Michael Kohler

When a Refugee is not a Refugee

“Hello all – I have a Palestinian refugee born in Jordan with a passport from Egypt who needs legal assistance in Jordan…thanks for any referrals!”

When a fellow immigration lawyer recently posted the above query in a message board seeking assistance, I bet she never imagined someone would read her request and chuckle.  Yet I did.  The reason is because with more than 27 years of experience as an immigration attorney both for the U.S. government and in private practice, I know a little something about asylum and refugee law, and that question, well, just sounds ridiculous to me.

Let me just say, I am not disparaging the attorney who posed the question or the client in need of assistance.  The client likely is classified as a “Palestinian refugee,” and the attorney is just trying to locate local counsel to assist him obtain status in the United States.  Had this client contacted me, I would likely be doing the exact same thing for him.

And the chuckle was not a “ha-ha” isn’t that funny chuckle.  It was an awkward, “here’s my worlds colliding,” nervous-laughter, sort of chuckle.  The reason is because that individual mentioned above is not a “refugee.”  He might be a “Palestinian refugee” but using the legal standards for “refugee” applicable to anybody on earth, who is not Palestinian, he is most certainly not a “refugee.”  That’s correct.  Palestinians have a definition of “refugee” and framework for its implementation applicable only to them.  And therein lies the problem.

And that problem is the single, biggest obstacle to peace between Israel and the Palestinians.  The “right of return” for approximately 6-7 million Palestinian refugees to Israel remains an absolute, non-negotiable demand of any potential peace deal with Israel.  This was historically and tragically demonstrated most recently by both Yasser Arafat in 2000 at the Clinton-Barak-Arafat Camp David Summit, and by Mahmood Abbas in 2008 in his negotiations with Prime Minister Olmert when they both walked away from deals that included the return of over 90% of disputed territories and compromises on the final status of Jerusalem because neither deal went far enough, in their opinions, on the issue of the return of Palestinian refugees.  Israel’s acquiescence to this demand is, of course, a non-starter as it would necessarily mean the end of Israel and the attainment of the Arabs goal sought in 1948 and shouted gleefully in the streets today of a “Free Palestine, From the River to the Sea.”

So how did this refugee issue come about and how has it become a harder problem to solve than territorial concessions or the status of Jerusalem?  That’s an easy answer: the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) and all those nations and international bodies that created and continue to support it – including the United States.

To fully explain, a (partial) examination of refugee law is necessary.

UNRWA Definition of Palestinian Refugee

On December 8, 1949, the U.N. General Assembly created UNRWA, whose mandate continues to this day, to provide services, such as education, health care, relief and other social services to “Palestinian refugees” defined as:

persons [or descendants of persons] whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 War.

UNHCR Definition of Refugee

For everyone besides Palestinians, refugee issues are handled internationally by the United Nations High Commissioner for Refugees (UNHCR).  Following World War II, the UNHCR was created to assist with the millions of the displaced and to ensure that incidents like that of the MS St. Louis – when hundreds of Jews fleeing Nazi Germany were denied entry to Cuba and the United States and were returned to Europe where many were killed in the Holocaust – would never happen again.

In 1951, the Convention Relating to the Status of Refugees was adopted, which defined a “refugee” as someone who:

owing to 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 [their] nationality and is unable or, owing to such fear, is unwilling to avail [themself] of the protection of that country; or who, not having a nationality and being outside the country of [their] former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Significantly, though adopted in 1951, after the creation of UNRWA, the UNHCR convention specifically did not incorporate UNRWA.  Instead, it allowed the two frameworks to exist simultaneously – a mistake, in my opinion, that needs to be addressed now.

Comparison of the UNRWA and UNHCR Refugee Frameworks

Besides the obvious substantive differences in these two definitions, there are several significant distinctions in the overall framework of each that must be highlighted:

Who Wrote the Definition – As opposed to the UNCHR Convention containing the definition of “refugee” that was approved by a vote of 24 nations in favor with zero against and zero abstentions, the U.N. Resolution creating UNRWA did not define “Palestinian refugee. Instead, UNRWA itself has defined on its own what that term means and who it encompasses allowing it to include the ironic, and absurd concluding phrase, “as a result of the 1948 War.”  No, you are not imagining that. “Palestinian refugees” are defined by UNRWA as those, “who lost both home and means of livelihood as a result of,” a war that they started.  On May 15, 1948, the Palestinians rejected the U.N. Partition Plan that would have created the very state they seek today and instead initiated a war to annihilate the Jewish State of Israel.  I hope the obvious does not escape anyone – 75 years later, the world is still tragically addressing a refugee problem the Palestinians created as the result of a war they started.

