Thewallbehind Whichrefugees Canshelter the 1951 Geneva Convention N°123 - 2001

VOLUME 2 • NUMBER 123 • 2001

50TH ANNIVERSARY THEWALLBEHIND WHICHREFUGEES CANSHELTER THE 1951 GENEVA CONVENTION N°123 - 2001

Editor: Ray Wilkinson French editor: Mounira Skandrani Contributors: Walter Brill, Nathalie Karsenty, Patrick Tigere DEU•1945 2 EDITORIAL Editorial assistant: Virginia Zekrya ©BPK/ The Refugee Convention at 50. Photo department: Suzy Hopper, Anne Kellner 4 COVER STORY Design: The Geneva Convention has been the Vincent Winter Associés cornerstone of protection for 50 years, but there is Production: a lively debate about its relevance today. Françoise Peyroux The international community adopted the By Marilyn Achiron Administration: 4 1951 Geneva Refugee Anne-Marie Le Galliard Convention mainly in Personal view Distribution: response to the atrocities The Convention. committed in World War II John O’Connor, Frédéric Tissot and to help the millions of By Jack Straw, British Foreign Secretary Map: people uprooted by that New problems conflict. Refugee crises UNHCR - Mapping Unit spread around the world in Gender-based persecution leaves the shadows. Historical documents: the following decades. By Judith Kumin UNHCR Archives Cessation When the Convention is over. Refugees is published by the Public Information Section of the United C.S.•GIN•2001 Nations High Commissioner for QUESTIONS AND ANSWERS Refugees. The opinions expressed by 16 contributors are not necessarily those The most frequently asked questions about the of UNHCR. The designations and Refugee Convention. maps used do not imply the expression of any opinion or recognition on the UNHCR/L. TAYLOR/ Exclusion part of UNHCR concerning the legal status of a territory or of its authorities. Who is NOT protected by the Geneva Convention. Refugees reserves the right to edit all A key provision in the articles before publication. Articles Convention is the BBC and photos not covered by copyright © 16non-forcible return of Broadcasting to the world. may be reprinted without prior civilians fleeing such crises as permission. Please credit UNHCR and those currently engulfing The firing line the photographer. Glossy prints and West Africa. Other questions Making the Convention work. slide duplicates of photographs not and answers on the By Peter Showler covered by copyright © may be made Convention. available for professional use only. 24 ASYLUM One man’s struggle to obtain asylum. English and French editions printed in Italy by AMILCARE PIZZI By Lisa Getter S.p.A., Milan. Signatories Circulation: 227,500 in English, French, German, Italian, Japanese, Signing up for the Convention and its Protocol. Spanish, Arabic, Russian and ©D. DRENNER/L.A. TIMES Chinese. Even when fleeing 30 PEOPLE AND PLACES ISSN 0252-791 X civilians reach 24apparent safety, their ordeal is often not ended. 31 QUOTE UNQUOTE One story of a long effort to UNHCR obtain asylum. P.O. Box 2500 1211 Geneva 2, Switzerland www.unhcr.org

REFUGEES 3 THE EDITOR’S DESK The Refugee Convention at 50…

hen delegates from 26 countries as quickly. The United Nations High Commissioner for diverse as the United States, Israel and Refugees, the guardian of the Convention, which had Iraq gathered in the elegant Swiss city of been created shortly before, was given a three-year GenevaW in 1951, they had some unfinished business to mandate and was then expected to ‘go out of business’ attend to. with the problem solved. World War II had long since ended, but hundreds of Fifty years later, the treaty remains a cornerstone of thousands of refugees still wandered aimlessly across protection. There have been momentous achievements and changes along the way. Regional conventions were BIH•1994 created in its image. Some provisions such as the definition of the term ‘refugee’ and the principle of non- ©S. SALGADO/ forcible return of people to territories where they could face persecution (non-refoulement) have become fundamental international law. With the treaty’s help, UNHCR assisted an estimated 50 million people restart their lives. The global crisis outgrew parts of the original document and a 1967 Protocol to the Convention eliminated the time constraints. Issues which the original delegates, the European continent or squatted in makeshift camps. all males, never even considered such as gender-based The international community had, on several occasions persecution became major problems. earlier in the century, established refugee organizations This refugee world also became more crowded, with and approved refugee conventions, but legal protection millions of refugees, economic migrants and others on and assistance remained rudimentary. the move. All of this, some critics argue, has made the After more than three weeks of tough legal wran- Convention outdated and irrelevant. gling, delegates on 28 July adopted what has become On the 50th anniversary of its adoption, a lively known as the Magna Carta of international refugee law, debate is underway. British Prime Minister Tony Blair the 1951 Convention relating to the Status of Refugees. says though the treaty’s “values are timeless” it is now This resulting instrument was a legal compromise time to “stand back and consider its application in “conceived out of enlightened self-interest,” according to today’s world.” Many jurists say the Convention has one expert. Governments refused to “sign a blank shown extraordinary longevity and flexibility in meet- check” against the future, limiting the scope of the ing known and unforeseen challenges. Convention mainly to refugees in Europe and to events Whatever the outcome of these discussions, it is cer- occurring before 1 January 1951. tain that millions of uprooted people will continue to It was hoped the ‘refugee crisis’ could be cleared up rely on the Convention for their protection.

2 REFUGEES | COVER STORY |

A ‘TIMELESS’ TREATY UNDER The Geneva Refugee Convention ATTACK is 50 years old. It has helped millions of the world’s downtrodden, but faces continued criticism. Protection: Travel or identity documents for refugees equal new opportunities and happiness. DEU•1992 © R. VENTURI/ | COVER STORY |

A ‘TIMELESS’ Ã TREATY UNDER ATTACK

by Marilyn Achiron

he images were stark and shocking: in the heart of Eu- rope, tens of thousands of people were fleeing terror and murder, inflicted by their own government, because of their ethnicT background. Men, women and children, bundled in blankets and carrying whatever possessions they could fit into bags or, if they were lucky, broken down carts and rusting tractors, staggered into neighboring countries in search of safety. These images were eerily reminiscent of an earlier era, though they were not in the grainy black-and-white of the mid- 1940s; rather, they were in color and trans- mitted live into every TV-owning house- hold around the world just two years ago from Kosovo and the Balkan region. Five decades earlier the international community had faced a similar tragedy in the aftermath of World War II when millions of uprooted peoples wandered hun- gry and aimlessly through devastated land- scapes and cities. In a spirit of empathy and humanitarianism, and with a hope that such widespread suffering might be averted in the future, nations came together in the stately Swiss city of Geneva and codified binding, international standards for the treatment of refugees and the obligations of countries towards them. DEU•1945 The resultant, groundbreaking, 1951 Convention relating to the Status of ©BPK/ Refugees subsequently helped millions of Scenes like this led to the 1951 Refugee Convention.

A REFUGEE IS A PERSON WITH A “WELL-FOUNDED FEAR OF BEING PERSECUTED FOR REASONS OF RACE, RELIGION, NATIONALITY, MEMBERSHIP OF A PARTICULAR SOCIAL GROUP OR POLITICAL OPINION...” Article 1A (2)

civilians to rebuild their lives and has be- But on the 50th anniversary of its adop- travel has become easy and a burgeoning come “the wall behind which refugees can tion, the Convention is coming apart at the business in human trafficking has swelled shelter,” says Erika Feller, director of the seams, according to some of the same cap- the number of illegal immigrants. States Department of International Protection of itals which had breathed life into the pro- say their asylum systems are being over- the United Nations High Commissioner tection regime a half century ago. Crises whelmed with this tangled mass of for Refugees (UNHCR). “It is the best we such as Kosovo have multiplied, spilling refugees and economic migrants and are have, at the international level, to temper millions of people into headlong flight in urging a legal retrenchment. The Con- the behavior of states.” search of a safe haven. Intercontinental vention, they say, is outdated, unworkable

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parties. Where it will all lead remains unclear.

DEVELOPING PROTECTION People have fled persecution from the moment in earliest history when they began forming communities. A tradition of offering asylum began at almost the same time; and when nations began to develop an international conscience in the early 20th century, efforts to help refugees also went global. Fridtjof Nansen was appointed in 1921 as the first refugee High Commis- sioner of the League of Nations, the fore- runner of the United Nations. The United Nations Relief and Reha- bilitation Agency (UNRRA) assisted seven million people during and after the Sec- ond World War and a third group, the In- ternational Refugee Organization (IRO),

and irrelevant. to prevent refugee crises, The treaty’s “values are timeless,” like investing in conflict British Prime Minister Tony Blair insisted prevention, return, reinte- recently. But he added that “with vastly in- gration.” In Europe, he said, creasing economic migration around the “It is a real problem that world and most especially in Europe, there Europeans try to lessen is an obvious need to set proper rules and obligations to refugees… In procedures… The United Kingdom is tak- any case, no wall will be ing the lead in arguing for reform, not of high enough to prevent people from com- created in 1946, resettled more than one the Convention’s values, but of how it oping.” million displaced Europeans around the erates.” This debate is already taking place world and helped 73,000 civilians to re- Ruud Lubbers, a former Dutch Prime within the context of a series of meetings, turn to their former homes. Minister and recently appointed High termed ‘global consultations’, which UN- A body of refugee law also began to take Commissioner, has warned, however, that HCR, as the guardian of the Convention, root. The 1933 League of Nations’ Con- “many prosperous countries with strong is holding with the 140 countries that have vention relating to the International Status economies complain about the large num- acceded to the original instrument and a of Refugees and the 1938 Convention con- ber of asylum seekers, but offer too little subsequent Protocol, and other interested cerning the Status of Refugees coming Ã

REFUGEES 7 | COVER STORY | CHE•2265 ©ARNI/UN ARCHIVES/ In the beginning: The Geneva Refugee Convention was adopted on 28 July 1951 and opened for signature.

