World Refugee Day 2005 – Inside Justice

Five years ago, the UN General Assembly unanimously adopted Resolution 55/76 designating 20 June every year as World Refugee Day in honor of the courage, endurance, and spirit of the millions of people uprooted by war, civil conflict, or ethnic persecution, and to honor the staff and volunteers dedicated to providing services and aid to the world’s refugees and asylum seekers.

How many refugees are in the world?
The United Nations High Commissioner for Refugees (UNHCR) estimates that there are currently more than 17 million asylum seekers and refugees in the world, most of them women and children.

What is a refugee?
A refugee is more than a person who flees from one country to another. A person no longer afforded protection from his/her country of origin may indeed be de facto stateless (without a country), but that condition must be formally recognized as a matter of law to afford certain rights and legal protections. Obtaining de jure stateless status depends heavily on the criteria and the legal definition of “refugee” used in the procedures for refugee status determination (RSD).

Given that domestic laws to define the RSD requirements frequently derive from and are influenced by international laws, it is important to understand the main source of refugee protections and definitions, the UN Refugee Convention of 1951.

UN Refugee Convention 1951
The current international definition of “refugee” comes from the United Nations Convention and Protocol relating to the Status of Refugees, also known as the UN Refugee Convention, which entered into force on 28 July 1951. It established the definition of “refugee” as an individual who fears persecution on the basis of race, religion, nationality, or status as part of defined social or political group. Gender, age, and sexual orientation are not specifically mentioned but their omissions do not preclude members of those groups from qualifying as refugees under the category of “social group.”

United Nations Convention relating to the Status of Refugees
Article 1(a)

(2) As a result of events occurring before I January 1951 and 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 former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The term “social group” was added in the 1951 definition as an expansion of the 1948 definition given in Annex 1 of the Constitution of the International Refugee Organization. The authors of the 1951 Convention wanted a broader category to provide protections to individuals who did not qualify within the previous enumerated categories. At the same time, they wanted to codify the immutable characteristics necessary for practical implementation. In 1979 and 1985, the UNHCR issued documents providing further guidance on the interpretation of the definition of refugee to mean persons of “similar backgrounds” and “social status” or “who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live.”

Inclusion, Cessation, and Exclusion
The Convention and Protocol rely not only on what qualifies an individual as a refugee (inclusion) but also on what causes a termination (cessation) or denial of eligibility (exclusion).

Inclusion: To be eligible for refugee status, the individual must meet the definition of refugee under the UN Refugee Convention, as discussed in the previous section. The impact of individual status determination and group-based recognition is discussed in the next section.

Cessation: The eligible status of an individual may terminate for many reasons. A primary reason is when a person chooses voluntarily to return home. A voluntary repatriation terminates the eligibility of that person as a refugee.

Exclusion: An individual may be excluded from the status of refugee for many reasons. A main justification for a denial is criminal activity. This provision is designed to prevent criminals from fleeing justice in their native countries or from seeking safety from justice.

United Nations Convention relating to the Status of Refugees
Article 1
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

Individual Status Determination vs. Group-Based Recognition
Although the current definition strives for applicability of the word “group”, a conflict arises during the course of interpreting legislation and adjudicating refugee status claims. How much emphasis should be given to determining refugee status based on the individual’s situation and condition versus the group’s circumstances? Is being recognized as part of a group sufficient in itself to guarantee protected status?

Estimated Number of Refugees and Asylum Seekers

Region	Total
Asia	6,187,800
Africa	4,285,100
Europe	4,242,300
Latin America and Caribbean	1,316,400
North America	978,100
Oceania	74,400
Total	17,084,100

Source: UNHCR
1 January 2004

New Asylum Applications Submitted in First Quarter (Q1) of 2005

Country of Origin	Total
Serbia and Montenegro	5,078
Russian Federation	4,867
China	4,695
Turkey	3,667
Iraq	2,923
Georgia	2,600
Haiti	2,560
Nigeria	2,400
Dem. Rep. of the Congo	2,361
Islamic Rep. of Iran	2,201
Somalia	1,802
Sri Lanka	1,770
India	1,701
Afghanistan	1,687
Pakistan	1,674
Sudan	802
Other	38,723
Total	79,109

Source: UNHCR
Q1 Report May 2005

Critics of group-based recognition tend to attack the practice on the premise that it promotes sizable numbers of refugees and displaced persons to flee a country. This mass extraterritorial migration preempts temporary internal displacement and thereby fosters the potential for larger legal, administrative, and financial burdens when conditions change.

