This Page is dedicated to explain the term Palestinian Refugees as well as the Refugee Status
UNGA Res. 194 (III) does not 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 (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).
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 constituting the concept “refugee” (UNCCP, 1951b: B).
The exclusivity of this finding is surprising and contradicts the drafting history of 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 Israel 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 be excluded from the scope of the 1951 Convention under Article 1 D cl. 1 of the 1951 Convention or included via cl. 2. The restriction to refugees of Arab origin was ultra vires.
The organizational purpose of UNRWA was to implement the relief and work programs for Palestine refugees (Akram, 2018: 425). This necessarily also reflected on 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. In some circumstances, a family may have lost part or all of its land from which its living was secured, but it may still have a house to live in. Others may have lived on one side of the boundary but worked in what is now Israel most of the year. Others, such as Bedouins, normally moved from one area of the country to another, and some escaped with part or all of their goods but cannot return to the area where they formerly resided the greater part of the time. These examples give an idea of the varying conditions that must be met in administering the relief program” (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. The Agency accepts new applications from persons who wish to be registered as Palestine Refugees. Once they are registered with UNRWA, persons in this category are referred to as Registered Refugees or as Registered Palestine Refugees.
2. persons who do not meet UNRWA’s Palestine Refugee criteria
These persons are grouped in the categories listed below. While registered for the purposes of receiving UNRWA services, these persons are not counted as part of the official Registered Refugee population of the Agency. They consist of persons who at the time of original registration did not satisfy all of UNRWA’s Palestine Refugee criteria, but who were determined to have suffered significant loss and/or hardship for reasons related to the 1948 conflict in Palestine; they also include persons who belong to the families of Registered Persons. These categories are:
2.1 Jerusalem Poor and Gaza Poor […]
2.2 Frontier Villagers […]
2.3 Compromise Cases […]
2.4 MNR Family Members […]
2.5 Non-Refugee Wives […]
2.6 Kafalah Children […]” (UNRWA, 2009: III.A).”
In addition, UNRWA considers, among others, 1967 IDPs as eligible for benefits without being registered in UNRWA’s system (UNRWA, 2009: III.B).
The UNHCR Guidelines on International Protection No. 13 on the Applicability of Article 1 D of the 1951 Convention to „Palestinian Refugees“ define the same 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: Persons who are “displaced persons” within the sense of UN General Assembly Resolution 2252 (ES-V) of 4 July 1967 and subsequent UN General Assembly resolutions, and who, as a result of the 1967 conflict, have been displaced from the Palestinian territory occupied by Israel since 1967 and have been unable to return there. It also includes those persons displaced by “subsequent hostilities”.
Descendants: “Descendants” refers to all persons born to Palestine refugees or displaced persons, as defined above. Based on principles of gender equality and non-discrimination on the basis of sex, as well as the principle of family unity, these descendants, whether they are descended through the male or female line, would be considered to fall within the purview of Article 1D. This includes descendants who were born outside of and who have never resided in UNRWA’s areas of operation, where the criteria for the application of Article 1D are met.” (UNHCR, 2020: 242, footnotes ommitted).
With regard to the definition of “Palestine Refugees”, a footnote refers on the one hand to the UNCCP definition in the Addendum to a Definition of a “Refugee” and the underlying Note by the Principle Secretary, and on the other hand to the UNRWA definition (UNHCR 2020: 242, fn. 17). The reference only in a footnote makes it possible to make a determination based on the UNCCP definition without recourse to the ethnic narrowing there.
If this is combined with the UNRWA definition, Palestinian refugees are persons,
who have left the territory currently under the control of the Israeli authorities and that is
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 regained it by November 29, 1947;
or
whose habitual residence during the period June 1, 1946, to May 15, 1948, was Palestine (i.e., the area formerly known as British Mandate Palestine), and who lost both their homes and livelihoods as a result of the 1948 conflict.
