Shift to UNHCR criteria would strip refugee status from millions of Palestinians
Unlike UNRWA, now defunded by Trump, the UN’s global refugee body doesn’t confer refugee status on those who have citizenship elsewhere, and it treats descendants differently
Adam Rasgon is a former Palestinian affairs reporter at The Times of Israel
At a cabinet meeting in January, Prime Minister Benjamin Netanyahu called for the United Nations High Commissioner for Refugees (UNHCR) to gradually take over the mandate of the United Nations Relief and Works Agency (UNRWA).
Netanyahu argued that the former, the UN agency charged with aiding refugees fleeing persecution and conflicts around the world, has legitimate criteria for granting refugee status, whereas the latter, the UN body tasked with supporting Palestinian refugees, does not.
He also contended that UNRWA “perpetuates the Palestinian refugee problem.”
Netanyahu’s comments raised the question of how UNHCR and UNRWA differ in their definitions of a refugee, which they use to determine to whom they grant refugee status.
Eight months later, that question is even more resonant after US President Donald Trump’s administration announced that it is completely defunding UNRWA, with a reported goal of shutting it down altogether.
Were responsibility for the designation transferred to the UNHCR, millions of Palestinians would lose their refugee status — which is a key factor in the longstanding demand by the Palestinian leadership for refugees to be granted a “right of return” to today’s Israel. How many exactly of the 5.4 million Palestinians registered by UNRWA as refugees would lose that designation under UNHCR? It’s complicated, as we will see.
But based on a comparison of UNRWA’s refugee figures and the assessments of James Lindsay, a former UNRWA legal adviser who has written extensively on the differences between UNHCR and UNRWA, almost all of Jordan’s 2.2 million UNRWA-designated refugees would likely lose their status under UNHCR criteria, as would most of Syria’s 560,000 and just under half of Lebanon’s 521,000. All 2.17 million UNRWA-designated refugees in Gaza, the West Bank and East Jerusalem would lose that status were those areas to become parts of a sovereign Palestinian state. This would leave a refugee total of a little over half a million.
Hundreds of thousands of Palestinians left or fled what is today’s Israel at the time of the 1948 Arab-Israel war, known in Israel as the War of Independence. Ever since, their leadership has demanded in intermittent negotiations with Israel that they and their descendants be allowed to “return,” although Palestinian Authority President Mahmoud Abbas has also said outside of the formal negotiating framework that he would not seek to destroy or drown Israel as a Jewish state by weight of such an influx.
Israel argues that the demand for a “right of return” for millions represents precisely such an effort to dramatically alter Israel’s 75 percent to 25 percent Jewish/non-Jewish demographic balance via an influx of millions of Palestinians — that is, to seek a Palestinian state in the West Bank, East Jerusalem and Gaza, and to turn Israel into a second Palestinian state. Since there are estimated to be only a few tens of thousands of original Palestinian refugees still alive, Israel has charged that UNRWA, by extending refugee status to millions of descendants, perpetuates and inflates the issue. Hence its hostility to UNRWA, and hence Netanyahu’s publicly stated support for closing UNRWA, and channeling aid to needy Palestinians via other agencies and parties.
At the end of August, the State Department said in a written statement that the US “will no longer commit further funding to this irredeemably flawed operation,” referring to UNRWA. “The fundamental business model and fiscal practices that have marked UNRWA for years – tied to UNRWA’s endlessly and exponentially expanding community of entitled beneficiaries – is simply unsustainable and has been in crisis mode for many years,” the statement said, adding that the US would now dialogue with the UN and other international stakeholders about “new models and approaches” to aiding the Palestinians served by UNRWA.
The European Union subsequently called on the US to reconsider, but also urged UNRWA to carry out reforms and an unspecified “transformative process.” It was unclear whether the EU meant, by this, that UNRWA should reconsider how it designates Palestinian refugees. “The regrettable decision of the US to no longer be part of this international and multilateral effort leaves a substantial gap and we hope that the US can reconsider their decision,” the EU’s spokesperson said in a statement. “UNRWA has recently expanded its donor base and taken internal management measures to increase efficiencies and reduce costs. UNRWA should pursue these reforms and further engage in a transformative process.”
UNRWA spokesman Chris Gunness rejected the State Department’s criticisms and pointed out that international parties have praised the UN agency’s work.
“We reject in the strongest possible terms the criticism that UNRWA’s schools, health centers, and emergency assistance programs are ‘irredeemably flawed’… The international state community, our donors and host countries have consistently praised UNRWA for its achievements and standards,” Gunness said in a statement the day after the US announcement.
