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David Matas

Refugee Lawyer David Matas: UNWRA, Palestinian and Jewish Refugees :There are No International Instruments which Give Palestinians A Right of Return

There are real Palestinian refugees, Palestinians who fit squarely within the United Nations Refugee Convention definition, but they are not refugees within the jurisdiction of UNRWA. They are refugees from the West Bank and Gaza fleeing Hamas, the P

David Matas, posted October 26, 2012

 (The following is an excerpt of  Remarks prepared for a delivery to a conference on Justice for Jews from Arab countries, Jerusalem, Israel, 10 September 2012)


There is a troubling pattern of claimed Palestinian rights and Jewish wrongs where neither the rights nor the wrongs exist. Internationally recognized human rights belong to everyone by virtue of the fact that they are human. Internationally recognized human rights do not just belong to Palestinians or Jews or Canadians or any other particular national group. The very assertion of Palestinian rights is an assertion of exceptionalism, not universality. The same is true of wrongs. A violation of human rights remains a violation whether the victims are Jews or Palestinians or Canadians or any other particular national group.


A claim that an act affecting Palestinians is wrong where there is no claim of wrong for a similar act affecting others is also an assertion of exceptionalism. No one person can do everything. There is a value of specialization in human rights as much as in any other area of human endeavour. There is a difference, however, between specialization - asserting a general right for one group and leaving to others the assertion of that right for other groups or combating a general wrong inflicted on one group and leaving to others the combating of that wrong inflicted on other groups - and exceptionalism - asserting a right that exists only for that group or claiming as wrongful treatment only when it affects one group in particular.


There is a whole litany of rights that are claimed only for Palestinians and no one else. These claimed rights are not really rights at all.


Palestinian refugees are unlike any other. They are far different from Jewish refugees from Arab countries. Palestinian refugees have their own international institution responsible for their welfare, the United Nations Relief and Works Agency (UNRWA). More importantly, unlike other refugees, their status is hereditary. The UNRWA Web site states that "the descendants of the original Palestine refugees are also eligible for registration."


Second, Palestinian refugees maintain this refugee status even if they hold nationality in another state. For every other refugee, including Jewish refugees from Arab countries, refugee status is a form of surrogate protection, where there is no state of nationality able or willing to protect. A refugee ceases to be a refugee if, according to the Refugee Convention, the refugee "has acquired a new nationality, and enjoys the protection of the country of his new nationality".


That is not so for Palestinian refugees, who maintain refugee status even though they are nationals of states both willing and able to protect them. There are an estimated two million Palestinians who have refugee status with UNRWA despite having Jordanian nationality.


Third, Palestinian refugees need only to have been living in British Mandate Palestine for two years, between June 1946 and May 1948, to be eligible for UNRWA refugee status. They did not have to have nationality or even permanent residence in British Mandate Palestine to be considered UNRWA refugees.


Others must have nationality in the country where they claim a fear of persecution in order to qualify as refugees. Only those persons who have no nationality can claim refugee status against a country where they have habitual residence. Jewish refugees from Arab countries have lived in those countries for millenia.


Fourth, persons claiming refugee status who are not Palestinian are excluded from refugee protection if they have the substantive rights of nationality of the country in which they have taken up residence, even if they are not nationals. That is not the case for UNRWA, which has no such exclusion clause.


There are approximately half a million Palestinian refugees in Syria, who, according to the UNRWA Web site, "enjoy many of the rights of Syrian citizens." The situation of Palestinians in Syria right now is not a happy one, because of the civil war. However, there is no reason to believe that their situation after the war, no matter who wins, would be any different from what it was before the war.


Fifth, other refugees are considered to have local integration as a durable solution. According to the Office of the United Nations High Commissioner for Refugees (UNHCR), "there is no formal hierarchy among the durable solutions." Resettlement and local integration have the same status as durable solutions as does voluntary repatriation. The UNHCR states: "Particularly in postconflict situations, it may take quite some time before peace and order are fully reestablished . . . In such situations, refugees . . . may be better served by local integration or resettlement."


Palestinian refugees in the West Bank and Gaza are locally integrated. In principle, then, because of that local integration, they should no longer need the aid of the international community to seek a durable solution. There are 1.1 million Palestinian refugees in Gaza and about 900,000 in the West Bank for whom UNRWA provides assistance, protection, and advocacy.


The only population of refugees under the mandate of UNRWA who arguably do not have a durable solution where they now live is Palestinian refugees in Lebanon. UNRWA, in fact, reports that "Palestine refugees in Lebanon do not enjoy several basic human rights." In spite of that finding, the position of the government of Canada is that Palestinian refugees have a durable solution in Lebanon.


