1. WHO IS A REFUGEE?

UNHCR: Restricting the rights of refugees and delaying the attainment of durable solutions for years causes frustration and tension among refugee and in the host community. In such situations refugee, in particular women and children, become more vulnerable to various forms of exploitation such as trafficking and forced recruitment, and may develop a long-term dependency on humanitarian assistance. Often, the result is the marginalization and isolation of refugee, which can lead to an increase in irregular movements and even to security and stability problems for the host State, as well as for other States in the region.1 The 51 convention gives refugee a solid basis on which they can progressively restore the social and economic independence needed to get on with their lives. Host states should make every effort to assure to refugee the rights envisaged under the 1951 Convention . . . Thus use the Convention to overcome the above problems. 1951 Refugee Convention Art 1A(2): The term refugee shall apply to any person who:

[As a result of events occurring before January 1951] owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership to 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. Because the convention is universal, it does not speak only of the grounds of persecution that have been most familiar to Western Countries . . . . [I]n the societies, and in modern times, different cultural norms and social imperatives may give rise to different sources of persecution . . . the concept is no a static one, nor is it fixed by historical appreciation.2

Settlement of Disputes: Art. 38 of 1951 Refugee Convention: If there is no agreement on the meaning of the Refugee Convention it can be resolved by the ICJ. However, in practice it is left to national courts. Tool to create a true international autonomous ruling is not yet available there is no supervisory body that can issue authoritative rulings. The only way to settle disputes is go to the ICJ. UNHCR did not adopt this type of body when Switzerland requested it during the drafting of the Convention as it felt their position would be undermined. Also States would not sign onto the Convention as it didnt want an extra territorial body to define the law. ICJ will have jurisdiction to hear claims as of 2006 as a final binding appellant refugee claim.

1 2

UNHCR: Local Integration and Self-Reliance U.N Doc. EC/55?SC/CRP.15, June 2, 2005. Applicant A & Anor v Minister for Immigration and Ethnic Affairs, 142 ALR 331 (1997, Australia, High Court) per Kirby J.

2. ALIENAGE
Person has to be outside the country of his nationality. Outside Country Of Origin/Nationality An individual must no longer be trapped or present in their country of origins sovereignty. Goodwin-Gill suggests that as a matter of fact anyone presenting themselves to a frontier post, port or airport will be within jurisdiction of that state.3 Hence, if you can control me you can protect me. When a government can control somebody and exercises jurisdiction over them its protective responsibility also applies. Country Of Nationality: One citizenship analyze claim in relation to country of citizenship as that is the country you will be returned to if the refugee claim is denied. Some have more than one nationality look at both countries - Art 1(a)(2) STATELESSNESS: 1960 Convention relating to the Status of Stateless Persons. Art 1(1): For the purpose of this Convention, the term "stateless person" means a person who is not considered as a national by any State under the operation of its law. Art 1(A)(2) 1951 Refugee Convention:

Owing to a well founded fear of persecution . . . . or who not having 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. For stateless people a claim must be analyzed vis a vis their country of habitual residence. However, there is no state that an asylee can be deported to if the claim for refugee status is denied. Convention for stateless people is the mirror image of refugee Convention. In practice there is a massive number of states who have not signed onto the Stateless Convention. If an individual is a stateless person and enters a country which has not signed onto that treaty that individual does not gain the requisite rights. Thus there has been a tendency to squeeze people into the refugee Convention. Habitual residence is the place where individual has lived on practical terms for an ongoing basis. Hathaway second criteria: must also be returnable to that place. However, the courts say Hathaway is incorrect as the Convention does not say anything about returnability.

Guy S. Goodwin-Gill, The Refugee in International Law, Second Edition, Oxford University Press: Oxford, 1996, p.123.

BURDEN SHARING:
Since 85% of refugees originate in the third world, if an individual has to stop in the first safe country they enter, then they may be forced to stay within a conflicted region that may be unwilling or unable to provide protection against the abuse of fundamental human rights. In this way, accidents of geography determine where refugees enter this first safe country, thus causing an unfair burden on certain countries that often have divergent interests and very little means to provide for surrogate protection. Burden Sharing: - UNHCR ExCom Conclusion No. 71 (1993) Stresses the importance of international solidarity and burden-sharing in reinforcing the international protection of refugees, and calls upon all States in conjunction with UNHCR to cooperate in efforts to lighten the burden borne by States that have received large numbers of refugees and asylum-seekers; Regional Harmonization to Ensure Protection: - UNHCR ExCom Conclusion No. 74 (XLV) (1994) Stresses the importance of international solidarity and burden-sharing in reinforcing the protection of refugees, and calls upon all States to take an active part, in collaboration with UNHCR, in efforts to assist countries, in particular those with limited resources, that receive and care for large numbers of refugees and asylum-seekers; Permissible limitations on access to refugee protection akin to country of first arrival rules: Persons in receipt of specialized UN procedures Persons recognized as de-facto nationals. COUNTRY OF FIRST ARRIVAL - Shopping For Surrogate Protection: The idea is that refugees cannot go shopping for surrogate protection. There is a perception that if a refugee is genuinely fleeing from persecution in her country of origin then she would seek protection from the first safe country available to her. However, this misconception does not take into account that: a) Often those countries passed through, particularly in relation to African asylum seekers, do not have adequate protective mechanisms available for refugees and the region may also be plagued with its own human rights violations. b) It is realistic to take into account language, family ties, culture and community links when a refugee is determining where she may seek asylum. Just because a State is a party to the 1951 Refugee Convention does not ensure that an asylum seeker will be granted what she is entitled to.

This idea was affirmed in the US Supreme Court which held that a refugee need not seek asylum in the first place where he arrives... [w]e do not find it inconsistent with a claimed fear of persecution that a refugee after he flees his homeland, goes to a country where he believes his opportunities will be best.4 ExCom Conclusion No. 15 (XXX) (1979) iii. The intentions of the asylum seeker as regards the country in which he wishes to request asylum should as far as a possible, be taken into account.

Arout Melkonian v. Attorney General, 2003 US App Lexis 3825 (USCA9, Mar. 4, 2003).

iv.

Regard should be had to the concept that asylum should not be refused solely on the ground that it could be sought from another State. Where, however, it appears that a person, before requesting asylum, already has a connection or close links with another State, he may if it appears fair and reasonable be called upon first to request asylum from that State

SAFE THIRD COUNTRY RULE: AUSTRALIA In Australia, the law is even more aggressive in that a refugee claim will not be assessed if the person seeking asylum can be sent to another state in which she will be admitted.5 The only requirements are that there is no real chance of being persecuted for a Convention reason6 and where there is no real chance of refoulement to the country of origin.7 It must be noted, that unlike the safe third country rules implemented by the EU, Australia does not require that the asylum seeker be granted access to a refugee status determination procedure in the destination country.8 Even more disturbingly, the destination country is not restricted to a country which the asylum seeker passed through while traveling to Australia.9

REGIONAL REFUGEE CONVENTIONS & DECLARATIONS: OAU CONVENTION - AFRICA In response to the increasing number of refugees in the region of Africa and in an attempt to find ways and means of alleviating their misery and suffering as well as providing them with a better life and future,10 the Convention governing the Specific Aspects of Refugee Problems in Africa (OAU) was established. The OAU is a binding agreement that contains supplementary and broader rights for refugees in that region than those of the 1951 Convention. It requires participating states of the African Union to use their best endeavors consistent with their respective legislation to receive refugees and to secure [their] settlement.11 Furthermore, the duty of non-refoulement is explicitly established in that no personal shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened.12 Moreover, the OAU states for reasons of security, countries of asylum shall, as far as possible, settle refugees at a reasonable distance from the frontier of their country of origin, thus recognizing the inherent dangers associated with resettling those fleeing from persecution to border countries and providing for physical security in border areas. Pursuant to the 1951 Convention, individuals will only receive protection if they are in trouble because of who they are and what they believe. It must be discriminatory related harm. This requirement existed against a backdrop of states wanting to limit the class of persons eligible for refugee status. In the OAU, this nexus requirement is actually non-existent, making it the
5 6

James C. Hathaway, (RRIL), oo.cit., p.295. V872/00A v Minister for Immigration and Multicultural Affairs, [2002] FCAFC 185 (Aus. FFC, June 18, 2002). 7 Ibid. 8 James C. Hathaway, (RRIL), oo.cit., p.295-296. 9 Ibid, p.296. 10 Convention governing the Specific Aspects of Refugee Problems in Africa, 10011 UNTS 14691, done Sept. 10, 1969, entered into force June 20, 1974 (OAU Convention), Preamble at 1. 11 Ibid, Art.2(1). 12 Ibid, Art. 2(3).

most generous instrument related to refugee law. Hence, persons fleeing war and internal conflict are considered refugees and do not have to prove status if 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.13 The irony is that Africa possesses the burden of bearing 80% of refugees and it is the poorest region in the world with the most liberal protective provisions. CARTAGENA DECLARATION (OAS) THE AMERICAS While, the Cartagena Declaration of 198414 is not a binding agreement like the OAU, it was recommended to states in the Americas by the General Assembly of the Organization of American States.15 The OAS reiterates the importance and meaning of the principle of nonrefoulement,16 and states that refugee camps and settlements located in frontier areas should be set up inland at a reasonable distance from the frontier with a view to improving the protection afforded to refugees, safeguarding their rights and implementing projects aimed at their self-sufficiency and integration into the host society.17 Furthermore, the OAS acknowledges the problem raised by military attacks on refugee camps and settlements,18 and make a commitment to the integration, employment19 and family reunification20 of refugees. Thus, the OAS is a comprehensive and clear declaration of the regions attempt to manifest the most beneficial protection for refugees. Most importantly, the OAS suggests that refugees fleeing broadly based war and disaster should be given refugee status, however this is not a legal obligation: In view of the experience gained from massive flows of refugees in the Central American Area, it is necessary to enlarging the concept of a refugee . . . [to include] persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.21 Hence, like the OAU. persons fleeing war and internal conflict are considered refugees and do not have to prove status. This Declaration would have far more reaching consequences if it were to become official, binding law.

13 14 15

Ibid, Art. 1(2). OAS Doc. OEA/Ser.L/II.66, Doc.10, Rev.1, at 190-193 (OAS Cartegena Declaration). James C. Hathaway, RRIL, op.cit., p.119. 16 OAS Doc. OEA/Ser.L/II.66, Doc.10, Rev.1, at 190-193 (OAS Cartegena Declaration). At Art. III(5). 17 Ibid, Art. III(6). 18 Ibid, at Art. III(7). 19 Ibid Art, III(11). 20 Ibid, Art III(13). 21 Ibid, Art. III(3).

3. GENUINE RISK - WELL FOUNDED FEAR.

UNHCR Handbook:22 To the element of fear a state of mind and a subjective condition is added the qualification of well-founded. This implies that it is not only the frame of mind of the person that determines his refugee status, but that the frame of mind must be supported by an objective situation. The term well founded fear therefore contains a subjective and an objective element. 2 essential elements to satisfy before u can show a well founded fear: 1) Applicant has internalized subjective fear or trepidation 2) Subjective fear has a concrete foundation it is not simply in her mind and is supported by an objective situation. If either of both elements are not established then there is no well founded fear. Objective Risk: Actual analysis focuses on objective risk in the future. Asking a person/judge to make an assessment usually across linguistic and cultural and experiential barriers, not based on what did happen, but what might happen, thousands of miles away based on highly imperfect evidence. Hardest form of legal adjudication in the world. Burden of Proof: UNHCR Handbook: "While the burden of proof in principle rests on the applicant, the duty to ascertain & evaluate all the relevant facts is shared between the applicant & the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of his application" I.e.; Individuals may be in detention & may not have access to information. There are often language and cultural barriers. Credibility: Justice Kirby from the High Court of Australia stated that many factors may explain why applicants present with the appearance of poor credibility. These include mistrust of authority; deflects in perception and memory; cultural differences; effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with government officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear . . .. The process is one of arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.24
22

23

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (UNHCR Handbook) HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979, para. 38. 23 Ibid, para. 196. 24 MIMA v. SLGB 2004 HCA 32 (Aus HC, June 17, 2004, per Kirby J)

Therefore, adverse credibility findings must be based on specific, cogent reasons that bear a legitimate nexus to the finding . . . an Immigration Judge must provide a specific cogent reason for rejecting and this reason must bear a legitimate nexus to that rejection."25 It must be noted that any fabrication or inconsistency on any point is used to cut down or undermine the subjective fear of the asylee.

Past persecution If there has not been a major change of circumstance in the country of origin: EU Minimum Standards (2004): the fact that an individual has already been subject to persecutionor direct threats of such persecutionor to direct threats of such persecutionis a serious indication of the applicant's well-founded fear of persecutionunless there are good reason to consider that such persecution or serious harm will not be repeated"26

Future Persecution The definition of a refugeelooks to the future. The past in only relevant in as much as it is one of the evidential factors which is often, but not always relevant to consider."27 Moreover, "the Convention looks to the future. What has occurred in the past does not determine whether a person in a refugeein determining whether that person has a wellfounded fear that he or she will be persecuted if returned to the country of nationality, the past is a guide- a very important guide- as to what may happen. But that is all."28

25 26

Zahedi v. INS, 222 F.3d 1157, 1168 (9th Cir. 2000) EU Council Directive On Minimum Standards For The Qualification And Status Of Third Country Nationals Or Stateless, 2004/83/EC of 29 April 2004 at Art. 3(4). persons as refugees or as persons who otherwise need international protection and the content of the protection granted Art. 3(4). 27 Katrinak v Secretary of State for the Home Department [2001] EWCA Civ 832 28 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487

4. PERSECUTION:
There is no explicit definition of what encompasses persecution. However, the drafters of the 1951 Refugee Convention didnt want to sign a blank cheque and enfranchise any person whose human rights may be impacted negatively in their country of origin. Only those individuals that couldnt find a remedy to the harm sustained in their country of origin will be granted surrogate protection. Thus, if and when the government of the home country could resolve the persecutory situation, that individual would not be eligible for refugee status. Hathaway suggests that persecution is most appropriately defined as the sustained or systematic failure of state protection in relation to the core entitlements which have been recognized by the international community.29 UNHCR Handbook:30 "There is no universally accepted definition of 'persecution,' and various attempts to formulate such a definition have met with little success. From article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights - for the same reasons would also constitute persecution." Justice McHugh from the High Court of Australia noted that persecution for a convention reason may take an infinite variety of forms from the death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group.31

BEING PERSECUTED: 2 essential elements: 1. Serious Harm Grave, unrelenting and without a remedy. 2. Failure of State Protection Sustained or systemic human rights abuse that shows a failure of state protection. Risk of single human rights violation is not persecution. Issue: what if death or high end risk of torture?

Must always show nexus to persecution on account of one of the five enumerated grounds: Persecution encompasses more than threats to life and freedom: non-life threatening violence and physical abuse also fall within this category. Conduct must rise above mere harassment.
29 30

James C. Hathaway, The Law of Refugee Status, (LRS) Butterworths, Ontario: 1991, p.112. UNHCR Handbook, op.cit., para. 51. 31 Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225 at 258, per McHugh J.

Types of actions that might cross the line from harassment to persecution include: detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscations of property, surveillance, beatings and torture

INTERNATIONAL LAW AS A SOURCE OF REFUGEE RIGHTS: What forms of harm are reasonable to look at and generates an international duty to provide surrogate protection? Where to find types of persecution that are unacceptable: To give a common international content to a word that has no clear or literal meaning must give being persecuted some content. 1. 2. Look at international treaties to find what harms are bad enough: UNHCR supports the use of international treaties. Judges feel comfortable with it because they dont have to invent it and recognize that they are not overreaching but using standards that governments themselves have defined. UNHCR under art 35 of 1951 Refugee Convention has a duty to supervise refugee law.

3.

