The term "refugee," like
the people it describes, can cover a lot of ground. Politicians, aid workers,
academics, and the press often approach the word from different angles, and
with varying ideas of the rights, roles, and responsibilities the term implies.
Such divergent views fuel the global debate about how best to manage and
protect refugees, who by some counts number over 13 million.
The complexity of the problem, as
well as the many and vocal interest groups concerned, makes it difficult to
sort out global refugee issues without answering two main questions. First, who
qualifies as a refugee? Second, what are the most pressing issues facing them
and the many institutions with which they interact? The most accurate answers
can be had by zeroing in on the legal definition of "refugee," then
backing away for a broader look at those whom the definition encompasses, and
the issues connected to their situation.
Who Is a Refugee?
Understanding the problems
confronting refugees — and those striving to protect them — depends on grasping
precise legal definitions. These definitions determine who qualifies for the
protections, both legal and physical, that national and international bodies
have developed to deal with people pushed across borders by conflict and
persecution. They also play a critical role in efforts to collect and interpret
refugee statistics.
The core definition of a
"refugee" is contained in the 1951 United Nations Convention Relating
to the Status of Refugees and its 1967 Protocol Relating to the Status of
Refugees, which define 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 or — unwilling to avail
himself of the protection of that country."
Recognizing that this definition of
so-called "statutory refugees" did not cover situations of mass
flight from war, regional bodies such as the Organization for African Unity
developed agreements like the OAU Convention of 1969. These expanded the
definition of refugees to include not only individuals subject to persecution,
but also every person who — in the words of the OAU Convention — "owing to
external aggression, occupation, foreign domination, or events seriously
disturbing the public order...is compelled to leave...to seek refuge in another
place outside his country of origin or nationality." The Cartagena
Declaration, adopted in 1984 by a group of Latin American states, added massive
human rights violations to this list. Though it is not a treaty, the
declaration carries considerable moral force in the region and beyond.
On this basis, people who move as a
group across international boundaries to escape war or civil conflict are also
generally recognized as refugees on a group or prima facie basis in Africa and
Latin America, and frequently in Asia and the Middle East as well. Poorer
countries in these regions use the broader definition of refugees in part
because they lack the administrative capacity to determine whether or not each
individual meets the criteria for refugee status. Those in mass flight in
industrial regions, however, are not automatically recognized as refugees, and
instead may be subject to "individual status determination" using the
narrower statutory (Convention) definition of a refugee.
The concept of refugees as people
fleeing persecution is central to efforts to aid and protect them. However,
debates exist about what constitutes "persecution." Some parties ask
whether the persecution must be state-sponsored and focused on individuals, or
whether widespread social practices and attitudes also qualify as grounds for
persecution. Further arguments surround what constitutes a human rights abuse
and what is a "cultural practice."
Such questions arise particularly in
gender-related cases; for example, women subjected to female genital cutting,
women under the Taliban regime whose education was blocked, or gays and
lesbians from countries where their sexual orientation is prohibited by law and
subject to severe punishment. Gender-based factors have, on a case-by-case
basis, been recognized as grounds for granting asylum and refugee status to
individuals, but there remains no international consensus or standard for doing
so.
Who Is Not a Refugee?
In its narrow usage, the term
"refugee" does not apply to a number of groups. This may have
profound implications for everything from their mobility to their survival.
The term "people in
refugee-like situations" is used to describe those — such as the Bedouin
in Kuwait or Iraq, and Burmese in Thailand or Malaysia — who are stateless or
denied the protection of the government in their countries of citizenship or
habitual residence, but who have not been recognized as refugees. Centuries or
even decades ago, when borders were less secure or mapped out, their lack of
status meant less. In an era when "security" is of mounting
importance, however, many such people find their situation increasingly
precarious. Two conventions on statelessness supervised by the United Nations
High Commissioner for Refugees (UNHCR) have done little to alleviate their
plight.
The term "internally displaced
people" (IDPs) is used in reference to those who may have moved for the
same reasons as refugees but have not crossed an international boundary. There
is no single agency charged with looking out for IDPs, but upon request, the
UNHCR may take responsibility for them, in which case they are included in
statistics on "people of concern to UNHCR."
The international legal definition
of the term "refugee" also excludes those who move not as a result of
persecution, but as a consequence of natural disasters (such as drought,
floods, or earthquakes), environmental factors, or famine. They are excluded
even though they may need international protection and assistance because their
home country cannot or will not provide these things. The terms "forced
migrants" or "forced displacement" are used to describe people
in these circumstances.
Similarly, the term
"refugees" also excludes people who move primarily for economic
reasons. Even when they are leaving conditions of extreme poverty, they fall
under the rubric of "economic migrants."
