17.6.2016 | Von:
Susan M. Akram

The United Nations Relief and Works Agency for Palestine Refugees in the Near East – UNRWA

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

Gaza City, Dezember 2015: Bo Schack, Einsatzleiter der UNRWA (Hilfswerk der Vereinten Nationen für Palästina-Flüchtlinge im Nahen Osten) hält eine Pressekonferenz.Director of Operations for UNRWA Bo Schack holds a press conference in Gaza City on December 17, 2015. (© picture-alliance, AA)

Editorial note: The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) assists Palestinians and their descendants in Jordan, Lebanon, the West Bank, Gaza and Syria who became refugees in the wake of the 1948 Arab-Israeli War. The relief agency provides health care and education, runs schools, clinics and community centers, and is responsible for providing services such as road and sewer maintenance, garbage collection and water supply. UNRWA's mandate is renewed every three years. The relief agency depends on voluntary contributions to support its activities.

Background of the creation of UNRWA: Towards the end of the British Mandate over Palestine in 1948, on November 29, 1947, the United Nations General Assembly voted in favor of the partition of Palestine into a Jewish state and a Palestinian Arab state (Resolution 181 II; 33 votes in favor of the resolution, 13 against the resolution, and ten abstentions). The Arab League, founded in 1945, and its six UN member states vehemently rejected the partition resolution and announced that they would take military action in case of its implementation. Following the UN decision, the armies of Syria, Lebanon, Jordan, Egypt and Iraq attacked Israel. In the course of the conflict 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 to this day influence the rights and status of Palestinian refugees.

Creation of Three UN Refugee Agencies

Between 1948 and 1950, the UNGA passed resolutions establishing three international UN refugee agencies: the UN Conciliation Commission on Palestine (UNCCP), the UN Relief and Works Agency for Palestine Refugees (UNRWA), and the UN High Commissioner for Refugees (UNHCR). These three agencies had distinct international obligations relating to Palestinian refugees, which were well-defined at the time, but have since become ambiguous and little understood. The ambiguities in their mandates created what today is commonly known as the ‘protection gap’ for Palestinian refugees.

Because these three agencies all have a part to play in the condition of Palestinian refugees worldwide, it is important to understand each of their mandates before focusing on UNRWA. The UNCCP was the first of the three agencies established by the UN, and its founding resolution, UNGA 194(III) of December 1, 1948, defined the scope of its mandate and the refugee population for whom it was responsible. It incorporated a group or category definition that extended to all habitual residents or citizens of Palestine who were either displaced by the 1947-49 conflict or were unable to return to the territory under Israeli control—a definition spelled out in the authoritative working papers of the UN Secretariat and its Legal Advisor and referred to by the delegates during the Resolution drafting. The UNCCP was given two separate mandates: one to protect the rights and interests of the refugees and to achieve a specific durable solution specified in paragraph 11 of Resolution 194; and another to resolve all the outstanding issues between the parties to the conflict. The UNCCP was given a global protection mandate to all Palestinians who were made refugees due to the conflict, required to bring about a particular durable solution for them, and intended to be a permanent UN agency until the conflict was resolved and the refugees were permitted to return to their homes.

The second agency established a year later was UNRWA, with a distinctly different mandate from that of the UNCCP. UNGA Res. 302(IV) of 8 December 1949 established UNRWA as a three-year, temporary agency to provide relief and assistance (“relief and works”) to the refugees pending the durable solution the UNCCP was authorized to bring about. Its services initially extended to a subset of the population of UNCCP-defined ‘Palestine refugees’, that is, only to those ‘in need,’ and only to Palestinians in the five main host areas (Jordan, Lebanon, Syria, the West Bank and Gaza). UNRWA’s definition and extension of services have evolved today in response to the prolonged nature of the Palestinian refugee crisis, the demise of the UNCCP as a protection agency for Palestinian refugees, and the ongoing and multiple displacements of Palestinians from one host territory to another. Today, UNRWA’s refugee definition combines both group and individual definitions, but the definitions remain based on need for services and not refugee protection.