INTERNATIONAL TREATIES: a) International Covenant on Economic and Social Rights, (ICCPR) b) c) d) e) f) International Covenant on Economic, Social and Cultural Rights, (ICESCR) Convention on the Elimination of Discrimination Against Women, (CEDAW) Convention on the Rights of the Child, (CRC) Convention Against Torture, (CAT) European Convention on Human Rights, (ECHR)

Level 1: ICCPR + Non Derogable Ie; freedom from torture, cruel, inhuman or degrading treatment, freedom of conscience. A breach of first category rights always amounts to persecution. Level 2: ICCPR Ie; Other derogable civil and political liberties like right to liberty and security of person. The breach of second category rights amounts to persecution, unless derogation from the states obligation is strictly required by the circumstances. Ie; National security issue can usurp such rights. Level 3: ICESCR Ie; most socio-economic rights A breach of third category rights may amount to persecution in certain circumstances. Level 4: UDHR Ie; private property:

Fourth category rights may be outside the states duty of protection but may be able to be recognized indirectly ie; linked to religious property or to only way of sustaining oneself by making a living.

ICCPR & ICESR: Basic human rights doctrine is UDHR comprehensive statement of a vision of what human rights should be. But because the decision was to make it binding in two covenants/treaties means that no obligations under UDHR. ICCPR: expressly stated to be immediately binding obligations soon as state signs the treaty the state must domesticate it. ICESCR: expressly framed as rights of progressive implementation only breached if state does not make best efforts, over time to the maximum of its resources without discrimination to implement these rights. Hence it is easier from a refugee point of view to prove that a breach of the rights in the ICCPR amounts to persecution because the standard of achievement that is minimally acceptable is higher. Some of the rights in the ICCPR are absolute and others are derogable: Sometimes those seeking refuge become exposed to a risk of physical harm in the asylum country, particularly at borders. However, even though physical security is essential to the concept of refugee protection, the Convention is silent on this matter. Thus, the rights of physical security are currently established in a criss-cross of rules which have some bearing on the subject.32 Art. 4(1) of the ICCPR: In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin. Art. 4(3) any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

32

M. Otham-Chande, International Law and Armed Attacks in Refugee Cams, [1990] Nordic Journal of International Law 153, at 153 in James C. Hathaway, (RRIL), op.cit., p.449.

10

LEVEL 1 HUMAN RIGHTS OBLIGATIONS - NON-DEROGABLE RIGHTS: ICCPR

CONVENTION AGAINST TORTURE (CAT): Only applies to torture inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity; CAT has been defined as customary international law and therefore applies regardless if a State has signed and ratified the treaty.

Art.1. CAT: Definition of TORTURE: The term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Art.2: CAT: NO Derogation: 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture. Art. 3. CAT: Prohibition against Refoulment:
1. No State Party shall expel, return ("refouler") or extradite a person to another State

where there are substantial grounds for believing that he would be in danger of being subjected to torture. In Art. 4(2) the ICCPR states that: NO derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
33

These rights are non-derogable which indicates that a State can never justify its failure to protect such rights on the basis of an exceptional or emergency situation.33 These rights are immediately binding and there are no exceptions whatsoever.
Ibid, p.453.

11

INHERENT RIGHT TO LIFE: Art .6(1) states that every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. The Human Rights Committee refers to Article 6(1) as the supreme right . . . [which] should not be interpreted narrowly,34 while the ICJ declares it to be the irreducible core of human rights.35

FREEDOM FROM TORTURE, CRUEL, INHUMANE OR DEGRADING TREATMENT: Art. 7 states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment. Comparable to the guarantees in Art 6(1); Art 7 not only prohibits negative state conduct but requires governments to take affirmative steps to protect everyone under their authority from relevant risks.36 Actions are considered to be inhuman or cruel if they meet most, but not all, of the criteria for torture and the consequent harm must escalate to a level of sever pain or suffering.37

Gender Specific Forms of Persecution: Rape is recognized as an act of torture. But the nexus requirement must be satisfied.38 Forced sterilization and abortion is recognized as cruel, inhumane or degrading treatment.39 The practice of FGM [Female Genital Mutilation] has been internationally recognized as a violation of womens and females childrens rights,40 and is distinguished as a form of torture and cruel, inhumane and degrading treatment. States should condemn violence against women and should not invoke any custom, tradition, or religious consideration to avoid their obligations with respect to its elimination. Declaration on the Elimination of Violence Against Women, UNGA 1993. . FREEDOM FROM SLAVERY: Art. 8(1): No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited. Art. 8(2): No one shall be held in servitude. I.e.; Marriage entered into without full consent of the intending spouses may even amount to a form of sexual slavery. Includes child labor and human trafficking.

FREEDOM FROM IMPRISONMENT RE CONTRACTUAL OBLIGATION: Art. 11: No one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation.
34 35

Ibid, p.451. Ibid, p.450. 36 Ibid, p.453. 37 Ibid, p.454. 38 Abebe v Commonwealth of Australia (1999) 197 CLR 510. 39 Chan v. Canada (Minister of Employment and Immigration) 1 S.C.R. 725 & Cheung v. Canada (M.E.I.) (1993), 19 Imm.L.R.(2d) 81 (F.C.A.). 40 Abankwah v. Immigration and Naturalization Service, 185 F.3d 18: 1999 U.S. App. LEXIS 15545 9199, United States, Court of appeals for the 2nd Circuit). Also see Report of the Committee of the Elimination of all Forms of Discrimination Against Women, General Recommendation No. 14.

12

FREEDOM FROM GUILT OF CRIMINAL OFFENCE RE NO CRIME UNDER LAW: Art. 15(1): No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. (2): Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. LEGAL RECOGNITION: Art. 16: Everyone shall have the right to recognition everywhere as a person before the law.

FREEDOM OF RELIGION: Art. 18(1): Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. Art 18(2): No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. Art 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms belief and religion are to be broadly construed and are not limited to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. UNHCR, General Comment No 22 (1993) Includes as much the doing of the act as believing in it.

Limitation on religion: Art 18(3): Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. The Human Rights Committee in General Comment No.15 has affirmed that the benefit of Articles 6. 7 and 9 of the ICCPR may be directly invoked by non-citizens under the effective jurisdiction of a state party.41

LEVEL 2 HUMAN RIGHTS OBLIGATIONS - DEROGABLE RIGHTS: ICCPR

These human rights are immediately binding but are derogable. This indicates that the only legal exceptions to their observance are those in times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed. Such rights can only
41

James C. Hathaway, RRIL, op.cit., p.450

13

be restricted to the extent strictly necessary, and cannot be discriminatory in its application. These rights include most civil and political liberties. In practice the breach of a level two risk will always afford an individual refugee status as the criteria for the suspension or restriction of these rights in the case of a national emergency is extremely stringent; (i) It must be officially declared; and (ii) It must threaten the life of the nation; Therefore the suspension of restriction of such rights: Must be legally sanctioned Must be proclaimed. The State must inform the High Commissioner for Human Rights that such human rights have been suspended. These rights can only be suspended on a short term basis Must be an exceptional threat as opposed to routine discrimination Such a suspension of these civil and political liberties must be proportional to the risk. RIGHT TO LIBERTY & SECURITY OF PERSON Art 9(1): Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. It connotes a duty on the State to take reasonable and appropriate measures to guard against risks to the physical security of refugees.42 Subsequent paragraphs of Art. 9 defines how liberty should be interpreted in light of detained persons.

RIGHT TO DIGNITY OF PERSON: Art. 10: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

FREEDOM OF MOVEMENT: Art. 12(1): Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. (2): Everyone shall be free to leave any country, including his own. (3): The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. (4): No one shall be arbitrarily deprived of the right to enter his own country.

42

Ibid, p.459.

14

RIGHT TO FAIR TRIAL: Art. 14: All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

FREEDOM FROM UNLAWFUL INTERFERENCE: Art. 17(1): No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2): Everyone has the right to the protection of the law against such interference or attacks.

FREEDOM OF EXPRESSION: Art. 19(1): Everyone shall have the right to hold opinions without interference. (2): Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. RIGHT OF PEACEFUL ASSEMBLY: Art 21: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. FREEDOM OF ASSOCIATION: Art 22(1): Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. (2): No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right. RIGHT TO MARRIAGE & FAMILY: Art. 23(1): The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. (2) The right of men and women of marriageable age to marry and to found a family shall be recognized.

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(3) No marriage shall be entered into without the free and full consent of the intending spouses. It must be noted that forcing an individual into marriage may amount to slavery (sexual slavery) and therefore becomes a non-derogable right that a government must ensure protection from.

RIGHT TO VOTE , PARTAKE IN GOVERNMENT, ACCESS TO SERVICES: Art. 25: Every citizen shall have the right and the opportunity: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

FREEDOM FROM DISCRIMINATION: Art. 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

MINORITY RIGHTS: Art. 27: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

LEVEL 3 HUMAN RIGHTS: ICESCR

I.e.; most socio-economic rights These rights are currently evolving and being interpreted by different judicial systems throughout the world including the US Supreme Court, the HOL, the HCA, the HC of NZ and the ECHR. In reality, there are many distressed migrants who do not fall within the refugee definition as destitution and poverty are not a basis for applying or being granted asylum. To return such persons to their country of origin will involve returning them to conditions of extreme poverty and hardship. But it has to be recognized that such persons are not refugees as their treatment in their country of origin does not amount to persecution as defined in the 1951 Refugee Convention. The English Court of Appeal has stated that the breach of third category rights cannot be said as a matter of law to amount to persecution just as it cannot be said as a matter of law

16

that breach of these rights could never amount to persecution. It is a matter of fact and degree and judgment in the individual case.43 Pursuant to Art 2 of the ICESCR: (1) Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (2) The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (3) Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals. Therefore, while the standard of protection is less absolute than that which applies the first two categories of rights, a state is in breach of its basic obligations where it either ignores these interests notwithstanding the fiscal ability to respond, or where it excludes a minority of its population from their enjoyment.44 EQUAL RIGHTS OF MEN & WOMEN: Art. 3: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.

RIGHT TO WORK: Art. 6: The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

RIGHT TO JUST EMPLOYMENT: Art. 7: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
43

Horvath v Secretary of State for the Home Department, 144 SJLB 34, (1999, United Kingdom, English Court of Appeal Civil Division) per Ward J. 44 Ibid, Stuart-Smith LJ.

17

(b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays

RIGHT TO FORM TRADE UNIONS: Art. 8(a): The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; RIGHT OF FAMILY & MARRIAGE: Art. 10: The States Parties to the present Covenant recognize that: (1) The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses. RIGHT TO FOOD, CLOTHING, HOUSING: Art. 11(1): The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. RIGHT TO PHYSICAL & MENTAL HEALTH: Art. 12: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

RIGHT TO EDUCATION: Art. 13(1): The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. (2) The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all;

18

(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (3) The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

RIGHT TO CULTURAL EXPRESSION: Art. 15(1): The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life;

LEVEL 4 HUMAN RIGHTS: UNIVERSAL DECLARATION OF HUMAN RIGHTS

RIGHT TO PRIVATE PROPERTY: Art 17(1): Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property. UNEMPLOYMENT PROTECTION: Art 23(1): Everyone has the right . . . to protection against unemployment. While the infringement upon this property right does not amount to the level of persecution perceived by the 1951 Refugee Convention, such a right may be able to be recognized indirectly i.e.; link to religious property or to only way of sustaining oneself by making a living. If the only risk the individual will face is the risk of losing private property it is not persecutory as it requires a certain amount of gravity. Nevertheless, such harm can have a cumulative effect. In Kamini and Naidu v INS (1999), the confiscated property were religious items and thus could be linked to a level one right in relation to freedom of conscious and practice of religion.

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SUR-PLACE DOCTRINE:
A well founded fear of being persecution may be based on events which have taken place since the applicant left the country of origin. EU Minimum Standards Directive (2004). Thus, a person can become a refuge by virtue of doing something while abroad that engenders a risk. For example, in the case of Re HB an Iranian national claimed upon arrival that he wanted a better life for his family and himself. Later he conjured up an argument that he had a copy of Satanic Versus which amounts to an arguable case for a well founded fear of persecution by the Iranian government. Then he went to the press about his fear.45 This situation transpires usually at the last minute when the refugee is aware that he will be deported. You cannot make yourself into a refugee if the state is not paranoid enough to persecute you for such actions. Therefore, it takes two to tango.

Grahl Madison suggests 3 ways in which the sur-place doctrine can be invoked: 1. Actions taken out of genuine political motives 2. Actions committed unwittingly or willingly (ie result of provocation) but which nevertheless may lead to persecution for reasons of (alleged or implied) political opinion. 3. Actions undertaken for the sole purpose of creating a pretext for invoking fear of persecution. Didnt want to create a space whereby people could manipulate the system and thus undermine it for genuine refugees. But also wanted to ensure that those that possessed a well founded fear of persecution were sufficiently protected.

45

Re HB, Refugee Appeal No. 2254/94 (1994, New Zealand, Refugee Status Appeals Authority).

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FAILURE OF STATE PROTECTION:

Hathaway asserts that the intention of the drafters was not to protect persons against any and all forms of even serious harm. but was rather to restrict refugee recognition to situations in which there was a risk of a type of injury that would be inconsistent with the basic duty of protection owed by a state to its own population. . . the drafters were not concerned to respond to certain forms of harm per se, but were rather motivated to intervene only where the maltreatment anticipated was demonstrative of a breakdown of national protection.46 One of the two notions of being persecuted includes: 1. Serious harm OR 2. Failure of state protection. An individual must show that she is unable, or owing to such fear, is unwilling, to avail herself of protection of your country. The individual must have exhausted all her domestic remedies. Sufficiency Test: There must be in place a system of domestic` protection and machinery for the detection, prosecution and punishment of [human rights abuses] . . .More importantly there must be an ability and a readiness to offer to operate that machinery. But precisely where the line is drawn beyond that generality is necessary a matter of the circs of each particular case.47 The higher up the chain of connection to the apparatus of the state the higher the expectation to meet the sufficiency test: Failure of state protection: 1. official of the state 2. state sponsorship 3. state toleration 4. state inability to counteract government overwhelmed no government. A state must live up to its most basic function of protecting citizens from aggression. An individual should have the right to get alternative protection if the state cannot or will not protect her/him. There is no difference between the state that actively persecutes citizens vs a state unable to protect a citizen from harm. 1. STATE SPONSORSHIP OF HARM The government is not itself perpetrating the persecution but is encouraging a non state actor to perpetuate the harm. The State is the motivating force behind the non state actor.

Forced abortion and sterilzation. Chan v Canada [1995] 48

46 47

James C. Hathaway, The Law of Refugee Status, op.cit., p.103-104. Ibid. 48 Chan v. Canada (Minister of Employment and Immigration) [1995], 1 S.C.R. 725

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Issue: While local officials are rarely punished for abuses committed during the sterilzation process, economic sanctions are levied against officials when birth rates are too high. It is evident, then, that the Chinese government, if nothing else, creates a climate in which incentives for mistreatment are ripe. Held: Hence, the subcontracting out of abuse to ensure the application of a policy amounts to a failure of state protection.

2.

STATE TOLERATION

Singh v INS [1996] 49 Issue: The police would not protect Singh, an Indo-Fijian, from persistent assaults and death threats, by ethnic Fijians, because they possessed implicated discriminatory attitudes themselves: Held: The government [Fijian] has encouraged and condoned discrimination, harassment and violence by ethnic Fijians against Indo-Fijians. Gleeson CJ of the High Court of Australia in Khawar v MIMA (2002) stated that if there is a persecutor of an individual or a group of people who is a "non-state agent of persecution", then the failure of the state to intervene to protect the victim may be relevant to whether the victim's fear of continuing persecution is well-founded. That would be so whether the failure resulted from a state policy of tolerance or condonation of the persecution, or whether it resulted from inability to do anything about it. But that does not exhaust the possible relevance of state inaction.50

3.

