Do the most vulnerable refugees get resettled?

Googling this question results in headlines such as “World’s most vulnerable refugees struggle as US welcome mat shrinks”, “Pausing the Refugee Resettlement Program Will Harm the Most Vulnerable” and “World’s most vulnerable: are we responsible for them all? ”, reflecting US President Trump’s recent – now suspended – Executive Orders that, among other things, reduced the US’s intake of resettled refugees to 50,000 per fiscal year.

[Featured photo: “Canada ‘an inspiration’ on Syrian refugee resettlement”]

What is resettlement?

Resettlement is the transfer of refugees (who have, by definition, fled persecution in their country of origin) from one country to a third country where they are given a permanent legal status and expected to settle permanently; it’s been around since the 1970s in greater or lesser numbers. Resettlement globally is an established arrangement, whereby families and individuals are identified and screened by UNHCR according to seven categories (to which participating States have agreed) and are then sent to different resettlement countries. The resettlement countries evaluate the cases, conduct security checks, interview the families in many cases, and give a decision. Successful resettle-ees are transferred to their new country by IOM, and are received either by NGOs or the government entities responsible for them. Refugees in the resettlement pipeline are extensively vetted and screened, and it is the resettlement country that makes the final decision who goes and who stays. States have a legal obligation to receive refugees who show up on their territory, but resettlement is completely voluntary – which is why the two concepts should not be conflated, nor is resettlement the solution to a State’s unwillingness to abide by their legal responsibilities.

 

What is vulnerability?

‘Protection’ vulnerability

UNHCR and countries, together, have established a number of categories that they have collectively agreed represent the most vulnerable refugees, or, phrased differently, the refugees most in need of resettlement. These categories are: medical needs, women and girls at risk, survivors of violence and/or torture, children at risk, legal and/or physical protection needs, and refugees lacking foreseeable alternative durable solutions. Although they probably don’t cover all possible eventualities, these categories do seem to encompass quite a number of vulnerabilities that would make resettlement the best solution for that particular family. Often, two or more of the categories are applicable – people who were tortured often have medical needs or may fear continued persecution, for example; a woman at risk may also have children who are at risk.

 

“New study finds child marriage on the rise among vulnerable Syrian refugees.” Also, what’s with the signs?

 

The resettlement categories are all centered around a perspective of vulnerability that focuses on “protection” (protection, in refugee speak, is ensuring access and fulfillment of rights under national and international law). For example, someone with legal or physical protection needs might be in a situation where their rights to physical security, safety, liberty, etc., are not being respected; if there is no way to change the situation (i.e. where their asylum country is not able to ensure security or justice) they may need to be resettled to a different country. Or a woman who is head of household is at risk for sexual exploitation by her landlord or employer due to her vulnerable situation. Or an unaccompanied child who is vulnerable to exploitation or abuse. The focus on ‘protection’ is very understandable; after all, it is one of UNHCR’s core functions, and it is a logical extension of the concept that UNHCR exists to provide protection where the country of nationality can’t or won’t and where the country of asylum can’t or won’t. A protection-centred resettlement programme also makes for compelling individual stories of continued persecution, exploitation, or abuse. Although programming generally includes efforts to prevent or mitigate protection risks as well as establishing response mechanisms, identification of cases that have suffered abuse or exploitation, or are at individual risk, is difficult when considering the population as a whole, and many if not most cases are identified because the person or family themselves reported the situation.

Socio-economic vulnerability

But ‘protection’ is not the only metric by which one can assess vulnerability. Socio-economic vulnerability builds on work and research done on poverty and economic vulnerability to come up with a concept of vulnerability that focuses primarily on economic indicators, such as expenditures and assets, but should also encompass social metrics as well. The benefit of this kind of approach is that it is frequently more easily quantifiable – rather than the qualitative kind of approach taken with protection-related vulnerabilities – and hence can be applied over a wider population if proper tools are developed. Such initiatives in the Middle East, for example, have resulted in the Vulnerability Assessment Framework applied in Jordan; the VAF “defines the concept in terms of what a given person is vulnerable to, taking different sectors – such as lack of education, lack of documentation, or health liabilities – into account.” As UNHCR describes it, “vulnerability is notoriously difficult to capture […]  One broadly applied way to circumvent this measurement difficulty is to use expenditure as a proxy for refugee welfare.” The VAF therefore calculated a vulnerability score based on an individual interview/assessment with each family. Some of the assumptions and process behind the VAF are described here and some additional material can be found here. A similar approach was taken in Kakuma camp in Kenya, again focusing on expenditures as a proxy for welfare. In Lebanon, socio-economic vulnerability was assessed through a yearly vulnerability assessment (called the VASYR) conducted in a similar manner to the VAF but on a yearly basis so as to track trends over time, and as a second step, by using a predictive statistical model to identify vulnerable families without needing to conduct an individual interview.

Of course, socio-economic vulnerability and protection-related vulnerabilities are inter-linked: lack of (access to) work or documentation leaves people vulnerable to exploitation; people may be exposed to (or expose themselves to) hazardous situations out of economic desperation (for example, pulling children out of school; marrying off children at an early age; survival sex; falling victim to trafficking; etc); and medical conditions may require expensive medications or require the presence of a caregiver which can impact a family’s earning potential or increase expenses. Anecdotal impressions suggest a strong correlation between socio-economic and protection vulnerability, but the causal logic could run in both directions.

Vulnerability and resilience

[You could just skip this whole section and read the study that is extensively quoted here]

“Resilience fundamentally concerns how an individual, household, community, society or state deals with shocks and stresses. […] According to the Regional UN Development Group (R-UNDG) Position Paper, prepared by a UNDG Regional Working Group on Resilience, the resilience-based development approach specifically looks at supporting resilience through development assistance, which aims to support institutions to respond to increased demand and pressure (characterised as “coping”), promote household recovery from the negative impacts of the crisis (“recovering”) and strengthen local and national economic, social and political institutions to protect development gains and enhance performance (“sustaining”).” (Source, p.iii)

This ODI study analyses definitions of vulnerability as considered by different humanitarian actors, and its relationship with the concept of resilience as being interrelated:

“In crisis contexts, vulnerability broadly refers to the likelihood of individuals or systems experiencing negative consequences on account of characteristics that make them exposed to those consequences in the first place ( i.e. exposure) such as being present in zones affected by the crisis and limited ability to manage the impacts of the crisis (i.e. coping capacities). Vulnerability and resilience are closely related because they both concern responses to shocks; they have been characterised as being two sides of the same coin, at opposite ends of the well-being spectrum and part of the same equation. [Furthermore]. analysis of vulnerability applies to different levels (e.g. individuals, households, communities, countries and systems) and to different shocks.” (Source, p.9)

But even if we are considering vulnerability to be an inability to withstand shocks, humanitarian actors still use traditional metrics (protection or economic-based models) to assess vulnerability:

[The Syrian Response Plan in Jordan] highlights the use of chronic poverty, the exposure to refugee influx, more ‘traditional’ categorical individual (or household) characteristics and social exclusion as indicators of vulnerability. The criterion of ‘reduced access’ stands out because, rather than saying that people with disabilities are necessarily vulnerable, it highlights that people with reduced access to resources and services are vulnerable and this may be due to disabilities. It therefore could shift analysis towards ‘who has access’ and ‘who participates’ rather than assuming that all women and older persons are vulnerable. (Source, p.11)

There are limitations in the extent to which such an approach is operationally applicable: the study notes how actors have attempted to establish categories of vulnerabilities that take into account economic constraints, profiles perceived as exposed to risks, and factors expected to represent access to certain rights or services. Although tools have become increasingly sophisticated (see some of the examples from Jordan and Lebanon) in assessing vulnerability for the purposes of identification and prioritization of beneficiaries, the results of these assessments are not frequently used to determine the type or extent of an intervention, and are often constrained by the particular framework of analysis (individual/household assessment vs community vs national level or regional analysis). Finally, there is a twofold limitation to this approach, which is that these models typically identify the symptoms but not the cause, and that, secondly, they do not focus on capacities but only vulnerabilities:

Categories, however, do not identify the ‘drivers’ of vulnerability. Drivers of vulnerability are the factors that influence and determine vulnerability. For individuals, gender inequality can be such a driver. For households, these can include lack of assets, resources and access to power structures. Scorecards and similar approaches can assess that a household is vulnerable because they are in debt and have poor food consumption, but alone do not provide analysis on the factors that are leading to their debt and poor household food consumption. (Source, p.13)

What does this mean for resettlement?

The short, and obvious, answer is that it is not so easy to determine vulnerability, much less assess it in a way that is both objective/systematic, and contextual/individualised. Even more so, how these assessments are conducted determines which families are included in the beginning of the pipeline of the resettlement process, to be screened and analysed for their individual needs and suitability for resettlement.

The Syrian populations in Lebanon and Jordan have proven ideal populations for these kinds of assessments: individually registered, located in areas that are accessible (both due to infrastructure and security), and with substantial international attention that brought the resources needed to conduct massive assessments and develop innovative approaches, especially as agencies were forced to prioritise resources for the “most vulnerable”. Many refugee populations are difficult to access due to security or infrastructure (Yemen, South Sudan, Afghanistan, Pakistan) or there are not sufficient resources to carry out such assessments in the face of budget and ration cuts.

Further distortions are caused by the resettlement system itself: countries select the populations that best fit their humanitarian and political goals, which may not directly correspond to the objective needs. Resettlement countries additionally can set additional criteria (in addition to refugee status and meeting one of the above-named vulnerability criteria) such as the “integration potential” requirement that is part of the legislation of some Nordic countries. “Integration potential” does not appear to be clearly defined in law, but is a legal provision that could well be at complete odds to the aims of resettlement itself: after all, those who are most exposed to risks and have the least capacity to withstand them may be the families most in need of resettlement but who will require more assistance once they get there.

With over 1.19 million refugees considered in need of resettlement in 2017, any measure of vulnerability will indicate that the needs far outstrip the available capacity for countries to receive them.

 

 

 

Links

 

• UNHCR Resettlement Handbook, UNHCR, 2011
• 2017 Projected Global Resettlement Needs
• Refugee Household Vulnerability Study: Kakuma Refugee Camp, Kincectica LLC, 2016
• Review of Targeting of Cash and Food Assistance for Syrian Refugees in Lebanon, Jordan and Egypt, Kay Sharp (UNHCR/WFP commissioned study), July 2015
• Aid effectiveness and Vulnerability Assessment Framework: determining vulnerability among Syrian refugees in Jordan, Field Exchange, 2014
• Vulnerability Assessment Framework (Jordan), UNHCR
• The Syrian displacement crisis and a Regional Development and Protection Programme: Mapping and meta-analysis of existing studies of costs, impacts and protection, 2014
• Lebanon – Vulnerability Assessment of Syrian Refugees in Lebanon, December 2016
• The Syria crisis, displacement and protection, Forced Migration Review 47, September 2014:
  • The 6.45 million displaced people inside Syria make this the largest IDP crisis in the world, with possibly also the largest number of people who are ‘trapped’. In addition, the number of refugees from Syria continues to increase. The international community has an opportunity to set up, from now, an effective response to what will clearly become protracted displacement. These 20 articles discuss how to increase protection for the displaced and how to shape assistance to both the displaced and their ‘hosts’.
• A Framework for Resilience in Fragile and Conflict-Affected Situations, Columbia University SIPA 2013 Alejandra Kubitschek Bujones, Katrin Jaskiewicz, Lauren Linakis, and Michael McGirr
• Towards a resilience- based response to the Syrian refugee crisis: A critical review of vulnerability criteria and frameworks, Sarah Bailey and Veronique Barbelet, ODI/UNDP
• Towards Human Resilience: Sustaining MDG Progress in an Age of Economic Uncertainty, UNDP 2011
• Good Practices for Urban Refugees: A repository of interesting examples, case studies, and evaluations, a selection of which are included here:
  • The Welfare of Syrian Refugees: Evidence from Jordan and Lebanon (UNHCR / World Bank)
  • Positive Practices in Refugee Protection in the Asia-Pacific Region

  • Just Cities for Children: Voices from Urban Slums

  • Adapting to an Urban World: Urban Food Security Pilot Assessment: Harare, Zimbabwe

International legal concept or convenient excuse? “First country of asylum” and “safe third country” concepts

Is there such a thing in International refugee law as “first country of asylum” and “safe third country” concepts?

