One of the challenges of returned refugees is to confront an uncertain future in their homeland without the minimum resources to start rebuilding their lives.
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International refugee law first saw the light of day on 28 July 1951, when the United Nations Convention relating to the Status of Refugees was adopted. Never before had civilians uprooted by man-made disasters been considered in need of protection by a special branch of law.
The aftermath of World War II called the world's attention to a new phenomenon: the mass displacement of persons fleeing conflicts and political crises. For the first time, forced migrants were legally identified as 'refugees' and their plight taken into account by what would later be called the 'international community'.
Treaties dealing with refugee law are instrumental in binding states to their obligations concerning forced migrants. The principles contained in the legal framework covering forced migrations, first established in the 1948 Universal Declaration of Human Rights and the four Geneva Conventions of 1949, have been substantially enlarged since then.
The UN High Commissioner for Refugees (UNHCR) was created in 1950 by the UN General Assembly and mandated to help resettle 1.2 million European refugees displaced by World War II. Its mandate to protect and find durable solutions for refugees now covers the entire globe.
The 1967 Protocol of the UN relating to the Status of Refugees expanded the earlier definitions to bring greater protection to migrants worldwide, continuing the trend to enlarge the category of persons defined by UNHCR as 'people of concern'.
However, in recognition of the need to clarify responsibilities and fill legal gaps in the protection of refugees as well as internally displaced persons (IDPs), additional treaties specifying states' obligations have been developed.
The recognition of IDPs as the largest and fastest growing category of uprooted people is relatively recent. Dennis McNamara, director of the Inter-Agency Internal Displacement Division, which coordinates the UN's response to IDP crises, estimates that "25 million IDPs have been created from conflict and violence, and probably another 25 to 30 million through natural disasters, including the current tsunami". Of those, 5.3 million IDPs - only a tenth - are covered by UNHCR.
In comparison, the global figure for refugees is declining, with UNHCR giving the figure of 9.7 million refugees of concern to its mandate for 2004, dropping almost 10 percent from 10.6 million in 2003.
These developments and changes in the global profile of refugees and uprooted people have led to calls for adjustments to the legal framework governing forced migration.
Defining 'persons of concern'
In the words of the 1951 Convention, a refugee is someone who has a "well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group, or political opinion; is outside his/her country of origin and is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of persecution".
UNHCR is mandated to protect and provide material relief in major emergencies to refugees and other persons of concern. They are also required to find durable solutions for refugees and enable safe and dignified repatriation or resettlement for uprooted people.
These people include those "fleeing conflict or serious disturbances of the public order" - as defined by regional treaties such as the African Union Convention and the South American Cartagena Declaration - "returnees" (former refugees), "stateless persons" and, in some situations only, IDPs.
However, limitations apply.
In theory, a soldier cannot be a refugee. A refugee, by necessity, is a civilian. This specifically aims at excluding protection for groups that pursue armed actions against their country of origin from the country of asylum. However, this requirement is sometimes overlooked by states with an interest in given conflicts.
After invading and looting the Democratic Republic of Congo (DRC) town of Bukavu in June 2004, the Rwanda-backed faction leader, Jules Mutebutsi, crossed the border into neighbouring Rwanda, where he and 300 of his armed militiamen were granted refugee status. Legal normalities were discounted by Rwanda's interest in sheltering such armed groups operating in the DRC.
In some arid regions the refugees and IDP's are facing a desperate shortage of water.
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On the other hand, when the Rwandans poured over their eastern border into Zaire in 1994 they were all granted asylum by the host government and treated as refugees by the international community, despite the knowledge that thousands of genocidaires were among the refugees. Many of these genocidaires and militia members immediately re-formed in the refugee camps, while officially protected by their status as refugees, notwithstanding continued complaints from the new leadership in Rwanda.
Specific cases may also constitute 'persons of concern': women who are subjected to harmful traditional practices, threatened due to their refusal to either wear restrictive clothing, or persecuted due to their desire to choose a spouse and live an independent life, may qualify for refugee status. The European Parliament determined in 1984 that women who face cruel or inhuman treatment because they seemed to transgress social codes - for instance, refusing to undergo female circumcision - may be considered refugees.
When UNHCR is faced with individuals who are not covered by the agency's mandate, it sometimes resorts to outside aid organisations. Emanuel Nyabera, spokesman for UNHCR's Kenya office, explained that "partnerships enable aid organisations to intervene where UNHCR cannot, as UNHCR can sometimes be limited by its mandate".
