SOURAV REDDY D.
Susan Akram’s journal “Palestinian Refugees and Their Legal Status: Rights, Politics, and Implications for a Just Solution” is a detailed account on recognizing the legal rights and status of Palestinian refugees in the process of finding potential solutions to the refugee crisis in Palestine[1]. She suggests the instigation of a fair and just refugee regime that would empower the Palestinian refugees to the same privileges and protection as imparted to other internationally recognized refugees. This proposition includes the fundamental rights of Palestinian refugees to permanent residence, without an unwarranted fear of forced relocation or non-refoulement (non-return).
Akram also points out the bigoted state policies formulated by Israel as an important factor in the exponential increase in Palestinian refugees over the years[2]. She also addresses how the misinterpretation of certain 1951 Refugee Convention provisions has led to a categorical prejudice against Palestinian refugees and effectively denied them of the minimum protection and legal rights afforded to other designated refugees due to a purported ‘protection gap’ [3]. This means that these refugees are not subject to either domestic or international protection since they do not fit in under the 1951 Convention’s definition. Akram’s analysis of the refugee crisis in Palestine is accurate. It has helped me attain a completely different perspective on the crisis in Palestine while addressing the foremost issue of the right of return of Palestinian refugees.
The legal definition of a refugee is enshrined in Article 1A.2 of the 1951 Refugee Convention as ‘any person who has fled his or her country of nationality fearing persecution based on race, colour, nationality, affiliation to a specific social group or their political opinion and are unwilling or unable to return to the said country’, [4]. However, Palestinian refugees were not covered under this definition. The Convention, however, brought about significant changes to the original definition over the years while also addressing the issue of how the international community tackled the refugee crisis, a development I think was instrumental for future amendments to the provisions. One of the substantial measures was addressing the principle of non-refoulement as opposed to the pre-existing principle of the return of refugees to their place of origin forcefully, and the relocation of refugees to different countries[5]. A second significant change was the adoption of an individualized approach to the definition of a refugee as opposed to the pre-existing categorical inclusion approach[6]. Refugee claims were being dealt with in an ad-hoc manner involving only the respective states in question.
Although the situation of Palestine was under high scrutiny during the formulation of the 1951 Convention, Palestinian refugees were definitively excluded. Article 1D of the 1951 Convention posits that “The Convention shall not apply to any person who is currently receiving aid under any other UN agencies other than the United Nations High Commissioner for Refugees” (UNHCR)[7]. Palestinian refugees were already under the ambit of the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) 1949. Henceforth, they were not beneficiaries to any rights and protection as mandated by the 1951 Convention or the UNHCR, thus creating a ‘protection gap’ [8], a concept Akram elucidates upon extensively. Moreover, the UNRWA mandate provisions provide basic amenities (food, shelter, clothes) to designated refugees. Considering the protection gap faced by the Palestine refugees, the agencies were not obligated to provide these basic services to Palestinian refugees[9]. In the case of most refugees, the principle of non-refoulement cannot be exercised, and they can deny a forceful return to their country of origin if there is a fear of persecution. Palestinian refugees cannot exercise this remedy since they are not entitled to the provisions of the 1951 Convention, and a return to their country is imminent. This is a clear example of the gross misinterpretation of the rights of Palestinian refugees by international communities.
Although most refugees are covered under the UNHCR’s mandate, Palestinian refugees are governed by the United Nations Conciliation Commission for Palestine (UNCCP) 1948 established by the UN General Assembly Resolution 194 (III) and the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) 1949 read alongside the 1951 Convention and the UNHCR mandate[10]. These organizations existed even before the 1951 Convention came into force and were exclusive to Palestine refugees. The UNCCP was established to protect the refugees and reach a viable consensus on the existing problems. The UN General Assembly enforced the UNRWA to carry out the dual function of direct relief and ‘works programs’ to refugees who fall under the UNRWA’s definition of Palestinian refugees: persons whose normal residence between 1 June 1946 and 15 May 1948 was Palestine and people critically affected by the 1948 war at the behest of the Arab leaders or voluntarily, but could not return since their return was viewed as a threat to the sustenance of a Zionist majority state as recounted by the then Israeli Ambassador to the US, Eliahu Elath[11].
It is evident from the extensive provisions for Palestinian refugees that they were not entitled to international protection but only special protection as recognized by the UN. The international community felt the need to formulate special measures specifically for Palestinian refugees even though the Palestinians, as a category, fulfilled the requirement under the definition of a refugee. The fact that this ‘obstacle for repatriation was due to the prevention of their return by a Member State and not disfavour with their homeland’ [12] as required by Article 1 of the 1951 Convention. The Arab countries that helped to formulate the relevant provisions regarding Palestinian refugees felt the need to revamp the existing provision that forced the refugees to third-country resettlement, as noted by Akram[13].
