State Protection Refugees Fleeing From Prosecution - Term Paper Example

State Protection Refugees Fleeing From Prosecution Introduction Asylum seekers fleeing serious abuses of human rights that reaches the level of persecution is among the world’s most serious humanitarian issues.1 According to the UNHCR by yearend 2009 there just over 43 million “forcibly displaced” persons globally and 15.2 million of those persons were refugees.2 These numbers represented the highest since the middle of the 1990s.3 This increase in the number of refugees and asylum seekers in general is symptomatic of violent and turbulent trends associated with politics and economics as well as the merciless persecution of individuals on ethnic and other illegitimate grounds. Moreover, the increasing ease with which individuals may cross borders naturally contributes to the growing rate of refugees.4 The UN’s Responsibility to Protect (R2P) principle which was agreed by UN contracting States in 2005 World Summit has consequences for contracting states with respect to protecting refugees from persecution and prosecution. Essentially the R2P principle ensures that sates are responsible for protecting their citizens from human atrocities such as war crimes, genocide, ethnic cleansing and crimes against humanity. When individual states are unwilling or unable to shoulder this responsibility other states may intervene to aid the offending state in taking responsibility.5 Refugees are essentially the most vulnerable to these kinds of atrocities.6 However, while there are those refugees who legitimately flee to avoid persecution and prosecution, there are any number of refugees who flee for illegitimate reasons. Therefore international law seeks to strike a fair balance in terms of defining refugee status and imposing on states a duty to protect refuges.7 This study will examine this balancing act by offering a critical appraisal of the international law relative to states’ responsibility to protect refugees from persecution and/or prosecution. I. Refugees and State Responsibilities in International Instruments The Convention Relating to the Status of Refugees is the key international instrument defining and conferring refugee status as well as their rights and corresponding states’ duties.8 Initially, the Refugee Convention 1951 only applied to persons who had become displaced in Europe following the Second World War. However, the 1967 Protocol to the Convention removed those limitations and so that the term refugee applies to all persons fitting the definition contained in the 1951 Convention.9 In this regard, a refugee is defined by the 1951 Convention as an individual who: Owing to 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 or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.10 Article 1 of the 1951 Convention goes on to define persons who may otherwise meet the definition of refugee under Article 1(2) above, but are not entitle to the protection and rights contained in the Convention. To start with persons receiving assistance from UN “organs or agencies” other than the UNHC for Refugees are excluded from the Convention unless that protection and/or aid is stopped.11 Similarly, the Convention will not apply to persons who are who are entitled to legal protection in the country where he has fled.12 Thus far it has been established that states will not be required to protect refugees if they are already the recipient of some form of protection and assistance. Article 1(2)(F) goes on to list situations in which a state is not required to render assistance at all. In this regard, Article 1(2)(F) provides that the Convention of 1951 will not apply to persons who have committed crimes “against peace”, a “war crime” or crimes “against humanity” within the meaning of international laws.13 The 1951 Convention will also not apply to refugees who have committed “serious non-political” crimes or have been “guilty of acts contrary to the purposes and principles of the United Nations”.14 Article 3 of the 1951 Convention imposes upon contracting state a duty to consider applications for asylum and protection generally on the part of refuges indiscriminately.15 Even so, the mere fact that refugees are persons escaping violations of human rights abuses per se, implies that human rights remains an issue for protection before, during and after flight.16 Articles 4 to 30 set out the general protection of national laws that are required to be accorded refugees who have obtained lawful refugee status by the state in which the refugee resides. In general refugees are to be accorded the same treatment that is conferred upon nationals and must therefore be permitted to have access to social security, housing, education and health services in the same manner as those conferred upon nationals in need of those services. Additionally, lawful refuges must be accorded protection of both movable and immovable property and are entitled to receive travel documents.17 Article 31 goes on to provide for states’ responsibility for the protection of unlawful refugees. To this end, member states are not permitted to penalize refugees who gained unlawful entry to that state “directly from a state” where the refugee was under the kind of fear delineated in Article 1.18 Refugees who have obtained entry by unlawful means are also entitled to freedom of movement and any constraint imposed can only be done so to the extent that they are “necessary” and may only be attached “until their status in the country is regularized” or they “obtain admission into another country”.19 Essentially the Convention of 1951 provides that states’ are responsible for protecting the international human rights of refugees generally. Moreover