Tag Archives: Human Rights

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.

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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.

 

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“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 agesurvival 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.

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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.

 

 

 

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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“).

 

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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 persecutionOthers 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.

 

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Conditions in Greece, 2017. Photo: National Hearald

 

Links and references:

On the EU-Turkey deal specifically:

 

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.

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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/eei011

 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.

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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.

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

News roundup: EU Turkey deal faltering, Jordan-Syria border no-man’s land, returnees from Afghanistan

Erdogan says Europe not ready to face 3mn refugees as EU-Turkey deal collapse looms

The Turkish president issued a veiled threat to unleash a wave of refugees on Europe as EU officials warn of a potential collapse of the union’s deal with Ankara, which has curbed the flow of refugees across the Aegean Sea. Speaking to Al Jazeera, Turkish President Recep Tayyip Erdogan said Turkey is currently hosting three million refuges on its territory and that if they all marched into Europe, the Europeans would not know what to do with them. He also reminded them that under the terms of Turkey’s refugee deal with the EU, the union pledged to provide six billion euros in aid over the course of several years. “As far as I can remember, until now the EU had only given 250-300 million Euros to Turkey so far,” he said. The veiled threat comes days after several officials in Europe voiced concern that the EU has no contingency plan for a collapse of the Turkish deal.

Syria-Jordan border: 75,000 refugees trapped in desert no man’s land in dire conditions

Video footage and satellite images showing makeshift grave sites and burial mounds offer a rare glimpse inside a desert no man’s land between Jordan and Syria where tens of thousands of refugees who have been virtually cut off from humanitarian aid for two months are stranded, said Amnesty International.

The video footage was obtained from Tribal Council of Palmyra and Badia, which has a network of activists operating inside the area known as the berm, and independently verified using satellite imagery.

Rich nations’ self-interest means refugee crisis set to get worse, not better

Amnesty has a (perhaps not particularly recent) but compelling denunciation, “Rich nations’ self-interest means refugee crisis set to get worse, not better”, lambasting countries who send refugees back to conflict zones (Kenya, we’re looking at you; but also Pakistan, Iran and Jordan), those who leave refugees to wallow in misery and/or limbo (Myanmar, Malaysia, Australia and the EU under fire here), and the dangerous routes that refugees take in their flight to freedom in Southeast Asia, Central America and, more famously, the Mediterranean.   [see the full article]

South Sudan Crisis Strains Uganda’s Exemplary Refugee Welcome

Uganda is celebrated around the world for providing refugees with the land and resources to become self-sufficient. But war in South Sudan is putting pressure on that model, leaving the most vulnerable struggling to survive, reports Carolyn Thompson from Uganda.

[…] Inyani fled from neighboring South Sudan in July after being mistaken for a rebel while going to pay his children’s school fees in the town of Nimule. The 30-year-old was arrested and beaten by a group of men in uniform, his arms tied behind his back while he was hit with sticks and rammed in the chest with guns.

He was released after the mistake was realized, but decided his family needed to leave the country. He, his wife, his two daughters and his son piled on to a small motorbike and drove from their hometown of Lao to the Ugandan border, about 22 miles (35 kilometers) away.

His family are now among more than 250,000 South Sudanese refugees who have flooded into Uganda since renewed clashes between government and opposition forces broke out in July. That is more than seven times the number who fled to Uganda during the entire first half of this year. By October, more than a million South Sudanese were displaced – with Uganda hosting the highest number by far.

 

Afghanistan May Have to Accommodate 1.5 Million Refugees in 2016

Afghanistan will reportedly take in more than 1.5 million Afghan refugees by the end of the year, challenging the government at a time when Kabul is already struggling against resurgent Taliban militants and an emerging Islamic State group (IS).