“Palestinian refugees” also include “displaced persons” as defined in UN General Assembly Resolution 2252 (ES-V), Humanitarian Assistance (adopted 4/7/1967, UNGA Res. 2252 [ES-V]) and subsequent resolutions, because they were displaced as a result of the 1967 conflict from Palestinian territory occupied by Israel since that time and cannot return there. In that resolution, UNRWA was mandated to provide, to the extent possible, humanitarian assistance on an emergency basis and as a temporary measure to others in the area who were displaced at the time and in urgent need of assistance due to hostilities. An exact definition is lacking again. Historically, the majority came from the West Bank, which was annexed by Jordan at the time, held Jordanian citizenship as a result, fled to the other side of the Jordan River, and were considered IDPs by Jordan. IDPs from the Gaza Strip were not assimilated to this group by Jordan but are considered IDPs under UN GV Res. 2252 (ES-V) (Albanese & Takkenberg, 2021: 104, 200). Referring to UN General Assembly Resolution 37/120, United Nations Relief and Works Agency for Palestine Refugees in the Near East (adopted 16/12/1982, UNGA Res. 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” who are married to a non-refugee are not listed as “[p]ersons who meet UNRWA’s Palestine Refugee criteria” but as “[p]ersons who do not meet UNRWA’s Palestine Refugee criteria”. However, they are still eligible for benefits. Descendants of “displaced persons” are not only ineligible for registration under UNWRA’s benefits system – as is the displaced person himself – but are not eligible for benefits in their own right. This would, if protection is not indirectly provided through a parent, lead to exclusion from both protection regimes and contradict the intention of Art. 1 D 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, with the exception of the United Nations High Commissioner for Refugees,” UNHCR Guidelines No. 13 narrow the scope of application in terms of persons to the aforementioned subcategories. In doing so, they leave out of account 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.
Art. 1 A para. 1 of the Convention extends its refugee definition also to those having been considered a refugee under prior arrangements it expressly lists by their date. Up until then refugee protection in international law had always been designed ad hoc, as a response to a specific refugee crisis and devoted to the specifically affected group. This was even the very intention when the 1951 Refugee Convention was drafted. Art. 1 A para. 2 cl. 1 continuous extending the refugee definition to its actual focus group, namely those internationally displaced in the event of the second World War as well as in related displacements in the after-war period. And Art. 1 B further specifies the meaning of the phrase “occurring before 1 January 1951” as a possible limitation either in time or geographic scope or both. It was not before 1967 that the signatories to the New York Protocol relating to the Status of Refugees deleted these limitations in time and geography, making the 1951 Convention universally and durably applicable to any current or future refugee crisis.
When the United Nations, having been founded just briefly before in 1945, faced the displacement of hundreds of thousands in the events around the establishment of the State of Israel and the 1948 War between Israel and the Arab nations, it was in the very nature of this tradition to respond with a system of refugee protection and support as well as related institutions uniquely designed to cope with the specific crisis at hand. this was the established situation, the later drafters of the 1951 Refugee Convention acknowledged as a given reality. For specific reasons, though, the drafters departed from the practice of incorporating also the Palestinian refugees as statutory refugees in the scope of the new Convention through extending its Art. 1 A para. 1 accordingly. This is also true for the 1950 UNHCR Statute.
Instead, they decided to keep this parallel system and its institutions running and to regulate the applicability of the newly established refugee regime in its Art. 1 D in a mixture of exclusion and inclusion or as UNHCR (2019: 243) put it, as “contingent inclusion clause.” This parallel system at that point was represented by the United Nations Conciliation Commission for Palestine (UNCCP) and the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).
UNNCP was established on the basis of Resolution 194 (III) of the UN General Assembly on December 11, 1948. It consists of three member states: the U.S.A., France, and Turkey (Albanese & Takkenberg, 2020: 40-41). It assumed not only the functions of a mediator but also those specified in the resolution itself or assigned to it by the General Assembly and the Security Council (para. 2 of the Resolution). In this respect, the Commission was comprehensively mandated to assist the governments and authorities concerned in bringing about a final settlement of all outstanding questions between them (para. 6 of the Resolution).
With specific regard to refugees, para. 11 of this Resolution 194 (III) of 1949 defines the mandate of the UNNCP as follows:
„Resolves that the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible;
Instructs the Conciliation Commission to facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations“ (para. 11 of UN-GV Res. 194 [III]).
This mandate of UNCCP was extended by Resolution 394 (V) para. 2 of the UN General Assembly on 14 December 1950 when the General Assembly
Directs the United Nations Conciliation Commission for Palestine to establish an office which, under the direction of the Commission, shall:
(a) Make such arrangements as it may consider necessary for the assessment and payment of compensation in pursuance of paragraph 11 of General Assembly resolution 194 (III);
(b) Work out such arrangements as may be practicable for the implementation of the other objectives of paragraph 11 of the said resolution;
(c) Continue consultations with the parties concerned regarding measures for the protection of the rights, property and interests of the refugees”.
This mandate of UNCCP was extended by Resolution 394 (V) para. 2 of the UN General Assembly on 14 December 1950 when the General Assembly
Directs the United Nations Conciliation Commission for Palestine to establish an office which, under the direction of the Commission, shall:
(a) Make such arrangements as it may consider necessary for the assessment and payment of compensation in pursuance of paragraph 11 of General Assembly resolution 194 (III);
(b) Work out such arrangements as may be practicable for the implementation of the other objectives of paragraph 11 of the said resolution;
(c) Continue consultations with the parties concerned regarding measures for the protection of the rights, property and interests of the refugees”.