One final group is "asylum
seekers." These are persons who have arrived in a country seeking to be
recognized as refugees. If, when adjudicated, their claim is found to be
legitimate, they are granted refugee status. If the circumstances of their
movement are judged not to conform to the definition of a refugee, their claim
is denied and they become "rejected asylum seekers."
How Many Refugees, and Where?
Defining who is a refugee makes it
possible to estimate how many such people exist, and determine where they are
living. Such data are crucial to carefully planning programs of relief and
protection.
There are two principle sources of
statistics on refugees and related populations. The first are compiled by
UNHCR, published annually in The State of the World's Refugees and periodically
in special reports. The second are prepared by the U.S. Committee for Refugees,
a nongovernmental organization (NGO) that advocates for refugees, and published
annually in the World Refugee Survey. The major differences between the two are
that UNHCR data derive largely from government sources, whereas the U.S.
Committee for Refugees uses a variety of data sources and supplements these
with its own first-hand investigations.
The UNHCR and the U.S. Committee
also aggregate and present their data differently. For example, at the end of
2000 (the most recent date for which annual statistics are available) the U.S.
Committee reported the combined total of refugees and asylum seekers worldwide
to be 14.5 million; the comparable figure based on UNHCR data was slightly over
13 million, with 12.2 million of those being refugees. Both organizations
reported an increase of about 400,000 refugees and asylum seekers over 1999
levels. All "persons of concern to UNHCR" (including not only
refugees and asylum seekers but also returned refugees, internally displaced,
returned IDPs, and others) numbered 21.1 million at the end of 2000, a two
percent increase over 1999 levels that resulted largely from UNHCR's
involvement with the internally displaced in Angola, Colombia, and Eritrea.
It should be noted that
"persons of concern to UNHCR" and UNHCR statistics do not include an
estimated four million Palestinian refugees, since — in the UN system — they
are the responsibility of and counted by the United Nations Relief and Works
Agency. Palestinians are, however, counted in the U.S. Committee for Refugees'
statistics.
As for their geographical
distribution, of the 21.1 million persons of concern to UNHCR, the agency in
2000 estimated that 40 percent were in Asia, nearly 27 percent in Europe,
slightly over 25 percent in Africa, five percent in North America, just under
three percent in Latin America and the Caribbean, and less than one percent in
Oceania. The five principal source countries in 2000 were Afghanistan, Burundi,
Iraq, Sudan, and Bosnia & Herzegovina. The five major destination countries
were Pakistan, Iran, Germany, Tanzania, and the United States, that is,
countries in close proximity to current refugee situations or (in the case of
the U.S.) willing to accept refugees for resettlement.
International Concerns
Given the dimensions of the problem
described above, it is no surprise that national governments and global bodies
are engaged in an ongoing discussion of international policy issues having to
do with refugees and related populations. These discussions include:
Legal protections: Arguably, the principal and most enduring international
policy issue is protection, a matter of concern for refugees, asylum seekers,
and IDPs alike. The "responsibility to protect" is grounded in the
principle that sovereign states have the primary obligation to protect their
citizens against harm, but when states are unable or unwilling to do so, that
responsibility falls to the international community. Legally, the
responsibility to protect is upheld by obligations inherent in the concept of
sovereignty, by the UN Security Council's responsibility for maintenance of
international peace and security under Article 24 of the UN Charter, and by
legal obligations embodied in specific declarations, covenants, treaties,
international humanitarian law, and national law. Protection is also the core
mandate of UNHCR and the fundamental principle by which other policy issues and
options are guided. It has also been reaffirmed by the findings of the United
Nation's Commission on Sovereignty and Intervention.
The issues raised by the
responsibility to protect are numerous. At what point does the international
community determine that a given state has failed to exercise its obligation to
protect, and that international intervention is warranted? What threshold — in
terms of loss of life, ethnic cleansing, or others harm demanding protection —
must be reached before international military intervention is justified? These
have been dilemmas in cases where military intervention ultimately did occur
(with varying degrees of success), as in northern Iraq in the Gulf War of 1991-1992,
Somalia in 1992-1993, Bosnia in 1995, or Kosovo in 1999, and where it did not,
as in Rwanda in 1994.
Providing humanitarian aid: For humanitarian assistance agencies, a dilemma that has
become particularly salient in recent years is how best to provide protection
and assistance under conditions of conflict. The challenge arises especially
when humanitarian assistance is diverted to fuel conflict, when UNHCR and NGO
staff are themselves targeted by warring parties, or both.
Under such circumstances,
international agencies face tough decisions: Do they call for international
military involvement to provide security for protection and assistance
operations, and thereby risk violating the principles of neutrality and
impartiality under which they seek to function? What if the only way to protect
people is to move them away from areas of conflict? Are agencies then complicit
in "ethnic cleansing"? Humanitarian agencies struggled with these
issues in Bosnia. When do international agencies choose to pull out of a
conflict situation (as some did from Liberia), and how do they balance their
responsibilities to protect and assist refugees and displaced populations
against concerns that their presence may prolong a conflict, let alone
jeopardize the safety of their own staff?