Based on figures compiled by the United Nations Refugee Agency (UNHCR), some 20 percent of Afghanistan’s population already are former refugees known as “returnees.” Many of them, along with internally displaced Afghans and Afghans living in “refugee like” conditions, are part of a group of people the United Nations calls “people of concern.” The U.N. says this group of people has grown by 33 percent in 2015, and numbers more than 1.7 million people who are in desperate need of assistance.

The Dadaab saga continues: not-so-voluntary repatriation and no support

(Photo Ashley Hamer, Al Jazeera)

Since our last post on Daadab, there have been a few updates:

  • Most Somalis do not want to return
  • UNHCR and Kenya claims they do and Kenya is trying to send them anyways
  • There is little to no support for those who decide to return
  • The return and closure of Dadaab has been highly criticized by organisations such as MSF and Amnesty
  • The Kenyan High Court will hear a petition on the closure on Nov 7.

Stay tuned!

Gallery: 25 years of Dadaab

 

Kenya: High Court to hear petition against closure of Dadaab refugee camp

The petition, filed by the Kenya National Commission on Human Rights and Kituo Cha Sheria, seeks to have the government’s closure decisions declared unconstitutional.

“The closure of Dadaab would be a disaster for the tens of thousands of refugees still living there who have nowhere else to go. Their repatriation back to Somalia is not voluntary – they are being forced to return when the conditions that forced them to flee in the first place have not improved,” said Michelle Kagari, deputy director of Amnesty International’s East Africa regional office.

“We hope that this court action will prompt the Kenyan authorities to reconsider their decision, and uphold their international obligations to protect refugees.”

The Kenyan government announced on 6 May that it was disbanding the Department of Refugee Affairs with immediate effect, and would close the camp on 30 November 2016, repatriating the more than 260,000 Somali refugees there to Somalia despite the immense risks they would face.

 

 

Refugee Returns from Kenya to Somalia: “This is About Fear… Not About Choice”

The Kenyan government’s threat to close the Dadaab refugee camp by the end of November would not only endanger the lives of several hundred thousand Somali refugees but has already caused irreparable harm and damage.

With no alternative options, some refugees have been coerced into repatriating to Somalia, where insecurity and an ongoing humanitarian crisis continue. The United Nations Refugee Agency’s focus on expediting the pace of returns – through a program that is supported by donors and implemented in partnership with non-governmental organizations – in the face of political pressure from Kenya, promotes large-scale returns that are unlikely to be sustainable. Development and reintegration initiatives in designated areas of return in Somalia need time to take hold; and, in the meantime, support for Somali refugees who remain in Kenya cannot be abandoned.

 

Somali Refugees Decry Empty Promises Upon Return From Dadaab Camp

The majority of the returnees are women, children, the elderly and the disabled – “the most vulnerable sectors of society,” according to The American Refugee Committee, an aid group providing some health care and child protection in the camps.

Yet there is very limited health care for the returnees living in the camps, and medical care in Kismayo town is expensive. The camps have few decent running water sources or latrines, leaving thousands of people at risk of disease.

Families arriving in Kismayo discover a fragile town with little infrastructure that cannot provide basic food and shelter, let alone facilitate their resettlement in Somalia.

 

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Refugees stranded in Somalia after Kenya eviction: Somalis are returning to Kismayo in a “voluntary” process to a homeland still stricken by war, drought, and hardship.

He said he felt forced to return to Somalia because of food and healthcare cuts in Dadaab last year, and because of threats from the Kenyan authorities, he told Al Jazeera, seated on a plastic chair in the sand, a crowd of fellow returnees gathering around him.

Abukar knew the situation in Kismayo would be worse than Dadaab. He suspected there would be scant help for the returnees and he knew his country was still at war.

Nevertheless, the United Nations refugee agency (UNHCR) has spent much of 2016 trucking and flying thousands of Somalis back into their country as part of a “voluntary repatriation” agreement between that organisation, the Kenyan government, and the fledgling federal government of Somalia.

