September 10, 2006

VIII. Closed Borders and Lack of Resettlement Alternatives

Background: The Protection Gap for Palestinian Refugees

Palestinian refugees are not the only population under specific threat inside Iraq. Many other minority communities, like the Mandaeans and Chaldeans, also find themselves under frequent attack, and have fled the country in large numbers. Ordinary Iraqis, Shi`a and Sunni, are also fleeing the armed conflict and criminal violence inside Iraq: there are probably from 500,000 to one million Iraqis currently living in Jordan, and a similar number in Syria, with a smaller number in Lebanon. However, the Palestinian refugee situation is unique because of their inability to seek refuge either in neighboring countries or elsewhere: neighboring countries keep their borders largely closed to them, Israel refuses to allow them to return, and resettlement options in other countries have been largely unavailable to them. To understand their situation, a closer look at the legal regime covering Palestinian refugees is necessary.

Since the adoption of the Convention relating to the Status of Refugees in 1951 (the Refugee Convention), three "durable solutions" have emerged under international law and refugee policy to enable refugees to put an end to their refugee status and re-establish an effective link in a country. These are voluntary repatriation to the refugee's country of origin, local integration in the country of asylum, and resettlement in a third country.

UNHCR promotes voluntary repatriation (the voluntary return of refugees to their home countries) as the optimal solution to refugee crises. UNHCR has statutory responsibility to seek, promote, and facilitate the voluntary return of refugees to their country of origin.[88]

The right to return to one's own country is a fundamental human right, which is recognized in several international human rights instruments.[89] The right to return is most clearly enshrined in the International Covenant on Civil and Political Rights (ICCPR) under the right to freedom of movement, which includes the right to enter one's own country.[90] The basis for the right to return under international refugee law can be found in the Refugee Convention and its 1967 Protocol, various regional refugee instruments, U.N. Resolutions, and Conclusions of UNHCR's Executive Committee (ExCom).[91]There are also specific pronouncements pertaining to the Palestinian refugees, the most important of which are the U.N. General Assembly resolutions that uphold the right of the Palestinian refugees to return.[92]

To this end, Human Rights Watch has long urged Israel to recognize the right to return for those Palestinians and their descendants who fled or were expelled from territory that is now within the State of Israel or the OccupiedPalestinianTerritories, and who have maintained appropriate links with that territory. This is a right that persists even when sovereignty over the territory is contested or has changed hands.[93]

The Palestinian National Authority (PA) has repeatedly stated its willingness to accept in Gaza those Palestinian refugees fleeing Iraq, and to issue them with PA passports. Israel has refused to participate in such a solution, which it can prevent through its control of the borders of Gaza and the West Bank. UNHCR twice approached Israel to encourage it to allow Palestinian refugees from Iraq to return once in 2003 with a group of six to eight Palestinian refugees with direct ties to Gaza, and a second time in 2006 when it gave Israel a list of Palestinian refugees with direct ties to Gaza who were stuck at the Iraqi-Jordanian border. Israel in both instances denied UNHCR's request to let the Palestinian refugees enter Gaza.[94]

Muhammad Abu Bakr, director-general of the Department of Refugee Affairs of the Palestine Liberation Organization (PLO) in Jordan, told Human Rights Watch in April 2006: "Our position concerning the [Palestinian] refugees in Iraq and elsewhere is that either we receive them inside Palestinian National Authority territories or the [Palestinians fleeing Baghdad] stay near the border and return to Baghdad."[95]He said that the PA was willing to consider interim solutions "to see the easing of their humanitarian suffering," but otherwise stood firmly by its position on the Palestinian refugees.[96]

The durable solution of local integration was never open to Palestinians in Iraq and has not become easier under the new Iraqi government. The success of local integration depends on several factors, including the willingness of the refugees to settle locally and the receptiveness and commitment of the host country and local population towards the integration of the refugee population.[97]

The third durable solution is resettlement, the transfer of a refugee from the country of first asylum to a third country that has agreed to provide the refugee with protection.[98]Resettlement is an appropriate protection strategy for refugees whose safety and security cannot be secured in the country of first asylum or who have special humanitarian needs that cannot be met in the country of first asylum. It is also an appropriate durable solution for those who are unable or unwilling to return to their own country or to locally integrate in their country of asylum.[99] Resettlement is also a mechanism whereby wealthier countries can share the responsibility for the broader refugee problem.[100]

