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Temporary Protection As an Instrument for Implementing the Right of Return for Palestinian Refugees

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Temporary Protection As an Instrument for Implementing the Right of Return for Palestinian Refugees \\server05\productn\B\BIN\22-1\BIN101.txt unknown Seq: 1 4-JUN-04 12:51 TEMPORARY PROTECTION AS AN INSTRUMENT FOR IMPLEMENTING THE RIGHT OF RETURN FOR PALESTINIAN REFUGEES Susan M. Akram* and Terry Rempel** I. INTRODUCTION ............................................ 2 R II. THE LEGAL FRAMEWORK OF TEMPORARY PROTECTION AND ITS PLACE IN REFUGEE AND HUMAN RIGHTS LAW ... 5 R A. International Legal Framework: The Refugee Convention and Protocol .............................. 5 R B. Elements of Temporary Protection: Between Asylum and Non-Refoulement ................................. 10 R C. Temporary Protection Measured Under Guarantees of the Refugee Convention ............................... 13 R III. REVISITING “TEMPORARY PROTECTION” IN THE ARAB WORLD ................................................... 16 R A. Root Causes of Palestinian Displacement .............. 27 R B. Factors Forcing New Refugee Flows ................... 42 R C. Palestinian Refugees and International Refugee Protection ............................................. 53 R D. Palestinians as Refugees or Stateless Persons ........... 63 R E. Palestinian Refugees and the Right of Return Under International Law ..................................... 67 R * Associate Professor, Boston University School of Law; J.D., Georgetown University Law Center; Diplome in International Human Rights, Institut International des Droits De’l Homme, Strasbourg. The author is grateful to the Fulbright Scholar Program, which granted her the senior research/teaching Fulbright Fellowship in occupied East Jerusalem for the 1999-2000 academic year that made this research possible. She thanks Boston University School of Law graduates Cassandra LaRae-Perez, Kara Krolikowski, and Mona Sahaf for their excellent research assistance, and in particular, Boston University International Law Journal Editor Abby Janoff for final editing assistance. ** Head of the research unit of the Badil Resource Center for Palestinian Refugee Rights in Bethlehem; B.A. in History, Bethel College, Kansas; M.A., in Politics, University of Exeter, United Kingdom; Research Fellow and PhD candidate, Department of Historical, Political and Sociological Studies, University of Exeter. The authors are grateful to Joan Fitzpatrick and Lex Takkenberg for their insightful comments on earlier drafts. The untimely death of Joan Fitzpatrick is a great loss, and we dedicate this article to her memory. 1 \\server05\productn\B\BIN\22-1\BIN101.txt unknown Seq: 2 4-JUN-04 12:51 2 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 22:1 IV. THE EXISTING REGIONAL APPROACH TO TEMPORARY PROTECTION, ITS FAILURES, AND PRINCIPLES NECESSARY FOR A RIGHTS-BASED FRAMEWORK ....................... 86 R A. Elements of Three Temporary Protection Models: Europe, the United States, and Africa .................. 95 R 1. Which individuals are to be covered by temporary protection? ........................................ 96 R 2. What will be the duration of temporary protection status and what measures will be taken at the cessation of status? ................................ 99 R 3. What standards of treatment are to be afforded temporary protection applicants? .................. 103 R B. Lessons from Current Regional Temporary Protection Models ................................................ 105 R V. AN ARGUMENT FOR AN INTERNATIONALLY-HARMONIZED APPROACH TO TEMPORARY PROTECTION FOR PALESTINIANS: APPLYING RIGHTS-BASED PRINCIPLES TO THE SEARCH FOR DURABLE SOLUTIONS ................... 113 R A. The Current Status of Palestinians in the Arab States ... 113 R B. The Current Status of Palestinian Refugees in 1967- Occupied Palestine .................................... 121 R C. The Status of Palestinians in Europe and the United States.................................................. 127 R D. Principles and Parameters of an Internationally- Harmonized Temporary Protection Regime for Palestinians ............................................ 128 R 1. Why Regional Temporary Protection is Not Workable for Palestinians ......................... 128 R 2. Why an Internationally-Harmonized Approach is Imperative and Timely ............................ 129 R 3. Beneficiaries ...................................... 154 R 4. Standards of Treatment ........................... 155 R 5. Additional Critical Components of a Successful Temporary Protection Strategy Linked to Return. 158 R a. Respect for Refugees’ Social Structures ......... 158 R b. Development of Skills and Resources During Temporary Protection ......................... 159 R c. Linkages With Returnees/Stayees ............... 