- The argument that UNRWA is an “irredeemably flawed operation” “perpetuating” the refugee crisis is premised upon the assumption that, by not overtly pursuing local integration or third country resettlement of refugees, UNRWA has “perpetuated” the refugee problem—hence, UNHCR should take over the mandate for Palestine refugees so as to easily resettle them. Such an argument and assumption rests upon a poor understanding of the rules and procedures regulating the mandates of UNRWA and UNHCR, individually and collegially, as well as neglect of the specificity of the Palestine refugee situation and the political commitments reflected in UNGA resolutions on them.
The Genesis of UNRWA and its Mandate
- In 1949, the establishment of UNRWA, primarily at the initiative of the United States, followed and replaced the UN Disaster and Relief Project and the Special Fund for Relief of Palestine Refugees (1948-50).[1] The Economic Survey Mission, which resulted in UNCCP’s recommendation to set up UNRWA, was led by the United States’ Department of State, whose aim was to promote small and then large-scale resettlement of Palestine refugees in host countries through an economic development model inspired by the Tennessee Valley Authority, a federally owned corporation created by the U.S. Congress in 1933 to support the Tennessee Valleyduring the Great Depression.[2]
- One of the not-so-well-known facts about the UNRWA is that, in addition to the approximately 750,000 uprooted Palestinians, initially the Agency assisted some 17,000 internally displaced Jews in Israel, in addition to displaced nationals of another two dozen countries, including a significant number of Lebanese and smaller numbers of Algerians, Jordanians, and Syrians.[3] This is why UNRWA’s name and mandate refers to Palestine refugees, rather than Palestinian refugees. UNRWA continued to assist the Jewish refugees under its mandate until June 1952, when it ceased operations within Israel at the request of the Israeli government.[4]
- Like UNHCR, UNRWA was established as a subsidiary organ of the General Assembly under Article 22 of the UN Charter.[5] Like UNHCR, it operates under the authority of and reports to the General Assembly.[6] UNRWA was conceived to support and complement the work of the UNCCP. While the UNCCP’s “refugee mandate” centred on achieving durable solutions for Palestine refugees through resolution of the Israeli-Palestine conflict, with special emphasis on voluntary repatriation, UNRWA was intended to support the economic welfare and development of the refugees within the host countries, pending that resolution.[7]
- Facing the impossibility to bring Israel and the Arab states close to an agreement, by 1951-52 the General Assembly cut down UNCCP’s budget allowing it to only operate in New York.[8] While not formally abolished, the UNCCP has made no further substantive attempt to resume discussions on unresolved aspects of the Arab-Israeli conflict. Since the mid-1960s, when the UNCCP terminated an assessment of the value of the refugee property left behind in Israel, UNRWA has continued to operate on the basis of a temporarily renewed mandate (every three years), providing essential services and protection to Palestine refugees, including descendants, in the absence of a just and durable solution. Conversely, UNHCR, which had also started with a temporary mandate, was then transformed into a permanent agency.[9]
- Despite its initially specific mandate in scope and time, UNRWA started to provide large-scale relief, work, and welfare programmes and, since UNCCP’s de facto dismissal, was left as the only UN agency assisting (and protecting) Palestine refugees. Interestingly, UNCCP was never formally abolished and yet, dramatically defunded, was left with no means to operate.
- The General Assembly has regularly endorsed, repeatedly extended, and progressively expanded the Agency’s mandate in response to developments in the region that required UNRWA to provide a variety of humanitarian,[10] development,[11] and protection activities based on the needs of Palestine refugees.[12] It has continued to do so for nearly seven decades, causing UNRWA to become a large, active, much debated and often criticized agency that currently defines its mandate as promoting the well-being and human development of the Palestine refugees, including protection, education, health care, relief and social services, camp infrastructure and improvement, microfinance, and emergency assistance, including in times of armed conflict.[13]
- After almost seven decades of operations, UNRWA is confronted with an increased demand for services resulting from natural growth in the number of registered Palestine refugees, the extent of their vulnerability, and their deepening poverty, particularly due to recurrent crises and deteriorating socio-economic and humanitarian conditions in its areas of operation.[14] Its almost entire reliance on voluntary contributions and financial support has constantly put UNRWA in a mode of cyclical financial crisis, where the delivery of core essential services and special programs is generally at risk.
- The duration of UNRWA’s mandate is contingent upon the resolution of the conflict and “the just resolution of the question of Palestine refugees”.[15] Hence, Palestine refugees in the areas of UNRWA’s operation would only fall under the legal purview of the 1951 Convention and the mandate of UNHCR in the event that the General Assembly deliberated to terminate UNRWA’s mandate, or if the Agency ceased otherwise to deliver its services in the areas of its geographical mandate.