Between December 2014, a year after the repatriation agreement was reached, and September 2016, a total of 30,731 Somali refugees from Dadaab went through the voluntary return process, according to UNHCR statistics.

[…]

In early September, however, Jubaland state authorities called a halt to the returns process.

“We are overwhelmed … The returning of these refugees [from Dadaab] is neither safe, secure and definitely not dignified,” said Adam Ibrahim Aw Hirsi, Jubaland state’s justice minister.

“Families of five or six are living outside with their children, there are no schools, there is no food, not even basic hygiene like drinkable water, no toilets. Some are sick, some elderly and some are very young.”

Hirsi said the returnees are being misled by UNHCR and Somalia’s federal government with false promises of support to start a new life, when in reality little has been prepared for their sustainable resettlement and Jubaland is not ready to receive them.

 

 

 

Kenya: Dadaab Crisis – Refugees’ Fears Are Real, Says MSF

Humanitarian group, Doctors Without Borders (MSF) has called on the Kenyan government and the United Nations High Commissioner of Refugees (UNHCR) to urgently consider alternative arrangements, as the closure of the world’s largest refugee camp, Dadaab, draws near.

This came as a report released by the group recently, revealed that at least eight out of 10 refugees indicated that they did not want to return to their home states, citing among other concerns, forced recruitment, sexual violence and lack of healthcare as their main concerns.

“This decision is yet another blight on refugee protection globally, where again we see a total failure to provide safe haven for people in danger. The UN itself has recently declared that five million people are at risk of hunger inside Somalia. Sending back even more people to suffer is both inhumane and irresponsible,” says Bruno Jochum, MSF General Director.

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Govt rejects MSF report on Dadaab refugees

The government has repudiated a report by medical charity group MSF that claimed 86 per cent of refugees at Dadaab do not want to leave. Interior ministry spokesman Mwenda Njoka said there are “serious doubts” about the figures because UN refugee agency UNHCR itself has found that most want to go back home.

“UNHCR has found many refugees are willing to leave. We are just constrained by lack of funding and that is why the repatriation has been slow.

“These findings are part of these organisation’s self-interests to continue having a presence in Dadaab and earn big salaries….,” he said.

But the medical charity group, which runs a hospital at the camp, on Friday defended its findings saying they were within the range of reports by UNHCR which had previously stated that just a quarter of the refugee population were ready to return.

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.

dadaab-camp

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.

 

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Los Desaprecidos: Enforced disappearances, a crime without end

“Many of the victims were so weak from torture and detention that they had to be helped aboard the plane. Once in flight, they were injected with a sedative by an Argentine Navy doctor before two officers stripped them and shoved them to their deaths. […] He estimated that the navy conducted the flights every Wednesday for two years, 1977 and 1978, and that 1,500 to 2,000 people were killed. ” (New York Times, 1995)

Today is International Day of the Disappeared, marking the tens or hundreds of people who have been abducted or killed and whose fates remain unknown. Enforced disappearances, forcible disappearances, or desaparecidos in Latin America –  where the concept first rose to prominence – refers to (in Article 2)

the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

Enforced disappearances were a substantial feature of the Latin American dirty wars, with estimates of over 16,000 people disappeared in Peru, an estimated  30,000  in Argentina45,000 in Guatemala during the violence of the 1980s and 1990s, and estimates of 15,000 to 109,000 disappeared in Colombia. And it’s not just in Latin America; according to the International Centre for Transitional Justice,

In the case of Argentina,

The pattern was similar for those arrested. Many were taken from their homes in the middle of the night, tortured at clandestine detention centres and then disposed of. After years of investigations, it is thought that some bodies were destroyed with dynamite and others buried in unknown common graves, but the majority were thrown from planes into the Atlantic Ocean.

