Palestinian Refugees

Definition

There are various approaches to defining the term Palestinian Refugees (the following paragraphs refer to Roßkopf, 2022, 192-196):

United Nations General Assembly (UNGA) Resolution 194 (III)

UNGA Res. 194 (III) does not explicitly define its beneficiaries. However, its drafting history evidences related discussions (Albanese & Takkenberg, 2021: 85-86). When asked by the representative of New Zealand whether the term “refugees” included Arabs as well as Jews, the representative of the United Kingdom responded affirmatively (United Nations Conciliation Commission for Palestine [UNCCP] 1961: para. 25). Accordingly, UNCCP interpreted the refugee concept on a group basis (Akram, 2018: 425):

“According to the above interpretation the term “refugees” applies to all persons, Arabs, Jews and others who have been displaced from their homes in Arab Palestine…” (UNCCP, 1950: point 1).

UNCCP

However, UNCCP saw the need for further specification in order to implement its own mandate. In 1951, a memorandum from the Principal Secretary presented an expert opinion of the Legal Advisor, in which nationality, ethnic origin, the auxiliary factors of domicile, establishment and residence, and persons assimilated to refugees were specified as constituent factors (UNCCP, 1951b). For Palestine, reference was made to the Ordinance on Nationality for Palestine of July 24, 1925. Ethnic origin was regarded as the decisive reason for expulsion and, to that extent, as constitutive of the concept of “refugee” (UNCCP, 1951b: B).

The exclusivity of this finding raises questions and appears to contradict the drafting history of paragraph No. 11 UNGA Res. 194 (III). It ignores the fate of some 17,000 Jewish refugees in the aftermath of the 1948 events (on this figure UNCCP, 1949: 16; Albanese & Takkenberg, 2021: 35-36). Also, displaced persons who were considered “others” (21,555 residents) in the 1931 Census of the Mandate Power because they were neither of Arab (i.e., Muslim or Christian) (Krämer, 2015: 375) nor Jewish origin were excluded from the refugee definition (UNCCP, 1951b: B). In summary, the study defined the term “refugee” as follows:

Article 1

Are to be considered as refugees under paragraph 11 of the General Assembly resolution of 11 December 1948 persons of Arab origin who, after 29 November 1947, left territory at present under the control of the Israeli authorities and who were Palestinian citizens at that date.

Are also to be considered as refugees under the said paragraph stateless persons of Arab origin who after 29 November 1947 left the aforementioned territory where they had been settled up to that date.

Article 2

The following shall be considered as covered by the provisions of Article 1 above: 1. Persons of Arab origin who left the said territory after 6 August 1924 and before 29 November 1947 and who at that latter date were Palestinian citizens; 2. Persons of Arab origin who left the territory in question before 6 August 1924 and who, having opted for Palestinian citizenship, retained that citizenship up to 29 November 1947.” (UNCCP, 1951b: at the end).

The Legal Advisor’s Addendum proposed to amend it in two respects. Art. 1 should be given a third paragraph, which should read:

“Persons who have resumed their original nationality or who have acquired the nationality of a country in which they have racial ties with majority of the population are not covered by the provisions of the above paragraphs of this Article. It is understood that the majority of the said population should not be an Arab majority” (UNCCP, 1951a).

Furthermore, a third article should clarify the concept of „of Arabic origin“:

Article 3

The term “of Arab origin” appearing in the foregoing Articles related to persons belonging to the Palestine Arab community and to those who are considered or who considered themselves as belonging to that community” (UNCCP, 1951a).

This refugee definition was neither followed up nor adopted by the UN General Assembly. It has no legally binding force. Nevertheless, it refers 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” and would therefore, in principle, fall under Article 1D(1) of the 1951 Convention, unless such protection or assistance ceased, in which case Article 1D(2) would apply. The restriction to refugees of Arab origin was ultra vires.

United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)

The organizational purpose of UNRWA was to implement relief and works programmes for Palestine refugees (Akram, 2018: 425). This was necessarily reflected in the needs-based (Akram, 2018: 425) definition of the beneficiaries (Albanese & Takkenberg, 2021: 90) in an Interim Report:

“For working purposes, the Agency has decided that a refugee is a needy person, who, as a result of the war in Palestine, has lost his home and his means of livelihood. A large measure of flexibility in the interpretation of the above definition is accorded to chief district officers to meet the many border-line cases which inevitably arise.” (UN General Assembly 1950: para. 15).