In Kenya, the 90,000-strong population of the Kakuma refugee camp has repeatedly clashed with the local Turkana community. In this arid region, resources are scarce and competition fierce for wood and water. In order to defuse tensions, UNHCR has had to team up with independent aid agencies, which care for the Turkana, whom UNHCR is not mandated to help.
Obligations under the conventions
UNHCR's position as a first responder to displacement crises makes it one of the most visible actors in the field of forced migrations. However, this must not cloud the responsibilities and actions of other entities just as heavily involved in the management of such crises.
States are often the first to be concerned with refugees, either because their population is fleeing the national territory or because they have to bear with an influx of refugees over their border.
States which sign the Refugee Convention are required to ensure their full cooperation with UNHCR "in the exercise of its functions and, in particular, to help UNHCR supervise the implementation of the provisions found in those treaties", and agree to "inform the UN Secretary-General about the laws and regulations they may adopt to ensure the application of the Convention".
Hosting states are always required to grant refugee status to foreigners who fulfil the Convention definition, regardless of how the refugee-producing country treats the host state's nationals. The notion of reciprocity of legal obligations between sovereign states does not apply to refugees.
A state, being a sovereign entity according to the UN charter of 1945, is not required by international law to allow foreigners onto its territory. Refugee law provides an exception to this, in that states may not return individuals who qualify for refugee status to the frontiers of territories where their life or freedom would be threatened.
This is the principle of 'non-refoulement', set out in the 1951 Convention and the 1967 Protocol, as the international obligation not to return refugees to danger. The prohibition of forcible refugee returns applies to all countries, regardless of their level of economic development.
It implies that no repatriation can be undertaken forcibly - refugees must never be forced to go back home against their will.
Since the mid-1900s the countries hosting most refugees have been mainly in Central Asia and Africa - among the poorest regions on the globe. According to UNHCR figures for 2005, out of 17,083,916 refugees of concern, 8,730,337, or 51 percent, came from these regions. Refugees often add to the economic burden of states already striving to care for their nationals.
Economic imperatives have sometimes led to the premature adoption of 'cessation clauses', defined as the official proclamation that "the reasons for the person's fear of persecution in the country that the person left, or outside of which the person remained, cease to exist". When a cessation clause is adopted, officially declaring the end of the displacement crisis, the hosting state's obligations to refugees cease to apply.
In such cases, refugees may be compelled to return to their country of origin before the reasons for their seeking refuge have been eliminated, as the host country cannot or will not fend for them and refugees have no choice but to return, regardless of what is facing them.
Repatriation programmes depend on a tripartite agreement, signed between the two countries being assisted and UNHCR, to enable the agency's intervention in ensuring refugee protection before and during their repatriation. The decision to repatriate or not will be based on UNHCR's security assessments.
Despite a relative lull in the fighting in southern Sudan in 2004, Kitty McKinsey, of UNHCR's East Africa office, explained in June that "the conditions are not correct yet. We are waiting for the signature of a comprehensive peace agreement [signed on 9 January 2005] before discussing the Sudan-Kenya-UNHCR tripartite agreement. Only then will UNHCR be able to assist those who choose voluntary repatriation to South Sudan".
Many refugees do not wait for UNHCR's green light and decide to go home without UNHCR assistance. They are called 'spontaneous returnees', as opposed to 'assisted returnees', and do not benefit from the agency's help with transport or the rehabilitation of their location of origin.
According to UNHCR, during the first nine months of 2004 more than 700,000 refugees returned to Afghanistan, bringing the total number of returnees from Iran and Pakistan since March 2002 to some 3.5 million. Of those, more than a fifth (21 percent, or 823,440) was spontaneous.
Broadening the criteria of refugee protection
UNHCR is also mandated to assist states in fulfilling their obligations to uprooted populations. Despite claims to objectivity and universalism, legal texts stem from a historical context, as with the 1951 Convention, when the particular concern was post-World War II European refugees. International treaties relating to refugee law can therefore be specific to certain areas.
In 1969 the Organisation of African Unity - now the African Union - adopted its Convention Governing the Specific Aspects of Refugee Problems in Africa, aimed at the refugee caseloads resulting from African conflicts that erupted after the end of the colonial era. It broadened the definition of refugees to any person forced to leave a country because of "external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality". This lifts the obligation of individuals fleeing conflicts to prove a well-founded fear of persecution.
In the same spirit, the 1984 Cartagena Declaration adopted by Latin American governments offers an expanded, more objective criterion than the 1951 Convention, defining refugees as "persons who flee their countries because their lives, safety or freedom have been threatened by generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order".
