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New Texts Out Now: Noura Erakat, Palestinian Refugees and the Syrian Uprising

[Cover of [Cover of "Oxford International Journal of Refugee Law"]

Noura Erakat, “Palestinian Refugees and the Syrian Uprising: Filling the Protection Gap During Secondary Forced Displacement.” Oxford International Journal of Refugee Law 26.4 (2014). [Full text available online until June 2015.]

Jadaliyya (J): What made you write this article?

Noura Erakat (NE): I began to write this article as an LLM student in National Security at the Georgetown University Law Center. In the spring of 2012, I was enrolled in a research seminar on refugees, and at that point there had been very little discussion of Palestinian refugees caught in the middle of the Syrian Uprising, now civil war, which began in March 2011. That was largely attributed to the fact that Palestinians had maintained their neutrality in the conflict. Aside from the Syrian regime’s August 2011 attack on a Palestinian refugee camp in Latakia, they had been more or less spared from the country’s civil strife. Nevertheless, like other analysts and observers, I believed that Palestinian neutrality in the conflict would be short-lived. And even if they remained neutral, and precisely for remaining neutral, I believed the Syrian rebel forces or the regime would target them for not taking sides. Watching the Syrian Uprising unfold into a civil war, it appeared that the attack on Palestinian refugees would be inevitable. Indeed it was.

As I began the research, I was mostly concerned with how the United Nations refugee agencies, namely the UN High Commissioner for Refugees (UNHCR) as well as the UN Relief Works Agency (UNRWA), would handle the refugee influx of Palestinian and Syrian refugees. Without greater familiarity, this may seem like a random question; yet as a student and scholar of refugee law, this was of great concern precisely because the overlapping nature of refugee legal regimes has been a point of contention for many years, especially since legal scholars like Susan Akram, Brenda Goddard, and Michael Kagan have been highlighting something called a protection gap.

In the case of Palestinian refugees, the protection gap refers to a lack of adequate protection made available to all refugees. As I write in the article: 

International protection refers to “all activities aimed at obtaining the full respect for the rights of the individuals in accordance with the letter and spirit of the relevant bodies of law (that is, human rights law, international humanitarian law, refugee law).” This consists of legal, diplomatic, human development, and humanitarian support.

UNCHR offers the full spectrum of protection to persons of concern to its Statute. However, UNRWA, which the UN General Assembly (UNGA) established in 1949, two years before the establishment of the UNCHR, only has the mandate to provide relief, education, and other forms of humanitarian support. The UNGA had created the UN Conciliation Commission on Palestine in 1948 to find a political solution to the conflict and thus to provide the legal and diplomatic protection that Palestinian refugees, like all other refugees, needed. The problem is that by 1951, the United States had impeded that process within the UNCCP, and by 1966 the agency became effectively defunct (though it continues to exist in name and to submit annual reports indicating that there is nothing new to report). While the UNGA has, since then, incrementally expanded UNRWA’s mandate to provide more protection for Palestinian refugees, it has arguably been insufficient. The exact scope of its insufficiency is contingent on a state-by-state analysis, but at the very basic level, UNRWA does not have the authority to search for a durable solution—namely integration, resettlement, or repatriation—on behalf of Palestinian refugees, thus indicating an absolute gap in this regard, unlike their refugee counterparts who fall under UNHCR’s mandate.

What does this mean for Palestinian refugees in practice? It amounts to differential and disadvantageous treatment of Palestinian refugees, especially during secondary forced displacement in the Middle East. My article examines the precise scope of that differential treatment, or protection gap, as a result of the Syrian Uprising relative to Syrian refugees who were also fleeing. It also seeks to make policy-based recommendations in order to close that gap during this crisis, as well as in more definitive ways in the future.

J: What particular topics, issues, and literatures does it address?

NE: As a policy article, this work has an explicitly prescriptive tone: UNRWA and UNCHR should collaborate much more closely and consistently to protect Palestinian refugees and close the protection gap that afflicts them most acutely during secondary forced displacement. To make this recommendation, I begin by providing the legal justification for collaboration between the two agencies. This is necessary because the UNHCR Statute includes what is both an inclusion and exclusion clause that suggests that Palestinian refugees fall under UNRWA’s mandate, while all other refugees come within the scope of UNHCR. In particular, Article 7(c) says that the competence of the High Commissioner shall not extend to a person “[w]ho continues to receive from other organs or agencies of the United Nations protection or assistance.”