(Featured image: reception conditions in Greece, January 2017, Photo: HRW)

Yes and no – and that depends a lot on the interpretation of what is meant by “international refugee law”. Both of these concepts – “first country of asylum” and “safe third country” are enshrined in EU refugee law but are not a part of the 1951 Convention or regional instruments such as the OAU convention or the Cartagena Declaration. Under International Refugee Law, there is no obligation to seek asylum at the first effective opportunity, and States retain their legal responsibility if they have effective control of persons or territory.

In our examples, we will frequently discuss situations in which a refugee from country A has passed through country B and is claiming asylum in country C.

What does the 1951 Convention say?

The 1951 Convention doesn’t have a provision about country of transit, safe third country, or first country of asylum. The 1951 Convention Relating to the Status of Refugees is very specific about who is and who is not a refugee, including people who would ordinarily be refugees (i.e. having fled persecution) but for whatever reason should not be considered refugees. The 1969 OAU Convention mirrors the 1951 Convention in this respect, although provides a wider definition of who should ordinarily be considered a refugee.

The Convention enumerates a number of conditions whereby refugee status would cease to exist (Article 1(c)):  voluntarily re-availaing oneself of the protection of one’s nationality; re-acquiring nationality after having lost it; acquiring a new nationality that offers protection; voluntarily re-establishing oneself in the country of persecution;  or if the circumstances which precipitated flight no longer exist. Article 1(D) indicates that those under the mandate of a different UN organization (i.e. UNRWA for Palestine refugees) are not under UNHCR’s protection, and article 1(F) enumerates the people who do not deserve refugee status, i.e. for having committed serious non-political crimes prior to flight, commission of war crimes or crimes against humanity. These lists are exhaustive, meaning that these – and only these – criteria may be applied in determining that someone should not be granted refugee status even though they otherwise meet the definition of refugee.

The text of Article 1(E) reads as follows:

“E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.”

This article sets the standard at rights and obligations equal to those of nationals of the country, which is an important qualification especially in our discussion on what constitutes “sufficient protection”. Such refugees as have rights and obligations equal to those of nationals could be considered to have obtained a durable solution even if they have not obtained the nationality. A strict reading of this article would imply, however, that in order to be considered a durable solution under this Article, a refugee would have to have the kind of rights such as be able to vote, own property, perform compulsory military service, and have a right to re-admission – elements that are frequently restricted for non-nationals irrespective of whether other rights, i.e. to education, health, equal treatment, etc., are on an equal footing.

What about other sources of law?

There is no article relating to “safe third country” or “first country of asylum” in the Refugee Convention. Although there is no specific provision in the 1951 Refugee Convention that would allow a State to decide that our dear refugee from country A should have sought asylum in country B and therefore is not entitled to refugee status in country C, a number of countries have come up with various arrangements by which they wish to extricate themselves from the responsibility of assessing the asylum claim and granting refugee status to refugees. These endeavours have been reflected in subsequent so-called “soft law”  initiatives (such as Agenda for Protection and Convention Plus) as well as ExCom conclusions, including Conclusion No. 58 (XL) (1989) on Refugees and Asylum Seekers Who Move in an Irregular Manner From a Country in Which They Had Already Found Protection, which elaborates circumstances where a refugee might be returned to a country where they had already had asylum, provided that he or she can enter and remain there with full protection and access to a durable solution.

But these Conclusions and initiatives, for example, do not provide grounds for refugee status to be rejected in country C on the basis of previously having applied for asylum or stayed (for an unspecified amount of time) in country B; rather, they establish circumstances whereby country C would ensure that our refugee from country A can actually be readmitted and live in country B.

Non-refoulement – the principle of non return to a place where a person could be subjected to persecution, torture or ill treatment – is the cornerstone of international refugee law and is considered a principle of customary international law, beyond being enshrined in a number of international instruments such as the 1951 convention, the Convention Against Torture, etc. Non-refoulement still applies to any country having effective (de facto or de jure) control over persons OR territory (Australia, we are looking at you). If a person is returned to a country where he or she fears persecution it constitutes refoulement, but States are also responsible if they return a person to a country (country B) which then returns them to a country where they face persecution (so-called “chain refoulement“).

 

EU law

EU law relating to asylum within the Common European Asylum System is regulated by a number of directives, notably the recast Qualification Directive (QD), the recast Dublin Regulation (DR), and the EU recast Asylum Procedures Directive (APD). We are presuming, in our examples, that our fictional refugee from country A, who at one time was in non-EU* country B,  is now applying for asylum in EU country C.

* some EU legislation related to refugees may also apply to non-member states such as Switzerland, Norway and Iceland who apply i.e. the Dublin Regulations and Schengen but not necessarily other elements of the Common European Asylum System and are not necessarily bound by it. The Dublin Regulation regulates how asylum applications are to be handled if Countries B and C are both EU members or subject to the Dublin Regulations (EU + Norway, Iceland, Switzerland).

First country of asylum, according to Article 35 of the APD, refers to a refugee who has (already) received refugee status/durable solution in a previous country before applying for asylum in a different country – refugee from country A receives refugee status in country B before later leaving non-EU* country B and seeking asylum in EU* country C. According to EU law, the person has to have been recognized OR enjoy “sufficient protection” (more on that later); the person must be readmitted to that country; and the person has the right to rebut the presumption of a first country of asylum. Furthermore, EU* country C may (but is not required to), “take into account” a series of criteria (article 38) about how safe country non-EU* country B is.

Safe third country, according to Article 38 of the APT, has our fictional refugee A passing through non-EU country B – where she or he has not claimed asylum, or has claimed asylum but with no result – to EU country C where she or he then claims asylum. Again, Country B would need to agree to re-admit the person; there should be access to an asylum procedure  in accordance with the 1951 Convention and treatment in accordance with international law, especially protection from physical harm and refoulement, and protection of life and liberty.  Additionally to these provisions, the refugee ought to have a meaningful link to the country, which, according to UNHCR, should be more profound than a simple transit through country B.

Sufficient protection

Within EU refugee law, a refugee who is considered to have enjoyed “sufficient protection” in country B ought to return and be recognized there as a refugee (Article 35 APD). The text, however, does not define this “sufficient protection”, and only suggests that States look at the criteria in Article 38 withiut requiring them to apply these standards. Let’s take a look at Article 38 APD:

APD: Article 38 – The concept of a safe third country

1. Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking international protection will be treated in accordance with the following principles in the third country concerned:

(a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

(b) there is no risk of serious harm as defined in Directive 2011/95/EU;

(c) the principle of non-refoulement in accordance with the Geneva Convention is respected;

(d) the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

(e) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

Although (b) above seems to closely mirror the refugee definition found in the 1951 Convention (a refugee is a person outside of their country of origin with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership of a particular social group and who is unable/unwilling to return), it should be noted that UNHCR has held that persecution – while not explicitly defined – encompasses fear of life and liberty but also fear of violation of other fundamental rights. Concievably, therefore, country B could violate some fundamental rights (like expression of religion or gender identity, to name two) without running afoul of this clause. Some of this “gap” is covered by the concept of “serious harm” according to the Qualification Directive (part (c) above, but it is conceviable that some gap exists. Theoretically, Article 38 is not itself meant to be grounds for refugee status, but is meant to determine if our asylum country B is suitable for our refugee, and should be rebuttable, such that our refugee ought to be able to highlight any “gaps” that would impact him or her personally, or if for another reason our refugee would face harm in country B that they would not face if given asylum in country C.

UNHCR’s opinion on the matter, according to brief on the legal considerations of the EU-Turkey deal:

According to UNHCR, it therefore follows from the text, context and object and purpose of Article 35 that ‘sufficient protection’ goes beyond protection from refoulement. In UNHCR’s view, ‘sufficient protection’ requires that protection in the first country of asylum is effective and available in law and practice,  allowing the person who has enjoyed asylum in a previous state to reavail him- or herself of that protection. This includes a number of critical elements:

– no risk of persecution within the meaning of the 1951 Convention or serious harm in the previous state;

– no risk of onward refoulement from the previous state;

– compliance, in law and practice, of the previous state with relevant international refugee and human rights standards, including adequate standards of living, work rights, health care and education;

– access to a right of legal stay;

– assistance of persons with specific needs;

– timely access to a durable solution

Although these criteria and circumstances are supposed to be analyzed on a case-by-case basis, part of the problem is a continued exclusive focus on the legal regime (i.e. within the law, does the person have protection from refoulement, access to legal stay, etc.) with less emphasis on a qualitative analysis that ought to be just as important. The qualitative analysis must analyze if the protections exist only on paper or also in practice.

There is a substantial difference between treatment equal to that afforded to nationals (as per Article 1(E) of the 1951 Convention) and the rights/obligations of refugees as described in the 1951 Convention. Quite a number of the rights or treatment afforded to refugees under the 1951 Convention are limited or restricted in some manner.

In our previous discussion on some of the qualitative elements of “enjoying” asylum,  we note that the 1951 Refugee Convention states a number of rights and privileges to which refugees should have access – rights to things like employment, education, and documentation– but many of these rights, at least as written in the Convention, indicate that refugees should have rights comparable to those of other foreigners, and only in some limited cases should refugees enjoy rights on equal footing to nationals.  Rights to employment and family life, as well as freedom of movment, are frequently restricted or the subject of reservations to the Convention. In a previous post, we also looked at how the Convention handles rights to primary education, wage-earning employment and self employment. Even if rights to education or employment or access to justice exist on paper, they must also exist in practice, not only theoretically.

Finally, UNHCR has noted that the receiving country – in our example, country B – should give timely access to a durable solution. Which is an important point to note – very few countries outside of Europe and North America offer any kind of durable solution or permanent status attached to refugee status. Many refugee-hosting countries, in addition to specific legal restrictions, have a general regime (legal, assistance) predicated on the concept that refugees are temporary, and should not (and will not) become permanent members of society. If, in the end, this is the major qualitative difference between an EU country and a Country B where legal protections are afforded but no durable solution is in sight, it is a substantial difference indeed.

Safe third country” in application: the EU-Turkey deal

In conclusion, a country will have to meet a pretty high standard in terms of legal rights and treatment before it ought to be considered a “safe country” offering “sufficient protection”. Critics of the EU-Turkey deal have noted substantial shortcomings in both the legal  and administrative regime in Turkey which would indicate that Turkey should not be considered as offering “sufficient protection” as a “safe country”. More serious allegations against Turkey specifically include claims that Turkey is massively failing the basic metric of ensuring legal status and, most seriously, allegations that Turkey has refouled refugees back to countries of persecution. Others have noted that the deal jeopardizes refugees’ right to seek asylum, as Turkey is not a member of the EU, so additional protections according to European Human Rights Law are not available to refugees in Turkey. Furthermore, Turkey also has a reservation to the 1951 Convention which excludes non-Europeans from falling under Turkey’s obligations. Limited capacity in both Greece and Turkey to conduct asylum interviews and ensure treatment in accordance with national and international laws is also a concern.