STATE INABILITY TO COUNTERACT a) Government overwhelmed b) No government

Ie; mafia is stronger than government. In Re H (1997)51 Facts: Persecution suffered as a member of a particular social group. H/w it is inter-clan violence. There is no government in Somalia. Can there be a failure of state of protection when there is no state to fail? Held: Persecution may occur in the rare instance illustrated by Somalia, where there is no national government.

49 50

Singh v. I.N.S Decision No. 95-70008 (1996, United States, Court of Appeals for the 9th Circuit). Khawar v. Minister for Immigration and Multicultural Affairs, [2002] HCA 12 (2002 High Court of Australia). 51 In Re H, File No. A70-684-022 (1997, United States, Board of Immigration Appeals).

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INTERNAL FLIGHT OR RELOCATION ALTERNATIVE:

Refer to Section 12: Internally Displaced People: Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognised State border.52 UNHCR focuses on well founded fear: If have an individual has an internal flight alternative then she does not have a well founded fear. Primary burden of proof is on the applicant. Therefore the applicant must present evidence that is often unavailable and impossible to provide. 1. ACCESSIBILITY a) Practical Can you get from here to there? b) Safe Can you get there safely? c) Legal Have to be able to go legally where it is said your own government will look after you. 2. ANTIDOTE: PROTECTION MUST RESULT IN LESS THAN A REAL CHANCE OR SERIOUS POSSIBILITY OF ORIGINAL CHANCE.

The risk has to be less than the well founded fear of the original harm in the place that the individual will be sent now. 3. NO NEW RISK OF PERSECUTION, OR OF HARMS THAT COULD RESULT IN REFOULMENT BACK TO PLACE OF ORIGIN:

But for having a risk of my religion from A I would never have been told to go to region B where there is another harm. Convention harm in A linked to convention harm linked in B Risk of being tortured in A and in B face risk of harm as a result of civil war that all people in this region do, but you are only sent there as a result of the convention persecution faced in A. Not a refugee if face repercussions of civil war. Indirect refoulement: The internal flight alternative will not be available if in fact life is such that an individual would de-facto be forced back to her original region. This amounts to indirect refoulement. Ie; extremely religious people, family connections. Courts have said that sending an individual to a region knowing that she cannot practice her religion or cannot have family there, and that is central in her life, then it will be obvious that she will return to her original region.

52

United Nations, Guiding Principles on Internal Displacement, (GPID) OCHA/IDP/2004/01, Introduction, para. 2.

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5. NEXUS TO CIVIL OR POLITICAL STATUS

The reason why a nexus to civil or political status exists is that the drafters of the 1951 refugee Convention did not want to write a blank check for protection, they wanted to limit the class of who can apply for surrogate protection. The refugee regime is not open to everyone whose human rights are at risk. Harm must be motivated by what the person is or what a person believes. BUT FOR TEST: Being gay or a Jew or communist played a critical part in the causal chain; But for that, there would not be a well founded fear of being persecuted. Michigan Guidelines on Nexus (2001): In view of the unique objects and purposes of refugee status determination, and taking account of the practical challenges of refugee status determination, the Convention ground need not be shown to be the sole, or even the dominant, cause of the risk of being persecuted. It need only be a contributing factor to the risk of being persecuted. If, however, the Convention ground is remote to the point of irrelevance, refugee status need not be recognized. Dont need to quantify it. But just have to say that being gay had something to do with the reason why an individual was being persecuted. This is the best approach but is not recognized by all governments and courts. AUSTRALIA: Australia legislates in its Migration Act, for example, that being gay or a Jew has to be the main reason as to why the individual is being persecuted. Chen Shi Hai v MIMA (2000), Facts: The appellant was a young child of Chinese descent born to unmarried parents in Australia. He was the parents third child. It was claimed that he would face a real chance of persecution in China as a member of a social group known as black children, being children born outside approved guidelines in China. Held: It was directed that where discriminatory conduct is motivated by "enmity" or "malignity" towards people of a particular race, religion, nationality, political opinion or people of a particular social group, that will usually facilitate its identification as persecution for a Convention reason. But that does not mean that, in the absence of "enmity" or "malignity", that conduct does not amount to persecution for a Convention reason. It is enough that the reason for the persecution is found in one or more of the five attributes listed in the Convention. 53 Hence, motivation connecting persecution to the relevant tribute is sufficient. This dicta has been followed by other courts and governments around the world. Entire Government Structure That Disenfranchises A Certain Group Of People. In the English Court of Appeal in Horvath v SSHD (1999) two fundamental principles were established:

53

Chen Shi Hai v. The Minister for Immigration and Multicultural Affairs, [2000] HCA 19; 201 CLR 293; 170 ALR 553; 74 ALJR 775 (13 April 2000)

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1.

2.

The necessary discriminatory element may be supplied either by the non state agents who perpetrate the maltreatment or it may be supplied by the state which fails to protect the victims.54 The discriminatory practice of the state is at least as important as the discriminatory practice of the attackers. This seems entirely right. If there are thugs about perpetrating serious acts of maltreatment against the population as a whole, but the state offers protection only to some of its citizens, and not to others, in my view those citizens are being persecuted in just the sort of way that merits the surrogate protection of other states under the Convention.

Motivation of Non-State Actors & The State: Gleeson CJ of the High Court of Australia in Khawar v MIMA (2002) declared that where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.55 Hence, if the infliction of the harm is the denial of the protection by the government, then the States attitude is just as relevant as the attitude of the persecutor. If this is realized then asylum law is still relevant. If Dont Know Why Harm Was Intended Or Who Intended It Then a Claim Will Not Be Recognized: Assume that during a time of civil unrest, women are particularly vulnerable to attack by marauding men, because the attacks are sexually motivated or because they are thought weaker and less able to defend themselves. The government is unable to protect them, not because of any discrimination but simply because its writ does not run in that part of the country. It is unable to protect men either. It may be true to say women would not fear attack but for the fact that they were women. But I do not think that they would be regarded as subject to persecution within the meaning of the convention. The necessary element of discrimination is lacking.56 Ie; If being a Jew leads an individual to be vulnerable whether or not someone wanted their jewishness to leave them vulnerable, then they are still being persecuted, The questions thus becomes what explains why an individual is in the mess she is in?

54

Horvath v Secretary of State for the Home Department, 144 SJLB 34 (1999, United Kingdom, English Court of Appeal Civil Division). 55 Khawar v. Minister for Immigration and Multicultural Affairs, [2002] HCA 12 (2002, High Court of Australia). 56 R v Immigration Appeal Tribunal and another, ex parte Shah; Islam and others v Secretary of State for the Home Department, [1999] 2 All ER 545 (1999, United Kingdom, House of Lords).

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FIVE ENUMERATED GROUNDS FOR PROTECTION:

1951 Refugee Convention Art 1(A)(2): The term refugee shall apply to any person who:

[As a result of events occurring before January 1951] owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership to 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.

RACE:
International Convention on the Elimination of all Forms of Racial Discrimination. Art. 1: Discrimination between human beings on the ground of race, colour or ethnic origin is an offence to human dignity and shall be condemned as a denial of the principles of the Charter of the United Nations, as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights, as an obstacle to friendly and peaceful relations among nations and as a fact capable of disturbing peace and security among peoples. EU Minimum Standards Directive (2004). Art. 10(1)(a): The concept of race shall in particular include considerations of colour, descent, or membership of a particular ethnic group. Legally binding standard in EU, enforceable by ECJ. Art 10(2): When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution.

NATIONALITY
EU Minimum Standards Directive (2004) Art 10(1)(c): The concept of nationality shall not be confined to citizenship or the lack thereof, but shall in particular include a membership of a group determined by its cultural, ethnic or linguistic identity, common geographical or political origins or its relationship with the population of another state. Legally binding standard in EU, enforceable by ECJ. Art 10(2): When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution.

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Circumstances that may lead to a claim of persecution based on nationality: 1. Resident internationally unprotected persons 2. Persons denied full citizenship in their own state; Ie; Palestinians in Israel Victims of ascribed nationality; I.e: Apartheid tried to create artificial nationality to disenfranchise black people nationally, but neither the EU nor the US recognized such status . Residents of previously sovereign areas; Ie; A Tibetan in China or a former Latvian in Estonia. Linguistic and culturally defined collectiveness. I.e; Tutsis in Rwanda

3.

4.

5.

RELIGION
ICCPR - Freedom of Religion: Art. 18(1): Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. Art 18(2): No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. UNHCR General Comment No 22 (1993) Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms belief and religion are to be broadly construed and are not limited to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions. The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. Includes as much the doing of the act as believing in it. LIMITATION ON RELIGION - ICCPR: Art 18(3): Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

POLITICAL OPINION
It was explicitly drafted as political opinion as opposed to political activity. Here you have the right to believe and to act on your beliefs. If you define it as political activity it dictates that you must be politically active. If simply holding the opinion is enough to generate the risk

27

then you are eligible for protection. Goodwin Gill suggests that political opinion encompasses any opinion on any manner by which the machinery of state, government and policy may be engaged.57 This broad definition of political opinion was adopted in Canada v Ward (1993).58 FREEDOM OF EXPRESSION - ICCPR: Art. 19(1): Everyone shall have the right to hold opinions without interference. (2): Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. Political Opinion can be Implied and/or Imputed as well as actual: In Storozhenko v SSHD (2001):59 i) ii) iii) The phrase "political opinion" may embrace any opinion on any matter in which the machinery of state, government and policy may be engaged; The political opinion at issue need not have been expressed outright but may have been imputed to the claimant; In many cases an individual is not even given the opportunity to express her beliefs, but these can be perceived by her actions. If the claimant fears that he may be persecuted for an imputed political opinion, he may have the basis for a successful claim for asylum even if he does not in fact hold the opinions imputed to him. Thus, the political opinion assigned to an individual and for which she fears persecution, does not have to mirror the individuals true beliefs. The circumstances should be examined in light of the persecutors perspective, given that this is the perspective that incites the persecution.

MEMBERSHIP TO A PARTICULAR SOCIAL GROUP (MPSG):

MPSG is supposed to include persecution for reasons outside of race, religion, politics and nationality. However, there was nothing in the drafting history which points to what MPSG encompasses. Nevertheless. the group has to have something more in common that just being persecuted. In terms of defining MPSG by reference to the persecution, there must be a characteristic or attribute of the group that exists independently of the persecution. Matter of Acosta (1985): 60 Applying the doctrine of Ejusdem Generis we interpret the phrase "persecution on account of membership in a particular social group" to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic.
57 58

Guy S. Goodwin-Gill, op.cit., p.49. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 59 Ibid. 60 Matter of Acosta, 19 Immigration & Nationality Decisions. 211 (1985) (Unites States, BIA).

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The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.

TEST: Ward v Canada (1993): Groups defined by an innate or unchangeable characteristic Groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; Dont have to physically come together can be in status only. Groups associated by a former voluntary status, unalterable due to its historic permanence.61

a) b) c)

The HOL, Canada and NZ have adopted this test. Although circuit courts in the US have different opinions it seems they have embraced it as well. Social Perception Test adopted in Australia: The High Court of Australia in Applicant A v MIMA held that to determine that a MPSG exists, the putative group must be shown to have the following features: a) First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals. b) Second, the characteristic must set the group apart, as a social group, from the rest of community. c) Third, there must be recognition within the society that the collection of individuals is a group set apart from the rest f the community.62 Open ended approach. Allows for a greater liberal approach. EU Minimum Standards Directive (2004). Art. 10(1)(d): A group shall be considered to form a PSG where in particular: Members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and That group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;

61 62

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 Applicant A v Minister for Immigration and Ethnic Affairs, 142 ALR 331 (1997, Australia, High Court).

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Art 10(2): When assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution. UNHCR MPSG Guidelines (2002) Applying this approach, courts and administrative bodies in a number of jurisdictions have concluded that women, homosexuals, and families, for example, can constitute a particular social group within the meaning of Article 1A(2). Paragraph 6: Human rights norms may help to identify characteristics deemed so fundamental to human dignity that one ought not to be compelled to forego them. A decision-maker adopting this approach would examine whether the asserted group is defined: 1) By an innate, unchangeable characteristic, 2) By a past temporary or voluntary status that is unchangeable because of its historical permanence, or 3) By a characteristic or association that is so fundamental to human dignity that group members should not be compelled to forsake it.

Paragraph 7: The second approach examines whether or not a group shares a common characteristic which makes them a cognizable group or sets them apart from society at large. This has been referred to as the social perception approach. Again, women, families and homosexuals have been recognized under this analysis as particular social groups, depending on the circumstances of the society in which they exist. Paragraph 8: In civil law jurisdictions, [Ie; France, Spain, Germany, Netherlands, Denmark, Sweden] the particular social group ground is generally less well developed. Most decision-makers place more emphasis on whether or not a risk of persecution exists than on the standard for defining a particular social group. Nonetheless, both the protected characteristics and the social perception approaches have received mention. Paragraph 9: Analyses under the two approaches may frequently converge. This is so because groups whose members are targeted based on a common immutable or fundamental characteristic are also often perceived as a social group in their societies. But at times the approaches may reach different results. For example, the social perception standard might recognize as social groups associations based on a characteristic that is neither immutable nor fundamental to human dignitysuch as, perhaps, occupation or social class. Paragraph 10: Given the varying approaches, and the protection gaps which can result, UNHCR believes that the two approaches ought to be reconciled. Paragraph 11:

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A particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of ones human rights. International Discrimination Law - ICCPR: Art. 2(1): Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Art. 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

GENDER AS A PARTICUALR SOCIAL GROUP:

There is no express reference to gender in Art. 1(A)(2). Most of the senior courts accept that gender is a social group. The adoption of a timid advocacy approach by UNHCR 20 years ago meant that the MPSG had to be re-litigated every time as the definition was so inconsistent that it could not be transferred from one case to the next. Thus gender has evolved very slowly under this ground. In Ward v Canada [1993], groups defined by innate or unchangeable characteristics was said to embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation.63 Gender Specific Forms of Persecution: Declaration on the Elimination of all Forms of Violence Against Women: Art. 2: Violence against women shall be understood to encompass, but not be limited to, the following: a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

63

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 .

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c)

Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.

UNHCR ExCom Conclusion 39 (XXXVI): States in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who face harsh or inhumane treatment due to their having transgressed the social mores of the society in which they live may be considered as a particular social group within the meaning of Art. 1(A)(2) of the 1951 UN Refugee Convention. Declaration on the Elimination of Violence Against Women UNGA 1993. States should condemn violence against women and should not invoke any custom, tradition, or religious consideration to avoid their obligations with respect to its elimination. Forced Sterilization: The coercive family planning cases from China punish people for the exercise of their fundamental human rights; such as the right to be free from egregious bodily interference and the right to determine ones family. This harm is connected to the second category of Ward which encompasses characteristics fundamental to human dignity. Cheung v Canada (1993) 64 Facts: Ms Cheung had given birth to a baby boy and following this birth she used birth control in compliance with Chinas one child policy. There were complications and over the course of the next two years the applicant became pregnant and had an abortion 3 times. After giving birth to her second child, the Family Planning Bureau came to her house and took her away to be sterilized. However because she was suffering from infection the doctor determined that he would be unable to proceed with the operation fro six months. After hiding out with her in-laws and family for a few years she then fled to Canada. Held: Women in China who have more than one child and are faced with forced sterilization constitute a social group within the meaning of the Refugee Convention. A well founded fear of forced sterilization under Chinas one child policy constitutes a well founded fear of persecution for reasons of membership to a particular social group. The Chinese practice of forcing women to undergo sterilization was such an extreme violation of their basic human rights that it amounts to persecution.

Female Genital Mutilation (FGM): Matter of Kasinga (1996) 65 Issue: FGM was identified as involving the cutting and removal of all or some of a girl or a woman's external genitalia. Often performed under unsanitary conditions with rudimentary instruments, the procedure is "extremely painful" and "permanently disfigures the female genitalia . . . exposing the girl or woman to the risk of serious, potentially life-threatening complications."