The last letter, for the first time, expressly introduced the term “protection” into the mandate without specifying its content. However, it is worth mentioning that on the very same day, the General Assembly passed Resolution 438 (V) establishing the office of the United Nations High Commissioner for Refugees (UNHCR), expressly tasking him in para. 1 with international protection and providing some guidance for its interpretation in para. 8.
Diplomatic efforts by the UNNCP to resolve the disputes over territory and refugee issues through international conferences failed (Albanese & Takkenberg, 2020: 41-42). Similarly, plans by the UNCCP Refugee Office to compensate refugees, to recognize an estimate of the property of Palestinian refugees to be compensated by the UNNCP Technical Office, and a subsequent attempt by the UNCCP to mediate between the parties were not approved. Despite its formal continuation, no substantial work by the Commission can be identified (Albanese & Takkenberg, 2020: 46-49). On the contrary, since 1951, the UNCCP has stated in its annual reports to the General Assembly that it is unable to make progress in implementing its mandate (starting UNCCP, 1951, paras. 22, 79)
Given the failure of UNCCP, we have to turn to the second relevant institution still existing which is the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Its mandate stipulates in para. 7 (UN General Assembly Resolution 302 (IV) of December 8, 1948, Assistance to Palestine Refugees, UN Doc. A/Res/302 (IV)):
„(a) To carry out in collaboration with local governments the direct relief and works programs as recommended by the Economic Survey Mission;
(b) To consult with the interested Near Eastern Governments concerning measures to be taken by them preparatory to the time when international assistance for relief and works projects is no longer available“.
The establishment of UNWRA and its obligation to consult with Near Eastern Governments “measures to be taken by them preparatory to the time when international assistance for relief and works projects is no longer available” is seen by some as looming acknowledgement that discussions on return were stalled and the international community gradually shifted its objective to find durable solutions in the region through nationalization or resettlement.
Unlike the UNHCR, UNRWA is only mandated for Palestinian refugees and does not operate globally but is limited to five areas (“fields”) in the Middle East, namely the Gaza Strip, the West Bank (including East Jerusalem), Syria, Lebanon, and Jordan (UNHCR, 2019: 241; Albanese & Takkenberg, 2020: 195). While the Statute of UNHCR expressly assigns to it the tasks of protection (para. 1, 8) and assistance (para. 10), UNRWA has a clear mandate for assistance as is already shown in its title by the term “relief”, but there has been quite some debate whether and if so at which moment it was also tasked with protection.
The already mentioned para. 8 of the 1950 UNHCR Statute could give a first hint for a definition of “protection”. However, it is highly questionable whether Art. 1 D of the later 1951 Refugee Convention intended to recur to this exact meaning. While the 1950 Statute defines the mandate of UNHCR as an international agency, the 1951 Convention establishes obligations for the signatory states. Due to their sovereign power, states are regularly in a position to offer protection on a completely different level and independently of the goodwill of others. Since UN organs and institutions can only operate within the territory of a state and are therefore dependent on that state and, beyond robust mandates, usually have no enforcement powers, a cooperative relationship is required in which the role of UN organs and institutions is often limited to urging the state to grant the appropriate protection (Albanese & Takkenberg, 2020: 402).
“Protection” therefore means protection from persecution as introduced in Art. 1 A para. 2, diplomatic protection as pointed at in Art. 1 C para. 1 and an effective minimum standard of human rights, for which the Refugee Convention, including its references to other human rights instruments, serves as a benchmark as is illustrated by Art. 1 C para. 5. “Protection” is thus a comprehensive, refugee-specific, compensatory legal status and its fulfillment and conversion into durable solutions (Albanese & Takkenberg, 2020: 404-408).
In contrast, the term “assistance” in Art. 1 D GFK is also used in the Convention in connection with public welfare in Art. 23. The inclusion of a provision on public welfare in the Refugee Convention demonstrates that this can also be an integral part of the “protection” it grants; however, the alternative listing of the assistance feature indicates that this is not necessarily the case when international protection is granted and, secondly, that the special “protective aspect” of “assistance” should have a separate meaning; this took into account the original institutional division of tasks between UNCCP and UNRWA as we will showcase in the following slides. The interpretation has thus yielded distinct and independent meanings for the two terms “protection” and “assistance.”
ccording to paragraph 11 of UN General Assembly Resolution 194 (III), the mandate of the UNCCP originally referred to the repatriation, resettlement, and economic and social rehabilitation of refugees, as well as compensation payments for the loss or destruction of property. These can best be regarded as measures of “protection”, specifically tailored to the fate of Palestinian refugees. At the same time, the economic and social rehabilitation also mentioned in the Resolution, clearly is an element of public welfare. Thus, “assistance” in the meaning of Article 1 D of the 1951 Refugee Convention is also an integral part of UNCCP’s mandate.