In addition, numerous criticisms highlight shortfalls of the Greek asylum system that could lead to violations of rights of refugees and asylum-seekers there, both in terms of whether Greece itself offers “sufficient protection” and whether its asylum system can ensure respect for the human and administrative rights due to refugees and asylum seekers under EU law. If refugees and asylum-seekers are not afforded individual consideration, interview and analysis, and are not afforded an opportunity to object, on an individual basis for specific reasons, to their return to Turkey, it would not be in accordance with the APD. The result could be that some people who have a specific good reason to not want to be returned to Turkey (i.e. LGBTI refugees) will not be adequately assessed, nor their administrative protections as per EU law upheld. Weaknesses in the Greek asylum were already considered severe when the European Court of Human Rights suspended returns to Greece under the Dublin Regulations (which ordinarily stipulate that an asylum claim be assessed in the first participating country where the fingerprints are taken) in 2011, prior to the currrent situation which has been widely reported as inefficient and ineffective. Human Rights Watch has alleged that the EU-Turkey deal has resulted in thousands being trapped in Greece for a year with no effective access to an asylum system at all.

 

Conditions in Greece, 2017. Photo: National Hearald

 

Links and references:

• Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice – Detailed Research on Key Asylum Procedures Directive Provisions, UNHCR, March 2010, p. 290-291
• Legal considerations on the return of asylum-seekers and refugees from Greece to Turkey as part of the EU-Turkey Cooperation in Tackling the Migration Crisis under the safe third country and first country of asylum concept, UNHCR, 23 March 2016
• Common European Asylum System, European Commission website

• European Union: Council of the European Union, Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), 29 June 2013, OJ L. 180/60 -180/95; 29.6.2013, 2013/32/EU (“APD”).

• Refugee Law reader:
  • UNHCR, ‘Global Consultations on International Protection, Background paper no 1: Legal and practical aspects of the return of persons not in need of protection’, May 2001.
  • UNHCR, ‘Global Consultations on International Protection, Background paper no 2: The application of the “safe third country” notion and its impact on the management of flows and on the protection of refugees’, May 2001.
  • UNHCR, ‘Global Consultations on International Protection, Background paper no 3: Inter-State agreements for the re-admission of third country nationals, including asylum seekers, and for the determination of the State responsible for examining the substance of an asylum claim’, May 2001.
  • UNHCR, ’Guidance Note on bilateral and/or multilateral transfer arrangements of asylum-seekers’, May 2013.
  • UNHCR, Improving Asylum Procedures, March 2010, in Section VI.2.4.3.
  • UNHCR, Summary Conclusions on the Concept of “Effective Protection” in the Context of Secondary Movements of Refugees and Asylum-Seekers (Lisbon Expert Roundtable, 9-10 December 2002), February 2003
  • M.S.S. v. Belgium and Greece, Grand Chamber, European Court of Human Rights, 21 January 2011 (see Section V.1.2).

On the EU-Turkey deal specifically:

• Turkey as a Safe Third Country? Orçun Ulusoy, Border Criminologies blog, Oxford University Faculty of Law
• Analysis Why Turkey is Not a “Safe Country” Emanuela Roman, Theodore Baird, and Talia Radcliffe, Statewatch, February 2016
• Athens given deadline as EU looks to send more refugees back to Greece, The Guardian, February 2016
• Turkey ‘safe country’ sham revealed as dozens of Afghans forcibly returned hours after EU refugee deal, Amnesty International, March 2016
• The Paradox of the EU-Turkey Refugee Deal, Elizabeth Collett, Migration Policy Institute Europe, March 2016
• Greece: Asylum Seekers Locked Up: Wretched Conditions for People in Need, Human Rights Watch, April 2016
• EU’s reckless refugee returns to Turkey illegal, Amnesty International, June 2016
• No safe refuge: Asylum-seekers and refugees denied effective protection in Turkey, Amnesty International, June 2016
• Five reasons why the EU Turkey deal still is not a good idea, Norwegian Refugee Council, September 2016
• EU-Turkey Deal: Violation of, or Consistency with, International Law? Jenny Poon, European Papers, December 2016
• Where did the money go? How Greece fumbled the refugee crisis, The Guardian, 9 March 2017
• Greece: A Year of Suffering for Asylum Seekers: EU-Turkey Deal Traps People in Abuse and Denies Them Refuge, Human Rights Watch, May 2017

 

Happy human rights day! Now, what was that about ‘enjoying’ asylum?

December 10 is International Human Rights Day, commemorating the signing of the Universal Declaration of Human Rights (UDHR) in 1948. Although the UDHR is not legally binding in the sense that a treaty is, many of its principles have been reflected in other international treaties, and there is a growing sense that the unanimous adoption by the General Assembly represents a strong commitment by States, which could be perceived as a principle of customary international law.

There are a lot of interesting elements to the UDHR, but let’s for a moment focus on Article 14(1): “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

If Article 14 is the officially non-binding human right, the binding version is expressed in Article 33 of the 1951 Refugee Convention: “1. No Contracting State shall expel or return (” refouler “) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” The concept of “expel or return” also extends to not turning back people seeking asylum at the borders. So here we have a codified, binding right to seek asylum from persecution in another country.

But what about the part of “enjoying” asylum? The word was probably not intended to reflect “enjoyment” in the sense of amusement parks, beach holidays, or eternal happiness. However the fact that “seek” and “enjoy” are listed separately implies that crossing the border is “seeking” asylum, and “enjoying” asylum is something different.

Some of “enjoying” asylum might be related to the standards of treatment as a refugee. The 1951 Refugee Convention states a number of rights and privileges to which refugees should have access – rights to things like employment, education, and documentation, some of which we discussed in a previous post – but many of these rights, at least as written in the Convention, indicate that refugees should have rights comparable to those of other foreigners, and only in some limited cases should refugees enjoy rights on equal footing to nationals. There is an interesting article by Alice Edwards, which looks at exactly this topic as applied to the right to employment and the right to family life. Edwards concludes that, “There is no doubt that the 1951 Convention retains its ‘central place in the international refugee protection regime’ [ …] Yet it is similarly clear that the 1951 Convention does not cover the many rights nor deal with the range of issues facing forcibly displaced persons today.” (read the whole article here) Some of the main thrust of Edwards’ article is whether international human rights law or instruments such as the ICCPR or IESCR might fill the gap where the 1951 Convention does not fully ensure a meaningful existence for refugees.

Abstract: “Increasingly hard-line and restrictive asylum policies and practices of many governments call into question the scope of protections offered by the 1951 Convention relating to the Status of Refugees. Has the focus on the 1951 Convention been to the detriment and subordination of other rights and standards of treatment owed to refugees and asylum-seekers under international human rights law? Which standard applies in the event that there is a clash or inconsistency between the two bodies of law? In analysing the interface between international refugee law and international human rights law, this article looks at the right to family life and the right to work. Through this examination, content and meaning is offered to the almost forgotten component of the right ‘to enjoy’ asylum in Article 14(1) of the Universal Declaration of Human Rights 1948.” (Edwards, Alice, Int J Refugee Law (2005)17 (2): 293-330. doi:10.1093/ijrl/eei011First published online:April 26, 2005)

 In addition to standards of treatment, one could also consider whether the concept of “durable solutions” might also fit within this concept of “enjoyment” of asylum. UNHCR’s Mandate charges the High Commissioner with  “providing international protection … and of seeking permanent solutions for the problem of refugees.” These permanent solutions are local integration, voluntary repatriation, and resettlement. UNHCR is charged with finding a solution for refugees – but States do not have an obligation in this direction, beyond a general one to aid UNHCR in its general efforts.

So what is really happening?

Well, on balance, the ability to seek asylum is pretty widely established, and generally well respected, although there are some substantial exceptions (Australia and EU, we are looking at you!). There has been an increasing push towards return, particularly to Somalia and also Afghanistan; where return is voluntary, it can be a durable solution, but if involuntary, return would constitute refoulement (cf Art 33).

Enjoyment of asylum is lagging behind. Although UNHCR estimates that some 60% of all refugees  (and 80% of internally displaced persons) live in urban and rural areas outside of camps, still, almost 8 million refugees are languishing in camps. Often, populations in camps have movement restrictions or strict encampment policies requiring them to live in camps, often without the right to work and therefore dependent on humanitarian aid for survival. Humanitarian aid which may then become limited as funding decreases and new situations arise.

“For decades, the default response to refugee crises has been to set up camps or settlements and coerce refugees into them. Camps, it was argued, were best suited to meet the social, economic and political realities in which refugees are living. Yet a significant body of research has demonstrated the exact opposite, pointing to the fact that those refugees who have opted out of the camp system – even when that means forgoing any humanitarian assistance – have established an effective alternative approach to exile. They have managed to live in areas where they feel more secure, and have engaged in the local economy. Far from being passive victims, they have taken control of their lives, often without any external assistance. Until recently, however, there has been strong resistance to modifying policy to reflect this reality and harness the potential of refugees: the settlement model has suited the powerful interests of governments and UNHCR alike.” (full article)

In a recent UNHCR study surveying 90 operations, there were still substantial restrictions and barriers to accessing basic services, movement, employment, or agricultural opportunities, even for those populations living outside of camps.

We also have to take into consideration the length of time during which refugees are refugees. UNHCR frequently quotes the statistic of an average of 17 years (!) (although the source and veracity of that statistic has come to be questioned) in order to emphasize the point that refugees do not generally enjoy a brief stay before returning home; often, the displacement can last decades or generations. A US State Department report, quoting UNHCR, indicates that “UNHCR estimates that the average length of major protracted refugee situations is now 26 years. Twenty-three of the 32 protracted refugee situations at the end of 2015 have lasted for more than 20 years.”

Former UNHCR staffer, who headed the Za’atri refugee camp in Jordan, pointed out in a recent interview that,

“These are the cities of tomorrow, The average stay today in a camp is 17 years. That’s a generation. In the Middle East, we were building camps: storage facilities for people. But the refugees were building a city. I mean what’s the difference between someone in Philly and somebody in a refugee city? We have to get away from the concept that, because you have that status – migrant, refugee, martian, alien, whatever – you’re not allowed to be like everybody else.”

An interesting ODI study found that,

“Most displacement crises will persist for many years. A rapidly resolved crisis of any significant proportions is a rare exception. Data from 1978–2014 suggests that less than one in 40 refugee crises are resolved within three years, and that ‘protractedness’ is usually a matter of decades. More than 80% of refugee crises last for ten years or more; two in five last 20 years or more. The persistence of crises in countries with internal displacement is also notable. Countries experiencing conflict-related displacement have reported figures for IDPs over periods of 23 years on average. Understanding the likelihood of protractedness from the outset – and well before the five years that is the current UNHCR threshold for protracted refugee situations – should influence the shape and duration of national and international interventions.”

So where to now?

