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Introduction to the Question of Palestinian Refugees and the Second Edition

From: Palestinian Refugees in International Law (2nd Edition)

Francesca P. Albanese, Lex Takkenberg

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 04 August 2020

(p. 1) Introduction to the Question of Palestinian Refugees and the Second Edition

1.  The Palestinian Refugee Question at a Glance and the Rationale for a New, Expanded Edition

It is difficult to find a book about Palestinian refugees that does not begin by referring to them as the largest and most enduring group of forced displaced of the post-Second World War era, or as the largest (often unaccounted for) group of stateless persons in the world. In 1948, Palestine as it existed until then – an Ottoman province first and then an entity slated for self-determination under the British Mandate – was wiped off the map, as the State of Israel was proclaimed over most of its territory. A tiny minority of the 750,000 Palestinians who became refugees in 1948 are still alive; most of them and their children, grand-children, and sometimes great-grandchildren still reside in the countries and territory in which they, or their immediate ancestors, took refuge in 1948 and during subsequent displacements (e.g. 1967 Arab–Israeli war).1 Today, out of over thirteen million Palestinians globally, about eight million are refugees.2 Among those, 5.5 million are registered as ‘Palestine refugees’ with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) in Jordan, Lebanon, and Syria, as well as in the Gaza Strip and the West Bank.3 Over time, increasing numbers have migrated to other countries in the Arab world and, following instability, poverty, discrimination and often persecution in that region, in smaller numbers, to Europe and the Americas and progressively further afield. This study estimates that currently some 1.5 million Palestinians are dispersed outside Arab countries, across the four corners of the world. Their status and documentation make them often statistically invisible, as a result of which their dispersal is difficult to track.

The experiences and situations of Palestinian refugees are varied and diverse, and they do not constitute a homogeneous group. But the millions of this dispersed polity (p. 2) remain connected by a common identity based on a historical reality that the Palestinian American scholar Edward Said summed up as follows: ‘behind every Palestinian there is a great general fact: that he once – and not so long ago – lived in a land of his own called Palestine, which is now no longer his homeland.’4 This intimately defines and links all Palestinians, whatever their age and status. Its meaning goes beyond legal status and the need for international protection; it means being an ‘orphan’ of the homeland that existed in 1948 but is no more. For that homeland, Palestinians have fought and perished, mobilized in arms and advocacy, resorted to armed struggled and political battle, including within the United Nations (UN), for the recognition of their rights, including to exist and be recognized as a people.

Meanwhile, the physical and political fragmentation that has befallen the Palestinian people, including the refugees, the multiplicity of normative legal frameworks and the different actors who are responsible for them, have become key features of their experience. Their identity splintered and multiplied across the ‘hyphenation’ that their dispersal has de facto or de jure resulted in: Palestinian-Jordanian, Palestinian-Syrian, Palestinian-American, Palestinian-Iraqi, and so on.5 And for those whose long-term residence in host countries has not resulted in protection through citizenship (the majority of them in fact), precarity of, or lack of clarity around, their status has increased vulnerability and perpetuated the condition of displacement. The flight of over seven hundred thousands Palestinians from Arab countries since the late 1960s, and the challenges many of them have experienced in seeking asylum anew, such as those fleeing from Iraq and Syria in recent years, bear testament to this.

When Lex Takkenberg’s The Status of Palestinian Refugees in International Law was first published in 1998, there was relatively little legal literature dealing with this group of refugees, who were considered the bête noir of refugee studies.6 The book was the first to comprehensively analyse various legal aspects of the Palestinian refugee question and to set out their distinct status in international law. The first edition, written in the wake of the Oslo breakthrough, reflected the optimism that accompanied the establishment of limited Palestinian autonomy in the Gaza Strip and the West Bank, and the expectation of the establishment of an independent Palestinian state towards the end of the five-year interim period. In hindsight, that optimism was unfounded. Almost every development since the conclusion of the Oslo Accords (1993–1995) has adversely affected Palestinians, including refugees. These developments include: their marginalization in and subsequent collapse of the peace process after numerous rounds of unsuccessful negotiations; the progressive encroachment of the Israeli occupation on Palestinian territory foreseen to be part of the Palestinian state and its progressive fragmentation; the internecine divide between Fatah and Hamas which followed the rise of the latter; and the rise of violence against the Palestinians in the occupied Palestinian territory (hereinafter oPt), comprised of the West (p. 3) Bank, including East Jerusalem, and the Gaza Strip, as well as in Iraq, Libya, and Syria, causing further displacement.