In addition, women who were pregnant were often forcibly separated from their children, with those children being given to military families for adoption. In Syria, “More than 65,000 people, most of them civilians, were forcibly disappeared between March 2011 and August 2015 and remained missing, Amnesty said, citing figures from the Syrian Network for Human Rights, a Syria-based monitoring group.”

disappeared

Enforced disappearance is like a kidnapping or extrajudicial detention, and likely also torture and/or extrajudicial execution, but it has the features of being committed by State agents or with their acquiescence, and a denial of the whereabouts or the fate of the person concerned.  It’s not like the situation of persons missing during armed conflict or natural disaster, because the person was generally deliberately abducted by authorities who then refuse to acknowledge having the individuals. It’s its own crime, not just kidnapping, torture or killing, even if all of these things also happened.

Enforced disappearances are particularly horrific because the circumstances of the person remain unknown. And the crime continues – with both the disappeared individual as well as his or her family – for as long as there is no resolution. An enforced disappearance not only removes (percieved) political opponents, it avoids the evidence and the witnesses and the international outcry, as a tool to create a climate of terror among family members or other activists, who may be forced to bribe middlemen for information out of fear of approaching the State authorities directly.

‘Detainees were squeezed into overcrowded, dirty cells where disease was rampant and medical treatment unavailable, Amnesty said, while those imprisoned suffered torture through methods such as electric shocks, whipping, suspension, burning and rape. “People would die and then be replaced,” Salam Othman, who was forcibly disappeared from 2011 to 2014, was quoted as saying in the report. “I did not leave the cell for the whole three years, not once … Many people became hysterical and lost their minds.”’

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On the human rights law side,  enforced disappearances constitute “a multiple human rights violation.” They violate the right to life, the prohibition on torture and cruel, inhuman, and degrading treatment, the right to liberty and security of the person, and the right to a fair and public trial. These rights are set out in the ICCPR and the Convention against Torture. There is even a UN Declaration on Enforced Disappearances, an Inter-American Convention on Forced Disappearance of Persons  and the International Convention for the Protection of All Persons from Enforced Disappearance.

A widespread or systematic pattern of enforced disappearances constitutes a crime against humanity according to the Rome Statute of the International Criminal Court (ICC), which provides that enforced disappearances are a crime against humanity “when committed as a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” In some circumstances, enforced disappearances may also constitute a war crime:  The Geneva Conventions also stipulate that persons taken into custody (combatants or otherwise) must not be murdered or executed without trial, must have due process.

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See also:

Offshore Justice: could Australia end up at the ICC for abusing asylum-seekers? | Justice Hub

“This isn’t the first time that it has been suggested that the ICC examine allegations of abuses against asylum-seekers in Australian detention facilities. In 2014, Andrew Wilkie, an independent member of parliament, insisted that the Australian government was committing crimes against humanity against asylum-seekers and requested that the ICC investigate. Wilkie argued that the Australian government was guilty of imprisonment and other severe deprivations of physical liberty in violation of fundamental rules of international law; deportation and other forcible transfer of population; and other international acts causing great suffering, or serious injury to body and mental and physical health.”

See the whole article here.

And see the documentary:

The plot thickens: Australia to close Manus Island centre; staff demanding end to offshore detention; Australia doesn’t bother to investigate any of the Nauru files before declaring them bunk

After the PNG supreme court ruled in April that the detention centre was “illegal and unconstitutional”, we have been waiting with bated breath to see what convoluted legal explanation Australia will find in order to keep avoiding their responsibilities under national and international law. This week, after the leak of over  2,000 incident reports detailing systemic physical and sexual abuses, humiliating treatment and harsh conditions, and widespread self-harm and suicide attempts on Nauru, the Australian Minister for Immigration, Peter Dutton, and the President of Nauru have decided, respectively, that the reports were only “hype” or “cooked up” the reports just to discredit them. Of course, the standard institutional response to allegations of abuse, exploitation, or assault, particularly when perpetrated by one’s own officials, is to claim that the victim is lying and the allegations are baseless. And the fact that the official response notes that, “Many of the incident reports reflect unconfirmed allegations or uncorroborated statements and claims – they are not statements of proven fact. The Australian government continues to support the Nauruan government to provide for the health, welfare and safety of all transferees and refugees in Nauru.” Although advocates dispute the characterization as “unconfirmed allegations,” the government response does highlight one salient point: that there was no effort to investigate or substantiate these allegations. Except when they want to file charges against someone for attempting suicide, like the Iranian asylum-seeker was criminally charged and ordered to pay $165 for attempting suicide (suicide and homosexuality were legalized a month later, in May 2016).