The conclusion is and should be that short-term approaches are not sufficient; that having asylum-seekers and refugees is a long-term commitment; that efforts towards self-reliance, livelihoods, and sustainability are important; and that it is not just enough to be able to seek asylum – refugees must be able to enjoy it, in some meaningful sense of the word. Efforts such as UNHCR’s Policy on Alternatives to Camps are a good start, but must be matched by hosting state commitments such as the fifteen countries who committed during the September 2016 summit to take concrete action to improve refugees’ ability to work lawfully by adopting policies that permit refugees to start their own businesses, expanding or enacting policies that allow refugees to live outside camps, making agricultural land available, and issuing the documents necessary to work lawfully.

From Dadaab to Despair: what now for this so-called “voluntary” return to Somalia

Did you know that the third-largest city in Kenya is a refugee camp? Did you know that some of the the residents of that camp have been there for three generations?  Did you know that now they are going “home”, a place most of them have only heard of, whether they like it or not?

Welcome to the largest refugee camp in the world: Daadab, a place where  1,000 babies are born every month, but only 2,000 leave each year. Dadaab was built in 1992 for 90,000 refugees fleeing the war in Somalia. Today it is home to an estimated half a million people, 350,000 of them registered refugees – “an urban area the size of Bristol, Zurich or New Orleans.” It is now considered the largest refugee camp in the world.

Conditions are difficult at best: “The residents cannot work and cannot leave. Permanent structures are forbidden: there must be no bricks, no concrete, no power lines; no proper roads, no sanitation, no drainage and no toilets.The half a million inmates use pit latrines for toilets, and there is a shortage of 35,000.”

But the camp should not be seen only as a burden on Kenyan society: despite Kenya’s strict encampment policy, a report commissioned by the governments of Norway, Denmark and Kenya in 2010 found that the camps’ businesses generated an annual turnover of $25m (£17.5m). The host community earned $1.8m from the sale of livestock alone to refugees.And the camp itself has its own economy and elections, where “these days, in the market, you can buy everything from an iPhone to an ice-cream.” Nevertheless, the government resists any constructions that “looked too much like real houses”, and it has torn down illegal power lines; refugees are not allowed to work, even if they manage to obtain diplomas.

Despite strong reasons why Kenya may wish to consider local integration, in reality few durable solutions are available, as Kenya does not allow local integration in any meaningful sense, and with extremely limited resettlement opportunities – only 43,000 departures of Somalis from Kenya since 2003 – refugees in Dadaab are essentially trapped if they are unwilling to return to Somalia.

The end of an era?

And now, after 25 years, Dadaab may close.

In 2013, Kenya, Somalia and the refugee agency UNHCR signed a tripartite agreement which would have facilitated refugees voluntarily move to Somalia followed by a pilot programme in 2014-2015 in which around 2,500 people returned to Somalia. As UNHCR describes it,

On 2 April 2015, Al-Shabaab militants launched an attack on the University College of Garissa in Kenya, killing 148 Kenyan students. In the aftermath of the attack, the political leaders of Kenya’s North Eastern Region called for the closure of the Dadaab camps, and a number of senior Government officials called for UNHCR to repatriate all Somali refugees in Dadaab to Somalia. However, after a series of démarches reaffirming the voluntariness of the repatriation process, Kenya, Somalia and UNHCR jointly reaffirmed their commitment to a coordinated and humane return process in accordance with the Tripartite Agreement. To this end, the Tripartite Commission was formally launched on 21 April 2015 to oversee the implementation of the Agreement

In May 2016, the Kenyan government announced plans to speed up the repatriation of Somali refugees and close the Dadaab camp in northeastern Kenya by November. Kenyan authorities, with officials from the United Nations High Commissioner for Refugees (UNHCR), then stepped up a 2013 “voluntary” repatriation program.

Defining the terms: “voluntary repatriation”

Voluntary repatriation is defined as the “return in safety and in dignity to the country of origin” and re-availment of national protection. In order for the return to be voluntary, refugees must be genuinely free choice about whether to return and be fully informed about conditions in their home country

According to Human Rights Watch, returns under the ongoing program amount to refoulement, because they are neither voluntary nor fully informed decisions:

Refugees said the government’s decision to close the Dadaab camp had left them feeling trapped. They are afraid to return to Somalia, but also afraid of being arrested and deported if they stay in Dadaab until the November deadline. Many have therefore chosen to take US$400 in cash as part of a UNHCR-returns assistance package because they believe that if they don’t, they will be summarily deported later this year with nothing.

HRW alleges that the Kenyan authorities are insisting on closing the camp, irrespective of whether any refugees wish to stay, are cutting rations in an effort to encourage or force refugees to opt for the repatriation “package” which includes $400 and 3 months’ food rations, and are not being honest about the situation in Somalia. HRW also pointed out that UNHCR’s information regarding Somalia is not correct, or is at odds with other information published by UNHCR:

UNHCR-Somalia officials acknowledged to Human Rights Watch that their assessments indicate that conditions in south-central Somalia are not conducive to mass refugee returns in safety and dignity. UNHCR’s latest assessment in May found: “Civilians continue to be severely affected by the conflict, with reports of civilians being killed and injured in conflict-related violence, widespread sexual and gender-based violence against women and children, forced recruitment of children, and large-scale displacement.”

The information that UNHCR provides to refugees in Dadaab seeking to make an informed choice about returning, however, is mostly superficial and out of date, and sometimes misleading, Human Rights Watch said.

UNHCR “shares some of the concerns” recently raised by Human Rights Watch but did not specifically endorse the allegations.

Returns: but where to?

In August 2016, Kenya decided to “hold back its decision to close Daadab camp until peace in Somalia is restored,”  and although refugee verification exercise is complete, the process of repatriation may take longer given the security situation in Somalia.

Also in August, “Authorities in southern Somalia say they have blocked Somali refugees returning from Kenya because the refugees do not get the humanitarian support they need once they reach major cities.” Returnees are given a cash grant and transportation, but they are returning to areas where adequate shelter, food, and water do not exist, not to mention educational and medical facilities already overstretched with IDPs sheltering in those areas.

Following HRW’s allegations in September 2016 that Kenya is harassing and intimidating Somali refugees to return home when it is not safe to do so, Kenya rejected the allegations nevertheless reaffirmed on Thursday its plan to close the camp by November.

As a recent op-ed described it,

“It is impossible to call what is happening “voluntary” by any definition of the word. Yet both Kenya and UNHCR persist in doing so. This is a betrayal of the refugees and a dangerous precedent. Now, other countries in the region want their own tripartite agreement. Kenya has shown how to push UNHCR into a corner and close a refugee camp in the absence of any of the normal criteria for doing so. Europe and the United States, having abrogated any moral high ground on protecting refugees, are easily shamed by Kenya into pledging money toward the returns process, lending weight and momentum to the farce.”

 

 Read the full HRW report: Kenya: Involuntary Refugee Returns to Somalia:  Camp Closure Threat Triggers Thousands Returning to Danger, Human Rights Watch, 14 September 2016.

 

 

Cash not stuff: humanitarian assistance of the future?

Header: Cash Atlas

The logic of providing cash assistance instead of stuff is pretty simple: it’s more efficient and more effective; it’s more accountable; and it allows recipients some sort of agency. Traditional aid is supposed to be needs based, but in the end is subject to global procurement contracts favoring economies of scale, earmarked funding by donors, and the whims of changing global priorities that may result in the distribution of items because they are in the warehouse whether or not the beneficiaries want or need them.

It’s more efficient, because it does not need to be packaged, shipped, and distributed. With low distribution costs, more of the money actually goes to the recipient. It’s more effective, because recipients of blankets or other non-food items may sell them to obtain what they really need (as anyone who has traveled in certain countries and seen the wide range of uses to which UNHCR plastic sheeting has been put). It’s more accountable, because anti-fraud safeguards can be built in, the assistance is attributed to a specific individual or family, and there could be less vulnerability to corruption related to procurement contracts that can plague humanitarian assistance (i.e. USAID suspending funds to major aid groups after finding corruption in Syrian aid pipeline). Finally, cash assistance recognizes that recipients have agency and should be able to decide for themselves what their most important needs are.

And interestingly, cash has impacts in the wider economy, since the money given to the beneficiary is then spent on goods and services in the host community. For example, in an evaluation of the cash assistance programme in Lebanon, the study noted that cash assistance “has significant multiplier effects on the local economy. Each dollar that beneficiaries spend generates 2.13 dollars of GDP for the Lebanese economy.”

Cash for everyone, right?

It’s not a one-size-fits-all solution nor a panacea, and there are a few preconditions necessary. As World Vision, one of many NGOs involved in provision of cash assistance, describes it, “The ability of cash transfers to deliver their promise fundamentally depends on whether or not they are calculated at a fair value and for a sufficient duration to accomplish the programme objectives. In short, cash transfers are neither a panacea for the global humanitarian financing gap nor a long-term solution to ending conflict, where 80% of humanitarian resources are currently directed.”

First of all, sufficient basic financial infrastructure or systems may be required:

“To realize a global scale-up in cash transfers, countries facing crises must have the necessary infrastructure and financial services in place to make payments safely and efficiently. E-payment mechanisms, including mobile-based money transfers and cardbased payments such as prepaid debit cards, are effective tools that enable efficient and scalable transfers, improve transparency, and mitigate fraud in humanitarian response. However, these tools are not present in all countries. E-payment tools are increasingly common, but as yet impractical in countries with weak digital and financial infrastructure, regulatory environments, and/ or financial institutions.”

Second, it requires the existence of markets with sufficient supply of basic necessities, which may not exist in remote locations or post-disaster areas.

Third, the programme needs to be designed in a way that mitigates risks of fraud (both in terms of selecting beneficiaries as well as technical protections such as iris scans at ATMs) or of protection vulnerabilities, and programme design will need to think carefully about how to ensure the most vulnerable of the population have access to the services. The targeting strategy will often have to take into consideration competing priorities in different sectors, particularly if the cash assistance is intended to be unconditional and multipurpose. And the programme design will have to consider if the cash assistance programme results in market distortions or inflated prices.

In a survey of available literature evaluating cash programmes, in terms of emowerment (relating to many themes that would often be characterized under the heading of “protection”), the study found that,

“The available evidence shows that transfers can reduce physical abuse of women by men, but also that they may increase non-physical abuse, such as emotional abuse or controlling behaviour. It supports both the theory that increased income lowers stress-related abuse and the theory that increased income enables the woman to bargain out of abuse. The relatively strong evidence that decision-making power increases for women in the beneficiary household also offers substance to this latter theory. Other evidence reveals that risky sexual behaviour and early marriage differ by gender, but for both girls/women and boys/men increased income to an extent lifts the constraints that drive engagement in these behaviours. In the case of women and girls, the evidence that directly or indirectly receiving a transfer reduces the likelihood of having multiple sexual partners indicates that cash transfers may reduce the incidence of relationships that are transactional. Taken together, the evidence in this section points to cash transfers having a positive impact on women’s choices as to fertility and engagement in sexual activity. In the case of men and boys, some of the evidence collected here suggests that cash transfers do not have the same effect of reducing risky sexual activity, and in fact may lead to an increase in this type of behaviour.”

Finally, there are factors such as duration of programme, amount of assistance, gender of main recipient, and timing and frequency of asistance all influence how successful the programme may be in terms of impacts in individual sectors.

Distribution of Non food items

But does it really do all it says on the tin?

Luckily, cash assistance being in fashion does mean that there are quite a lot of studies interested in measuring its effectiveness, usefulness, and everything else-ness that one could possibly want to measure.