One of the most visible recent developments affecting the refugees has been the change in approach of the US, which is no longer perceived nor claims to act even-handedly in its engagement with Israel and the Palestinians. Since late 2017, the Trump administration has taken a number of unprecedented measures, including recognition of Jerusalem as Israel’s capital and related thereto the relocation of the US embassy from Tel Aviv to Jerusalem, the defunding of UNRWA, the cancellation of other US aid for Palestinians, and a significant scaling down of diplomatic ties with the PLO and the Palestinian Authority/Government of Palestine. These measures have contributed to a new wave of confrontations between Palestinian protestors and the Israeli army, primarily in Gaza, in which hundreds of Palestinian refugees and other Palestinians have been killed and many more injured in the context of what is commonly known as ‘The Great March of Return’. This latest crisis has once again highlighted the dangers inherent in the failure to find a just solution to the question of the Palestinian refugees. In this regard, it has also helped create momentum to ‘revive’ discussions around the Palestinian refugee issue, its root causes, and the reasons behind the lack of solutions to their plight. Amid the challenges, a number of developments that have occurred over the last two decades represent important opportunities.

First, unlike twenty years ago, there is now greater awareness of the Palestinian refugee question. The increase in academic and expert studies on the subject, particularly in the wake of the Middle East peace process (MEPP),7 has contributed to addressing the lacuna in knowledge relevant to both specific aspects of the refugee issue as well as the quest for solutions. An important contribution to this wealth of knowledge has come from the grassroots ‘movement’ of Palestinian refugees that has developed, during and in the aftermath of the Israeli–Palestinian peace negotiations, in UNRWA’s area of operations and beyond.8

Second, in recent years the importance of an international-law-centred and rights-based discourse concerning the question of Palestine has gained traction. In 2004, the International Court of Justice delivered a seminal advisory opinion on the wall/barrier constructed by Israel on large portions of the West Bank that authoritatively elucidated the international legal framework applicable to the Israeli occupation, including with reference to Palestinian self-determination.9 Israeli policies and practices in the Gaza Strip and the West Bank, including those affecting Palestinian refugees, have come under scrutiny by international human rights bodies and UN fact-finding missions and commissions of inquiry, such as the one that generated the ‘Goldstone Report’ in 2009, and the most recent (p. 4) report on demonstrations held in Gaza in 2018.10 Not only have those bodies contributed to advancing the interpretation of international law with reference to Palestinian issues, but also they have identified violations meriting investigation and potentially attracting individual criminal liability. Valuable contributions have been made over the years by the Special Rapporteurs on the Human Rights situation in the oPt. The upgrade of the PLO’s status to non-Member Observer State within the United Nations in 2012, which enabled Palestine to join the International Criminal Court (ICC) in 2015, has focused attention on the relevance of international criminal law with respect to the Palestinian question, including the refugee issue. At the time of writing, the Office of the Prosecutor of the ICC is conducting a preliminary assessment to determine the court’s competence in the oPt. Meanwhile, the work of international human rights mechanisms, such as UN treaty bodies and thematic rapporteurs, has further exposed violations of basic rights of Palestinian refugees, including outside the oPt.

Third, there is greater awareness of protection vulnerabilities of Palestinian refugees and a clear resolve to make international protection of Palestinian refugees a reality. Since 2002, UNHCR has issued a number of interpretative notes on the application of Article 1D of the 1951 Refugee Convention (‘the 1951 Convention’) to Palestinian refugees outside UNRWA’s area of operations. Two judgments of the Court of Justice of the European Union, in 2010 (Bolbol) and 2012 (El Kott), clarified important aspects of the application of Article 1D in the European region, unfortunately without removing all ambiguity. Some ground-breaking national jurisprudence has reflected a shift towards a better understanding of the Palestinian refugee condition. The latest interpretative note, issued by UNHCR in December 2017, and the most comprehensive to date, is expected to lead to greater coherence and clarity in the application of the 1951 Convention to Palestinian refugees and asylum seekers. For its part, since the turn of the century, UNRWA has significantly enhanced its efforts to protect the rights of Palestinian refugees living in its area of operations. The two agencies have also entered into a strategic partnership in order to achieve ‘continuity of protection’ of Palestinian refugees, wherever they reside. Still unexplored by the two agencies is how the New York Declaration on Refugees and Migrants of 2016, the Comprehensive Refugee Response Framework annexed thereto, and the follow-up Global Compact on Refugees of 2018, constituting a new, globally-endorsed, framework for protection and solutions for all refugees, may be used to the benefit of Palestinian refugees.

The large body of research over the past two decades has greatly enriched the discourse on the subject, including through detailed examination of specific aspects of the Palestinian refugee question (for example, their distinctive regime and associated ‘protection gap’;11 their inalienable rights, primarily return; and the intractability of their case within the peace process) and focusing on their situation in the countries where UNRWA operates (like Jordan, where most Palestinians enjoy citizenship, and Lebanon, where the treatment given to Palestinians is inferior to other foreigners) as well as in countries where their status and treatment has abruptly changed following political shifts (such as post-1978 Egypt, post-1990 Kuwait, post-2003 Iraq, and post-2011 Syria).

(p. 5) The new book draws on both this research12 and an analysis of the above-noted developments, and aims to provide a comprehensive overview of the Palestinian refugee question, from the origins of the exodus to the current dispersal across five continents. It examines how relevant norms have been used, misused, or simply misunderstood, rather than recognized as the essential framework for both protection and the quest for just and durable solutions for Palestinian refugees. The hope is that the new edition will contribute to correcting this path and to advancing solutions in line with international law.