The PLO and the Arab League have rejected in principle and actively discouraged in practice local integration or third-country resettlement of Palestinian refugees. Their view is that local integration or resettlement would negate the right to return of the resettled refugees.[101] The Arab countries hosting large Palestinian refugee populations point to Israel's legal obligation to permit the refugees' return to justify their refusal to integrate the Palestinian refugees and afford them rights equal to their own citizens. Only Jordan has granted its Palestinian refugee population citizenship, breaking with the practice of other Arab states.

Jordan and Syria have (with some exceptions) refused entry to Palestinians who attempt to flee Iraq, in violation of the international legal prohibition against refoulement. When these two countries made temporary exceptions to their policies of refusal, they conditioned admission of Palestinian refugees on their confinement to camps, for example al-Ruwaishid camp in Jordan in 2003, and al-Hol camp in Syria in 2006 (for which, see below). Because of the widely observed policy against resettlement of Palestinian refugees, these camp residents have already waited longer than other refugees fleeing Iraq, such as the Iranian Kurds, for access to third-country resettlement.[102]

Most western states, including the United States and the countries of the European Union, similarly decline to consider Palestinian refugees for resettlement, except for a few "humanitarian cases."[103] At the time of the publication of this report, Human Rights Watch had learned that Canada was considering for resettlement the Palestinian refugees at al-Ruwaishid, but had not made a final decision. However, UNHCR anticipates that Canada will not be able to grant resettlement to all of the Palestinians at al-Ruwaishid, leaving at least some of the Palestinians in continuing limbo.

The 2006 Jordan Border Issue

In March 2006, new groups of Iraqi Palestinians, fleeing the intensified killings and death threats in Baghdad, sought refuge in Jordan. A group of eighty-nine Palestinians, including many women and forty-two children, arrived at the Iraqi-Jordanian border on March 19, 2006, accompanied for their protection by three members of the activist group the Christian Peacemaking Team. They spent the first night on the Iraqi side of the border, sleeping on their buses. After calls to the Iraqi MoI, the group was allowed to cross the Iraqi border the next morning. However, as soon as the group entered the NML, the Jordanian authorities closed the border and prevented the group from reaching the Jordanian border post. One of the group told us:

The Jordanian soldiers prevented us from getting off the bus. They brought tanks and Humvees with Jordanian soldiers. They obliged us to return and we stayed next to the [Iranian] Kurdish camp [located in the NML]. We stayed there for four days in the desert with no food.[104]

The Jordanian authorities completely shut down their border for four days, refusing to allow anyone to cross the border until the Iraqi authorities returned the Palestinian refugees to the Iraqi side of the border.[105] After four days, on March 23, at about 3 p.m., armed Iraqi soldiers ordered the Palestinian refugees to return to the Iraqi side. The Palestinian refugees, defenseless and intent on avoiding a violent confrontation in which many women and children might be caught up, returned peacefully to the Iraqi side of the border, where Iraqi authorities housed them in an abandoned building formerly used as a horse stable. The Iraqi Red Crescent Society (IRCS) provided them with tents and humanitarian assistance. UNHCR assistance arrived on the same day as the IRCS, and UNHCR continued to provide assistance throughout.[106]

Other Palestinians soon joined the original eighty-nine, and the group ultimately grew to more than 200 persons. The Iraqi border authorities tried to stem the influx, refusing to allow new arrivals to enter the makeshift camp established for the Palestinian refugees, instead forcing them to sleep out in the open. When the last group of fifty-four Palestinian Iraqis arrived at the border on April 23, the Iraqi border authorities told them to return to Baghdad, because the Iraqi commander of the border post had decided not to let any more Palestinians join the camp.[107] The new arrivals were forced to stay at the border, until the women and children in the group were moved into the camp during a sandstorm.[108] However, the men were forced to remain outside the camp, sleeping in an abandoned trailer at the border post.