UNRWA’s Role vis-à-vis UNHCR
- Rather than being antithetical or contradictory, UNHCR and UNRWA, which were created by the General Assembly only three days apart, have a complementary mandate vis-à-vis Palestine refugees[16] so as to ensure continuity of protection in the spirit of the 1951RC.[17] UNHCR interprets it so that UNRWA is responsible for Palestine refugees in Lebanon, Jordan, Syria, the West Bank, and the Gaza Strip, and UNHCR is responsible for them (i.e. Palestine refugees from 1948 and 1967, as well as “new” refugees) when they find themselves in need of international protection outside UNRWA’s areas of operation.[18]
- Under article 1D(2) of the 1951RC, whenever the assistance and protection provided to the refugees served by UNRWA ceases for any reasons, they fall under the purview of the 1951RC.[19] So, should the General Assembly determine the cessation of UNRWA’s mandate, the UN responsibility for Palestine refugees in the region would fall under UNHCR’s mandate. However, consideration of the decisive role of the host countries, in determining both the extent to which UNHCR can operate and the legal status and residency of the refugees, is of primary importance. Unlike the country that has created the displacement, which is under an obligation to allow the displaced persons to voluntarily return, there is no legal obligation upon host countries to locally integrate and upon third countries to resettle.
- It is worth considering that, should UNHCR register Palestine refugees in the current UNRWA areas of operations, their numbers (with the exception of Jordan) would be much higher since, unlike UNRWA, UNHCR registers both male and female lines and also count as Palestine refugees those who were displaced for the first time in connection with the 1967 displaced (including descendants), who receive UNRWA’s services without being part of the overall registered refugee population.
- Should Palestine refugees in UNRWA’s areas of operation fall within the purview of UNHCR, UN resolutions on Palestine refugees, such as UNGA Resolution 194 and the rights it enshrines, would remain a valid landmark until a just and durable solution is implemented for the question of Palestine refugees.
UNRWA, UNHCR, and Durable Solutions
- UNRWA does not work on any specific durable solution but it advocates for a just and durable solution to the refugee question in line with international law.[20] It is not commonly reported that in its early years, UNRWA attempted to promote the long-term integration of Palestine refugees into local economies.[21] This was met by firm resistance from the Arab states (except Jordan) and the refugees themselves, who demanded compliance with the primary recommendation of Resolution 194 on refugees, namely return.[22]
- Regarding the mandate of the UN agencies serving Palestine refugees, it is worth recalling that it is not in the purview of any UN member state to relinquish the possibility to enjoy the fundamental rights and inherent claims that these refugees have under international law. This includes the right of return whose validity for Palestine refugees is often dismissed by U.S. critics.
- The formulation of the right of return is articulated in various human rights instruments[23] and UN treaty body general comments.[24] While the establishment of the international human rights framework occurred subsequent to the initial Palestinian displacement, the legal foundation of the right of return of Palestine refugees, as it was reaffirmed in UNGA Resolution 194, is rooted in international law as it stood prior to 1947.[25] Such right flows from the illegality of the forced displacement and acts of violence that were committed against the Arab civilian population of Palestine by Zionist paramilitary and, subsequently, Israeli military forces (well documented, including by Israeli historians).[26] Already prior to 1948, disruption of people and family life, and arbitrary destruction or seizure of private property during hostilities were considered illegal;[27] pillage, including looting, plunder, or sacking by soldiers, carried out collectively or individually, were absolutely prohibited;[28] violation of these norms would result in an obligation to compensate the victims.[29] Deportations and other inhumane acts committed against civilian populations before or during war were considered a ‘‘war crime”[30] and a “crime against humanity,”[31] as confirmed by the jurisprudence developed during the Nuremberg Trials (1945-46).[32] This legal framework was common knowledge among the drafters of UNGA Resolution 194, who limited themselves to “reaffirming” (instead of establishing) a matter which was considered customary law.[33]
- Return (or “voluntary repatriation” in international refugee parlance) in “safety and dignity” is also considered the “most viable solution for the majority of people who find themselves in protracted refugee situations” ahead of local integration and resettlement.[34] This is confirmed by the striking numbers of refugees who return to their country compared to those who are resettled (5 million versus 102,800 in 2017).[35] Hence, should Palestine refugees in the various host countries fall within the purview of UNHCR, the right of return, which is based in international law and in UNGA resolutions, would be prioritized.