64 65

Cheung v. Canada (M.E.I.) (1993), 19 Imm.L.R.(2d) 81 (F.C.A.). In Re Kasinga, US Board of Immigration Appeals (BIA), Interim Decision No. 3278, 1996. [1996] I. & N. Decisions 357.

32

It "can result in permanent loss of genital sensation and can adversely affect sexual and erotic functions."

Held: The practice of female genital mutilation, which results in permanent disfiguration and poses a risk of serious, potentially life-threatening complications, can be the basis for a claim of persecution. The MPSG was defined as young women who are members of the Tchamba-Kunsuntu Tribe of northern Togo who have not been subjected to female genital mutilation, as practiced by that tribe, and who oppose the practice.."

SEXUAL ORIENTATION
Homosexual men, lesbian women and bisexual women and men comprise a social group defined by a fundamental, immutable characteristic: RE GL (1998) 66 Facts: The appellant claims to be in fear of persecution in Iran due to his clandestine activities in support of the banned Tudeh Party and because he is a homosexual. Issue: Certain crimes in the Penal Code such as adultery, sodomy and malicious accusation are regarded as crimes against God (Hodoud) and therefore liable to divine retribution, and carry a mandatory death sentence Held: Sexual orientation is a characteristic which is either innate or unchangeable or so fundamental to identity or to human dignity that the individual should not be forced to foresake or change the characteristic. Sexual orientation can, therefore, in an appropriate fact situation, be accepted as a basis for finding a social group for the purposes of the Refugee Convention.

FAMILY
Recognition in international law: Art. 23(1): The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. The question then becomes whether or not a family can be deemed a social group for the purposes of the 1951 Refugee Convention: In some cultures, including Latin America, certain African nations and some others for example, it is quite likely that an individual will be assumed to be a supporter of specific social, religious, or political ideas merely because a father, uncle or other prominent family member is a known advocate of those ideas. 67 Moreover, the concept of family is culturally relative and may extend beyond nuclear and blood relationships.68 The family also has the advantage of being limited: it is usually small, readily identifiable and terminable with difficulty.69

66 67

Refugee Appeal No. 1312/93 Re. GJ (30 August 1995); [1998] INLR 387, per R.P.G Haines. F. Krenz, The Refugee as a Subject of International Law, (1966), 15 I.C.L.Q 90, at 3, per B. Howard 68 James C. Hathaway, LRS, op.cit., p.166.

33

Is this a social group embraced by the courts? Aguirre-Cervantes v INS (2001)70 Facts: 19 year old Mexican girl, her siblings (male and female) and her mother were at risk from violence perpetrated by their father and husband respectively. Only thing that united them was that they were a family. Issue: Not every family is a social group. A family will only be recognized as a social group if it can show discrimination, affiliation and common past persecution. It was made clear that you do not define the group by a common experience of risk, but rather by the harm feared. Held: Now the court is stipulating that identifiably is part of what encompasses a MPSG. Mexican society recognizes the family as a discrete unit, and members of a family view themselves as such. In the domestic violence context, Mexican society also treats members of a family differently from nonmembers because it regards violence within a family as a "domestic matter," rather than a matter for government intervention. In sum, we have considered the factors specified in the proposed Rule and those factors support our conclusion that the petitioner is entitled to asylum protection as a member of a particular social group. A. Start with Matter of Acosta principle: A particular social group is composed of members who share a common, immutable characteristic, such as sex, color, kinship ties, or past experience, that a member either cannot change or that is so fundamental to the identity or conscience of the member that he or she should not be required to change it.71 Then consider factors that may be considered, but that are not necessarily determinative in deciding whether a particular social group exists, include whether: (i) The members of the group are closely affiliated with each other; (Sanchez72) (ii) The members are driven by a common motive or interest; (Sanchez) (iii) A voluntary associational relationship exists between the members; (Sanchez) (iv) The group is recognized to be a societal faction or is otherwise a recognized segment of the population in the country in question; (how can women be set apart from society when they make up 50% of it). (v) Members view themselves as members of the group; and (vi) The society in which the group exists distinguishes members of the group for different treatment or status than is accorded to other members of the society.

B.

CLASS
This type of MSPG includes immutable forms of class and caste. However, pursuant to the Matter of Acosta the general definition excludes a social class defined by a changeable characteristic of a non-essential nature.73 For example, members of a privileged social/economic class who resist rejecting their economic advantages and benefits are not protected since they have the capacity to

69 70 71

Goodwin-Gill, op.cit., p.359. Aguirre-Cervantes v INS, 2001 U.S App. LEXIS 4166 (2001, Unites States, Court of Appeals for the 9th Circuit). Matter of Acosta, 19 Immigration & Nationality Decisions. 211 (1985) (Unites States, BIA). 72 Sanchez-Trujillo v. INS, 801 F.2d 1571, (United States, 9th Cir. 1986). 73 James C. Hathaway, LRS, op.cit., p.166.

34

voluntarily renounce their property.74 This is not an interest which is established as fundamental in internationally realized human rights norms. Wealthy Class: Whether or a not a wealth based class can be recognized as a particular social group depends on the groups defining characteristic: (i) Is it either innate or unchangeable, or (ii) If subject to voluntary separation from that which is instigating the persecution, whether it is based on the recognition of basic human rights norms.75 In all other cases, it would be reasonable to expect an individual to adjust herself to less amenable and fortunate circumstances as opposed to seeking surrogate protection from another State. Private Landowners Montoya v SSHD [2002]76 Facts: A Colombian who had threats to the effect that if he did not pay 10,000,000 pesos per month to the Marxist opposition group EPL, he would be murdered. His elder brother had already been murdered for political reasons and his uncle received similar threats and made payments for a while, but after he stopped he too was murdered. The Colombian state authorities are not in a position to protect him. Issue: The argument around wealth is an interesting one. If an individual is targeted because she is poor then this fits into a protected ground as one cannot change being poor. This is recognized as an immutable characteristic. But if you are wealthy, an individual can relinquish their wealth. While morally an individual should not have to give up their right to wealth, unfortunately, there are no enforceable international instruments related to the protection of property. Thus an individual, under the paradigm of refugee law, is expected to abandon her wealth in order to prevent being persecuted. Held: The applicant is perceived to be a member of the rich land-owning class. The persecutors seek out members of that class and hunt them down in order to obtain their land and money. a) This class cannot qualify as a PSG for the purpose of the Convention because each member of it can dispose of his land or wealth. b) Any persecution would not be because the immigrant is a member of the group but rather because the persecutors wished to have money. Whilst private landowners could be said to be a group with identifiable and significant underlying characteristics, it could not qualify as a PSG for Refugee Convention purposes because private land ownership could not be said to be an immutable characteristic. In reality, many guerilla groups wont give up even if an individual tries to relinquish all her land and assets. This is because the individual is perceived to still be part of a land owning class, which is a social stigma that cannot be relinquished, and thus can be characterized as an immutable characteristic.

74 75

Ibid. Ibid, p.167. 76 Montoya v Secretary of State for the Home Department, [2002] EWCA Civ 620 (2002, United Kingdom, English Court of Appeal Civil Division).

35

Arguably, the English Court of appeal did not protect him because it did not want to create a precedent that protects the wealthy class.

Poor Class: Poverty as an economic class may comprise a particular social group, since membership cannot always be willingly given up77: . . the poor as a class . . . may constitute a persecuted social group when the economic conditions underlying their poverty are attributable to the exercise or maintenance of political power. If in a given country the poor are kept poor by those in power in order to maintain the current political structure if all or substantially all economic opportunity is foreclosed a victim of such poverty suffers substantial economic disadvantage on account of his membership in a low class.78 Moreover, an economic class can be recognized as a particular social group where membership, though technically voluntary, is the only means of ensuring survival, an interest which is protected as fundamental in international human rights law79: The deprivation of certain of the socio-economic rights, such as the entitlement to food, shelter, or health care will at an extreme level be tantamount to the deprivation of life or cruel, inhuman or degrading treatment, and hence unquestionably constitute persecution.80

77 78 79

James C. Hathaway, LRS, op.cit., p.166-167. Note, Political Legitimacy in the Law of Political Asylum (1985), 99 Harvard L. rev. 450, at 461. James C. Hathaway, LRS, op.cit., p.167. 80 Horvath v Secretary of State for the Home Department, 144 SJLB 34, (1999, United Kingdom, English Court of Appeal Civil Division) per Stuart-Smith LJ.

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VICTIMS OF WAR OR GENERALIZED VIOLENCE: WAR ZONES

1. Victims of war are not per se refugees: In contrast to the OAU where persons fleeing war are considered to be refugees and they dont need to prove status. OAS and UNHCR recommend that if fleeing war zones you should be recognized as a refugee. Not referred to in the Convention.

Hathaways two essential points: 1. 2. Victims of war and conflict are not refugees unless they are subject to differential victimisation based on civil or political status.81 The Convention today remains firmly anchored in the notion of elevating only a subset of those at risk of war and violent conflict to the status of refugee. It is now accepted that generalised oppression may indeed give rise to refugee status. It is not necessary for a claimant to show that he is more at risk than anyone else in his group, if the group as a whole is subject to oppression.

R v Adan HOL (1998)82 Facts: The conflict in Somalia was characterized by everybody fighting everybody. It was clan ware-fare and virtually ever person was at risk of being persecuted. There was no government. Issue: Arguably, this is racial persecution. However, if it is acknowledged as such, then every single Somali would be considered a refugee. There is a big Somali community in England and they were scared of floodgates argument. Held: In such a situation, the individual or group has to show a well founded fear of persecution over and above the risk to life and liberty inherent in the civil war.83 The Refugee Convention is about rescuing minorities. Not every human rights victim is a refugee. Thus to grant refugee status to all victims of civil war undermines the object and purpose of the Convention. There is NO nexus as there is no discrimination. People were all equivalently at risk. However, targeting and singling out is not required. An applicant just needs to prove that she is a member of a clan/ group to get refugee status.

81 82

Ibid, p.185 R v Secretary of State for the Home Department ex parte Adan, [1999] 1 AC 293; [1998] 2 ALL ER 453 (1998, United Kingdom, House of Lords). 83 Ibid, per Lord Slynn Of Hadley.

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CRIMINAL PROSECUTION UPON RETURN

If the only danger, upon being returned to her country of origin, is that she will face plain criminal prosecution, administered in the ordinary way for a crime she has committed, then she will not be considered a refugee. That fact that the given risk is simply subjection to criminal law prosecution is no bar to Convention refugee status: There is no nexus because everyone is equally at risk No serious harm as there is no persecution as the law is reflective of a proportionate policy in respect to the crime committed. Disproportionate Punishment: If the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality.84

1. Differential prosecution Ie; If only black people get prosecuted for the crime. Because of race or politics you are prosecuted. Hence, if only a subset of the population is prosecuted then the prosecution ceases to be ordinary law and becomes a Convention based harm because a nexus exists. 2. Differential adjudication I.e; Women possess a different evidentiary burden than men. For example, in Iran legal testimony of two women is equal to the testimony of one man. This creates a nexus to one of the five enumerated grounds. 3. Differential punishment I.e; If a woman is punished much more severely than a man for the same crime committed. 4. An absolute political offence; Harm is disproportionate. I.e; Governement penalizes the exercise of a human right. You cannot criminalize something that is a fundamental human right. Ie; It is a crime to be an Ahmadi in Pakistan.85 5. A relative political offence. Definition of crime is legitimate but the application of the law often impinges on a fundamental human right. I.e; Norm against amassing in a public place without a permit but if apply that norm to every time people meet to exercise their religious freedoms you impinge upon their fundamental right to practice their religion.

84 85

Cheung v. Canada (M.E.I.) (1993), 19 Imm.L.R.(2d) 81 (F.C.A.). Secretary of State for the Home Department v Ahmed (1999, United Kingdom, English Court of appeal Civil Division).

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6. CESSATION (ART. 1C)

Cessation refers to a formal decision to end refugee status because it is no longer necessary or required. Thus, cessation amounts to a loss of refuge status and the rights attached to it. The circumstances are exhaustively specified in the cessation clauses contained in Art. 1C of the 1951 Refugee Convention. Cessation may be declared by the host country or by UNHCR either for an individual or for a particular group of refugees. The measure set out in Art. 1C should not be applied at the eligibility stage of RSD. Procedural safeguards must be exist to allow the refugee to contest the decision to apply a cessation to her status. CESSATION (Art. 1C) This Convention shall cease to apply to any person falling under the terms of section A if: VOLUNTARY RE-AVAILMENT OF PROTECTION: Art. 1C(1) 1) He has voluntarily re-availed himself of the protection of the country of his nationality; or International lawyer view: Seeking a visa or passport means that you are seeking a country of origin to look after you while you are abroad. Usually refugees keep their country of origin passports renewed because the asylum state requires this. Hence, there is no voluntariness here.

Requirements: 1. 2. Volition is required. Specific intent is required: if the person still fears persecution and does not understand that obtaining a passport normally means availing oneself of the protection of the issuing state, it would obviously be difficult to withdraw refugee status on the basis of such a confused act.86 Protection must be granted.

3.

VOLUNTARY RE-ACQUISITION OF NATIONALITY: Art. 1C(2): 2) Having lost his nationality, he has voluntarily reacquired it; or Refugee has done something voluntarily to regain protection of country of origin. Most cases you do not lose your citizenship and if you do then you are recognized as a stateless person Does not often happen.

Requirements: 1. Volition required

86

A. Grahl-Madsen, "Protection of Refugees by Their Country of Origin" (1986), 11(2) Yale J. Intl. L. 362, at 393

39

2.

Must be accompanied by the actual restoration of relations. That is, the effective protection of the country.

HAS AQUIRED NEW NATIONALITY: Art. 1C(3) 3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

Requirements: 1) 2) 3) No requirement of volition. Hence includes automatic acquisition by marriage. But efficacy of that nationality enjoys the protection is critical. Safeguard: ability where relevant to advance a claim to refugee status vis a vis new country of citizenship.

VOLUNTARY RE-ESTABLISHMENT: Art. 1C(4) 4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or Difference between going back to visit as opposed to re-establishing yourself in your country of origin or former habitual residence. Reconnection is intended to be ongoing and permanent. Many people will take chances to do something that they believe is more important than their own safety: ie; A refugee will return to his country of origin, even though he fears persecution, to visit his dying mother.

Requirements: 1) 2) Volition is required Not satisfied merely by return Prolonged presence; or Pattern of shorter visits. Critical to avoid undermining promotion of self-directed solutions to refugeehood. Can be satisfied by routine return though. Swedish example: government pays for ticket to return to country of origin and give them some money to settle and if within 6 months you do not feel safe they will also pay for a return ticket. Only 10% return. Great policy decision.

3)

FUNDAMENTAL CHANGE OF CIRCUMSTANCES: Art. 1C(5-6) UNHCR ExCom Conclusion No. 65: Where a change of circumstances in a country is of such a profound and enduring nature that refugees from that country no longer require international protection and can no longer continue to refuse to avail themselves on the protection of their country.87
87

UNHCR, Executive Committee Conclusion No. 65, General Conclusion on International Protection, U.N. GAOR, 46th Sess., at (q) (1991).

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5)

He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under section A (I) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

6)

Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

Provided that this paragraph shall not apply to a refugee falling under section A (I) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.

Burden of Proof: The government has the burden of proof as it is seeking to take away refugee status.88 The burden rests on the country of asylum to demonstrate that there has been a fundamental, stable and durable change in the country of origin and that invocation of Article 1C(5) or (6) is appropriate.89 Three requirements to invoke Art 1C(5-6): 1. Change must fundamental.90 2. Change must be enduring.91 3. Change must not merely eradicate the well founded fear but resolve protection.

1.