• The Case of Rwanda

Individual or Ethnic Group Determination?
An example of the conflict between individual and group determinations became evident during the recent migration of 10,000 Rwandan refugees into Burundi in central Africa.

Fearing prison sentences, accused criminals of the 1994 Rwandan Genocide fled to neighboring Burundi to avoid appearing before either the International Criminal Tribunal for Rwanda or the semi-traditional Rwanda genocide courts known as Gacaca. At the same time, widespread rumors of an upcoming ethnic cleansing in Rwanda inspired thousands more to flee to Burundi.

The Burundian government, fearing this refugee influx would incite domestic ethnic violence and threaten national security, forcefully repatriated the refugees against their wills, an action condemned by the United Nations and foreign governments as a violation of the UN Refugee Convention.

Under the exclusion clauses of Article 1(f) of the UN Refugee Convention, Burundi could be justified in forcibly expelling asylum-seekers who stand accused war crimes in Rwanda as determined on a case-by-case individual basis. However, since the burden of proof to justify refugee status typically resides with the applicant, the likelihood that applicants will voluntarily report that they fled justice is low. To provide fair and efficient processing for all refugees would require a case-by-case determination, which is sometimes untenable due to the time, legal resources, and financial obligations to ascertain the relevant facts of every case prior to refugee status determination, particularly during times or emergency or in relation to imminent national security risks.

Given the potential for life-threatening endangerment to the individual if refugee status is not determined accurately and fairly, should governments use a cautionary and timely approach based on broad group-based recognition? Within the context of the Rwanda-Burundi situation, all members of a particular ethnic tribe, for example, could be afforded refugee status on the basis of that immutable characteristic, owing to fear of excessive and extremely disproportionate punishment on the basis of race. Thus, if the asylum-seekers of the Hutu, Tutsi, or Twa ethnic tribes could demonstrate by documentation that they belong to a particular group, they would qualify as legitimate “refugees” in the absence of evidence to the contrary. The burden of proof then would shift from the applicant to the host government to prove the ineligibility of the individual.

Does the broad leniency of group-based determination jeopardize the fundamental principles of asylum, repatriation, and resettlement as given in the UN Refugee Convention by allowing applicants to abuse the system as a means to avoid domestic justice? Does it also place a greater burden on host countries to feed, shelter, and provide for suspected criminals who would otherwise be illegal immigrants subject to deportation?

Internal Refugees
Can persons forced from their homes due to civil strife, environmental disaster, or human rights abuses receive international legal protections while still residing in their native countries as “internal refugees”?

All too frequently these displaced families are out of sight, out of mind by the international community

Susan F. Martin
Director, Institute for the Study of International Migration
Georgetown University
17 January 2001

No, the status of “refugee” only applies to persons living outside their countries of origin. Currently, the UN and the UNHCR do not have a clear mandate to aid these “internally displaced persons” (IDP).

An estimated 20 million people worldwide live as IDPs but have no means to seek international legal protections as “refugees.” The United Nations, when it does intervene to provide aid, focuses primarily on the IDPs in Africa. More than two million civilians are internally displaced in the Sudan and at least another million is internally displaced in the Democratic Republic of the Congo, mainly due to civil wars.

New Refugees in 2005
In the first three months marking the first quarter (Q1) of 2005, three countries accounted for just under 50% of the nearly 80,000 new asylum applications filed: France (19%), the United States (18%) and the United Kingdom (10%). The leading countries of origin included Serbia and Montenegro, the Russian Federation, China, Turkey, and Iraq.

Resources

International Treaties and Declarations