The Refugee Question and the European Court of Human Rights - Term Paper Example

Word Count 2,500 SECTION A Introduction The refugee status is a very difficult, albeit a very delicate It is a situation wherein the security of individuals is locked into an unbreakable paradox in which it is partly dependent on, and partly threatened by, the state.” 1 The refugee experiences displacement from her country and her people. The refugee has to contend with the conflicts on a personal and on a social level. The refugee situation is best described by Hannah Arendt in her work, The Origins of Totalirianism: We lost our home, which means the familiarity of daily life. We lost our occupation, which means the confidence that we are of some use in this world. We lost our language, which means the naturalness of reactions, the simplicity of gestures, the unaffected expression of feelings. We left our relatives in the Polish ghettos and our best friends have been killed in concentration camps, and that means the rupture of our private lives. 2 The refugee question is multi-dimensional. The political context of the refugee question has been tackled by Xenos. 3 Xenos is concerned with refugees being used as pawns in struggles between states, as was the case with the Haitian boat people in what he refers to as strategic human flows. The basis of these flows, he maintains, is the development of the nation-state in terms of national identity and the social construction of a people within specific territory, the hyphenating of nation-state within borders. The overarching drive for territorial nation-state expels those who either resist or cannot accommodate those pressures. Xenos emphasized that it is the pressure to construct the trinity of state–nation–territory that causes refugee flows. This uprooting entails a lack of rights. This is due to the fact that one who is pushed outside a nation or state cannot call upon a nation or state to allow that person full expression within the system. Rights can only exist when there is a duty or obligation on some body to protect or help express those rights. As a result of the hyphenating process, the first uprooting excludes the possibility of expressing ones own culture in a particular community; the second forbids having the space in that community within which that culture can be expressed. Both uprootings cited by Xenos place the refugee outside the confines of the nation-state, within which traditional norms and rules exist and rights are allowed to be expressed. a.) The specific advice one can give to Erma is that she merits protection in Moominland. There are two reasons for this. The first reason is that Homeland is a signatory to the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol and the European Court of Human Rights (ECHR). Section I, Article of the ECHR states that “Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”4 Moreover, Article III of Section I stipulates that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Finally, Article IV of the ECHR also states that “Everyone has the right to liberty and security of person”. Female genital mutilation is a violation of all the protocols of the 1951 Convention, the 1967 Protocol and the ECHR provisions since it causes harm to the integrity and health of the person. In some cases, female genital mutilation (FGM) results in death due to bleeding and infection from the procedure. In African culture female genital mutilation is required for a proper marriage, and it is required for the virtue of the woman or for the honor of her family. Female “circumcision” covers practices involving the complete or partial removal or alteration of the external genitalia for nonmedical reasons and appears in widely varied cultural contexts in African and other populations. 5 Gerry Mackie tackles the heterogeneity of these practices: “a group may perform it at infancy, before puberty, at puberty, with or without initiation rites, upon contracting marriage, in the seventh month of the first pregnancy, after the birth of the first child.6 It is evident that Emma can apply for refugee status in Moominland since FGM presents a strong case of violence and harm to a person’s intimacy. This process is done to her without her consent constitutes a direct violation of human rights. The new perspective of the United Nations Human Committee on Rights states that human security is linked to the security concerns of individuals and communities and also to a wider range of threats including, but not focused on, physical violence. Indeed, the concept of effective protection has evolved along with changes in the perception of the various dimensions of human security. UNHCR states that protection now means safeguarding not just the physical integrity but also the human dignity of every refugee. 