Ãfrom Germany provided limited protec- Conspicuously absent, with the exception European Office overlooking Lake Geneva, tion for uprooted peoples. The 1933 in- of Yugoslavia, was the Soviet-dominated delegates hammered out a refugee bill of strument, for instance, had introduced the communist bloc. rights. It involved long and hard bargain- notion that signatory states were obligated For three weeks, in the United Nations ing, interminable legal wrangling and a

“CONTRACTING STATES SHALL APPLY THE PROVISIONS OF THIS CONVENTION TO REFUGEES WITHOUT DISCRIMINATION...” Article 3

not to expel authorized refugees from their constant eye cocked to protect the rights territories and to avoid “non-admittance of sovereign states. “The modern system of [of refugees] at the frontier.” But that Con- refugee rights was… conceived out of en- vention lacked teeth: only eight countries lightened self-interest,” James C. Hathaway, ratified it, several of them after imposing professor of law and director of the Pro- substantial limitations on their obligations. gram in Refugee and Asylum Law at the But none of these early refugee organi- University of Michigan has written. zations were totally successful, legal pro- One heated debate was sparked over tection remained rudimentary and lead- the refusal of some delegates to commit ing members of the newly created United themselves to open-ended legal obligations. Nations, formed to “save succeeding gen- In elaborating one of the Convention’s core erations from the scourge of war”, deter- definitions—who could be considered a mined that a stronger refugee regime was refugee—some countries favored a general necessary. description covering all future refugees. With nearly one million refugees still Others wanted to limit the definition to milling hopelessly around Europe long af- then existing categories of refugees. ter the end of the war, UNHCR was cre- In the end, inevitably, there was a com- ated in 1950 and the following year the promise. A general definition emerged, Refugee Convention, the major legal foun- After helping settle World War II era based on a “well-founded fear of persecu- dation on which UNHCR’s work is based, refugees, Hungary was the first major tion” and limited to those who had become was adopted. The 26 participating coun- challenge for UNHCR and the refugees “as a result of events occurring tries were heavily western or liberal in ori- Convention. An amputee in the mid- AUT•11 before 1 January 1951.” entation, though they were joined by other 1950s waves good luck to fellow This temporal limitation—and the op- refugees in Austria. states such as Iraq, Egypt and Colombia. UNHCR/UN/ tion to impose a geographical limitationÃ

8 REFUGEES | OPINION | The Convention: Britain’s view The need for debate is now

by Jack Straw vent lawful immigration controls. It is in agents but sometimes, mistakenly, think the interests of genuine refugees, as much that is the only way of achieving their an’s inhumanity to man. A trite as anyone else, for the United Kingdom goals. phrase, often quoted, but one and other countries to take strict mea- I have made some key proposals which Mthat sums up the reason for the sures to maintain the integrity of our asy- focus on the importance of supporting existence of the 1951 Refugee Convention. lum system refugees in their regions of origin, while And 50 years later—50 years of torture, helping the minority who cannot safely persecution, violence and human rights TAKING ACTION remain in those regions to gain access to abuse—the Convention is as important as With this in mind, we have taken ac- the international protection regime. I also ever for protecting those who have no tion to improve the administration of our welcome the European Commission pro- other source of protection. domestic asylum system. This has in- posal to carry out a study of the feasibil- It is a commonly repeated truth that in cluded speeding up the initial decision ity of an EU resettlement program.These the 50 years since the signing of the 1951 making and appeals pro- proposals have received instrument, the world has moved on. In a cess and reducing the across Europe more sup- very real sense, the world is smaller than backlog of undecided cases port than I anticipated. it was in 1951. Information travels between to its lowest level for a “We have a We have a long road to continents in seconds, and the technolo- decade. There is much still long road to travel before we can gies that enable this are becoming more to be done on the domestic achieve a protection and more accessible. All of us can benefit front, but we have made a travel before regime which is gen- from the eclectic mixture of cultures strong beginning to the uinely fair and effective which has resulted from globalization. process of putting our own we can achieve and not subverted by But just as we have become more house in order. a protection criminal traffickers. We aware of ways of life in other countries, As well as looking at do- can only properly make so too have the inhabitants of developing mestic systems, we need to regime which this journey through countries become aware of the advantages look more generally at the is genuinely open and frank debate of life in developed countries. international system of about these issues. This The complex set of technological, in- protection. fair and debate needs input from stitutional, organizational, social and cul- We need to reconsider all interested parties; tural changes, which are summed up in the ways in which we seek effective…” refugee producing coun- the term ‘globalization’ have created a to protect those genuinely tries, countries which world where the prospect of travelling in need. While developed host refugees, countries many hundreds of miles to seek out a new countries such as the of first asylum, UNHCR life seems not an impossible dream, but United Kingdom are devoting resources and other interested organizations. rather an achievable reality. to dealing with applications for asylum, In this 50th anniversary year, the time is So I can understand why so many peo- so many of which are unfounded, we are right to have this debate. I am very glad ple want to leave their own countries and not paying enough attention to the large that UNHCR has recognized this and settle in the United Kingdom and other numbers of refugees who are living in acted upon it by instigating the global developed countries, in the hope of their regions of origin in hardship, and consultations exercise. The United King- achieving a better life for themselves and sometimes in danger. But having recog- dom is keen to make a full contribution their families. nized this, we need to do something about to the consultation exercise as part of a But they are not refugees. Our asylum it. journey to a modern international pro- processes were set up in order to admin- Most genuine refugees want nothing tection regime. B ister the international protection afforded more than an opportunity to return in to refugees under the 1951 Convention. safety and dignity to their homes. They Jack Straw was, until recently, Britain’s Those who are not truly refugees do do not wish to entrust themselves and Home Secretary in charge of immigration and nothing but harm by seeking to circum- their families to criminal traffickers and asylum issues. He is now Foreign Secretary.

REFUGEES 9 | COVER STORY |

Ã by interpreting the word ‘events’ to mean repatriated boatloads of Haitian asylum either ‘events occurring in Europe’ or seekers in waters outside U.S. territory. But ‘events occurring in Europe or elsewhere’— in the type of intricate legal opinion that was incorporated because the drafters felt might baffle anyone but a lawyer, the “it would be difficult for governments to Supreme Court also acknowledged that sign a blank check and to undertake obli- the Convention’s drafters “may not have gations towards future refugees, the ori- contemplated that any nation would gin and number of which would be un- gather fleeing refugees and return them known.” to the one country they had desperately Arguably the Convention’s most im- sought to escape; such actions may even portant provision—the obligation by gov- violate the spirit of Article 33”, which for- ernments not to expel or return (refouler) bids forcible return. an asylum seeker to a territory where (s)he The conference ended on 25 July 1951 faced persecution—was also fought over at and the Convention was formally adopted length. Diplomats questioned whether three days later, but much hard work still non-refoulement applied to persons who lay ahead. There was interminable fine had not yet entered a country and, thus, tuning and hard bargaining. As late as whether governments were under any 1959, UNHCR’s representative in Greece obligation to allow large numbers of per- cabled Geneva in despair: “I doubt whether sons claiming refugee status to cross their I have ever in my life asked so many times frontiers. the most different persons for one and the Though the principle of non-refoule- same thing as I have pressed in Greece for ment is now generally recognized as so ba- the ratification of the Convention. Still the sic it is considered part of customary law, prospects are not brilliant.” the particular debate continues. In a con- In a letter to UNHCR in 1956, India out- troversial 1993 decision, the United States lined its domestic refugee concerns and Supreme Court concluded that immigra- concluded, “In view of this, the govern- tion officials did not strictly contravene ment of India do not propose to become a the Convention when they seized and party to the above mentioned Convention ZAI•1997 ©S. SALGADO/ One of the key provisions of the Convention is

for the present.” India, the second most populous country in the world, has still not acceded to the Convention, though it is, ironically perhaps, a member of UN- HCR’s Executive Committee, which helps establish global refugee policy. Despite the hiccups and hesitations, in December 1952, Denmark became the first country to ratify the Convention. After five additional states—Norway, Belgium, Luxembourg, the Federal Republic of Ger- many and Australia—had also acceded, the Convention officially came into force on 22 April 1954. For the first time, there was a global instrument that represented a major im- provement on pre-World War II treaties is non-refoulement or the non-forcible return of people to conditions such as these in Central Africa in the mid-1990s.

and advanced international law in several of housing and jobs, a refugee should be covered by its provisions in its ‘exclusion important ways. treated at least as favorably as other na- clause’ (people who commit war crimes, The 1951 Convention contains a more tionals of a foreign country. for instance) and when the Convention general definition of the term refugee and Conversely, the Convention also spelled ceases to apply in its cessation clauses. it accords them a broader range of rights. out the obligations of refugees toward host For the first time it created a formal link Influenced by the 1933 Refugee Conven- countries. “Too often, the refugee was far between the treaty and an international

“A REFUGEE SHALL HAVE FREE ACCESS TO THE COURTS OF LAW...” Article 16

tion and the 1948 Universal Declaration of from conforming to the rules of the com- agency, UNHCR, which was given au- Human Rights, the 1951 instrument allows munity,” a French delegate said at the time thority to supervise its application. refugees the freedom to practice religion of the drafting in pushing for such an out- Crucially, more states helped draft the and provide religious education to their line. “Often, too, the refugee exploited the treaty—and have since ratified it—than have children, access to courts, elementary ed- community.” supported any other refugee instrument. ucation and public assistance. In the field The instrument stipulated who is not Despite its compromises and its limi- Ã

REFUGEES 11 Ã tations “what was done for was hoped, go out of business. In- refugees through the Convention stead, the refugee crisis spread, was a major achievement in the from Europe in the 1950s to Africa humanitarian field,” according to in the 1960s and then to Asia and Ivor C. Jackson, who worked for by the 1990s back to Europe. UNHCR for 30 years, including GTM•1996 The Convention obviously The Convention is all about providing protection. as deputy director of the organi- UNHCR officials help a newly returned couple to needed strengthening to remain zation’s Department of Interna- Guatemala with their papers and documentation. relevant for these new waves of

tional Protection. UNHCR/B. PRESS/ exiles. In 1967 the U.N. General As- sembly adopted the Protocol re- A NEW PHASE problem for very long. UNHCR had been lating to the Status of Refugees, which ef- The original framers had not expected given a limited three-year mandate to help fectively removed the earlier 1951 deadline refugee issues to be a major international the post-World War II refugees and then, it and the geographical restrictions while re-