CHANGE MUST BE FUNDAMENTAL:

To meet the first requirement of fundamental change, UNHCR has suggested that: a) Complete Political Change:

A complete political change remains the most typical situation in which this cessation clause has been applied. Depending on the grounds for flight, significant reforms altering the basic legal or social structure of the State may also amount to fundamental change, as may democratic elections, declarations of amnesties, repeal of oppressive laws[,] and dismantling of former security services.92 Cannot claim that a State is getting better. This is not enough. b)
88 89 90

Changes must address the causes of displacement:

UNHCR Guidelines on International Protection: Cessation, HCR/GIP/03/03 10 February 2003, p.7. Ibid. Ibid, p.4. 91 Ibid. 92 UNHCR, Note on the Cessation Clauses, U.N. GAOR, 8, 9, U.N. Doc. EC/47/SC/CRP.30 (1997).

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Cessation based on ceased circumstances therefore only comes into play when changes have taken place which address the causes of displacement which led to the recognition of refugee status.93 The State must have fundamentally changed and the change must be pertinent to what the refugee has experienced. c) Return of former refugees generates fresh tension:

Large-scale spontaneous repatriation of refugees may be an indicator of changes that are occurring or have occurred in the country of origin. Where the return of former refugees would be likely to generate fresh tension in the country of origin, however, this itself could signal an absence of effective, fundamental change.94 d) Different Circumstances giving rise to refugee status:

Where the particular circumstances leading to flight or to non-return have changed, only to be replaced by different circumstances which may also give rise to refugee status, Article 1C(5) or (6) cannot be invoked.95

2.

CHANGE MUST BE ENDURING:

UNHCR: 12 to 18 months since a fundamental change is argued by UNHCR to be the minimum time which should elapse before cessation is contemplated.96 It is UNHCRs recommendation that this phase be considered as a minimum for assessment purposes. Recent applications of the cessation clause by UNHCR show that the average period is around four to five years from the time fundamental changes commenced.97 Basic Rule: All developments which would appear to evidence significant and profound changes be given time to consolidate before any decision on cessation is made.98 The growth of consolidation is defined by the context. Therefore the time required to establish the durability of change will inevitably be longer where the reform was the result of conflict, and hence less likely to be quickly and whole-heartedly embraced by all.99 Changes taken place violently:

93 94 95

UNHCR Guidelines on International Protection: Cessation, HCR/GIP/03/03 10 February 2003, p.4. Ibid. Ibid. 96 Discussion Note on the Application of the Ceased Circumstances Cessation Clause in the 1951 Convention (EC/SCP/1992/CRP.1), 97 Ibid. 98 UNHCR Guidelines on International Protection: Cessation, HCR/GIP/03/03 10 February 2003, p.4. 99 James C. Hathaway, The Right of States to Repatriate Refugees, Ohio State Journal on Dispute Resolution, Vol. 20:1, 2005, p.13.

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A longer period of time will need to have elapsed before the durability of change can be tested where the changes have taken place violently, for instance, through the overthrow of a regime.100 The human rights situation needs to be vigilantly monitored and evaluated. The development of national reconstruction must be allowed adequate time to manifest and any peace measures with conflicting militant groups must be thoroughly scrutinized. This is acutely applicable to conflicts involving different ethnic or racial groups, as advancement towards genuine reconciliation has often proven complex and arduous in such circumstances.

3.

CHANGE MUST NOT MERELY ERADICATE THE WELL FOUNDED FEAR, BUT RESOLVE PROTECTION:

Another crucial question is whether the refugee can effectively re-avail him- or herself of the protection of his or her own country. Such protection must therefore be effective and available.101 a) b) c) It demands more than mere physical security or safety. There must be a functioning government and basic administrative structures, substantiated by a functioning legal and judicial system. The existence of adequate infrastructures to facilitate the exercise of fundamental rights, including the right to a basic livelihood.

100 101

UNHCR Guidelines on International Protection: Cessation, HCR/GIP/03/03 10 February 2003, p.4-5. Ibid, p.5.

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7. EXCLUSION (ART. 1D, 1E, 1F)

An individual who is recognized as a refugee pursuant to the 1951 Refugee Convention, is nevertheless, denied surrogate protection because he/she is not deserving of international protection. Furthermore, an individual can be denied protection because she/he already receives protection or assistance from a UN agency other than UNHCR. The circumstances in which exclusion from refugee protection is warranted are described in Arts. 1D, 1E &1F of the 1951 Convention. While for those whom the exclusion clause applies are not eligible for refuge status, they still continue to enjoy protection under other regional and human rights instruments including the customary international law of non-refoulement.

THOSE NOT ENTITLED TO THE BENEFITS OF THE 1951 REFUGEE CONVENTION: Art 1D: This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention. Not incorporated into US or Canadian law. Presently, Palestinians who are refugees as a result of the 1948 or 1967 Arab-Israeli conflicts, and who are receiving (or are eligible to receive) protection or assistance from the United Nations Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA) are excluded from the benefits of the 1951 Refugee Convention while they are within UNRWAs area of operations.

PEOPLE WHO DO NOT DESERVE INTERNATIONAL PROTECTION: Art. 1E This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. If all you are going to get under refugee law is surrogate/substitute national protection, why should a third State protect you if you already possess the rights and obligations attached to the nationality of the country from which you are a resident? Litmus test: Do you in substance enjoy all of the rights of nationals? An individual must effectively be able to enjoy these rights.

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Art.1F: THOSE DEEMED NOT TO BE DESERVING OF INTERNATIONAL PROTECTION: The essential rationale behind Art. IF is to deprive those guilty of egregious acts of international surrogate protection. In turn. this guarantees that such persons do not abuse the asylum system in order to avoid being legally accountable for their heinous acts. The drafters intended to air on the side of excluding the smelly fish rather than take the risk of undermining the entire Convention. It is universally accepted that the applicability of the exclusion clause does not depend on whether a claimant has been charged or convicted of the acts set out in the Convention.102 Art 1F: 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; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

Test: Serious reasons for considering that a person falls into one of these clauses. Well below the criminal standard of proof of reasonable doubt and below civil law standard of on balance of probabilities. UNHCR Handbook:103 The competence to decide whether any of these exclusion clauses are applicable is incumbent upon the Contracting State in whose territory the applicant seeks recognition of his refugee status. For these clauses to apply, it is sufficient to establish that there are serious reasons for considering that one of the acts described has been committed. Formal proof of previous penal prosecution is not required. Considering the serious consequences of exclusion for the person concerned, however, the interpretation of these exclusion clauses must be restrictive. Burden of Proof: The burden of proof with regard to exclusion rests with the State (or UNHCR) and, as in all refugee status determination proceedings, the applicant should be given the benefit of the doubt. 104 Where, however, the individual has been indicted by an international criminal tribunal, or where individual responsibility for actions which give rise to exclusion is

102 103

Moreno v M.E.I [1994] 1 F.C. 298 (F.C.A.), UNHCR Handbook, op.cit., para. 149. 104 UNHCR GUIDELINES ON INTERNATIONAL PROTECTION: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003, at 34.

45

presumed, as indicated in paragraph 19 of these Guidelines, the burden of proof is reversed, creating a rebuttable presumption of excludability.105 MANDATORY EXCLUSIONS: States do not have any ability to grant refugee status to someone who falls under Art. 1F. Because its a mandatory exclusion the reasons for exclusion can be examined up front with the facts of the refugee claim being legally irrelevant. 106 1F(a):COMMITTED A CRIME AGAINST PEACE, A WAR CRIME OR A CRIME AGAINST HUMANITY. 1951 Refugee Convention: 1F. 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. ROME STATUTE OF ICC: Article 7 - CRIMES AGAINST HUMANITY 1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) (b) (c) (d) (e)

Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. Also Includes Acts of Genocide:
105 106

Ibid. Cabrera v Minister of Citizenship and Immigration, 1998 Fed. Ct. Appeal LEXIS 350 (1998, Canada, Federal Court of Appeal).

46

Article 6 - GENOCIDE For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Article 8 - WAR CRIMES Mistreatment of civilians or prisoners of war, destroying property: Predicated on need for there to be some sanction which requires individual soldiers to be accountable for their actions. 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, "war crimes" means: a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i) Wilful killing; (ii) Torture or inhuman treatment, including biological experiments; (iii) Wilfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; (viii) Taking of hostages. INTERNATIONAL ARMED CONFLICT: (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

47

(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; Please refer to Art. 8 of ICC Statute for further war crimes.

ARMED CONFLICT NOT OF AN INTERNATIONAL CHARACTER: (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. CRIME AGAINST PEACE: Planning or participating in an unlawful war: According to the London Charter a crime against peace involves the planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. 107 Given the nature of this crime, it can only be committed by those in a high position of authority representing a State or a State-like entity.108

ART 1F(b): COMMITTED A SERIOUS NON POLITICAL CRIME OUTSIDE COUNTRY OF REFUGE, PRIOR TO ADMISSION. 1951 Refugee Convention: 1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

107 108

UNHCR GUIDELINES ON INTERNATIONAL PROTECTION: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003, at 11.

48

(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; Ensures that people who had committed serious common crimes for which they had not yet paid the price, could not use refugee law to hide behind and prevent accountability. Criminal issue: No jurisdiction to prosecute someone who commits crime in Germany, thus must have this clause. What is a NON-political crime? UNHCR Handbook:109 In determining whether an offence is non-political or is, on the contrary, a political crime, regard should be given: 1. To its nature and purpose - i.e. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. 2. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. 3. The political element of the offence should also outweigh its common law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature. Aligned the language to extradition law; Can only exclude from refugee status someone you would be prepared to extradite as there is no common international standard yet. Extradition standard: 1. serious crimes (crimes against the person not pty crimes), 2. something committed outside the country of refuge, 3. serious NON-POLITICAL crime. IF(c) GUILTY OF ACTS CONTRARY TO THE PURPOSES AND PRINCIPLES OF THE UNITED NATIONS.

1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that. (c) He has been guilty of acts contrary to the purposes and principles of the United Nations. UNHCR Handbook:110 While Article 1 F (c) does not introduce any specific new element, it is intended to cover in a general way such acts against the purposes and principles of the United Nations that might not be fully covered by the two preceding exclusion clauses. Taken in conjunction with the latter, it has to be assumed, although this is not specifically stated, that the acts covered by the present clause must also be of a criminal nature.
109 110

UNHCR Handbook, op.cit., at 152. UNHCR Handbook, op.cit., at 162.

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8. RIGHTS DEFINED BY A LEVEL OF ATTACHMENT

Basic Way Rights are Allocated: UNHCR: Restricting the rights of refugees and delaying the attainment of durable solutions for years causes frustration and tension among refugee and in the host community. In such situations refugee, in particular women and children, become more vulnerable to various forms of exploitation such as trafficking and forced recruitment, and may develop a long-term dependency on humanitarian assistance. Often, the result is the marginalization and isolation of refugee, which can lead to an increase in irregular movements and even to security and stability problems for the host State, as well as for other States in the region.111 International and regional laws govern the rights based regime of human rights law. Nevertheless, access to such rights and protection from derogation of these rights is the primary responsibility of States. If the State is unwilling or unable to provide such protection then it falls on the United Nations, NGOs and the international courts, including the ICJ and ICC to enforce the realization of human rights or remedy the failure of state protection. RIGHTS PURSUANT TO THE 1951 REFUGEE CONVENTION: Establishes refugees responsibilities: Art. 2 - Must adhere to host country laws and regulations Establishes refugees rights in the following areas: Art. 3 - Non-discrimination (race, religion, country of origin) Art. 4 - Freedom of religion Art. 12 - Respect for personal status (e.g., marital status) Art. 13 - Property rights moveable and immovable. Art. 14 - Intellectual property rights - Artistic Rights and Industrial Property Art. 15 Right of Association (non-political & non-profit making associations and trade unions) Art. 16 - Access to the courts of law Art. 17 - Wage-earning; or Art. 18 - Self-employment; Art. 19 - Practice of Liberal Professionals Art. 20 - Rationing (when applied to general population) Art. 21 - Housing Art. 22 - Access to Public Education Art. 23 - Public Relief. Art. 24 - Enjoy the benefits of labor rights and social security Art. 25 - Provide administrative assistance (e.g., documents or certifications) Art. 26 - Allow freedom of movement Art. 27 - Issue identity papers Art. 28 - Official travel documents Art. 29 Tax Equity, ensure equality in fiscal charges (e.g., no higher taxes or duties for refugees) Art. 30 - Permit transfer of assets Art. 32 - Shall not expel a refugee lawfully in their territory (exception: grounds of national security or public order)
111

UNHCR: Local Integration and Self-Reliance U.N Doc. EC/55/SC/CRP.15, June 2, 2005.

50

Art. 34 - Facilitate assimilation and naturalization Art. 35 National Authorities undertake to co-operate with UNHCR Art. 36 - Communicate with UN on laws related to the Convention

Rights of States: Art. 9 Suspension of Rights for reasons of National Security

REFUGEES UNLAWFULLY IN THE COUNTRY OF REFUGE ART. 31

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country. It must be understood that an application for refugee status cannot be compromised by an illicit arrival in the host state. Individuals who sneak across the border or lie about their true intentions when they seek entrance to a host state, may still be recognized as refugees if they fulfill the requirements of the definition in Art. 1A(2). This is clear given that legal admission was not enumerated as a prerequisite for seeking refugee status under the 1951 Refugee Convention. Moreover, the granting of refugee status to unlawful entrants was explicitly considered by Art. 31 of the 1951 Convention. This provision requires contracting states to exempt refugees from regular penalties that are imposed upon illegal entry or presence in their territory. Thus, illegal entry is not a sufficient concern to deprive an individual of the right to have her refugee claim determined in accordance with the Convention.112 This position is consistent with the fact that most refugees do not enjoy the luxury of immigration through customary channels, and thus find themselves compelled to seek asylum by irregular entry to a safe country.113 Often the fear of authority perpetuated in an individuals country of origin transcends to the host state, causing asylum seekers to pursue entry by any means and inducing them to go underground in order to evade rejection at the border or deportation. Therefore, the duress under which asylum seekers live often leads to them to be less that forthright in dealing with or even approaching officials of the asylum state.114

112 113

James C. Hathaway, LRS, op.cit., p.51. S. Aga Khan, Legal Problems relating to Refugees and Displaced Persons, (1976), Recueil des cours 287, at 313. 114 James C. Hathaway, LRS, op.cit., p.55.

51

NON-REFOULEMENT, THREAT TO LIFE OR FREEDOM - ART. 33(1):

The most pressing need for refugees is the ability to enter a territory in which they are protected from the risk of being persecuted.115 Otherwise, they are likely to be returned to their country of origin where the risk is imminent or thrown into perpetual orbit116 in their search for a state which is prepared to allow them entry. The General Assembly condemns all acts that pose a threat to the personal security and well being of refugees and asylumseekers, such as refoulement.117 Jonathan Moore the US Coordinator for Refugee Affairs at the Executive committee in 1987 declared that the threat to a country posed by influxes of economic migrants should not serve as an excuse for refusing asylum.118 Art. 33(1): 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. Exception: It must be noted that national security and public safety exceptions highlighted in Article 33(2) constitute the only permissible exceptions to non-refoulement under the Convention. Hence, the benefit of this provision may not be claimed by a refugee where, according to Art. 33(2): There are reasonable grounds for regarding [a refugee] as a danger to security . . . or having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. NON-REFOULEMENT: No state has an affirmative duty to receive refugees. However, a State can only deny entry to an individual as long as there is no real chance that if denied and returned, the refugee will be exposed to the risk of being persecuted.119 The language of in any manner whatsoever, connotes a de-facto state duty to allow in its territory a refugee, as admission is the only means of avoiding the risk of being persecuted.120 Due to the fact that the right of entry, which stems from the duty of non-refoulement, is dependant on the existence of a risk of persecution, a state is not obligated to allow the refugee to remain in its territory once the risk has ceased.121 This applies to all refugees with no mention in the Convention that authorized entry is a requirement or whether or not refugee status has been formally recognized. It is contingent on arrival.122 Consequently, the words where his life or freedom would be threatened must be construed to encompass circumstances in which a refugee or asylum seeker:

115 116 117

James C. Hathaway, RRIL, op.cit, p.279. Ibid. A/RES/55/74, 12 February 2001, at Para 10 in The scope and content of the principle of non-refoulement: Opinion , in Refugee Protection in International Law: UNHCRs Global Consultations on International Protection, op.cit., p.115. 118 Guy S. Goodwin-Gill, The Refugee in International Law, second edition, Oxford University Press: 1998: p,129. 119 Ibid, p.301. 120 Ibid. 121 Ibid, p.302. 122 Ibid, p.304.

