Ma'an News Agency (Opinion)
June 27, 2011 - 12:00am

JERUSALEM (Ma'an) -- As Palestinian leaders prepare to seek UN recognition of statehood in September, there is increasing talk in the US, Israel and elsewhere of disbanding the UN agency for Palestinian refugees, the UN Relief and Works Agency, and handing responsibility for Palestinian refugees to the UN High Commission for Refugees.

Some argue UNHCR would resettle the refugees, robbing them of their right to return to their homes.

But are these ideas based on a sound understanding of international law and refugee practice? Are they based on a real grasp of the mandates of UNRWA and UNHCR?

To set the record straight, Ma'an turned to UNRWA spokesman Chris Gunness.

It is argued that if UNRWA was disbanded and responsibility for Palestinian refugees handed over to UNHCR they would be resettled out of Israel and give up the right of return. Is this the case and if not, what would UNHCR’s role be?

Gunness: This is not the case. Palestine refugees are entitled to a just and lasting solution to their plight. This solution would optimally be achieved by the parties and political actors in the context of a negotiated conclusion of the Israeli-Palestinian conflict, and must be in accordance with UN resolutions and international law.

It should also be voluntary which means consulting the refugees. There is no merit to claims that the Palestine refugee issue can be addressed by transferring responsibility for Palestine refugees from UNRWA to another agency.

Please note two important caveats. First, UNRWA and UNHCR work to distinct mandates, operational and legal definitions, areas of operation, operational realities and constitutive instruments. My responses are consistent with these distinctions and should not be read to assume or imply direct correspondence between the two agencies or their refugee definitions. Rather, I should be understood to draw on the shared premises and common concepts that underpin the precepts applied by UNRWA and UNHCR in their efforts to assist and protect refugees in their respective areas of responsibility.

Second, UNRWA is not in a position to speak for UNHCR and does not purport to speak for UNHCR. However, responses to your questions require reference to documents that are posted on UNHCR’s website and are available to the public. My responses are based on UNRWA’s understanding of the plain meaning of these documents as well as the agency's own appreciation of its mission and its knowledge of the system of international law and practice that govern the protection of refugees globally.

Established principles and practice – as well as realities on the ground - clearly refute the argument that the right of return of Palestine refugees would disappear or be abandoned if UNHCR were responsible for these refugees.

Over decades of international practice, refugee situations have been resolved in three principal ways: local integration, resettlement in third countries and voluntary repatriation. Of these, the voluntary return of refugees to their country of origin has come to be recognized by refugees, states and international agencies as the optimal solution to the plight of refugees.

It is equally recognized that for refugees everywhere, a precondition for solutions to refugee situations is the resolution by political actors of the underlying causes of dispute and conflict.

This point is made in the 2008 UNHCR document, Protracted Refugee Situations: A discussion paper prepared for the High Commissioner’s dialogue on Protection Challenges. Paragraph 7 of the document observes that "Protracted refugee situations are usually created and sustained by the failure to resolve … differences in a peaceful manner and in a way that respects human rights."

Paragraph 9 of this document goes on to note that: "[…] the functions of refugee protection and humanitarian action, vital as they are, can make only a very modest contribution to the prevention and resolution of conflicts that oblige people to live in exile for long periods of time. If those objectives are to be attained, political will and political action are required on the part of states, regional organizations and relevant components of the UN system, including the Security Council and General Assembly."

The preface to the UNHCR Handbook on Voluntary Repatriation states that "voluntary repatriation is usually viewed as the most desirable long-term solution by the refugees themselves as well as by the international community. UNHCR's humanitarian action in pursuit of lasting solutions to the refugee problems is therefore oriented, first and foremost, in favour of enabling a refugee to exercise the right to return home in safety and with dignity."

Chapter 1, paragraph 6 of the UNHCR Handbook states that "the right of refugees to return to their country of origin is fully recognized in international law. The Universal Declaration of Human Rights (1948) established in article 13 (2) that "Everyone has the right to leave any country, including his own, and return to his country." While the Universal Declaration of Human Rights, as a Resolution of the General Assembly, is not a treaty requiring signature or consent, it sets the code of conduct and serves as a point of reference for all universal and regional human rights instruments subsequently adopted."

The UNCHR Handbook in its subsequent chapters sets out the obligations of states and of UNHCR in protecting the right of return in the context of voluntary repatriation as well as monitoring, protecting and advocating for the rights of refugees who have returned home.

Conclusion 4 of the report to UNHCR’s Executive Committee of 2005, on Local Integration states "Voluntary repatriation, local integration and resettlement are the traditional durable solutions and […] all remain viable and important responses to refugee situations;" "voluntary repatriation, in safety and dignity, where and when feasible, remains the most preferred solution in the majority of refugee situations;" a combination of solutions, taking into account the specific circumstances of each refugee situation, can help achieving long lasting solutions."

It is often said that UNRWA perpetuates the Palestinian refugee problem by granting refugee status through the generations and that handing the refugees over to UNHCR would not allow this. Is this the case?

