International Refugee Law - Essay Example

INTERNATIONAL REFUGEE LAW: THE RIGHTS OF SOMALI REFUGEES TO STAY OUT OF REFUGEE CAMPS IN KENYA AND HOW THEIR RIGHTS ARE AFFECTED UNDER THE 1951 CONVENTION Name Institution Date Abstract With the influx of refugees states are concerned about assimilating refugees into the society. There are also questions about whether it is particle to allow these refugees the freedom of movement the right to work and the right to access other welfare programs. Physical security is important to the progress in any country and where such security is threatened it is the obligation of the country to take measures to ensure the protection of its interests. The aim of this paper is to provide an analysis of the international laws relating to refugees and look at the context of Somali refugees in Kenya. In this regard the paper is divided into two sections with the first section dealing with the internationally recognized rights of refugees and the second section providing for the context of Somali refugees in Kenya and their right to stay out of refugee camps. Introduction Countries have been allowing protection for people and groups escaping persecution for centuries, however the current approach to protecting the rights of these individuals is based on a law that has its origins in the aftermath of the Second World War. The greatest challenge facing individuals arriving in a foreign country is to convince authorities that they are entitled to recognition as refugees. The questions that are raised by the authorities is the level of risk necessary by the standard of well-founded fear, the harm encompassed by being persecuted and the duty of the refugees to seek an internal remedy before seeking refugee protection in another country. Also important are the grounds for the protection of refugees as well as the connection required between these grounds and the risk of being persecuted. For reasons of both pragmatism and principle less developed countries, which host the greater majority of refugees, rarely contest the eligibility of refugee status for individuals arriving at its borders. The conceptual generosity of these states, however does not match with the efforts of these countries to treat the refugees in line with the provisions of the refugee convention. In essence, refugees in less developed countries are often socially marginalized, detained, left physically at risk and even denied the capability of meeting their most basic needs.1 Who is a refugee? Individuals who are forced to run away from their country due to the fear of persecution, whether as part of a group or on an individual basis due to religious, military, political or any other reason are regarded as refugees. The meaning of a refugee has varied according to place and time, but the increase in the international concern on the plight of these individuals has given rise to a general consensus on the definition. The 1951 UN convention relating to the status of refugees defines a refugee as an individual who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country or return there because there is a fear of persecution...”2 For a refugee status to attach to an individual, the person should be outside his country of nationality or residence and is unable or unwilling to return home due to well established fear of being persecuted based on their beliefs, race, religion, political opinion or membership to a particular group. The definition of the convention does not include internally displaced people, those fleeing natural disasters, individuals fleeing general violence and stateless individuals not outside their country. 3 Countries, especially in Africa, facing displacement as a result of armed conflict did not find the convention to adequately provide for the definition of a refugee and consequently extended the status of refugees under the 1969 OAU Convention. The extension sought to include as refugee individuals who “owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.”4 Key assistance agencies for refugees The central role in the protection of refugees is taken by the United Nations High Commission for Refugees (UNHCR). The agency was created in 1951 to assist in the protection of refugees internationally. The main objective of the organization is to ensure that all individuals can enjoy the right to seek asylum and find refuge in another country. The most essential task of the agency is to encourage states to adopt flexible and fair processes that support fair and effective refugee legislation. When the agency was established, the material aspects of refugee relief, such a food and housing were left to the state that granted asylum, but with the increase in the number of refugees in less developed countries, the agency has adopted the role of coordinating material assistance.5 Although coordinating material assistance was not part of the original mandate of the UNHCR, this role has become one of its major functions together with the protection and promotion of solutions for refugees. Another body concerned with the plight of refugees is the International Organization of Migration (IOM). IOM helps with the return of rejected refugees and asylum seekers referred by the UNHCR. The International Committee of the Red Cross (ICRC) is an independent organization that acts as a neutral body in assisting and