Descendants – After several revisions to their own definition – which they apparently can do since they wrote the definition – UNRWA extends “Palestinian refugee” status to all descendants of Palestinian male refugees. This is why the original 400,000 – 750,000 (estimates vary) Palestinians who were present in the relevant areas during the relevant times has now grown to close to 7 million people now considered “Palestinian refugees.”  This is in stark contrast to the UNHCR framework and U.S. law, which extends refugee status to the spouse and minor children of an individual who first meets the substantive requirements.  In every situation on earth, a refugee population decreases through the passage of time, while the Palestinian refugee population continues to multiply and grow.

When One Ceases to be a Refugee – Under the UNHCR and United States’ legal framework, concepts like “firm resettlement” (when a person has received an offer of permanent resident status, citizenship or some other type of permanent resettlement they are no longer entitled to refugee protection) and “dual nationality” (a dual national must establish refugee status as to both countries to be afforded protection) abound. These concepts contemplate that while one may have tragically been considered a refugee at one point in time, subsequent and intervening events may make that distinction no longer relevant or appropriate.  Exhibit A: When 600,000 Jewish refugees were forcibly expelled from every Arab country in 1948 are firmly resettled and granted a new nationality in Israel, they are, appropriately, no longer considered refugees.

No such provisions under the UNRWA framework exist.  Once a Palestinian refugee, always a Palestinian refugee.  I will not and could not address every situation in every territory and country surrounding Israel.  There are internal political considerations and larger regional considerations at play.  But the fact that most of the 2-3 million Palestinians in Jordan have citizenship there, yet Jordan and the UNRWA still considers them refugees with a right to return to what is today Israel, just makes zero sense.  That would not be the case under the UNHCR framework and should not be the case here.

Long Term SolutionsAccording to the UNHCR website, seeking long-term solutions such as voluntary repatriation, resettlement and integration is central to its mandate with the ultimate goal of finding a solution that “leave[s] uncertainty behind and begin[s] to rebuild their lives in peace, dignity and with renewed hope for the future.”

Not so with UNRWA.  UNRWA claims that they only provide services to Palestinian refugees and are not mandated to seek durable solutions.  Technically, that might be correct, yet they openly advocate for the “right of return” as the preferred solution, which as explained above, is not a solution.  It is a recipe for the elimination of Israel.

Plus, it should not be lost on anyone that should there be a different, workable long term solution, there would no longer be the need for UNRWA, and the $1.2 billion annual budget would vanish.  That alone provides sufficient motivation for those running UNRWA to maintain the status quo.

The significance of these distinctions can no longer be glossed over or ignored, because, as I argued before, they go to the heart of one of, if not THE, greatest stumbling blocks to lasting Israeli-Palestinian peace.

What’s the Solution?  Maybe not so easy, but certainly obvious. UNRWA must be disbanded, its entire framework discarded, and the issue must be examined under the UNHCR standard and framework.  Whether it’s the United States, European Union, or moderate Abraham-Accord states such as the UAE and Bahrain, they must find a way – most likely through significant financial considerations and then other concessions likely from Israel – to convince the Palestinians and the surrounding Arab countries that they must simply face reality.  Their solution to the Palestinian refugee issue is not reasonable, it is not rational, it is not sustainable, and it is not a solution at all.

While researching and writing this piece, I came across this article in Foreign Policy and even a Congressional Bill introduced in 2018 that raised and dealt with this very issue and proposed solution.  It will not be an easy conversation, an easy negotiation or an easy sell, but if there is ever to be a lasting peace in the area, the Palestinian refugee issue must be addressed head on.  And sooner rather than later.

As a suggestion, a potential starting point for those tough conversations could go something like this:

Dear UNRWA –

As you are aware, the IDF is currently operating in Gaza.  For every gun, bullet, RPG, rocket, or other piece of military equipment they find in a UNRWA facility, or worse, in the home of a UNRWA employee, your budget will be reduced by $1 million.  These are not the type of “services” contemplated in your founding resolution.  And, if things continue on their current trajectory, your budget will shrink and will soon become a deficit.  I think it’s time to have a conversation about the continued viability of your agency and finding a long-term, reasonable solution to the Palestinian refugee issue.

Sincerely, The Rational, Realistic World

I sure hope this conversation begins and the issue is addressed, as it must.  If not and if nothing changes, in a few years when I learn the client mentioned above became a U.S. permanent resident and then a U.S. citizen – and would still be considered a Palestinian refugee with the understanding that he retains the right to one day return to Israel – I will not know whether to chuckle, or cry.

About the Author
Michael Kohler is on the Long Island Regional Board of the American Jewish Committee, is committed to strengthening the relationship between US Jews and Israel, and professionally works as an immigration attorney on Long Island, N.Y. The opinions expressed are personal and do not reflect those of AJC or any other group or organization.