The New Palestinian Refugees

According to numbers The Guardian published on May 17, 2021, the current Israeli attack on Gaza has killed 200 Palestinians, including 59 children. 34,000 have been displaced from their homes. It is hard to assess the accuracy of these numbers. Very likely, the death toll will be higher: the violence has not ebbed, and bodies will be exhumed from the rubble (for updates see Palestinian Ministry of Health). As for the displaced, when the violence ceases many will find housing, of one kind or another, in the Gaza strip. But judging from the consequences of such operations in the past – others will not be able to settle.

It is unlikely that any real organized evacuation or resettlement plan will be made possible. (To my knowledge, no relevant actor has even mentioned it). Many Gazan Palestinians will inevitably be forced on horrific journeys searching for asylum. It is therefore necessary for governments and publics around the world to urgently consider the protections that these new Palestinian refugees should have under international law.

Yet under international law, Palestinian refugees are subject to a specific regime, at the very least when they are at the time of flight already registered as 1948 refugees with the United Nations Relief and Works Agency for Palestine Refugees (UNRWA). This short essay explores the origins of this exceptionalism and its meaning today. Ultimately, I argue the foreign governments have duties towards Palestinian refugees that go beyond conventional international protection. These dual duties should be conceived as grounded, as firmly, in the Palestinian right to collective self-determination.

Exceptional Refugees

The 1951 Refugee Convention defines “refugee” in Article 1 as fleeing “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” One of the foundational post-war international legal instruments, the definition reflects its time. But under Article 1D, the 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.” Palestinians displaced during the 1948 and 1967 wars had been and are under the mandate of UNRWA. And so, the accepted interpretation has traditionally excluded Palestinian refugees from the protection of the convention.

But is not like Palestinian refugees are excluded from refugee protection because they receive it elsewhere. UNRWA’s mandate is fundamentally different from refugee protection as conceived of in the Convention. This mandate is humanitarian in nature, providing medical treatment, schooling, and work. But it does not provide political status, nor does it necessarily lead to citizenship or local integration. And it has a regional Middle Eastern mandate, rather than a global one. This is part of why, 73 years after the Palestinian “Nakba”, many Palestinian refugees are still in refugee camps.

The exclusion of Palestinian refugees from Convention protection has led scholars and refugee lawyers to recognize a “protection gap”: an exceptional treatment of Palestinian refugees and a lack of enforcement for their rights. As Susan Akram has written in 2002, “the Palestinian refugee crisis is also a problem of legal distortion: Palestinian refugees fall into a legal lacuna that sets them outside minimal international protections available for all other refugee groups in the world.”

Far from merely a theoretical problem, the segregation of Palestinian refugees as a sui generis case has had dramatic effects on the lives of Palestinian refugees over the decades. In the Middle East, Arab States as well as some Palestinian leaders resisted more “durable” solutions for their plight, such as citizenship, resettlement or seeking asylum abroad.

The general thinking was that this would mean forgoing the Palestinian right of return, recognized in General Assembly Resolution 194. As the Palestinian national movement developed, the preferred vocabulary was not that of refugee rights, but of self-determination. In this collectivist orientation, Palestinians were part of many formerly colonized nations, that commonly pursued projects of “worldmaking”. As Akram further explains, starting from the late 1960s, the Palestinian Liberation Organization (PLO) “argued vociferously and in many venues against treating Palestinian refugees as individual cases and even made explicit requests that Palestinians not apply for refugee status in the West.”

Despite its power as a message of common liberation, this approach has been problematic. Often, it ended up sacrificing the most basic rights of large populations in countries like Lebanon, Jordan, and Syria. In Lebanon, for example, the right of return became a thin veil for anti-Palestinian sentiments, as a justification for exclusion from durable solutions. In all these places, Palestinians needed not only promises for a semi-utopian future, but also more robust remedies of regularized status, here and now.

Refugees Displaced

With Israel’s withdrawal from ground presence in Gaza in 2006, the subsequent takeover of the Hamas government, and the following repeated Israeli military campaigns on Gaza, this exceptionalist approach became untenable. More and more, governments abroad received asylum requests from Palestinians who were displaced by the extreme violence of Israeli bombings; and by the rife political persecution against opposition that the new government initiated. (Note that under the refugee definition, the former does not formally constitute the basis for refugee status. The latter can.)

