UN and International Protection

During the past several months no major initiatives have been undertaken by the international community to rectify the protection gap facing Palestinian refugees in the occupied territories and elsewhere apart from continued assessment studies of humanitarian conditions. Humanitarian relief has become a substitute for effective international political intervention.

PLO Report on Double Standards : The degree to which the international community has adopted a double standard with regard to the implementation of international law as a foundation for resolving the Israeli-Palestinian conflict was clearly documented in a report prepared by the PLO Negotiations Affairs Department in late September. The report, entitled, Double Standards, How the International Community has Taught Israel that it is Above the Law, documents the record of the international community dealing with the implementation of UN resolutions around the world concerning grave human rights violations and violations of humanitarian law; colonies and demographic manipulation; the right to return of refugees and displaced persons; and the obligation to withdraw from territories subjected to armed occupation.

The report provides a series of recommendations to ensure Israel's compliance with UN resolutions and international law, including, the deployment of international monitors, the disengagement of Israeli occupying forces under international supervision, stabalization of the autonomous Palestinian government, insistence that a final and comprehensive agreement cannot derogate from principles held to be non-negotiable in all other instances, including the right of refugees and displaced to return to their homes, the use of international sanctions for noncompliance, and the establishment of accountability at the international level for unacceptable practices.

to work to earn it. They increasingly must rely on handouts, sale of personal items, credit, etc.. Widespread damage, injuries and deaths in the refugee community have reduced even further what little material capital and savings refugees have to rely on during periods of economic instability and political crisis.

Double Standards, How the International Community has Taught Israel that it is Above the Law (excerpts)

PLO Negotiations Affairs Department (24 September 2002)
3. The Right to Return of Refugees and Displaced Persons
As was noted in the previous section, the practice of demographic manipulation through colonies and through the disenfranchisement and partial displacement of the original Palestinian population, has been internationally resisted in all cases other than Israel. In fact, in all of the cases mentioned above, the right to return of the displaced populations lay at the core of international demands. In most of these cases, this demand has been enforced through military action, followed by an international security presence to safeguard the process of refugee returns. The right of refugees or the displaced to return lies at the very heart of all of these international operations, and it is a key component of all peace-settlements that have been adopted. The right to return is a crucial element of the Dayton accords. While this has proved difficult in practice, tremendous international resources have been invested in the attempt to enable those who were subjected to displacement by design to return to their homes.

Throughout 1998, the return of the displaced and of refugees to Kosovo was also a key demand of the Security Council acting under Chapter VII. This demand was followed up in eptember/October of that year with a threat to use of force. This ultimately led to the Holbrooke agreement that foresaw an organized return of the displaced and refugees. Similarly, this was non-negotiable condition in the Rambouillet talks on Kosovo. The use of force by NATO in relation to the Federal Republic of Yugoslavia was only suspended once it had been established that there would be no barriers to returns. When large parts of the thnic Serb population left the territory in the wake of the success of the NATO campaign, their return became one of the highest priorities of the newly installed UN interim authority in Kosovo.

Other cases of the demand for return concern Tutsis from Rwanda who had been moved into Zaire. The Security Council authorized the deployment of an international coalition force led by Canada (ultimately not deployed) to achieve this aim. Similarly, the return of Eastern Timorese who were moved across the boundary into Indonesia has been a mandatory demand of the Security Council.

This pattern of the demand for the safe and secure return of the displaced and refugees to their homes is unbroken, also in other parts of the world. Other examples of such demands include the conflicts in the Caucasus, to which reference was made above, and displacement and refugee crises in Africa, from Nigeria and the Western Sahara, to the southern tip of the continent - where the right of return was realized for those who had sought shelter in the front-line states during the campaign against apartheid in Namibia and South Africa.

The right of Palestinian refugees to return home to mainland Israel or to the occupied territories has been a key demand of the Palestinians since 1948. As can be seen, in 1948 nd 1968, Israel faced demands from the international community to ensure the right of return for refugees whose movements stemmed from those particular conflicts. However subsequently hese international demands have diminished and there have been attempts to declare this as a non-negotiable issue in Israel-Palestine peace negotiations. Such a practice would, however, fly in the face of all other precedents.

