On UNRWA, Palestine Refugees, and International Law

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In the past month, some of the major donors to the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) announced they were suspending funding to the agency over allegations that some of its employees were involved in the 7 October attacks (here, here, and here). This move came at a particularly delicate moment for UNRWA and the Palestinians in Gaza, as the current Israeli offensive has already killed more than 30,000 persons, mostly women and children, and displaced close to 90 percent of Gaza’s 2.3 million population. In the words of Philippe Lazzarini, UNRWA Commissioner General, suspending the agency’s funding at this critical time would threaten the “ongoing humanitarian work across the region including and especially in the Gaza Strip” as over 2 million Gazans depend on UNRWA’s support for their survival. The effects of the funding shortage would also impact thousands of individuals in other parts of the region, including in the West Bank, Lebanon, Jordan, and Syria (here).

Although some countries have already resumed their funding, the UNRWA underfunding crisis illustrates an often forgotten reality. The agency has been operating in a politically volatile and resource-constrained environment for the past 75 years, not infrequently being dragged into the battleground. As it largely depends on voluntary, often earmarked contributions from states, in particular from the US, European countries, and Japan, UNRWA is especially vulnerable to the shifting political winds in the West (see here and here).

Leaving aside the eventual political and legal responsibilities attributable to UNRWA for the conduct of its staff (here), or whether cutting financial support to the agency would be at odds with the decision of the ICJ on provisional measures in South Africa v. Israel or international law more broadly (as Nicaragua has recently contended), this post discusses the impacts that defunding and ultimately disbanding UNRWA would have on the legal protection of Palestine refugees and displaced persons, in particular the possible consequences for states outside the region.

While empathy for human suffering seems to be a low currency these days, the avoidance of new international obligations encroaching on states’ self-interests may – as it often does – blow powerful winds into the sails of resource mobilization.

Palestine Refugeehood

Between the adoption of the UN Partition Plan for Palestine in 1947 and the end of the Arab-Israeli conflict, more than 700,000 Palestinians were forced into exile after being dispossessed in what became known as Nakba. With the cessation of hostilities, they were prevented from returning to their homes while deprived of Palestine citizenship following the termination of the British mandate. The few, former Palestinian citizens still residing in the territory of Israel did not acquire Israeli nationality automatically, although some could still apply for it (here and here). The Palestinians displaced by the war, nevertheless, were not offered the same option. Moreover, though admitted into neighbouring countries on a temporary basis, they were barred from acquiring a new nationality (with some exceptions) effectively becoming stateless – a situation that remains largely unsettled to this day.

The Origins and Expansion of UNRWA’s mandate

Due to the political stalemate regarding the repatriation of the displaced Palestinians, and with the mounting need for economic and humanitarian relief, the UNGA approved resolution 302 (IV) in 1949 thus establishing UNRWA. According to its mandate, the agency’s primary role was to provide “direct relief and works programmes” to Palestine refugees in close collaboration with local governments. It did not include the search for durable solutions, as this was to be negotiated at the political level.

However, the failure of the international community in finding a solution to the Palestine refugee question turned UNRWA, a temporary, humanitarian agency, into a virtually permanent one, now responsible for assisting an ever-growing number of individuals.

Over the years, the initial Palestine refugee population multiplied, as that “status” passed on to the descendants of the 1948 refugees – following UNRWA’s patrilineal registration model. Thousands more would be displaced due to the 1967 Six-Day War and the subsequent conflicts in the region. Although these individuals are not considered Palestine refugees for the purposes of the relevant UN agreements, they may still receive assistance from UNRWA (as per UNGA res. 2252 and 59/118). As of today, 5.9 million individuals are registered with the agency.

The End of UNRWA: Ipso Facto Refugee Rights under the 1951 Refugee Convention

Palestine refugees and displaced persons are thus governed by a specific normative and institutional regime that reflects their historical and political idiosyncrasies. For that they were conditionally excluded, as a group, from the scope of the 1951 Refugee Convention – a treaty designed to address post-WWII, European displacement but that was later amended to apply globally.