they are required to provide social security protection in terms of providing assistance and access to social and welfare services but only to the extent that it is available for nationals in similar situations of need. It would appear however, that where refugees are receiving assistance from UN bodies or agencies states are relieved of welfare and social assistance and protection responsibilities. Arguably, refugees receiving assistance from UN bodies and agencies are likely those who are unable to receive it from the host state because such assistance is not available to nationals in comparable needy situations. This raises an important issue for the host state and unfortunately the 1951 Convention does not provide guidance. The issue is whether or not the state is required to provide assistance and protection in terms of welfare and security to the refugee if and when the UN’s bodies and agencies discontinue such assistance even if no such assistance if available for its own nationals in comparable situations of need. Since this is not clarified under the 1951 Convention, the states’ responsibility to protect the refugee in these circumstances is left open to interpretation. Moreover, Article 22 of the United Nations Convention on the Rights of the Child 1989 contradicts Article 1(2)(D) of the 1952 Convention which exempts the host state’s responsibility to protect a refugee who is already receiving assistance from UN bodies and agencies. Article 22(2) specifically provides that with respect to refugee children: Shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such child…20 Although Article 22 uses the phrase “as they consider appropriate”, that phrase is nullified by the phrase “shall provide” which indicates that there is a duty to cooperate and that there may be some factors that simply impact the degree to which the host state cooperates. This also raises the issue of whether the duty to protect a refugee child is absolute and does requires the state to protect refugee children in a manner that is not extended to children who are nationals of the host state. Certainly it would appear that the responsibility to protect the refugee particularly with respect to children means that nationals in similar situations may not receive welfare and social protection and assistance in a manner equal to refugees. Even so, the Convention of 1951 taken together as whole is intended to ensure that refugees are protected to the extent that they are treated with dignity and that they are accorded the protection of human rights by international standards. Each of these responsibilities are prefaced by the duty of non-refoulement in that under no circumstances should the refugee be expelled forcibly.21 This means that states in exercising the responsibility to protect the refugee from prosecution/persecution must not assist the refugee in repatriation whether it is in the host state or another state or at home. In repatriating the refugee to the home state, the fear and atrocities that drove the refugee out must have been abated. In this regard, the responsibility to protect the refugee from prosecution and/or persecution takes on another character, one that is not provided for in the 1951 Convention. The non-refoulement duty has some practical difficulties. Article 33 imposes upon the host state a protective duty of non-refoulement which is the key to protection from persecution and/or prosecution . Article 33 provides that no UN member state is entitled to “expel or return a refugee in any manner whatsoever” to the place: Where his life or freedom would be threatened on account of his race, religion, nationality, membership or a particular social group or political opinion.22 The non-refoulement protection from prosecution is nullified by Article 33(2) which confers upon member states a discretionary power to waive the non-refoulement protection from prosecution. Article 33(2) provides that the protection conferred on the refugee via Article 33(1) is not accorded a refugee when there are reasonable grounds to suspect that the refugee is a danger to the national security of the host state or who has been convicted of a “serious crime” which “constitutes a danger to the community of that country”.23 Article 33(2) raises an immediate concern. The concern is whether or not a criminal conviction in a country which has abused human rights and committed crimes against humanity constitutes ground for deeming the refugee a danger to the host state’s community. In this regard, this part of Article 33(2) virtually contradicts the responsibility to protect under the Convention itself and virtually permits the host state to return the persecuted refugee to the country that persecuted him in the first place. The second concern with the discretionary power conferred on the host state under Article 33(2) of the 1951 Convention is that officials who examine immigrants and possible refugees at entry borders who do not generally concern themselves with the responsibility to protect refugees.24 Many of these immigration officials are more concerned with ensuring that immigrants have the proper status to safeguard against overstaying and safeguarding against entry for unlawful purposes. In many cases they are primarily concerned with protecting their respective borders. In other words the discretion may be exercised loosely. Although international law requires that immigrants and refugees be treated differently25, with the high mobility of persons today, it is difficult to imagine border officials concerning themselves with the differences. II. The Responsibility to Protect Principle and Refugees The World Summit 2005 document reflecting the R2P also calls upon contracting