This has been read to exclude beneficiaries of UNRWA, namely Palestinian refugees, and would indicate a rigid delineation of the agencies’ mandates. However, the preparatory documents, together with custom and the practice of inter-agency collaboration to protect Palestinian refugees during episodes of secondary forced displacement, demonstrate another reality: the agencies are meant to work together in order to provide Palestinian refugees the most robust form of protection possible. This has been the case during the exodus of Palestinian refugees from Kuwait in 1991, from Libya in 1996, and from Iraq in 2003. However, because such collaboration is ad-hoc and de facto in nature, it can be changed by ongoing customary practice. That has been the case during the Syrian Uprising, wherein these de facto policies have been insufficient to close the protection gap afflicting fleeing Palestinian refugees.

While the treatment of Syrian refugees is hardly stellar, the treatment of Palestinian refugees is even worse. I examine that differential scope in the countries to which Syrian and Palestinian refugees have fled, namely Lebanon, Jordan, Turkey, and Egypt, up through late October 2013. Conditions are worse today but the research findings remain apt and telling. In particular, I find that host countries treat Palestinian refugees from UNRWA areas of operation, (i.e., the West Bank, the Gaza Strip, Jordan, Syria, and Lebanon) as stateless persons rather than as refugees, thereby severely truncating the necessary protection for them.

J: How does this article connect to and/or depart from your previous research?

NE: Previously I have been concerned with more theoretical questions about bias in courtroom litigation, the proper scope of self-defense, the meaning of self-defense in warfare, critical race theory, and the formation of customary law. In contrast, this piece is an explicit policy article based on field research I conducted in Jordan and Lebanon during the winter of 2012.

While I had dealt with these issues in practice during my capacity as a Legal Advocacy Coordinator for the Badil Center for Refugee and Residency Rights, this was my first opportunity to take a step back and examine the relationship between the law, the policy challenges, and an ongoing crisis on the ground.

The hardest part was to keep up with an unfolding crisis. Every time I thought I had a complete draft, I found myself faced with new facts and figures and state policies that I had to incorporate, which in part explains why it took nearly three years to see it in print. I ultimately had to arbitrarily stop the research. The other challenge was to make discrete policy recommendations that would be relevant. As a scholar looking in, I was not sure whether I was responding naively to these challenges, which practitioners were grappling with daily.

J: Who do you hope will read this article, and what sort of impact would you like it to have?

NE: I wrote this article primarily for policy makers and practitioners with the ability to influence institutional change within UNHCR and UNRWA. The issues with which I grapple in this piece are not new. In fact, human rights advocates raise them consistently in their interventions, and humanitarian practitioners deal with them daily. Still, the article does two things that I am hoping will impact pertinent stakeholders.

First, it traces interagency cooperation to fill the protection gap afflicting Palestinian refugees during conflicts in the Middle East dating back to the Gulf War in 1991. By re-examining those case studies with a particular focus on interagency cooperation, I demonstrate that UNHCR-UNRWA collaboration in practice overrides rigid delineations in their respective mandates. The article therefore demonstrates the existence of a de facto to provide the most robust protection to Palestinian refugees.

Secondly, I am also taking a very close look at the treatment of Palestinian refugees fleeing Syria into Lebanon, Egypt, Jordan, and Turkey. In doing so, I am demonstrating the precise scope of the protection gap during this conflict. This is critical because there are sensitivities, especially among practitioners, that scholars exaggerate the scope of the protection gap by paying meticulous attention to the text at the expense of field operations. What I attempt to do here is to examine the differential and inferior treatment of Palestinian refugees relative to their Syrian counterparts who are also suffering from inadequate protection.

I think that most practitioners concerned with the welfare of refugees will agree with my conclusions and recommendations. The challenge is to influence states that have the ability to shape the mandates of refugee agencies and who can also help leverage the political will necessary to impact the behavior of other states. I hope that my article will be a resource for those advocates who are working for this kind of policy reform.

J: What other projects are you working on now?

NE: At present I am working on two other projects. One is reading Cheryl Harris’s 1994 article “Whiteness as Property” onto contemporary Israel. I am examining how within Israel, concepts of white superiority are not based on a simple distinction between Jew and non-Jew, but rather are based on a tiered concept derivative of Enlightenment Europe. In response to their exclusion from Europe, Jewish nationalists internalized the Enlightenment’s orientalist and denigrating anti-Semitic discourse and sought to reconstruct a new Jew who could be properly White and European by being less overtly Jewish. This necessitated the rehabilitation of Middle Eastern Jews by violently bifurcating their Middle Eastern and Jewish identities. It also necessitated the removal and erasure of Palestinians who were not eligible for whiteness because they lacked Jewish nationality.