7 b.) Enzo will have difficulty in applying for refugee status in his new host country, Moominland because he has AIDS. Moominland is a developing country, hence, it does not have the resources for prolonged HIV treatment. Most highly developed countries in Europe and North America have banned refugees who are afflicted with AIDS and those undergoing treatment with HIV. For example, the United States has banned refugees who are HIV positive. “The US Secretary of Health and Human Services (HHS) added AIDS to the list of "dangerous contagious diseases" that are grounds for excluding an alien under the Immigration and Nationality Act (INA) in April 1986. Hence, a refugee who is HIV-positive and is applying for immigrant visa, refugee visa, and adjustment to permanent resident status is excluded”8 Since Enzo’s appeals have been turned down twice, he can opt to apply for refugee status at the UK. The HIV exclusion is not an absolute bar to admission for all aliens. Enzo can obtain a waiver under the Refugee Act of 1989, 9 including the HIV exclusion. The Refugee Act explicitly covers refugees, who are, by definition, aliens applying for a refugee visa from abroad with a UK embassy for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest." The original purpose of the Refugee Act: to encourage other nations to admit refugees on a humanitarian basis. The UNHCR has made cooperation agreements with other organizations to advocate the inclusion of refugee issues in countries’ plans, proposals and policies related to HIV/AIDS. 10 Gazzard, et.al., has presented some with respect to refugees with AIDS who are admitted to UK. One, HIV should be reclassified as a sexually transmitted disease that warrants free medical care irrespective of immigration status. As a first cost effective public measure, the government should reconsider its position on withdrawing HIV treatment to failed asylum seekers and others of undetermined immigration status who do not have an ability to pay. Second, a statutory obligation should be placed on the National Asylum Support Service [NASS] to consider medical reports prior to dispersal, and no HIV patient should be dispersed until the treating doctor has been consulted and new treatment arrangements are in place. Third, asylum seekers should be dispersed to areas that can provide sufficient care and services for their needs. 11 c.) Elenie can seek refugee status through the Temoporary Protection Directive. This status was introduced by the European Union law which is referred to as the Protection Directive (Council Directive 2001/55/EC).  It relates to mass displacement of individuals from a particular country or area, whether displacement is spontaneous or by evacuation, and provides a means whereby Member States will share the responsibility of providing protection.  In these unusual circumstances, the UK will grant temporary protection for a period of 12 months.  At the end of that period, protection may be extended for a further period of 6 months; and continued extensions of 6 months may be applied for.  On each application, there will be an active review of the circumstances of the case. A person granted temporary protection (TP) will be entitled to work, and must also be granted necessary welfare, housing and medical assistance. 12 The TP is an amnesty with specific time limits. The feature of TP that responds to state security concerns is that, in regularizing status for a limited period of time, the government grants employment authorization for the same period in the strong belief that, while legally employed, people with TP either remit significant amounts of their earnings or save them to invest in the country of origin and its reconstruction at a later point. The grant of TP can forge a stronger bond between the new host country and the country of origin of those gaining status in this way. The immigration judge needs to determine that there is “a credible fear of persecution” for the applicant. If such a state exists, the applicant is for asylum. Elenie can work while she is accepted for the TPS status. As a signatory to the United Nations Protocol Relating to the Status of Refugees the United States agrees to the principle of nonrefoulement, which means that it will not return an alien to a country where his life or freedom would be threatened. 13 The Temporary Protection is the statutory embodiment of safe haven for those aliens who may not meet the legal definition of refugee but are fleeing and reluctant to return to potentially dangerous situations. The TP is like a blanket relief that is granted under these conditions: there is ongoing armed conflict posing serious threat to personal safety; a foreign state requests TPS because it temporarily cannot handle the return of nationals due to environmental disaster; or there are extraordinary and temporary conditions in a foreign state that prevent aliens from returning. 14 After 12 months, Elenie can apply for the Indefinite Leave to Remain status. While she is waiting for the approval of the new status, she retains her previous status. Any appeal must be brought within the relevant time period.  Provided application and appeal are made in time, the person retains their leave while these remain pending; and, importantly, retains the same benefits, which they had under that leave.  