The third international agency for refugees established by the UN was UNHCR. UNHCR’s mandate under its Statute (UNGA Res. 428(V) of 14 December 1950) and the 1951 Refugee Convention which it was established to monitor and promote, extends international protection and humanitarian assistance to both groups/categories of refugees and individual refugees. Under its Statute Article 1A(1), UNHCR’s mandate covers categories of refugees ‘grandfathered’ from earlier refugee agreements, and later UN Resolutions have authorized UNHCR to extend its protection to subsequent groups of refugees or ‘persons of concern.’ In contrast, Article 1A(2) of its Statute incorporates the universal individualized definition of refugee as ‘one who is outside his country of nationality and is unable and unwilling to return due to a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group.’ Because the definitions in the UNHCR Statute and the Refugee Convention were intended to be ‘universal,’ Palestinians should have been covered by UNHCR’s Statute under Article 1, either as the refugee population defined for Resolution 194 or as individuals. However, for a number of reasons, their status was heavily debated in the drafting of these provisions, and a separate article applying only to Palestinian refugees was included in the two instruments.

The UN’s Role in Palestinian ‘Exceptionalism’

The debate on drafting UNHCR's Statute and the 1951 Refugee Convention at the UN General Assembly brought the Arab states’ concerns about bearing the brunt of the Palestinian refugee disaster to the fore; between them, Jordan, Lebanon, Syria and Egypt were hosting the majority of the approximately 700,000–800,000 refugees who had been forced from their homes in Palestine and remained destitute in the neighboring Arab states. The Arab states pointed out that because this was the only refugee flow directly caused by a decision of the UN itself (the Partition Resolution), the UN bore particular responsibility towards the Palestinian refugees. They also pointed out that a ‘separate and special regime’ had already been established for Palestinians through UNCCP and UNRWA, the first entrusted with a protection mandate and the second with an assistance mandate for the refugees. In addition, the UN had established a very specific durable solution for the UNCCP to implement in paragraph 11 of Resolution 194, which was to facilitate the refugees “return to their homes…at the earliest practicable date, and [for] compensation…for the property of those choosing not to return and for loss or damage to property…under principles of international law or in equity.” Since return, restitution and compensation were the required solution for Palestinian refugees, the Arab states argued, a Convention and UN agency such as UNHCR that were focused on placing greater responsibility to third states for resettlement were inappropriate for Palestinian refugees, and they should not be covered by a regime inconsistent with one the UN had already established for them. For these reasons, the Arab states put forward amendments to the refugee definition section in both the UNHCR Statute and the Refugee Convention, incorporated in the first as Paragraph 7 (c) and in the second as Article 1D by the drafters.

Paragraph 7(c) of UNHCR’s Statute states: “[T]he competence of the High Commissioner…shall not extend to a person…who continues to receive from other organs or agencies of the United Nations protection or assistance.” Article 1D states that “This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the UNHCR protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.” At the outset, UNHCR took the position that Paragraph 7(c) excluded its mandate from assistance or protection of Palestinian refugees in the Arab host states, and that UNHCR might only extend its mandate to Palestinians who met the individualized definition of Article 1A(2) outside the UNRWA areas. Most states interpreted Article 1D of the Refugee Convention in the same way—excluding Palestinians from accessing UNHCR for either assistance or protection in the UNRWA areas, and only extending refugee recognition outside those areas to Palestinians who could meet the Article 1A(2) individualized criteria. Unfortunately, by the late 1950’s, the UNCCP’s inability to fulfill either prong of its mandate caused the UN to de-fund the agency, and by 1966 it was left with the resources to carry out only one aspect of its protection role: compiling and digitizing the property records of Palestinian refugees.

Palestinians face a similar protection gap with regard to their status as stateless persons. The vast majority of Palestinians are both refugees and stateless persons—whether de facto or de jure. The 1954 Stateless Persons Convention, which would otherwise extend protection to Palestinians as stateless persons, has a provision similar to Paragraph 7(c) of the UNHCR Statute. Article 1(2)(i) of the 1954 Stateless Persons Convention excludes persons receiving protection and assistance from agencies other than the UNHCR “as long as they are receiving such protection or assistance.” Thus, application of this Convention is also denied Palestinian stateless persons and UNHCR, the Agency entrusted with monitoring compliance with the Stateless Persons Convention, has not acted to address this gap, either.

