Tag Archives: International law

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:

 

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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?

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.

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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.”

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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:

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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Australia: liable for criminal prosecution?

It should be noted that while Australia’s policies might be among the more egregious, few Western countries have clean hands when it comes to treatment of migrants, asylum-seekers, and refugees.

The United Nations has found that Australia’s immigration detention regime breaches international law, amounting to arbitrary and indefinite detention, and that men, women and children are held in violent and dangerous conditions.

One asylum seeker was murdered by guards on Manus Island, while another died because there were no appropriate antibiotics to treat infection.

On Nauru, asylum seekers and refugees are regularly physically and sexually assaulted, and say they are frightened to complain because of a culture of impunity on the island. At least 29 cases of rape and sexual assault – including against children – have been reported to Nauru police, but there have been no arrests or charges laid.

Several arms of the UN have repeatedly condemned Australia’s offshore regime, including the UN high commissioner for human rights, the UN committee against torture, the UN special rapporteur on torture, the UN special rapporteur on the human rights of migrants, and the UN high commissioner for refugees.

Continue reading Australia: liable for criminal prosecution?