Essay: Legal Blindness
Jul 2, 2012 | Daniel Meyerowitz-Katz
UNRWA and the Palestinian “Right of Return”
Since Australian Foreign Minister Bob Carr announced on May 28 that he would be increasing funding to the UN Relief and Works Association for Palestine Refugees (UNRWA), there has been a great deal of focus on the true nature of UNRWA and its activities.
UNRWA is the single biggest influence on the current situation of Palestinian refugees (or more correctly, ‘Palestine refugees’), which itself is perhaps the most serious outstanding issue in the Israeli/Palestinian conflict. The Palestinians insist that the millions of descendants of Palestinians who fled the 1947-1948 war have a “right” to return to what is now Israel. This would mean, in effect, the destruction of Israel as a Jewish and democratic state. For this reason, it is a condition that no conceivable Israeli government could accept, but on which Palestinians refuse to compromise.
However, as demonstrated below, the “right of return” was, in fact, invented by forces with an interest in perpetuating the Israeli/Palestinian conflict.
Origins of the Palestine Refugees
The vast majority of Palestine refugees fled the two conflicts in British Mandate Palestine that Israelis collectively refer to as the “War of Independence”. The first of these was the civil war between ethnic Arabs and Jews in the Mandate – which began on 29 November 1947 when the UN adopted a partition plan that divided the Mandate into two states, one Jewish and one Arab.
This civil war lasted until 14 May 1948, when the last remaining British troops left the Mandate. The next day, Israel declared its independence as a sovereign nation and was invaded by the armies of five Arab states, who rejected any Jewish state on “Arab land”. The fighting continued until an armistice agreement on 19 July 1949. When the dust settled, hundreds of thousands of Arabs had been displaced from their homes and found themselves outside of the borders of what was now Israel.
Arabs fled from the Mandate for several reasons including: fear of the conflict and of exaggerated Jewish atrocities; forced expulsion by the Jewish militias; and a policy by the Arab armies of clearing areas of civilians under the assumption that they would return following Israel’s defeat. The precise proportion of Arabs who have fled for each of these different reasons is hotly disputed amongst historians.
In order to resolve outstanding issues following the 1948 war, two UN bodies were soon established: the UN Conciliation Commission on Palestine (UNCCP) and UNRWA. UNRWA was tasked solely with creating “direct relief and works programmes” whereas the UNCCP had a broader mandate, including achieving a “final settlement of all questions outstanding” between Israel and the Arab states. UNCCP was a failure, and since 1952, has been concerned only with cataloguing assets that the refugees left behind.
The current global regime dealing with refugees began with the establishment in 1950 of the office of the UN High Commissioner for Refugees (UNHCR) and the passing of the 1951 Refugee Convention.
Under the Convention, refugee status was defined in individual rather than collective terms and refugees became an issue for the entire international community to solve, rather than just parties directly involved in a particular conflict. Furthermore, the concept of non-refoulement was introduced, forbidding the forced return of refugees to a place in which they are in danger; and three “durable solutions” were introduced – voluntary repatriation, local integration and resettlement.
The commonly accepted definition of a refugee continues to be the one in the Convention:
“[a person who], owing to a well-founded fear of being persecuted … 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.”
Palestine Refugees under the Convention
At the time the Convention was enacted, Palestine refugees were receiving assistance from UNRWA. In contrast to the conventional definition of a “refugee”, UNRWA 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 do not need to show any particular need in order to qualify for refugee status, merely that they lost their homes and livelihood in 1948.
According to UN transcripts, Palestine refugees were extensively discussed in the drafting of the UNHCR statute. The Arab states, blaming Israel for the alleged expulsion of the Palestinians and the UN for allowing Israel to come into existence, did not want to permit Palestinian refugees to be resettled and insisted on repatriation.
These states convinced the UN that the Palestine refugees were a “special circumstance” and introduced what became Article 1D of the Refugee Convention – a provision that excludes from the definition of refugee anyone receiving “protection or assistance” from “organs or agencies of the UN other than the UNHCR.” Palestinians were and remain the only group of refugees to which this provision applies.
According to a comprehensive 2001 study by Middle East scholar Efraim Karsh, the most accurate estimates of the number of refugees created by the 1947-49 conflicts fall somewhere around 600,000 to 650,000. Yet 962,643 Palestine refugees had registered with UNRWA by December 1948 (in an impoverished and war-torn region, being registered with a UN body that provided food, housing and medical care was likely an appealing option).
In the 1960s, UNRWA broadened its own mandate in order to provide services to “descendants of Palestine refugee males, including legally adopted children.” This meant that Palestine refugee status has become a heritable trait based on historical circumstance and not humanitarian need. There is no requirement for displacement or persecution – or lack of nationality – and no focus on durable solutions.
According to UNRWA itself, approximately 40% of the current 5.1 million registered Palestine refugees reside in the West Bank or Gaza, which means that their ancestors would never have qualified for refugee status as they never actually left the borders of their “last country of habitual residence.” Under UN definitions, they were “internally displaced peoples”. Many others have since assumed citizenship or residency in various countries around the world – especially Jordan, whose nearly two million registered refugees virtually all have Jordanian citizenship. Consequently, the vast majority of registered “Palestine refugees” are not refugees under the conventional definition.