As Article 1(D) establishes:

This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees 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.

This provision reflects the continuity of protection principle. On the one hand, the first sentence of Article 1(D) houses an exclusion clause that remains applicable so long as individuals continue to be protected or assisted by UN agencies other than the UNHCR. The second one, on the other hand, provides for automatic access to the rights provided for in the 1951 Convention if that protection or assistance ceases “for any reason” without a proper solution to their plight. These individuals would thus be entitled to refugee rights without needing to pass through the usual legal hurdles of refugee status determination under Article 1(A)(2).

Although Article 1(D) has raised complex interpretive issues when applied to Palestine refugees and displaced persons, especially regarding its personal and material scopes, there is close to no doubt that UNRWA’s demise would trigger the second part of that provision. In fact, the agency does not even need to be formally terminated for that to happen. As the CJEU established in El Kott, individuals applying for asylum under Article 1(D) need only to demonstrate that assistance has ceased for reasons “beyond their control and volition”. This has also been the approach of the UNHCR, which prefers the expression “objective reasons”. Hence, if a funding shortage renders the agency unable to perform its mandate, or severely affects its core services, Palestine refugees and displaced persons would be entitled ipso facto to the benefits of the Convention. The same would follow where serious violations of humanitarian and human rights law – similarly to what is happening in Gaza right now – forces them to leave UNRWA’s area of operation. In a recent opinion on the matter, ECJ Advocate-General Emiliou concluded that Palestinian asylum-seekers can claim that UNRWA’s assistance has ceased in the light of the current living conditions in the Gaza Strip.

Once individuals formerly receiving assistance from UNWRA meet the criteria set forth in Article 1(D), and provided that no exclusion clause applies to them, they will be entitled to the rights established in Articles 2 to 34 of the Refugee Convention like any other refugee. These include protection against discrimination, freedom of religion, rights associate with gainful employment and welfare, as well as non-penalisation for irregular entry, prohibition of refoulement, and access to citizenship through naturalization, among other rights.

Moreover, there is no obligation compelling individuals to seek asylum in neighbouring countries. In other words, if UNRWA ceases its operations, millions of Palestinians would be eligible to apply for asylum under Article 1(D) in any of the 146 states parties to the 1951 Refugee Convention. At the same time, all states would need to abide by the applicable treaty regimes and default customary international human rights law norms governing the treatment of non-nationals – especially non-refoulement obligations, including non-rejection at the borders.

UNRWA and the UNHCR

UNRWA’s demise would likely bring the UNHCR into the picture (see para. 7(c)). While some may think that this would be a desirable outcome, it is important to bear in mind that the two agencies are fundamentally different and operate under distinct paradigms.

For one, contrary to the UNHCR, UNRWA does not have a mandate to seek durable solutions. It was established to provide emergency relief and promote the economic integration of the refugees of Palestine. Due to the failure to find a political solution to their plight, however, UNRWA became a “quasi-state body” providing public-like services to millions of individuals. Currently, the agency runs schools, hospitals, provides social services programme and emergency assistance, does waste management, and cares for the infrastructure of the several refugee camps, among other things. It is also the major employer of Palestine refugees and displaced persons, significantly contributing to the local economy of its areas of operation. The UNHCR does not provide this level of assistance in any of its operations.

Moreover, by replacing the UN arrangements on Palestine refugees with the 1951 Refugee Convention and UNRWA with the UNHCR, the focus would possibly shift from repatriation to resettlement and local integration. Put differently, the end of UNRWA without a proper solution to the Palestine refugee question would effectively deal a final blow to Palestinians right of return as recognized in UNGA res. 194 (III) – and this seems to be one of the veiled motives behind the recurrent pressure to shut the agency down.