Secretary General Report on Jenin: In July the UN Secretary General released his report mandated under UN General Assembly Resolution ES-10/10, 7 May 2002, on the events in Jenin refugee camp and throughout the West Bank during Israel's massive military assault in April. The General Assembly requested the Secretary General to prepare the report following Israeli non-compliance with and collapse of a Security Council sponsored investigation earlier in the year. The Secretary General's report was heavily criticized by local and international human rights organizations. Human Rights Watch called the UN Jenin report 'flawed.'

"The report doesn't move us forward in terms of establishing the truth," said Hanny Megally, executive director of the Middle East and North Africa Division of Human Rights Watch. While the report describes some general allegations that have been made about the conduct of the Israeli and Palestinian sides during the Israeli operation, it draws almost no conclusions on the merits of those claims. It makes only limited reference to the obligations of the parties under international law, makes few clear conclusions about violations of that law, and does not raise the issue of accountability for serious violations that may have been committed, some of which rise to the level of war crimes.

"Even with what they had, they could have done more," Megally said. Examples of the report's failings include the following: It refers to the fact that civilians died in the operation, without examining the circumstances of their deaths. The U.N. report mentions that missiles were "at times" fired from helicopters, minimizing evidence suggesting that their use was intense and indiscriminate in Jenin camp, particularly on April 6 when missiles caught many sleeping civilians. It does not discuss what, if any, steps the parties have taken to investigate credible allegations of violations of international humanitarian law raised in the report - such investigations are vital for ensuring accountability and discouraging future violations. (Human Rights Watch, 2 August 2002) UNCCP

56th Annual Report: On the eve of the second anniversary of the Palestinian uprising the UN Conciliation Commission for Palestine (UNCCP), the UN body established under UN General Assembly Resolution 194 and mandated to provide international protection for Palestinian refugees released its 56th Annual Report. The reportcovers the period from 1 September 2001 to 31 August 2002. In the interests of advancing discussion on resolving the protection gap for Palestinian refugees the FULL UNCCP report is reprinted below .FULL TEXT of the Fifty-sixth REPORT of the United Nations Conciliation Commission for Palestine (UNCCP) "In paragraph 2 of its resolution 56/52 of 10 December 2001, the General Assembly requested the Commission to report to the Assembly as appropriate, but no later than 1 September 2002. The Commission notes its report of 31 August 2002 (A/56/290) and observes that it has nothing new to report since its submission."

UNHCR and Refugee Protection (BADIL Brief No. 7): Between 1948 and 1949 the United Nations General Assembly accorded mandates to two separate UN agencies to provide international protection (including durable solutions) and assistance to Palestinian refugees. This unique regime is comprised of the UN Conciliation Commission for Palestine (UNCCP), and the UN Relief and Works Agency for Palestine Refugees (UNRWA). Palestinian refugees also have a unique and complex relationship to a third UN agency - the Office of the UN High Commissioner for Refugees (UNHCR). Over the past two years, BADIL has examined the pros and cons of UNHCR stepping in to fill the protection gap for Palestinian refugees. The initial findings are presented in BADIL Information and Discussion Brief No. 7 published in August. The following article provides a short summary of the Brief.

Generally, UNHCR has a mandate to provide international protection and search for durable solutions for refugees world-wide, including persons defined as 'Convention refugees' under the 1951 Convention Relating to the Status of Refugees (Refugee Convention). According to special provisions set forth in Article 1D of the 1951 Refugee Convention, Palestinian refugees are entitled to the benefits of the Convention (i.e., considered as 'Convention Refugees') when protection or assistance from other organs or agencies of the United Nations has ceased forany reason, without the position of the refugees being definitively settled in accordance with relevant resolutions of the UN General Assembly.