After multiple changes, the definition has been essentially stable since 1952. The 2009 Consolidated Eligibility and Registration Instructions (CERI) describe eligible individuals in two groups:

1. Persons who meet UNRWA’s Palestine Refugee criteria — These are persons whose normal place of residence was Palestine [i.e., the territory formerly designated as British Mandate Palestine (UNRWA, 2009: VII.I)] during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 conflict. Palestine refugees, and descendants of Palestine refugee males, including legally adopted children, are eligible to register for UNRWA services.

2. Persons who do not meet UNRWA’s Palestine Refugee criteria — These persons are grouped in categories: Jerusalem Poor and Gaza Poor; Frontier Villagers; Compromise Cases; MNR Family Members; Non-Refugee Wives; Kafalah Children (UNRWA, 2009: III.A). In addition, UNRWA considers, among others, 1967 IDPs eligible for benefits without being registered in UNRWA’s system (UNRWA, 2009: III.B).

United Nations High Commissioner for Refugees (UNHCR)

The UNHCR Guidelines on International Protection No. 13 on the Applicability of Article 1 D of the 1951 Convention to Palestinian Refugees define them as follows:

“Palestine refugees: Persons who are “Palestine refugees” within the sense of UN General Assembly Resolution 194 (III) of 11 December 1948 and subsequent UN General Assembly Resolutions and who, as a result of the 1948 Arab-Israeli conflict, were displaced from that part of Mandate Palestine which became Israel, and who have been unable to return there. Displaced persons: those displaced from the Palestinian territory occupied by Israel since 1967 and unable to return there, including those displaced by subsequent hostilities. Descendants: all persons born to Palestine refugees or displaced persons, whether descended through the male or female line.” (UNHCR, 2020: 242; footnotes omitted).

With regard to the definition of “Palestine Refugees”, a footnote refers on the one hand to the UNCCP definition and, on the other hand, to the UNRWA definition (UNHCR 2020: 242, fn. 17). The fact that the reference appears only in a footnote allows for a determination based on the UNCCP definition without necessarily adopting its ethnic limitation.

Conclusions

If this is combined with the UNRWA definition, Palestinian refugees are persons who left the territory currently under the control of the Israeli authorities: a. after November 29, 1947, and were Palestinian nationals at the time, or as stateless persons had resided there until then; b. after August 6, 1924, but before November 29, 1947, and who were Palestinian citizens at the latter date; c. before August 6, 1924, and who had opted for Palestinian citizenship and retained it until November 29, 1947; or whose habitual residence during the period June 1, 1946, to May 15, 1948, was Palestine, and who lost both home and means of livelihoods as a result of the 1948 conflict.

“Palestinian refugees” also include “displaced persons” as defined in UN General Assembly Resolution 2252 (ES-V) and subsequent resolutions, displaced as a result of the 1967 conflict from Palestinian territory occupied by Israel since that time. Historically, the majority came from the West Bank, held Jordanian citizenship, fled to the other side of the Jordan River, and were considered IDPs by Jordan. Referring to UN General Assembly Resolution 37/120, UNHCR also includes persons displaced by subsequent hostilities (UNHCR, 2020: 242).

Consideration of descendants of “Palestine refugees” is not grounded in the UNCCP definition. UNRWA-CERI considers as “Palestine refugees” only descendants of the male line. Descendants of female “Palestine refugees” married to a non-refugee are still eligible for benefits, but are not eligible in their own right as descendants of “displaced persons.” This would, if protection is not indirectly provided through a parent, contradict the intention of Art. 1 D of the 1951 Convention, which seeks to convey unconditional (“ipso facto”) protection through the combination of exclusion (cl. 1) and inclusion (cl. 2).