Handling combatants: Another debate on the world stage is the proper response by
aid agencies when the populations they seek to protect in refugee camps include
combatants or war criminals. People in refugee camps or self-settled refugee
communities are often thought of as being exclusively vulnerable civilians —
and, under various international legal instruments, those who engage in armed
activities are not to be accorded refugee status. However, in some cases camps
do contain armed combatants (so-called "refugee warriors") who may
seek to continue fighting opposition forces in their home or host countries (as
in the case of Rwandans in the Democratic Republic of the Congo) or who are
encouraged by other states to be reservoirs of conflict (as in the case of
Afghan mujahedeen in Pakistan, who were armed by Pakistan, Saudi Arabia, China,
and the U.S. to fight the Soviet occupation of Afghanistan).
Mass flight: Another international policy issue becomes especially
prominent when developed countries are faced with prospects of mass exodus from
conflicts in nearby countries. Most Western countries do not subscribe to the
expanded "refugee" definition of the OAU Convention or Cartagena
Declaration, and are reluctant to recognize as refugees those in mass flight
from generalized conflict. However, humanitarian considerations, along with
factors such as domestic political pressures to respond, a sense of shared
responsibility for the conflicts in question, the desire for orderly population
movements, or the reluctance of neighboring countries to receive mass influxes,
can lead to the establishment of one of several forms of temporary protection
schemes.
These can include the granting of
"temporary protected status" in host countries (also known in Europe
as "B-status"), or provisions for "extended leave to
remain." Under such arrangements, temporary residence permits are issued
to those in flight, without the accordance of full Convention standards or
refugee status. Bosnians and Kosovars in Western Europe and Salvadorans in the
U.S. are among those who have received some form of temporary protected status.
A number of international policy
issues surround temporary protection: First, in the view of some observers, the
use of temporary protection has been adopted by some states as a way to avoid
granting more permanent asylum and refugee status. Second, the decision to
grant such status is on a situation-by-situation basis and may be accompanied
by extended and heated negotiations over "burden sharing" — that is,
the equitable distribution of those in flight among prospective host countries.
Burden sharing has been a special concern of Germany, which had 320,000 to
350,000 (or approximately half) of the Bosnians who sought protection in
Western Europe during the 1992-1996 war.
Non-refoulement: In order for states to be willing to grant temporary
protection, there needs to be some reasonable expectation that temporary
protection is indeed temporary. But debate is underway about when, and under
what conditions, it is acceptable and morally principled for host states to
return those to whom they have granted temporary protection. In the case of
Bosnians in Germany, for example, the original deal struck with UNHCR
stipulated that, in exchange for being granted temporary protection in Germany,
Bosnians would be returned "in dignity and safety."
However, then the questions arise:
What constitutes "in dignity and safety"? What circumstances have to
exist in the country or origin? Can people be returned to any safe place, or
must they be able to return to the homes or at least the communities in which
they lived prior to flight? Is the decision to return the sole prerogative of
the host state? Or is the individual's voluntary willingness to return the
deciding factor? Under German law, people who remain in the country for five
years are eligible for permanent residence, so Germany has exerted great
pressure on Bosnians to return "voluntarily;" about 225,000 have done
so and another 7,000 have been resettled in third countries. But Germany has
also forcibly repatriated over 8,000 Bosnians, thereby bringing upon itself
protests and condemnation by UNHCR and other refugee advocacy groups.
These protests are rooted in the
principle of "non-refoulement," which is spelled out in the 1951
Refugee Convention, which states that "No Contracting State shall expel or
return ("refouler") a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social
group or political opinion." Sometimes "refoulement" becomes an
international policy issue when host governments want to close camps on their
territories and return refugees to countries the host governments deem safe —
Vietnamese in Hong Kong and Rwandans in Tanzania are among the refugee
populations to have faced this situation. In other cases, a de facto host
country may refuse to recognize those fleeing to its territory as refugees.
This is China's current stance viz á viz North Koreans, who China argues are
economic migrants. The round-up and forcible return of North Koreans is
characterized by refugee advocates as a violation of the principle of
non-refoulement.
Conclusion
Understanding efforts to protect refugees
around the world depends on grasping many issues, from the meaning of
"protection," to the complexities of aid distribution. This
understanding requires thinking through the actions (and motivations) of
governments, aid workers, academics, and the media. Complicated as they are,
attempts to shed light on all of these topics are vital — to the hands-on work
ahead, to achieving public understanding of these problems, and to formulating
better policies.
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