The Palestinian refugee protection framework adopted after WWII faces a crisis of unprecedented proportions. While it remains unclear whether this framework will survive, Israel’s recent attack on it sheds new light on asylum’s oldest conundrum: the inherent tension between individual rights protection and state sovereignty.
At the center of the Palestinian refugee protection framework stands the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA). There are two principal reasons why UNRWA is a unique creature in the terrain of post-WWII refugee protection. On the legal side, UNRWA became the formal reason why Palestinian refugees were excluded from protection under the 1951 Refugee Convention (Article 1D of the convention). Relatedly, on the political side, UNRWA emerged not only as a humanitarian or governance agency (as the United Nations High Commissioner for Refugees (UNHCR) became). UNRWA is also a political organization reflecting a particular formation of bottom-up self-determination. Thus, Law and politics point to a single basic insight: Palestinian refugees are exceptional refugees whose plight may reveal generalizable lessons about asylum, which is more hidden when we think about the Convention framework.
On October 28, a landslide majority of Israeli Knesset members voted to illegalize UNRWA. The measure emerged after Israel accused members of the agency of involvement in the 7 October 2023 attack: several UNRWA staff members were fired after an internal investigation confirmed their involvement. Indeed, the measure followed Israel’s targeting of UNRWA facilities in Gaza, which, in Israel’s view, have become military targets. But it also reflects a more longstanding Israeli bid to close down UNRWA, which Israeli actors imagine as the last nail in the coffin of the 1948 Palestinian refugee question. In 2018, President Donald Trump seemed to follow this line of thinking when he decided to pull the US out of UNRWA funding.
With Trump’s emerging appointments, it seems safe to bet that his next administration will act all the more aggressively against UNRWA. Commentators have speculated that a second Trump administration would put not only UNRWA but also UNHCR funding at risk, part of a wider assault on the international “rules-based order.” Meanwhile, Israel continues to displace Palestinians, with such policies of displacement culminating in its recent brutal attack on Northern Gaza. The attack, still ongoing, has been labeled “a genocide within a genocide” by the State of Palestine and raises grave concerns within the ambit of the genocide prohibition.
But how do these developments illuminate the conceptual challenge of reconciling individual protection and sovereignty?
I. A Push Toward Movement: The Need to Discard Article 1D
Article 1D of the 1951 Refugee Convention historically excluded Palestinians from its protection based on the assumption they would receive adequate assistance from UNRWA. This exclusion reflected a compromise among the interests of state parties to the Convention, including regional governance interests and commitments to the Palestinian right of return. However, European courts have gradually moved away from this restrictive interpretation. For example, the Court of Justice of the European Union’s landmark Alheto decision in 2018 established that Palestinians could demonstrate the absence of “effective protection” in UNRWA areas. Subsequently, courts in Belgium and the Netherlands followed suit, acknowledging UNRWA’s diminished capacity as grounds for extending the Convention’s protection.
The humanitarian catastrophe following October 2023 has dramatically amplified protection needs. Israeli attacks have internally displaced over 1.9 million, or 90% of Gaza’s population, according to UN numbers from some months ago. Since October 2023, many of them have been displaced multiple times. Senior government officials have openly suggested that Gaza’s territory will decrease and that its residents should leave and be resettled in “third countries”; others have described this war as another Nakba – the Palestinian term for the mass displacement of 1948. At the same time, Israeli settlers, often backed by military forces, have worsened Palestinian security conditions in the West Bank and East Jerusalem.
The recent vote by the Israeli Knesset to ban UNRWA operations within 90 days culminated a longstanding Israeli campaign against UNRWA, dating back to 2017, at the very least. Israeli Knesset Member Yuli Edelstein explained the bill stemmed not only from suspicions against its members but also from the politically oriented definition of the refugee upon which it rests. Thus, he said that “UNRWA did not operate as an agency whose purpose was rehabilitation, but rather as an agency meant to perpetuate refugee status and actively promote hatred, antisemitism and incitement to terrorism.” Edelstein further took pride in Isreal’s transnational campaign against the corruption and antisemitism that exit – at least according to Israel’s perceptions — within the organization: “The United States, Germany, Canada, Australia, Italy, Britain, Finland announced at various stages during Operation Swords of Iron [the war] that they were freezing their contributions to UNRWA. Even today, some of these countries have only partially restored their funding to UNRWA, or under certain conditions, or have even left the funding as frozen funds.”