- In this respect, Resolution 194—calling for the return of the refugees to their “homes” and reconfirmed over 150 times—has served as a model for the resolution of other conflict-generated large refugee crises (e.g. Iraq, Cambodia, Central America, Bosnia, Timor Leste, and Afghanistan). With respect to Palestine refugees, Resolution 194 is binding because through it the General Assembly expressed a consensus widely shared at the time and reiterated well-established principles of international law.[36]
- While other solutions are worth exploring, within the purview of refugee’s choice (as no solution can be forced upon him/her), return should not be dismissed simply on the ground of political considerations and practical challenges.
- Where safe return is not feasible, the next most common and more practicable durable solution is local integration in the country of first refuge. However, unlike return/voluntary repatriation which is solidly built in international law, there is not an obligation to “locally integrate” refugees. States’ parties to 1951RC need to grant refugees certain rights, but there is no obligation to grant citizenship or permanent stay. Hence, in this context it is important to affirm that the right of return is a right and should be treated as such.
- Ending the refugees’ status through durable solutions alternate to repatriation, such as local integration and resettlement, means a cessation of the refugee status and, hence the need for international protection. It does not affect the rights and historical claims that derive from international law; in the case of Palestine refugees, the right to enter/return to their country, as enshrined in international law, restitution, and compensation would remain until there is a settlement of the refugee claims.
[1] UNGA 212(III)), 19 November 1948.
[2] U.S. Department of State, publication 3757, Near and Middle Eastern Series, released February 1950.
[3] UNRWA, Assistance to Palestine Refugees: Interim Report of the Director of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, GAOR, 5th session, suppl. 19, UN doc. A/1451/Rev.1, 5.
[4] For information regarding Jewish persons served by UNRWA, see UN United Nations Economic Survey Mission for the Middle East, Final Report, A/AC.25/6, 28 December 1949.
[5] UNHCR is established under article 7 of the UN Charter.
[6] UNRWA does it directly while UNHCR does it through the Economic and Social Council (UNHCR, para. 11).
[7] UNRWA’s original mandate included: “carry[ing] out direct relief and works programmes in collaboration with local governments,” “consult[ing] with the Near Eastern governments concerning measures to be taken preparatory to the time when international assistance for relief and works projects is no longer available,” and “plan[ning] for the time when relief was no longer needed”. UNGA res. 302 (IV), 8 December 1949, para. 7(b). See also UNCCP, “First Interim Report of the United Nations Economic Survey Mission for the Middle East” appended to UNCCP, Final Report of the United Nations Economic Survey Mission for the Middle East, Part I (The Final Report and Appendices) and Part II (The Technical Supplement), UN doc. A/AC.25/6, New York, 1949, part I, 14,16.
[8] GAOR: 6th Sess., Annexes, Agenda Item 24 (a) (A/2072, 24 January 1952), p. 1.
[9] GA res. 58/153, 22 December 2003. Implementing actions proposed by the United Nations High Commissioner for
Refugees to strengthen the capacity of his office to carry out its mandate, 22 December 2003, para. 9.
[10] E.g. UNGA res. 614 (VII) of 1952 notes a need for “increased relief expenditures” in the UNRWA budget. UNGA Resolution 916 (X) of 1955 notes the “serious need of other claimants for relief […][ . . . ] namely, the frontier villagers in Jordan, the non-refugee population of the Gaza Strip, a number of refugees in Egypt, and certain of the Bedouin.” Following the 1967 war, UNGA Resolution 2252 (ES-V) asked UNRWA to “continue to provide humanitarian assistance [ . . . ] on an emergency basis, and as a temporary measure, to persons in the area who are currently displaced and in serious need of continued assistance”..” In later years, the UNGA repeatedly restated the Agency’s mandate for those displaced in 1967. After the Israeli invasion of Lebanon of 1982, UNGA extended UNRWA’s mandate to encompass those displaced by “subsequent hostilities.” UNGA Resolution 37/120 (J) of 1982 explicitly adds protection to the list of UNRWA responsibilities, urging the Agency to “undertake effective measures to guarantee the safety and security and the legal and human rights of the Palestine refugees in the occupied territories.”
[11] In 1958 and 1959, UNGA recommended that the Agency increase programs relating to education, vocational training, and self-support—an emphasis that would become an important blueprint for the Agency. From 1992 to 2002, UNRWA collaborated with the Office of the UN Special Coordinator for the Middle East Peace Process (UNSCO) and other specialized agencies of the UN system to contribute to the development of economic and social stability in the occupied Palestine territory. In 1993, after Israel and the Palestine Liberation Organization sign the Declaration of Principles on Interim Self-Government Arrangements, UNRWA began developing its Peace Implementation Programme, which works “to meet Palestine requests for assistance and priorities” during the interim period; UNGA res. 49/35 (1994) notes its “significant success.”