To be sure, this new wave of Palestinian refugees was not uniquely from Gaza. Netanyahu’s 12-year term brought intensified measures to uproot Palestinians from their lands in the West Bank (Sheikh Jarrah is but a small tip of an enormous iceberg). The Palestinian Authority in Ramallah also became increasingly authoritarian. And of course, starting from 2011 Palestinians were displaced in large numbers from other places in the Middle East — primarily by the Syrian civil war. Often, it became fictitious to assume that members of these groups would enjoy “protection or assistance” from UNRWA.  

In 2009, as a researcher for Human Rights Watch, I interviewed two young brothers in a Greek detention center, who said they are Palestinians. They bragged about their attacks against Israeli tanks during the operation Israel called “Cast Lead”. In the following years I met and communicated with others. Asylum seekers who had fled from Syria or Lebanon introduced themselves as “Palestinian” – often omitting altogether their country of former residence.

As the Mediterranean became a mass grave, both the “Eastern Mediterranean” and the “Central Mediterranean” migration routes to Europe were often populated heavily by Palestinians. This is reflected clearly, e.g., in reports by the European border control agency Frontex, which often registers nationalities of intercepted migrants. Particularly after the 2014 incursion on Gaza the rates of flight grew considerably, with an estimated 10,000 leaving before September that year. It has not been an easy feat to leave Gaza, which is encircled by a seemingly permanent military blockade. But these people managed to leave, often to Egypt, and from there often in boats to Europe. In multiple instances (1,2) , Gazan refugees drowned on the way.

These people were in a unique situation not only because of the legal complexity involved in their asylum application. Whereas failed asylum seekers are often deported to their countries of origin, many Palestinians remain stateless. Israel as a general matter does not accept Palestinians back to homes in the West Bank, Gaza, or East Jerusalem. This made Palestinians particularly difficult to remove, as a practical matter. So exceptional was the situation of Palestinians, their identity often became coveted by migrants of other nationalities, especially Arabs, who would otherwise be in risk of being returned to unwanted lives elsewhere.

Frontex thus notes a decrease in authorized migration in the Mediterranean in its 2010 Annual Risk Analysis report and observes: “The most noticeable exception to the decreasing trend is for Palestinian nationals whose detections increased by 77% from 4,300 in 2008 to 7,600 in 2009. However, false declarations of nationality, in this case by nationals of other Arab-speaking countries, may have inflated the numbers of Palestinian nationals.” In 2019, Frontex identifies a 73% rise in “detections” from Palestine, with 3,152 out of 141,846 “irregular border crossings.” An asterisk under the information clarifies that “The designation of Palestine shall not be construed as recognition of a State of Palestine and is without prejudice to the individual positions of the Member States on the issue” (see here, pg 56).

Legal Adaptations

This generation of newly displaced Palestinian refugees triggered a change in the interpretation of the exclusion clause in the Refugee Convention (Article 1D). Thus, UNHCR took the position that when Palestinian refugees leave the regional mandate of UNRWA in the Middle East, they may be eligible for refugee protection under the 1951 Convention: “if a Palestinian refugee leaves that area, such protection or assistance ceases, meaning that he or she is ipso facto entitled to the benefits of the 1951 Convention” (see here, para 2.2). This position opened the way for a more flexible interpretation, according to which the real question is whether a person enjoys de-facto protection from UNRWA, rather than whether they are simply a registered Palestinian refugee. And yet, Palestinian refugees are still somehow singled out by the legal regime.

The Court of Justice of the European Union (CJEU) addressed the relationship between the exclusion clause and refugee protection for Palestinians in a number of cases, including Alheto (decided July 2018). The applicant, Ms Alheto, left the Gaza Strip during the armed conflict between Israel and Hamas in July and August 2014. She searched for safety first in Jordan, from where she left for Bulgaria. As Jordan is within the territorial mandate of UNRWA, the Court found that Ms. Alheto could in principle receive effective protection there. However, CJEU also found that the referring court had to make a factual determination as to whether such effective protection was possible, and whether Jordan fulfilled its obligations toward UNRWA refugees. The finding captures the outlines of existing law with respect to Palestinian asylum seekers in Europe.