The statute is designed “to prevent UNRWA activity within the territory of the state of Israel” (Article 1). But the operative clause interestingly uses a different term, casting its prohibition on “the sovereign territory of the state of Israel” (Article 2, emphasis added). This distinction likely means that the prohibition applies in Israel and East Jerusalem (“sovereign territory” under Israeli law) but that it will not be directly applied to UNRWA activity in the West Bank. The statute is an amendment of previous proposals, which sought to cast a net on the entire “Near East” and is more limited in relative terms. But the ultimate game plan is as clear as it is dramatic for the viability of UNRWA: to dismantle the organization.
The two concomitant processes – increased displacement on the ground, alongside legislation removing protection from Palestinian refugees, seem to point in one direction when it comes to the required interpretation of Article 1D: if UNRWA is dismantled, 1D should be discarded. This, it seems, should at least be the case when it comes to Palestinians fleeing from territories occupied by Israel. It is not unimaginable that once Trump takes power, some of the patterns seen in Gaza will be imposed upon cities in the West Bank. But even without such catastrophic predictions, it is hard to imagine that in the coming years, UNRWA will be able to meet the “effective protection” test in these areas. As a matter of individual rights, the course European jurisprudence should move in is, therefore, abundantly clear.
II. A Push Toward Sedentarism: National Sovereignties
But the legal need to expand protection for Palestinian refugees and asylum seekers collides with political realities, which are themselves also often clothed in legal language: that of sovereignty. These realities present the sharpest anti-immigration turn in recent memory.
By late 2024, EU member states have implemented what scholars have termed “hyperactive” immigration control measures, with France declaring immigration levels “insufferable” and the Netherlands pursuing maximal restriction. The rise of far-right parties across Europe has fundamentally altered the political landscape: parties to the right of the European People’s Party now hold over one-quarter of seats in the European Parliament (187 out of 720). Even traditionally welcoming states have implemented harsh anti-immigration measures, with Sweden raising payment amounts for voluntary return and Finland restricting access to healthcare for undocumented individuals. In Germany, the “anti-immigrant left” has been on the rise under the leadership of cause célèbre MP Sahra Wagenknecht.
In this landscape, the longstanding trend toward externalization of asylum processing has gained particular momentum. Italy’s agreement with Albania to process up to 36,000 asylum claims annually outside EU territory is being lauded as a model by EU leadership. Fifteen member states have formally called on the European Commission to explore offshore processing and expand deportation capabilities. At the October 2024 European Council summit, discussions centered almost exclusively on expanding third-country partnerships and countering the alleged “weaponization” of migrants, with notably little attention paid to protection obligations.
Within this political atmosphere, it is hard to imagine how European Courts will be able to expand protection and largely discard the Refugee Convention’s exclusion clause. For comparison, think of a Rome court’s recent orders against Italy’s new offshore processing scheme with Albania. But we are far from any end to the blow-back against such judicial interventions – a response of potentially global dimensions. “These judges need to go,” wrote Elon Musk in a comment on X under a post that reported the judges’ decision. “Elon Musk is right,” replied Deputy Prime Minister Matteo Salvini.
Interestingly, however, discarding Article 1D can also be problematic from the perspective of Palestinian struggles for national sovereignty. While migration scholars have often debunked what many think of as a myth of “pull” and “push” factors, an expansion of rights can, in my view, lead to more Palestinians deciding to leave. While I do not mean to say that such departures should be understood as “voluntary” for the purposes of a legal discussion, asylum seekers often make rational choices even while being persecuted. That, at least, is my experience of years of working with and for asylum seekers and migrants – Palestinians as well as non-Palestinians.
No one knows this better than Palestinian leadership. Within Palestinian society, the steadfast effort to remain in the homeland has long been a form of resistance in and of itself. This is not merely about armed struggle – though that dimension exists – but about maintaining presence as a core component of national liberation, about continuity with the struggle of previous generations, and about Palestine itself, including its natural environment. The insistence on staying, particularly in the face of systematic and multi-dimensional Israeli pressure to leave, represents a fundamental aspect of Palestinian political consciousness. Rabea Eghgbariah recently characterized this consciousness around five main concepts: recognition, return, reparation, redistribution, and reconstitution. When senior Israeli government officials suggest that Gaza should be settled by Jews and wax emotional with desire for a second Nakba, the Palestinian liberation movement may view departure as defeat.