protecting war victims. Their roles range from providing medical care to arranging exchanges of family messages. The ICRC is well positioned to provide this assistance based on its experience on humanitarian crisis situations.6 Instruments of protection of refugees International instruments for the protection of refugees take the form of treaties also referred to as conventions or protocols and they are binding on contracting states. When the negotiations of the treaty are completed, the text of that treaty is recognized as definitive and authentic and is signed to this effect by the representative of a country party to the treaty. States express consent to be bound by such treaties through accession or ratification. Among international treaties that provide standards for the protection of refugees is the Universal Declaration of Human Rights (1948), which recognizes the right of an individual to seek and enjoy asylum from persecution7. The Geneva Convention (1949) also protects refugees during the war and provides that refugees cannot be treated as enemy aliens8. The Convention Relating to the Status of Refugees (1951) was the initial international agreement to cover the most essential aspects of the lives of refugees. The convention provided a set of human rights that are equal to the freedoms enjoyed by foreigners living legally in a country. The convention recognizes the international possibility of refugee crisis and the necessity of international cooperation, including the sharing of burdens between states in addressing the refugee problem. The International Covenant on Civil and political rights (1966) requires that states should guarantee the civil and political rights of all individuals within its territory and those subject to its jurisdiction. Additionally, the covenant assures the freedom of movement and forbids forced expulsion. Article 22 of the Convention of the Rights of the Child stipulates that states which are parties to the convention shall adopt appropriate measures to ensure that a child seeking refugee status or one who is regarded a refugee receive the required protection as well as humanitarian assistance and an opportunity to trace the child’s family. The Declaration on the Elimination of Violence against Women identifies the particular vulnerability of refugee women.9 Regional instruments that provide protection of refugees include the Convention Governing the Specific Aspects of Refugee Problems in Africa, which acknowledged the definition of refugees under the Refugee Convention but expanded it to incorporate individuals who are forced to leave their country, not only because of persecution but also external occupation, aggression, foreign domination or other events that greatly upset public order. The definition in this instrument is far wider than the definition of the UN convention and takes into consideration the reality in the developing world. Particularly of importance in the Covenant is the recognition of non-state groups as agents of persecution and does not require refugees to establish a link between them and future danger. The Convention holds that the refugees contemplate the harm adequate to force them to leave their country. The African Charter on the Rights and Welfare of the Child also provides for refugees and requires special provisions of refugee children not accompanied by parents.10 Procedure for claiming asylum Protection of refugees is primarily the responsibility of the state granting asylum. Determination of the status of refugees can be done by a group or individual assessment. The 1951 Convention does not prescribe the procedure to be followed, but any procedure adopted must be just and efficient. This would therefore require a state to elect a central authority with appropriate expertise to evaluate asylum applications. These bodies should also ensure that safeguards are available throughout the process. The UNHCR has the task of assisting states to set up such procedures. With respect to Article31 of the Convention countries that are party provide in their domestic legislation that the applicant’s illegal entry, without valid documentation, does not have a negative impact on the application of asylum seekers. The determination of refugee status can also be conducted by the UNHCR in states that are not parties to the convention or states which do not have policies to addressing claims related to asylum seekers. The refugee status determination conducted by the UNHCR is comparable to that conducted by states. The determination of refugee status by the UNHCR is often conducted on an individual basis, but the body can afford refugee status to groups where a large group has been displaced. Apart from providing assistance and determining the status of refugees the UNHCR also enables resettlement of refugees in third countries.11 Rights of refugees Refugee law is closely related to human rights law because refugees are running away from governments that are not able or not willing to protect their fundamental human rights. Refugee law also intersects with international humanitarian law in circumstances where the refugees fear persecution or threats to life. Some of the rights refugees are entitled to include; a) Right of non refoulement The most basic desire of a refugee is to secure entry into a place where they can be protected from the risk of persecution. This