GENDER: Persecution in the s “Where, after all, do universal human rights

by Judith Kumin turned them to the Securitate. cietal mores as a “particular social group” When the fathers of the 1951 Conven- for the purpose of refugee status determi- n 1989 Mihai and Maria fled the bru- tion—all men—drew up what would be- nation. tal regime of Romanian strongman come the Magna Carta of international Some critics saw this as western im- INicolae Ceausescu, floating on inner refugee law, they crafted a refugee defini- pingement on cultural traditions of non- tubes across the Danube River, before ap- tion which required a well-founded fear of western societies. Others felt it was too plying for refugee status at UNHCR’s Bel- persecution based on race, religion, na- broad, and argued that persecution had to grade office.“I can’t find any grounds for tionality, membership of a particular so- be personal and specific. In 1985, UNHCR’s recognition,” a troubled male colleague cial group, and political opinion. They did Executive Committee adopted its first told me “but I think you should talk to the not deliberately omit persecution based on Conclusion on Refugee Women and In- wife. I have the feeling she has something gender—it was not even considered. ternational Protection, and in 1988, UN- to say, but she won’t say it to me. She won’t Although it was recognized that women HCR organized its first Consultation on even look at me.” may be refugees in their own right, in Refugee Women. Over a cup of coffee, out practice they had diffi- of earshot of her husband, culty asserting claims. Of- TURNING POINT Maria told a chilling story of The Magna ten, wives were not given But the real turning point came in the humiliation and sexual a chance to tell their own 1990s. Human rights violations of women abuse at the hands of Roma- Carta of stories. Sometimes, like gained visibility, and the movement to rec- nia’s secret police, the Secu- international Maria, they hesitated to ognize the universality of human rights ritate, who were convinced do so in front of male in- gained credibility. There was growing con- her husband was involved in refugee law… terviewers. Little thought sensus that certain gender-related claims an underground opposition was given to forms of per- can and do fall within the 1951 Convention. group, and were determined did not secution which might In 1991, UNHCR issued its “Guidelines on to get Maria to admit it. deliberately only affect women. the Protection of Refugee Women.” In 1993, Soon after Maria’s inter- Gender-based persecu- Canada’s Immigration and Refugee Board view, the couple were reset- omit tion started to surface in published groundbreaking guidelines on tled to the United States. We the 1980s, during the first “Women Refugee Claimants fearing Gen- have stayed in touch over persecution U.N. Decade for Women. der-Related Persecution.” The United the years, and I have often based on In 1984, the European Par- States, Australia and the United Kingdom thought about how close we liament passed what was followed with their own guidelines. Today, came to denying their appli- gender… it was then a revolutionary res- states are increasingly hesitant to deny cation and handing them olution, asking states to claims from women using the age-old ar- over to the Yugoslav police, not even consider women who gument of ‘cultural relativism,’ that is, that who would, in turn, have re- considered. transgress religious or so- violations of women’s rights are private in-

12 REFUGEES | COVER STORY |

STATES “SHALL ACCORD TO REFUGEES THE SAME TREATMENT AS IS ACCORDED TO NATIONALS WITH RESPECT TO ELEMENTARY EDUCATION...” Article 22

taining other main provisions of the in- 1995, and as new categories of exiles, such influxes of asylum seekers, such as the strument. as so-called internally displaced people, hundreds of thousands of civilians who This was only one response as refugee were created. fled Bosnia and, later, Kosovo during the problems became more complex in the fol- In one innovative and relatively benign 1990s. lowing decades, as the number of people approach, some countries resorted to These schemes had both benefits and seeking safety swelled from less than one home-grown ‘temporary protection’ ar- drawbacks. They allowed civilians to en- million to a high of more than 27 million in rangements to accommodate large-scale ter a country speedily and with a mini- Ã spotlight begin? In small places, close to home.” – Eleanor Roosevelt

majority of asylum countries, insist the state be unwilling to protect the that what is important is not who woman? Or simply unable to protect her? perpetrates the harm, but whether How effective must state protection be? the state is willing and able to pro- U.S. Attorney General Janet Reno grap- tect the victim. pled with these issues just hours before Another contentious issue is leaving office in January 2001. She subse- whether there must be malicious quently ordered the Board of Immigration intent to harm the victim. This is Appeals to review a 1999 decision to deny particularly important in the con- asylum to a severely battered Guatemalan text of traditional practices such as woman who had sought protection in the female genital mutilation, where it U.S. from abuse by her former husband. is certainly not the intent of the per- A historic development came with the petrators to harm girls, even though adoption in Rome in July 1998 of the it is widely accepted that the prac- Statute of the International Criminal tice results in serious damage. Court which will adjudicate a broad spec- Political opinion is a complex area. trum of gender-related acts: rape, sexual Women may be persecuted not only slavery, enforced prostitution, forced preg- because of their own opinions, but nancy, enforced sterilization. In February

ETH•1996 also because of those of their spouses. 2001, the International Criminal Court for Females can face discriminatory the former Yugoslavia handed down its treatment because of religious stric- first convictions of Bosnian Serb officers tures including travel, dress, or em- for rape as a crime against humanity. UNHCR/W. STONE/ ployment more often than men. Fifty years after the Refugee Conven- Somali refugees attend a campaign against But it is ‘membership in a partic- tion was adopted, it still contains just five female genital mutilation, a protection problem the Convention did not envisage. ular social group’ which has gener- grounds for recognizing someone as a ated the most debate. Though it is refugee. There have been suggestions that widely accepted that some women a sixth ground—gender—should be added. cidents specific to a particular religion or may be considered part of a ‘particular so- But case law from around the world pro- culture. cial group’ for the purpose of status deter- vides ample evidence that gender-related A handful of countries, led by Germany, mination, there is less agreement about claims can be handled within the frame- still argue that, for an individual to be rec- how far that argument should go, in par- work of the existing text. Gender-based ognized as a refugee, the persecution feared ticular in connection with women who are persecution, and the persecution of must be perpetrated by the state, or by an victims of domestic abuse—the leading women in particular, has emerged from agent of the state. But UNHCR, and the cause of injury to women worldwide. Must the shadows. B

REFUGEES 13 | COVER STORY |

Ã mum of red tape, but since there were no not, and should not be used as, a substitute ments were formulated to try to stem the binding universal standards that apply to for the treaty. flow of asylum seekers when politically ex- temporary protection, the rights accorded There were also many negative devel- pedient. to asylum seekers were often fewer in opments. Countries which earlier had wel- Because the 1951 instrument does not number and less generous in scope than comed limited numbers of refugees or had define the term ‘persecution’ the definition those provided for under the Convention. accepted large groups for political as well itself has been subject to wildly differing— In addition, beneficiaries were usually as humanitarian considerations (people and increasingly restrictive—interpreta-

STATES “SHALL ISSUE IDENTITY PAPERS TO ANY REFUGEE IN THEIR TERRITORY...” Article 27

granted only ‘temporary’ residence, as the fleeing to the West from European com- tions. Some capitals argued that the nature term implies, and governments could end munist countries, for instance) began to of persecution has changed over the past their protection arrangements at their own close their doors. The term ‘Fortress Eu- 50 years, and that people who flee civil war, discretion. Thus temporary protection rope’ was coined. generalized violence or a range of human may be a practical complement to the Con- Inevitably, the Convention came under rights abuses in their home countries, and vention, but according to UNHCR, it is closer scrutiny and convoluted legal argu- Turn to page 18 Ã

14 REFUGEES CESSATION: When is a refugee not a refugee? Applying the Convention’s ‘cessation clauses’

hen a radical group of young TWO AREAS cessation for 15 national groups in the last officers overthrew Ethiopia’s The cessation clauses were born in 1951. 20 years including the Ethiopians who fled W ailing Emperor Haile Selassie They cover two broad areas. Four clauses the country before 1991, Chileans follow- in 1974, they ushered in nearly two relate to major changes in the personal cir- ing democratic developments in that coun- decades of mayhem. Thousands of people cumstances of a refugee, for instance, if try and Namibians following indepen- were killed during the infamous Red and (s)he willingly returns home or obtains a dence in their southern African state. White Terror campaigns and hundreds of passport or residency in another state. A low-key cessation debate continues thousands of civilians fled to sur- about when and how the clauses rounding East African states. should be implemented, especially The discredited military was during mass flight or when states itself ousted in 1991. The major- provide so-called ‘temporary pro- ity of refugees willingly returned tection’ to fleeing civilians rather home as a new civilian govern- than full Convention rights. ment instituted democratic re- European and other nations of- form and in 2000, UNHCR ap- fered hundreds of thousands of plied the so-called ‘cessation civilians who fled the Balkans in clauses’ of the 1951 Geneva Con- the 1990s this kind of temporary vention toward several thousand shelter. To ensure that govern- Ethiopians who had left home be- ments continue such ‘open door’ fore 1991. policies in the future, some officials argue that the cessation NO LONGER ELIGIBLE clauses must be applied swiftly Effectively, the refugees were and liberally to encourage them. told they were no longer eligible Opponents counter that states for international protection be- are already reluctant to extend full cause they could go back freely Convention rights during ‘tem- without fear of facing any type of porary protection’ situations and persecution. might take such ‘flexibility’ as a During any crisis, world atten- green light to apply the clauses ar- tion normally focuses on the bitrarily against individuals. ‘front end’ of the problem—the There are other debates. Could flight of civilians, their attempts not, for instance, many of an esti-

to find asylum and the reaction C.S.•ETH•2001 mated 3.5 million Afghan of governments. The cessation refugees, who are of the same eth- clauses, which receive far less at- nicity as the ruling Taliban, return tention, were designed to help safely to peaceful parts of that dev- tidy up the ‘loose ends’ and find astated country after spending long-term solutions in the after- UNHCR/B. NEELEMAN/ years in exile? UNHCR has ar- Ethiopians returning from Sudan. math of crises. gued forcefully that “where one As the Convention was being type of civil war replaces another framed, UNHCR’s first High Commis- The second area, ‘ceased circumstances’ as in the case of Afghanistan, cessation can- sioner G.J. van Heuven Goedhart made clause is applied following a fundamental not be invoked.” clear that both approaches were necessary. change in the circumstances in which a Some officials shudder at the conse- Protection was obviously vital, but it civilian was forced to flee in the first place, quences of such thinking. “The system has should last only as long as absolutely nec- an example being if his or her country of worked well until now and must be used essary. “Refugee status,” he said, “should origin returns to a state of democracy after sparingly,” one expert said. “We cannot run not be granted for one day longer than is a period of war. the risk of opening a Pandora’s box and all absolutely necessary.” In this last category, UNHCR declared kinds of nasty surprises jumping out.” B