In the case of El Biqai, a Palestinian refugee applied to come to Canada but was refused by the local Canadian visa office on the grounds that he was receiving protection and assistance from UNRWA. The Refugee Convention excludes from its ambit refugees who receive the protection or assistance of another UN agency. The Canadian Federal Court, in October 2005, set aside this decision by consent, which was given on the basis that this Refugee Convention exclusion had not been legislated in Canada. The refugee was then refused a second time in this appeal, because the visa office considered he had a durable solution in Lebanon. A challenge in the Federal Court of that second decision was unsuccessful.


Sixth, Palestinian refugees, rather than seek local integration as durable solution, claim a right of return. This is an assertion of the right of Palestinians to move to Israel permanently from wherever they are, whatever their status is now in the territory in which they live, and whatever their status is or was in Israel.


If one thinks of this right being asserted generally, what is it? It seems to be the right of descendants to move to the country that now has jurisdiction over the territory in which their ancestors once lived. Yet, one would scour the international instruments in vain looking for such a right. Palestinian rights activists assert this right for Palestinians, but neither they nor anyone else asserts this right for any other group.


Hanan Ashrawi asserts that, if Jews from Arab countries are refugees, they too should claim a right of return. She asserts this in order to deny the existence of Jewish refugees from Arab countries. The logic of the argument is that Jews from Arab countries are not refugees because, if they were, they would assert a right of return. One answer to that argument is that, no, they would not, because there is no right of return of descendants to the country which now has jurisdiction over the territories in which their ancestors once lived, neither for Palestinians, nor for Jews, nor for anyone else.


There are still alive today many refugees from the Arab wars against the existence of Israel, both Jewish and Palestinian. There is though a difference between these refugees related to the right to return. Jewish refugees from Arab countries are former nationals of countries which still exist. Palestinian refugees are former nationals of British Mandate Palestine, a country which no longer exists. The successor regime for Palestinian refugees is the Arab state which will be created out of the old British Mandate Palestine when and if the Palestinian leadership ever gets round to accepting its own state living side by side in peace with Israel and abandoning its fantasy of conquering or swamping Israel.


Another answer and a seventh difference is that having a right of return and wanting to assert it are two different things. No refugee in his or her right mind would want to assert a right of return to persecution, even where the right exists. Jewish refugees from Arab countries do not want to go back to the countries from which they fled for good reason. They would face the same persecution which caused them to flee and then some.


The very assertion of a right of return is an acknowledgement that the conditions which led to the existence of refugee status no longer hold sway. Under the Refugee Convention, a person ceases to be a refugee if the circumstances in connection with which he has become a refugee have ceased to exist.


A person can not at one and the same time claim to be a refugee and assert a right of return. The two are incompatible. The fact that Palestinians UNRWA mandate refugees do both highlights the strange and artificial international regime in which these refugees are embedded.


Palestinians who fled British Mandate Palestine during the war which led to the creation of Israel can not now move to Israel. What stops them though is not the risk of persecution on return. It is rather the fact that the state of which they were nationals, British Mandate Palestine, has ceased to exist. The successor state of which they were the intended nationals never came into being.


This is not though a refugee problem. It is rather, at least for some Palestinians, a problem of statelessness. The solution is the same as it always was since 1947, the creation of an Arab state out of British Mandate Palestine in the West Bank and Gaza living side by side in peace with Israel.


Eighth, other refugees, including Jewish refugees from Arab countries, have resettlement as a durable solution. Then Prime Minister Jean Chrétien in April 2000 and Foreign Affairs Minister John Manley in January 2001 offered to resettle Palestinian refugees in Canada. PLO spokesman Ahmed Abdel Rahman rejected the Prime Minister's offer, saying, "We reject any kind of settlement of refugees in Arab countries, or in Canada". John Manley, in response to his offer, was burned in effigy near the West Bank city of Nablus. Hussum Khader, head of the largest Palestinian Fatah militia in Nablus, said, "If Canada is serious about resettlement, you could expect military attacks in Ottawa or Montreal."


Ninth, every other refugee, in order to be eligible to seek protection from the international community has to renounce armed activity. A determination has to be made of the genuineness of that renunciation. That is certainly not the case with UNRWA and Palestinian refugees. There is no ineligibility provision based on intent to use force, or actual use of force.


Tenth, nonPalestinian refugees cannot be complicit in acts of terrorism. The Refugee Convention excludes those about whom there are serious reasons for considering that the person has been guilty of acts contrary to the purposes and principles of the United Nations; terrorism is such an act. That is not true, though, of Palestinian refugees. UNRWA has no exclusion or ineligibility clause based on complicity in terrorist acts.