Dutton also accused asylum seekers of committing acts of self-immolation in order to get to Australia. He does not seem to take the point that people prefer to burn to death than to stay in indefinite detention as an indication that the situation is inhumane.

Now, more than 100 former employees from Australia’s offshore detention centres have called for asylum seekers to be brought to the mainland rather than sweeping it all under the rug with yet another inquiry. (see the full list). This, in a context where they might face criminal charges by Australia for speaking up. Their voices join over 1,800 academics and dozens of  human rights, legal, religious and medical groups that have demanded the Australian government put a stop to the suffering of asylum seekers and refugees in its offshore processing regime.

There is some good news:,according to the PNG govenment (later backed up by the Australian government), Australia has agreed to close the controversial asylum seeker detention centre in Papua New Guinea (PNG) declared unconstitutional earlier this year.As described by the Guardian,

The Manus Island detention centre has had a troubled existence since being reopened in 2012. In 2014 three days of unrest and an invasion of the detention centre by PNG police and others saw more than 60 asylum seekers seriously injured. One man was shot, another had his throat slit and 23-year-old Reza Barati was murdered by guards who beat him with a nail studded piece of wood, and kicked and dropped a rock on his head. PNG’s supreme court heard up to 15 expatriate and local guards killed Barati. Two local men were convicted of his murder this year.

The detention centre has also been plagued by consistent allegations of abuse and privation. Rape, physical and sexual assault and drug abuse are common, the centre’s water supply has failed, and detainees are fed expired food. Suicide attempts and acts of self-harm are common, and some men have alleged they have been beaten and tortured in solitary confinement.

Australia still claims that none of them will settle in Australia, and organizations such as Human Rights Watch have highlighted that simply shifting them elsewhere will not work:  “These men should immediately be moved to Australia or a safe third country, not simply shunted down the road to a transit centre or moved to Nauru or Cambodia. Nearly a thousand men on Manus have already lost three or more years of their lives locked up in limbo for no good reason. They’ve endured dirty, cramped conditions, inadequate medical care and violence. Finally, it is time to let them move on with their lives in safety and dignity.” Amnesty International and Human Rights Watch claim that Australia has a “deliberate policy” of not addressing issues on Nauru as a strategy to “deter” further boat arrivals, as well as that asylum seekers are suffering immensely from inadequate medical care.

“Australian authorities are well aware of the abuses on Nauru. The Australian Human Rights Commission (AHRC), the Office of the United Nations High Commissioner for Refugees (UNHCR), a Senate Select Committee, and a government-appointed independent expert have each highlighted many of these practices, and called on the government to change them. The Australian government’s persistent failure to address abuses committed under its authority on Nauru strongly suggests that they are adopted or condoned as a matter of policy.”

“Few other countries go to such lengths to deliberately inflict suffering on people seeking safety and freedom,” said Amnesty International’s senior director for research Anna Neistat, who went to Nauru to conduct the investigation.

Continue reading The plot thickens: Australia to close Manus Island centre; staff demanding end to offshore detention; Australia doesn’t bother to investigate any of the Nauru files before declaring them bunk

Trafficking and smuggling: a very short introduction

Lina comes from a poor family in Cambodia. At the age of nine, her parents entrusted her to an acquaintance who said she could find Lina work in Thailand. The woman promised to send Lina’s parents part of her wages to help support their family. In Bangkok, Lina stood for long hours outside nightclubs in the red-light district selling flowers and candy to tourists. Her trafficker took her earnings, and beat her when sales were low .