In an interview with Human Rights Watch, the secretary-general of Jordan's Ministry of Interior, Mukhaimar F. Abu Jamous, said that Jordan would not alter its policy of refusing entry to Iraqi Palestinians. He said that Jordan already had a massive Palestinian refugee burden and could not take on additional Palestinians. The official said that because Iraqi Palestinians had no passport, only a Palestinian travel document, there was concern that once Jordan accepted Iraqi Palestinians, they would be unable to leave Jordan again, unlike ordinary Iraqis.[109] To support this, the UNHCR has learned that the Iraqi border officials have stamped the travel documents of Iraqi Palestinians leaving Iraq with "right to exit, no right to return." The Iraqi MoI also stated to the UNHCR that Palestinians who have fled will not have the right to return to Iraq.[110] Abu Jamous of the Jordanian Ministry of Interior stressed that the Iraqi Palestinian issue should be resolved through regional burden sharing, but that even with international financial assistance Jordan would not allow the Iraqi Palestinians to enter its territory.[111]

Syria's Offer to Take Palestinian Refugees

With the renewed crisis at the Jordanian border, the newly elected Hamas-led Palestinian National Authority urged countries in the region to take in Palestinians fleeing Iraq, seeming to break with the position of the PLO that the Iraqi Palestinians should either return to Palestine or remain in Iraq.During his first official visit to Syria, the newly-appointed Palestinian Authority foreign minister, Mahmoud Zahar, announced that he had received a commitment from the Syrian authorities to accept the Palestinians stranded at the Iraqi-Jordanian border.[112]

The Syrian offer was a departure from its previous practice of sealing its borders to Palestinians, much like Jordan. It had previously allowed in a group of nineteen Palestinians, stranded at the Iraqi-Syrian border from October 4 to November 21, 2005, to go to its al-Hol refugee camp (a UNHCR-run camp mostly holding Iraqis), but only after extensive negotiations between UNHCR and the Syrian authorities.[113]

On May 9, 2006, the International Organization for Migration moved the more than 250 Iraqi Palestinians stuck at the Iraqi-Jordanian border to Syria, and Syrian authorities transferred them to al-Hol refugee camp. They should then receive assistance from UNRWA, probably after being moved to an UNRWA-managed camp where movement is less restricted than at al-Hol camp.[114] The Syrian authorities then allowed an additional group of thirty-seven Iraqi Palestinians who had fled directly from Baghdad to the Syrian border to cross the next day.However, since May the Syrians again have closed the Syrian-Iraqi border to Iraqi Palestinians, and as of the time of this report just under 200 Iraqi Palestinians, including children and pregnant women, are stranded at the NML at the Syrian border.[115] By contrast, Iraqi citizens continue to enter Jordan and Syria in large numbers, showing the discriminatory nature of Jordan and Syria's policies towards persons fleeing Iraq.

[88] The basis for these three solutions can be found in international refugee law.UNHCR is mandated in its Statute to seek permanent solutions for refugees, including voluntary repatriation or assimilation into new national communities.Under the Convention relating to the Status of Refugees (the Refugee Convention), 189 U.N.T.S. 150, 1951, entered into force April 22, 1954, international protection for refugees only ceases once a refugee has "re-availed himself of the protection of the country of his nationality"; "acquired a new nationality, and enjoys the protection of the country of his new nationality"; "voluntarily re-established himself in the country which he left or outside which he remained"; or for a "person who has no nationality he is, because of the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence." The Refugee Convention, art. 1(c).Article 34 of the Refugee Convention requires that states shall "as far as possible facilitate the assimilation and naturalization of refugees."

[89] For example, the Universal Declaration of Human Rights in article 13(2) states that "Everyone has the right to leave any country, including his own, and to return to his country."

[90] ICCPR, article 12(4).The Human Rights Committee, the international body that monitors compliance with the ICCPR, in its General Comment on the freedom of movement, "considers that there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country."Human Rights Committee, General Comment 27, Freedom of Movement (Art. 12), CCPR/C/21/Rev.1/Add.9, November 2, 1999, para. 20.

[91] The authoritative 1985 ExCom Conclusion on Voluntary Repatriation confirms "the basic rights of persons to return voluntarily to the country of origin," while the 1994 General Conclusion on International Protection "calls upon countries of origin, countries of asylum, UNHCR and the international community as a whole to do everything possible to enable refugees to exercise freely their right to return home in safety and dignity."