As already explained, the organizational purpose of UNRWA is to implement relief and work programs for Palestine refugees in accordance with para. 7 UN General Assembly Resolution 302 (IV). This corresponds to the element of “assistance” within the meaning of Art. 1 D of the 1951 Refugee Convention. As a result, the establishment of UNRWA in 1949 initially led to an institutional division of tasks, according to which the “protection” of refugees was to remain under the mandate of the UNCCP, while “assistance” was transferred to UNRWA (Albanese & Takkenberg, 2020: 403). However, with the de facto cessation of the work of the UNCCP as the only institution with an explicit protection mandate and the resulting lack of protection for the refugees concerned (Akram, 2018: 426) the pressure on UNRWA to compensate by including protective aspects in its mandate became increasingly urgent over the decades and its mandate continuously evolved (Custer, 2011: 50-52). After various conceptualizations (Albanese & Takkenberg, 2020: 408-434; Custer, 2011: 55-56) this finally led to a renewed UNRWA mandate by the UN General Assembly in its Resolution 71/93 explicitly including the protection mandate in its para. 19.
Inclusion Clause: Objective and Irrelevance of Geographic Lines
When in 1950 UNHCR was established and in 1951 the Refugee Convention was agreed upon, UNCCP and UNRWA were already assigned with the protection and assistance for those having been displaced due to the Middle East Conflict. And for the given reasons, there was no intention to end their mandate or to transfer it to UNHCR. There was a need, therefore, to separate the responsibilities of these three institutions from each other. This is the purpose of Art. 1 D of the 1951 Convention. Its cl. 1 marks an exclusion clause. Its cl. 2, however, seems to require quite the opposite, namely inclusion, when certain conditions are met:
“This 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.
When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.”
Cl. 1 excludes persons if at present they are receiving protection and assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees, which refers to UNCCP and UNRWA. Based on the wording of cl. 1, we would have to assume that there is a strict alternative in the sense that either protection or assistance would suffice to exclude refugee protection. For teleological and systematic reasons, however, exclusion from the personal scope of the Convention is only triggered if the UN organs or institutions grant protection and assistance. In case of the current enjoyment of protection and assistance through other UN bodies or institutions, Art. 1 D cl. 1 stipulates an irrefutable presumption regarding the sufficient quality of the exclusion clause, which can only be reviewed in accordance with the criteria established in Art. 1 D cl. 2.
The exclusion of persons from protection under the Convention pursuant to Art. 1 D cl. 1 shall only last as long as protection and assistance are actually granted. Art. 1 cl. 2 therefore provides for their inclusion. “Protection” or “assistance” must have seized to trigger the inclusion clause.
Inclusion Clause: Cessation of Protection or Assistance
As in the case of the exclusion clause in Art. 1 D cl. 1, protection and assistance are linked by “or” in Art. 1 D sentence 2 GFK, too. This takes into account the fact that a refugee was previously excluded from the scope of the Refugee Convention because of already receiving protection and assistance. It is therefore sufficient for inclusion in the personal scope of the Convention that only one of the two elements has meanwhile ceased to exist. This applies all the more, of course, if both have ceased to exist. The decisive factor is whether the persons concerned are actually afforded a space of protection and assistance under the umbrella of the competent UN organs and institutions which, according to the human rights standards of the Refugee Convention, could be regarded as adequate compensation for the loss of state protection due to the conflict.
Inclusion Clause: Cessation
Such level of protection must have ceased. The wording itself indicates that “ceased” means more than just a qualitative deterioration in the granting of benefits. This is also confirmed by a systematic interpretation of the term if compared with Art. 1 C para. 5 and para. 6 of the Geneva Convention, where the term “ceased” (in relation to circumstances giving rise to a well-founded fear of persecution) is given a fundamental and permanent meaning.
The meaning and purpose of the provision in Art. 1 D cl. 2 also suggest that only substantial changes should be taken into account in order not to jeopardize the institutional structure of international refugee protection in the event of only temporary deficiencies. Furthermore, unlike Art. 1 C para. 5 and 6, Art. 1 D cl. 2 is not intended to justify the termination of refugee protection in exceptional cases, but rather to ensure its continuity. Against the background of the protective purpose of the Convention and refugee protection in general, refugees may, at most, be expected to accept restrictions on their rights on a temporary basis and depending on the degree of impairment, taking into account the functioning of the international protection system as such.