When Peter arrived in London, a man was waiting for him. He took Peter to Peterborough, the place of his future life and work. He was supposed to work for one Roma family and to live at their place in a small room with 4-6 other men working for them as well. Right away, they took his ID… Peter didn’t see his ID again. He became a person without identity, with no possibility to escape. He started to work with some other people, doing harvesting. They would work 12 to 16 hours per day, receiving poor food once per day and not getting enough of sleep at night. After working outside, Peter often had to do clean the family’s house. Members of the family started to be aggressive, threatening their “slaves” and blackmailing them.

Perhaps the most chilling is an interview with an imprisoned trafficker. He looks at the camera nervously, recounting his exploits with a shy smile… “I used my fist. I was, at that time, more youthful… So I beat them with my fists and my feet…” He giggles nervously and continues, “No, but I think that they will have this nightmare for the rest of their lives. Some of them manage to change, but they will never be normal women.” His lips twist into a smile, a slight shrug of his shoulders.

And this is a business that earns 150 billion dollars a year.

July 30 was World Day Against Trafficking in Persons. It’s a way to raise awareness, not in a student activist kind of way that will end in a change.org petition, but as an opportunity to discuss something that’s very important and also very often poorly described. When we talk about trafficking, usually two scenarios come up: migrants paying to be brought across the Mediterranean; and sex trafficking. A google search also brings up modern day slavery, child labour in developing countries, and other kinds of phenomena. The problem is, much of this isn’t actually trafficking. Or of it’s trafficking, it’s also other things.

1. Trafficking and smuggling are not the same thing

People smuggling is basically receiving money to move people countries where they are not nationals or residents. It’s criminalized in most places, and there is also a convention (Smuggling of Migrants Protocol) that includes an obligation to criminalize smuggling. But smuggling is solely about the “procurement of… illegal entry”. We are presuming that all of this were voluntary – if the entry were legal, it wouldn’t be a smuggler, it would be a travel agency. (Except, of course, if someone is a refugee, they may not be penalized for illegal entry, and frequently there is no legal avenue for refugees to use, so they must perforce use smugglers)

Trafficking, on the other hand, involves deceiving someone and exploiting them. The official definition is very long but very worth considering:

Trafficking in Persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs

So, people who have been trafficked have been (a) deceived, and (b) exploited, or intended to be exploited. As an example, if person A wants to enter country X, where they are not a resident or national, in order to get a better job and pays person B to take them there, that’s smuggling. If person A wants to get a better job in the city, but is tricked by person B, who instead transfers person A to country X where person A is forced into prostitution, that’s trafficking. A typical story to entice trafficking victims is to offer work in a foreign country, promising high wages and a good life. Frequently, the victim will incur “costs” for the journey which they are then expected to “earn back” by working for the trafficker or associates.

The two terms are often conflated. And in fact, a smuggler, who is transporting people to another country, might be transporting trafficked people (if the smuggler had no idea, it’s smuggling; if they knew that the person was trafficked, it’s trafficking). For example, a recent article from the Guardian talks about the high number of trafficking victims among migrants arriving to Europe:

“The trafficking of Nigerian women from Libya to Italy by boat is reaching “crisis” levels, with traffickers using migrant reception centres as holding pens for women who are then collected and forced into prostitution across Europe, the UN’s International Office for Migration (IOM) warns.  About 3,600 Nigerian women arrived by boat into Italy in the first six months of this year, almost double the number who were registered in the same time period last year, according to the IOM.”

2. Economic migrants and refugees are not the same thing, but both can be victims of trafficking

Economic migrants are people who are seeking a better life elsewhere. Refugees are people fleeing war and persecution. Sometimes, there is overlap, particularly in countries where poverty is caused by systematic negligence or targeting specific groups.

