The Plight of Palestinian Refugees

Introduction

With regards to refugee status determination, Palestinians are uniquely positioned under international law. This unique position goes back to the Arab-Israeli war in 1948, when thousands of Palestinians fled to neighbouring Arab states after the ‘Nakba’ and were consequently forced to leave their homes in the previous Mandate Palestine. Following the war, in 1949, the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) was created per Resolution 302 (IV) as part of a subsidiary branch of the General Assembly. The purpose of this agency was to safeguard those who were displaced and uprooted from the West Bank, including East Jerusalem, the Gaza Strip, and the Golan Heights.

The continued importance of this historical context quickly comes into view when examining Article 1 (D) of the Refugee Convention: This provision states that the protections under the Refugee Convention do not apply to those who receive from organs or agencies of the UN. Because, following this article, an individual cannot secure refugee status in a third country if they rely on the UNRWA, this provision has often been referred to as an exclusion clause. In this piece, I will unpack the problematic language of Article 1 (D), considering specifically its narrow applicability and high threshold for those seeking international protection. Building on this, I will expand on the situation of asylum seekers coming from the West Bank and complications arising out of the socio-political backdrop.

The UNRWA’s Significance

The value of the UNRWA’s work cannot be overstated. It has assisted generations of Palestinian refugees for 75 years, particularly in the fields of education, technological development, and social and health services. In fact, the UNRWA’s assistance is so substantial that it outperforms the Office of the United Nations High Commissioner for Refugees (UNHCR), which does not provide nearly the same level of humanitarian assistance (despite its mandate over durable solutions).The smooth functioning of the UNRWA has been significantly hampered since the war in Gaza began. This has been evidenced by studies investigating shifts in the delivery of supplies via trucks en route to Gaza from Jordan, where the main headquarters of the UNRWA are located. Major challenges presented themselves whenever UNRWA trucks had to cross several borders (Jordan-Israel border and Israel-Egypt border) to reach the Rafah Crossing, a vital aid route. Since the blockade in early March, imposed by the Israeli authorities, with no humanitarian nor commercial supplies  entering since, the UNRWA continues to provide essential resources to the best of their abilities. Even so, supplies are perilously decreasing.

With Israel’s Knesset’s more recent order from January 2025 for the cessation of the UNRWA’s operations not only in Gaza but also in East Jerusalem, the situation has deteriorated further. In concrete terms, and because the UNRWA relied on funding from UN Member States, regional governments, and the EU, the blockage of foreign support in 2024 led to substantial repercussions in the form of an estimated $450 million shortfall that same year. However, this has now been mitigated by the resumption of funding in mid-2024, when the EU, Germany, Sweden, Japan, France, Canada, and the United Kingdom (among others) have reinstated their support.

The UNRWA under Article 1 (D) of the Refugee Convention

The above-mentioned Article 1D states that the Refugee Convention ‘shall not apply to persons who are at present receiving from organs or agencies of the United Nations’ other than the UNHCR, and – when such protection has ceased – such persons shall ipso facto be entitled to the benefits of the Convention. This exclusion clause was inserted in an attempt to avoid overlaps in competencies between the UNHCR and other agencies of the UN. It is meant to help distinguish between those who need refugee status and those who do not (Articles 1(E) and (F)). Since there is no other UN agency which has a specific refugee protection mandate besides the UNRWA, Article 1(D) relates exclusively to Palestinian Refugees. The travaux préparatoires of the Convention confirm this, documenting that Article 1 (D) was drafted with Palestinian refugees in mind.

Article 1 (D) has been interpreted restrictively, as evidenced in the case of SN and LN. This case involved a stateless mother and child from Gaza, who had fled to multiple countries before eventually arriving in Bulgaria. The Bulgarian authorities refused their asylum application because the situation in Gaza, at the time, was not sufficiently grave (paragraph 30). A second asylum application, asking authorities to reconsider in light of the fact that the UNRWA’s assistance had ceased was also rejected (paragraph 31). This was because the Bulgarian authorities found that the applicants would not face the risk of death, persecution, and torture (paragraph 40). The CJEU established a high threshold in this case, which involved the applicant proving that when living in Gaza, the UNRWA must have been incapable of assisting them. Paragraph 78 of the case, however, mitigates this: The Court concluded that the general situation, the applicant’s state of vulnerability, and dignified living conditions are all factors which determine the UNRWA’s (in)ability to assist the applicant. Applicants therefore do not have to prove that they have been personally impacted by the general situation, somewhat alleviating the evidentiary burden placed on Palestinian refugees. Nevertheless, the Court’s approach towards Article 1 (D) for Palestinian refugees remains rigid: The UNRWA’s inability to aid the applicants had to be proven (by the applicant) both when the applicants left Gaza, and at the time of potential return. If Palestinian refugees are entitled ‘ipso facto’ to refugee protection when the UNRWA ceases its operations as Article 1 (D) states, then having to prove that they would face the risk of death, persecution, and torture upon their return, as was required of SN and LN, should not apply, given the protracted and variable context in Gaza.