REFUGEES 15 | QUESTIONS & ANSWERS | Most frequently asked questions a

Why is the Convention important? sic human rights are threatened flee their should not be confused, as they sometimes It was the first truly international agree- homes, often to another country, where are, with bona fide refugees who are flee- ment covering the most fundamental as- they may be classed as refugees and be ing life-threatening persecution and not pects of a refugee’s life. It spelled out a set guaranteed basic rights. merely economic hardship. Modern mi- of basic human rights which should be at gratory patterns can be extremely com- least equivalent to freedoms enjoyed by Who protects refugees? plex and contain a mix of economic mi- foreign nationals living legally in a given Host governments are primarily respon- grants, genuine refugees and others. Gov- country and in many cases those of citi- sible for protecting refugees and the 140 ernments face a daunting task in zens of that state. It recognized the inter- parties to the Convention and/or the Pro- separating the various groupings and national scope of refugee crises and the tocol are obliged to carry out its provisions. treating genuine refugees in the appro- necessity of international cooperation, in- UNHCR maintains a ‘watching brief’, in- priate manner—through established and cluding burden-sharing among states, in tervening if necessary to ensure bona fide fair asylum procedures. tackling the problem. refugees are granted asylum and are not forcibly returned to countries where their How are refugees and economic What is contained in the 1951 lives may be in danger. The agency seeks migrants different? Convention? ways to help refugees restart their lives, An economic migrant normally leaves a It defines what the term ‘refugee’ means. either through local integration, volun- country voluntarily to seek a better life. It outlines a refugee’s rights including such tary return to their homeland or, if that is Should he or she elect to return home they things as freedom of religion and move- not possible, through resettlement in would continue to receive the protection of ment, the right to work, education and ac- ‘third’ countries. their government. Refugees flee because cessibility to travel documents, but it also of the threat of persecution and cannot re- underscores a refugee’s obligations to a Is the Convention still relevant for turn safely to their homes in the circum- host government. A key provision stipu- the new millennium? stances then prevailing. lates that refugees should not be returned, Yes. It was originally adopted to deal with or refouled, to a country where he or she the aftermath of World War II in Europe Does the Convention cover internally fears persecution. It also spells out people and growing East-West political tensions. displaced persons? or groups of people who are not covered But though the nature of conflict and mi- Not specifically. Refugees are people who by the Convention. gration patterns have changed in the in- have crossed an international border into tervening decades, the Convention has a second country seeking sanctuary. In- What is contained in the 1967 Protocol? proved remarkably re- It removes the geographical and time lim- silient in helping to

itations written into the original Conven- protect an estimated 50 ALB•1999 tion under which mainly Europeans in- million people in all volved in events occurring before 1 Jan- types of situations. As

uary 1951, could apply for refugee status. long as persecution of ©S. SALGADO/ individuals and groups Who is a refugee? persists, there will be a Article 1 of the Convention defines a need for the Conven- refugee as a person who is outside his/her tion. country of nationality or habitual residence; has a well-founded fear of perse- Is the Convention cution because of his/her race, religion, meant to regulate nationality, membership in a particular migratory move- social group or political opinion; and is un- ments? able or unwilling to avail himself/herself No. Millions of ‘eco- of the protection of that country, or to re- nomic’ and other mi- turn there, for fear of persecution. grants have taken advantage of improved What is protection? communications in the Governments are responsible for enforc- last few decades to seek ing a country’s laws. When they are un- new lives in other, able or unwilling to do so, often during a mainly western, coun-

©CORBIS conflict or civil unrest, people whose ba- tries. However, they

16 REFUGEES | QUESTIONS & ANSWERS | about the Refugee Convention

ternally displaced persons (IDPs) may have may cease to be a refugee when the basis specific circumstances. But it only com- fled for similar reasons, but remain within for his or her refugee status ceases to exist. plements and does not substitute for the their own territory and thus are still sub- Voluntary repatriation of refugees to their wider protection measures, including ject to the laws of that state. In specific country of origin is UNHCR’s ‘preferred’ refugee asylum, offered by the Conven- crises, UNHCR assists several million, but solution, but only when conditions in that tion. not all of the estimated 20-25 million IDPs state permit their safe return. worldwide. There is widespread interna- Are some countries, such as those in tional debate currently underway on how Who is not covered by the Convention? Europe, being swamped by asylum this group of uprooted people can be bet- Persons who have committed crimes seekers? ter protected and by whom. against peace, a war crime, crimes against Countries around the world, including humanity or a serious non-political crime some in Europe, believe they are being Can the Convention resolve refugee outside the country of refuge. overwhelmed by asylum seekers. And problems? while it is true that numbers have in- People become refugees, either on an in- Can a soldier be a refugee? creased inexorably in the last few decades dividual basis or as part of a mass exodus, A refugee is a civilian. Former soldiers in many areas, the concerns of individual because of political, religious, military and may qualify, for instance, but a person who states are all relative. The bottom line is other problems in their home country. continues to take part in military activi- that some nations in Africa and Asia— The Convention was not designed to ties cannot be considered for asylum. states with far fewer economic resources tackle these root causes, but rather to al- than industrialized countries—sometimes leviate their consequences by offering vic- Can non-Convention countries refuse host larger numbers of refugees for far tims a degree of international legal pro- to admit would-be refugees? longer periods of time. tection and other assistance and eventu- The principle of non-refoulement—the ally to help them begin their lives anew. forcible return of people to countries But does the very fact of accession Protection can contribute to an overall so- where they face persecution—is part of cus- to the Convention provide a ‘pull’ lution, but as the number of refugees in- tomary international law and is binding factor for increasing numbers of creased dramatically in recent decades, it on all states. Therefore no government asylum seekers? has become clear that humanitarian work should expel a person in those circum- No. Some states hosting the largest refugee cannot act as a substitute for political ac- stances. populations are not parties to refugee in- tion in avoiding or solving future crises. struments. Geopolitical considerations or Who or what is an ‘agent of persecution’? family links play a more crucial role as far What obligations This refers to a person or organization— as ‘attractiveness’ of destination is con- does a refugee have? governments, rebels or other groups— cerned. Refugees are re- which force people to flee their homes. quired to respect the The origin of the persecution, however, Does accession infringe upon state laws and regulations should not be decisive in determining sovereignty? of their country of whether a person is eligible for refugee Sovereignty is never absolute. Interna- asylum. status. What is important is whether a per- tional relations imply a reasonable and ac- son deserves international protection be- ceptable level of compromise. The refugee Is a Convention sig- cause it is not available in the country of instruments reconcile state interests with natory required to origin. protection. The granting of asylum, for give permanent instance, has not been incorporated into asylum to all What is ‘temporary protection’? the refugee instruments and continues to refugees? Nations at times offer ‘temporary protec- be at the discretion of individual govern- The Convention tion’ when they face a sudden mass influx ments. does not provide au- of people, as happened during the conflict tomatic or perma- in the former Yugoslavia in the early Can a country be declared ‘safe’ in the nent protection. 1990s, and their regular asylum systems sense that it cannot produce refugees? There will be situa- would be overwhelmed. In such circum- No. Even in states where there is gener- tions where refugees stances people can be speedily admitted to ally no serious risk of persecution, claims will integrate perma- safe countries, but without any guarantee by nationals must still be considered. nently in their coun- of permanent asylum. Thus ‘temporary These may be channeled through an ‘ac- try of asylum, but al- protection’ can work to the advantage of celerated procedure’ provided that the asy- ternatively a person both governments and asylum seekers in lum seeker is given a fair hearing. B

REFUGEES 17 | COVER STORY |

Ã Continued from page 14 who usually do so in large numbers, are not fleeing persecution per se. UNHCR says that war and violence have been used increasingly as instruments of persecution according to the Conven- tion. In conflicts in the former Yugoslavia, the Great Lakes region of Africa and Kosovo, for instance, violence was deliberately used to persecute specific communities; ethnic or religious ‘cleansing’ was the ultimate goal of those conflicts.

THE BAD GUYS In 1951, so-called ‘agents of persecution’ were generally assumed to be states. Now, refugees more often flee areas where there is no functioning government, where they are victims of shadowy organizations, rebel movements or local militia. A few governments insist that actions by these ‘non- state agents’ cannot be considered ‘persecution’ under the Convention. Others rea- Innovative programs such as ‘temporary protection’ are employed in cases of mass influxes of people. Here civilians fleeing Kosovo arrive in the United States son that if a country tolerates, is complicit under one such initiative. in, or cannot prevent persecution by non-

EXCLUSION: To exclude or not to exclude When can a person be excluded from protection?

hen a hijacked Afghan airliner Taliban who had already tortured some of Three crew members escaped to neigh- touched down at London’s their group. The government set aside boring Pakistan.The fate of the civilian pas- W Stansted airport in early 2000, their asylum claims and put 12 of them on sengers is unclear. the incident touched off an international trial. Nearly 80 civilians, including some furore. Britain’s media initially greeted the family members of the hijackers, claimed BARRING CLAIMANTS Afghan passengers as innocents escaping asylum. Two claims were approved and 37 The Convention’s exclusion clauses bar the wrath of the vengeful Taliban rulers. rejected cases are being appealed. The crew a person from refugee status for a variety But in an atmosphere of rising xeno- and other passengers returned home. of reasons including crimes against hu- phobia, the welcome quickly turned into Which is where the story becomes in- manity, war crimes, serious non-political condemnation and even women and chil- teresting. Persons involved in hijacking crimes committed outside the country of dren were denounced by some newspapers normally could be denied refugee status refuge and acts contrary to the purposes as frauds, so-called ‘bogus’ asylum seekers under the so-called ‘exclusion clauses’ con- and principles of the United Nations. staying in luxury hotels at the taxpayers tained in the 1951 Convention. UNHCR These include a wide range of offenses expense. has insisted, however, despite mounting from murder and rape to the wanton de- Britain’s government insisted no Afghan pressure from governments worried about struction of cities. would stay in the country a moment more increased terrorism, that even seemingly The clauses were designed “to deprive than absolutely necessary. European gov- clear cut exclusion situations must be perpetrators of heinous acts of refugee pro- ernments watched as the drama developed treated with the utmost delicacy, an ap- tection and to safeguard the receiving into a test case of sorts on the issue of pro- proach vindicated in the hijack drama. country from criminals who present a dan- tection. Though members of the airline crew ger to that country’s security,” according The hijackers claimed they had escaped initially were treated as heroes, they were to a UNHCR briefing note on the issue Afghanistan only one step ahead of the subsequently harassed and threatened. and “from this perspective, exclusion

18 REFUGEES | COVER STORY |

state agents, then refugee status should be therefore, the provisions of the Conven- sharing, has ignited heated debate in re- granted to the victims. tion do not apply to large groups of people cent years among governments, legal Given the Convention’s silence on the seeking asylum in a country en masse, scholars and UNHCR. issue, UNHCR believes the source of the which is increasingly the case. Humani- Although the Universal Declaration of persecution is less a factor in determining tarian jurists say that nothing in the defi- Human Rights asserts the right of persons refugee status than whether mistreatment nition implies that it refers only to indi- to seek and enjoy asylum, the Convention stems from one of the grounds stipulated viduals and underline that when the Con- makes no mention of such a right, nor of

STATES “SHALL NOT IMPOSE PENALTIES, ON ACCOUNT OF THEIR ILLEGAL ENTRY OR PRESENCE, ON REFUGEES...” Article 31

in the Convention. Last year, the European vention was drafted, its intended any obligation on countries to admit asy-

