I tried to photoshop a birthday hat onto the convention but it didn’t work
65 years ago, at a meeting in Geneva on 28 July 1951, a convention was signed that has formed the basis for one of the most enduring international legal regimes, and was eventually signed by 166 countries. This Convention does many things: it defines who is a refugee, who is not, and what obligations States have towards those who are recognized as refugees, particularly in respect to areas such as documentation, access to education and work, and standards of treatment. One of the most important obligation is that States may not return anyone to their country of origin if they could face persecution there. This idea, that States can’t send people to their torture, degradation, or death, has since been included in other conventions, and now is considered part of customary international law. Another, but less well-respected, obligation is that States can’t penalize people for illegal entry if they are fleeing persecution.
Arguably, the 1951 Convention Relating to the Status of Refugees (and its 1967 Protocol), are arguably one of the most effective human rights instruments around. Yet there are some, such as the Danish Prime Minister (Denmark: also known for its absurd policy of confiscating valuables from refugees ostensibly to pay for their stay – because let’s face it, the whole idea is to have refugees live with the most indignity possibly, just to prove we have the power) who wish to roll back the 1951 Convention. Because if you can’t live up to the standard, the best approach is to just lower the bar, right?
What the 1951 Convention does and does not do
It defines who is a refugee
Interestingly, the scenario that most people imagine when they think of refugees – in a country at war, a city is bombed, and faced with or fearing destruction of their home and death of family members, they flee – is not really within the 1951 Convention definition of a refugee (Article 1a, for anyone who cares to look). The 51 Convention definition is focused on a “well-founded fear of persecution” due to “race, religion, nationality, political opinion, or membership in a particular social group.” There is a bit more nuance involved, such as determining if the bombings or attacks were directed at a specific ethnic, religious, or other group (i.e., all members of XYZ group support the armed resistance group ABC, hence areas with high population of XYZ group were targeted for bombing). But for this reason, additional legal regimes, with broader definitions of refugees, have sprung up in Latin America, Africa, and, in the EU, under the concept of Subsidiary Protection.And it does raise the question if the definition that we have and use is really the best reflection of the world in which we live.
But the convention is helpful: first, it provides a common definition to which 148 countries have ascribed, and quite a number of these have included the 1951 refugee definition, or something very similar to it, in their national legislation. This common ground hasn’t removed all discrepancies and differences in interpretation among countries, but has certainly provided a common language and an international standard to which each country can be compared. Second, it provides a kind of scaffolding on which additional legal instruments can build. Elements of non-refoulement (non-return to a place of death, torture, or persecution) have been included in other treaties such as the Convention Against Torture and the European Convention on Human Rights, and also help provide protection to those who may not be refugees but may still be in danger. The efforts to improve the situation of stateless people has also built on the successes of the 1951 Convention. Finally, regional agreements allow States to include issues that are relevant to them – not only in terms of refugees, but also taking up issues such as internally displaced persons.
The main issues with the current 1951 refugee definition are as follows: although some of the additional legal instruments allow for a bit of a wider definition of who is a refugee to include people displaced by foreign occupation, invasion, generalized violence, or events seriously disturbing public order, the definition was crafted in the post-WWII context and had specific populations in mind. Although, through legal interpretation and UNHCR’s own efforts, the definition of refugee now comfortably accommodates the situation of LGBTI individuals, other situations which might cause people to flee, such as domestic violence (particularly in male-dominated societies with few/no legal resources or State response), Female Genital Mutilation, violence connected with criminal organizations, discrimination that may not be violent but may impede a normal life, persecution by non-State actors (blood feuds and tribal disputes, for example), and similar kinds of situations.
It defines who is not a refugee
The framers of the convention decided that this concept of protection should only extend to those who deserve it, and should not apply to those who are themselves persecutors or who are fleeing prosecution (not persecution!). So the idea that refugee status protects war criminals and terrorists isn’t true – or rather, if there are war criminals and terrorists who have refugee status, it is because they successfully lied or the country/entity evaluating their case did not do a thorough job investigating them. Interestingly, several individuals who were allegedly perpetrators of genocide or crimes against humanity in Rwanda had gotten refugee status in some countries. Because of the complexity of actually convicting them of genocide or war crimes or crimes against humanity, many of them had their refugee status revoked due to immigration violations for omitting or falsifying information when applying for asylum.
Imagine, then, that our fictional client has an Interpol Red Notice . According to Interpol, “the persons concerned are wanted by national jurisdictions for prosecution or to serve a sentence based on an arrest warrant or court decision.” Clearly criminal and undeserving of refugee status, right? Well, some countries use criminal prosecution as a way to persecute people, particularly dissidents or opponents, or those who fund opposition parties. Countries such as Azerbaijan, Georgia, Kazakhstan, Russia, and Ukraine have used this tactic. But it’s not limited to Central Asia and Eastern Europe; other offenders include Indonesia, Venezuela, Turkey and Bolivia:
Mr. Ochoa Urioste is a politically active attorney from Bolivia who became the subject of a Red Notice when certain officials within the Bolivian government targeted him for the prosecution of ordinary law crimes, after he refused to participate in the execution of contractual agreements that he found to be illegal — and he publicly criticized President Evo Morales.
Interpol has recently changed its policy to withdraw a “wanted person” alert if the person is confirmed to have refugee status, in recognition of the fact that states may use judicial avenues to persecute people.