2.  Scope and Structure of the New Edition

The book offers a comprehensive overview of the Palestinian refugee question in international law, including its historical origins and evolution, the special arrangements the UN put in place for them, the status and treatment the refugees enjoy in the various countries to which they fled, and the extent to which international law is relevant to their protection and the pursuit of solutions. The study shows the extent of divergence between principles and rules that govern the status of refugees and stateless persons, as well as humanitarian and human rights norms, and the fate of this particular group. The study acknowledges that current realities of the prevalent political climate give little grounds for optimism. However, at the same time it identifies opportunities that are as yet untapped, and suggests an approach that has the potential to bring the problem more clearly within the proper legal context and the global refugee regime, and as such also closer to a ‘just’ solution to the Palestinian refugees’ plight.

The second edition – essentially a new book building on the foundations of the first edition – has eight chapters and is divided into three parts. A reader familiar with the first edition will notice that, in addition to significant new material, the structure of the new edition has been altered in order to allow a more holistic discussion of key topics and enhance readability. Given the variety of topics covered, significant cross-referencing is provided (in addition to the index) so as to facilitate specific consultations for those who may not read the book in its entirety or who use it as a reference with respect to specific aspects of the Palestinian refugee issue.

Part One (Chapters I–III) focuses on the historical and legal foundations of the Palestinian refugee question. Chapter I traces its history, discussing the main events that, under Ottoman and then British rule, created the conditions that, as of 1947, enabled the mass displacement and dispossession of a large part of the Arab population of Mandate Palestine. It discusses how, from 1948 onwards, the Palestinian refugee question has been negotiated, both under UN auspices and, as of the 1990s, directly between Israelis and Palestinians. This historical account is crucial to understanding how international law was (meant to be) central to early attempts at resolving the refugee issue, and how it subsequently became effectively side-lined. The chapter also identifies some elements of continuity between the original displacement (in 1948 and 1967) and the current situation of Palestinians in the oPt.

(p. 6) Chapter II analyses holistically the distinct normative and institutional regime applicable to Palestinian refugees, including the complementary mandates and roles of the United Nations Conciliation Commission for Palestine (UNCCP), UNRWA, and the United Nations High Commissioner for Refugees (UNHCR). It discusses both the genesis and meaning of Article 1D of the 1951 Convention, the provision specifically included with the Palestinian refugees in mind, including its recent interpretation and application. It shows how the special arrangements for this group of refugees, put in place due to the circumstances of their displacement, were meant to ensure continuity of protection. It also discusses early definitions of ‘Palestine refugees’ (for the purpose of repatriation) under United Nations General Assembly resolution 194(III) of 1948 (hereinafter ‘resolution 194’) and provides a detailed historical account of the evolution of UNRWA’s working definition and registration of ‘Palestine refugees’ (for the purpose of administering relief and other services) including descendants of the original refugees. In doing so, it refutes the argument that the UNRWA refugee definition and registration policy run against international refugee law and practice.

Chapter III further elaborates the legal foundations of the Palestinian refugee question, reviewing their status under various branches of international law, as refugees, stateless persons, civilians protected under international humanitarian law, internally displaced persons, or, simply, as human beings entitled to human rights. Unlike in the first edition, the various branches of law are considered together, because while each of them has a specific relevance to Palestinian refugees, it is international law ‘as a whole’ that, through the interplay of its various branches, provides for effective protection of these refugees. Without downplaying the distinctive features of the Palestinian refugee question, the chapter demonstrates how its ‘exceptionalism’ (namely, it being treated as different from any other refugee question and often outside the scope of relevant legal frameworks) has contributed to a lesser standard of protection. This is not an endemic and unchangeable characteristic of it, but rather the result of the relevant stakeholders approaching this question as a matter circumscribed by politics rather than international law.

Part Two (Chapters IV and V) provides an overview of the situation of Palestinian refugees around the world, throughout seventy years of exile. Chapter IV deals with the history, status, and treatment of Palestinian refugees in the Arab world, while Chapter V covers Palestinian refugees in Europe, the Americas, Asia-Pacific, and Africa. Both chapters include an overview of regional frameworks and mechanisms available to Palestinian refugees. Palestinian exile is commonly believed to be a question confined to the Arab world and particularly to the countries and territory where UNRWA operates. This study shows this is not the case, with continuing movements not only within the Arab world, but also towards Europe and the Americas and, in recent years, towards the Asia-Pacific region as well as Africa. It shows how confusion and divergent interpretations of Palestinian refugee status under international law, and the resulting failure to treat Palestinian refugees seeking asylum outside UNRWA’s area of operations as internationally recognized refugees under relevant UN resolutions, contribute to further displacement. This part of the book provides the most complete – albeit at times uneven – picture available to date on Palestinians around the world. Lack of data, however, is a significant constraint.13 Limited documentation on (p. 7) the Palestinian presence in certain countries, and different interpretations and approaches to the determination of refugee status and statelessness of Palestinians, often within the same country, lead to uneven statistical treatment and, occasionally, statistical ‘invisibility’ of these refugees. Refugee status of Palestinians often goes unacknowledged and unreported. Outside the Arab world, the variety of categories under which Palestinians are registered, including ‘stateless’, ‘unknown nationality’, ‘undetermined nationality’, nationality of the country of which they hold passports or other travel documents, or in some cases ‘Palestinian nationality’, add to the unevenness of the data. Beyond statistical ambiguity, this may have protection implications, as the book discusses.