A right to return under international law?
The tendency amongst those identifying with the “Palestinian cause” has been to frame the “return” of the original refugees and their descendants as an “inalienable human right”. This raises the obvious question of whether or not refugees in fact have a right under international law to return to the place from which they fled.
Treaty obligations constitute the most binding form of international law and are therefore the first place to start looking for a right of return. Some argue that the prohibition of evacuation or expulsion of populations from occupied areas in Article 49 of the Fourth Geneva Convention means that the initial displacement of the refugees was itself illegal. This is manifestly false as the Convention was enacted on 12 August 1949 – after the refugees had fled. With this in mind, most arguments for a right of return as a treaty obligation begin with Article 13 (2) of the 1948 Universal Declaration of Human Rights (UDHR), which reads:
“Everyone has the right to leave any country, including his own, and to return to his country.”
This has been reaffirmed in a number of international human rights treaties to which Israel is a signatory – including the International Covenant on Civil and Political Rights (1965) (ICCPR).
The phrase “‘to return to his country” was inserted during the drafting process in order to “strengthen” the right to leave, and was never intended to create a right in itself. As the Palestinians displaced were never citizens of Israel, a great deal turns on the interpretation of the word “country”.
While left deliberately vague due to disputes during drafting, the word “country” most likely refers to the state of which the person is a national. Accordingly, the American Convention on Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms both refer to “the state of which [a person] is a national” in their equivalent provisions.
Some have argued that “country” should be interpreted to mean place of “habitual residence” rather than “nationality”. It arguably could follow that, even though the ICCPR was enacted long after the refugees were displaced, the approximately 40% of Palestine refugees who have not taken other citizenship or found a new place of habitual residence would have a right to return under the ICCPR.
This theory relies to a large extent on the European Court of Human Rights case Loizidou v Turkey (1996), concerning a refugee woman in Northern Cyprus who claimed a plot of land that she had owned before being driven out by the Turks. There are, however, many distinctions to draw between her situation and that of the Palestine refugees. Importantly, her case was successful only because the Turkish puppet regime in Northern Cyprus was ruled as not having the sovereign ability to regulate land ownership that States generally have because the UN Security Council (UNSC) had explicitly rejected its application for statehood.
In contrast, Israel has full statehood under the UN framework and therefore is entitled to make such laws. Furthermore, the ICCPR guarantees that no one will be arbitrarily prevented from returning to their country – a state is justified in refusing return for non-arbitrary reasons.
A massive influx of refugees would destroy Israel as a state, or at least cause it to cease existing as a Jewish state. In fact, the Palestine refugee problem appears to have been deliberately exacerbated in order to force such an outcome. Further, under the UN partition plan, and numerous subsequent initiatives, there has been an international consensus that a Palestinian-Arab state should be established beside the Jewish State of Israel. This plan would provide a place to which the Palestine refugees could return, without compromising Israel’s existence.
Preventing the mass influx of the refugees and their descendants would therefore be a non-arbitrary precaution. There is, therefore, no treaty obligation creating a right of return.
The Right to Return in Customary International Law
Even where they are not explicitly included in any treaties, it is possible for established, identifiable and conducted customs of states to form binding international legal norms – if they reflect a genuine belief on the part of states that they have a legal obligation.
There have been a number of resolutions by the UN General Assembly (UNGA) which call for a right of return for Palestine refugees. With some exceptions, UNGA resolutions are non-binding statements of general opinion and do not actually constitute international law. However, they can be seen as indications of a binding custom if corroborated by other factors.
The first resolution concerning Palestine refugees was Resolution 194 in 1948, which established UNCCP to attempt to arrange Israeli-Arab peace, but in one provision resolved 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.”
The resolution also mentioned that the Conciliation Commission was “to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees.” This has been affirmed annually ever since. However, the language of the subsequent resolutions has changed over time.
Resolution 393 of 1950 resolved that:
“…the reintegration of the refugees into the economic life of the Near East, either by repatriation or resettlement, is essential… for the realisation of conditions of peace and stability in the area.”
Both 194 and 393 demonstrate that resettlement was being encouraged by the UNGA, even as it was strongly rejected by the Arab countries in which the refugees were living.
Before the Six Day War in 1967, the West Bank and Gaza were occupied by Jordan and Egypt respectively and the idea of establishing an independent Palestinian state had been unanimously rejected by the Arab states.
It was only following defeat in 1967 that the Arab states began advocating for the right to self-determination of the Palestinians. In the war’s aftermath, the UNSC passed Resolution 242, providing, inter alia, for the necessity of “achieving a just settlement to the refugee problem.”
Simultaneously, the UNGA, increasingly dominated by the Arab states and their allies, abandoned the idea of resettling Palestine refugees and instead began pushing for repatriation as the only solution to be considered.