major concern must be balanced with the fact that all territories are controlled or claimed by governments who restrict access to non-citizens. The principle of non refoulement denotes the responsibility of the country, not to return asylum seekers to the territory where their lives or freedoms may be under threat. This right is prescribed by Article 33 (1) of the Convention relating to the Status of Refugees. This principle is also stated in article 3 of the Convention against Torture. The interpretation of this provision has been considered to embrace the right to life and freedom and this principle prohibits both the removal of asylum seekers and the expulsion of refugees. There are exceptions to this right and this includes where there are reasonable grounds to regard the refugee as a danger to the security of the host country or where the refugee poses a danger to the host community. Although this principle forbids a country from turning back refugees unless the exceptions apply, several countries have forced refugees back to the territory they came from for various reasons.12 b) Freedom of movement The right to seek asylum and freedom of movement are closely related since the incapability of the refugee to return to the home country is the foundation for an asylum claim while the capability to leave the home country is a requirement to claim refugee status as provided for by the Convention. Freedom of movement is also a right of the refugees in the host state. Article 26 of the Convention requires the host state to afford the refugees the freedom to move freely and choose a place of residence. Additionally, Article 28 requires the host state to issue, refugees with travel documents unless there are compelling reasons, such as national security, requiring otherwise. Freedom of movement is particularly critical in refugee situations in countries with limited legal framework or limited resources or host a large number of employees. In such situations, refugee warehousing is commonly practiced. This concept restricts refugees to camps where they have restricted access to employment and education. c) Right to liberty and security The right to liberty and security is important to asylum seekers as it shows how they are treated in the host country. Domestic laws provide for the detention of asylum seeker at some stage of the adjudication process. However, the detention of asylum seeker is often problematic due to the detention facilities found tin the host countries especially the developing world.13 d) Right to family life The family is considered as the most fundamental and natural group unit of society and as such it is entitled to protection. Many countries which recognize refugee rights provide derivative status to individuals who are dependent on the individual seeking refugee status. This implies that where an individual is granted asylum by a state the dependents ad relatives of that individual will also receive protection. However, where the refugee status of that individual is cancelled the status of dependents will also be terminated. Dependents are however not precluded from making their own asylum claims. The definition of a dependent varies according to the cultural notions and domestic laws provide the definition of dependents with respect to refugee law.14 e) Other rights Other refugee rights protected by the Convention include the right to education, access to justice and employment and other basic rights contained in international and domestic human rights treaties. Solutions to the refugee problem The organizations that assist refugees as well as the host countries promote the establishment of a lasting solution to the fate of refugees. There are three methods that are often sought in providing durable solutions to refugees. The first is voluntary reparation where refugees are in a position to return to their country because they are no longer under threat. The other option is local integration where the host country allows refugees to integrate into the country. Where reparation and integration are impossible the third option is to resettle the refugee in a third country. Local intergradation is often not applicable in cases where there is a large group of refugees and this will affect the citizens of the host country. Resettlement in a third country on the other hand can only be done after the refugee is accepted by the third country.15 CONTEXT IN KENYA Kenya has hosted thousands of refugees from its neighboring countries such as Uganda, South Sudan and Somalia. Daabab refugee camp introduced in 1991 to host Somalia refugees fleeing from their country has posed a serious security threat in Kenya. After the failure of the Somalia government more than two decades ago the country is still suffering from political uncertainty, violence and displacement. Other crises in the region have seen the number of refugees almost treble since 2006. Kenya has a large number of refugees, especially from Somalia with Daabab refugee camp being the largest refugee camp in the world. The Kenyan government has been in a dilemma of legitimate humanitarian concern for the refugees on one hand and the need to control its borders as a security concern on the other. The rampant insecurity in the camp and has placed pressure on the country to obey international law on refugee rights and protect its national security interests. 