Part Three (Chapters VI–VIII) focuses on international protection and solutions for Palestinian refugees. Chapter VI discusses a number of specific rights and entitlements of Palestinian refugees under international law, including the rights to self-determination, return and compensation – the legal foundations of which are considered in light of pertinent historical sources – as well as a number of civic, cultural, economic, political, and social rights that have become relevant as a result of the protracted nature of Palestinians’ exile. Chapter VI thus complements Chapter III, and together they form the legal noyeux dur of the book. These rights and entitlements are discussed separately from the domains of international law that are the subject of Chapter III, because their nature and relevance can be better appreciated after the factual description of the status and treatment of Palestinian refugees around the world in Chapter IV and Chapter V. Chapter VI makes clear that, while in the Arab region UNRWA has been the main provider for the needs of (primarily) ‘Palestine refugees’, the agency by itself cannot ensure the realization of all refugee rights, such as those related to adequate housing and standards of living, freedom of movement, employment, physical integrity and safety, and access to justice. As will be demonstrated, meeting these needs does not undermine the historic rights of the refugees under relevant UN resolutions (i.e. to return and compensation), but rather helps ensure human dignity while a just and lasting solution remains elusive.

Chapter VII addresses the need for international protection of Palestinian refugees, and reflects not only the important policy developments that have occurred within UNRWA and UNHCR to ensure protection of Palestinian refugees, but also the extent to which the strategic partnership between two agencies has made the ‘continuity of protection’ for Palestinian refugees – as envisaged by the drafters of the 1951 Convention – a reality. It also discusses how challenges in delivering effective protection are linked to the protracted lack of durable solutions as well as to limited compliance with international legal obligations by relevant stakeholders.

Chapter VIII focuses on the quest for just and durable solutions. It explores the challenges and opportunities that have emerged through the various attempts at resolving the Palestinian refugee question (or lack of thereof) and how the New York Declaration on Refugees and Migrants offers a compelling complement to the framework articulating the fundamental rights of Palestinian refugees, as stemming primarily from relevant UN resolutions, such as General Assembly resolutions 194 of 1948 and 2256 of 1967. For it to materialize, the authors make the case for a fundamental paradigm shift at three levels. First, the UN must reassume responsibility for solutions for Palestinian refugees. Second, international law must be the framework and guide resolving both refugee status and the moral, material, individual, and collective aspects of the Palestinian refugee question. The framework should centre around relevant UN resolutions, clarifying and advancing their content, (p. 8) in the interest of the refugees as individuals and as a ‘collective’, beyond rhetoric. Third, the belief that securing rights of the refugees, including citizenship, will undermine their rights and claims towards Israel, must be put to rest. The chapter recognizes that for the rights of Palestinian refugees to be realized, the Palestinian community needs to take agency in prompting the aforementioned paradigm shift, and international and regional diplomacy will need to provide support that has hitherto been largely lacking. This ultimately requires a fundamental change in the way Palestinian refugees are seen, not as just the victims of a failed political process, but as rights-holders, entitled, and empowered to shape their own destiny.

3.  Methodology

3.1  Research methods and sources

Digital access to countless primary and secondary sources, in addition to archival material in paper form that was not previously accessible, has greatly expanded the wealth of knowledge upon which the authors could rely. Access to essential historical records from 1947 onwards was possible thanks to the United Nations Information System on the Question of Palestine (UNISPAL), an online resource that was established in the 1990s and is maintained by the Division for Palestinian Rights at the UN Secretariat in New York.14 Relevant scholarly research, reports, and studies on specific aspects of the situation of Palestinian refugees by UN bodies and NGOs are referred to throughout the book, and are included in the extensive bibliography. Legal and other research on the Palestinian diaspora conducted by BADIL15 and others,16 was an important starting point for this element of the study. Much of the information on the status and treatment of Palestinian refugees in various countries in the Arab world as well as in Europe, the Americas, Asia-Pacific, and Africa, was obtained through a questionnaire distributed primarily through UNHCR offices worldwide17 and interviews. Within UNRWA’s area of operations the survey was conducted through the support of local lawyers and researchers as well as input from agency personnel.18 Where information in Chapter IV and Chapter V is not otherwise sourced, it is generally the result of this survey. In collating and analysing the data of the survey, the authors were greatly supported by two research assistants who also ensured access to a variety (p. 9) of primary and secondary sources in multiple languages, including Arabic. The preliminary results of the survey were validated with the help of local legal experts, academics, and practitioners in various countries and regions.