If the situation in Elenie’s country is still unstable after 12 months, she can then apply for the ILP status. The ILR status is an immigration option, which provides Indefinite Leave to Remain in the country. A person with ILR may be eligible to apply for naturalisation as a citizen provided she meets the requirements for British citizenship. d.) The UNHCR cannot grant the request of the Moomin government to transfer the Red people to Rojo. By doing so, the Red people will be exposed to the violent tactics of Rojo who is in Zoonyland. The Red people will be used as forced to works as pawns to the guerilla warfare which is being carried out by Rojo. The European Convention of Human Rights states in Article 4 that “Slavery and forced labour is prohibited.” In addition, Article 5 provides for the right to liberty and security. These provisions can be applied to the Red people who are refugees. If the UNHCR moves them to Zoonyland, they will be subject to the power of Rojo. It is expected that Rojo will use intimidation and force to make the refugees work for him to attain his objective to assume power in his area. The security of the individual citizen is equated with the security of the state. The universal legal basis to refugee status relate to those with an individual persecution-related need, based on discrimination, and a related right to receive protection outside their country of origin. In addition, ensuring the physical safety of refugees is one of the most pressing concerns of UNHCR and its partners. Rojo, a known Red warlord, cannot give protection, whether physical or in other forms, to the Red refugees. If these refugees are sent to Rojo, they will experience direct threats to their live if they are not sympathetic to his personal cause of fighting with other people. The refugee protection regime was created by the international community to shelter those fleeing direct threats to their lives. Refugee protection has always been profoundly affected by larger security issues. Real and perceived security threats not only influence the willingness of states to provide asylum to refugees, they also determine the quality of the refuge provided. Insecure environments weaken the ability of UNHCR and other agencies to assist and protect refugees and uphold their basic rights.15 In addition, the UNHCR voluntary repatriation programmes attempts to combat the problem of sexual violence by taking the following steps: promote and implement family reunification in the pre-repatriation stage; ensure that families, including extended families, can travel as a unit. The same applies for groups of refugees, who have developed a social network in the camp who wish to return to the same destination. This could be ensured by linking together voluntary repatriation forms for joint travel and, ensure that refugee women, on an equal basis with refugee men, are provided with a viable opportunity to declare individually their desire to return or opt out of a voluntary repatriation, and have equal access to information on which to base their decision. The UNHCR also guarantees the physical safety of areas, such as reception centres and transit camps and their facilities. They also examine the protection activities focused on returnees give high priority to assessing the safety of returnee women. Special attention should be paid to especially vulnerable individuals, for example the disabled, pregnant women and unaccompanied minors, by identifying them early in repatriation planning and developing specific procedures to transport and receive them. The leaders if the European Commission renounced all forms of violence. 16 This commitment also includes the violence committed against women refugees. Violence against women is a breach of women’s fundamental rights to life, safety, freedom, and dignity, physical and emotional integrity. "The violation of these rights cannot be tolerated or excused on any ground. Moreover, violence against women is an obstacle to the achievement of equality, sustainable development, peace and security and therefore requires combating any such violence with determination." 17 Refugee security is a function of the state, whether it be the country of origin or the new host country for the refugee. Since the time of Thomas Hobbes, security has been the primary obligation of governments. When a state decided to place an item on the security agenda, that item gains a high profile. In the 1990s, the Copenhagen school added another dimension by systematically exploring “societal security.” 18 The rethinking in security studies, Krause and Williams refer to it as the “critical security studies” took place along two perspectives. The first concept included economic, environmental, and society security, but typically in relation to human organizations that were organized in states. The second concept defined security in terms of other referent objects: individuals (human security), particular groups (women), or all-encompassing collectivities (global). “Deepening” has been a weak tendency relative to “widening,” in terms of both the attention and commanded published output.The idea of human security was extracted from a stock of ideas that had become salient at the end of the twentieth century. Humanitarian ideals had become a principal normative reference for states and organizations to clarify their own obligations. 19 WORD COUNT: 2,520 SECTION B Recent developments in various courts have taken steps to address the violence to women which occurs in the private sphere, particularly within the confines of the family. The Convention Against Torture (Torture Convention), which as a human rights instrument extensively addresses prevention of torture, also contains a non-return provision. The Torture Convention is implemented by the European Union member countries. Like the Refugee Convention, it prohibits States Parties from returning a foreign national to a country in which he or she would face torture. The non-return obligation in the Refugee and Torture Conventions is an obvious point of contact between human rights and refugee law. Claims for protection from return to torture go hand-in-hand with claims for refugee protection and status. Torture is an extreme example of serious harm within the meaning of persecution. The human rights corpus defining torture is incorporated into refugee law.20 The European Court of Human Rights exhorts the refugee women to know in advance about the facilities and forms of assistance which are available to them should they be sexually attacked so that they can tap this type of assistance. These refugee women know confidentiality will be respected and that they will be treated with sensitivity and compassion. Victims should be made comfortable about coming forward. This sort of information may encourage reporting of incidents and thereby increase the provision of assistance and protection to victims. 