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(a) Has a well founded fear of being persecuted; (b) Faces a real risk of torture or cruel, inhuman or degrading treatment or punishment, OR; (c) Faces other threats to life, physical integrity, or liberty.123 This view is supported by the expansion of the humanitarian role of the UNHCR. UNGA has extended the UNHCRs role to include acknowledging and assisting those fleeing from more generalized circumstances of violence.124 This is particularly evident in UNHCRs mandate to support internally displaced people. Therefore, Article 33(1) may be construed to include situations of generalized violence which threaten the life or freedom of an individual, whether or not this evolves from persecution.125 SUBSEQUENT INTERNATIONAL AND REGIONAL INSTRUMENTS: Subsequent international and regional instruments also implicitly grant a broader form of protection against refoulement.126 In 1967, The Declaration on Territorial Asylum, unanimously adopted by the Unites Nations General Assembly (UNGA), provides in Article 3 that: No person referred to in article 1, paragraph 1 shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any state where he may be subjected to persecution.127

Pursuant to Art 11(1), the Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU)128 requires parties to the African Union to: Use their best endeavors consistent with their respective legislation to received refugees and secure [their] settlement. The duty of non-refoulement is unequivocally established to prohibit rejection at the frontier and to apply when there is a risk to refugees life, physical integrity, or liberty:129 Art II(3): No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2.

123 124

Ibid. The scope and content of the principle of non-refoulement: Opinion ,in Refugee Protection in International Law: UNHCRs Global Consultations on International Protection, op.cit., p.124. 125 Ibid, p.125. 126 Ibid, p.305. 127 The Declaration on Territorial Asylum adopted by the United Nations General assembly as Resolution 2132 (XXII), 14 December 1967. 128 Convention governing the Specific Aspects of Refugee Problems in Africa, September 10 1969, entered into force June 20, 1974, at Art II(1). 129 Ibid, at Art II(3).

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In the OAU there is no nexus to political or civil status. Therefore, persons fleeing from civil war in Africa are regarded as refugees. Moreover, there are no exceptions to the principle of non-refoulement. It is ironic that the poorest nation in the world has the most generous standard. Article 3 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provides that: No state party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.130 It goes on to insist that authorities shall take into account all relevant considerations including . . . the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.131 Similarly, Article 7 of the 1966 International Covenant on Civil and Political Rights (ICCPR) asserts that: no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. This has been interpreted by the UN Human Rights Committee to include an obligation in terms of non-refoulement: State parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.132 Furthermore, the equivalent provision in Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms has also been construed by the European Court of Human Rights as enforcing a prohibition on non-refoulement.133 By virtue of the 1951 Convention, CAT and the ICCPR, 169 States are bound by some treaty commitment which prohibits refoulement.134 This figure increases when other regional instruments are taken into account. Hence, the Expert Roundtable organized by the UNHCR in 2001 declared non-refoulement to be principle of customary international law.135 This means that even if a State is not a signatory to the 1951 Refugee Convention and/or the subsequent 1967 Protocol, the principle of non-refoulement still applies. RIGHT TO REFOULE AS A RESULT OF MASS INFLUX: (Also refer to section 9: Mass Arrival) It must be noted that no State possesses any prerogative to deny entry to refugees in a mass influx situation unless it is truly necessary to protect their most critical national

130 131 132

1984 Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, Art 3(1). Ibid at Art 3(2). UN Human Rights Committee, in its General Comment No. 20 (1992) HRI/HEN.1/Rev.1, 28 July 1994, at Para 9. 133 Soering v United Kingdom (1989), 98 ILR 270, at para.88. 134 The scope and content of the principle of non-refoulement: Opinion , in Refugee Protection in International Law: UNHCRs Global Consultations on International Protection, Cambridge University Press: 2003, p.93. 135 Expert Roundtable organized by the UNHCR and the Lauterpacht Research Centre for International Law, University of Cambridge, UK, 9-10 July 2001 in Summary Conclusions: the principle of non-refoulement, in Refugee Protection in International Law: UNHCRs Global Consultations on International Protection op.cit., p.178.

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interests.136 Because it is such an exceptional measure, suspension of protection must be carried out in a way that is minimally invasive of the human dignity of the refugee.137 This is highly controversial, although the drafting history does support this. UNHCR ExCom Conclusion No. 22 (XXXII) (1982): A(1) In situations of large-scale influx, asylum seekers should be admitted to the State in which they first seek refuge and if that State is unable to admit them on a durable basis, it should always admit them at least on a temporary basis and provide them with protection according to the principles set out below. They should be admitted without any discrimination as to race, religion, political opinion, nationality, country of origin or physical incapacity. A(2) In all cases the fundamental principle of non-refoulement including non-rejection at the frontier-must be scrupulously observed. EXTRA TERRITORIAL REFOULEMENT: A State has a responsibility for its own conduct and those acting under its authority, which is not limited to within its territory.138 Hathaway suggests that the operation of interception and related strategies may in fact result in refugees being denied protection. These deterrent measures are premised on denial to the refugee of any direct contact with the receiving state. 139 This is equivalent to arms length actions140 that produces an outcome in which refugees are forced back to their country of origin which is a violation of Article 33(1). The fact that there is no explicit mention of extraterritorial refoulement in the Convention, Hathaway reconciles by noting that this reflects the empirical reality141 of the period of time in which the Convention was drafted. No State had prevented access to refugees other than from within its territory or at its borders.142 This concept is further advanced by the American representative to the Ad Hoc Committee that created the Refugee Convention: [i]t is incredible that states that had agreed not to force any human being back into the hands of his oppressors intended to leave themselves and each other free to reach out beyond their territory to seize a refugee and to return him/her to the country from which he sought escape.143 The fact that Article 33(1) prohibits return to the risk of being persecuted in any manner whatsoever implies that there are numerous ways in which a refugee could be refused entry or forcible removed.144 REMOVAL TO SAFE THIRD COUNTRY: Art 33(1) can be read to encompass removal to a safe third country. However, it does require that a state proposing to remove an asylum seeker undertakes a proper assessment as to whether the third country is indeed safe.145 This interpretation draws authority from several sources:

136 137 138

James C. Hathaway, op.cit., p.359. Ibid, p.360. The scope and content of the principle of non-refoulement: Opinion , in Refugee Protection in International Law: UNHCRs Global Consultations on International Protection, op.cit., p.110. 139 James C. Hathaway, RRIL, op.cit., p.335. 140 Ibid. 141 Ibid, p.337. 142 Ibid. 143 Ibid. 144 Ibid, p.338. 145 The scope and content of the principle of non-refoulement: Opinion , in Refugee Protection in International Law: UNHCRs Global Consultations on International Protection, op.cit., p.122.

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Firstly, pursuant to human rights law, non-refoulement precludes the direct removal . . . to an intermediary country in circumstances in which there is a real danger of subsequent refoulement of the individual to a territory where they would be at risk.146 Secondly, numerous instruments adopted since the 1951 Convention confirm that a State intending to remove an asylum-seeker must consider whether there is a possibility of removal to a place of risk.147 This is evident in the OAU Refugee Convention which forbids actions which would compel [a person] to return or remain in a territory where they would be at risk.148 Furthermore, the Asian-African Refugee Principles prohibits measures which would result in compelling [a person] to return or remain in a territory where they would be at risk.149 This is also in line with the common humanitarian character150 of the 1951 Convention. Thirdly, information provided by the UNHCR suggests that it is well accepted by States operating safe country policies151 that they must ensure safety from subsequent refoulement to a place of risk. According to EU law a safe third country is one that is prepared to consider the applicants refugee claim, and will not expose the claimant to persecution, risk of torture or related ill-treatment, or refoulement.152 Nevertheless, it is not a requirement that this safe third country be a party to the Convention.153 Therefore, the principle of non-refoulement excludes not only transferring a person directly to a country where she may be in danger, but also sending her to a country from which she may later be transferred to a third country which gives rise to a risk of persecution. Executive Committee Conclusion No. 15 states that whereby a refugee is obliged to return or is sent to a country where he has reason to fear persecution constitutes a grave violation of the principle of non-refoulement.154 The General Assembly condemns all acts that pose a threat to the personal security and well being of refugees and asylum-seekers, such as refoulement.155 It must be noted that national security and public safety exceptions highlighted in Article 33(2) constitute the only permissible exceptions to non-refoulement under the Convention.

146

T.I v United Kingdom, Application No. 43844/98, Decision to Admissibility, 7 March 2000, [2000] INLR 211 at 228 in The scope and content of the principle of non-refoulement: Opinion , in Refugee Protection in International Law: UNHCRs Global Consultations on International Protection, op.cit., p.122. 147 Ibid, p.122-123. 148 Ibid. p.123 149 Ibid. 150 Ibid. 151 Ibid. 152 James C. Hathaway, RRIL, op.cit., p.295. 153 Ibid. 154 Executive Committee Conclusion No. 15 (XXX) 1979, at Para.(b). 155 A/RES/55/74, 12 February 2001, at Para 10 in The scope and content of the principle of non-refoulement: Opinion , in Refugee Protection in International Law: UNHCRs Global Consultations on International Protection, op.cit., p.115.

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1. THE STRUCTURE OF ENTITLEMENT UNDER THE REFUGEE CONVENTION:156

a) SUBJECT TO STATES JURISDICTION: invasion and control; exercise of defacto control in territory over which it has no valid claim to jurisdiction (i.e.; high seas). Boat or airport under control of the flying state and therefore under that jurisdiction. If a State is going to exercise jurisdiction outside its physical boundaries then that State owes all the rights that fall under its domestic law including the rights and obligations that flow from being signatories to international treaties Ie; Haitian case where US coast guard destroyed boats and physically forced asylum seekers back to Haiti. UNHCR says US coast guard took jurisdiction and thus has a duty to refugees which includes undertaking proper refugee status determination and the duty of non-refoulement. ICJ Israeli wall case Israel by exercising control in the occupied territories was liable under the ICCPR to respect all its terms even if the territory not recognized by Israel. The Israelis were exercising control and authority and thus owe those people fundamental human rights. Art 33 does apply in the high seas in any manner whatsoever in terms of the nature of things you can do there. PHYSICAL PRESENCE: includes not only refugee within a states land territory but also those on its inland waterways or territorial sea; also those at a border post or in so called international zone of an airport. LAWFUL PRESENCE: includes refugee temporarily admitted to a state party, undergoing status verification, or present in a state which has elected either not to establish or to suspend refugee status verification. LAWFUL STAY: officially sanctioned, ongoing presence, whether or not there has been a formal declaration of refugee status, grant of the right of permanent residence, or establishment of domicile. Includes i.e.; refugee in receipt of temporary protection where de facto settled.

b)

c)

d)

2. WHEN DOES A REFUGEE GET RIGHTS: (i) UNDER A STATES JURISDICTION:

A small number of fundamental rights apply regardless of a refugees level of attachment. In practice, most rights in the refugee convention accrue only once a refugee is physically present, lawfully present, lawfully staying or granted residency in the host state. However, there are some circumstances in which a refugee will be under the control and authority of a state party even though she is not physically present in, or at the border of, its territory.157 1951 Refugee Convention:
156 157

Freedom from Discrimination (Art. 3); Non-Refoulment (Art. 33)

James C. Hathaway, RRIL, opc.it., pp 154-905. Ibid, p.160.

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(ii) PHYSICAL PRESENCE:

Physically present rights encompass those rights which follow automatically and immediately158 from being a refugee pursuant o the 1951 Refugee Convention. Given that the rights of refugees manifest only as a result of refugee status, these rights must be respected by the host state until and unless a negative determination of the refugees claim to protection is rendered.159 The reason for this is that the concept of refugee status arises from the nature of ones predicament rather than a formal determination of status.160 Physical Security: a) 1951 Refugee Convention: Right to Enter and Remain in Asylum State: (Art 33); Freedom from Arbitrary Detention and Penalization for Illegal Entry; (Art. 31); Only Justifiable Restrictions on Internal Freedom of Movement. (Art. 26).

b) ICCPR: Inherent Right to Life Art. 6(1); Freedom from Torture, Cruel, Inhumane or Degrading Treatment or Punishment (Art. 7); Liberty and Security of Persons (Art. 9(1)) Necessities of Life: a) 1951 Refugee Convention: Rationing Refugees Accorded The Same Rights As Nationals When Rationing System Exists; (Art. 20) c) ICESCR: The Right to an Adequate Standard of Living including, Adequate Food, Clothing and Housing (Art. 11); Right to Physical and Mental Health (Art. 12(1))

Property Rights: a) 1951 Refugee Convention: Moveable and Immovable Property (Art. 13) Tax Equity - Fiscal Charges (Art. 29). Family Unity: a) ICCPR: No Arbitrary or Unlawful Interference with his Privacy, Family, Home or Correspondence (Art. 17); The Family is the Natural and Fundamental Unit of Society and is Entitled To Protection by Society and the State (Art. 23(1)-(2)) b) ICESCR:

158 159

Ibid, p.278. Ibid. 160 Ibid.

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The Widest Possible Protection and Assistance should be accorded to the Family (Art. 10(1))

Freedom of Thought, Conscience and Religion: a) b) c) 1951 Refugee Convention: (Art. 4) ICCPR: (Art. 18) ICESCR: Respect for the Liberty of Parents and Legal Guardians to Ensure Religious and Moral Education of their Children - Art. 13(3))

Education: a) 1951 Refugee Convention: Public Education - (Art. 22) b) ICESCR: Right of Everyone to Education (Art. 13) Documentation of Identity & Status: a) 1951 Refugee Convention: Identity Papers - (Art. 27) Judicial and Administrative Assistance: a) 1951 Refugee Convention: Access to Courts (Art. 16(1)); Administrative Assistance (Art. 25). b) ICCPR: Access to Courts (Art. 14(1))

(iii) LAWFUL PRESENCE:

As the level of attachment between a refugee and the state increases, the rights which the refugee may demand are also enhanced. Every right obtained by merely being physical present in the host country continues for the duration of refugee status.161 However, once a refugee is not only under the jurisdiction or a state party to the Convention, but also lawfully present in that country, the refugee will gain three extra rights: Protection from Expulsion: a) 1951 Refugee Convention: (Art. 32) b) ICCPR: (Art. 13) Freedom of Residence and Internal Movement: a) 1951 Refugee Convention: Freedom of Movement (Art. 26) b) ICCPR: Liberty of Movement and Freedom to choose Residence (Art. 12).

161

Ibid, p.657.

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Right Self Employment: a) 1951 Refugee Convention: (Art. 18)

(iv) LAWFUL STAY;

A refugee is lawfully staying when she enjoys officially sanctioned, ongoing presence in a state party,162 and as such, a considerable number of significant rights accrue. Right to work: a) 1951 Refugee Convention: Right to Wage-earning employment - (Art. 18); Practice of Liberal Professionals (Art. 19) b) ICESCR: (Art. 6) Fair Working Conditions; a) 1951 Refugee Convention: Labor Legislation and Social Security (Art. 24) b) ICESCR: Enjoyment of Just and Favorable Working Conditions (Art. 7) Social Security: a) 1951 Refugee Convention: Labor Legislation and Social Security (Art. 24) b) ICESCR: Right to Social Security including Social Insurance (Art. 9) Public Relief and Assistance: a) 1951 Refugee Convention: (Art. 23) Housing: a) 1951 Refugee Convention: (Art. 21) b) ICESCR: Right to Adequate Standard of Living for himself and his family, including . . . adequate . . . Housing (Art. 11(1)) Intellectual Property Rights: a) 1951 Refugee Convention: Artistic Rights and Industrial Property - (Art. 14) b) ICESCR: Benefit from the Protection of the Moral and Material Interests resulting from any Scientific, Literary or Artistic Production (Art. 15(1)(c)) International Travel: a) 1951 Refugee Convention: Right to Official Travel Documents (Art. 28)
162

Ibid, p.730.