Support for the rights of Palestinian refugees who, but for the fact they were Palestinians would not be refugees, is anomalous enough when one compares Palestinian refugees with the global refugee population. The contrast is even more striking when one compares Palestinian refugees with Jewish refugees created by the same armed conflict.


There were more Jews displaced from Arab countries by this conflict than Arabs from the territory that now forms Israel. Folke Bernadotte, in his mediation report to the United Nations of October 1948, reported that there were 472,000 Arab refugees created by the conflict. He expected the number to rise to slightly over 500,000. Jews forcibly displaced from Arab countries because of the conflict numbered 820,000. There were an additional 57,000 Jews forcibly displaced from Iran.


Moreover, Jews forcibly displaced from Arab countries and Iran were real refugees and not artificially defined ones. The Office of the United Nations High Commissioner for Refugees took the position that these victims "may be considered prima facie within the mandate of this office".


When it comes to advocacy of Palestinian refugee rights, however, redress for Jewish refugees typically is forgotten. The focus on one refugee population to the exclusion of the other when both were generated by the same conflict is an indicator that pursuit of respect for rights is not the primary objective.


We can see that the focus of Palestinian refugee advocates is not human rights not just because they neglect the cause of Jewish refugees. They also neglect the cause of Palestinian refugees, real refugees.


There are real Palestinian refugees, Palestinians who fit squarely within the United Nations Refugee Convention definition, but they are not refugees within the jurisdiction of UNRWA. They are refugees from the West Bank and Gaza fleeing Hamas, the Palestinian Authority and non-state extremists against whom the Palestinian Authority offers no protection. These refugees make protection claims in Canada and are often accepted. I see them in my law practice.


If you are a Palestinian and you advocate in the West Bank or Gaza what I am asserting here, you too could become a Palestinian refugee, a real refugee with a well founded fear of persecution. Anyone in the West Bank or Gaza who shows any sympathy for Zionism faces grave danger. Where are the Palestinian refugee advocates when the rights of these people are violated?



Not every Jewish person who came to Israel from an Arab country was a refugee or displaced person. Some came willingly, enthusiastically, without fear or constraint. However, the existence of some such people does not contradict the existence of others who were forced out of the countries where the ancestors had lived for millenia.


Justice for Jews from Arab countries concerns more than Jews from Arab countries. It concerns Jews world wide, the State of Israel, human rights and peace.


Stan Urman wrote:




"Arab states colluded in their treatment of Jewish populations in Arab countries and in their antiIsrael representations to the United Nations. ... there seems to be no distinction between antiZionism and antiSemitism at the UN.





The Palestinian leadership both denies the existence of Jewish refugees from Arab countries and asserts that the subject is not properly a matter of discussion in Palestinian Israeli peace talks, since Jewish refugees did not come from British Mandate Palestine. Yet, there were lots of Jewish refugees from within British Mandate Palestine. Stan Urman wrote:




"Jewish refugees were precipitated during the conflict that was taking place in Palestine, before and after the UN Partition Plan. In the months before Israel declared statehood, twelve Jewish settlements and villages were overrun or had to be evacuated. Those included the Jewish Quarter of the Old City in Jerusalem and the four settlements of the Etzion Bloc. On November 29 1947, immediately after the adoption of the UN Partition Plan, a wave of attacks on Jews took place throughout the region. The most serious attacks took place in three main towns - Jerusalem, Haifa and on the borderline between Jaffa and Tel Aviv. Overall, it is estimated that this conflict precipitated between 40-50,000 Jewish refugees in Palestine/Israel."





Even if there had been no Jewish refugees from British Mandate Palestine, Jewish refugees from Arab countries should still be discussed at Palestinian Israeli peace talks. Both Palestinian and Israeli refugee populations want redress. Redress is not the same as compensation. Redress includes recognition of the existence of the two refugee populations.


A peace treaty which endorses the myths which fuel war propaganda, incitement to hatred and terrorism provides a recipe for its own destruction. Palestinian recognition that there were two refugee populations from the wars against the existence of Israeli is a necessary foundation for a lasting peace.



David Matas is legal counsel to Justice for Jews from Arab Countries and an international human rights, immigration, and refugee lawyer based in Winnipeg, Manitoba, Canada.



E. Conclusion


D. Palestinian and Jewish refugees



C. Claimed Palestinian rights and Israeli wrongs



B. The global impact of anti-Zionism



A. The global impact of antisemitism

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