21 The document stresses that the refugee women should be informed in advance of "dos" and "donts", such as:  the need to have a medical examination as early as possible following a sexual, attack; to avoid washing themselves immediately following an attack as this will affect the results of any medical examination which may be crucial to any later criminal prosecution; and, to keep any evidence intact, such as preserving the clothes worn at the time of the incident without cleaning them. The European Commission appealed for respect to all women victims of gender-based violence. The European Commission condemns gender based violence which not only violates the human rights of women but often jeopardizes human security on a more general level."22 The EU Commission reaffirmed its commitment to fight any form and expression of gender-based violence and to protect and reintegrate victims, in close cooperation with Member States and civil society organizations. This also includes protection against harmful traditional practices, such as female genital mutilation. The EU has recently expressed concern on the appalling and unprecedented phenomenon of systematic rape and brutality against women in Eastern Congo. The eradication of gender-based violence is a specific priority of the Commissions Roadmap for equality between women and men. It is a special concern of the gender equality policies promoted by the European Commission, which designated the year 2007 as the European Year of Equal Opportunities for All. Bulgaria has established a program to help refugees adjust to family life. The government has implemented the National Program for Refugee Integration which gives refugees certain rights and benefits. The strength of the program lies in teaching people to cope with life in the country. They are taken to institutions and they are shown applications they need to fill, where to submit them and how to write them. The state prepares the forms in advance, so that the refugees do no have to form queues when they go to the National Insurance Institute to pay their health insurance contributions. The state is doing this to teach refugees to become independent. 23 Likewise, the refugees are taught how to be able to solve their problems by knowing whom to call if they have a problem, what to tell the doctor if they are sick and whom to address in the street if they felt threatened. The program is called the Social Adaptation module. The United Nations High Commissioner for Refugees (UNHCR) has issued pertinent guidelines with respect to violence experienced by refugees inside their home. The document exhorts that extreme caution should be exercised before any intervention is made. The UNHCR staff should be aware of the possible difficulties that may arise following intervention. In some situations, more harm may be caused to the victim and other relatives by becoming involved than had the matter been left alone. The document stipulates the limits to UNHCR intervention. While intentions may be good, give careful forethought to the possible repercussions of any proposed action. The UN refugee officer has to be attentive to the fact that the victim may decide to return, or may have no alternative but to return, to reside with the abuser at the end of the day. Retaliation against the victim or relatives may result if the abuser learns that the victim or other family members have brought the incident to the attention of others. The UNHCR staff should be aware of the limits of the action able to be taken by the Office in this context. The UN document further stressed the importance of close liaison with colleagues. For instance, before taking any action discuss possible approaches with relevant colleagues, such as the field officer, protection officer and community services officer, in order to benefit from their expertise, share strategies and points of view. They may also have additional information on the case which is not known by you. After completing the assessment, and where intervention is determined as the most appropriate response, it may be useful for colleagues to act together, such as, for example, the protection officer teaming up with the community services officer. Other interventions include these: identify the possible root causes of the aggression and examine ways to redress them and where appropriate, refer the matter to a disciplinary committee or other mechanism in place or, if the offence is of sufficient gravity, the authorities may have to be contacted. The US Supreme Court states that female refugees are entitled to the full protection of the law. This importance is clearly seen in the major provisions of US law. All of [Article 14s] provisions are aimed at ensuring the proper administration of justice, and to this