16 This section of the paper will focus on the situation of Somalia refugees in Kenya and their right to stay out of refugee camps. Refugee Act 2006 Kenya is a signatory to several conventions and treaties that cover refugees. Chief among these conventions are the UN convention relating to the Status of Refugees and the Convention Governing the Specific Aspects of Refugee Problems in Africa. These conventions have been domesticated by the Refugees Act 2006. Additionally Article 2 (5) and (6) of the Constitution of Kenya 2010 provides that all international conventions ratified by Kenya form part of the law. The constitution also offers several protections for refugees under Chapter IV of the constitution, which provides for the protection of fundamental rights and freedoms. The main legislation that governs refugees in Kenya however, is the Refugee act of 2006.17 The Act establishes the department of refugee affairs which is a public office charged with the responsibility of administering matters that deal with refugees in the country. The department is also tasked with the coordination of all the activities and programs that relate to refugees. The act also establishes the office of the Commissioner of refugee affairs18. The commissioner acts as the secretary to the refugee affairs committee and shall coordinate all measure necessary to promote the welfare and protection of refugees. Section 6 of the Act is particularly important as it provides that all recognized refugees and their families in Kenya shall be subject to the provisions contained in the Convention Relating to the Status of Refugees. The rights contained in the Convention are applicable to refugees and asylum seekers in Kenya.19 Rights of refugees in the Kenyan context The principle of non refoulment is a fundamental right of refugees and is provided for in Section18 of the Refugee Act 2006 which states that; “No person shall be refused entry into Kenya, expelled, extradited from Kenya or returned to any other country or to subjected, any similar measure if, as a result of such refusing, expulsion, return or other measure, such person is compelled to return to or remain in a country where- (a) the person may be subject to persecution on account of race, religion, nationality membership of a particular social group or political opinion; or (b) the person’s life, physical integrity or liberty would be threatened on account of external aggression, occupation, foreign domination or events seriously disturbing public order in part or the whole of that country.”20 Kenya has observed the provisions of the Convention trough the enactment of the Refugee Act and in particular section18 that prohibits refoulment of refugees. The principle of international law on non refoulment is currently part of the Kenyan law. Safety of women and Children refugees The commissioner for refugees is required under section 23 of the Refugee Act to ensure specific measures are in place to guarantee the safety of children and women in designated zones. The Commissioner is also charged with the responsibility that a child, whether accompanied or not receives appropriate assistance and protection. Sub section (3) further provides that the commissioner should take all necessary measures to trace parents and other family members in order to facilitate reunification. This provision is in line with the Convention in as far as the right to family is concerned.21 Constitutional rights of refugees in Kenya The position in Kenya is that international treaties that have been ratified and form part of Kenyan law. Although they form part of the Kenyan law, these treaties must not be inconsistent with the Kenyan Constitution otherwise they will be void to the extent of that inconsistency. The rights contained in the Universal declaration of human rights are enshrined in the constitution and particularly Chapter IV. The rights presented in the various laws that govern refugees are human rights and constitutional rights expressed in the Bill of rights. All the refugees in Kenya enjoy both the rights contained in international treaties on refugees as well as the rights contained in the Kenyan constitution. Violation of refugee rights can therefore be seen as subject of the constitutional reference because refugees are under the Kenyan jurisdiction and therefore subject to the Kenyan constitution.22 Refugee warehousing in Kenya Refugee warehousing is used to describe the act of depriving refugees the right to work, run businesses, own property, move freely and choose a place of residence. The Convention Relating to the Status of Refugees provides refugees with the right to live in dignity while they await solutions. Individuals who are forced to flee the Somalia region end up spending considerable time in the Daabab refugee camp and are not allowed to move freely or to seek work. The freedom of refugees in Kenya, especially those from the Daabab refugee camp is restricted from movement throughout the country. Section 16 (2) of the Refugee Act empowers the minister in consultation with the host community to set up or designate areas to be used as refugee camps.23 Most refugee warehouses, like the Daabab refugee camp, occur in areas that are desolate, harsh and close to insecure border areas. The reason for setting up camps in insecure areas is informed by military