Therefore, with regard to the permanence of the cessation, it is decisive that, depending on the severity of the impairment, foreseeably temporary impairments of the enjoyment of protection and assistance would be acceptable when weighed against the institutional interest in continuity. As is also the case for determining the concept of a refugee, future developments are decisive, i.e., a prognosis must be made, for which the past can provide indications.
As the literal interpretation of the phrase “for any reason” (emphasized by ECJ, Judgment of 19 December 2012, Mostafa Abed El Karem El Kott, C-364/11, para. 53) indicates, the term “ceased” must be interpreted broadly (UNHCR, 2019: 244). Specifically, it is not limited to the end of the mandate of the UNCCP and UNRWA (Without further justification, referring solely to UNRWA UNHCR, 2019: 244) or even to the final settlement of the fate of the refugee group by the General Assembly.
On the other hand, it would contradict the teleology of the provision and the establishment of two deliberately separate institutional systems of protection and assistance to assume that individual refugees could, on purely subjective grounds, if not freely, choose between the systems and thus determine through their own conduct the responsibility for the protection and assistance to be granted to them.
Furthermore, the wording of the inclusion clause is, as before, directed at “persons” in the plural rather than at a “person” in the singular, as in Art. 1 A, C, and F. As in the exclusion clause, a collective view is taken also in the inclusion clause, a view that considers a group of persons. This indicates the intention to make inclusion and exclusion, at least as a rule, group-based.
Still, it would contradict the purpose of both protective instruments to assume that the resulting gaps in protection for individual refugees should be accepted with open eyes. On the contrary, Article 1 D specifically pursues the continuity of refugee protection across institutional boundaries. The wording is also sufficiently flexible to take into account the individual fate of persons covered by the term “persons,” provided that the criteria for this are of an objective nature.
Therefore, any cessation of protection or assistance by other UN organizations and institutions in collective and individual cases must be objective (see the individual reasons below), i.e., be beyond the control of the person concerned, in order to trigger the responsibility of the UNHCR and the applicability of the Refugee Convention (UNHCR, 2019: 243; ECJ, Judgment of 19 December 2012, Mostafa Abed El Karem El Kott, C-364/11, para. 58; Kraft, Art. 11 QRL: para. 21). The wording of the provision further supports such an interpretation, as it takes an objective perspective on the withdrawal of protection.
Inclusion Clause: Objective Grounds for Cessation
UNHCR (2019: 244-247) lists the following as alternative objective reasons for cessation
1. the termination of the UNRWA mandate;
2. the inability of UNRWA to fulfill its protection or assistance mandate;
3. the threat to the applicant’s life, physical integrity, security, or liberty, or other serious protection-related reasons; and
4. practical, legal, and/or safety barriers preventing an applicant from (re)availing him/herself of the protection or assistance of UNRWA.
Firstly, the narrow view of UNRWA and the neglect of the UNCCP must be criticized. Admittedly, due to its de facto demise, the latter no longer plays any role in the actual protection and assistance of refugees; however, this is precisely what matters in the context of examining Art. 1 para. 2 of the 1951 Convention and the triggering of its inclusion clause in Art. 1 D cl. 2. Secondly, the threat to life, physical integrity, security, or liberty, or other serious protection related reasons within the area of operation of the competent UN organs or UN institutions already is a sub-case of the de facto cessation of protection and assistance. And thirdly, ipractical, legal, or security obstacles that prevent applicants from placing themselves under the protection or assistance of UN organs or institutions already mean that they are not currently enjoying such protection or assistance and are therefore not excluded from the scope of the Convention according to Art. 1 D cl. 1.
Therefore, the only objective grounds for exclusion are (1) the formal termination of the mandate of the UN organs or UN institutions and (2) the de facto cessation of protection and assistance.
Inclusion Clause: Formal Termination of UN Mandate
The formal termination of the mandate of a UN organization or institution, including the UNCCP and UNRWA, requires a decision by the UN General Assembly as we can see from Art. 22 UN Charter (Albanese & Takkenberg, 2020: 118) and would collectively affect everyone who previously enjoyed protection and assistance (UNHCR, 2019: 245).
If the formal termination of the mandate is linked to the final settlement of the fate of the group of persons in accordance with the relevant resolutions of the UN General Assembly, there is no transfer to the protection regime of the Refugee Convention; rather, the subsidiary protection by the United Nations would be replaced by the primary, newly established state protection.