What about Palestinians from the West Bank?

It is not a novelty that Palestinians are subject to the effective control of Israel, as per Article 42 of the Hague Regulations. Relatedly, the fact of effective control exercised by Israel was recognised in the 2024 ICJ Advisory Opinion, where the court acknowledged the role of forcible territorial acquisition of territory, the perpetuation of permanent control over the Occupied Palestinian Territories (OPT), and continuous violations of the Palestinian people’s rights to self-determination (paragraph 252-258). The findings in this opinion could carry significant legal weight for asylum claims from Palestinians based in the West Bank, especially where the claims are lodged with reference to political persecution.

A specific problem attaching to the seeking of asylum in third countries by Palestinians from the West Bank is that when their claims are successful and they are recognised as refugees under Article 1 (A) of the Refugee Convention, this may negatively impact the legitimacy of the Palestinian Authority (PA). The struggle for sovereignty, statehood, and security of the Palestinian homeland could thereby be undermined. This is pivotal considering the Tenth emergency special session from May 2024, calling for Palestine’s membership to the United Nations, with an emphasis on independence and self-determination.

In the context of the long-standing right of self-determination, the importance of maintaining the right to return, which has also been established as a rule of customary international law, comes into clear view. Inherent in the right to self-determination is the autonomy of the people to freely choose their political, economic, social, and cultural pursuits. This has been recognised prior to the Mandate period, where promises of independence were made in the Hussain-McMahon correspondence of 1915. Faulty assurances continued on after Prime Minister Churchill’s white papers, where Palestinian self-governance was subordinated to the establishment of a Jewish National Home. With calls for self-determination carrying a historical foundation, it is imperative that a physical Palestinian presence in the OPT remains, in order to discourage a Palestinian exodus.

While alternative instruments exist that comprise more holistic understandings of who qualifies as a refugee, such as the OAU Convention, such instruments carry a limited scope of application. As a regional instrument supporting the 1951 Convention, the OAU Convention contains a definition of the term ‘refugee’ that provides greater depth than the one featuring in the 1951 Convention. For example, taking into account circumstantial elements, the term ‘refugee’ also applies to individuals under external aggression, foreign domination, occupation and so forth. In this way, interpretations focusing on risks to the individual arising from socio-political factors can be considered alongside the individualised risk as comprised in the 1951 Convention. Therefore, additional elements supporting the criteria in Article 1 (A) would benefit Palestinian refugees when applying for international protection, because their asylum claims need not exclusively rely on political persecution but could be based on other grounds, such as the ones set out in the OAU Convention. However, individuals covered by the OAU Convention can benefit from protection only as long as they remain in Africa.

Conclusion

Under international refugee law, it is evident that Palestinians carry a special status with reference to asylum claims. This has been demonstrated threefold: Article 1 (D) is specific to Palestinian refugees, who are not directly entitled to the UNHCR mandate; the exclusion clause of Article 1 (D) persists, as long as the UNRWA is able to operate; and lastly, refugee status is granted ipso facto, though in light of the importance of maintaining the right to return, potential returnability must simultaneously be assessed. Article 1(D) can be viewed as a reflection, and result, of the restriction of the fundamental rights of the Palestinian people, including economic, social, and political rights. Given the decades-long conflict which has led to internal displacement and the establishment of refugee settlements within its own territories, much consideration should be given to the nature behind Palestinian claims for asylum, which would be supported by more inclusive definitions of when to grant refugee status. At the same time, those who wish to leave due to persecution are still facing disproportional hurdles: Because the functionality of the UNRWA is subject to change, having to include a temporal assessment of the UNRWA’s operations in the OPT to secure asylum is difficult. Despite this, and because the establishment of the general situation (rather than specific, personal circumstances) in the OPT suffices as proof that the UNRWA’s operations have ceased, refugee protection can now be achieved more humanely and with greater efficiency for Palestinian refugee applicants.