Whereas Article 1 D cl. 1 of the 1951 Convention neutrally refers to persons currently enjoying the protection or assistance of a United Nations organization or institution other than UNHCR, UNHCR Guidelines No. 13 narrow the scope of application to the aforementioned subcategories, leaving out numerous groups of persons to whom UNRWA provides protection and assistance but who have not suffered displacement. This is consistent with the nature of the Convention as a refugee protection instrument.

Refugee Status

Particularity and Generality

Art. 1 A para. 1 of the 1951 Refugee Convention extends its refugee definition also to those considered refugees under prior arrangements. Up until then, refugee protection in international law had always been designed on an ad hoc basis, as a response to specific refugee crises. Art. 1 B specifies the phrase “occurring before 1 January 1951” as a possible limitation in time or geographic scope. It was not before 1967 that the New York Protocol removed these limitations, making the 1951 Convention universally and durably applicable.

When the United Nations, founded in 1945, faced the mass displacement around the establishment of the State of Israel and the 1948 War, it responded with a system of refugee protection uniquely designed for that crisis: the United Nations Conciliation Commission for Palestine (UNCCP) and the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). The drafters of the 1951 Convention acknowledged this parallel system as a given reality and regulated the applicability of the new refugee regime through Art. 1 D, a combination of exclusion and inclusion, described by UNHCR (2019: 243) as a “contingent inclusion clause.”

UNCCP

UNCCP was established on the basis of Resolution 194 (III) of the UN General Assembly on 11 December 1948, consisting of three member states (U.S.A., France, Turkey). Para. 11 of the Resolution defines its refugee mandate: return, compensation, and instructs UNCCP to facilitate repatriation, resettlement, and economic and social rehabilitation. This mandate was extended by Resolution 394 (V) in 1950, which for the first time introduced the term “protection” into UNCCP’s mandate — on the same day the General Assembly established UNHCR via Resolution 428 (V).

Diplomatic efforts by UNCCP to resolve territorial and refugee disputes failed, and since 1951 UNCCP has reported to the General Assembly that it is unable to make progress in implementing its mandate (UNCCP, 1951, paras. 22, 79).

UNRWA

Given the failure of UNCCP, the second relevant institution is UNRWA, mandated under UN General Assembly Resolution 302 (IV) of 1949 to carry out direct relief and works programs and to consult with Near Eastern governments on measures preparatory to the time when international assistance is no longer available. Unlike UNHCR, UNRWA operates only in five fields (Gaza Strip, West Bank including East Jerusalem, Syria, Lebanon, Jordan) and has a clear assistance mandate, with protection added only gradually over subsequent decades.

Protection

“Protection” means protection from persecution, diplomatic protection, and an effective minimum standard of human rights, for which the Refugee Convention serves as a benchmark. It is a comprehensive, refugee-specific, compensatory legal status including its fulfillment and conversion into durable solutions (Albanese & Takkenberg, 2020: 402-408).

Assistance

“Assistance” is also used in the Convention in connection with public welfare (Art. 23), demonstrating that it can form part of “protection,” while retaining an autonomous meaning reflecting the original institutional division of tasks between UNCCP and UNRWA.

UNCCP Mandate: Protection and Assistance

Per para. 11 of UNGA Res. 194 (III), UNCCP’s mandate covers repatriation, resettlement, economic and social rehabilitation, and compensation — forms of “protection” specifically tailored to Palestinian refugees, while its economic and social rehabilitation element constitutes “assistance” under Art. 1 D of the 1951 Convention.

UNRWA Mandate: Protection and Assistance

UNRWA’s organizational purpose corresponds to “assistance” under Art. 1D. Initially, “protection” remained with UNCCP while “assistance” was transferred to UNRWA. As UNCCP’s work de facto ceased, pressure on UNRWA to incorporate protective aspects grew, culminating in a renewed mandate under UN General Assembly Resolution 71/93, which explicitly included a protection dimension.

Complementary General Refugee Convention: Art. 1 D 1951 Convention

Inclusion Clause: Objective and Irrelevance of Geographic Lines

When UNHCR was established in 1950 and the Refugee Convention adopted in 1951, UNCCP and UNRWA already held responsibility for Middle East conflict refugees, with no intention to transfer their responsibilities to UNHCR. Art. 1D para. 1 establishes an exclusion clause; para. 2 provides for inclusion once protection or assistance has ceased without a definitive settlement of the persons’ position.