But both economic migrants and refugees often share the characteristic of being desperate to leave and, frequently, in possession of few resources with which to leave. They may be more inclined to take seemingly appealing offers of work elsewhere, or in their desperation place themselves in unscrupulous hands. UNHCR has quite a lot to say on the intersection of refugees and human trafficking, including highlighting the fact that some people may have started out as migrants, but fell victim to trafficking, and could be at risk of persecution if they were to go back to their home countries due to threats by the traffickers, which would then make them refugees. Not all refugees are trafficked and not all trafficking victims are refugees, but there is frequently overlap. The essential questions are: (a) why they left; (b) how they traveled and under what circumstances; and (c) what would happen if they go back.

Desperation also breeds exploitation:

Young people in refugee camps in Calais and Dunkirk are being sexually exploited and forced to commit crimes by traffickers, according to a Unicef report.

The document, which draws on six months of interviews and is due to be published on Thursday, paints a disturbing picture of the abuse of unaccompanied minors in camps in northern France. It says children are being subjected to sexual violence by traffickers who promise passage to the UK.

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3. Trafficking isn’t only about sex trafficking

It makes for the best headlines and the most salacious stories, but there are lots of kinds of trafficking. Forced labour takes different forms, including debt bondage, trafficking and other forms of modern slavery. The victims are the most vulnerable – women and girls forced into prostitution, migrants trapped in debt bondage, and sweatshop or farm workers kept there by clearly illegal tactics and paid little or nothing.  Forced labour and modern-day slavery account for almost 70 percent of trafficked persons: almost 21 million people are victims of forced labour, trapped in jobs which they were coerced or deceived into and which they cannot leave. That’s approximately the population of Switzerland and Belgium combined (or 3 out of every 1,000 people).

Facts and figures

  • Almost 21 million people are victims of forced labour – 11.4 million women and girls and 9.5 million men and boys.
  • Almost 19 million victims are exploited by private individuals or enterprises and over 2 million by the state or rebel groups.
  • Of those exploited by individuals or enterprises, 4.5 million are victims of forced sexual exploitation.
  • Forced labour in the private economy generates US$ 150 billion in illegal profits per year.
  • Domestic work, agriculture, construction, manufacturing and entertainment are among the sectors most concerned.
  • Migrant workers and indigenous people are particularly vulnerable to forced labour.
  • 18.7 million (90 %) are exploited in the private economy, by individuals or enterprises. Of these, 4.5 million (22 per cent) are victims of forced sexual exploitation and 14.2 million (68 per cent) are victims of forced labour exploitation in economic activities, such as agriculture, construction, domestic work or manufacturing.
  • 2.2 million (10%) are in state-imposed forms of forced labour, for example in prisons, or in work imposed by the state military or by rebel armed forces.
  • 5.5 million (26 %) of victims are below 18 years.
  • 9.1 million victims (44 %) have moved either internally or internationally. The majority, 11.8 million (56 %), are subjected to forced labour in their place of origin or residence. Cross-border movement is heavily associated with forced sexual exploitation.

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4. Trafficking happens right in your backyard: in Europe, the US, Canada, Australia, and elsewhere

According to IOM, the Developed Economies and European Union have 1.5 million (7 per cent) forced labourers. “EU authorities registered 15,846 victims of human trafficking in 2013-14, including 2,375 children, but the report’s authors believe the true number of victims is far higher. More than two-thirds (67%) of people were trafficked into sex work; about one-fifth (21%) were put into forced labour, often as agricultural workers, a form of slavery that disproportionately affected men. The remainder of trafficking victims faced an equally grim catalogue of exploitation, ranging from domestic servitude to forced begging. […] More than two-thirds of the identified victims were EU nationals, with the largest numbers coming from Romania, Bulgaria, the Netherlands, Hungary and Poland. The remainder came from all over the world, with Nigerians, Chinese and Albanians especially prominent.”

Additional examples:

 

 

 

Articles of interest:

 

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