But preliminary findings do indicate that cash assistance has positive impacts on poverty, education, savings, health, nutrition, and empowerment. Employment seems not to be substantially impacted by cash assistance. In the same study surveying available literature evaluating cash programmes, the study findings are as follows:

Monetary poverty

There is a comparatively large evidence base linking cash transfers to reductions in monetary poverty. The evidence extracted consistently shows an increase in total and food expenditure andreduction in Foster–Greer–Thorbecke (FGT) poverty measures.

Education

Overall, the available evidence highlights a clear link between cash transfer receipt and increased school attendance. Less evidence and a less clear-cut pattern of impact is found for learning outcomes (as measured by test scores) and cognitive development outcomes (information processing ability, intelligence, reasoning, language development and memory), although,interestingly, the three studies reporting statistically significant findings on the latter all report improvements in cognitive development associated with cash transfer receipt.

Health and nutrition

Evidence of the impacts of cash transfers across all three indicator areas – use of health services, dietary diversity and anthropometric measures – was largely consistent in terms of direction of effect, showing improvements in the indicators. On the whole, the available evidence highlights how, while the cash transfers reviewed have played an important role in increasing the use of health services and dietary diversity, changes in design or implementation features, including complementary actions (e.g. nutritional supplements or behavioural change training), may be required to achieve greater and more consistent impacts on child anthropometric measures.

Savings, investment and production

Overall, impacts on savings, and on livestock ownership and/or purchase, as well as use and/or purchase of agricultural inputs, are consistent in their direction of effect, with almost all statistically significant findings highlighting positive effects of cash transfers, though these are not universal to all programmes or to all types of livestock and inputs. This is an important finding as, with the exception of one programme, none of the cash transfers analysed focuses explicitly on enhancing productive impacts. Impacts on borrowing, agricultural productive assets and business/enterprise are less clear-cut or are drawn from a smaller evidence base.

Employment

The evidence extracted for this review shows that for just over half of studies on adult work (participation and intensity), the cash transfer does not have a statistically significant impact. Among those studies reporting a significant effect among adults of working age, the majority find an increase in work participation and intensity. In the cases in which a reduction in work participation or work intensity is reported, these reflect a reduction in participation among the elderly, those caring for dependents, or they are the result of reductions in casual work.

Resources and specific studies:

• The Cash Learning Partnership (CaLP) maintains a database of studies and reports that are searchable by country, modality, sector, organization, etc.
• CaLP also has a lovely cash atlas, which is an interactive map/infographic of cash programmes
• UNHCR’s Interagency sharing portal, collecting resources and studies related to basic assistance in Syria, Jordan, Lebanon and Turkey
• Cash Transfers: What Does the Evidence Say? A Rigorous Review of Impacts and the Role of Design and Implementation Features (ODI, July 2016)
• The Other Side of the Coin: The Comparative Evidence of Cash and In-Kind Transfers in Humanitarian Situations? (World Bank, June 2016)
• Emergency Economies: The Impact of Cash Assistance in Lebanon (IRC, August 2014)
• UNHCR Innovation: Biometric cash assistance
• The Economics of Humanitarian Aid: Are We on a Slippery Slope? (International Growth Centre Blog, June 2016)
• For Humanitarian Response, a Cash-based Payment Consensus (Devex, June 2016)
• A Case for Cash: Crisis and Disaster-affected Populations’ Perspective (Cash Learning Partnership)
• Cash Transfers in Humanitarian Contexts: Strategic Note (World Bank, April 2016)
• The surprisingly simple economic case for giving refugees cash, not stuff
• Preventing Corruption in Humanitarian Operations (Transparency International, 2014)
• Risk and humanitarian cash transfer programming (ODI, October 2015)
• Doing cash differently:How cash transfers can transform humanitarian aid (ODI, September 2015)

“Who you gonna believe, me or your lying eyes?” Eyewitness testimony, trauma, and assessing ‘credibility’ of refugees

Anyone who has had anything traumatic happen to them may have difficulty articulating it. “It all happened so fast,” some might say. “It was all a blur.” It may become difficult to remember exactly what happened; or, the actual memories may be flashes of sensations: images, sounds, tastes, feelings, impressions. It may be difficult to remember exactly what happened, and it may be difficult to describe to someone else.

Eyewitness testimony has been proven to be quite unreliable in terms of presenting a true version of accounts. Trauma also impacts how we form memories and how we relate them, including what details we remember. This has huge implications for asylum-seekers, who are often asked to give detailed, precise accounts of their persecution, and are then considered “not credible” if there are exaggerations, discrepancies, or incoherency in their accounts.

Limitations of eyewitness testimony

BBC did a series called Eyewitness, where they stage a fictional crime in front of a pub-full of test subjects, whom they then ask for eyewitness testimony as to the circumstances of the crime and the murderer. As it turns out, it’s harder than it seems to correctly identify the assailant and describe the crime. Take a look:

There is are two interesting TED talks that discuss the limitations of eyewitness testimony, and also how we can manage to form false memories – remember things that did not happen, or remember things differently than how they actually happened.

As Elizabeth Loftus, a psychologist who worked on a the case of a man who was wrongly convicted of rape based on the faulty memory of the victim, describes it, “Many people believe that memory works like a recording device, you record the information, then call it up and play it back when you want to answer questions or identify images. But decades of work in psychology have shown that this just isn’t true. Our memories are constructive, are reconstructive. It works more like a Wikipedia page: you can go and change it – but so can other people.”

Leading questions, interrogations and torture

Refugee status is determined by a process that involves an in-depth interview about the person’s circumstances – how and why and when they fled their country, and why they may not want to return. Yet, the way the questions are phrased has a substantial impact on the answer received. Leading questions, which suggest to the interviewee the answer that the interviewer expects, or plants in their mind a certain thought which taints the validity of the answer.

For example, in asking the question. “is this the man that you saw murder the shopkeeper?” the interviewer has suggested that (a) the culprit was a man; (b) the witness definitively saw them; (c) the police believe him to be the culprit; (d) and the word ‘murder’ implies deliberation.

Another example of a leading question might be to ask a witness, “Which one of these people is the one you saw committing the crime?” you suggest to the witness that the guilty party is among the suspects. If you ask instead, “Do you recognize anyone from this lineup? The person who committed the crime may or may no be present.” Leading questions, discussion with other witnesses, and external information impact the content of the testimony.

False memories and suggestability

In an attempt to test the reliability of eyewitness testimony, and susceptibility to suggestion, Loftus and Palmer did a study in 1975 on about 400 participants who watched videos of fast-moving events, and established that leading questions can lead witnesses to describe scenes that they did not see.

In one study, researchers studied a military training exercise where participants, all members of the military, were subjected to a kidnapping/hostage situation (fun fact: they have these trainings for humanitarian workers too!). The participants were aggressively interrogated for 30 minutes and then were asked to identify who had been the person interrogating them. Researchers found that giving suggestive information about one or another of the suspects results in the “victims” mistakenly identifying someone who doesn’t even physically resemble the actual perpetrator – in 85% of the cases!

Describing Lofus’ work the article notes,

“The study of misinformation and false memories have consistently shown that human beings are highly susceptible to suggestion. Much of the work has focused on creating or changing people’s memories of the past. Loftus gave several humorous examples of memories that her team has been able to plant in substantial portions of the people in their studies, including convincing people that they had gotten sick from eating strawberry ice cream or the Pluto character at Disneyland had licked “their ears disturbingly and uncomfortably” when they were young children.”

Some things to keep in mind with respect to how memories work:

• Reconstructive memory: people store information in the way that makes the most sense to them. We try to fit what we remember with what we really know and understand about the world.  As a result, we quite often change our memories so they become more sensible to us, and fill any missing bits with something that makes sense to us, or allows us to make sense of the event – which means that we can remember things that did not actually happen.

• Time: Memories change over time. They naturally decay over time, they can become distorted, or they may become more vivit. People remember more details with repeated recalls, and also with new detail added.It can be extremely difficult to recall accurately separate incidents that were repeated.

• Weapon Focus: In events where there is a weapon involved, people tend to focus on the weapon itself to the exclusion of other details.

• Specific dates and facts: “Memory for facts is better than memory for the source of those facts, so asking someone how they came toknow a fact is not a good way of testing knowledge. Memory for temporal information such as dates, times, frequency, duration and sequence; proper names; verbatim of verbal exchanges; peripheral information;and the appearance of common objects are notoriously unreliable and may be difficult or impossible to  recall.” (source, p 58)

• Anxiety / Stress: Impacts how people form memories and how they recall them.

As the 2013 report on assessing credibility, Beyond Proof, Credibility Assessment in EU Asylum Systems, notes,

“A wealth of research in the field of psychology reveals that there is a wide-ranging variability in a person’s ability to record, retain, and retrieve memories. Some people appear to recall memories more easily than others. Indeed, many people struggle to recall facts and memories of past events. Moreover, psychological research has consistently shown that memories of even the most important, traumatic, or recent life events can be difficult to retrieve and recall with any accuracy. Inconsistency, loss of detail, and gaps in recall are a natural phenomenon of the way a person records, stores, and retrieves memories.”

Trauma and memory

For refugees, who have left their home fleeing a fear of persecution or death, there is a substantial likelihood that they have experienced traumatic events, and particularly the events leading to flight may well have been traumatic.

Psychological literature indicates that memories of traumatic events differ significantly from normal memories. There is ample evidence that the need to cope with traumatic experiences affects memory. There is also a substantial body of research that demonstrates the effects of trauma on recall and behaviour.

The ECHO report gives a very comprehensive look on how trauma affects an applicant’s ability to relate their asylum claim. It’s worth reading the whole report, but particularly chapter 2. Here’s a very long excerpt:

 “Those who have suffered traumatic events often display avoidance symptoms; that is, they avoid thinking and talking about the event, and/or avoid situations that might trigger a recall. This is a normal survival strategy, which would need to be suppressed to facilitate disclosure of all relevant information in an asylum interview. As such, it may be extremely difficult, very distressing and potentially detrimental for the applicant to disclose such traumatic memories. Moreover, the applicant may not even be conscious that he or she is avoiding triggers or situations that could cause traumatic memories to recur. Avoidance may explain an applicant’s apparent refusal to answer a question, omission of relevant information from testimony, vagueness and apparent inconsistencies if relevant facts are recalled later in the asylum process.

Studies have also shown that applicants who have lived through traumatic events may experience dissociation.Dissociation can happen either at the time of the traumatic event or later when recalling it. Dissociation at the time of the traumatic event may hinder the person’s encoding of the event in memory. The applicant may experience dissociative amnesia – that is, an inability to remember some or all aspects of the trauma, because the event, or aspects of the event, was never initially encoded. Dissociation may be a reason why there is a lack of detail, vagueness, incoherence, or gaps in an applicant’s recall. Dissociation may also occur at the moment a person is asked to recall a traumatic event. The person may appear distracted and detached, and/or appear unwilling to cooperate. […]

Memories of traumatic experiences can be qualitatively different from other autobiographical memories. An applicant may have no memorized verbal narrative of the trauma that occurred, but only sensory impressions such as emotions, sensations, sounds, smells, or visual images like flashbacks and nightmares. Such memories are not evoked voluntarily, but they are provoked by triggers or reminders of the traumatic event. When triggered, the individual may relive an aspect of the experience as though it is occurring in the present. Therefore, an applicant who has experienced trauma may be unable to produce a coherent verbal narrative because none exists; this may mean only fragments or impressions of the experience may be related. Since sensory impressions are not evoked voluntarily, it is also possible that recall may be different in different interviews.”