Inclusion Clause: Cessation of Protection or Assistance

Protection and assistance are linked by “or” in Art. 1D, meaning the cessation of either may suffice to trigger inclusion, particularly where effective protection is no longer available in practice (UNHCR, 2017, paras. 22–25; ECJ, El Kott, C-364/11, para. 58).

Inclusion Clause: Cessation

“Ceased” requires more than a qualitative deterioration in benefits — it implies a fundamental and durable change of circumstances (UNHCR, 2017, paras. 31–34; ECJ, El Kott, paras. 55–58), assessed through a forward-looking prognosis informed by past developments.

Inclusion Clause: Objective Grounds for Cessation

UNHCR (2017: 22-35) lists four alternative objective grounds for cessation: (1) termination of the UNRWA mandate; (2) UNRWA’s inability to fulfill its protection or assistance mandate; (3) threats to the applicant’s life, physical integrity, security, or liberty; and (4) practical, legal, or safety barriers preventing an applicant from availing themselves of UNRWA’s protection or assistance. Of these, only formal termination of the mandate and de facto cessation of protection and assistance are ultimately the relevant objective grounds.

Inclusion Clause: Formal Termination of UN Mandate

Formal termination of UNCCP or UNRWA’s mandate requires a UN General Assembly decision under Article 22 of the UN Charter and would collectively affect all persons previously covered. Absent a final settlement of the group’s fate, the inclusion clause of Art. 1D cl. 2 would ensure continuity of refugee protection, now under the Refugee Convention.

Inclusion Clause: De facto cessation

What matters is not the formal legal situation but the actual availability of a sufficient safe haven capable of ensuring fundamental rights and freedoms. Cessation must therefore also be assumed where UNCCP or UNRWA do not, or no longer, provide sufficient protection and assistance in practice — regardless of the reason, whether legal, political, economic, or a shortage of resources (UNHCR, 2017, paras. 30–33; ECJ, El Kott, para. 60).

Inclusion Clause: De facto cessation (assessment)

With regard to UNCCP, cessation of both protection and assistance can be assumed given its decades-long inactivity and institutional insignificance, expressly acknowledged in UNHCR Guidelines No. 13. Whether UNRWA’s assistance mandate now also amounts to sufficient protection remains questionable given the protection deficits documented across its fields of operation — the West Bank and Gaza Strip (dependence on and exposure to the occupying power, aggravated by the ongoing Gaza war), Lebanon (arbitrary violence and legal barriers to societal participation), Syria (caught in the 2011–2024 civil war), and Jordan (a comparatively more consistent, if sometimes turbulent, relationship).

Inclusion Clause: Ipso Facto Inclusion

Cessation of protection and assistance leads to inclusion under Art. 1D cl. 2 only where no final settlement has been achieved “in accordance with the relevant resolutions adopted by the General Assembly of the United Nations.” Para. 11 of UNGA Res. 194 (III) identifies return and compensation as the core elements of such a final settlement. Return must be voluntary, permit a dignified life “in peace with their neighbors,” and be accompanied by restitution of property or adequate compensation for loss or damage — symbolic compensation alone would be insufficient. It is undisputed that no such final settlement has been achieved to date (ECJ, El Kott, C-364/11, para. 54).

Once protection or assistance has ceased without a final settlement, inclusion under Art. 1D cl. 2 operates “ipso facto” — automatically, without the person having to separately prove refugee status under Art. 1A para. 2. Palestinian refugees thereby constitute a distinct category of refugees, alongside statutory and neo-refugees, reflecting the special treatment recognized for them under Art. 1D (ECJ, El Kott, para. 80; Hathaway & Foster, 2014: 520).

Inclusion and Exclusion in UNHCR Statute

This understanding of Art. 1D of the 1951 Refugee Convention also guides the interpretation of para. 7(c) of the 1950 UNHCR Statute, which excludes from UNHCR’s competence any person continuing to receive protection or assistance from other UN organs — but only for as long as that protection and assistance continues. Once it ceases, such persons are no longer excluded from UNHCR’s mandate, but included, avoiding any unintended protection gaps between the two instruments.