If, on the other hand, there is no such final settlement, and the persons concerned do not receive protection and assistance from other UN organs or institutions, the inclusion clause Art. 1 D cl. 2 ensures continuity of refugee protection, now under the Refugee Convention. Thus, the discontinuity of protection and assistance by other UN bodies or institutions eventually leads to the establishing the responsibility of the signatory States and – as we will see in further details when analyzing para. 7 letter c UNHCR Statute – the UNHCR.
In this case, the persons benefiting from inclusion are all Palestinian refugees who were actually covered so far by the ceased mandate immediately prior to its formal termination, including those who were entitled to it until then but actually have not received it.
Inclusion Clause: De facto cessation
As a general rule, the formal legal situation is not decisive for determining the concept of refugee under Article 1 of the Geneva Convention, but rather the actual existence of a sufficient safe haven which is intended to ensure the enjoyment of human rights and fundamental freedoms to the greatest extent possible as intended by the Convention when we look to its preamble.
In addition to the clear case of a formal termination of the mandate of the UN organs or institutions previously responsible for this, the cessation of protection and assistance must therefore also be assumed if those institutions do not or no longer provide sufficient protection and assistance in practice. This is also confirmed by the wording of the provision, which states that protection and assistance is required to have “ceased for any reason” (ECJ, judgment of 19 December 2012, Mostafa Abed El Karem El Kott, C-364/11, margin notes 56-57.)
What is decisive is the quality of the protection and assistance provided by the other UN organs and institutions.
The structure of refugee protection under the Refugee Convention constitutes a benchmark for what the contracting states had in mind as a significant level of protection that would be consistent with their objective “that human beings shall enjoy fundamental rights and freedoms without discrimination” and also “to assure refugees the widest possible exercise of these fundamental rights and freedoms” as is expressly stated in Recitals 1 and 2 of the Refugee Convention’s preamble.
International bodies and institutions may vary in their robustness, but will generally be dependent on the cooperation of the states in their area of operation. The provision of protection and assistance is therefore divided between different actors. This is clear from the protection mandate of the UNCCP, i.e., a commission that is focused on protection and assistance but has no enforcement mechanisms or even sufficient implementation mechanisms and resources from the outset. This would be rather irrelevant insofar as its operation is recognized and supported by the actors involved, backed by institutional and legal authority, and therefore protection and assistance can actually be enjoyed. However, where such a division of labor is lacking, the enjoyment of protection and assistance is jeopardized and likely to be lost.
The assumed or actual temporary nature of the loss of protection is irrelevant (Marx, 2019: MN 75). Only a selective failure of protection could constitute an exception (Albanese & Takkenberg, 2020: 118).
The reason for the de facto cessation of protection and assistance is irrelevant in this regard. This may be due, for example, to changes in legal requirements or interpretations, political decisions or strategies, political or economic conditions and instability, or a shortage of resources, for example due to underfunding (UNHCR, 2019: 245, FN 44) or a lack of enforcement, particularly vis-à-vis the countries of residence.
The loss of protection and assistance may be total or limited to a specific area (geographical, country-specific, group-related, personal, factual), i.e., collective, if the other UN organs or institutions are no longer able or willing to continue to provide protection and assistance in that particular area (UNHCR, 2019: 245).
Inclusion Clause: De facto cessation (assessment)
With regard to protection and assistance provided by the UNCCP, such a cessation can be assumed (unclear in this respect Qafisheh & Azarov, 2010: MN. 47 and 50). Referring to assistance, this is already attributable to the de facto replacement of the UNCCP by the UNRWA mandate. Regarding protection, a cessation can also be assumed in view of the de facto inactivity and insignificance that has since come to pass. This is expressly stated in UNHCR Guidelines No. 13, which refer, on the one hand, to the continued existence of the UNCCP and, on the other hand, to its annual report to the UN General Assembly, in which it acknowledges that it is not in a position to carry out the mandate entrusted to it (UNHCR, 2019: 245, FN 43).
Since the UNCCP and UNRWA were, at least initially, responsible for protection and assistance on the basis of a division of labor, and since UNRWA’s protection mandate only developed over time, but on the other hand, once protection and assistance had been granted, inclusion in the scope of application cannot be reversed even if protection and assistance are granted again by other UN organs and institutions, the Palestinian refugees were deprived of protection by the UNCCP and, in the absence of simultaneous compensation by UNRWA, were therefore deprived of protection altogether, which in itself triggered the inclusion of the entire group (Qafisheh, 2015: 68, suggests this consequence but ultimately does not support it on the basis of the assumption that protection and assistance are synonymous terms; see also, implicitly, Erakat, 2014: 615).