Assessing credibility

Based on the above discussion, it might be fair to say that, “We can’t reliably discover true memories from false memories”. The goal of the interview and assessment, however, shouldn’t be to obtain the “truth”, rather to obtain the version of events as the applicant understands them with as little outside interference as possible.

Fear and lack of trust, cultural backgrounds, education, gender, age, sexual orientatoin or identity, stigma and shame, and other aspects of the applicant’s background may also impact the applicant’s ability to tell their story, or the way that they tell it. There is quite a lot that has been written on evaluating credibility, and there is not space here to recap. But some of the factors that adjudicators consider when assessing asylum claims, such as sufficiency of detail and specificity, internal and external consistency (consistency within the statement and also compared to the statements of family members and available external evidence), and plausibility can all be impacted by the intersection of trauma and memory. The kinds of inconsistencies and discrepancies that might lead an adjudicator to believe that the person might not be credible:

In a study of Kosovan and Bosnian refugees, researchers found that “Discrepancies between an individual’s accounts were common. For participants with high levels of post­traumatic stress, the number of discrepancies increased with length of time between interviews. More discrepancies occurred in details peripheral to the account than in details that were central to the account.
Conclusion The assumption that inconsistency of recall means that accounts have poor credibility is questionable. Discrepancies are likely to occur in repeated interviews. For refugees showing symptoms of high levels of post­traumatic stress, the length of the application process may also affect the number of discrepancies. Recall of details rated by the interviewee as peripheral to the account is more likely to be inconsistent than recall of details that are central to the account. Thus, such inconsistencies should not be relied on as indicating a lack of credibility..” (Source)

Distorting the evidence – accusatorial interrogation and torture

It has also been established that the style of the interview or interrogation can impact the results obtained. TV police procedural dramas like to portray “good cop/bad cop” or aggressive interrogation “techniques”. As it turns out, “accusatorial methods also significantly increased the likelihood of obtaining a false confession – a rather medium-to-large effect that is consistent with many cases of wrongful conviction in the United States.” (And about 75 percent of the wrongful convictions in the United States were convictions based on so-called eyewitness testimony). There is also mounting evidence to support the conclusion that evidence from torture is unreliable – people will say anything to stop torture – and much of the information obtained by torture not actionable, already provided prior to torture, or not reliable information. According to the CIA torture report, torture yielded false confessions and information previously obtained through alternative sources – and there is a lot of the scientific research supporting this conclusion.This confirms the assertion by a 2006 Intelligence Science Board report that very succinctly denied that torture was effective:

“The scientific community has never established that coercive interrogation methods are an effective means of obtaining reliable intelligence information. In essence, there seems to be an unsubstantiated assumption that ‘compliance’ carries the same connotation as ‘meaningful cooperation.’ ”

The case of Russell Williams, a former colonel of the Canadian Air Force who was a serial rapist and murderer who confessed after about four hours of interrogation, is a useful contrast to assertion that torture is needed to elicit confessions. Much of the video of the interrogation is available on youtube – below only an excerpt describing a couple of the tactics used by the interviewer.

Now you have refugees, what are you meant to do with them? A look at the travaux préparatoires on the “lawful stay”, rights to primary education and employment

Following our Happy Birthday wish to the 1951 Convention, we gave a very short introduction to some of the interesting bits of that Convention.  Here, we discuss some of the elements in the Convention, with a look back at the Travaux Préparatoires. The travaux préparatoires provide a look at what each of the States parties negotiating the treaty thought about the wording of each of the Articles, and a discussion on the meaning or intention of many of the provisions.

Convention standards for juridical status, employment, welfare,  and administrative measures such as freedom of movement

On the subject of welfare, the Convention has several articles, dealing, respectively, with rationing, housing, public education, public relief, and labour legislation and social security (articles 20 through 24). So does that mean that as soon as someone shows up, they are entitled to every benefit of one’s generous welfare society?

Not precisely. Interestingly, the Articles make a few distinctions: some articles require that you treat refugees the same way as you treat nationals, and others require that you treat refugees as well as possible and/or not worse than other aliens in the same circumstance. Some of the articles make a distinction between refugees and refugees lawfully staying in their territory. Let’s take some examples:

	Refugees	Refugees lawfully staying
Accord “the same treatment as nationals”	Rationing, “Where rationing exists, which applies to the population at large and regulates the general distribution of products in short supply” (Art. 20); Public elementary education (Art. 22(1));	Public relief and assistance (Art. 23); Labour legislation and social security: laws and regulations pertaining to working conditions; social security; compensation/redress for occupational accidents or death (Art. 24(1)).
Accord “the most favorable treatment accorded to nationals of a foreign country, in the same circumstances”		Right of association (Art. 15); Wage-earning employment (Art. 17(1)).
Treatment “as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances:	Movable and immovable property (Art. 13); Education other than elementary, “in particular as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships”. (Art. 22(2)).	Self-employment , “the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies” (Article 18); Liberal professions, “who hold diplomas recognized by the competent authorities of that State, and who are desirous of practicing a liberal profession,” (Art. 19(1)); Housing, “So far as the matter is regulated by laws or regulations or is subject to the control of public authorities” (Art. 21).

What do we mean by lawfully staying?

The distinction between refugees (generally) and refugees lawfully staying in the territory is one made throughout the 1951 Convention. According to the travaux préparatoires:

[T]he mention of ‘refugees’ without any qualifying phrase was intended to include all refugees, whether lawfully or unlawfully in the territory. (Art. 20)

The expression ‘lawfully within their territory’ throughout this Draft Convention would exclude a refugee who while lawfully admitted has overstayed the period for which he was admitted or was authorized to stay, or who has violated any other conditions attached to his admission or stay.’ (TP, Art. 15)

The discussion around “lawfully staying” draws a distinction between “lawfully staying”, “unlawfully staying”, and “lawfully in (but not resident of)”. It is related to the manner of entry, and the final phrase resulted at least partially from difficulties in translating French terms such as résidance habituelle and se trouvant régulièrement into English, because of differences in the meaning between résidance and the somewhat more permanent residence (domicile and sojourn were suggested as possible alternatives). The same can be inferred from Article 31 (“Refugees Unlawfully in the Country of Refuge”), which prohibits States from imposing penalties on those who enter or are in the territory “without authorization”. Interestingly, Article 31(2) discussions what restrictions of movement may be applicable “until their status in the country is regularized or they obtain admission into another country.” But there is no requirement for permanent asylum or a specific legal status of refugees.

The Travaux conclude with the following definition:

It results from the travaux préparatoirs that any refugee who, with the authorization of the authorities, is in the territory of a Contracting State otherwise than purely temporarily, is to be considered as ‘lawfully staying’ (‘résidant régulièrement’).

Hathaway makes the point that that “a refugee is lawfully staying (résident régulièrement) when his or her presence in a given state is ongoing in practical terms. This may be because he or she has been granted asylim consequent to formal recognition of refugee status. But refugees admitted to a so-called “temporary protection” system or other durable protection regime are also lawfully staying. So long as the refugee enjoys officially sanctioned, ongoing presence in a state party, he or she is lawfully staying in the host country; there is no requirement of a formal declaration of refugee status, grant of the right of permanent residence, or establishment of domicile.” The footnote to this paragraph notes, “This understanding is consistent with the basic structure of the Refugee Convention, which does not require states formally to adjudicate status or assign any particular immigration status to refugees, which does not establish a right to permanent ‘asylum,’ and which is content to encourage, rather than to require, access to naturalization.” (p. 730)

What’s the point? Rights in practice

Education

If we return to the table above, we see that some of the rights, such as rationing and public elementary education, are meant to be extended to any refugee (= anyone with a well-founded fear of persecution etc etc) on the same basis as nationals. There should be no distinction between refugees and nationals, and (according to Article 3) with no discrimination on the basis of race, religion, or country of origin. In practice, however, there are quite a lot of challenges in ensuring refugees’ access to primary education: some of the countries that have not signed the 1951 Convention may treat refugees as illegal migrants and restrict their access to schooling; educational opportunities may be limited and often vary accross camp and urban settings within a country; and refugees face frequent disruptions to their schooling. But issues about education for refugees is a whole other post.

Right to wage-earning employment

Dr Paul Weis, in his commentary to the Travaux, characterized this Article as “one of the most important.” Refugees  lawfully staying are to be accorded “the most favorable treatment accorded to nationals of a foreign country, in the same circumstances”.

The second paragraph does not mean that refugees must be granted national treatment. In many countries aliens require a work permit and in this case, it is required of refugees, too, unless they have been specifically exempted from it, but it
has to be accorded to them ex officio if they fulfil any of the conditions stipulated in paragraph 2. It does not exclude conditions attached to the admission of refugees or their stay. Measures for the protection of the national labour market are either measures imposed on aliens such as restrictions in time or space or concerning employment in certain occupations, or restrictions on the employment of aliens such as fixing a certain number or percentage of aliens in general or in certain occupations or enterprises, or the provision that aliens may only be employed if no nationals are available for the job in question. As the Article provides that refugees shall be ‘exempt from restrictions’ it would seem not to exclude the imposition of restrictions in the future. Only restrictions for the protection of the national labour market are excluded, not measures taken in the interest of national security such as the prohibition of employment of aliens in defence industries. The prohibition of the employment of aliens in the civil service or in certain categories of the civil service which exists in many countries, is also not excluded.

Right to self-employmet

On the other hand, we have the rights to housing, liberal professions and self-employment, which are limited to refugees lawfully staying in a territory and the treatment should be “as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.” So if a restriction on exercising a profession would apply to a foreigner generally, that restriction would also apply to refugees. And this can be a big hurdle, because quite a lot of states have restrictions on foreigners working, exercising a profession, and owning businesses.

A look at the Travaux indicates that there was quite a bit of divergence in terms of States’ approach

The amendment was motivated in part by the fact that foreigners arriving in the UK were required not to engage in selfemployment without permission for a certain time, after which they were free to engage in any profession they choose.

The Turkish representative said under Turkish law, only nationals could be self-employed, and Turkey would consequently have to reserve its position on that Article, no matter what its wording. He thought the most acceptable solution would be to accord to refugees the treatment given to foreigners generally.

The Belgian representative was also in favour of according to refugees the treatment given to foreigners generally.

The US representative felt that solution would confer no real benefits on refugees, and wondered whether it might not be possible to find a third solution, whereby refugees would be granted not the most favourable treatment, but a treatment more favourable than that given to foreigners generally.

So what happens in reality?

Despite the very explicit protections for the right to work in the Convention, and complemented by other international instruments such as Article 6 of the International Covenant of Economic, Social, and Cultural Rights (ICESCR) (which provides the “right of everyone to the opportunity to gain his living by work which he freely chooses or accepts” unfortunately, the IESCR only requires States to “take steps” towards that right), there is still a long way to go on refugee employment: a number of states have outright bans on employment, and access to employment in countries where it is legal often have significant de-facto barriers, like strict encampment policies, fees for permits, or administrative barriers such as document or bank account requirements that may be in practice impossible to fulfill.

Let’s look at the right to self-employment. This should be understood to also encompass the opening of businesses. The article refers to the right to self-employment, “as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.” Self-employment “on his own account” was seen as a low-cost activity that states should simply “allow” to happen – but some scholars argue that this Article actually requires states to facilitate access to self-employment, i.e. access to arable land or remove administrative barriers.

But it’s not all bad news!