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b) ICCPR: Everyone is Free to Leave Any Country, including his own - (Art. 12) Freedom of Expression & Association: a) 1951 Refugee Convention: Right of Association - (Art. 15)

b) ICCPR: Freedom of Expression (Art. 19); Any advocacy of National, Racial or Religious Hatred Discrimination, Hostility or Violence is prohibited (Art. 20); Right of Peaceful Assembly (Art. 21); Freedom of Association (Art. 22). c) ICESCR: Right to Form & Join Trade Unions (Art. 8(a)); Right to Strike (Art. 8(d)). Access to Courts: d) 1951 Refugee Convention: (Art. 16)

that Incites

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9. MASS ARRIVAL
Characteristics of Mass Arrival: Large numbers of people arrive at an international border; There is a swift rate of arrival; There are inadequate absorption or response capacity in host states, particularly during the emergency phase; Individual status determination procedures, where they exist, are unable to deal with the assessment of such a large number of arrivals. Principle of Non-refoulement in Mass Arrival Context: The principle of non-refoulement applies in mass arrival situations and, as customary international law, it applies even when the country is not a signatory to the 1951 Refugee Convention. The duty of non-refoulement flows automatically and instantly by virtue of those being physically present and seeking refuge within a respective territory. This is because refugee status pursuant to the Convention arises from the nature of ones predicament rather than from a formal determination status.163 Moreover, no State can deny entry to refugees in a mass influx situation unless it is truly necessary to protect their most critical national interests.164 Because it is such an exceptional measure, suspension of protection must be carried out in a way that is minimally invasive of the human dignity of the refugee.165 UNHCR ExCom Conclusion No. 22: 166 1) In situations of large-scale influx, asylum seekers should be admitted to the State in which they first seek refuge and if that State is unable to admit them on a durable basis, it should always admit them at least on a temporary basis and provide them with protection according to the principles set out below. They should be admitted without any discrimination as to race, religion, political opinion, nationality, country of origin or physical incapacity. In all cases the fundamental principle of non-refoulement including non-rejection at the frontier-must be scrupulously observed.
167

2)

Issues pertaining to Mass Influx Situations: 1. Separation of family members; 2. Location of refugee camps in proximity to the border; 3. Relationship with the host country; 4. Forced recruitment and recruitment of child soldiers; 5. Sexual violence and extortion/coercion on both sides of the border; 6. Early separation of combatants and civilians in refugee reception centres; 7. Secure accommodation of unaccompanied women and children arriving in refugee reception centres;
163

James C. Hathaway, The Rights of Refugees under International Law (RRIL), Cambridge University Press, NY: 2005, p.278. 164 James C. Hathaway, RRIL, op.cit., p.359. 165 Ibid, p.360. 166 Executive Committee Conclusion No. 22 Protection of Asylum Seekers in Situations of Large-Scale Influx (1981) at Para II (A)(1) & (2). 167 Reach Out, A Refugee Protection Training Project, Module 7 Mass Arrival, October 2005, p.7.

62

8. Specific health needs of the elderly, infants, and pregnant and lactating women; 9. Psychosocial needs of those who have suffered traumatic experiences caused by the trauma of flight or conflicts with host communities: lack of receptiveness, competition over resources, etc; and 10. Conflicts with host communities: lack of receptiveness, competition over resources.

UNHCR ExCom Conclusion No. 22:168 (2) It is therefore essential that asylum seekers who have been temporarily admitted pending arrangements for a durable solution should be treated in accordance with the following minimum basic human standards: a) they should not be penalized or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful; they should not be subjected to restrictions on their movements other than those which are necessary in the interest of public health and public order; they should enjoy the fundamental civil rights internationally recognized, in particular those set out in the Universal Declaration of Human Rights; they should receive all necessary assistance and be provided with the basic necessities of life including food, shelter and basic sanitary and health facilities; in this respect the international community should conform with the principles of international solidarity and burden-sharing; they should be treated as persons whose tragic plight requires special understanding and sympathy. They should not be subjected to cruel, inhuman or degrading treatment; there should be no discrimination on the grounds of race, religion, political opinion, nationality, country of origin or physical incapacity; they are to be considered as persons before the law, enjoying free access to courts of law and other competent administrative authorities; the location of asylum seekers should be determined by their safety and well-being as well as by the security needs of the receiving State. Asylum seekers should, as far as possible, be located at a reasonable distance from the frontier of their country of origin. They should not become involved in subversive activities against their country of origin or any other State; family unity should be respected; all possible assistance should be given for the tracing of relatives; adequate provision should be made for the protection of minors and unaccompanied children;

b) c)

d)

e) f) g)

h) i) j)

Duty of International Solidarity: The duty of state parties to honor the customary international law principle of non-refoulement is, in effect, balanced against a duty of international solidarity owed by other state parties to the receiving country: Group Based Refugee Status Determination: In the context of a mass influx situation, it is not feasible to apply individualised refugee status determination. Nevertheless, it is acceptable that group-based protection mechanisms be implemented. In this way, a groupbased determination should be made at the outset based on prima facie recognition..169

168

Executive Committee Conclusion No. 22 Protection of Asylum Seekers in Situations of Large-Scale Influx (1981) at Para II B. 169 Prima facie means on its first appearance", or "by first instance". It is used in modern legal English to signify that on first examination, a matter appears to be self-evident from the facts.

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11.

DURABLE SOLUTIONS

International surrogate protection is a temporary alternative for the regular safeguards of national protection in ones country of origin. The goal of international protection is to achieve continuing and enduring solutions for refugee protection. International involvement must support the eventual realization of a durable solution, meaning a long-term secure outcome for the refugee population. Three durable solutions: a. Voluntary repatriation: b. Local integration; & c. Resettlement. The preferred solution is inextricably connected to the reasons for flight, as this will signify the probability for success of the durable solution. Often, a combination of durable solutions will be required as each refugees sex, race, time of flight, community of origin, and particular reasons for flight will have implications for the suitability of each of the three durable solutions for that person.170 Durable Solutions must address Refugees Legal and Physical Protection Needs: Durable solutions must prevent the immediate or long-term threat of refoulement to the country of origin or expulsion to an other country from where the refugee may be refouled; Durable solutions must prevent the threat of arbitrary arrest, detention, or imprisonment; Durable solutions must address the threat of physical safety or human rights violations in the country of refuge.

a)

VOLUNTARY REPATRIATION

Voluntary repatriation relates to a refugees decision to freely to return home after examining all available information about conditions in their country of origin. i. ii. The repatriation may be prearranged or spontaneous. However, in all instances, return must be voluntary and the decision must be well informed. Voluntary repatriation is considered to be the preferred durable solution171 both for refugees and for the international community.

It must be understood that state parties are not entitled to rely upon the fact of return to the refugees country of origin, even if undoubtedly voluntary, as a means of concluding Convention rights. Pursuant to Art. 1(C)(4) it is only when the refugee is re-established in her country of origin that refugee status ceases:

170 171

Reach Out, A Refugee Protection Training Project, Module 9 Durable Solutions, October 2005, p.4. UNHCR Executive Committee Conclusion No. 89, Conclusion on International Protection, (2000), at Preamble.

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This Convention shall cease to apply to any person falling under the terms of section A if: (4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; Nevertheless, because refugee status is envisaged as protection for the duration of the risk in the country of origin, state parties are no longer obligated to provide surrogate protection when the underlying risk ceases to exist.. Art.1(C)(5)-(6): This Convention shall cease to apply to any person falling under the terms of section A if: (5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; (6) Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence; Refugees must be able to return in safety and with dignity: Returning in safety requires that: a) b) c) Refugees return in circumstances that provide for legal safety. For example, public assurances of personal safety, non-discrimination, and freedom from fear of persecution; & Refugees can be assured of their physical security including protection from armed attack and from land mines; & Refugees have material security which incorporates access to land or a means of livelihood.

Returning with dignity demands that: a) b) c) d) e) Refugees will not be manhandled in the process of return; & Return is unqualified and unrestricted; & If the refugee is returning spontaneously, they can do so at their own pace; & Refugees are not arbitrarily separated from family members; & Refugees are treated with respect by national authorities who can feasibly guarantee and fully restore their fundamental human rights in a practical and enduring way.

It is important to note that repatriation frequently occurs under a tripartite agreement between the country of origin, the country of asylum, and UNHCR. Any abuses of these principles, in terms of the repatriation being involuntary or return being unsafe and undignified amounts to a violation of the customary international law principle of non-refoulement.
b)

LOCAL INTEGRATION / NATURALIZATION

Local integration refers to refugees who settle permanently in the country of asylum and can fully participate in the social, economic and cultural life of the host community.

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The focus here is moving beyond refugee status towards the acquisition of citizenship in the asylum country. Access to citizenship through naturalization is articulated by Art. 34 of the Refugee Convention. Nevertheless, Art. 34 is not framed as a strong obligation: it neither requires that the state parties ultimately grant their citizenship to refugees, not that refugees accept any such offer made to them.172 Art. 34. Naturalization: The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings. Moreover, the duties pursuant to the 1951 Refugee Convention of Art. 33, non-refoulement and Art. 32 non-expulsion, effectively require the first host country to continue to host and to honour the rights of refugees on an indefinite basis, absent a protection alternative.173 Art. 1C(3) This Convention shall cease to apply to any person falling under the terms of section A if: (3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; Local integration preconditions: On occasion, this may be the only viable durable solution. However, local integration can only be realized with the approval and vigorous involvement of the host government. Minimum prerequisites for integration to work as a durable solution:174 1. Full cooperation of the host government; 2. Sufficient external financial support; 3. Receptivity of the local population; 4. Viable economic context for self-reliance; 5. Full incorporation into the new society.
c)

RESETTLEMENT TO A THIRD COUNTRY

The concept of resettlement is born out of the international communitys endeavour to share responsibility for the refugee caseload. This ensures that one country does not carry the burden of hosting or integrating a disproportionate number of refugees. Resettlement in a third country involves the voluntary transfer of refugees from one country in which they sought refuge to another country that has agreed to admit them. Resettlement is frequently deemed an option of last resort. However, for many refugees, resettlement is in fact the best, or only, alternative. Nevertheless, resettlement is a solution that very few refugees can in fact access. Less than 1% of refugees are able to access
172 173

James C. Hathaway, RRIL, op.cit., p.981. Ibid, p.979. 174 Reach Out, A Refugee Protection Training Project, Module 9 Durable Solutions, October 2005, p.6.

66

resettlement as a durable solution.175 Moreover, not all refugees who satisfy the resettlement criteria will be resettled. Often, many refugees do in fact fulfil the criteria, but the quota for a specific caseload is full. Alternatively, some resettlement countries, particularly European States, will use additional criteria such as language, education or employment skills, which further restrict the opportunities available for those who would otherwise be eligible for resettlement. Resettlement as an essential tool for enduring protection: Refugees lives, liberty, safety, health, or other fundamental rights may be at immediate risk in the country of asylum because of their identity or because the country of refuge is unwilling or unable to protect them.176 Resettlement can also be employed to facilitate the special needs of a refugee that cannot be sufficiently dealt with in the country of refuge. For example, survivors of violence, torture, or severe trauma may fall into this category.177 Resettlement may be the only solution for refugees who have no possibility of returning home in the foreseeable future and who have no potential to integrate in the country of refuge.

When can resettlement be contemplated? 1. After establishing that a person is a refugee pursuant to Art. 1A(2) of 1951 Refugee Convention or any other binding regional instruments. 2. When a refugee is at risk in their country of refuge or has specific needs. 3. After completely investigating the likelihood of local resolutions. Legal Rights: Art. 30. Transfer of assets 1. A Contracting State shall, in conformity with its laws and regulations, permit refugees to transfer assets which they have brought into its territory, to another country where they have been admitted for the purposes of resettlement. 2. A Contracting State shall give sympathetic consideration to the application of refugees for permission to transfer assets wherever they may be and which are necessary for their resettlement in another country to which they have been admitted. Art. 31(2) Refugees unlawfully in the country of refuge: The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

175 176

Ibid, p.7. Ibid, p.7. 177 Ibid, p.7.

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12.

INTERNALLY DISPLACED PERSONS (IDPs)

As of 2010 there are 27.5 million internally displaced people,178 as compared to 15.4 million refugees.179 Thus, IDPs outnumber refugees. For decades these people have been largely ignored but together make up the worlds largest group of vulnerable people. While officially they are described as IDPs, in the real world, they are civilians, mostly women and children, who have been forced to abandon their homes because of conflict or persecution to seek safety elsewhere.180 IDPs Defined: The definition asserted in the UN Guiding Principles is recognized as the contemporary UN definition. However, it is a descriptive definition rather than a legal definition in that it does not allocate distinctive rights to IDPs under international law. IDPs, as citizens of their own country, should enjoy the same rights as other citizens. Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognised State border.181 Two essential factors: 1. Coerced or forced movement: Displacement is the result of circumstances that leave no other choice to people but to leave or flee, such as war, ethnic tensions, or natural disasters; 2. Victims have not crossed an international state border: IDPs remain within the country of their habitual residence. Most IDPs are generally citizens of the country in which they are displaced.

1.

CAUSES OF DISPLACEMENT MENTIONED IN THE DEFINITION:

International Armed Conflict (IAC): A. B. Common Art. 2: shall apply to all cases of declared war or or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.182 International armed conflict refers to fighting between the armed forces of at least two states Internationalized non international armed conflicts (INIAC): Some NIAC which should be treated as NIAC are for purposes of policy or reasons of IHL treated as IAC: I. Recognition of belligerency; civil war to reach a certain scale of intensity.

178 179 180

http://www.internal-displacement.org/publications/global-overview-2010 http://www.unhcr.org.au/unhcr/index.php?option=com_content&view=article&id=218&catid=35&Itemid=63 UNHCR, Internally Displaced People: Questions & Answers, 2006, p.4. 181 United Nations, Guiding Principles on Internal Displacement, (GPID) OCHA/IDP/2004/01, Introduction, para. 2. 182 Geneva Convention relative to the Treatment of Prisoners of War, 21 October 1950, at Art. 2.

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II.

National liberation movements fighting a war against the government that looks like a non-international conflict (ie; rebel group against government) but under Art. 1 (4) those conflicts will be treated as an IAC. Agency: the rebels in the NIAC actually come under the overall control of and act on behalf of a foreign government - they are the minions of the foreign government. An indirect intervention by an outside state. Ie; Bosnian Serbs in Bosnia were acting on behalf of the government in Belgrade and thus treats the state organ and the rebel movement as one entity which thus becomes an IAC.

III.

Non-International Armed Conflicts (NIAC): A. Shall apply to all armed conflicts . . . which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 183 NIAC occurs on the territory of a state as a civil war which can either take place between a government and a rebel group or between rebel groups.

Situations of Violence: Many IDPs reside in conditions of internal tensions or disturbances that cannot be defined as an IAC or a NIAC but include the use of force and other repressive measures by the government, agents of the government or rebel groups, to maintain or restore public order. Violations of human rights: This encompasses government breaches of the rights guaranteed by national, regional and international human rights law,(I.e; the ICCPR & ICESCR) and acts and omissions directly attributable to the state. This involves the failure of the State to protect such rights or to implement legal obligations pursuant to international human rights law principles. Arguably, the concept of persecution is aligned to some extent with circumstances involving the perpetration of human rights violations. Hathaway suggests that persecution is most appropriately defined as the sustained or systematic failure of state protection in relation to of the core entitlements which has been recognized by the international community.184 Disasters: Disasters can be natural or induced by human interference and include droughts, floods, earthquakes or typhoons, nuclear disasters or famine.185 Victims of disasters are recognized in the IDP definition as they can become targets for discrimination and the perpetration of human rights abuses as a direct result of their displacement. For example, they may be forced to relocate to an area in which they are a religious minority and as such will be discriminated against by the status quo. Natural or man-made disasters are also included because in some disasters governments respond by discriminating against or neglecting

183

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II), 8 June 1977. at Art. 1(1). 184 James C. Hathaway, The Law of Refugee Status, (LRS) Butterworths, Ontario: 1991, p.112. 185 IDMC and NRC, op.cit., ,p.2.