USA•1999 Court of Human Rights reaffirmed that beneficiaries were, in fact, large groups of lum seekers. The Convention does protect persecution by non-state agents is still per- people displaced by World War II. those refugees who lost, left behind or secution by ruling that returning asylum The Convention’s provisions present a could not obtain proper documentation seekers to situations in which they could complex legal challenge. While some ar- and so entered a potential asylum country face persecution violates the European ticles are absolute, many are flexible unlawfully. States are obliged not to im- Convention of Human Rights, whatever enough to allow the treaty to live and pose penalties on those people as long as ©BLACK STAR/L. QUINONES/ the origin of the persecution. evolve, through interpretation, as times “they present themselves without delay to Some states argued that the Conven- and circumstances change. Equally, the the authorities and show good cause for tion only applies to individuals (“…the term Convention’s silence on a number of issues, their illegal entry or presence.” ‘refugee’ shall apply to any person who…”); including asylum, gender and burden- The only reference to states’ responsi- Ã

clauses help to preserve the (overall) instruments to combat what they perceive avenue by which deserving cases are de- tegrity of the asylum concept.” as the menace. nied international protection.” But widespread atrocities committed in UNHCR has insisted that the Conven- Even if a person has committed an of- the Balkans during the 1990s and the tion and its exclusion clauses are wide fense serious enough to warrant exclusion, Rwandan genocide fueled concerns about ranging and flexible enough to bar unde- jurists say, the severity of the crime should international legal loopholes. Some gov- sirables from achieving refugee status. The still be ‘balanced’ against the likely fate of ernments feared terrorists could use the agency worried instead that “in a climate the claimant if (s)he is barred from the asy- Convention as a shield and increasingly of numerous challenges to asylum, exclu- lum process. For example, if a drug traf- rely on anti-terrorism international in- sion clauses should not become another ficker faces torture or execution upon return, he may be granted refugee status. There are unresolved issues which have been explored during the current global consultations. The consequences of exclusion, for instance; whether a person excluded should be prosecuted by the host authorities or returned to the country of COURTESY OF THE DAILY MAIL origin. Humanitarian officials worry too about the forcible return (refoulement) of unde- sirable people from countries which have not acceded to international human rights instruments. “This whole area is very sensitive,” one lawyer said, “because we are generally dealing with a potential refugee who may also be a criminal. The bottom line, however, is that application of the exclusion clauses must also remain the exception rather than the norm.” B “Take us to Stansted!”

REFUGEES 19 | COVER STORY |

strain imposed on asylum systems by the rise in uncontrolled migration and both real and perceived abuse of those systems. Cheap international travel and global communications are prompting increasing numbers of people to abandon their homes and to try to improve their lot elsewhere, whether for economic or refugee-related reasons. Smugglers and traffickers have launched a multi-billion dollar trade in people. Economic migrants and genuine refugees often C.S.•LBR•1995 become hopelessly entangled in the race to reach ‘promised land.’ As the distinction between the two becomes blurred, sometimes in-

©LAIF/G. ULUTUNÇOK/ tentionally so, the rhetoric against The Convention details people who are NOT eligible for refugee status, including soldiers. all those perceived as ‘foreigners’ and ‘bogus refugees’ and, increasingly, against the Refugee Con- Ã bilities in admitting refugees appears in Burden-sharing has become one of the vention, itself, has become more barbed. the drafters’ Final Act. They recom- most contentious issues among receiving There is no question that the number of mended “that Governments continue to countries, one that involves not just peo- those seeking asylum in developed coun- receive refugees in their territories and… ple and money but competition for food, tries increased substantially over the past act in concert in a true spirit of interna- medical services, jobs, housing and the en- two decades. In 2000, just over 400,000 tional cooperation in order that these vironment. Left unresolved, the issue persons applied for asylum in the 15 coun- refugees may find asylum and the possi- could threaten the very existence of the tries of the European Union (EU), double bility of resettlement.” international refugee protection regime. the number in 1980, but down from a high The problem of internally displaced of 700,000 in 1992. With the increase in GENDER VIOLENCE persons—people displaced by war and gen- asylum seekers comes an increase in ex- The Convention doesn’t mention generalized violence but who remain within penditures to pay for refugee status deter- der in its list of grounds on which refugee their home countries—demands urgent ac- mination procedures and for the social as- status is based, but there is growing recog- tion. This group now numbers between sistance provided to asylum seekers. By

“EVERY REFUGEE HAS DUTIES TO THE COUNTRY IN WHICH HE/SHE FINDS HIMSELF/HERSELF...” Article 2

nition that gender-related violence under 20 and 25 million in at least 40 countries, one estimate, that expense among devel- certain circumstances falls within the compared with an estimated 12 million oped countries around the world reached refugee definition (see box). In considering refugees. Although they may have fled $10 billion in 2000. When only one-quar- a case in 1999, Great Britain’s House of their homes for the same reasons as ter of asylum seekers is ultimately granted Lords determined that women could be refugees, because they have not crossed an refugee status, as happened in the EU in considered “a particular social group” international border, they still, at least in 1999, governments balk. when persecuted because of behaviors or theory, enjoy the legal protection of their attitudes at odds with prevalent social governments and so are not covered by the RECONSIDERING THE CONVENTION mores—mores, say, that discriminate Refugee Convention. But given the mini- British Prime Minister Blair said it was against women or accord them less legal mal or non-existent protection accorded now time to “stand back and consider its protection than men. to most IDPs, the international commu- [the Convention’s] applications in today’s While the Convention is predicated on nity has begun considering how best to se- world.” British policy in future, he said, international cooperation and recognizes cure their rights. would be “asylum for those who qualify the need to share equitably the burdens The growing tendency among some under the rules, fast action to deal with and responsibilities of protecting refugees, governments to interpret the Convention’s those who don’t.” British Home Secretary it gives no prescription on how to do so. provisions restrictively is a reaction to the Jack Straw concurred that “the Conven-

20 REFUGEES | COVER STORY |

tion is no longer working as its framers in- standard that elements of the UNHCR im- problem of migration has to be addressed tended.” Citing a tenfold increase in the pose on developed countries and I don’t in tandem with the refugee problem, but number of asylum seekers in Great Britain think it can go on.” One casualty of this sit- using different tools,” says Feller. “The since 1988, Straw added that “would-be mi- uation and the increasing number of peo- Convention can’t be held responsible for grants are taking advantage of one aspect ple unilaterally arriving in Australia, Rud- failing to deal with situations it was never of the Convention—namely, that it places dock said, was the government might have designed to address.” an obligation on states to consider any ap- to slash the numbers of refugees it admit- It may be open to interpretation, but ac- plication for asylum made on their terri- ted annually for permanent resettlement. cording to Feller a restrictive reading of tory, however ill-founded.” Lawmakers from Washington to Berlin the Convention is not the appropriate re- Australian Minister for Immigration have worried that the Convention was a action. “There are provisions in the Con- and Multicultural Affairs Philip Ruddock convenient screen behind which everyone vention that could be written better; the

THE CONVENTION “SHALL NOT APPLY TO ANY PERSON (WHO) HAS COMMITTED A CRIME AGAINST PEACE, A WAR CRIME, OR A CRIME AGAINST HUMANITY...” Article 1F (a) has become an outspoken critic both of the from terrorists to mass murderers and letter, the terms have, to some extent, Convention and UNHCR’s overall perfor- dope dealers could hide. Humanitarian worked against the instrument in today’s mance. The agency, he said recently, lawyers insist that existing provisions are world,” she said. “But you cannot interpret “spends cents a day looking after people in already strong and flexible enough to meet international law as though it is domestic Africa and we spend tens of thousands of these challenges and already exclude such legislation. It is in one sense an instrument dollars on people in developed countries categories of persons. of compromise, drafted by diplomats. The who have been free enough to travel and Many of the arguments made by crit- basis of the Convention is timeless.” had the money to engage people smug- ics also miss or disregard a fundamental While some governments of developed glers.” There appeared, he said “one stan- fact: the Convention was never intended countries are reading the Convention ever- dard for the UNHCR, and there is another to be a migration control instrument. “The more restrictively, and jeopardizing the Ã Broadcasting to the world… The BBC launches a landmark series on the world of refugees

he British Broadcasting Corporation lated program, Talking Point, World Ser- The main six programs, each 30 min- (BBC) World Service radio network vice listeners will be able to put their ques- utes long, will be broadcast in English. isT producing one of its most ambitious se- tions to Ruud Lubbers, the United Nations They will include a historical overview of ries ever to coincide with the anniversary High Commissioner for Refugees. the changing world of refugees, the in- of the 1951 Refugee Convention. Entitled The BBC calls the refugee community creasing threats to refugee protection The Right to Refuge, the landmark pack- “a hugely misunderstood and misrepre- worldwide, ‘forgotten’ refugees in devel- age will cover every aspect of the complex sented group.” The series will present a oping countries and asylum seekers in the world of the refugee—from flight, to asy- “dispassionate and clear appraisal of an is- West. Other programs will tackle the prob- lum and eventual return home. sue” which is surrounded by myths and lem of when refugees should return home BBC teams were deployed worldwide obscured by a mounting controversy over and the future of the Geneva Convention. for many weeks to gather material. Pro- ‘bogus asylum seekers’. Twelve shorter, 15-minute programs grams will be broadcast in a total of nine The programs will be designed to raise aimed specifically for educational use, will languages, some to a global audience, oth- awareness of refugee issues, “cut through tackle key themes and issues and eight se- ers to regional listeners, over a period of the claims and counter claims” about ries of up to 10 programs exploring re- several months starting in June. refugees, give uprooted peoples themselves gional problems will be broadcast in Per- A special web site will carry audio of se- a direct voice in talking about their lives sian/Pashto, French for Africa, Indone- ries programs, analysis, first person refugee and create a dialogue between refugees and sian, Albanian, Serbian/Croatian, Urdu, testimonies and interactive maps. In a re- various government and agency officials. Russian and Spanish for the Americas. B

REFUGEES 21 | COVER STORY |

Ã safety of genuine refugees in the process, punity and civilians, including tens of already scarce economic and natural re- the quality of asylum in developing coun- thousands of children, have been forcibly sources. Yet, they say, they receive little as- tries has been steadily deteriorating. recruited by the gunmen. sistance from the developed world for do- Refugee camps have been attacked, armed Many developing countries host large ing so. Two countries in southwest Asia, militias have been allowed to mingle with, numbers of refugees for long periods of Iran and Pakistan, host twice as many and intimidate, refugees with seeming im- time, with ruinous consequences for their refugees as do all the countries of western Desperately seeking An official view of the daily drama behind the quest for refuge

by Peter Showler ten evidence. Following the Singh decision, Canada efugees can change the law. A man chose a radically different way. All eligi- named Singh sought asylum in ble claimants would now receive a hear- R Canada in the early 1980s claiming before a two-member panel of the Im- ing fear of persecution in India. He was migration and Refugee Board (IRB) to en- interviewed by an immigration officer sure that (s)he received a full opportunity and a verbatim record was sent to an of- to explain why (s)he feared persecution. If ficial panel in another city. The decision- panel members disagreed, the claim would makers never saw him; they never heard be decided in favor of the applicant. him describe his experiences or speak The claimant was assured a wide range about his fear of persecution if he were re- of protection including the right to coun- turned to India.They rejected his claim sel and an interpreter, the right to be heard, for asylum based solely prior disclosure of all doc- on the record of his in- umentary evidence and terview and other docu- written reasons justifying mentation. “The most a negative decision. Mr. Singh’s story did No one was assigned the not end there. He ap- terrible reality institutional role of oppos- pealed his rejection and in ing the claim. A neutral