In South Africa, a precedent decision relied not only on Articles 17(1) and 18 of the Refugee Convention, but also an article of the South African Constitution that guarantees the right to human dignity, to hold that refugees and asylim-seekers have a right to open businesses to avoid starvation or destitution:

In Somali Association of South Africa, et al., v. Limpopo Department of Economic Development, Environment, and Tourism, Judge Navsa overturned the lower court’s ruling and held that, because refugees might be left destitute without the opportunity to open businesses, refugees have the right to open businesses in South Africa.

In doing so, the Court drew support from Articles 17(1) and (18) of the 1951 Refugee Convention, which clearly favor giving refugees the right to work and self-employment, but falls short of demanding that a State must allow refugees to work. The Court therefore grounded its holding in municipal law. Section 27(f) of South Africa’s Refugees Act of 1988 indicates that refugees are entitled to seek employment. Additionally, Section 10 of South Africa’s Constitution guarantees the right to human dignity.

The Court’s precedent in Watchenuka held that the constitutional right to human dignity required that refugees be given the right to seek employment. In Somali Association, the Court extended this logic to require that refugees be allowed to open new businesses: “[I]f… a refugee or asylum seeker is unable to obtain wage-earning employment and is on the brink of starvation, which brings with it humiliation and degradation, and that person can only sustain him or herself by engaging in trade, such a person ought to be able to rely on the constitutional right to dignity in order to advance a case for the granting of a license to trade…” As a result of these two decisions, refugees and asylum-seekers in South Africa now have the right to apply for and renew business permits and licenses. It is unlawful for the government to close permitted businesses or confiscate property.

But the judge did not stop with legal observations, further noting that “one is left with the uneasy feeling that the stance adopted by the authorities in relation to the licensing of … shops was in order to induce foreign nationals who were destitute to leave our shores.” The Court’s decision should go some length to ensure that “destitute” refugees can live in dignity in South Africa. (Full article here)

Happy birthday, Geneva Convention!

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.

[See Part 2: Now you have refugees, what are you meant to do with them?]

 

 

Heart of darkness: Life in the Northern Triangle and the failure of international protection (part 1)

Photo: Reuters

Imagine a place where numerous powerful, armed groups operate throughout the territory. In any given city or rural area, two or more of these groups may be active, and there are constant and extremely violent clashes over territory. These armed groups regulate the daily life in areas under their control through curfews, standards of behavior, and conduct surveillance to see who communicates with whom. Add to that, the armed groups frequently demand “rent” (extortion) from citizenry living in their areas of control, from rich and poor alike, from the lady selling food out of a cart to a rich landowner.

They also like to recruit youth, particularly young men, and membership in these groups is for life – any attempt to leave is punished with violent reprisals against the person in question or his or her family. Similarly, young girls are targeted to be forced into sexual “relationships” with members of the group; women and girls are frequently raped and murdered, by their own “partners” and also as reprisals by their “boyfriends'” enemies. Recruitment is not voluntary: either you join, or they assume you must be collaborating with another group and hence are a threat. Refusal to comply with a demand from a member of an armed group, in terms of  refusing recruitment, refusing payment, or refusing sexual relations, will result in death threats. Walking on the wrong side of the street, wearing the wrong clothes, or having the wrong hairstyle can similarly imply affiliation with a group. And death threats often result in  gruesomely violent death: decapitated, hung from bridges, beaten to death, shot multiple times in broad daylight, mutilated. There is almost complete impunity for these crimes: in some places, over 98% of murders go unpunished, because of lack of resources or capacity by the authorities, or because armed groups have infiltrated, corrupted, or threatened police, witnesses, and the judiciary, or because authorities are unwilling or unable to take on groups whose members reportedly number up to 85,000.

Welcome to the Northern Triangle, comprising Honduras, El Salvador and Guatemala. El Salvador, Guatemala, and Honduras consistently rank among the most violent countries in the world. More people were murdered in the city of San Pedro Sula, Honduras, than in the entire country of France in 2015 with a murder rate of 142 per 100,000. The number of homicides in San Salvador was equivalent to the number of homicides in the UK, France, and Germany combined. Sources describe that, “Gang-related violence in El Salvador brought its homicide rate to ninety per hundred thousand in 2015, making it the most world’s most violent country not at war.”  [click here to see homicide rates for South Sudan, Afghanistan, Liberia, Sierra Leone, Iraq and Haiti]. There is almost complete impunity for crimes, over 98% of murders and 95% of sexual attacks go unpunished (and apparently, 2 out of the only 3 shelters for rape survivors in Honduras operate as brothels).

If you lived in this kind of hell, where would you go? What would you do?

If you took your family’s savings and paid a smuggler to take you elsewhere, you would face a long overland journey where you could be subject to physical and sexual abuse (80% of women and girls crossing through Mexico from Central America report having been raped along the way), vulnerable to kidnapping and murder, or might choose a risky form of transportation that could well cost you your life or limbs. You pay a lot of money to make it across the border, and risk dying in the desert. You are intercepted by border control, detained, given a cursory interview, and deported. And then killed.

Wait, what?

Clearly, not everyone who attempts to enter the US, nor everyone originating from these or other Latin American countries, is a person in need of protection as a refugee. But the above scenario should give pause to those who blithely claim that all Central Americans are only economic migrants. And the only way to know for sure if someone is a refugee or an economic migrant is to ask them, in a language they understand, and in a setting that provides sufficient confidentiality.

In essence, the question is whether (a) US procedures give sufficient opportunity for people to explain if they have a fear of returning to their countries, and (b) if that fear is be duly considered in light of US law and international refugee law to decide, on the merits of each individual case, whether that person is a refugee. Refugee advocates argue that neither of these things is happening. Instead, the US government is focused on deterrence and criminalization of those entering its borders “illegally”; officials do not find it disingenuous that everyone must perforce enter illegally if there are no legal channels to do so, even though under international law seeking asylum cannot be penalized as illegal entry.

Human Rights Watch describes, in a 2014 report, what happens to a person once they cross the border:

The vast majority of migrants crossing the US-Mexico border without authorization are placed in detention and undergo a hasty two-part assessment by US officials under either “expedited removal,” for first-time border crossers, or “reinstatement of removal,” for migrants who have previously been deported from the United States.

In either case, to pass the first stage an agent from Customs and Border Protection (CBP) or another US immigration agency must flag the person for a “credible fear” or “reasonable fear” assessment. To pass the second stage, migrants meet with an asylum officer from USCIS who determines whether their fear of return is “credible,” or in reinstatement cases, “reasonable” – that is, whether there is a significant possibility they will prevail in immigration court on their claim for asylum or protection from deportation to a country where they are likely to face torture.

[…] Data for 2011 and 2012 that Human Rights Watch obtained from Customs and Border Protection under the Freedom of Information Act indicate that few Central American migrants are identified by CBP as people who fear return to their country in the first stage of the expedited removal process. The data show that the vast majority of Hondurans, at least 80 percent, are placed in fast-track expedited removal and reinstatement of removal proceedings but only a minuscule minority, 1.9 percent, got flagged for credible fear assessments by CBP. The percentages for Mexico, Honduras, El Salvador, and Guatemala are similar, ranging from 0.1 to 5.5 percent. By comparison, 21 percent of migrants from other countries who underwent the same proceedings in the same years were flagged for credible fear interviews by CBP.

Graphic: HRW

Deterrence

For individuals and families who have been persecuted, brutalized, and abused, one would think that the proper response would involve sensitive staff, specialized care, and an in-depth evaluation of their situation.  Instead, HRW noted that the “US started detaining large numbers of migrant mothers and their children in July 2014 as part of what Homeland Security Secretary Jeh Johnson called an “aggressive deterrence strategy” aimed at Central American unauthorized border crossers, among them many asylum seekers.”

‘The ‘Caravan of the Mutilated’ Shows What People Risk When They Come to America, article by Alice Ollstein & Esther Yu-Hsi Lee (Photo: Esther Yu-Hsi Lee)

“[T]he common thread in DHS’ response to the thousands of women and children arriving at the United States’ southwest border in 2014 was to employ a multi-prong deterrence strategy consisting of (a) launching a multimedia public awareness campaign; (b) increasing U.S. assistance to help Mexico secure its southern border region; (c) decreasing the chances of gaining asylum by expediting the removal process; and (d) carrying out raids in January 2016 in search of individuals deemed to have exhausted their asylum claims. These actions were meant to heighten the challenges associated with coming to the United States and ensure that Central Americans knew about them.” (source)

Indeed, the US government’s policy of making the situation more difficult and dangerous, and making sure migrants know it, appears to have had little impact: “[A]nalysis of Honduran LAPOP survey respondents shows that knowledge of the risks of migration—deportation, border conditions, and treatment in the United States—played no significant role in who had plans to migrate and who did not have such plans.” Plans to migrate, furthermore, were closely linked to whether the person had been victimized once or multiple times in the last year:

“in Honduras, 28 percent of non-victims reported having intentions to migrate, which rises to close to 56 percent of respondents that had been victimized more than once by crime in the previous twelve months intended to migrate. In El Salvador, only 25 percent of non-victims had plans to migrate compared to 44 percent of those victimized multiple times expressing intentions to migrate. Only in Guatemala did non-victims and victims of a single crime report migration intentions at a similar rate.” (source)

It is therefore unsurprising that U.S. District Court Judge James Boasberg, in his February 2015 ruling regarding DHS detention policy, concluded that, “Defendants [DHS] have presented little empirical evidence… that their detention policy even achieves its only desired effect—i.e., that it actually deters potential immigrants from Central America.”

Your tax dollars at work

Immigration advocates slam the increasing tendency in the US to criminalize immigration and immigrants, and to maintain detention, even of families and children, as an integral part of immigration policy. As Raul Reyes described it,

“The underlying problem with immigration detention is that most detainees are only guilty of being in the U.S. without authorization, which is a civil offense, not a crime. Yet detainees are treated like criminals, held behind bars and barbed wire, often in remote locations. In fact, in at least one respect, immigration detainees are treated worse than criminals: Criminal defendants have the right to a speedy adjudication and to court-appointed legal counsel. Immigration detainees do not. Detention punishes people in disproportionate relation to their alleged infractions, and contributes to the misconception that undocumented immigrants are criminals.”

They point out that immigrants are less likely to be criminals than native-born, and that the incarceration rates of the native-born were anywhere from two to five times higher than that of immigrants in 1980, 1990, 2000 and 2010 decennial censuses. Nevertheless,

“Unfortunately, immigration policy is frequently shaped more by fear and stereotype than by empirical evidence. As a result, immigrants have the stigma of “criminality” ascribed to them by an ever-evolving assortment of laws and immigration-enforcement mechanisms. Put differently, immigrants are being defined more and more as threats. Whole new classes of “felonies” have been created which apply only to immigrants, deportation has become a punishment for even minor offenses, and policies aimed at trying to end unauthorized immigration have been made more punitive rather than more rational and practical. In short, immigrants themselves are being criminalized.” (source)

Some immigration advocates estimate that the cost of pursuing immigration as a criminal matter:

In Fiscal Year 2011 alone, “the federal government paid immense sums of taxpayer money to private prison companies, $744 million and $640 million to CCA and GEO Group, respectively.” According to a Grassroots Leadership report, by 2011 Corrections Corporations of America and GEO Group, the nation’s two largest private prison companies, “enjoyed a combined $780 million increase in annual federal revenues since 2005.” The report also notes that since the inception of Operation Streamline until 2012, the federal government spent “$5.5 billion incarcerating undocumented immigrants in the criminal justice system for unauthorized entry and re-entry, above and beyond the civil immigration system.”

