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David Matas
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International Human Rights Lawyer David Matas: Rights and Redress for Jewish Refugees from Arab countries

Jewish refugees, at the time of their displacement, met the standard international law definition of refugees found in the Refugee Convention. Palestinian refugees, in contrast, are not refugees in the standard international law sense

by David Matas, posted May 16, 2013


[Editor's note:The following is  David Matas's Submission to the Standing Committee on Foreign Affairs and International Development, May 2, 2103, Ottawa. David Matas is a Winnipeg based international human rights lawyer and honorary legal counsel for Justice for Jews from Arab countries.]

Jewish refugees from Arab countries are entitled to recognition of their rights and acknowledgement of the violation of those rights.  They are further entitled to redress for those violations.  It would be an injustice if the rights of Palestinian refugees were recognized and their rights redressed and yet the rights of Jewish refugees were ignored and their violations not redressed when both sets of violations arose from the same conflict.

The international definition of a refugee applies to Jews displaced from Arab countries. A refugee is a person who "owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country..."

a) The UNHCR
On two occasions, in 1957 and again in 1967, the United Nations High Commissioner for Refugees (UNHCR) determined that Jews fleeing from Arab countries were refugees who fell within the mandate of the UNHCR.
 "Another emergency problem is now arising: that of refugees from Egypt. There is no doubt in my mind that those refugees from Egypt who are not able, or not willing to avail themselves of the protection of the Government of their nationality fall under the mandate of my office."

 "I refer to our recent discussion concerning Jews from Middle Eastern and North African countries in consequence of recent events. I am now able to inform you that such persons may be considered prima facie within the mandate of this Office."

b) Multilateral Initiatives
In the context of references to Middle East negotiations, there are many references to the need to include Jewish refugees and remedy their plight.  Some of these occurred in the context of multilateral initiatives.

The Madrid Conference, first convened in October 1991, launched direct negotiations between Israel and many of her Arab neighbours.  In his opening remarks at a conference in the Madrid process held in Moscow in January 1992, then U.S. secretary of state James Baker made no distinction between Palestinian refugees and Jewish refugees. In articulating the mandate of the Madrid process Refugee Working Group he said:
 "The refugee group will consider practical ways of improving the lot of people throughout the region who have been displaced from their homes." 

The Roadmap to Middle East peace currently being advanced by the Quartet (the U.N., EU, U.S., and Russia) also refers in Phase III to an "agreed, just, fair and realistic solution to the refugee issue", language applicable both to Palestinian and Jewish refugees.

c) Bilateral Arab Israeli Agreements
• Israel - Egypt Agreements
The Camp David Framework for Peace in the Middle East of 1978 (the Camp David Accords) includes  a commitment by Egypt and Israel to "work with each other and with other interested parties to establish agreed procedures for a prompt, just and permanent resolution of the implementation of the refugee problem."

The Israel - Egypt Peace Treaty of 1979 provides that the "Parties agree to establish a claims commission for the mutual settlement of all financial claims."   Those claims include those of former Jewish refugees displaced from Egypt.

• Israel - Jordan Peace Treaty, 1994
The Israel - Jordan Peace Treaty, entitled "Refugees and Displaced Persons" recognizes  "the massive human problems caused to both Parties by the conflict in the Middle East". Reference to massive human problems in a broad manner means that the plight of all refugees of the conflict in the Middle East includes Jewish refugees from Arab countries.

• Israeli Palestinian Agreements, 1993
Almost every reference to the refugee issue in Israeli Palestinian agreements, talks about refugees, without qualifying which refugee community is at issue, including the Declaration of Principles of 13 September 1993 , and the Interim Agreement of September 1995 , both of which refer to refugees as a subject for permanent status negotiations, without qualifications.
d) Recognition by states
•  After the rights of Jews displaced from Arab countries were discussed at Camp David II in July, 2000, former U.S. President Bill Clinton stated:
 "There will have to be some sort of international fund set up for the refugees.  There is, I think, some interest, interestingly enough, on both sides, in also having a fund which compensates the Israelis who were made refugees by the war, which occurred after the birth of the State of Israel. Israel is full of people, Jewish people, who lived in predominantly Arab countries who came to Israel because they were made refugees in their own land".

• Former U.S. President Jimmy Carter, after successfully brokering the Camp David Accords and the Egyptian Israeli Peace Treaty, stated in a press conference on Oct. 27, 1977:
"Palestinians have rights ... obviously there are Jewish refugees ...  they have the same rights as others do."