[12] UNRWA, “Frequently Asked Questions,” http://www.unrwa.org/who-we-are/frequently-asked-questions. UNRWA’s mandate was most recently renewed until June 2017 in UN General Assembly Resolution 68/76, Assistance to Palestine refugees, A/RES/68/76, 16 December 2013. [Please check this. The last mandate renewal for UNRWA was on 6 December 2016 by General Assembly resolution 71/91.]
[13] See UNGA resolution 71/91 of December 2016, Assistance to Palestine refugees, UN doc. A/RES/71/91, which renewed UNRWA’s mandate until June 2020 (see para 6). See also Secretary-General Report, Operations of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, Seventy-first session, agenda item 49, United Nations Relief and Works Agency for Palestine Refugees in the Near East, 30 March 2017, UN Doc. A/71/849.
[14] UNRWA “Statement of UNRWA Commissioner-General to the Advisory Commission,” https://www.unrwa.org/newsroom/official-statements/statement-unrwa-commissioner-general-advisory-commissionjune2018.
[15] UNGA res.302 (IV), 8 December 1949. See also General Assembly Resolution 71/91,which extends UNRWA’s mandate until 30 June 2020.
[16] UNHCR, Note on the Mandate of the High Commissioner for Refugees and his Office, October 2013, http://www.refworld.org/docid/5268c9474.html, which states (fn15): “The functions of the High Commissioner for Refugees and UNRWA are complementary: the High Commissioner for Refugees has the global refugee mandate, while UNRWA has a specific mandate over a particular category of refugees residing in five areas of operation (Gaza, West Bank, Lebanon, Jordan and Syria). This complementarity is acknowledged in the Statute, para. 7(c) and also in Article 1D of the 1951 Convention”.
[17] UNHCR, Guidelines on International Protection No. 13: Applicability of Article 1D of the 1951 Convention Relating to the Status of Refugees to Palestine Refugees, para. 6.
[18] Ibid, see para. 7.
[19] Ibid, Section E.
[20] UNRWA, “Frequently Asked Questions,” www.unrwa.org/who-we-are/frequently-asked-questions.
[21] Schiff, Benjamin N. Schiff, Refugees unto the Third Generation: UN aid to Palestinians (Syracuse: Syracuse University Press, 1995), pp. 33-46.
[22] UN Economic Survey Mission for the Middle East, Final Report, A/AC.25/6, 28 December 1949.
[23] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, Article 13(2),); International Covenant on Civil and Political Rights, 16 December 1966, Article 12; International Covenant on Economic, Social and Cultural Rights, 16 December 1966; International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, Article 5d(ii),).
[24] Human Rights Committee, General Comment No 27, Article 12 (Freedom of Movement), UN Doc CCPR/C/21/Rev.1/Add.9, 02 November 1999, para. 19 CERD, General Recommendation 22, Article 5, 49th session (1996), UN Doc A/51/18, annex VIII, at 126, para. 2.
[25] Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907.
[26] Benny Morris, The Birth of the Palestine Refugee Problem, 1947-1949 (Cambridge, UK: Cambridge University Press, 1987),); Simha Flapan, The Birth of Israel: Myths and Realities (New York: Pantheon, 1987).
[27] Articles 46 and 23(g) respectively, Hague Regulations.
[28] Articles 28 and 46, Hague Regulations.
[29] Article 3, Hague Convention.
[30] Article 6b, IMT Charter.
[31] Article 6c, IMT Charter.
[32] The Nuremberg and Tokyo trials referred to the Hague Conventions as constituting customary international law. See The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany, especially Part 22, judgment, 22nd August, 1946 to 31st August, 1946, 30th September, 1946 and 1st October, 1946 (London: published under the authority of H.M. Attorney-General by His Majesty’s Stationery Office, 1950); and The Tokyo Major War Crimes Trial: The Judgment, Separate Opinions, Proceedings in Chambers, Appeals and Reviews of the International Military Tribunal for the Far East, Annotated, Compiled and Edited by R. John Pritchard, A Collection in 124 Volumes (New York: The Edwin Mellon Press, 1998), also cited in Kattan, 2009:345 fn 233.
[33] Progress Report of the UN Mediator for Palestine, GAOR, 3rd Sess. Supp. 11, UN Doc. A/648, at Pt. 1, V, paras. 2, 6-8.[emphasis added]
[34] UNHCR, Protracted Refugee Situations, 20 November 2008, UNHCR/DPC/2008/Doc. 02.
[35] The number of resettlement places available globally does not exceed 1% of the world’s total refugee population.
[36] On the legal character of resolutions that have been reaffirmed hundreds of times, see Judge Tanaka’s dissenting Opinion on the ICJ South West Africa Case, “South West Africa Case (Second Phase)", Dissenting Opinion of Judge Tanaka, ICJ Reports, 196.