In addition to written sources, information on the position of Palestinian refugees in various regions and countries and on the role of the UN and the MEPP was obtained through some fifty semi-structured interviews with relevant government representatives, academics, UN officials, and local experts. These were conducted by the authors mainly in Jordan, Lebanon, Switzerland, and the West Bank, including East Jerusalem, and the US, between January 2016 and October 2018. Where information in the study is not based on written sources but rather on interviews, this is explicitly stated in footnotes, unless interviewees expressed the wish to remain anonymous.

The fact that both authors have lived in the Middle East, working for UNRWA, has greatly enhanced their understanding of the intricacies of the Palestinian refugee question and has helped accessing sources and contacts relevant for the study. While working on the book, one of the authors lived in North America and the Asia Pacific, which facilitated understanding of and access to relevant sources in those parts of the world.

The authors have greatly benefitted from the advice and wisdom of the members of an informal advisory group with relevant expertise on Palestinian refugees as well as various areas of international law, international relations, political science, statistics, and economics. This has helped the authors frame and articulate concepts across a broad range of sensitive areas.19 Members of this group were also kind enough to review the various draft chapters.

Between 2016 and 2018, one of the authors (FA) had the opportunity to present a number of the study’s findings and ‘test’ some of its conclusions at seminars and informal workshops in Amman, Beirut, Jerusalem, London, New York, Ramallah, Singapore, and Washington DC. The present volume also reflects the outcome of these exchanges. The book covers developments until early 2019 and was completed by autumn 2019.

3.2  Some remarks on terminology

The discourse around Palestinian refugees is one in which researchers and observers can find themselves ‘captive’ of language. Some of the pertinent terminology has a very specific connotation, and how it is used can be contentious. This is the case with terms like ‘conflict’, ‘diaspora’, ‘indigenous people’, and ‘right to return’ given the emotional meaning and political implications they have for both Israelis and Palestinians, which may distract from their legal meaning. While context and clarification of terminology are provided where necessary in the various chapters, some key terms are widely used and warrant being clarified here. These are ‘asylum seeker’, ‘diaspora’, and ‘Palestinian’ versus ‘Palestine’ refugees.

3.2.1  ‘Asylum seeker’

The term ‘asylum seeker’, as used in this study, refers to any person who has requested to be recognized as a refugee and to be granted asylum, or who wants to make such a request, or (p. 10) whose request has been rejected while an appeal against the rejection is still pending.20 As Palestinian refugees have for the most part been long-term residents of their respective host countries, where reference to Palestinian ‘asylum seekers’ is made, this refers to Palestinian refugees, including descendants of the original refugees, who have been forced into subsequent displacement, seeking protection beyond the countries of initial refuge or later residence (unless otherwise specified).

3.2.2  ‘Diaspora’

Common to the condition of dispersal of other communities, such as Armenians, Irish, Jews, and Greeks – the term ‘diaspora’ (shatat in Arabic) has been progressively adopted to refer to the experience of Palestinians in exile.21 Peteet and Hanafi emphasize the need for specificity with respect to an appropriate use of this term in the Palestinian case. Normally understood as the dispersal of an ethnic minority with its own identity, language, religion, and or traditions, progressively integrating away from the homeland,22 the term ‘diaspora’ may not be immediately adaptable to the Palestinian case.23 Palestinian exile challenges this traditional concept of diaspora: in most of the countries where they reside in the Arab world, Palestinians do not constitute a minority as such, as they share culture, history, language, and religions with the host communities; furthermore, integration and sense of belonging to the host community is not an obvious element of Palestinians’ dispersal; last, but not least, the aspiration to see the rights enshrined in relevant UN General Assembly resolutions, such as resolution 194, materialize is all but forfeited.24 Hence, the term ‘Palestinian diaspora’ is used in this book to describe an exile specific to Palestinians. Particularly in Chapter IV and Chapter V, it refers to a long-term Palestinian presence in given country or area (from the late 1940s through the 1990s), as opposed to the more recent arrivals of Palestinians displaced by the various upheavals in the Arab region since the turn of the century.

3.2.3  ‘Palestine refugees’ vs ‘Palestinian refugees’