Although it is difficult to quantify the full costs of prosecuting individuals for illegal entry and reentry, the National Immigration Forum has estimated that in Arizona alone, the costs are as high “as $10 million per month… [A]nother $3.6 million per month is spent on defense lawyers in Arizona, primarily court-appointed private attorneys. The cost to prosecute defendants in Operation Streamline averages $10,000 a day and $50,000 a week in Tucson alone.”

Put differently, “the cost to house each detainee at Dilley is about $108,000 per year. A study funded by the Immigration and Naturalization Service, of more than 500 detainees between 1997 and 2000, found that 93 percent will appear in court when placed in a monitoring program. The savings of such a program for the 2,400 detainees at Dilley would be about $250 million per year.”And these figures refer only to a single facility. The  U.S. government has the largest immigration detention system in the world:

“Surprisingly, the largest detention and supervised release program in the country is not operated by the U.S. Department of Justice, or DOJ, but by the U.S. Department of Homeland Security, or DHS, which oversees the nation’s immigration detention program. According to the DOJ, its Federal Bureau of Prisons had nearly 200,000 individuals in custody as of December 2015. On the other hand, DHS’s immigration detention program detains around 400,000 people each year.”

And guess what?  “62 percent of all immigration detention beds are operated by for-profit prison corporations. For comparison, 7 percent of federal and state prisoners were held in for-profit prisons in 2005, rising to 8.4 percent by 2014—an increase of just 1.4 percent.”

So, the only reason that people are being detained is because of decisions to criminalize immigration, and then detain people indefinitely at extensive cost to the taxpaper, while serving no real purpose.

“The 2014 budget request for detention was $1.84 billion, a funding level that works out to about $5 million a day. The American Civil Liberties Union estimates that keeping a person in detention costs $161 a day; family detention costs $298 a day.

These costs are especially wasteful given that private companies control about 62% of the immigrant detention beds used by Immigration and Customs Enforcement . That means taxpayer money is going into corporate pockets.

Meanwhile, there are alternatives to detention that are much cheaper. The estimated costs of using electronic ankle bracelets or in-person reporting programs run from 17 cents to $17 a day, says the ACLU. These methods have proved effective as well. In 2013, one pilot program testing such alternatives reported a 99% appearance rate at immigration court hearings among participants, and 79% compliance rate for removal orders.” (source)

 

See Part 2: Asylum claims from Central America in the US and Canada

So, about that peace deal: prospects for peace in Colombia

As a recent article noted,

The “how” and the “when” of Colombia’s latest peace breakthrough are of course important — but so is the “where” and “with whom.” On June 23, the Colombian government and the Revolutionary Armed Forces of Colombia-People’s Army (FARC) signed a bilateral ceasefire agreement, after more than five decades of armed conflict. For Colombia’s peace process to succeed, it will need to break the cycle of conflict, organized crime and state neglect in Colombia’s border regions.

That’s fantastic. After nearly sixty years of conflict, we are all glad to hear it will soon be over. Four years of negotiations, a nifty new ceasefire and bob’s your uncle, now you’ve got a peace agreement, right? And then everyone will go home, happily ever after…right?

Anette Idler wrote a very nice piece for the Washington Post explaining how marginalized communities in border areas aren’t looking forward to any quick-fix situation. Quotes such as,

Any potential peace agreement with the FARC therefore raises a number of questions: What will happen to all those other armed groups who operate in Colombian territory and across the borders? Who will take care of the local population and provide economic opportunities? Who will be deciding on the rules of behavior that people need to follow to be safe? Will these marginalized regions face an upsurge in violence or see wider peace?

…ought to be common knowledge to policy-makers, politicians, and journalists who persist in the fiction that Colombia’s troubles begin and end with the FARC. Yet the evident complexity of the situation seems to pass over the heads of policymakers fixed on a peace accord as a solution to Colombia’s decades-long conflict.

The ongoing peace negotiations between the Colombian government and the FARC have been an extremely positive step in what has been an extraordinarily protracted conflict with several mutations. But the current conflict does not particularly resemble the kind of stylized ideological warfare, your “one man’s terrorist is another man’s freedom fighter” with a side of Che Guevara (for those who are into that sort of thing) that it once might have been . The FARC has lost a lot of its ideological base, and now relies substantially on activities and sources of income that are both commercial and illegal: drugs, extortion (NB: Timochenko announces that the FARC will helpfully no longer be engaging in extortion), mining, and pretty much anything else they can think is economically viable. Practices such as kidnapping for profit and recruitment of minors, both of which were officially disavowed, yet still continue (again, as a gesture of good faith, apparently the FARC will release all of their child soldiers). The FARC and other groups also have far-flung alliances as with the Russian Mafia, Mexican cartels, Hezbollah, and others.

Photo: Al Jazeera (allegedly)

 

Anyways, there are a number of reasons that any peace accord is not likely to result in a smooth transition to peace:

1. It did not go all that well the last time

Colombia does not have a particularly robust history when it comes to disarmament, demobilization and reintegration. In 2004-2006, Colombia attempted to demobilize the United Self-Defence Forces of Colombia (Autodefensas Unidas de Colombia, AUC, an umbrella paramilitary organization that was created to provide armed resistance to the FARC but turned out to commit horrendous atrocities and massacres). The main result, aside from a few prominent individuals who spent around six or eight years in jail under the Justice and Peace law (Ley de justicia y paz) – and several of whom were now released! – in the main, the demobilization efforts managed to shatter the central command structure of the AUC but resulted in local factions returning to their power base, changing their names, and continuing with business as usual. (See: HRW, Paramilitaries’ Heirs: The New Face of Violence in Colombia, 2010).

2. The FARC isn’t the only game in town

The supposed demobilization of the AUC resulted in a number of neo-paramilitary groups such as the Urabeños, Águilas Negras, Los Paisas, Los Rastrojos, La Cordillera, Oficina de Envigado, Libertadores de Vichada, Los Machos, ERPAC… Some of these groups have fused with prior criminal structures associated with major Colombian cartels left over from the days of Pablo Escobar. While the respective fortunes of these groups have waxed and waned over the years, conflict among these groups and with authorities have created a shifting landscape were some groups may lose territory and strength, only to be replaced with new groups such as La Empresa. Some of the groups have further fractured to smaller groups (Los Traquetos, Los Nevados), or are outsourcing their violence to local gangs via oficinas de cobro, where one can hire a hitman or an extortionist. All that is to say that contemporary Colombia is a shifting landscape with a multitude of actors with national reach, and a multiplicity of actors in any given territory. Although international focus is on the FARC and an associated peace deal as the key to peace and security, this approach does not take into account other groups such as the left-wing National Liberation Army (Ejército de Liberación Nacional, ELN) who recently began peace negotiations, or powerful groups such as the Urabeños, who have not (but may want to – except that the Colombia government does not want to admit they exist).

Map from El Espectador

3. The FARC may not be as united as one might think

The dismobilization experience of the AUC has provided ample evidence that factions of a national-level group can assess their economic prospects for survival as an independent faction, possibly with an eye to allying themselves with other armed groups participating in illegal activities, and refuse to demobilize. The first Front to state their refusal to do so is the 1st Front, operating in Eastern Colombia:

Although the 1st Front gives ideological justifications for staying in the field, there may well be financial reasons behind its decision. According to El Tiempo’s intelligence sources, the unit currently manages coca crop cultivations — which are abundant in the region — drug laboratories and strategic trafficking routes to Venezuela. Extortion and illegal coltan and gold mining are also mentioned as key revenue streams by other local media sources.

InSight crime further estimates that at least 30 percent of FARC fighters will not subscribe to the peace deal.

4. Uncertainty makes for strange bedfellows, and a power vacuum makes for a good opportunity

In the last two years or so, reports have increasingly indicated alliances between armed groups that would not normally be allied: namely, the FARC with anyone at all, and in particular, the FARC with groups such as the Rastrojos and Urabeños.

As InSight Crime describes it,

[A]ccording to a Semana source, with peace negotiations increasing the likelihood of FARC and ELN demobilization it is probable that the criminal bands want to take over spaces and “illegal economies” controlled by the guerillas. This new threat may have caused “the FARC and ELN to unify” in El Bagre, the source said.

While an ELN-FARC alliance might be seen as the natural outcome of competitors whose main point of difference is territorial rather than ideological (both groups are allegedly left-wing guerrilla organizations), there is no similar affinity that would explain reports of (working) alliances between the FARC and the Rastrojos or the FARC and the Urabeños. These functional alliances might provide an additional area of support for FARC factions that do not wish to disarm and demobilize.

Furthermore, uncertainty and shifting territorial controls among armed actors create confusion, tension and clashes in the context of possible disarmament of what has been a major player. For example, in Tumaco, according to InSight Crime,

Sources consulted by La Silla Vacía said local business owners reported they had been visited by BACRIM representatives who informed them the FARC had voluntarily ceded control of certain territories to BACRIM actors.

However, other reports suggest that recent turf disputes between the BACRIM and the FARC resulted in violent clashes in Nariño that led to the displacement of hundreds of people earlier this year. Moreover, La Silla Vacía writes that a series of apparent assassinations in recent months points to the possibility of a local power struggle between the two groups.

The article continues to note that,

BACRIM groups are seeking to take over criminal economies that the FARC will presumably leave behind if and when the guerrilla group and the government reach a final peace accord. Such a development could complicate the establishment of the concentration zones, which many analysts expect to play a key role in the process of demobilizing and reintegrating guerrilla fighters into civilian life.

Under the proposed framework for the zones, a one-kilometer buffer area will separate the FARC, which will assume responsibility for internal security within the zones, from the Colombian military, which will be tasked with guarding the zones’ perimeters. The presence of actors like the BACRIM, which are not bound by the provisions of the peace agreement, could cause frictions between the FARC and the government that may disrupt the demobilization and reintegration process.

5. The periphery was never under all that much control to start with

Eight of the proposed 23 concentration zones (or normalization zones) in which the disarmament is expected to take place are located in border areas.These include places like Tumaco, Nariño, which has a murder rate five times the national average and the presence of just about all of the major armed groups. Puerto Asís, in Putumayo, has long been a FARC stronghold, although less so than San Vicente del Caguán and zona de distensión, an area the size of Switzerland under FARC contril from 1998 until 2002. The outright disengagement in these areas, as with the negotiations with President Pastrana that led to the Caquetá-Meta-Guaviare territory being turned over to the FARC, or the chronic inability of the Colombian State to exercise control or provide services to marginalized border areas, has led to armed groups such as the FARC “essentially replacing the State in terms of health and road infrastructure.”  Not only was there substitution in terms of services; armed groups also have had strict rules for comportment in their territory, and local populations have little choice but to participate in the cultivation of illicit crops, and to some extent, willingly or unwillingly support armed groups.These areas will require significant attention if they are not to descend into violence and terror. (see also: HRW, The Crisis in Buenaventura: Disappearances, Dismemberment, and Displacement in Colombia’s Main Pacific Port, 2014)

 So now what?

Colombia’s transition will not go smoothly, and if not conducted carefully, it could result in yet another mutation of what has been a constantly evolving conflict. Some analysts have additional reasons for skepticism as well.  Most importantly, policy makers, analysts and journalists should consider Colombia’s long and difficult history before rolling up the red carpet in Havana and considering it a done deal with no further responsibility to engage to ensure a more stable and secure future.