1985 the Supreme Court is that it is refugee hearing officer CAN•1989 of Canada said that proce- often very would assist board mem- dural fairness required bers by preparing docu- that a refugee claimant difficult to mentary evidence and UNHCR/V. BOYD/ must be allowed to speak questioning the applicant. Canada’s immigration court system in action. directly to an asylum distinguish Both claimant and hearing panel. This was particu- between a officer would have full ac- larly true if the credibil- cess to a world-class docu- ity of the refugee claimant genuine and mentation center contain- most astute and conscientious decision- was at issue. false refugee.” ing human rights and maker. At the time (and still country information. The In addition to the relentless pressure of today in many western asylum seeker, as well as mounting caseloads demanding a rapid democracies) immigra- the refugee officer, could and efficient hearing, the decision-maker tion or justice officials interviewed and make submissions on the evidence. must address the unique realities of hear- made an initial decision on refugee claims. ing refugee claims. Courts or administrative law tribunals WORKING WELL Every day board members hear stories were reserved for reviewing the decisions By and large, the Canadian system has of human suffering. Occasionally, it is hor- of government officials by way of appeal. been successful. Yet, despite all of the pro- rific: rape, beatings, imprisonment, tor- Some appellate bodies had the authority cedural protections, there are certain in- ture, threats of death to the claimant or to hear the live testimony of the claimant, herent qualities to the refugee experience their family. Sometimes it is unspeakable, others were limited to a review of the writ- that will always present a challenge to the beyond imagination. I recall a Tutsi sur-

22 REFUGEES | COVER STORY |

Europe combined. Yet in 2000, the world’s MAKING PROTECTION WORK den some nations have to bear, the un- wealthiest nations contributed less than $1 Balancing the interests of governments availability of timely and appropriate solu- billion—one-tenth the amount they spent with the needs of refugees is difficult but tions to refugees’ problems,” says Feller. “Of on maintaining their own asylum sys- essential. “We share states’ concerns about course, burden-sharing can never be a pre- tems—to fund UNHCR’s protection work the costs and misuse of the asylum system, condition for meeting responsibilities. around the world. the disproportionate and protracted bur- Turn to page 29 Ã safety

genuinely fears persecution members have several tools to assess cred- that they are safe and have ibility: they are well-trained, they have found asylum. country expertise and country informa- Many refugees also earn the tion and a research center for specific respect of officials. They tell claimant information. more than a tale of oppression. But the challenges remain formidable. Their stories are often a tri- Claimants are often not good witnesses. umph of the human spirit, of They may be poorly educated, confused, the will to survive, to endure, traumatized, inarticulate, frightened. Their to maintain a sense of personal cultural and social realities may be totally dignity in the most debasing of different from that of a board member. circumstances. They don’t understand questions and Another reality in this day appear evasive. They speak through an in- by day drama is less pleasant, terpreter, which always blunts the imme- when a member does not be- diacy of their testimony and occasionally lieve the claimant or finds his causes real confusion. The events they de- or her fear of persecution is not scribe occurred in far away countries in well-founded. the middle of civil strife and are often im- Sometimes their story does possible to document. not fit the refugee definition, Both genuine and false asylum seekers there has been a change of cir- use illegal means to come to Canada. Iron- cumstances or the specific ically, while many people lack adequate harm feared does not fit the documents, some wealthy ‘illegal’ definition of persecution. claimants may have all the necessary pa- Sometimes the story is exag- perwork, having bribed corrupt officials gerated and the applicant is or smugglers back home. simply fleeing poverty, squalor In summary, board members daily see and general oppression. Some- people who tell imperfect stories of horri- vivor of Rwanda’s genocide whose home times the story is fabricated but contains ble personal abuse which may or may not was invaded by a gang of machete-wield- the ring of truth because the claimant is be true and which are not easily verified ing men, and who was left for dead. She the persecutor rather than the persecuted. by normal objective forms of evidence. recovered consciousness to find the bod- Sometimes the story is simply false. Their job is to listen carefully and to make ies of her family littered about her on the a well-reasoned decision promptly, within floor. TERRIBLE REALITIES the law and rules of natural justice. It is a It is the member’s job to decide the cred- The most terrible reality is that it is of- humbling and difficult task, but I am sure ibility and truth of each story and whether ten very difficult to distinguish between that Mr. Singh would agree, one well worth the claimant’s fear conforms with the def- a genuine and false refugee. Therein lies the effort. B inition of a Convention refugee. the ultimate challenge. It is a wonderful privilege for board The majority of claims fall into a mid- Peter Showler is the Chairman of members, if a claimant is judged to be dle ground where the evidence is am- Canada’s Immigration and Refugee Board telling the truth, to inform someone who biguous and certainty is elusive. Board (IRB).

REFUGEES 23 | COVER STORY | ASYLUM IN THE ‘LAND OF THE FREE’ A 642-day journey through the American immigration courts

by Lisa Getter U.S. Immigration Court is unique in will be lost, attorneys will come and go and American jurisprudence. There is no scheduling mistakes will multiply. ne by one, the 10 men line up bailiff, no court reporter, no one to record And the decision, when it finally comes, against a wooden rail in a Virginia the hearings but judge Joan V. Churchill, will appear to contradict much of what was Ofederal courtroom, right hands using a tape recorder that she can turn on said in court. While Zathang’s case may be raised, pledging to tell the truth, the whole and off at will. There isn’t even a full day unusual, its tortuous path reflects broader truth and nothing but the truth. “I do,” each set aside for Zathang’s case, which means problems with the nation’s Immigration replies—one after another after another. the witnesses will come back again and Court system. Congress defines the mis- This is America at its most basic: a again, workday after workday, some never sion of the courts as “the expeditious, fair chance for these men, eight of whom have getting a chance to testify. and proper resolution of matters coming fled persecution themselves, to tell an im- For Zathang and his supporters, the before immigration judges.” But in reality, migration judge what they know about wait will prove excruciating. From the time the courts are often backlogged. It is diffi- Tialhei Zathang, a math teacher from Zathang files his asylum application, 642 cult to find competent translators. And the Myanmar who is applying for political asy- days will pass before Churchill issues her identity of each of the 219 judges can affect lum. ruling. During those 21 months, documents the outcome. Statistics tell part of the story: only 20 judges granted asylum in more than 30% of their cases, while 69 judges ap- Zathang, left, prays in his native Chin language at a church in Maryland. proved fewer than 10% of the asylum cases. To those immigrants who have experienced political or religious persecution firsthand, asylum is a cornerstone of America’s image as the land of the free and the home of the brave. But relatively few of them ever get it. A Los Angeles Times computer analysis of Immigration Court statistics during a six-year period from 1994 to 2000 shows that judges approved asylum requests in about 14% of their cases. This is the story of one case in one courtroom, before just one of the immigration judges who decide the fates of tens of thousands of asylum seekers each year.

DAY ONE: December 4, 1998 Tialhei Zathang shows up at an INS (Immigration and Naturalization Service) office in Arlington, Virginia, and applies for asylum. He says he had been persecuted in Myanmar, the southeast Asian nation formerly known as Burma. He is a small, intense man with an in- dentation on the left side of his forehead. Zathang says it came at the hands of the Burmese military, who detained him for 11 days in 1988 and beat him until he was unconscious because he was a practicing Christian in a Buddhist country who ac- tively fought for democracy.

24 REFUGEES | COVER STORY |

1998, after being warned he was about to law. The Board of Immigration Appeals lum. He says the case is “a house of cards.” be arrested again. He says he and his fam- has been reluctant to overrule judges, even Although it is late afternoon, the stu- ily reached India after walking through the when some members believe they are dent lawyers want to call retired Rutgers jungle for 16 grueling days, clearing a path wrong. Churchill, the toughest immigra- University political science professor Josef with a machete as they went. He carried tion judge in the Washington D.C. area, Silverstein as a witness. They have ar- his 5-year-old daughter on his back, while grants fewer asylum requests than the na- ranged for him to testify by phone, a com- his 6-year-old son walked on his own and tional average and awarded asylum in only mon practice in Immigration Court be- his 15-year-old son carried supplies. If he 233 of the 2,302 cases since October 1994. cause few immigrants can afford to pay were to return to his homeland, he says, Churchill is buried in paperwork. While their witnesses’ travel costs. Churchill is he would be killed. immigrants testify, she addresses, stuffs, reluctant. “Why is it so urgent I hear the Friends and a Baptist pastor in India col- then licks the back of an envelope. She witness today?” she asks. lected money for him to buy a plane ticket shuffles documents. She schedules future Silverstein has been waiting at his New to New York and an Indian passport issued hearings. She copies documents on a ma- Jersey home for hours. He has testified be- illicitly by a local official willing to over- chine near her desk. fore Congress on Myanmar. He has also look the fact that Zathang was not a citi- Zathang’s case file is 2 inches thick. His testified in Immigration Court. Most of his zen of India. He arrived in the United witnesses, some of whom have been research has been about Myanmar’s eth- States on November 1, 1998. granted asylum themselves, are eager to nic minorities such as Zathang, who says To win asylum under U.S. law, immi- testify about the time he led a demonstra- he is from the Chin state near the border grants must prove they cannot return to tion that angered the military, about the with India. their country “because of persecution or a time he was imprisoned in his homeland In his written affidavit, Silverstein urges well-founded fear of persecution on ac- for 11 days. They spend most of their time the court to grant Zathang asylum. “Based count of race, religion, nationality, mem- sitting in the lobby. As witnesses, they can’t on my professional and personal experi- bership in a particular social group, or po- listen to the testimony. ence, I can attest that should Mr. Zathang litical opinion.” Under the U.S. Constitution, asylum be deported back to Burma, he would most Most applicants have little evidence to seekers are not entitled to a government- certainly face imprisonment and torture, prove a well-founded fear of persecution. paid lawyer. Law schools try to fill the gap and even execution.” Often their only proof is the story they tell. by sponsoring immigration law clinics, Static crackles on the speaker phone, Zathang’s interview is scheduled for Jan- which give students the chance to try cases. which makes it hard for Silverstein to hear.