A distinction is commonly drawn between ‘Palestine refugees’ and ‘Palestinian refugees’, where, generally, the former refers to refugees under UNRWA’s mandate and the latter to (p. 11) refugees of Palestinian origin.25 ‘Palestine refugees’ at large are persons of different ethnic backgrounds, predominantly Arab,26 who were displaced from British Mandate Palestine (primarily the part that became Israel, although Palestinians were also displaced from the parts that became the West Bank, including East Jerusalem, and the Gaza Strip), to other parts of Mandate Palestine, namely the West Bank and the Gaza Strip, as well as to neighbouring countries, namely Jordan, Lebanon, and Syria, and, in smaller numbers, to Egypt and Iraq, on the occasion of the 1948 Arab–Israeli war. In fact, it is more accurate to locate the original Palestinian displacement in the period from 1947 to 1949, as it frames the beginning of the large-scale unrest in Palestine and the signing of armistices between Israel and Arab countries. The majority of these refugees and their descendants,27 now well into the third or even fourth generation, are registered as ‘Palestine refugees’ with UNRWA. They are also commonly referred to as ‘1948-refugees’ (laji’ūn in Arabic).28 The Palestinians who were displaced for the first time in 1967 (i.e. not ‘1948-refugees’) from the territory corresponding to the remainder of British Mandate Palestine – namely the West Bank, including East Jerusalem, and Gaza Strip – that Israel occupied during the Six-Day War, are commonly referred to as ‘displaced persons’ or ‘1967 refugees’ (nāziḥūn in Arabic). Though their fate is similar to that of the 1948 refugees, and they are refugees from an international law standpoint, a different terminology was reserved to them, owing to the status of the land from which they were displaced, as well as the personal status of the persons living there.29 Accordingly, each year, the General Assembly passes a separate annual resolution focusing only on them.30 The General Assembly did not confer on UNRWA a comprehensive mandate to deal with this group, which has consequently received less comprehensive assistance from the agency, which also does not include them in its ‘registered refugee population’.31

The term ‘Palestinian refugee’, used in this study, is in one sense narrower and in another broader than that of ‘Palestine refugees’. It is narrower as it only refers to refugees from Palestine of Arab (Palestinian) origin, who were one part (the largest, and the one for whom (p. 12) a solution remains to be found) of the whole displaced population of Palestine in 1947–1949. This explains why early UN resolutions refer to ‘Palestine refugees’, a term which is also reflected in UNRWA’s name. As a consequence, this study uses the term ‘Palestine refugees’ when discussing technical definitions and matters that strictly pertain to UNRWA’s mandate as defined by relevant resolutions of the General Assembly.

The term ‘Palestinian refugee’ is broader than ‘Palestine refugee’ in that it also comprises refugees who were displaced from the territory originally corresponding to the whole of British Mandate Palestine in 1947–1949 in subsequent years (i.e. the 1967 displaced persons). This is in line with UNHCR’s interpretation of Article 1D of the 1951 Convention Relating to the Status of Refugees, which, according to the organization, applies to ‘Palestinian refugees’ – including ‘[1948] Palestine refugees’, ‘[1967] displaced persons’ and descendants of both groups – ‘whose position has not been definitively settled in accordance with relevant resolutions of the UN General Assembly’.32

The term Palestinian refugees may also cover those who are originally from the Gaza Strip and the West Bank and have become refugees at a later stage.33

In summary, this study uses ‘Palestinian refugees’ to describe refugees of Palestinian (Arab) origin who were displaced at any time since 1947 from any part of the territory that constituted British Mandate Palestine in 1947 (today Israel, Gaza Strip, and West Bank, including East Jerusalem) and whose position remains to be settled in accordance with relevant UN resolutions. Use of the term ‘refugees’ in a general sense, without the adjective ‘Palestinian’, refers to persons who meet the definition of a refugee under the 1951 Convention.

4.  The Aim of the Study

Like the book’s first edition, the aim of the new book is to provide a precise understanding of the legal aspects of the Palestinian refugee problem, its genesis and implications, as well as to show the problems that these refugees have faced, and the nature of their vulnerability – over the decades – and to explain how international law can be deployed to redress their situation. It is understood that at present, as in the past, the Palestinian refugee problem has not been one of lack of legal framework, but rather one of instrumentalization and political inaction vis-à-vis protracted non-implementation of the law. As Victor Kattan argues, the problem in this case ‘is not international law per se but its lack of enforcement; that in the Middle East international law is closer to power than to justice.’34

While capturing the relevant factual, legal, and political developments, and building on the extensive volume of pertinent literature, this new and significantly expanded book aims to fill in gaps that remain, explore new approaches, and contribute to leading the discourse forward, towards a long overdue improvement of the situation for Palestinian refugees.

(p. 13) While the book may naturally appeal to a public of international lawyers and legal researchers with an interest in the Palestinian refugee question, it aims to be relevant as well for other academics, diplomats, journalists, politicians, and anyone who has an interest in the question of Palestine at large, and Middle East peace-making more generally. It also provides an interesting perspective of how legal, political, and humanitarian responses to forced displacement have evolved over seventy years; this may be relevant to the study of other protracted refugee situations. This book has been written in a way that aims to offer an accessible contextualized reading of the law, also for non-legal experts (hence the brief overview of the various bodies of laws and rights that an informed legal reader may wish to skip), beside allowing its use as a lens to assess key aspects of the Palestinian refugee question.

The authors hope that the analysis and arguments offered will allow the reader a comprehensive appreciation of the Palestinian refugee question and an understanding of the significance of international law for movement beyond the current stalemate. Diplomats called upon to make decisions on behalf of their governments which may affect Palestinian refugees, as well as government officials and lawyers dealing with asylum requests of Palestinians, wherever these are made, and officials of UNRWA, UNHCR, and other UN, international and non-governmental organizations dealing with Palestinian refugees, should find herein helpful guidance on how to approach the Palestinian refugee question and ultimately, how to use international law to enhance protection and improve living conditions of Palestinian refugees.