The political dynamic creates an excruciating choice for individuals facing immediate threats to life and safety. General Refugee Law views “returning” merely as the first among several “durable solutions” for refugees. This kind of governance lingo dims the demand to go home that is nevertheless shot through conditions of displacement. Against this backdrop, the framework concerning Palestinian refugees — complete with Article 1D and conditions for its rebuttal — seems to better enact the existential double-bind: a need to find safety against a struggle for return.
Moreover, this dynamic cannot simply be described as a demand to sacrifice the individual for the ends of the collective. The interest of being part of a liberation struggle is often also part of one’s autonomy. A doctor from the Jabalia refugee camp captured this dilemma in stark terms: “Once I heard the evacuation order to go south, my first reaction was: I’m not leaving…but then the bombs started, and our houses were being destroyed. I needed to protect my family.”
It’s far from surprising that the institution of asylum imagines the possibility of movement as based on individual rights. And it is equally expected that nationalism highlights the sedentarism of peoples under the banner of sovereignty. What is perhaps more illuminating in the Palestinian example is that the two are caught up together irrevocably. And indeed, that the wins and losses of every option are equally distributed on all sides of national borders.
The Palestinian refugee framework thus exposes a fundamental paradox at the heart of the post-1945 international legal order: the supposed dichotomy between individual rights and state sovereignty dissolves when confronted with cases of prolonged displacement, revealing instead their profound connections within ideas of personhood and collective self-determination.
No longer can we, international lawyers, simply rest content in saying that strong states push for sovereignty and weak individuals push for human rights. When I wrote above that the Palestinian protection framework sheds light on longstanding and intensifying tensions built into the institute of asylum, that is what I meant. But is there a way out of this bind?
III. Diaspora Justice: Bottom-up Transnational Collective Self-Determination
For a long time now, many within the discipline of international law have felt like Wile E. Coyote, that cartoon wolf that ran over a cliff but has not yet looked down. This is probably, to some extent, true across the sub-disciplines. The collision between humanitarian imperatives and political realities reveals the inadequacy of the postwar legal framework of asylum when it comes to systematic population transfer.
Palestinian asylum seekers thus find themselves caught between the imperative to flee violence and the recognition that their flight may advance the very policies they oppose. European societies are becoming ever more xenophobic. Sure, racism is part of what is going on. But the noticeable historical change for the worse means that it can’t be only about that. The turn to closure is not because voters are bad but because they experience insecurities, often but not only in national security terms.
Against this backdrop, historical patterns suggest a central role for existing Palestinian and Middle Eastern diasporas in Europe. These networks, which have galvanized during opposition to Israel’s war in Gaza, may help in migrants’ struggles to seek protection. Keeping in mind the historical background of bottom-up Palestinian sovereignty in UNRWA camps, they can be conceptualized as an emerging form of bottom-up transnational sovereignty.
To be sure, mutual aid among asylum seekers and migrants cannot replace legal rights or the services provided by UNRWA. And the foreseeable future all but promises conflict between European authorities and migrant communities. These are “mobility conflicts,” to use a term Charles Heller and Lorenzo Pezanni have proposed. They are also the outcome of “border internalization,” to use a term advanced by Volker Heins, Sabine Hess, Dana Schmalz, and Frank Wolff.
As has been the case for Israel’s attempt to outlaw UNRWA, security concerns — warranted and manufactured — will dominate policy responses to new flows of migration from the Middle East. Security, as well as xenophobic responses, have already confronted at least 100,000 Palestinians (as of August) who have managed to leave Gaza and reach Egypt. Some have stayed in Egypt. But, the Egyptian government has been adamant about not letting Palestinians in and clearly does not want them. An unknown number has reached Jordan, another country that is extremely afraid of an influx of new Palestinian refugees. The Kingdon has long perceived a new Palestinian displacement not only as a national security concern but as a threat to its very existence. Other Palestinians have ended up elsewhere in the Middle East, where many countries have experienced significant refugee flows, e.g., from Syria.