I strongly believe that the action of the Arab states to demand repatriation and compensation on the refugee’s volition was praiseworthy when their own country, Israel, was silent on providing any recourse to their refugees fearing a shift in ethnic majority. This was also in unity with the UNGA Resolution 194(III) Paragraph 11 that establishes a framework on the personal choices of refugees regarding repatriation, compensation and restitution, and so on. [14]The semantics of the framework was aimed at codifying customary law on the right of return and establishing an embargo on unjustified denationalization and mass eviction. Resolution 194(III) also recognizes the fact that no new rights stemmed from the right of return of Palestinian refugees to their land. Akram also points out how the established principles of human rights and humanitarian law validate the fact that the arbitrary nationalization of refugees is inconsistent and illegal[15]. The Palestinian refugees were, therefore, eligible to retain the right to return to their home country.
On account of being a signatory to various international treaties, Israel is obligated to adhere to the globally binding provision of the right to return. The right of return is accorded by several international treaties, legislations, and constitutions is mandated by the Universal Declaration of Human Rights[16]. Additionally, other rights such as the right to a nationality, right to not be expelled and the right to not be denationalized arbitrarily have developed as complimenting provisions to the right of return with regards to Palestinian refugees through various UN declarations, with Resolution 194(III) being the primary resolution among them[17]. Until 1969, the UN was focused on implementing principles that sought to uphold the right of return and basic human rights to the Palestinian refugees, and consequently, the UN General Assembly sought to acknowledge these refugees as having individual rights according to the UN Charter. [18]
The paper's ramifications have made evident how Akram’s findings on the refugee crisis in Palestine have been much more of a struggle to deal with in contrast to other refugee crises. Akram also provides suggestions for the establishment of a just refugee regime in Palestine, while pointing out the failure of the UNCCP to fulfil the protection mandate it was established to uphold[19]. The idea of a joint operation structure by the UNHCR and the UNRWA acting as an ancillary assistance agency is discussed, given their long history in dealing with the issue. Finally, she also suggests that a specific UN body could mandate the proper mechanism with regards to rights of return, compensation, restitution. It could question the biased Israeli laws that are contrary to international law principles that prevent the refugees’ right to return to their place of origin[20]. The unique case of the Palestine crisis requires more substantiation considering the myriad of stateless populations. This should serve as a caution to the global community on the serious implications of displaced people.
The views expressed and suggestions made in the articles are solely of the authors in their personal capacity and the Center for Middle East Studies and O.P. Jindal Global University do not endorse the same.
[1] Susan M. Akram, “Palestinian Refugees And Their Legal Status: Rights, Politics, And Implications For A Just Solution”, Journal Of Palestine Studies 31, no. 3 (2002): 36-51.
[2] Ibid.
[3] Kirimova Nigar, “The Status Of Palestinian Refugees In International Law: The Issue Of Interpretation And Implementation Of Article 1D Of The 1951 Convention Relating To The Status Of Refugees In Europe”, Central European University, (2010): 85-86.
[4] “Convention Relating To The Status Of Refugees”, 1 A. 2 § (1951).
[5] Michaela S. Clemens, “The Influence of Refugee Status on Palestinian Identity and the Impact of Identity on Durable Solutions to the Refugee Problem”, Nebraska Anthropologist 28, (2007): 101-102.
[6] Ibid.
[7] “Convention Relating To The Status Of Refugees”, 1 D. § (1951).
[8] Susan M. Akram, “Palestinian Refugees And Their Legal Status: Rights, Politics, And Implications For A Just Solution”, Journal Of Palestine Studies 31, no. 3 (2002): 36-51.
[9] Kirimova Nigar, “The Status Of Palestinian Refugees In International Law: The Issue Of Interpretation And Implementation Of Article 1D Of The 1951 Convention Relating To The Status Of Refugees In Europe”, Central European University, (2010): 30-31.
[10] Susan M. Akram, “Palestinian Refugees And Their Legal Status: Rights, Politics, And Implications For A Just Solution”, Journal Of Palestine Studies 31, no. 3 (2002): 36-51.
[11] “Palestinian Refugees And The Right Of Return”, American Friends Service Committee, Last modified 2020, https://www.afsc.org/resource/palestinian-refugees-and-right-return.
[12] Susan M. Akram, “Palestinian Refugees And Their Legal Status: Rights, Politics, And Implications For A Just Solution”, Journal Of Palestine Studies 31, no. 3 (2002): 36-51.
[13] Ibid
[14] Michael Staight, “International Laws and Norms Regarding Refugees: A Case Study of the Palestinian Refugee Crisis”, The Hoover Prize 1, (2018): 16-17.
[15] "Resolution 194 | UNRWA", UNRWA, Last modified 1948, http://www.unrwa.org/content/resolution-194.
[16] “Palestinian Refugees And The Right Of Return”, American Friends Service Committee, Last modified 2020, https://www.afsc.org/resource/palestinian-refugees-and-right-return.
[17] Susan M. Akram, “Palestinian Refugees And Their Legal Status: Rights, Politics, And Implications For A Just Solution”, Journal Of Palestine Studies 31, no. 3 (2002): 36-51.
[18] Ibid
[19] Susan M. Akram, “Palestinian Refugees And Their Legal Status: Rights, Politics, And Implications For A Just Solution”, Journal Of Palestine Studies 31, no. 3 (2002): 36-51.
[20] Ibid
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