The same conclusion can be reached from a qualitative analysis of the UNCCP protection mandate. This is limited to finding a final solution to the conflict, including the return, restitution, and compensation of the Palestine refugees through negotiation. All other aspects of international protection, as defined by the UNHCR’s mandate, particularly at the operational level, are missing (for a comparison of the mandates of the UNCCP and the UNHCR, see also Albanese & Takkenberg, 2020: pp. 403-404. Under such a minimalist protection mandate of the UNCCP, the actual enjoyment of protection would have been highly dependent on voluntary state measures from the outset. The enjoyment of an adequate level of protection would thus have been difficult to guarantee internationally even for a short period of time and would have been illusory in view of a refugee situation that has lasted for approximately 80 years.
If, on the other hand, it were to be assumed that – contrary to its original mandate – UNRWA meanwhile also offers protection in addition to assistance due to an extensions of its mandate, inclusion would at least be conceivable on the basis of the lapse of UNCCP protection for those groups of persons who simply do not fall under the UNRWA mandate. These would be the following groups of persons:
and
At the same time, however, it would also have to be asked whether and to what extent UNRWA is still able to fulfill its mandate to provide assistance and to live up to an assumed protection mandate.
Even if no conclusive investigation can be carried out at this point, this is extremely questionable or even impossible to confirm in relation to certain areas of its mandate (Erakat, 2014: 585-586). The dependence on the cooperation of the host states meant that, over the course of decades of refugee situations, temporary or even permanent situations of protection deficit arose in every field of UNRWA’s operations. In addition, the assistance provided by state donors and donations is only able to compensate to a limited extent for the lack of state assistance.
This is evident to varying degrees in the UNRWA’s different fields of action (Albanese & Takkenberg, 2020: 183-244).
Finally, the wording of Article 1 D cl. 2 of the 1951 Refugee Convention, which states that protection or assistance must have “ceased for any reason,” also allows for an interpretation that considers individual lack of protection and assistance independently of mandate and institutional reasons (ECJ, Judgment of 19 December 2012, Mostafa Abed El Karem El Kott, C-364/11, para. 58; Goodwin-Gill & McAdam, Refugee, 2021: 185). This is also required for teleological reasons in order to avoid gaps in protection and to grant the necessary actual protection and assistance (ECJ, judgment of 19 December 2012, Mostafa Abed El Karem El Kott, C-364/11, para. 60).
For further standards regarding the quality of the necessary protection and assistance, literature cites humane living conditions and protection against rejection or refoulement as minimum requirements (Albanese & Takkenberg, 2020: 111). Even if it were assumed that UNRWA generally continues to provide sufficient protection and assistance, in view of the statements made on the general situation in UNRWA’s fields of action, a correct interpretation of the inclusion clause of Art. 1 D cl. 2 would make it all the more likely that, at least in individual cases this lack of protection and assistance could be demonstrated and the right to inclusion could be justified.
Inclusion Clause: Ipso Facto Inclusion
The withdrawal of protection and assistance only leads to inclusion under Article 1 D cl. 2 of the 1951 Refugee Convention if no final decision has already been made on the fate of the persons concerned “in accordance with the relevant resolutions of the General Assembly of the United Nations.”
In this respect, the Convention assumes that the final decision restores a state of primary state responsibility for protection and assistance, which renders superfluous the subordinate protection provided by the UN bodies and institutions previously responsible, as well as by the Contracting States and the UNHCR.
According to the wording of the provision, such a solution must be “final” and necessarily collective in nature. As in the case of the inclusion criterion, individuals would thus be collectively bound by the group-based solution for being members of the community sharing the same fate. This is implied by the use of the plural in the term “persons” in Art. 1 D cl. 1 and 2.
The Convention itself does not make any independent statements regarding the legal status to be achieved by the provision or the actual living and protection conditions. Rather, the substance and quality of the regulation to be adopted are derived from the reference to “in accordance with the relevant resolutions of the General Assembly of the United Nations.”
In this context, paragraph 11 of UN General Assembly Resolution 194 (III) is of particular importance, which sees the final solution in the return or compensation of refugees:
„The General Assembly, […]
However, in this respect too, the fundamental criterion for the Refugee Convention is not the form but the substance of the protection actually granted. The final settlement must therefore also satisfy substantive requirements granting those affected permanent protection and assistance, i.e., protection and assistance that is permanent in perspective. For return, this can be derived from the concept of protection in Article 1 C para. 5 of the 1951 Convention, since this also provides for the termination of refugee protection on the basis of a renewed, sufficient offer of protection by the country of origin which the refugee cannot refuse.