These factors surfaced in the 1969 UNGA Resolution 2535 (XXIV), where the “problem of the Palestinian Arab refugees” was attributed to “the denial of their inalienable rights under the Charter of the UN.” The following year’s Resolution 2672C was the first to refer to the “people of Palestine” and their “right to self-determination”, only to be transformed by Resolution 3089D of 1973 into the right “to return to their homes and property.”
Despite being far stronger than anything previously articulated, the UNGA claimed that the 2672C right was recognised in 194 and made reference to a “just settlement of the refugee problem” and the “self-determination” of the Palestinian people by evoking 242 (which mentions neither self-determination nor Palestinians as such) – an apparent attempt to fabricate a consistent demand by reinterpreting the earlier resolutions.
The evolution of the right to return was completed by UNGA Resolution 3236 of 1974, which affirms:
“…the inalienable right of the Palestinians to return to their homes and property from which they have been displaced and uprooted.”
194’s “should be permitted” had changed to an “inalienable right”; the requirement that they “want to live in peace and security” had been dropped and “refugees” had been changed to “the Palestinians”. These inconsistencies in the UNGA resolutions, in light of the fact that they are non-binding, make it impossible to argue that they create a definitive right under international law.
Evidence of state practise
In the first half of the 20th century, the mass transfer of populations in the aftermath of war was not a rare occurrence. This may have begun in 1919 with the exchange of tens of thousands of ethnic Greeks and Bulgarians. A starker example came after the 1923 Greek-Turkish war, where roughly two million ethnic Greeks, who had been Turkish citizens, were forced to flee Turkey in exchange for a half-million Turks living in Greece.
Similar examples post-World War II included the expulsion of 15 million ethnic Germans from Czechoslovakia, Austria, Poland and Hungary; as well as the displacement of around 12 million Muslims and Hindus when Pakistan was created in 1947 the Indian subcontinent. Perhaps most relevant was the expulsion or flight under threat of persecution of the Jewish populations of Arab states over the decade after the 1948 War, in larger numbers than the Palestine refugees. Most of these refugees ended up in Israel. In none of these situations was a right of return even contemplated.
US State Department legal adviser Eric Rosand explored two case-studies where it has been argued a right of return did exist: the 1974 Turkish invasion of Northern Cyprus and the Yugoslav civil war of the early 1990s.
Greek refugees from the Cyprus case had their right to “voluntary return… to their homes in safety” recognised in numerous UNSC and UNGA resolutions. Also, as mentioned above, Turkey’s refusal to allow a Cypriot woman to return to property that she owned was determined by the European Court of Human Rights to be in breach of her property rights. Interestingly, the Court also determined that a right to “the enjoyment of one’s home” cannot “cover an area of a State where one has grown up and where the family has its roots but where one no longer lives.” If this were applied to Palestine refugees, they would have no claim for a right to residency in Israel.
The details of the arrangements in the former Yugoslavia are far more complex, but in essence, many thousands of Bosnians, Serbs and Croats were expelled due their ethnicity as part of the ongoing conflict – a policy that became known as “ethnic cleansing”. The newly formed states of Bosnia-Hezegovina and Croatia passed laws appropriating property left behind.
The right of the Yugoslav refugees to return was recognised explicitly in the peace agreement signed by all sides, which ended the civil war on 14 December 1995, and affirmed by the UNSC.
In contrast, Israel has never recognised a Palestinian right of return in any agreements and the UNSC has never called for one.
Moreover, in spite of the refugees in both case-studies having far more compelling rights to return than the Palestinians, in neither the Cyprus nor Yugoslavia situation was this right actually implemented.
There does not seem to be any substantial evidence of an international custom affording refugees a right of return, let alone a binding norm. In fact, practices in place in 1948, when the Palestinian situation was created, indicate precisely the opposite.
A right to return?
The “inalienable human right of return” claimed by scores of Palestinian activists is a legal fiction. Indeed, the concept of “return” for refugees is not and has never been a “right” under international law. Repatriation is merely one of three lasting solutions, the other two having been denied to Palestinians entirely by the UN’s shadow refugee administration that they fall under.
It is very apparent that, more than anything else, UNRWA has been responsible for perpetuating the current plight of Palestine refugees. The focus on “return” has provided a convenient excuse for the Arab countries to avoid integrating them and has allowed injustices, such as the 1991 expulsion of all ethnic Palestinians from Kuwait, to be ignored.
UNRWA has essentially become a gigantic welfare body running parallel to the Palestinian Authority, with all of the problems that come with inter-generational welfare dependence. As the descendants of the Palestine refugees continue to multiply and the cost of perpetuating their sorry situation continues to rise, the chances of finding any form of just solution are ebbing away.
Encouraging the return to Israel of every last man, woman and child descended from the Arabs who fled Mandate Palestine creates many more problems than it solves. A just solution will come when a Palestinian state is founded alongside Israel, with Palestinians living in the surrounding Arab countries allowed to settle there and those with outstanding property claims likely receiving compensation. As it stands, UNRWA is creating a massive impediment to such a solution. It is about time its funders took notice.