and political reasons rather than humanitarian motives. Warehousing is perceived as a convenient form of disposing of refugees. Restriction of refugee’s economic activity is an activity that promotes reparation of refugees, which in turn is constructive refoulement and is against international law. Warehousing of refuges poses threats to the rights of the refugees because there are high incidences of nutrition related disorders and outbreaks of epidemics. There are also security and safety issues that give rise to cases of sexual violence and rape. Idle life in the camps also gives rise to increase in domestic violence as a result of anger and frustration. Refugee warehousing goes against the principles of the Convention Relating to the Status of Refugees but most of Somali refugees in Kenya remain camped at Daabab refugee camp.24 Reasons for warehousing Somalia refugees in Kenya The reason why Kenya prefers to warehouse refugees from Somalia is due to the security dynamics involved in refugee situations. It is not only important to consider refugees as a humanitarian problem, but also as a political problem in regard to security. The issue of refugees is perceived as an issue for international organizations, but these problems are political and presence of refugees often accelerates conflict within the host nation. This condition is further worsened in Kenya by the presence of armed terrorist groups who engage in warfare and terrorist activities in the North Eastern part of Kenya. This has resulted I insecurity in the region, which has greatly affected development. The insecurity arising out of the Daabab refugee camp has always been stressed by government officials in the area. Apart from the conflict between the refugees and the host government there are also conflicts between the refugees and the host community. The Kenyan Somalis in Daabab, for example, consider the refugees as being accorded special attention than them because they receive food, education, medical attention and other services. The majority of these Kenyan Somalis cannot access these facilities and therefore view the refugees as receiving special treatment in their homeland while they starve.25 a) Fear of Somalia refugees as agents of arms proliferation There is also the constant fear that refugees from Somalia are agents of arms proliferation. The fear of insecurity started with the establishment of the Daabab refugee camp and this fear was enhanced by the memories of the Shifta movement that had raged war in the regions a result of Somalia claiming to expand its territory in the northeastern part of Kenya. The reason refugees, especially of Somali origin are considered as threat is because they are perceived as possessing illicit arms or support its proliferation. Common borders are not policed sufficiently and the porous nature of the border makes trafficking of illegal arms easy. The rough terrain and the hostile weather at the Kenya, Somalia border make border policing difficult. The government officials in Kenya are caught between the genuine plight of refugees and the increasing hostile response from its own people. The prevalence of security issues led to the closure of all refugee camps near urban centers.26 b) Economic burden Another reason to warehouse refugees is that if they are allowed freedom they are likely to burden the host country. This situation is specifically of importance to the situation of Somalia refugees in Kenya. Because of the huge number of refugees from Somalia integration of the refugees into the host country will burden the country economically. The Kenyan economy is largely dependent on exports, especially agricultural exports and suffers a declining terms of trade regarding imports and therefore it is imperative to keep refugees in camps. The large number of refugees, the low economic growth rate, declining agricultural output and high population growth rates makes it economical to keep refugees in camps so that the costs of their subsistence can be met by the international community.27 Conclusion Kenya hosts a large number of Somali refugees and it is noteworthy that this has affected security in the country. The large number of refugees and security threats in their country is proportional. Recently a major security threat to Kenya is that of the Al Shabaab, which is a terrorist group linked to Al Qaeda. The group has been issuing threats, killing Kenyan residents and accusing the Kenyan government with interfering with affairs of Somalia. Apart from the threats by the Al Shabaab there also threats of piracy. The continued influx of refugees from Somalia to Kenya, poses a threat to the country as extremist groups are likely to enter into the country on the pretext of seeking asylum. The Kenyan government also fears that proliferation of arms will also affect the security in the country. It is clear from the analysis of the reasons to keep the refugees in camps that although doing so may restrict some rights guaranteed by the UN refugee convention, it is necessary to protect the interests of the host country Kenya. The right of refugees to stay out of refugee camps in Kenya is limited due to concerns to protect the interests of the country, moreover the Refugee Act sanctions establishment of refugee camps in designated areas to host refugees. 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