end to uphold a series of individual rights such as equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal.... 24 [A]rticle 14 applies ... also to procedures to determine their rights and obligations in a suit at law.... 25 The UN Declaration of Human Rights puts great emphasis on the protection of women’s rights as an aspect of human rights. “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." In addition, US law upholds the importance of human rights protection in the different countries in accordance with the international law. "`A]mnesties for gross violations of human rights ... are incompatible with the obligations of the State party under International Convenant on Civil and Political Rights and that each country has a `responsibility to provide effective remedies to the victims of those abuses..”Women and girls make up 75% of the total refugee population.26Refugee women experience additional violent burdens such as dislocation, exploiitation and deprivation of rights at every stage of flight than refugee men. They cope with traumatic losses and separation from families and socio-cultural networks, loss of cultural and vocational roles, and conflicts in identity and self-esteem. They also experience role ambiguity and reversal. For instance, refugee women are often the first ones to find jobs either because of the kinds of jobs available and because they are more open to perform menial tasks. This situation can significantly affect male refugees. Afghan male refugees, for example, experience a wounded pride at seeing their wives, mothers, sisters, and daughters working at jobs that are difficult. Due to many refugee families tradition of patriarchy and hierarchy, these gender role reversals produce family conflict. The European Union has a fundamental commitment to defend womens rights as human rights and endeavors to stem violent behaviour. The campaign put across the following messages: "elimination of all forms of violence, including domestic violence, is an absolute priority" and "zero tolerance of violence against women". The Commission has carried out a range of initiatives, including the dissemination of the findings of studies and research conducted in the Member States, in order to get these messages across effectively. In this context, the former Commissioner Anita Gradin presented on 14 July 1999 the Eurobarometer n°51.0 on "Europeans and their views on domestic violence against women". 27 The EU campaign had the broadest possible impact on European citizens, covering radio and television advertising. Slogans and relevant messages have also been dispersed via the Internet. Additional materials, such as posters and brochures, have been circulating through the relevant national Ministries, local authorities and NGOs as well as the Commission information networks and the Commission offices in the Member States. Specifically, the European Parliament Resolution No A4-0250, Series of 1997 “calls on the Member States, in the most serious cases in which victims are unable to take action, to permit womens organizations or appropriate institutions to take legal action in defence of the victims. It also considers that all cases of violence against women should be systematically recorded whether these are first reported to the police, health and the social services, refuges and help lines or womens organizations, and urges the Member States to produce an annual report on the trend of violence against women based on the statistics and information collected. It further stresses the importance of a coordinated approach to tackle the problems of violence against women at national level and therefore welcomes the steps taken in some Member States to introduce a strategy among various government departments to prevent violence and deal with the consequences; and, recommends firmly that local initiatives should be based on a multi-agency approach involving police, local authorities and bodies as well as womens organizations and NGOs. Furthermore, it stresses the essential role of NGOs in combating violence against women, and therefore urges Member States actively to support their development and to establish an adequate financial framework for their development. In addition, the resolution “calls on the Member States to investigate urgently the role of alcohol abuse in violence against women. It appeals to the Member States to immediately and actively to provide support and funding for independent services for the survivors of violence, including refuges and shelters; and to establish bodies to ensure inter-agency cooperation in supporting women and any dependent children in rebuilding their lives. Finally, it urges the Member States to agree on a common basis for collecting statistics on violence against women, which should include information about the woman, her attacker, the type of attack and its location.”28 Every person may resort to the courts to ensure respect for his legal rights.” 