These circumstances suggest that the number of Palestinian asylum seekers who will transit to Europe will almost certainly increase in the foreseeable future – if not during the winter ahead, then around April-May-June 2025. They will arrive not only from Palestine (usually via Egypt) but also from Lebanon, including but, of course, not limited to the Palestinian camps. I do not mean to suggest this will be an enormous influx, comparable to the 2015 “summer of migration” due to the civil war in Syria. But even a small uptick will present considerable challenges on all sides. Policing efforts facing these new arrivals will likely confront migrant and diaspora communities — now facing increased deportation efforts — with new and harsh measures.
This reality presents refugee rights advocates with urgent choices: adapt to work within increasingly circumscribed formal channels or develop methods to support emerging non-state and diasporic protection networks. The latter path faces uphill political battles and ultimately also risks confrontation with state security apparatuses. But it may also offer the only meaningful avenue for maintaining political agency under conditions of systematic displacement coupled with border restrictivism. In a recent lecture, I tried to conceptualize this idea under the title of diaspora justice.
Diaspora networks – established in host countries yet vitally connected to homeland struggles – embody the transnational political consciousness that refugee law has long failed to grasp. They demonstrate how collective self-determination can thrive precisely at the intersection of mobility and rootedness. It is for that reason, too, that security concerns may end up so problematic for diaspora networks. In that regard, a confrontation between European authorities and diaspora networks may be comparable with Israel’s attempt to cut off UNRWA.
But a European national security-oriented “mobility conflict” arising from Israel’s attacks on Palestine and Lebanon should not be taken as a foregone conclusion. And there are purely legal ways in which diasporas have anticipated and could continue to prefigure a new future for asylum law.
The leverage of diaspora networks in shaping admission policies, while indirect, should not be underestimated as a form of what might be called “collective admission pressure.” As Frederic Mégret observes, established diaspora communities can exercise significant political influence through collective action. This might include strategic political mobilization during electoral cycles, economic pressure through remittance policies, and transnational advocacy that frames admission restrictions as human rights concerns.
The transformation Mégret describes from protecting individual “aliens” (or, in this case, asylum seekers) to entire “diasporas” is particularly relevant: while individual admission remains formally controlled by state authorities, diaspora communities’ collective political capital can reshape the underlying policy framework that determines admission patterns. Much like how labor movements historically secured rights through collective action despite lacking formal legal authority, diaspora networks can influence admission policies through coordinated pressure on both sending and receiving states. This represents what might be termed “indirect admission leverage” – where communities unable to directly control borders nonetheless exercise meaningful influence over the regulatory architecture of admission through sustained collective action across multiple political and economic channels.
The strategic mobilization of kinship rights – particularly through family reunification policies and marriage-based immigration – represents a significant avenue through which diaspora communities can facilitate admission while operating within established legal frameworks. Beyond their authentic expression of family bonds, these kinship-based pathways can serve broader community interests in maintaining migration channels even during periods of restrictive immigration policy. Kinship-based migration operates at both personal and community levels – individual family ties become part of a broader network of community-sustaining relationships and arguably realize a form of self-determination.
While states maintain formal control over family reunification policies, the constitutional protection of family rights in many jurisdictions, combined with international human rights law’s robust protection of family life, still creates opportunities for sustained legal advocacy that may be more resilient to political headwinds than the frameworks of traditional refugee law.
This intersection of authentic kinship bonds and strategic community interests illustrates how diaspora networks can leverage existing legal frameworks. However, it might be interesting to recall that, in a famous line of cases, the Israeli Supreme Court compromised the right to family of its Palestinian citizens, ultimately framing family unification not only as a security concern. Even in a period that now seems much more “liberal,” the Court disallowed family reunification as a mode to “change the demographic composition” and stealthily realize refugee return “through the back door.” Family-based strategies, in other words, are far from immune from backlash.
In the bottom line, all these proposals are merely preliminary, and none of them offers a silver bullet. The fundamental tension between protection and displacement, laid bare by UNRWA’s imminent dissolution, reveals a deep internal rift within existing legal frameworks – a kind of schizophrenia, if you will.
Advocates and lawyers working in related fields must acknowledge and not shy away from these structural and internal breaks while seeking alternative legal avenues through which struggles for liberation can continue — on all sides of international borders. Diaspora-based protection networks are neither substitutes for formal legal rights nor can they, on an experiential level, replace a home. Nonetheless, in the near future, they may represent the only available paths for maintaining political identity and agency around hard borders and hostile environments.
