp David. Newspapers reported that Israel offered the return of 100.000 Palestinian refugees via the humanitarian measure of family reunification. The remaining refugees were to be compensated through an international fund with Israeli participation. The so called Clinton Parameter from 2000/01 suggested to the two sides that while not being allowed to return to Israel, Palestinian refugees would have a right to return to the future Palestinian state. The remaining refugees were to be compensated by an international fund. These and later rounds of negotiations did not yield a tangible compromise for the resolution of the refugee question.

Representative surveys amongst refugees

Empiric research indicates that not all refugees would realize their right for return in the event of a peace agreement. A representative survey amongst Palestinian refugees from 2003 showed that more than 95 percent deemed the right of return to be non-negotiable. However, confronted with concrete scenarios only 10 percent stated that they would prefer to return to areas within Israel. Provided that Israel compensated for losses, 31 percent preferred to live in an independent state in the Gaza Strip and the West Bank. Another 23 percent preferred to move to Israeli territories that would become part of a Palestinian state in the framework of a land swap while 17 percent stated that they would prefer to remain in their current country of residence.

Palestinians furthermore seem to differentiate between the right of return as a legal principle and Israel’s recognition of its responsibility for Palestinian suffering in 1948 and 1967. A representative survey amongst Palestinians in the Gaza Strip and the West Bank from 2018 showed that 57 percent would reject a peace agreement with Israel that resembles outcomes of previous rounds of negotiations, including a limited right to return. However, testing additional incentives to convince those who were opposed revealed significant potential to increase support. If Israel were to recognize its responsibility for the suffering of the refugees during the first Israeli-Arab war and provide compensation, 39 percent of those who initially opposed the comprehensive agreement would support it, bringing total support to about 62 percent.

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