Palestinian Refugees and the Protection Gap

yarmouk campLeila Pastore

Second Year Law Student at University of Michigan Law School

In April, the UN issued a press statement regarding the desperate condition of Yarmouk, a Palestinian refugee camp in Damascus, Syria. Due to fighting between the Islamic State, Aknaf Beit Al-Maqdis (a Palestinian faction), and the Al-Nusra Front (an Al-Qaeda affiliate), UN agencies have been unable to bring much-needed humanitarian aid to Yarmouk. The camp falls under the jurisdiction of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”), an agency that assists “Palestine refugees,” defined as “persons whose normal place of residence was Palestine 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.”[1] The UNRWA has aided refugees close to the camp, but has struggled to get access to those inside due to security issues. The refugees in Yarmouk lack food, water, medicine, electricity, and adequate shelter – a situation a spokesperson for the UNRWA described as “beyond inhumane.”

This statement draws attention to the horrible conditions some Palestinian refugees endure and what some scholars have referred to as a “protection gap.” This population is not under UNHCR’s mandate because while The 1951 Refugee Convention does not exclude Palestinians per se, Article 1D establishes a special refugee regime for Palestinian refugees; it states, “[t]his 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.” Such other assistance effectively concerns those persons inside UNRWA’s area of operations.

Due to the UNRWA’s inability to provide protection for certain Palestinian refugees who fall within their operational definition, an unprotected population of refugees is created. UNRWA’s “working definition” of a Palestinian refugee was developed by the Agency for the purposes of determining eligibility for services. As a result, it does not contain a comprehensive set of criteria to define the status of a Palestinian refugee. In theory, the UNRWA should be aiding all refugees who were displaced by the 1948 and 1967 conflicts and are currently in one of the agency’s five areas of operation; however, various national practices, as well as security issues, have prevented UNRWA’s ability to provide protection for certain Palestinian refugees.

This protection gap, however, may be beyond the realistic capacity of any UN agency to address. Even if this population did fall under the Convention, UNHCR’s protection capabilities would also likely be limited. Yet, it is good practice to interpret Article 1D to exclude only those Palestinian refugees who are currently receiving aid from an applicable agency; otherwise the UNHCR should recognize them as refugees eligible for the Convention’s protection.

 

[1] The agency later expanded their scope to include refugees of the 1967 war.

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