UNRWA and the Protection Gap

UNRWA’s role and efforts to bridge the protection gap that leaves Palestinians outside the global refugee protection instruments is hampered by the limits of its mandate, its governing structure and resources. UNRWA’s initial focus on emergency relief turned to ‘works’ after the Economic Survey Mission recommended large-scale development projects aimed at settling the refugees in the Arab host states. Political opposition by the Arab states and Palestinian refugees themselves towards integration effectively blocked any attempt to expand UNRWA’s role. By the early 1960’s, UNRWA had re-focused its resources on education, and instituted an ambitious plan to build schools, and then to health provision; shelter and camp improvement; and microfinance and microenterprise development programs. As UNRWA has been forced to respond to an increased need for human rights intervention in repeated conflicts and ongoing Palestinian displacement, the UNGA has included the language of ‘protection’ and ‘legal rights’ in conjunction with UNRWA’s activities. These Resolutions fall into three categories: recommending ‘protection measures’; commending UNRWA for undertaking protection activities; and recognizing as fact that UNRWA’s role includes ‘assistance and protection.’ UNRWA has established a number of ad hoc and permanent measures through which it seeks to expand protection activities, including its Refugee Affairs Officers program in the 1990’s, its ‘Medium Term Strategy’ of 2010-2015 to mainstream protection activities, the establishment of its Protection Officers, and its collaborations with UNHCR in the Iraq and Syrian conflicts to attempt to find solutions for individual Palestinian families and groups stranded in border camps. Despite these efforts, it remains unproven whether UNRWA can actually deliver the protection activities it has elaborated, or advance legal rights for its beneficiaries (about five million registered Palestine refugees today). Even so, UNRWA’s mandate cannot cover the most critical aspect of protection lacking for the vast majority of Palestinian refugees, the search for and access to durable solutions. UNRWA itself agrees that on the core refugee rights of searching and implementing durable solutions, it has no mandate, other than to highlight the need for a just and comprehensive solution for the refugee problem. For Palestinian refugees, that solution remains, as a matter of binding international law and state consensus, the formula under Resolution 194 of the right to return to home and place of origin, restitution of properties in Palestine, and compensation for losses under law and equity.

Conclusions and Implications

The UNGA Resolution 194 definition of ‘Palestine refugee’ applies today to a total population of Palestinians, including a third generation, of approximately 7.4 million Palestinians of the 11.8 million global population of Palestinians. The Agency that was to identify the beneficiaries of that definition and provide the full panoply of international protection functions, the UNCCP, has become defunct as a legal but not practical matter. UNRWA’s assistance-based definition applies to the 5.4 million registered Palestinian refugees, but the level of assistance available (beyond the basic education and health services for refugees in the camps) depends on the generosity of main donor states, and UNRWA has been in chronic funding crisis for years. UNHCR’s definition of who is a Palestinian refugee and is entitled to protection outside of the five UNRWA fields has evolved over the years. Today, in light of the two recent decisions from the European Court of Justice (ECJ), Bolbol v. B.A.H (2010) and El Kott v. B.A.H (2012), UNHCR has three applicable definitions: 1) ‘Palestine refugees’ who fit the group definition of Resolution 194, are outside UNRWA’s areas and unable to return there for reasons described in the ECJ decisions and thus automatically entitled to protection under Article 1D; 2) Palestinians who became ‘displaced persons’ due to the 1967 conflict, but whose legal status is unclear; and 3) ‘Palestinian refugees’ who fit in neither of the above categories but are outside UNRWA areas due to a well-founded fear of persecution, and whose status is determined under Article 1A(2). These definitions are inadequate for UNHCR to close the protection gap, because under its application of Article 1D of the Refugee Convention, a durable solution-related definition applies to only about half of the global Palestinian refugee population. The majority of Palestinians subjected to multiple displacements will not receive protection under Article 1A(2) under most states’ application of resettlement and safe third country doctrines.

Thus, the initial ‘separate and special regime’ that the UN established through two UN agencies designed to provide both protection and assistance to Palestinian refugees as an entire displaced population, and to implement return and restitution for them, has become a regime of inconsistent and inadequate protection, leaving the majority of the global Palestinian population of approximately 11.8 million people today without access to durable solutions under international law.

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