A final return option (see for the origins and development of the right of return Albanese & Takkenberg, 2020: 352-354, 364-369) that does not actually offer Palestinian refugees a dignified life and enable them to live “in peace with their neighbors,” as expressly stated in the resolution, would therefore be insufficient. Return should only take place at the request of the refugees and thus on a voluntary basis (Albanese & Tackkenberg, 2020: 350).
From the fact that return to the home should be made possible it is concluded that restitution payments would also have to be made (Albanese & Takkenberg, 2020: 350).International law, as referred to in the resolution, itself provides sufficiently general guidelines for the compensation expressly demanded by the resolution (Albanese & Takkenberg, 2020: 354-358, 369-372 and 451-454; El-Malak, 2025: 40-43). Symbolic compensation alone would in any case be insufficient.
Any final settlement would end refugee protection which is always only subsidiary. In that case, there would be neither room, nor need and no basis for inclusion under the protection of the Refugee Convention, as can be seen from the restrictive element requiring the absence of a final settlement of their positions.
In fact, there is no question that a final settlement in this sense has not yet been found.(ECJ, judgment of December 19, 2012, Mostafa Abed El Karem El Kott, C-364/11, para. 54).
According to Article 1 D cl. 2 of the 1951 Refugee Convention, the legal consequence of ceasing protection or assistance is that the persons concerned shall “ipso facto” be subject to the provisions of the Convention. The legal term “ipso facto” means that a legal consequence occurs automatically (Qafisheh & Azarov 2010: MN 72), meaning no furhter conditions are required for inclusion (Hathaway & Foster, 2014: 159). In particular, the persons concerned do not have to prove or even fulfill the criteria of a neo-refugee in accordance with the criteria required by Art. 1 A para. 2 of the Convention in order to qualify as refugees (Qafisheh & Azarov 2010: MN 75; Wittmann, 2021: MN 82). Because otherwise the inclusion of the characteristic “ipso facto” in the inclusion clause of Art. 1 D para. 2 would be superfluous (ECJ, judgment of 19 December 2012, Mostafa Abed El Karem El Kott, C-364/11, para. 73; Kraft, 2016: MN 22).
Instead, like in Art. 1 A para. 1, inclusion is totally independent from any criteria set for neo-refugees in Art. 1 A para. 2. Thus, after cessation of protection or assistance, Palestinian refugees constitute a separate group of refugees, like statutory refugees and neo-refugees. This corresponds to the special situation of Palestinian refugees, which was recognized by the signatory states in the form of special treatment under Art. 1 D (ECJ, judgment of 19 December 2012, Mostafa Abed El Karem El Kott, C-364/11, para. 80; Hathaway & Foster, 2014: 520).
As in Art. 1 A para. 2 GFK, the legal refugee status is dependent only on the fulfillment of the factual requirements; its actual enjoyment, however, in many ways necessarily dependent on a prior recognition decision, which typically is preceded by an application procedure (somewhat incorrectly simplified in this respect ECJ, judgment of 19 December 2012, Mostafa Abed El Karem El Kott, C-364/11, para. 75-76).
Inclusion and Exclusion in UNHCR Statute
It is this understanding of Art. 1 D of the 1951 Refugee Convention that can guide also the interpretation of para. 7 letter c of the prior 1950 UNHCR Statute, which states
“Provided that the competence of the High Commissioner as defined in paragraph 6 above shall not extend to a person: […]
(c) Who continues to receive from other organs or agencies of the United Nations protection or assistance; […]
While the wording of this provision is more compact, the intention is the same as in Art. 1 D of the 1951 Convention: In general persons receiving from other organs or agencies of the United Nations protection or assistance shall be excluded from UNHCR’s mandate – but only as long as receiving such protection and assistance continues. Once it discontinuous, i.e. once it ceases, these persons would not be excluded from UNHCR’s mandate but included.
When compared to the inclusion clause of Art. 1 D of the 1951 Refugee Convention, what is missing in the wording, is the ipso-facto character of the inclusion as well as the limitation with reference to definitive settlement. Nothing in the wording of para. 7 letter c of the 1950 UNHCR Statute, however, would prevent a parallel interpretation to Art. 1 D of the Refugee Convention. As additionally, it makes a lot of sense from a systematic and teleological perspective and UNHCR is charged with the task of supervising among others the 1951 Refugee Convention according to the last recital of its preamble and para. 8 letter a of the 1950 UNHCR Statute, such a parallel interpretation would have to be considered the preferable option.
Thus, para. 7 letter c of the 1950 UNHCR Statute should be interpreted like Art. 1 D of the Refugee Convention to avoid any unintended protection gaps.