It is particularly hoped that the book will encourage critical thinking about, and new approaches to, long-overdue solutions to the world’s most protracted refugee problem.

Finally, the authors stress that the views expressed in this book are theirs, and are not necessarily shared by the UN, UNHCR, or UNRWA, or anyone who extended support to the writing of the book. The authors are exclusively responsible for such errors and omissions as undoubtedly remain.(p. 14)

Footnotes:

These wars mark, respectively, the establishment of the State of Israel on 15 May 1948, an event which is engraved in Palestinian memory as the Nakba (‘catastrophe’ in Arabic) and its occupation of the Gaza Strip and the West Bank, including East Jerusalem, in June 1967, which Palestinians commemorate as the Naksa (‘setback’ in Arabic).

The Palestinian Central Bureau of Statistics (PCBS) estimates that there are 13.05 million Palestinians in the world at the end of 2018; geographically, they are distributed as follows: 4.951 million (37.7 per cent) in Palestine (i.e. the Gaza Strip and the West Bank), 1.568 million (twelve per cent) in Israel, 5.850 million (44.8 per cent) in Arab countries, and 717.000 (5.5. per cent) in other countries around the world. See PCBS, Palestinians at the end of 2018, Ramallah, 2019.

The use of terms ‘Palestine refugee’ versus ‘Palestinian refugee’ is clarified in the terminology section, below. In addition to UNRWA-registered refugees (and other registered persons), in 2015 BADIL Resource Centre for Palestinian Residency and Refugee Rights (hereinafter ‘BADIL’) estimates that there are about one million non-registered 1948 refugees, one million ‘1967 refugees’ (or ‘1967 displaced persons’), and an unknown number of refugees who are neither 1948 nor 1967 refugees – primarily displaced outside of the West Bank, East Jerusalem, and the Gaza Strip since 1967. See BADIL, Closing the protection gap: Handbook on protection of Palestinian refugees in states signatories to the 1951 Convention, 2nd edn., BADIL, 2015, 7.

Said, E. W., The question of Palestine, New York: Vintage Books, 1980, 115.

The concept of ‘hyphenated citizens’ is discussed in Kassim, A., ‘The Palestinian: From hyphenated to integrated citizens’, The Palestine Year Book of International Law 4 (1987) 8.

Traditional studies on refugee law have generally not captured the reality of Palestinian refugees because, as Atle Grahl-Madsen vividly articulated, ‘their situation poses so many special and intricate problems that it would be difficult to keep our work within reasonable limits if we should include this category in our study’, Grahl-Madsen, A., The status of refugees in international law, vol. i, Refugee character, Leiden: Sijthoff, 1966, 4.

The so-called ‘track two’ initiatives associated with the MEPP (see Chapter I, Section 6.2), including workshops, publications, and networking activities, were initiated following the Madrid Conference to support dialogue between academics and others close to the parties. The most significant of these activities have been supported by Canada and the International Development Research Centre (IDRC), which collectively became known as the ‘Ottawa Process’. Others include Harvard University, the Economic Cooperation Foundation, the ‘Minster Lovell’ series of workshops organized by the Royal Institute of International Affairs (Chatham House) in the UK, the Aix Group, and the Geneva Initiative. Brynen, R., ‘Compensation for Palestinian refugees: Law, politics and praxis,’ Israel Law Review 51.1 (2018), 29–46, 35, fn 33.

Over time, a Palestinian refugee movement, comprised of a number of civil society groups and organizations representing Palestinian refugees, has emerged in response to concerns about the peace process and its limited engagement with refugees. See Chapter VIII, Section 3.4 for additional details.

ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004. The opinion is further discussed in Chapter VI, Section 3.2.

10  A number of these bodies’ findings are discussed throughout the book, e.g. Chapter III, Section 5.2 and Chapter IV, Section 3.5.

11  The question whether there exists a ‘protection gap’ with respect to Palestinian refugees is discussed in Chapter VII.

12  This research is captured in the extensive bibliography at the end of the book.

13  Efforts to address this include original research, such as the CIVITAS project (see Chapter VI), and improved data collection by UNRWA, UNHCR, and PCBS, as well as a number of NGOs (primarily BADIL).

14  UNGA res 46/74(A-C) of 11 December 1991 on the Division for Palestinian Rights requested ‘a computer-based information system’ that was a precursor to what became UNISPAL. The resolution was in response to a request by the Palestinian delegation, at the time under the Ambassadorship of Dr. Nasser Al-Kidwa. The UNISPAL website can be accessed at: http://www.un.org/unispal/.

15  Since 2005, the BADIL has undertaken important research on the status and protection of Palestinian refugees around the world, see, for example, Closing the protection gap: A handbook on protection of Palestinian refugees 2015 (earlier ed. 2005, 2011); Survey of Palestinian refugees and internally displaced persons 2013–2015 (earlier edns. 2002, 2003, 2004–5, 2006–7, 2008–9, 2010–12).