29 However, violence against women is harder to prove and to report since it occurs in the privacy of the home of the refugees. The source of marital conflict among immigrant and refugee couples is gender role reversals, which are accompanied by shifts in status and power. The immigrants and refugees come from male-dominated cultures in which men hold the power in family decision-making. Such cultures also typically have clearly defined gender roles in which men are responsible for supporting the family by paid work outside the home, and women are responsible for supporting the family by unpaid work inside the home. Men are responsible for the protection of the women in the family, of their physical well being and by extension, of their virtue. Within these cultures, the purity of a womans sexual virtue is inextricably linked to the honor of her husband, father and brothers. A womans virtue guarantees the sanctity of the male bloodline handed down through generations. If purity of that line is in question, so is the honor of the men. Both men and women are expected to be `honorable in traditional culture. But if a woman has sex outside of marriage, her honor and that of her family is damaged. The men suffer a temporary loss to their honor while the womans honor is forever sullied. According to Amy E. Ray, the circumstances under which the woman has lost her honor are irrelevant. "The loss of honor is no less real or significant because the sex outside marriage was the result of rape. The loss of honor brought upon a man by a womans sexual activity outside marriage is the same and the consequences for the woman are the same." The cause of violence on to women of imigrant and refugee families is due to crowded conditions during early resettlement. If both spouses are unemployed or employed only part-time, they are likely to be spending more time together than they are accustomed to. This enforced physical closeness and togetherness, as well as a lack of privacy from other family members, may lead to short tempers. Marital conflict may also increase because previously established methods of conflict resolution may no longer be effective in the new situation. For example, previous support systems that were helpful in resolving conflicts in the past are likely to be absent. A final cause of marital conflict is simply that spouses are convenient targets on whom to displace anger arising from the stressors of the migration process.30 Severe marital conflict, as well as cultural norms, may lead to intimate partner violence (also known as domestic violence). Domestic violence covers beatings, rape, incest, murder or threats to life, male control and dominance over a womans access to food, water, shelter, and fertility (forced pregnancies and abortions)”.31 Intimate partner violence is perpetrated by men because of the male-dominated cultures of most immigrants and refugees. It is far more likely that such violence is perpetrated by males against female partners. Past victimization of both men and women in the country of origin may also be a risk factor for domestic violence. For example, men whose wives or daughters had been raped in their presence may feel a sense of failure at not having been able to protect their family members, which lead them to use domestic violence an effort to re-establish their position of power. Thus, “although the problem is widespread, it is kept a secret as a result of the social, political, and religious customs in which refugees [and immigrants] have been raised”32. Therefore, most immigrant and refugee women will not readily seek help for intimate partner violence. 33 Women are made hostages or used as bait to obtain concessions. Many are subject to the loss of family and frequently face raising their children without support. 34These violent acts have traumatic effects on the physical health, mental health, self-esteem, and overall functioning of women. The violence has invisible and long-lasting effects frequently are never acknowledged. The insidious effects of violence against women include severe trauma, grief, despair, and hopelessness.35 Domestic violence is "now ... recognized as [a] violation of our human rights Services for the victims include shelters. These include various support groups, shelter outreach and follow-up advocacy programs. These same services are extended by the UNCHR to refugee women who are victims of violence. Bibliography ANKER, DEBORAH AND PAUL LUFKIN. (2003). Gender and Symbiosis Between Gender Law and Human Rights. Migration Information Source. ARENDT, HANNAH. 1951, The Origins of Totalitarianism. (New York: World Publishing). BUZAN, BARRY. 1991. People, States and Fear. (Second Edition) London: Harvester Wheatsheaf, pp. 363–364. FRIEDMAN, A. R. ( 1992 ). "Rape and domestic violence: The experience of refugee women". Women & Therapy, 13, 65-78. GAZZARD, BRIAN, JANE ANDERSON, JONATHAN AINSWORTH AND CHRIS WOOD. (2005) “Treat With Respect”. EsmePeach. HIGGINS, IMELDA. 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[sections] 34.2(b)(8)) (proposed Apr. 23, 1986 UNHCR. 2006. The State of the Worlds Refugees 2006. New York: UN Publications Group. UNHCR. 2006. Womens Commission for Refugee Women and Children 2000, p. 1 Case Rulings American Declaration of the Rights and Duties of Man, Res. XXX, O.A.S. Intl Conf. of Am. States, 9th Conf., OEA/Ser. L/V/I.4 (1948). Universal Declaration of Human Rights, G.A. Res. 217(III)A, 3d Sess., pt. 1, at 73 art. 3, U.N. Doc. A/8l0 (1948). Medical Examination of Aliens (AIDS), 55 Fed. Reg. 15,354 (1986) (to be codified at 42 C.F.R. [sections] 34.2(b)(8)) (proposed Apr. 23, 1986. Electronic Sources Obektive Discussion Club. Violence Against Refugees and Immigrants. Accessed on January 23, 2006. URL:. http://www.bghelsinki.org/obektiv/2007/142en/142-1010.pdf. Sexual Violence Against Refugees: Guidelines on Prevention and Response. 1995. UNHCR. URL: http://www.icva.ch/doc00000837.html Read More