U.S. IMMIGRATION COURT IS UNIQUE IN AMERICAN JURISPRUDENCE. THERE IS NO BAILIFF, NO COURT REPORTER, NO ONE TO RECORD THE HEARINGS BUT THE JUDGE HERSELF, USING A TAPE RECORDER THAT SHE CAN TURN ON AND OFF AT WILL. uary 4, 1999. If the INS officer who inter- Zathang’s legal team comes from nearby Churchill loses her patience and soon cuts views Zathang believes his story, he could Georgetown University. Two second-year him off. It is almost 6 p.m. The judge be granted asylum immediately. But the law students, Jessica Attie and Grace Lou, reschedules the case for another day, a officer turns the application down. It is re- have spent hundreds of hours preparing month away. ferred to Immigration Court. his case. The weekend before his packet Six months go by. An INS lawyer mis- was due at the court, they worked 72 hours places, then finds, Zathang’s birth certifi- nonstop. The interpreter assigned to the DAY 238: July 30, 1999 cate. A few days before the initial trial date case does not speak the same dialect as Za- Expectations are high among Zathang’s in April, the INS decides to argue that Za- thang. Though it is clearly difficult for the friends as the hearing resumes. Churchill thang has committed fraud. Zathang’s team men to understand each other, the trial had said she will set aside enough time to says it needs more time to prepare. proceeds. Karl Klauck, the INS trial attor- hear his case today. But she has already ney, is the third government lawyer on the scheduled other cases for the afternoon. An- case. That kind of turnover is not unusual other lawyer, Lora Ries, is handling the case. DAY 206: June 28, 1999 in asylum cases. Churchill wants to know whether the The case is set to begin at 1 p.m. Klauck argues that Zathang’s applica- INS would support asylum if Zathang Churchill enters the courtroom at 1:05 and tion should be denied because of fraud. He proves he is Burmese. Ries says the INS says she won’t get to the case until “2:30, at says Zathang is not Burmese at all because “still has some trouble with the case” and least.” It is past 3:30 when she finally is ready. he came to America with an Indian pass- would oppose asylum even then. Judges such as Churchill have enor- port. He contends that Zathang is claiming This time, Silverstein has taken the mous discretion to interpret immigration Myanmar nationality simply to win asy- train from New Jersey to testify in person,

REFUGEES 25 | COVER STORY |

the ticket paid for by the law school. But racy group, how he was forced to spend minute speech he gave at an all-day he still has trouble making his points. The more than 10 hours a day carrying equip- demonstration in front of thousands: “I judge interrupts Ries, instructing her how ment for the soldiers and how, finally, he said the military system of government to ask the questions. Frederic K. Lehman, was warned by the wife of the village has to come down!” an anthropology and linguistics professor leader that he would be arrested again. So “There was a time when you actually at the University of Illinois, takes the he fled to India, where he managed to buy left Burma, yes or no?” the INS lawyer stand. the passport that has become the crux of asks Zathang. Lehman offers a piece of evidence that the government’s case against him. “He’s here,” Churchill interrupts. “Why seems to cut right through the govern- When he is finished, his first cousin would you ask a question like that?” ment’s case: he knew Zathang in Burma. Philip Hrengling speaks on his behalf. The judge breaks for lunch and tells They met at the University of Mandalay Hrengling, a pastor, already has been everyone to be back at 1:15 p.m. But she has when Lehman was a visiting professor in granted asylum. Like Zathang, he fled double-booked her calendar again and 1981. Myanmar to India, where he too bought a takes up other cases upon her return. Not only that Zathang speaks a dialect passport on the black market. It is nearly 3 p.m. when Zathang’s trial found only in the Chin state he claims as Churchill wants to know why resumes. The key INS witness, a docu- home. The judge promises to get back to Hrengling doesn’t have the same last name ment analyst, has left. Churchill is in- the case after she wraps up some other as Zathang. In the back of the room, pro- censed. But the case moves forward. matters on her docket. fessor Lehman shakes his head, knowing Zo T. Hmung, the uncle of Zathang’s The hours go by. Finally, it is Zathang’s that few Burmese use surnames. “I can tell wife, relates that Zathang’s flight from

TO THOSE IMMIGRANTS WHO HAVE EXPERIENCED POLITICAL OR RELIGIOUS PERSECUTION FIRSTHAND, ASYLUM IS A CORNERSTONE OF AMERICA’S IMAGE AS THE LAND OF THE FREE AND THE HOME OF THE BRAVE. BUT RELATIVELY FEW OF THEM WILL EVER GET IT.

turn to tell his story. He sits with his stu- you for sure he is not an Indian citizen. We Myanmar was described in an Indian dent lawyers, facing the judge, and testifies are born in the same village and his father newspaper. The judge wants to see a copy. through a different interpreter, who this and my father are brothers,” Hrengling The article was published on July 7, time speaks his dialect. Churchill tells Za- testifies. 1998. It says Zathang, who was born in thang he must look at her while he testi- The case is not over yet, but it has been Burma and had been “arrested, tortured fies, but then the judge rarely looks his way. a long day. The only free day the judge can and jailed,” had fled to India. “Police are “Just because I wanted to have democ- find on her calendar is one when the law seeking him for interrogation” the article racy in my country, I was beaten and tor- students won’t be in town. She schedules says. Lian Uk, who was elected to the tured,” Zathang says. “I can’t even express the case for that day anyway. Burmese Parliament but not allowed by the words about how I hate the military the government to assume his seat, testi- people in my country.” fies that he has known Zathang for more Churchill wants to know why he won’t DAY 245: August 6, 1999 than 20 years. agree to be sent back to India. Zathang Georgetown University law professor “He’s, of course, a citizen of Burma,” Uk takes off his glasses, holds them in his Mary Brittingham cuts short a vacation to says. “No, no, no, he can’t be a citizen of In- hands and looks straight ahead. He un- try the case for her two students. dia. The Indian government does not ac- derstands some English and knows this is INS lawyer Ries isn’t there either. In cept dual citizenship.” not a good sign. her place is still another INS trial attor- By now, the evidence seems over- He says he is afraid to go back to India ney, Sandra Czaykowsky, who is unfamil- whelmingly in favor of Zathang. “I’m won- because the authorities there have recently iar with the case. dering if the government is willing to con- begun deporting Myanmar refugees back The INS lawyer raises another obsta- cede I should just grant this applicant asy- to their homeland. cle. She says the interpreter at the previous lum?” Churchill asks. Czaykowsky says The judge breaks again to hear another hearing had met Zathang at a church ser- no. “We will appeal. There are several is- unrelated matter. By now, the INS lawyer vice, a disclosure not made to the court. sues in this case.” has a headache. Attie’s mother, who has She says the law students helped pick the come to watch the proceedings, gives the interpreter, which makes his interpreta- lawyer aspirin. After the break, Zathang tion of Zathang’s testimony suspect. DAY 250: August 11, 1999 continues to describe his life in Myanmar. But it is too late to make a change. John Ross, the document expert, testi- He explains how he became a member Zathang takes the stand again. He be- fies that the Indian passport is authentic, of the Chin National Front, a pro-democ- comes animated when describing a 15- but he can’t determine if it was bought on

26 REFUGEES | COVER STORY |

the black market by Zathang. He also can- for us to make any other factual findings. versity, said he and Zathang came from not draw any conclusions about Zathang’s We note, though, that his general credi- nearby villages in Myanmar, that he blue-colored Burmese birth certificate be- bility is in some question.” knew him at the university and had cause the INS has no similar documents She orders Zathang back to India but heard of his political activities. “He is re- to which to compare it. grants him a special dispensation called ally from Burma,” Sakhong said. Attie delivers her closing argument. voluntary departure, which would allow Zathang’s family remains in India. She says Zathang was forced to buy an In- him to leave America at his own expense They move every few days. Had Zathang dian passport “to save his own life” and with a clean immigration record. been granted asylum, he would have notes that his route to freedom was iden- started the paperwork to bring them to tical to that of others who have been the United States legally. granted asylum. DAY 688: October 2, 2000 Zathang spoke with his wife by phone It is the INS lawyer’s turn. Ries is back. Zathang’s lawyers file a notice of ap- for 10 minutes in August 2000 on the She argues that “it is entirely possible that peal. In the motion, Georgetown Univer- same day Amnesty International warned the applicant is an Indian citizen.” She sity fellow Virgil Wiebe points out that the that many ethnic Chin in northeastern speculates that perhaps Zathang once judge referred to Zathang’s witnesses as India were in danger of deportation. lived in Myanmar, but he must have “convincing.” He argues that Churchill’s Attie, now 27, graduated from law moved to India. She dismisses his role in decision is not supported by the law or by school in May 2000. She is a clerk for a organizing the pro-democracy movement. the evidence and that it contains “signif- federal judge. She said she lost her ideal- If India were not safe, she asks, why would icant factual errors and omissions.” ism about the asylum process long before he leave his wife and children there? The request is pending before the Churchill ruled in Zathang’s case. Ries, The judge questions Zathang at length Board of Immigration Appeals. It could the INS lawyer, now works for a con- and says she will issue her decision after take years before the panel rules. gressional immigration subcommittee. lunch. But within minutes she changes She thinks Churchill made the right de- her mind, saying she will take the case un- cision. “There were credibility questions,” der advisement and render judgment later. EPILOGUE she said. The 13 months it took Churchill Later is more than a year away. Zathang, now 42, is allowed to stay in to issue her decision violated a 60-day the U.S. pending his appeal. He is living rule set by Chief Immigration Judge with friends in Maryland, looking for Michael J. Creppy. “Justice delayed is jus- DAY 642: September 6, 2000 work. He finally got a work permit from tice denied,” Creppy said in an interview. Nearly 13 months after the final hear- the INS last June. The card classifies him Churchill declined to talk directly ing, Churchill issues her ruling, giving no as Burmese. about Zathang’s case but through a court explanation for the delay. When he learned of Churchill’s deci- spokesman said “she needed all that time. She denies Zathang’s request for asy- sion, he was so upset he couldn’t sleep for It required a lot of consideration.” lum. Despite her own comments in the days. He said he does not know what else After the trial ended, the Immigration THE 13 MONTHS IT TOOK THE JUDGE TO ISSUE HER DECISION VIOLATED A 60-DAY RULE. THE JUDGE INSISTED SHE NEEDED ALL THAT TIME. IT REQUIRED A LOT OF CONSIDERATION. courtroom, despite the testimony of Za- he could have told the judge. “I have all Service invited one of Zathang’s witnesses thang’s witnesses, despite the published the proof I am a Burmese citizen,” he said. to speak at a celebration of asylum reform. account of his flight from Myanmar and “If they couldn’t accept that, I don’t know At the event, the witness thanked Amer- the paucity of evidence to support the gov- what more I could do.” ica for granting him asylum. But then he ernment’s position, Churchill says she be- The Los Angeles Times discovered mentioned the case of a teacher from his lieves Zathang is actually Indian because that Zathang is listed on an Internet site village, a man who first fled to India when of his passport. She concedes that he “may identifying Burmese Chin residing in the he learned he was going to be arrested. have Burmese nationality as well” but con- United States. His attorneys were un- “The INS made the improbable argu- cludes that the time he spent in India aware of the reference, which helps cor- ment that he is Indian… even though 10 proved he was living there without per- roborate Zathang’s nationality. people, including professors and mem- secution and could return safely. The Times also found other Burmese bers of parliament, testified that he is a “We cannot, from the record, com- Chin who verified Zathang’s ethnicity. Burmese,” the witness said. pletely sort out the truth from the fictions,” “He is not only my oldest brother’s friend The INS posted Hmung’s speech—with she writes. “It is our conclusion, from the but also his classmate when they were in its reference to Zathang—on its web site. B preponderance of the evidence here, that Mandalay University,” said Siang Dun, he has Indian nationality, despite his who left Myanmar in 1995. Zapeng Copyright 2001, Los Angeles Times. claims to the contrary. It is not necessary Sakhong, who taught at Mandalay Uni- Reprinted with permission.