This is not the case. As I have already noted, Palestine refugees are entitled to a just and lasting solution to their plight. In the absence of -- and pending the realization of -- such a solution, it stands to reason that their status as refugees will remain.

Questions raised about the passing of refugee status through generations stem from a lack of understanding of the international protection regime. These questions serve only to distract from the need to address the real reasons for the protracted Palestinian refugee situation, namely the absence of negotiated solution to the underlying political issues.

UNHCR's Handbook on Procedures and Criteria for determining Refugee Status provides in paragraph 184: "If the head of a family meets the criteria of the definition, [for refugee status] his dependants are normally granted refugee status according to the principle of family unity."

In effect, refugee families everywhere retain their status as refugees until they fall within the terms of a cessation clause or are able to avail themselves of one of three durable solutions already mentioned -- voluntary repatriation, local integration or resettlement in a third country.

Also, Chapter 5 of the UNHCR publication, Procedural Standards for Refugee Status Determination under UNHCR’s Mandate is very clear that in accordance with the refugee’s right to family unity, refugee status is transferred through the generations. According to Chapter 5.1.2 "the categories of persons who should be considered to be eligible for derivative status under the right to family unity include:" "all unmarried children of the Principal Applicant who are under 18 years."

Chapter 5.1.1 makes it clear that this status is retained after the age of 18. It states "individuals who obtain derivative refugee status enjoy the same rights and entitlements as other recognized refugees and should retain this status notwithstanding the subsequent dissolution of the family through separation, divorce, death, or the fact that the child reaches the age of majority."

In addition, UNHCR typically cites a Palestinian refugee population number in their State of the World's Refugees reports: see as an example this document. This makes clear that the practice of registering descendants of refugees is not disputed.

Can you give real historical examples of where this is the case with UNHCR refugees?

As made clear in the criteria for derivative status above, in all cases, refugees and their descendants retain the status of refugees until that status lapses through the achievement of a just and lasting solution. Again, I will allow published UNHCR documents to speak for themselves.

UNHCR recognizes "protracted refugee situations" as a matter of significant concern. The issue was highlighted in UNHCR's 2002 Agenda for Protection, in a June 2004 UNHCR Standing Committee paper that presented a definition, and in the 2008 High Commissioner's Dialogue on Protection Challenges.

UNHCR defines a protracted refugee situation as one in which "a refugee population of 25,000 persons or more who have been in living in exile for five years or longer." It further describes these situations as one where "refugees find themselves in a long-lasting and intractable state of limbo. Their lives may not be at risk, but their basic rights and essential economic, social and psychological needs remain unfulfilled after years in exile" (From the minutes of the UNHCR Standing Committee 4 – 6 March 2008, under agenda item "protracted situations").

The UNHCR definition does not apply directly to Palestine refugees because the mandate for Palestine refugees is with UNRWA – not UNHCR. However, it is clear that the gist of the concept of protracted refugee situations relates directly to the Palestine refugee context.

During a meeting of its Standing Committee in March 2008, UNHCR informed that "at the end of 2006, over half of the 9.9 million refugees worldwide were living in exile in protracted situations."

It noted that "The 10 largest populations living in protracted situations were: 1. Over 1 million Afghan refugees in Pakistan, 2. Nearly 1 million Afghan refugees in the Islamic Republic of Iran, 3. 350,000 Burundians in the United Republic of Tanzania, 4. 215,000 Sudanese in Uganda, 5. 174,000 Somalis in Kenya, 6. 157,000 Eritreans in Sudan, 7. 132,000 Angolans in the Democratic Republic of Congo, 8. 132,000 refugees from Myanmar in Thailand, 9. 128,000 Congolese (DRC) in the United Republic of Tanzania, 10. 107,000 Bhutanese in Nepal."

The meeting was further informed that there had been a substantial recent reduction in numbers of refugees in protracted situations because the durable solution of voluntary return to their countries had been achieved. The minutes record "the substantial decrease in the number of refugees in protracted situations can be attributed to a handful of major repatriation operations in recent years. In 2005 and 2006, more than 1.8 million long-term refugees returned to their country of origin, more than a million of them to Afghanistan alone. Substantial numbers were also repatriated in Africa, particularly Angola, Burundi, Liberia and Sudan."

The UNHCR Global Appeal for 2010 and 2011, Finding Durable Solutions estimated that about 1.2 million UNHCR refugees would return to their homes, during that period. These figures attest to the fact that voluntary repatriation is the "preferred choice" for refugees.

Let me conclude by saying that UNRWA will continue to advocate for the full protection of the human rights of its beneficiaries based on UN resolutions and international law.

Meanwhile, we will remain steadfast in our mission and mandate to bring human development to Palestine refugees through education, health, relief and social services, pending a just and durable resolution of their plight.

Until this has been achieved, we will stand with the refugees as we have done through 63 years of statelessness, exile and dispossession.


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