• Canadian Prime Minister Paul Martin stated, in a June 3rd, 2005 interview with the Canadian Jewish News which he later reaffirmed in a July 14, 2005 letter:
 "A refugee is a refugee and that the situation of Jewish refugees from Arab lands must be recognized. All refugees deserve our consideration as they have lost both physical property and historical connections. I did not imply that the claims of Jewish refugees are less legitimate or merit less attention than those of Palestinian refugees." 

e) Distinctions
While there is an imperative to address the plight of Jewish refugees along with Palestinian refugees, the two refugee populations are not the same.  There are significant legal differences between Jewish refugees from Arab countries and Palestinian refugees. 

Jewish refugees, at the time of their displacement, met the standard international law definition of refugees found in the Refugee Convention.  They are people who at the time of their displacement had a well founded fear of persecution by reason of the fact that they are Jewish. 

Palestinian refugees, in contrast, are not refugees in the standard international law sense.  This is so in a variety of ways.  By pointing out these differences, we do not mean to suggest that Palestinians artificially labelled refugees do not justify our concern or that they have not suffered.  On the contrary, the very quarantining to the label and life of refugees has been a large part of the plight of the Palestinians which needs alleviation.  The distinctions between the Palestinian and Jewish refugee populations both highlight the unfair limitation to the life of refugees which has been inflicted on Palestinians and the real criteria for refugees which Jews from Arab countries have met.

By way of example:
1)  The United Nations Relief and Works Agency (UNRWA), dedicated to Palestinian refugees, utilizes criteria for its definition of a Palestinian refugee which are different from the UN Refugee Convention definition.  Palestine refugees are persons 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. UNRWA's services are available to all those living in its area of operations who meet this definition, who are registered with the Agency and who need assistance.

The UN Refugee Convention definition is generic, a universal standard applicable to all. UNRWA's definition is tied to a geographic location (Palestine), and for the benefit of a narrowly delineated target population. The UNWRA definition is exclusively for Palestinian refugees.

2)  Unlike other refugees, including Jewish refugees, the status of Palestinian refugees is hereditary. The UNRWA Web site states that "the descendants of the original Palestine refugees are also eligible for registration." 

The Office of the United Nations High Commissioner for Refugees recognizes derivative refugee status under the principle of family unity.  A person who obtains that status as a child can maintain it after reaching the age of majority .  The descendants of Jewish refugees from Arab countries do not inherit the refugee status of their parents.

3) For all of the world's other refugees, the UN Convention Relating to the Status of Refugees ceases to apply to a person, who "has acquired a new nationality, and enjoys the protection of the country of his new nationality" .  The UNRWA Consolidated Eligibility and Registrations Instructions say that Palestinians maintain their status as refugees, even though they may have obtained citizenship of another country.

For every other refugee, including Jewish refugees from Arab countries and Iran, refugee status is a form of surrogate protection, where there is no state of nationality able or willing to protect.  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 .

4) The duration of residency is different. All the world's other refugees including Jewish refugees from Arab countries, must have nationality or habitual residence in the country where they claim a fear of persecution in order to qualify as refugees .   UNRWA in contrast requires a short residency requirement.

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 habitual residence in British Mandate Palestine to be considered UNRWA refugees. 

f) Redress
Jews from Arab countries are entitled to invoke the right to redress because of the injustices inflicted upon them that caused their displacement.  

Mere acceptance of the validity of our assertions of rights and violations are, in a sense, themselves a form of redress, indeed the form of redress we most seek. Nonetheless, one has to distinguish recognition of a right and its violation on the one hand, and awarding redress on the other.  On the issue whether there is a right, whether there has been a violation, there can be no compromise or half way measures.  Either the right exists or it does not.  Either there has been a violation or there has not.

However, when it comes to redress, there is a wide array of possibilities.  The distinction between rights and redress is similar to the distinction between liability and damages or between conviction and sentence.  Once liability is established damages can take a wide variety of forms.  Once a person is convicted, the criminal can receive a wide variety of sentences with different options for redress for the victims.

For Jewish refugees from Arab countries, redress can take many forms. By way of example:
• In South Africa, to redress past injustices, Truth and Reconciliation Commissions were established where the white minority had to acknowledge the historical narrative, and accept responsibility for their ill treatment of the black majority. The Arab world has never acknowledged, nor assumed responsibility for the ill treatment, and displacement of their Jewish populations.
• Redress might be establishing Chairs at prominent universities to promote and preserve the rich Sephardic heritage and legacy.
• Redress could entail the establishment of Foundations to protect and preserve holy sites in Arab countries where there are no longer any Jews or Jewish communities; or
• Redress could also be compensation, because it there is to be compensation for one refugee population   Palestinians   there must also be compensation for Jewish refugees from Arab countries.

  Redress, ultimately, will be decided by the parties directly involved in the negotiations.  Canada, as a country committed to equity and the rule of law, can not be indifferent to the result.  Canada should support the principle that, in Middle East peace negotiations, all refugees should be treated with equity and justice. 

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