The other project is examining how Israel leveraged the relationship between law and power during its summer 2014 offensive against the Gaza Strip in ways that both expanded its right to dominate and kill as well as to disarm Palestinian militancy through the language of international law. While this could also be explained as the result of pure power, I am examining how it was done in ways that leveraged the law as a tool of legitimation. Specifically, how did Israel transform an occupied territory into a hostile entity against which it could invoke self-defense? How did it expand the category of legitimate targets in armed conflict in ways that collapsed the distinctions between combatant, non-combatant, direct participant in hostilities, and civilians?

J: How has the aftermath of the Syrian Uprising affected the status and circumstances of Palestinian refugees, as well as other refugees in the region, such as those from Iraq and Afghanistan?

NE: Even before the advent of the Syrian Uprising in March 2011, the Middle East had been home to the largest concentration of refugees in the world. That should not be surprising in light of the fact that the largest refugee population, Palestinians, are primarily dispersed throughout the Middle East, together with the fact that incessant warfare, internal conflicts, and interventions have afflicted the region from Iraq to Yemen, Libya, and of course Syria. What I find happens during these conflicts is a contraction of rights available to those most in need because of a scarcity of resources in light of acute demand. Consider also that states are both the aggressors and sources of conflict as well as the providers of relief and resources. It becomes incredibly difficult to protest and shame the state that you are also asking to reform its practices in the face of humanitarian crises. The victims are the most vulnerable populations, like refugees.

Regarding Palestinian refugees in particular, what became apparent is that Middle Eastern states do not treat them like humanitarian subjects, whose status is circumstantial and therefore in need of temporary relief. Instead, Middle Eastern states treat them like stateless persons and, therefore, as political objects in an ongoing conflict. That is why, for example, Jordan and Egypt have refused Palestinian refugees fleeing Syria, in violation of the customary prohibition on non-refoulement. In the piece, I describe the Jordanian Government’s politicized treatment of Palestinian refugees:

The General Secretary at the Jordanian Ministry of the Interior attributed [the] disparate treatment [between Syrian and Palestinian refugees] to their respective conditions. He explains that, unlike their Syrian counterparts, Palestinian refugees were not facing violence in Syria. Moreover, the General Secretary added, the fact that the state had not deported its Palestinian refugees all together is a “humanitarian gesture.” Jordan’s Minister of the Interior adds that Jordan will not consider Palestinians fleeing Syria as refugees because “…those Palestinians were forced to come to [Jordan] and they are refugees in another country…[Jordan] will only treat them as guests.”

This is a very troubling trend, especially in light of escalating and ongoing conflicts in the Middle East.

Excerpt from “Palestinian Refugees and the Syrian Uprising: Filling the Protection Gap During Secondary Forced Displacement”

The treatment of Palestinian refugees fleeing Syria demonstrates a regression from the de facto policy of collaboration established by UNHCR and UNRWA during their secondary forced displacement in the Middle East. Jordan and Egypt have refused to recognize the refugee status of Palestinians fleeing Syria. Both governments assert that Palestinians are only refugees in Syria indicating a static understanding of their refugee status in UNRWA’s areas of operation. To the extent that Palestinian refugees have been permitted entry, Jordan and Egypt have done so as a humanitarian gesture rather than in conformity with a legal obligation. Since August 2013, even Lebanon has barred some Palestinian refugees entry into the country. As a result, Palestinians have faced detention, exclusion, and refoulement from Jordan and other countries in the Middle East. While UNHCR stepped in to resettle several thousand Palestinians fleeing Iraq in the aftermath of war and stranded at the Jordanian border, the agency has been unable to meaningfully intervene on behalf of Palestinian refugees in this instance.

In Egypt, they lack any form of international protection in contravention of both the UNHCR Statute as well as the 1951 Refugee Convention. While UNCHR and UNRWA collaborated to assist the Palestinian refugees stranded at the Egyptian-Libyan border in 1996, in this instance, UNHCR observes Egypt’s directive not to register Palestinians, and UNRWA is not present at all. UNRWA’s absence stands in stark contrast to its intervention in Kuwait in 1991 when it transcended its strict geographical mandate to assist forcibly displaced Palestinians.