The collapse of UNCCP protection in the mid- 1950s, limited intervention by the UNHCR, and lack of an explicit UNRWA protection mandate, has resulted in severe gaps in international protection for Palestinian refugees. No international agency is currently recognized by the international community as having an explicit mandate to systematically work for the realization of the basic human rights of all Palestinian refugees and search for and implement durable solutions consistent with international law as affirmed in UN General Assembly Resolution 194(III). Practically this anomaly means that most of the more than five million Palestinian refugees, or nearly one-third of the world's total refugee population, do not have systematic access to international protection.

Palestinian refugees face varying degrees of arbitrary restrictions on the realization of basic human rights, including, for example, freedom of movement, the right to the highest attainable standard of physical and mental health, the right to education, the right to an adequate standard of living, and the right to work, as well as access to durable solutions. The severe gap in international protection for Palestinian refugees requires urgent legal reappraisal and related institutional remedies. UNHCR may provide an 'address' to fill the gaps in international protection for Palestinian refugees if three primary issues are resolved: clarification of mandate (including UN Resolution 194), identification of the value-added components UNHCR's operational experience would bring to the Palestinian refugee case, and consideration of potential political problems.

UNHCR does not have an explicit mandate to provide international protection and seek durable solutions for all Palestinian refugees. The technical aspects of triggering UNHCR intervention, if and when necessary, are least problematic. While Paragraph 7C of the UNHCR Statute does not contain an inclusion clausesimilar to Article 1D of the 1951 Refugee Convention, both the UN General Assembly and ECOSOC could issue policy directives to the HighCommissioner, as they have done in other cases, that would bring Palestinian refugees within the scope of the UNHCR Statute. More problematic are issues related to inter-agency jurisdiction (i.e., UNRWA) and clarification of the constraints imposed by UN Resolution 194(III) (i.e., criteria for the cessation of refugee status and restrictions on resettlement) on an expanded UNHCR
mandate.

UNHCR's operational experience in the Palestinian case is limited. At present the Agency only provides services to a fraction of the Palestinian refugee population. Indicators of UNHCR effectiveness in other refugee cases -e.g., knowledge of the people's concerned, strong field presence, ability to mobilize financial resources, and an established working relationship with local NGOs through its field presence - all rank low in the Palestinian refugee case. At the same time, UNHCR does have a long history of providing international protection and facilitating durable solutions, experience which may be useful in the Palestinian case.

Given the lack of specific operational experience vis-à-vis Palestinian refugees, but broad experience with regard to refugees generally, potential expansion of UNHCR's mandate should be considered within the context of a value-added formula. In other words, in what areas can UNHCR's operational experience serve to fill in current protection gaps and/or enhance operational activities of existing agencies (such as UNRWA) involved with Palestinian refugees?

The same value-added formula should be applied in relation to the search and implementation of durable solutions. Finally, careful consideration must be given to the political environment in which UNHCR operates. While the issue of mandate and operational experience are technical issues that can be addressed in a relatively straightforward manner, the clearest and most accurate interpretation of mandate and division of roles can go awry due to untoward political influence. What are the potential implications of UNHCR intervention in light of the fact that the UNHCR's largest state donor, the United States, remains opposed to the implementation of those rightsaffirmed in UN esolution 194(III)? Can UNHCR intervention be effective, moreover, in the absence of sufficient support from Arab states? Would UNHCR intervention engender political pressure to dismantle UNRWA? The absence of a resolution to any one of these issues could have negative consequences for Palestinian refugees if the UNHCR were to afford systematic protection to them.

Recommendations include:
(1) UNHCR, UNRWA and other UN agencies should establish a coordination mechanism or secretariat for the exchange of documents, information, data and reports regarding their respective policies and operations. Such a mechanism would assist in the identification of specific gaps (short-term and durable solutions) in the international protection regime forPalestinian refugees. Palestinian institutions - official and civil society - should engage UNHCR and other UN agencies in a meaningful discussion regarding Resolution 194(III) in order to clarify the specific framework for durable solutions applicable to the Palestinian case and the status of Palestinian refugees under the 1951 Refugee
Convention.
(2) UNHCR, UNRWA and Arab host states should establish a mechanism for discussion and debate about the pros and cons of expanding UNHCR's mandate in the Palestinian refugee case with the aim of finding comprehensive solutions to the gap in international protection.