Thursday, February 28, 2019

by Daled Amos

One of the most controversial issues surrounding how UNRWA does business is its fast-and-loose definition of refugees, which has kept expanding over the years.

When UN General Assembly Resolution 393 was passed on December 2, 1950, endorsing UNRWA's purpose, it clearly stated:
[T]he reintegration of the refugees into the economic life of the Near East, either by repatriation or resettlement, is essential in preparation for the time when international assistance is no longer available, and for the realization of conditions of peace and stability in the area
UNRWA's job was to either repatriate refugees, where possible -- or to resettle them elsewhere, with the realization and acknowledgment that the money was not going to last forever.

But that goal was only good for about 10 years.

These days, UNRWA is no longer in the business of resettling refugees.
And they seem to think the money can, and should, keep flowing forever.


UNRWA's Self-Declared Flexibility

On the issue of finding homes for refugees, Lance Bartholomeusz, former head of the International Law Division of UNRWA admits that "this part of the mandate probably ended by 1960 when reference to 'reintegration' was dropped from General Assembly resolutions relating to UNRWA, reflecting some acknowledgment that this objective had been defeated."

Considering how integral the job of finding homes for the refugees was to the mandate of UNRWA, one might have thought that UNRWA would disappear at that point.

But in The Mandate of UNRWA at Sixty, Bartholomeusz described how UNRWA has continued to change its focus:
For almost sixty years, in response to developments in the region, the General Assembly has mandated the Agency to engage in a rich and evolving variety of activities, for many purposes and for several classes of beneficiaries. The Assembly has provided UNRWA with a flexible mandate designed to facilitate, rather than restrict, the Agency's ability to act as and when the Commissioner-General [of UNRWA], in consultation with the Advisory Commission as appropriate, sees fit. [emphasis added]
As we know, over the years, UNRWA has defined those "classes of beneficiaries" rather loosely, to the extent that UNRWA has taken upon itself the ability to extend refugee status from one generation to the next, significantly multiplying the number of refugees it claims to be responsible for. Also, UNRWA has been criticized for the 'stickiness' of the refugee status, which is retained even when the refugee becomes a citizen in another country.

Citizen or Refugee -- But Not Both

James G. Lindsay, who served as lawyer and general counsel with UNRWA from 2000 to 2007, criticizes UNRWA for the ease with which it doles out and retains refugee status.

In 2012, Lindsay wrote about Reforming UNRWA in an article that appeared on Middle East Forum. He takes issue with the UNRWA unique position that Palestinian Arab refugees who become citizens of another country, retain their refugee status on the UNRWA rolls:
Under UNRWA's operational definition, Palestine refugees are people whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict.

The UNRWA definition makes no mention of citizenship, and UNRWA makes no effort to de-register persons who were formerly refugees but are now citizens of a state. As such, UNRWA is the only refugee organization in the world that considers citizens of a state to be refugees, and there are many of these oxymoronic "citizen-refugees" on UNRWA rolls. [emphasis]
Lindsay is consistent in this critique of UNRWA.

Two years later in the Winter 2014-2015 edition of Justice, the magazine of the International Association of Jewish Lawyers and Jurists, Lindsay writes UNRWA: Still UN-Fixed, and he is damning in pointing out UNRWA's failure:
[UNRWA] never addresses the fact that there is no basis whatsoever in international law for its practice of “referring to” persons who have acquired a new nationality as “refugees.” This indefensible practice is not an oversight on UNRWA’s part—even some commentators sympathetic to UNRWA have admitted that citizens under the protection of their state of citizenship are not refugees. Instead, knowing that it is impossible to make a credible argument that citizens are “refugees,” UNRWA simply does not address the issue. [page 18]

Generations of Refugees 

However, Lindsay has tempered his critique of UNRWA when it comes to refugee status passing on from generation to generation. He is willing to compare UNRWA with UNHCR, the UN refugee agency which looks after all of the other refugees.


Back in his 2012 article, Lindsay wrote that UNRWA's refugee definition includes all the descendants of male refugees and takes this liberty despite the fact that the 1951 Convention Relating to the Status of Refugees is silent on the matter of refugees' descendants.

But not everyone is silent.

Lindsay himself points out that standards for refugee status are laid out in the UNHCR publication, "Procedural Standards for Refugee Status Determination under UNHCR's Mandate." There, family members of a refugee are eligible for "Derivative Refugee Status." In other words, family members of refugees may be entitled to derive benefits by virtue of their familial connection to a refugee. However -- as Lindsay himself writes:
"they are not refugees themselves, through whom derivative refugee status may be claimed".
Here Lindsay makes clear that one derivative refugee cannot generate another derivative refugee -- which means that there is no basis for the UNRWA policy to allow refugee status to be passed on from generation to generation has no basis.

But fast forward 2 years later.

Does the UNHCR Standard of Refugee Status Support UNRWA Policy?