Jordanian Foreign Minister Ayman al-Safadi vowed Jordan would do everything it could to keep the UN body running.
For his part, Saeb Erekat, secretary-general of the PLO Executive Committee, slammed the US funding cut to UNRWA, describing it as “a violation of international law,” and called on the international community to step up its support to the UN agency.
How does UNHCR define a refugee?
The UNHCR, the UN’s global refugee agency, as opposed to UNRWA, which serves only Palestinians, defines a refugee based on the Convention Relating to the Status of Refugees, which was adopted by United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons in 1951.
The convention initially only applied to persons who had fled “events in Europe before January 1, 1951,” namely World War II and the Holocaust. However, it was later amended in 1967 to expand its definition to persons fleeing persecution outside of Europe after January 1, 1951. (A total of 145 countries have ratified the convention, according to the UNHCR website.)
The convention defines a refugee in its first article:
Any person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
But the convention also outlines a number of circumstances which disqualify persons who fall under its definition of a refugee from gaining refugee status.
The convention says, for instance, that if a person fleeing persecution has acquired citizenship in a country in which they have sought refuge, he or she would not be eligible to receive refugee status. It also states that this applies if the person has gained the rights of a citizen in the country of refuge, even without gaining citizenship.
How does UNRWA define a refugee?
UNRWA defines 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.”
UNRWA’s definition also states that “services are available to all those living in its area of operations… who are registered with the Agency and who need assistance” and that “the descendants of Palestine refugee males, including adopted children, are also eligible for registration.”
UNRWA provides education, health, social welfare and other services to Palestinians it has registered as refugees in five geographical regions: Jordan, Syria, Lebanon, the Gaza Strip, the West Bank and East Jerusalem.
According to UNRWA’s figures, 515,260 Palestinians whom it has registered as refugees study in its 677 schools; 3.1 million access its healthcare system at its 139 health centers; more than 250,000 receive welfare from its social safety net program, and thousands of others receive small loans from its micro-finance department. UNRWA also employs some 30,000 Palestinians.
In total, Gunness has said that UNRWA has registered 5.4 million Palestinians as refugees.
UNRWA’s website, which last updated its numbers in March 2018, says the organization has registered 2.2 million Palestinian refugees in Jordan; 560,000 in Syria, of whom an estimated 438,000 live in the country; 521,592 in Lebanon, of whom 260,000 to 280,000 reside there; 1.34 million in Gaza; and some 818,000 in the West Bank and East Jerusalem. (In all, that makes for 5.44 million Palestinians registered as refugees; when those no longer living in Syria and Lebanon are deducted, the total is 5.07 million.)
Issue of citizenship
A key difference between the UNHCR and UNRWA definitions concerns how the two organizations relate to people who have acquired either citizenship or the rights of citizens in the countries where they have sought refuge.
The UNHCR’s definition of a refugee does not extend to persons who have acquired such rights; UNRWA’s does. Thus, many Palestinians would not have refugee status had UNHCR been the party to determine their eligibility, according to Lindsay, the former senior UNRWA official.
The UNHCR has not specified which Palestinians registered as refugees by UNRWA would meet its criteria for refugee status. But Lindsay, a former legal adviser and general counsel for UNRWA, has written extensively on the issue.
In articles he authored for the winter 2014-2015 edition of Justice, a magazine published by the International Association of Jewish Lawyers and Jurists, and the fall 2012 edition of the Middle East Quarterly, a journal published by the Middle East Forum, a Philadelphia-based think tank, he broke down the status of Palestinians registered by UNRWA as refugees in the various regions, and explored whether UNHCR would regard them as refugees. (Since he wrote those articles some four years and six years ago, respectively, the numbers he uses are lower than the current figures.)
Jordan
In Jordan, Lindsay holds that some 1.8 million UNRWA-registered Palestinian refugees would be stripped of their refugee status under UNHCR criteria.
This is because more than 90 percent of 2.2 million Palestinians who UNRWA has registered as refugees have Jordanian citizenship. (After Jordan took over the West Bank in 1949, it granted all Palestinians within its borders citizenship.)
Syria
In Syria, Lindsay maintains that some 425,000 Palestinians who UNRWA counts as refugees would “almost certainly” be denied their refugee status under UNHCR.