IDPs: Falling through the net of migrant protection
IDPs are individuals who have fled their homes but remain on the national territory. They have long been the invisible victims of conflicts and disasters, falling through the legal net covering international forced migrations.
Dennis McNamara director of the Inter-Agency Internal Displacement Division.
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The UN Guiding Principles on Internal Displacement adopted in 1998 define IDPs as "persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognised state border".
There is no single agency in the UN system mandated to care for the internally displaced, but the UN's Inter-Agency Internal Displacement Division (IAIDD) was set up in July 2004 to "promote system-wide improvements in the response to the needs of the internally displaced people".
Although UNHCR is mandated to protect and care for refugees, its intervention on behalf of IDPs is limited by stringent conditions, including the consent of the state in which the IDPs are displaced.
Mass displacement often stems from civil conflicts, yet the permission of one of the parties at war must be sought to protect the very civilians it may often consider an enemy or part of a rebel movement.
The current conflict in the Darfur area of western Sudan is an illustration of this deadlock: in order to care for millions of civilians displaced by the fighting, UNHCR needs the approval of the Sudanese government, based in Khartoum, which many aid organisations accuse of supporting the militias preying on the same civilians.
One explanation is that countries with IDPs mostly see the issue as an internal matter - and what is perceived as interference from the international community is rarely welcome.
According to Dennis McNamara, current chief of the IDD, "IDPs don't get enough limelight, but the world is turning its attention more than ever towards [them]. The Guiding Principles recently developed for IDPs have been a huge contribution to refugee law and IDP protection, but what we don't have yet is [a] political agreement on how to deal with the IDP crisis".
Francis Deng, former representative of the UN Secretary-General on Internally Displaced Persons and a Sudanese national, described his approach when urging the Sudanese government to assist IDPs by saying, "National sovereignty must be respected, but sovereignty comes with responsibilities towards a population."
Sovereignty versus individualism
In the words of Ruud Lubbers, United Nations High Commissioner for Refugees, "[The UNHCR's] main objective is repatriation". However, repatriation is not always the preferred choice of those affected.
The UNHCR's main objective is repatriation said Ruud Lubbers, UN High Commissioner for Refugees.
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Despite the peace agreements signed on 9 January 2005, refugees from southern Sudan - who still trickle into the refugee camps in Kenya at the rate of approximately one hundred persons a week, according to UNHCR data - do not necessarily share the view that repatriation suits them best.
John Tor is a southern Sudanese refugee in his early twenties. "When I finish secondary school, my last option is to go to Australia for further studies there," he told IRIN in Nairobi, speaking for others whose primary concern is to get an education. Many Sudanese refugees equally think they have nothing to go home to and would rather resettle in another country. However, that implies legal permits, which are seldom granted.
Few doubt that repatriation is the preferred solution of the hosting state. The political and economic burden of a refugee caseload can be tremendous for developing countries, which receive the greatest number of forced migrants, and is often compounded by an age-old distrust of foreigners and increased competition for scarce economic resources. But UNHCR is sometimes not at liberty to promote alternative solutions to repatriation, such as local integration into the host country or resettlement to other countries.
Legal Ways forward
Despite a substantial and growing legal arsenal of agreements and treaties, protection of forced migrants can still be broadened. The Geneva-based Inter-Parliamentary Union's Committee on Parliamentary, Juridical and Human Rights Questions, one of the oldest such organisations, advocates that:- the principle of non-refoulement should be incorporated in national legislation
- parliaments broaden the definition of refugees in national legislation to reflect that of the Organisation of African Unity (African Union) Convention and the Cartagena Declaration
- national legislators encourage cooperation with UNHCR.
The adoption of legal norms is only the first step towards effective protection of forced migrants, and by no means a guarantee of implementation or of being respected by signatories. It is essential to enforce actual, efficient protection of refugees by the state.
The solidarity displayed by Chadian nationals greeting Sudanese refugees fleeing Darfur at the beginning of the crisis illustrates that where there is the will, no one waits for laws to be passed.
Unfortunately, given the extent of this refugee crisis, the material means of such solidarity have long dried up and struggles over natural resources between the refugees and the host population have occurred. Proper refugee legislation can make such precious support to forced migrants more sustainable.
Refugee law continues to develop to cover the various and critical needs of displaced people. The social and political contexts in which displacement occurs, and the aspects of security demanded, continue to clash with issues of sovereignty, presenting huge challenges to those seeking to protect the rights and safety of refugees and, increasingly, IDPs.
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