Conclusion

Calls for defunding and even dismantling UNRWA are not new. The agency has time and again been accused of preventing a sustainable settlement to the Israeli-Palestinian conflict by perpetuating the Palestine refugee “problem,” apart from being a costly, “relic of the past”. Reality, as always, is more complicated than what some may wish it to be. In the absence of a permanent solution to the plight of Palestine refugees, which necessarily addresses their inalienable right of return, UNRWA plays a unique role in providing vital, government-like services to a population of almost 6 million individuals scattered around five operation areas.

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Nicolas Boeglin says

March 28, 2024

Dear Professor Ribeiro

Many thanks for your post. May I take the opportunity to indicate that the decision to suspend UNRWA fundig from some States was taken

1) - for the very first - on Jan 26, 2024 (see for example French statement - available at

https://www.diplomatie.gouv.fr/en/country-files/israel-palestinian-territories/news/2024/article/israel-palestinian-territories-unrwa-26-jan-2024

and

2) that this decision was taken by many States on the basis of a confidential Israel´s intelligence report issued on January 26 or even a few hours before 2:00 pm at The Hague?

Taking into consideration that ICJ took its order the vey same Jan 26, 2024, dont you consider that the "intelligence report" sent by Israel to UNRWA donors has some relations with ICJ order ?

Some of us consider that it was a simple communication operation of Israel to distract media pressure from the content of the ICJ order. And as usual with "intelligence reports" issued by Israel, with no evidence as pointed out one month after (Feb. 29) by The Guardian:

https://www.theguardian.com/world/2024/mar/01/unrwa-funding-pause-employees-october-7-hamas-attack-claims-no-evidence-un

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

March 30, 2024

Dear Professor Ribeiro

Many thanks for your post. May I take the opportunity to indicate that the decision to suspend UNRWA funding from some States was taken

1) - for the very first - on Jan 26, 2024 (see for example French statement - available at

https://www.diplomatie.gouv.fr/en/country-files/israel-palestinian-territories/news/2024/article/israel-palestinian-territories-unrwa-26-jan-2024

and

2) that this decision was taken by many States on the basis of a confidential Israel´s intelligence report issued on January 26 or even a few hours before 2:00 pm at The Hague?

Taking into consideration that ICJ took its order the vey same Jan 26, 2024, don´t you consider that the "intelligence report" sent by Israel to UNRWA donors has some relations with ICJ order ?

Some of us consider that it was a simple communication operation of Israel to distract media pressure from the content of the ICJ order. And as usual with "intelligence reports" issued by Israel, with no evidence as pointed out one month after (Feb. 29) by The Guardian:

https://www.theguardian.com/world/2024/mar/01/unrwa-funding-pause-employees-october-7-hamas-attack-claims-no-evidence-un

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

April 1, 2024

Dear Professor Ribeiro

May I add to my previous comment that, after Canada, Sweden, Australia, and Finland

1) France has just announced it will resume funding UNRWA: see Reuter cable of March 28

https://www.reuters.com/world/france-provide-unrwa-funding-ensuring-right-conditions-are-met-foreign-ministry-2024-03-28/

2) As well as Japan (April 1st):
https://www.aljazeera.com/economy/2024/3/29/japan-to-resume-funding-to-unrwa-following-sweden-finland-and-canada

French decision is particularly interesting, taking into consideration that former Minister of FA Catherine Colonna, is leading the internal investigation at UN that has been officially presented to UNSecretary General.

After the reading of the second ICJ order of March 28 on Gaza on new provisionnal measures, UNRWA Chief stated that:

"The conditions of over 2️⃣ million people are worsening. #Gaza is becoming an impossible place for a dignified life. In under six months, where people did not know hunger and were largely healthy, famine thresholds are unprecedented in time & speed. Member states should exert more pressure to implement the ICJ order. Those who stopped funding UNRWA should reconsider their decision to allow the Agency to fulfill its mandate including help averting famine".

Source: https://twitter.com/UNLazzarini/status/1773663370899587340

Yours sincerely

Nicolas Boeglin