In the later 2014 article in Justice, on page 18, in the section "Descendants of Refugees," Lindsay refers to critics such as himself who have argued that UNRWA's policy of granting refugee status to grandchildren and later descendants is contrary to the standard applied by UNHCR.

But then he argues that the UNRWA definition of refugee status is comparable to UNHCR's, based on Unit 5 of the UNHCR's above-mentioned "Procedural Standards":
However, as UNRWA and its supporters argue, UNHCR does refer to the dependents of a refugee as being eligible for “derivative refugee status” and does state that persons with derivative refugee status enjoy “the same rights and entitlements as other recognized refugees .”

Based on the concept of persons with derivative refugee status having the same rights and entitlements as other refugees, one could argue, as UNRWA does, that a person with derivative refugee status has the right to have his or her own dependents receive derivative refugee status.

In that case, the differences between UNRWA and UNHCR in the matter of refugee status passing to descendants would not be as great as the critics have suggested.
So according to Lindsay, based on UNHCR standards, UNRWA has a basis for its policy based on 2 claims:
o  Derivative refugees have the same rights as actual refugees
o  Derivative refugees, like actual refugees, can pass that status on to their descendants
Regarding that first claim, the statement that derivative refugees enjoy “the same rights and entitlements as other recognized refugees” is not absolute. In correspondence with Avi Bell, law professor at the University of San Diego School of Law and at Bar-Ilan University's Faculty of Law, he pointed out that, for example, the right to non-refoulement, the practice of not forcing refugees to return to a country where they are liable to be subjected to persecution, applies only to actual refugees and does not apply to parents, spouses, children or grandchildren.

In addressing the second claim, it is helpful to take a look at the arguments offered by Uri Akavia, a researcher at Kohelet Policy Forum, whose background paper "Is UNRWA’s hereditary refugee status for Palestinians unique?" came out just last month. Akavia counters Lindsay's claim of similarity between UNRWA and UNHCR definition of refugees and posits that there is a distinction: while UNHCR grants refugee services to derivative refugees, refugee status is another matter entirely:
It is not automatic - it is based on a case-by-case review of whether the actual situation merits it. When it does, UNHCR gives certain services to the children of refugees. UNHCR does not automatically add the children and grandchildren of refugees to the count of refugees and does not automatically define them as refugees. Even if a child of refugees is given refugee services, the grandchild will not be eligible for status or services. UNRWA, on the other hand, automatically grants such children refugee status, resulting in exponential growth of refugee numbers.
I emailed Uri Akavia for more background for the basis of what he wrote. In his response, he pointed to the same section 5 of UNHRC's "Procedural Standards" that Lindsay refers to.

First of all, any comparison between refugees and derivative refugees has to deal with the implications of the word "derivative," which clearly set the two apart.

According to Section 5.2.1 General Principles (of Derivative Refugee Status):
Recognition of refugee status in their own right affords family members/dependants better protection as their status will not automatically be affected by a subsequent cancellation, revocation or cessation of the refugee status of the individual from whom they derive refugee status (hereinafter “Refugee Status Applicant”). [emphasis added]
In other words, the two kinds of refugee status are not the same. Actual refugee status gives "better protection" by its very nature because derivative refugee status by definition depends on maintaining the ties to the refugee from whose status the derivative status is derived.

What happens if that tie is dissolved?

The end of that section does make clear that despite that dependence on the status of the original refugee, the breakup of the family does not automatically dissolve the status of the derivative refugee:
While, as a general rule, family members should retain their derivative refugee status notwithstanding the dissolution of the family through divorce, separation or death or the fact that a child reaches the age of majority [age 18], careful consideration should be given to the personal circumstances of the family members to determine whether retention of status is appropriate in a particular case or whether retention of status would be merely for reasons of personal convenience. [emphasis added]
Each refugee is evaluated on a case by case basis. The derivative status is not automatically voided, but neither does it automatically continue either.

The very fact that reaching the age of 18 triggers re-consideration of the status of a derivative refugee by itself raises doubts about the whole idea of automatically passing along refugee status from generation to generation.

So it is not surprising that the limit on perpetuating derivative refugee status is clearly spelled out on the same page of this UNHCR document:
As a general rule, a person cannot acquire derivative refugee status solely on the basis of a family/ dependency relationship with a person who has derivative refugee status.
According to UNHCR itself, a person who is a 'derivative refugee' himself cannot pass this status to other family members who are in turn dependent on him.

And that is why there are no 3rd generation refugees treated by UNHCR.

This contradicts James Lindsay's claim of a close correlation between UNHCR and UNRWA definition of refugees. It shows that just as in UNRWA's policy of continuing refugee status for citizens, here in the case of perpetuating refugee status from generation to generation we are dealing with a fabrication that has no basis in international law.

Here's a thought.

If UNRWA really wants to base policy on UNHCR, it could take a look at Article 1, F of the 1951 Convention Relating to the Status of Refugees. There, it touches on when not to apply refugee status:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
Now that would be a good place to start.

We have lots of ideas, but we need more resources to be even more effective. Please donate today to help get the message out and to help defend Israel.


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