16  Various studies have looked at the Palestinian diaspora in various areas of the world. They are referred to in Chapter IV and Chapter V, as well as in the bibliography.

17  In fact, two questionnaires were distributed depending on whether the country is party or not to the 1951 Convention; about twenty questions were asked concerning arrivals, current presence, numbers, documentation upon arrivals, status, general treatment, including rights enjoyed under various framework, and protection received.

18  Approximately forty replies were received, including some which collated information from different countries (e.g. in sub-regions).

19  The members of the informal advisory group and the interviewees are listed in the acknowledgment, unless they asked to remain anonymous.

20  In this respect, the term ‘asylum’ is a strictly legal notion. It refers to the right of a state to grant asylum to a person. According to UNHCR: ‘The GA has adopted the term in resolutions relating to the High Commissioner since 1981. It can either refer to an individual whose refugee status has not yet been determined by the authorities but whose claim to international protection entitles him or her to a certain protective status on the basis that he or she could be a refugee, or to persons forming part of large-scale influxes of mixed groups in a situation where individual refugee status determination is impractical’. See UNHCR, ‘Note on the Mandate of the High Commissioner for Refugees and his Office’, October 2013.

21  Cf. Khalidi, W. (ed.), Before their diaspora: A photographic history of the Palestinians, 1876–1948, Washington, DC: Institute for Palestine Studies, 1984; Schulz, H. L., The Palestinian diaspora, Abingdon: Routledge, 2005; Hammer, J., Palestinians born in exile: Diaspora and the search for a homeland, Austin, TX: University of Texas Press, 2009. PCBS reports also refer to Palestinians in the ‘diaspora’. Further references are provided in the bibliography.

22  Brah, A., Cartographies of diaspora: Contesting identities, Abingdon: Routledge, 2005, cit. in Peteet, J., ‘Problematizing a Palestinian diaspora’, International Journal of Middle East Studies 39.4 (2007) 627–46, see text corresponding to (n 3), (n 26), (n 32), and (n 46) in particular.

23  Hanafi, S., Rethinking the Palestinians abroad as a diaspora: The relationships between the diaspora, Homelands and diasporas: Holy lands and other places, Redwood City, CA: Stanford University Press, 2005, 97–122. Peteet (n 22).

24  Peteet (n 22), 632–3.

25  The term ‘Palestinians’, in the sense of ‘Palestinian Arabs’ or ‘Arab Palestinians’, generally refers to persons of Arab origin: (1) born or living in the area of Palestine, as constituted during the period of the British Mandate; (2) born or living in the parts of former British Mandate Palestine subsequently designated as Israel, the West Bank, and the Gaza Strip (those living in Israel are commonly referred to as Palestinian/Arab citizens of Israel); (3) who, after 14 May 1948, identified themselves or were classified as Palestinians in censuses or population counts in other countries or areas of the world. See Roof, M. K., Kinsella, K. G, Palestinian Arab population: 1950 to 1984, Washington, DC: Center for International Research, 1987, 106.

26  In fact, although the vast majority of these refugees in 1948 were of Arab origin, it comprised individuals of over two dozen other nationalities, including a significant number of Lebanese, Jordanians, Syrians, and smaller numbers of Algerians and Tunisians. These other nationality currently constitute some 1.2 per cent (1.5 in 1998) of UNRWA-registered Palestine refugees (see Chapter II, Section 4.2). About 17,000 Jewish inhabitants of Mandate Palestine were briefly assisted by UNRWA before Israel took responsibility for them. On assistance to Jewish refugees, see UNRWA, Assistance to Palestine refugees: Interim Report of the Director of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, GAOR, 5th sess., suppl. 19, UN doc. A/1451/Rev.1, 5. Further discussed in Chapter II, Section 4.2.

27  Registration of Palestine refugee descendants by UNRWA is discussed in Chapter II, Section 4.2.3.

28  For popular definitions, see Chiller-Glaus M., Tackling the intractable: Palestinian refugees and the search for Middle East peace, Bern: Peter Lang, 2007, 82.

29  In 1949, Jordan annexed the West Bank and considered it as part of its territory until 1988. During this period, Jordan treated the West Bank inhabitants as its own citizens. Hence in 1967, Palestinian refugees from the West Bank were considered as ‘internally displaced’ into (the East Bank of) Jordan. See detailed discussion in Chapter IV, Section 3.2.

30  This was also reflected in relevant UN resolutions which referred to them as ‘1967 displaced persons’ (e.g. UNGA res. 2256 of 1967). The difference can presumably be found in the rationale that at the end of the Israeli occupation the first time displaced from 1967 would return to the West Bank and Gaza.

31  See Chapter I, Section 6.2 and Chapter II, Section 4.2.3.

32  UNHCR, Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees, December 2017, HCR/GIP/16/12, para. 9. See Chapter II, Section 4.3.

33  They do not fall within the scope art.1D of the CSR51 Chapter II, Section 4.3.3 (328).

34  Kattan, V., From coexistence to conquest: International law and the origins of the Arab–Israeli conflict, 1891–1949, London: Pluto Press, 2009, 4.