[92] Most often cited is the 1948 resolution 194 (III) that established the United Nations Conciliation Commission for Palestine, which states at paragraph 11:

the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law and in equity, should be made good by the Government or authorities responsible.

[93]Human Rights Watch's policy on the right to return is set out at: http://www.hrw.org/campaigns/israel/return/, and also in letters sent in 2000 to then Israeli Prime Minister Ehud Barak, the late PLO Chairman Yasser Arafat, and then U.S.-President Bill Clinton, available online at http://hrw.org/english/docs/2000/12/22/isrlpa579.htm. As noted in the latter, issues to be considered include returnee rights to settlement in the vicinity or to compensation when the former home no longer exists or is occupied by an innocent third party; and that claims of a right to return are resolved fairly, that individual holders of the right are permitted freely and in an informed manner to choose whether to exercise it, that returns proceed in a gradual and orderly manner, and that any redress for past injustices not create new ones.

[94] Human Rights Watch interviews with UNHCR, diplomatic officials and PLO officials, Jordan, April 2006.In most of the Middle East, UNRWA has the primary mandate over Palestinian refugees, to the exclusion of UNHCR.However, UNRWA has only an assistance mandate, and not a protection mandate, so Palestinian refugees are not explicitly protected by many of the protections of the Refugee Convention.Iraq declined UNRWA assistance in 1949, so unlike Palestinian refugees in the Occupied Palestinian Territories, Jordan, Syria, and Lebanon, Palestinian refugees in Iraq do fall under the mandate of UNHCR.

[95] Human Rights Watch interview withMuhammad Abu Bakr, director-general, Department of Refugee Affairs (Amman), Palestine Liberation Organization, Amman, April 22, 2006. See also "Iraq-Jordan: Palestinian border refugees receiving assistance," IRIN News, March 26, 2006.

[96] Ibid.

[97] See, for example, UNHCR, The State of the World's Refugees: A Humanitarian Agenda, (London and New York: Oxford University Press 1997), pp. 92-93, 96-97.

[98] UNHCR, Resettlement Handbook, (Geneva: UNHCR, July 1997), p. 2.

[99] UNHCR, State of the World's Refugees, pp. 86, 88-89.

[100] Ibid., p. 89.

[101] Susan M. Akram, "Palestinian Refugees and Their Legal Status: Rights, Politics, and Implications for a Just Solution," Journal of Palestine Studies, Vol. 31 No. 3 (Spring 2002).

[102] "Jordan: Tensions Rising in Iraqi Refugee Camp," IRIN News, May 15, 2005.

[103] Human Rights Watch interview with U.S. official, Amman, May 2006.

[104] Human Rights Watch interview with Muhammad Hassan, Trebil camp, April 30, 2006.

[105] Human Rights Watch interviews with Trebil camp residents, April 30, 2006, and with international officials, May 1, 2006.

[106] Human Rights Watch email communication with UNHCR official, June 11, 2006.

[107] Human Rights Watch interview with Muhammad Salim `Ali, Trebil camp, April 30, 2006.

[108] Ibid.

[109] Human Rights Watch interview with Mukhaimar F. Abu Jamous, secretary-general, Ministry of Interior, Amman, May 4, 2006.

[110] Human Rights Watch email communication with UNHCR official, June 11, 2006.

[111] Human Rights Watch interview with Mukhaimar F. Abu Jamous, secretary-general, Ministry of Interior, Amman, May 4, 2006.

[112] Albert Aji, "Syria extends support to Palestinians' Hamas government,"Associated Press,April 20, 2006.

[113] "Syria: Palestinians from Iraq seek shelter in Syria," IRIN News, November 21, 2005.

[114] "Syria: Damascus Opens Doors to Palestinian Refugees on Border," IRIN News, May 9, 2006.

[115] "Killings, Abductions in Baghdad leave Iraqi Palestinians scared and angry," UNHCR News Stories, June 1, 2006; "Syria:More Palestinian Refugees from Iraq Arrive at Border," IRIN News, May 18, 2006; Human Rights Watch email communication with UNHCR official, June 11, 2006.