Under Law 260, Syrian legislation passed in 1956, Palestinians in Syria registered by UNRWA as refugees enjoy most of the rights of Syrians with the major exceptions of suffrage and citizenship.
The Gaza Strip and the West Bank
In the Gaza Strip and the West Bank, Lindsay does not definitively state whether UNRWA-registered Palestinian refugees would retain their refugee status under UNHCR criteria.
He mentions that the two million-plus Palestinians who UNRWA has registered as refugees in these areas “have exactly the same rights as the non-refugee population, including suffrage,” but he notes that it is unclear if they are considered citizens of a state.
More than 130 countries have recognized the “State of Palestine,” which holds non-member observer status at the UN, but many world powers have yet to do so.
Nonetheless, Lindsay asserts that if a Palestinian state “came into existence,” UNHCR would not allow Palestinians who UNRWA has registered as refugees to maintain their refugee status.
Lebanon
In Lebanon, Lindsay maintains that some 250,000 Palestinians who UNRWA has registered as refugees would retain their refugees status.
Many Palestinians who UNRWA has registered as refugees do not have Lebanese citizenship, nor do they have the rights of Lebanese citizens. They are barred from many professions, cannot own property, and are denied access to Lebanese public schools and national health services.
(UNRWA’s website says it has registered approximately 521,592 Palestinians as refugees in Lebanon of whom only 260,000-280,000 live in Lebanon. Since Lindsay published his articles, however, a joint census carried out by the Lebanese and Palestinian Authority statistics bureaus in 2017 counted a total of 174,422 Palestinian refugees in Lebanon.)
UNRWA’s response
Asked why UNRWA grants refugee status to Palestinians who have gained citizenship or the rights of citizens in the countries where they sought refuge, Gunness, the UNRWA spokesman, said the UN General Assembly is the party that approves UNRWA’s definition of a refugee, and that it is the General Assembly, not UNRWA, that has the authority to change it.
“It is the General Assembly that approved the definition of Palestine refugees that has essentially remained the same since the beginning of UNRWA operations. The General Assembly has been mandating UNRWA to deliver services to this population on the basis of the definition. It includes registration and eligibility for services of children of Palestine refugees (through the male line). Registration and eligibility for services has never been conditional on lack of nationality,” he said.
“Criteria for registration with UNRWA and service eligibility is a matter that is distinct from refugee status under the 1951 Refugee Convention,” he added. “Palestine refugees within UNRWA’s area of operation are excluded from the protection under the 1951 Refugee Convention (by virtue of Article 1D of that Convention). UNRWA does not have the authority to change the legal regime applicable to Palestine refugees under international law or its mandate from the General Assembly.”
Issue of descendants
UNRWA and UNHCR also differ in their handling of the descendants of refugees.
UNRWA allows descendants of male refugees to register as refugees with it and obtain access to its services. UNHCR does not explicitly mention descendants of refugees in its definition, but the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status says that if the head of a family meets its definition of a refugee, his or her dependents normally qualify for refugee status as well.
In contrast to UNRWA, the UNHCR handbook, however, also mentions that granting refugee status to a dependent who “is a national of the country of asylum or of another country… would not be called for.”
Pierre Krahenbuhl, UNRWA’s commissioner-general, recently told Foreign Policy magazine that persons who UNHCR and UNRWA have registered as refugees are allowed to pass their refugee status to their children and grandchildren.
He cited an example of Afghans who fled to Pakistan in the late 1970s and gained UNHCR refugee status there. He said that some of those Afghans still receive support from UNHCR, as do their children who were born after they arrived in Pakistan.
The UNHCR has also registered the descendants of refugees from Angola, Bhutan, Burma, the Democratic Republic of Congo, Eritrea, Somalia, Sudan, Tibet and other countries.
Lindsay recognizes Krahenbuhl’s point in his articles, but also notes that UNRWA and UNHCR still have distinct policies in dealing with descendants of refugees.
“The scandal, then, is not that refugee status can be passed from generation to generation, but rather that through inaction, refugee status is allowed to persist from generation to generation. For UNRWA Refugees, refugee status persists solely because UNRWA pretends persons who are protected by a state (the oxymoronic “citizen refugees”) are still refugees and, for those who really are refugees, refuses to make any effort to end their refugee status, as (in the absence of the possibility of repatriation) by resettlement or local integration,” Lindsey wrote in his article in Justice.
UNRWA does not resettle Palestinians it has registered as refugees, whereas UNHCR often employs that option when people it counts as refugees cannot return to their home country.