Palestinian refugees fleeing to Lebanon also endure a protection gap, as indicated by the distinct, and inferior, entry and residence policies applicable to them. Nevertheless, they fare better in Lebanon, where many are still permitted entry and where they benefit from more inter-agency collaboration. In Lebanon, Palestinian refugees are included in the UN’s regional response plan, which coordinates humanitarian assistance to refugees fleeing Syria. Moreover, when UNRWA lacked the capacity to do so itself, UNHCR tried to monitor the flow of Palestinian refugees at the Lebanese border on its behalf. Once admitted entry, however, the refugees are housed separately and are under the strict divide of UNHCR and UNRWA mandates, including their care and assistance programs. Moreover, in their earliest cluster meetings, UNHCR did not discuss the status of Syrian and Palestinian refugees as a single humanitarian category. Instead, it offered UNRWA a seat at the table to represent the Palestinian refugees. This is in contrast to the treatment of Palestinian refugees who fled Iraq into Syria, also an UNRWA area of operation, where the two agencies collaborated to aid the fleeing population. The only difference seems to be that Palestinians who fled Iraq were not registered with UNRWA as are those Palestinians fleeing Syria today. This reflects a geographic, rather than a needs-based, distinction.

Turkey may be the only site where inter-agency de facto policies have been advanced. There, many Palestinians and most Syrians are permitted entry, fall under UNHCR’s mandate, and benefit from Turkey’s temporary protection regime without distinction. Unlike Lebanon and Jordan, Turkey is not one of UNRWA’s areas of operation, which may explain why all refugees fall under UNHCR’s mandate. However, Egypt is like Turkey in that it is not an UNRWA area of operation, but it fails to implement such a positive policy. Notably, as the refugee flow from Syria increases, Turkey’s policy has become less favorable to Syrians and Palestinians alike.

There is too little information on inter-agency collaboration within Syria to draw any conclusions about the comparative treatment of IDPs. While UNRWA is still able to operate with some staff, it is difficult to know the extent to which other UN agencies are providing assistance and protection for Palestinian refugees who have now been internally displaced.

Whereas ad hoc inter-agency collaboration sufficed to protect Palestinian refugees enduring secondary forced displacement from Kuwait, Libya, and Iraq, it has been inadequate in the case of the Syrian war. On its face, the major difference between this event and those that preceded it is the magnitude of the crisis as well as the status of Palestinian refugees as registrants, or not, of UNRWA. In Kuwait and Libya, only Palestinians endured forced displacement. The reduced scope of humanitarian need in those instances presumably made resources within UNHCR and UNRWA more available, thereby heightening the potential for inter-agency collaboration. However, even in Iraq, where Iraqis and Palestinians fled in mass numbers and where the scope of the refugee crisis heavily burdened neighboring countries and international donors, inter-agency collaboration was greater, and the protection gap afflicting Palestinian refugees was much smaller than it is in the case of the Syrian war. As mentioned, the key distinction in these two cases is the status of Palestinian refugees; in Syria they are registered with UNRWA, in Iraq they are not.

Although Palestinians fled from Iraq into UNRWA’s areas of operation, they remained under UNHCR’s mandate and were assisted by UNRWA. In contrast, Palestinians fleeing Syria into UNRWA’s areas of operation and beyond, during the course of the Syrian civil war, have remained strictly within UNRWA’s mandate, with the exception of Turkey. This approach has proven detrimental to Palestinian refugees who have fled to Jordan, Egypt, and Lebanon. Whereas, Middle Eastern states and UN agencies have treated Palestinians not registered with UNRWA like humanitarian refugees, they have treated Palestinian refugees registered with UNRWA like stateless persons. There is incongruence between UNRWA status, which is geographically bound and restrictive, and the vulnerability faced by Palestinian refugees in a quickly changing Middle East. Presumably, UNHCR would have assisted Palestinian refugees from Syria had they lacked their UNRWA status. Such an outcome does not conform to the intent and spirit of the UNCHR Statute and the Refugee Convention, which justifies inter-agency collaboration. Moreover, historical practice illustrates the feasibility and efficacy of such collaboration.

[Excerpted from Noura Erakat, “Palestinian Refugees and the Syrian Uprising: Filling the Protection Gap During Secondary Forced Displacement,” Oxford International Journal of Refugee Law 26.4 (2014), by permission of the author. © Noura Erakat 2015. For more information, or to read the full text of this article (which will be available without charge until June 2015), click here.] 

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