The practice regarding Palestinian asylum seekers from Gaza, registered by UNRWA, has differed among European states. For example, the Belgian appeal panel for asylum cases, the Council for Alien Law Litigation (CALL), has decided in November 2019 that “UNRWA was, despite financial difficulties, still operational and that the security situation in Gaza was generally speaking precarious but did not amount to systematic persecution nor inhumane living conditions.” In February and March 2021, the CALL reversed its position, however, granting refugee status to UNRWA-registered applicants from Gaza. CALL found that the difficulties UNRWA was facing make “the protection and assistance it is supposed to offer to refugees in Gaza ineffective.” In another significant development, the Amsterdam District Court found in August 2021 that refugees from Gaza registered with UNRWA cannot be excluded from protection under Article 1D of the Refugee Convention.

In the wake of the May 2021 Israeli attack, it seems clear that governments around the world should not apply the exclusion clause on Palestinian refugees from Gaza, including those registered with UNRWA. Even in the absence of organized resettlement programs, Palestinian refugees from Gaza should have a haven to flee to when they become refugees yet again.

From Displacement to Self-Determination

Perhaps understandable for their time, concerns about the possible tension between seeking asylum abroad and the Palestinian struggle for self-determination may demand some revision. Destruction in Gaza seems so great and so systematic, that it is hard to expect that everyone holds steadfast to the soil. Confronting the intensity of Israeli bombing, it seems inevitable that even the most patriotic may become displaced and should not therefore be stigmatized.

More importantly, the struggle for self-determination has itself become transnational. Palestinian refugees from different parts of the Middle East, who cannot connect with each other due to closed national borders, can often reunite on the soil of host countries. Meeting each other in these tragic circumstances, they can nevertheless forge much needed connections. These connections are often personal but, in a way, also part of a struggle for national liberation. When one day the Palestinian right to self-determination is realized, it is imaginable that Palestinians who met during displacement may end up returning together.

In the wake of this current round of violence in Gaza, world governments granting protection to Gaza’s refugees should not lose sight of this other important human rights concern: collective self-determination. What this means in practice is that the obligation towards Palestinian refugees is not simply to grant them refugee or other regularized status. It is also to push, in any way they see fit, towards Palestinian liberation. The utopian pole of the Palestinian refugee should not be forsaken, but rather concretized. These refugees should have safe, stable environments to return to, in which they will be equal under the law. As Yael Berda and I argue in a forthcoming paper, such liberation can take many shapes. The specific policies adopted to realize this right for refugees may therefore differ among states. But underlying them there is a duty to advance such a policy.

Historically, asylum was often understood as a political rather than humanitarian institution: by granting protection, states sent a condemnation to the government that had persecuted the protected persons. This was true for the earliest roots of the European institution of asylum, after Louis XIV made Protestantism illegal and denied Huguenots the right to leave. It was surely true for US policy regarding those persecuted behind the iron curtain during the Cold War. Regarding Palestinian refugees, this old basis for asylum is newly relevant. What this means today is that the Palestinian right to self-determination cannot be off the table as a matter of foreign policy. This could mean supporting local groups that contribute to realizing this right for potential returnees. Recognition of the State of Palestine, alluded to above, is surely relevant too. Relevant policies may also ultimately fulfil Noura Erakat’s demand in a recent protest: sanctions.

As Moria Paz has pointed out, the human rights law pertaining to refugees has strangely bifurcated two fundamental human rights requirements. On the one hand we have a right of entry – reflected in the 1951 Convention and in the principle of non-refoulement; on the other hand we have the right to return to one’s own country, enshrined in Article 13(2) of the Universal Declaration of Human Rights. Both these rights are, in important sense, incomplete under current international law. But it remains the case that the dignity of refugees – the dignity of Palestinian refugees – is based on both of them, and never only on one.