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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

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Publisher: Spivak's Jewish Review Ltd.

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