state to take responsibility for modifying national laws so as to include greater protection of refugees. Specifically, the World Summit 2005 Outcome document provides that the UN’s member states have reaffirmed: The principle of solidarity and burden-sharing and resolve to support nations in assisting refugee populations and their host communities.26 Essentially what this means is that the host state is entitled to support and aid in respect of its responsibilities toward protecting refugees from persecution and/or prosecution. This support and aid should come from the international community. There is a practical problem with extending the responsibility to protect refugees to the entire membership of the United Nations. The problem is that a number of members (China, Russia, Algeria, Brazil and the Philippines) at the World Summit did not agree with the mandate to involve international cooperation for the protection of civilian populations generally and that that protection should only be imposed in times of war.27 In circumstances where international cooperation is required for the protection of refugees, it is difficult to imagine how that might be accomplished with there are members of the international community that do not think that kind of protection is necessary unless during war times. Regardless of reservations by some member states, the UNHCR regards the protection of refugees as an international duty.28 However, the responsibility to protect refugees under the umbrella of the R2P doctrine invites specific concerns about the responsibility to promote international peace primarily by respecting the sovereignty of other states. Intrinsically, the R2P principle instructs states to not only support host states but to intervene in other states who are either unwilling or unable to protect their own populations.29 It is understandable that some states may not wish to intervene in the sovereignty or territories of other states under the concept of reciprocity. In other words states would not want to treat other states in a manner that they could not want to be treated themselves. Regardless the UN’s R2P principle takes the position that state sovereignty is a responsibility and not a privilege to the extent that states must take responsibility for their population. From the perspective of the UN’s General Assembly refugees are perceived as a threat to world peace in that they present an essentially destabilizing dilemma and as such becomes the responsibility of the international community.30 However, unless and until the international community as a whole is persuaded international cooperation will not be achieved. As long as the validity of the R2P principle to protecting refugees remains a controversial issue, states that are inclined to persecute their citizens will continue to do so. Conclusion The responsibility to protect refugees has evolved from the host state’s responsibility to protect refugees to a collective international community’s responsibility to protect refugees from persecution and/or prosecution. The 1951 Convention continues to apply but under the R2P principle all contracting states have a responsibility to assist the host state. While the primary focus is on the protection of international human rights and welfare and social security assistance, refugees appear to be entitled to greater protection and assistance than nationals of the host state. Perhaps the only qualifying distinction is the fact that refugees are for the most part stateless and as a result of the fear that motivated flight require greater protection that those who have not confronted fear of the kind envisaged by the 1951 Convention. Bibliography Allen, S. “Harboring or Protecting? Militarized Refugees, State Responsibility, and the Evolution of Self-Defense”. PRAXIS The Fletcher Journal of Human Security, (2010) Vol. XXV: 5-21. Bellamy, A. Responsibility to Protect: The Global Effort to End Mass Atrocities. Polity Press, 2009. Convention Relating to the Status of Refugees 1951. Davies, S. and Glanville, L. Protecting the Displaced: Deepening the Responsibility to Protect. BRILL, 2010. Edwards, A. “Crossing Legal Borders: the Interface Between Refugee Law, Human Rights Law and Humanitarian Law in the ‘International Protection of Refugees’”. Cited in Arnold, R. and Quenivet, N. (Eds) International Humanitarian Law and Human Rights Law. BRILL 2008. Edwards, A. “Human Security and the Rights of Refugees: Transcending Territorial and Disciplinary Borders.” Michigan Journal of International Law, (2009) Vol. 30(3): 763-807. Feller, E. “Asylum, Migration and Refugee Protection: Realities, Myths and the Promise of Things to Come.” International Journal of Refugee Law, (Sept./Dec. 2006) Vol. 18(3-4): 509-536. Hathaway, J. The Rights of Refugees Under International Law. Cambridge University Press, 2008. Howard, A. “Refugees, IDPs and the Responsibility to Protect (R2P): The case of Darfur, Global Responsibility to Protect, (Feb 2010) Vol.2(1-2): 127-148. International Organization for Migration. World Migration 2003: Managing Migration Challenges and Responses. International Organization for Migration, 2003. Potocky-Tripodi, M. Best Practices for Social Work with Refugees and Immigrants. Columbia University Press, 2002. Simeon, J. Critical Issues in International Refugee Law. Cambridge University Press, 2010. Smith, R. Texts and Materials on International Human Rights. Taylor and Francis 2009. UNHCR “2009 Global Trends: Refugees, Asylum-Seekers, Returnees, Internally Displaced and Stateless Persons”. United Nations High Commissioner for Refugees, 2010. United Nations Convention on the Rights of the Child 1989. UN Resolution 60/1 2005 World Summit Outcome. Read More