REFUGEES 27 | COVER STORY | The 1951 Convention relating to the Status of Refugees and the 1967 Protocol

Date of entry into force: B Total number of States Parties to the 1967 B States Parties to the 1951 Convention only: 22 April 1954 [Convention], 4 October 1967 Protocol: 136 Madagascar, Monaco, Namibia and Saint [Protocol] B States Parties to both the Convention and Vincent and the Grenadines At 1st May 2001: Protocol: 133 B States Parties to the 1967 Protocol only: B Total number of States Parties to the 1951 B States Parties to one or both of these Cape Verde, United States of America and Convention: 137 instruments: 140 Venezuela

List of 140 States Parties to the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees (at 1st May 2001)

Albania Democratic Rep. of the Congo Kenya Rwanda Algeria Denmark Korea (Republic of) Saint Vincent and the Grenadines Angola Djibouti Kyrgyzstan Samoa Antigua and Barbuda Dominica Latvia Sao Tome and Principe Argentina Dominican Republic Lesotho Senegal Armenia Ecuador Liberia Seychelles Australia Egypt Liechtenstein Sierra Leone Austria El Salvador Lithuania Slovakia Azerbaijan Equatorial Guinea Luxembourg Slovenia Bahamas Estonia Macedonia (former Yugoslav Solomon Islands Rep. of) Belgium Ethiopia Somalia Madagascar Belize Fiji South Africa Malawi Benin Finland Spain Mali Bolivia France Sudan Malta Bosnia and Herzegovina Gabon Suriname Mauritania Botswana Gambia Mexico Swaziland Brazil Georgia Monaco Sweden Bulgaria Germany Morocco Switzerland Burkina Faso Ghana Mozambique Tajikistan Burundi Greece Namibia Tanzania (United Republic of) Cambodia Guatemala Netherlands Togo Cameroon Guinea New Zealand Trinidad and Tobago Canada Guinea-Bissau Nicaragua Tunisia Cape Verde Haiti Niger Turkey Central African Republic Holy See Nigeria Turkmenistan Chad Honduras Norway Tuvalu Chile Hungary Panama Uganda China Iceland Papua New Guinea United Kingdom Colombia Iran (Islamic Republic of) Paraguay United States of America Congo Ireland Peru Uruguay Costa Rica Israel Philippines Venezuela Côte d’Ivoire Italy Poland Yemen Croatia Jamaica Portugal Yugoslavia Cyprus Japan Romania Zambia Czech Republic Kazakhstan Russian Federation Zimbabwe

28 REFUGEES | COVER STORY |

The major goal of protection and the Convention is the voluntary return home of uprooted persons. UNHCR/S. GIRARD/C.S.•MEX•1993

Ã Continued from page 23 to the Convention in Geneva in Decem- lutions to the problems of refugees, and These do, though, need to be rationalized. ber. Ministerial-level participants at the protection of refugee women and children. We have to get together and figure out how meeting, convened jointly by UNHCR and The intended outcome of these dis- to make protection work, and how to keep the government of Switzerland, will adopt cussions varies, from achieving a clearer the Convention central to our work.” a declaration intended to commit signato- consensus on how to approach some of UNHCR recently launched its global ries to the full and effective implementa- these problems to setting international consultations with governments, legal tion of the Convention and its Protocol. standards. scholars, non-governmental organizations Discussions concerning the interpreta- Much has changed over the past 50 and refugees themselves, to do just that. tion of various provisions of the Conven- years. The world is more complex than it The discussions are designed to reaffirm tion will be organized in a series of round was in 1951; people are more mobile; shades the commitment of governments to the tables involving government experts, NGO of gray elude categorization where once Convention, at the same time examining representatives, scholars and representa- black-and-white fitted neatly into hard- “NO CONTRACTING STATE SHALL EXPEL OR RETURN... A REFUGEE... TO THE FRONTIERS OF TERRITORIES WHERE HIS/HER LIFE WOULD BE THREATENED...” Article 33 key protection concerns not explicitly ad- tives of UNHCR. These ‘second-track’ talks won definitions. Humanitarianism has dressed in the 1951 instrument. will focus on issues like exclusion and ces- seemingly been replaced by hard-nosed “The objectives of the consultations are sation, non-refoulement, family unity, pragmatism, empathy by suspicion. to promote a common understanding of refugee definition and the question of ille- But one thing has not changed: people protection dilemmas, improve cooperation gal entry into an asylum state. still flee persecution, war and human in dealing with them, and generate new ‘Third-track’ discussions will be held rights violations and have to seek refuge approaches tailored to changed demands within the framework of UNHCR’s Exec- in other countries. For refugees, now as and circumstances,” said Feller. The meet- utive Committee at specially organized half a century ago, the 1951 Convention is ings will extend into 2002 and are orga- sessions. They will examine such themes the one truly universal, humanitarian nized along three so-called ‘tracks’. The as protection of refugees in mass influx sit- treaty that offers some guarantee their ‘first-track’ discussions will be held at an uations, protection of refugees in individ- rights as human beings will be safe- unprecedented meeting of states parties ual asylum systems, protection-based so- guarded. B

REFUGEES 29 | PEOPLE AND PLACES |

The suffering continues

he worldwide suffering of uprooted dered, this time in the northeast of Demo- Tpeoples—and those trying to help cratic Congo. The team was driving in ve- them—continues. Nsakala Tshiama, a lo- hicles clearly marked with the Red Cross cal UNHCR employee in the town of on a road considered to be safe when they Kimpese in Democratic Congo, was were killed by unknown assailants. And a gunned down in late March near the bor- Dutch pilot flying for the Red Cross was der with Angola. He was driving alone killed when his aircraft was hit by ground when he was stopped by four armed men fire in southern Sudan. Continued who demanded his vehicle and then shot killings and other types of harassment of him twice in the back. The driver died lat- humanitarian workers have led to in-

er in a local hospital. Three UNHCR field UNHCR/KOKOLO creasing demands for a major strength- staff were murdered in Atambua, West UNHCR driver Nsakala Tshiama. ening of global security for field staff of Timor, in September 2000 and another the United Nations and other humani- official was gunned down a few weeks lat- national community’s insistence that jus- tarian organizations. er in Macenta, Guinea (see REFUGEESmag- tice be done.” Staff were blunter, saying Among refugees, the latest released azine N° 121). Six men were subsequently they were “outraged” at the ‘“mockery” of figures show UNHCR continues to care sentenced to terms ranging from 10 to 20 a trial and by the light sentences. Several for huge numbers of people, estimated at months for the Timor killings. UNHCR weeks after Tshiama’s killing, six staff 21.1 million worldwide. They included 8.4 said it was “deeply disturbed” at the ver- members of the International Committee million in Asia, 5.6 million in Europe and dicts which “make a mockery of the inter- of the Red Cross (ICRC) were also mur- 5.3 million in Africa. B

CARTOON: REPRODUCED WITH PERMISSION. Where it all started

e is the man who began individuals or organi- tional center for Hit all. In 1921, Dr. Fridtjof zations which have ac- zoological and Nansen, already a famed sci- complished outstand- oceanographic entist and explorer from ing refugee work. And research in Norway, was named by the recently, that connec- Naples where League of Nations as the tion between past and Nansen had first High Commissioner for present was further worked in 1876. It refugees. The occasion strengthened. Italian was kept in the marked the start of the mod- artist Fausta Mengari- family until 83- ern international system for ni had sculpted the year-old Pietro protecting refugees, replac- bust of Nansen in Dohrn, a doctor ing an ad hoc arrangement bronze for the League and nephew of administered by private and of Nations, but before the founder of

voluntary organizations. it could be donated ©AP/WIDE WORLD the Naples re- The United Nations High the League was dis- Nansen poses for sculptor Fausta Mengarini. search center, Commissioner for Refugees, solved. Mengarini decided to donate the successor to Nansen, kept the sculpture well hid- for the war effort, but even- it to UNHCR. It will be in- keeps the link alive. Each den during the World War II tually donated it to the stalled in the agency’s Gene- year the agency awards the years because precious met- Dohrn family which had va headquarters. Nansen Refugee Award to als were being requisitioned founded a famed interna- B

30 REFUGEES | QUOTE UNQUOTE |

Refugee Convention. That would be a tragedy.” Australian Immigration Minis- ter Philip Ruddock discussing the impact of people smuggling on aid for refugees. FFF

“Exile is violent, a total fall. It takes time to get out of this vertigo.” CARTOON BY BORISLAV SAJTINAC. REPRODUCED WITH PERMISSION Afghan woman writer Spojmai Zariab, living in exile in France. FFF

“We want to be reunited with our parents and go back to school. Life here is better than the jungle.” Teenage twins Johnny and Luth- ern Htoo who led the God’s army guerrillas in Myanmar’s jungles before surrendering in Thailand. FFF

“It is a real problem that Europeans try to lessen obligations to refugees. They must take seriously the responsibility of giving asylum.” High Commissioner Ruud Lubbers. “In any case, no wall will be high FFF “There are some indica- enough to prevent people from tions that Europe is losing sight of its duty to protect refugees under interna- coming…” tional law, as set out in the High Commissioner Ruud Lubbers urging European countries not to close the door to asylum. 1951 Convention. These risks have enormous im- “Its values are timeless, but “It would be difficult for conceived out of pact on other regions we should stand back and governments to sign a enlightened self-interest” which look to Europe as an consider its application in blank check and to under- on the part of states. example.” today’s world.” take obligations towards Law professor James C. U.N. Secretary-General Kofi British Prime Minister Tony Blair future refugees, the origin Hathaway. Annan. on the 50th anniversary of the and number of which FFF Geneva Refugee Convention. would be unknown.” FFF FFF The original drafters explaining “The danger is that coun- the reasons for various restric- tries confronted with “Is this an April Fool’s “It is the wall behind which tions in the Convention. growing numbers of asylum joke?” refugees can shelter.” FFF seekers will decide to cut Reaction of a middle-aged couple Erika Feller, UNHCR’s director back on their commitments on hearing about the arrest of of international protection on the “The modern system of to the UNHCR or, worse, Yugoslav President Slobodan Convention. refugee rights was… exit the international Milosevic.

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