159 R d. Confidence-Building in Anticipation of Repatriation ................................... 160 R VI. CONCLUSION .............................................. 161 R I. INTRODUCTION Temporary protection is widely regarded as an international legal norm now obligatory in certain circumstances on states with regard to their \\server05\productn\B\BIN\22-1\BIN101.txt unknown Seq: 3 4-JUN-04 12:51 2004] TEMPORARY PROTECTION FOR PALESTINIAN REFUGEES 3 treatment of a mass influx of refugees, or of persons fleeing situations of armed conflict or civil strife.1 As a recognized status, it is the most recent of the three major possibilities for protection of refugees a state can offer—the other two being the now-universal obligation of non-refoule- ment (non-return)2 and the non-obligatory protection of political asylum.3 Despite the controversy temporary protection has generated, it has special significance to the Palestinian refugee situation. For historical, legal, and political reasons, Palestinian refugees and stateless individuals have been effectively denied many of the minimal legal protections avail- able to other refugees under the regime of the 1951 Geneva Convention Relating to the Status of Refugees. This denial has had grave conse- quences for Palestinians in the Israeli-occupied territories and in the dias- pora, the latter including those in Arab states.4 The implications of the legal lacunae in which Palestinians find themselves are more stark in the 1 Writing in 1986, Deborah Perluss and Joan Hartman argued that state practice had solidified “temporary refuge,” the non-formalized predecessor to the formal status of temporary protection, into binding customary law for persons fleeing armed conflict. Deborah Perluss & Joan Hartman, Temporary Refuge: Emergence of a Customary Norm, 26 VA. J. INT’L L. 551 (1986). Joanne Thorburn indicates the formalization of temporary protection came about in the 1970s, during the mass refugee crisis of the Vietnamese boat people, when the United Nations High Commissioner for Refugees (“UNHCR”) Executive Committee of the High Commissioner (“ExCom”) issued its first official document calling for definition and formulation of temporary refuge. See Joanne Thorburn, Transcending Boundaries, 7 INT’L J. REFUGEE L. 459 (1995). For a summary of different views on temporary protection, see Nadia Yakoob, Workshop Report: Report on the Workshop on Temporary Protection: Comparative Policies and Practices, 13 GEO. IMMIGR. L.J. 617 (1999). Commentators point out significant differences between the non-formalized and formalized concepts of temporary refuge and temporary protection. See, e.g., Donatella Luca, Questioning Temporary Protection, 6 INT’L J. REFUGEE L. 535 (1994). 2 See generally GUY GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 117- 71 (2d ed. 1996); 2 ATLE GRAHL-MADSEN, THE STATUS OF REFUGEES IN INTERNATIONAL LAW : ASYLUM, ENTRY AND SOJOURN (1975); James C. Hathaway, A Reconsideration of the Underlying Premise of Refugee Law, 31 HARV. INT’L L.J. 129 (1990). 3 Despite efforts of the UNHCR and other international bodies, political asylum has never been accepted as an obligation on any state. See GRAHL-MADSEN, supra note 2, at 108 (stating that the Universal Declaration of Human Rights codifies the right to “seek and enjoy” asylum, but not the right to be granted asylum); GOODWIN- GILL, supra note 2, at 174-82; see also Katherine L. Vaughns, Taming the Asylum Adjudication Process: An Agenda for the Twenty-First Century, 30 SAN DIEGO L. REV. 1, 11 (1993); Declaration on Territorial Asylum, G.A. Res. 2312, U.N. GAOR, 22d Sess., Supp. No. 16, at 81, U.N. Doc. A/6716 (1967). 4 For a short overview of the historical and legal context of the current situation for Palestinian refugees and stateless persons and consequences to their human rights, see Susan M. Akram, Reinterpreting Palestinian Refugee Rights Under International \\server05\productn\B\BIN\22-1\BIN101.txt unknown Seq: 4 4-JUN-04 12:51 4 BOSTON UNIVERSITY INTERNATIONAL LAW JOURNAL [Vol. 22:1 post-Oslo era—when a politically negotiated resolution of the Israeli-Pal- estinian conflict appears more remote than ever—and Palestinians, par- ticularly in the West Bank and Gaza, have been subjected to heightened oppression and terror tactics by their Israeli occupiers.5 The escalating Israeli violence, directed at a Palestinian population held captive in towns and villages by curfews and checkpoints, as well as the ongoing Israeli policy of ethnic cleansing,6 is causing a renewed exodus of Palestinian refugees. It is in this post-Oslo, second intifada framework that a regularized program of temporary protection appears to be a particularly attractive option for Palestinians fleeing renewed conflict in the occupied territo- ries, as well as for Palestinian refugees already in the diaspora who lack third-state citizenship, and for those remaining in Arab states. This article argues for an internationally
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