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certain groups of victims on political or ethnic grounds or by violating their rights in other ways.186 Climate Change: Another important cause of displacement is climate change and environmental degradation. Natural disasters transpire more frequently and are of a greater scale, with extraordinary humanitarian consequences.187 There are fast-growing numbers of people who can no longer gain a secure livelihood in their homelands because of drought, soil erosion, desertification, deforestation and other environmental problems. In their desperation, these environmental refugees feel they have no alternative but to seek sanctuary elsewhere, however hazardous the attempt.188 The increase of desertified regions, the scarcity of water, the erosion of coasts, the decline of arable land, and the damage of infrastructure by extreme weather are all factors that could undermine security.189 Myers claims that there were at least 25 million environmental refugees in the mid-1990s, and that this unrecognised category exceeded the then 22 million refugees as officially defined.190 He thought the number of environmental refugees might well double by the year 2010, and could rise even more quickly as a result of global warming.191 As many as 200 million people could eventually be at risk of displacement.192 A report released by the UN Environment Program (UNEP) to mark World Environment Day warns that the futures of hundreds of millions of people will be affected by declines in snow cover, sea ice, glaciers, permafrost and lake ice.193 As the High Commissioner for Refugees, Mr. Antonio Guterres, stated: When we look at the different models for the impact of climate change, the picture is very worrying. The need for people to move will keep on growing. One need only look at East Africa and the Sahel region. All predictions are that desertification will expand steadily. For the population, this means decreasing livelihood prospects and increased migration. And all of this is happening in the absence of international capacity and political will to respond.194 The issue of environmental refugees thus promises to rank as one of the foremost human crises of our times.195 Guiding Principle 6: 196 1. Every human being shall have the right to be protected against being arbitrarily displaced from his or her home or place of habitual residence.
186

Ibid. UNHCR, Internally Displaced Persons: The Role of the UNHCR, 6 March, 2000, p.3. 188 Norman Myers & Jennifer Kent, Environmental Exodus: An Emergent Crisis in the Global Arena, Climate Institute of Washington DC, 1995. 189 UNHCR News Stories, World Environment Day: UNHCR promotes sound environmental management in operations, 5 June 2007. 190 Norman Myers, "Environmental Refugees," Population and Environment, 1997, 19(2): 167-82. 191 Ibid. 192 Ibid. 193 UNHCR News Stories, World Environment Day: UNHCR promotes sound environmental management in operations, 5 June 2007. 194 Remarks of the UN High Commissioner for Refugees, Mr. Antonio Guterres, European Foundation Centre Conference, Madrid, June 1, 2007 195 Norman Myers, "Environmental Refugees," Population and Environment, 1997, p.175. 196 United Nations, GPID, op.cit., principle 6.
187

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The definition does not embrace persons who migrate for economic purposes. However, persons forced to flee from their homes because of economic injustice and marginalization tantamount to systematic violations of economic rights would come under the definition.197 Therefore, there may be racial, religious or political injustices directed against a specific group which underscores the economic measures influencing a persons livelihood ASSISTANCE AND PROTECTION FOR IDPS:

2.

The protection regime for IDPs:

Providing protection and humanitarian assistance to nationals, including internally displaced persons, is a primary responsibility and duty of the state. Sovereignty remains the foundation of international law and affirms that citizens are under the direct control of the state, and therefore includes IDPs displaced within their countries of origin. Additionally, it is the duty of state authorities to consult the international community in order to obtain the necessary assistance to fill in the gaps that the State is unable to manage. The State should embrace the humanitarian aid and services offered by the international community and provide international humanitarian organisations with uninhibited and swift access to the IDPs.

THE ROLE OF THE UNHCR: Assistance and protection has been provided to IDPs as a vulnerable population under the general umbrella of the office of the UN emergency relief coordinator.198 UN agencies have assumed roles in the areas of water, nutrition, health, logistics and telecommunications.199 Such concern arises from the similarity between internally displaced persons and refugees, in terms of the causes and consequences of their displacement and their humanitarian needs.200 Similar to refugees, the internally displaced have been forced to flee their homes as a result of fear of persecution, war and violence and are in need of protection and assistance, as well as a solution to their plight.

3.

LEGAL RIGHT TO PROTECTION FROM DISPLACEMENT:

Displacement by force is a denial of the right to freedom of movement and choice of residence since it deprives a person of the option to move or to remain and of selecting where to reside. Guiding Principle 5:201 All authorities and international actors shall respect and ensure respect for their obligations under international law, including human rights and humanitarian law, in all circumstances, so as to prevent and avoid conditions that might lead to displacement of persons.

197

IDMC and NRC, op.cit., ,p.2 UNHCR, Internally Displaced People: Questions and Answers, 2006, p.5. 199 Ibid, 200 UNHCR, Internally Displaced Persons: The Role of the UNHCR, 6 March, 2000, p.3. 201 United Nations, GPID, op.cit., principle 5.
198

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INTERNATIONAL HUMAN RIGHTS LAW: ICCPR - FREEDOM OF MOVEMENT: Art. 12(1): Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. (2): Everyone shall be free to leave any country, including his own. (4): No one shall be arbitrarily deprived of the right to enter his own country.

ICESCR: RIGHT TO FOOD, CLOTHING, HOUSING: Art. 11(1): The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. INTERNATIONAL HUMANITARIAN LAW: In situations of armed conflict: ADDITIONAL PROTOCOL II OF THE GENEVA CONVENTIONS - PROHIBITION OF FORCED MOVEMENT OF CIVILIANS: Art. 17(1): The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition. (2) Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.

LIMITATIONS OR RESTRICTIONS TO THESE RIGHTS: Guiding Principle 5:202 Principle 6(2) of the Guiding Principles further elaborates when limitations on peoples freedom of movement are considered arbitrary: The prohibition of arbitrary displacement includes displacement: (a) When it is based on policies of apartheid, "ethnic cleansing" or similar practices aimed at/or resulting in altering the ethnic, religious or racial composition of the affected population; (b) In situations of armed conflict, unless the security of the civilians involved or imperative military reasons so demand;
202

United Nations, GPID, op.cit., principle 5.

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(c) In cases of large-scale development projects, which are not justified by compelling and overriding public interests; For example, an electricity plant built without any government attempt to resettle or compensate those displaced. (d) In cases of disasters, unless the safety and health of those affected requires their evacuation; and (e) When it is used as a collective punishment. INTERNATIONAL HUMAN RIGHTS LAW: Art. 12 of the ICCPR: Art. 12(3): The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. Art. 11(1) of the ICESCR: Art 2: (1) Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (2) The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (3) Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals. Art 12 of the ICCPR and Art. 11 of the ICESCR are immediately binding but are derogable. This indicates that the only legal exceptions to their observance are those in times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed. Such rights can only be restricted to the extent strictly necessary, and cannot be discriminatory in its application. For example, a population cannot be displaced in times of emergency based on discrimination. The criteria for the suspension or restriction of these rights in the case of a national emergency is extremely stringent; a) It must be officially declared; and b) It must threaten the life of the nation; Therefore the suspension of restriction of such rights: Must be legally sanctioned & proclaimed. The State must inform the High Commissioner for Human Rights that such human rights have been suspended.

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These rights can only be suspended on a short term basis Must be an exceptional threat as opposed to routine discrimination Such a suspension of these civil and political liberties must be proportional to the risk.

INTERNATIONAL HUMANITARIAN LAW: In situations of non-international armed conflict persons are protected from forced displacement in international humanitarian law under Art. 17 of Additional Protocol II of the Geneva Conventions: 1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.

Imperative military reasons require a meticulous assessment of the situation, which can never be justified by political motives. The burden of justifying such action falls on the initiating party. 4. MINIMIZING THE EFFECTS OF DISPLACEMENT:

In light of the narrow circumstances in which a State can make a decision to displace a population, the displacement should not last longer than is required by the circumstances: Guiding Principle 7203 provides for the following steps to be taken to ensure the protection of internally displaced persons from a violation of the right to freedom of movement. 1. Prior to any decision requiring the displacement of persons, the authorities concerned shall ensure that all feasible alternatives are explored in order to avoid displacement altogether. Where no alternatives exist, all measures shall be taken to minimize displacement and its adverse effects. 2. The authorities undertaking such displacement shall ensure, to the greatest practicable extent, that proper accommodation is provided to the displaced persons, that such displacements are effected in satisfactory conditions of safety, nutrition, health and hygiene, and that members of the same family are not separated. Guiding Principle 8:204 States must also ensure that protection is provided during displacement: Displacement shall not be carried out in a manner that violates the rights to life, dignity, liberty and security of those affected. 5. DURABLE SOLUTIONS TO INTERNAL DISPLACEMENT:

Return In relation to internal displacement, return is used to describe the process of going back to one's place of 'habitual residence'. For example, returning to ones village. In many cases return may be the preferred durable solution, but it is habitually challenging to achieve.
203 204

Ibid, principle 7. Ibid, principle 8.

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Art. 12(4) ICCPR recognizes the right to enter ones own country, as well as the tight to choose freely ones own place of residence, which therefore includes the right to return to ones home region. Moreover, UNHCR has stated that the right to return to ones own country is increasingly seen as linked with the right to adequate housing.205 Resettlement In respect of internal displacement, resettlement depicts the process of starting a new life in any place other than the place of original residence, but still within the borders of the same country. Depending on the circumstances of displacement and the root causes of conflict, resettlement may be the only practical alternative for some IDPs. Re-integration The process that makes either return or resettlement sustainable or durable is the process of reintegration or integration. In the context of internal displacement, re-integration is used to illustrate the reentry of formerly internally displaced people into the social, economic, cultural and political fabric of their original community or the new community where IDPs have resettled. In both reintegration and integration, long-term assistance and/or protection may be needed by returning or resettling internally displaced.206 Guiding Principle 28:207 Voluntariness and conditions of safety and dignity: (1) Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons. (2) Special efforts should be made to ensure the full participation of internally displaced persons in the planning and management of their return or resettlement and reintegration. The Principles on Housing and Property Restitution for Displaced Persons: Due to the fact that IDPS generally flee their homes at short notice and without being able to secure their property, their remaining belongings may be susceptible to theft, destruction or arbitrary seizure by authorities: Guiding Principle 21:208 1. No one shall be arbitrarily deprived of property and possessions. 2. The property and possessions of internally displaced persons shall in all circumstances be protected, in particular, against the following acts:
205 206

UNHCR, Global Consultation on International Protection, Voluntary Repatriation, EC/GC/02/5, 25 April 2002. IDMC and the Norwegian Refugee Council (NRC),, Durable Solutions to Internal Displacement: Key Concepts, Training on the Protection of IDPs, p.1. 207 United Nations, GPID, op.cit., principle 28. 208 Ibid, principle 21.

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(a) Pillage; (b) Direct or indiscriminate attacks or other acts of violence; (c) Being used to shield military operations or objectives; (d) Being made the object of reprisal; and (e) Being destroyed or appropriated as a form of collective punishment. 3. Property and possessions left behind by internally displaced persons should be protected against destruction and arbitrary and illegal appropriation, occupation or use. Guiding Principle 29(2):209 The State authorities have the duty and responsibility to assist IDPS with recovery of their lost property and possessions. If recovery is not possible, appropriate compensation or other just forms of reparation should be anticipated. Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation

209

Ibid, principle 29.

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13.

VULNERABLE GROUPS

The concept of vulnerable groups refers to the special protection rights and needs related to gender, age, disability and health status. As previously highlighted, the rights and protection concerns of all refugees have been expressly recognized in numerous national and international instruments which guide humanitarian workers on how to identify and develop responses to the specific protection concerns related to gender, age, and ability or health status. Vulnerable groups: 1. Elderly 2. Children 3. Women (please refer to chapter 14) 4. People with mental or physical disabilities Fundamental Issues: 1. Children have particular protection needs as a result of their physical and emotional developments. Every child is at risk of sexual exploitation and abuse, which can emerge within the family, the refugee/IDP camp community and the wider society. Moreover, refugee and displaced children encounter added protection problems in respect to the sources and consequence of displacement. In this way, children separated from their parents or primary caregivers need to be provided with urgent assistance. Special protection concerns arise in relation to refugees who are elderly, disabled, or have HIV/AIDS. Protection and assistance programmes should incorporate their exclusive concerns into account as a fundamental part of the general protection of refugees. Generally, the elderly, disabled, or those with HIV/AIDS face persecution, discrimination, marginalisation and they do not have the capacity to live in dignity, with their human rights honoured.

2.

CHILDREN:
Usually more than half of any refugee population are children. The grounds for distinctive action on behalf of refugee children are well-established in both national and international law. Refugee children share certain universal rights with all other people, have additional rights as children and particular rights as refugees.210 Because of their dependence, vulnerability and developmental needs, children are granted explicit civil, economic, social and cultural rights in national and international law. Refugee children are also entitled to the international protection and assistance of UNHCR. In keeping with the Convention on the Rights of the Child, UNHCR considers a child to be a person below the age of 18 years, unless, under the law applicable to the child, majority is attained earlier.211

210

Office of the High Commissioner for Refugees Geneva, Refugee Children: Guidelines for Protection & Care, 1994, para. 16, p.3.
211

Convention on the Rights of the Child, 20 November, 1989, Art. 1.

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The need for special care and assistance:212 a) b) Children are vulnerable. They are susceptible to disease, malnutrition and physical injury. Children are dependent. They need the support of adults, not only for physical survival, particularly in the early years of childhood, but also for their psychological and social well-being. Children are developing. They grow in developmental sequences, like a tower of bricks, each layer depending on the one below it. Serious delays interrupting these sequences can severely disrupt development.

c)

Levels of Care & Obligation: 1. 2. The primary responsibility for guaranteeing childrens survival and welfare rests with parents, family, and the wider community. The national and local authorities are responsible for ensuring that childrens rights are respected. Any external support should aspire to boost the communitys capacity to meet childrens protection entitlements and to enable access to such rights. In some cultures, the family is defined as the childs immediate relatives: their parents and siblings. In other cultures, the family is defined by a much broader extended family that includes grandparents, aunts, uncles, and more-distant relatives within a clan, village, or community. Conduct relating to the care of children may differ, but all societies recognise that the natural unit for the development of a child is the family. This is why re-establishment of family links is imperative. The international community also provides protection for the child through the creation of international legal principles, many of which have been preserved in treaties and then ratified and domesticated into the respective states national legislation.

3.

4.

Rights of the Child Convention: The Convention on the Rights of the Child provides a comprehensive framework for the responsibilities of its States Parties to all children within their borders, including those who are of concern to UNHCR. The CRC is the most comprehensive instrument as it relates solely to children and as such, it offers the highest standards of protection and assistance for children of any international treaty. CRC is the most widely ratified international instrument in the history of international law. 190 State parties have ratified it with the exception of the USA and Somalia. The rights in the CRC are indivisible, and it should therefore be interpreted in a holistic manner. The CRC has no derogation clause, which means that it applies all the time, to all children with no exception. The four core principles of the CRC are: 1. Children should not suffer discrimination (this has obvious implications for refugee children, who are often considered as a category apart from other refugees); 2. In all actions concerning children, the best interests of the child shall be a primary consideration 3. Children have a right to survival and development 4. Children have a right to participate in decisions that affect them.

212

Office of the High Commissioner for Refugees Geneva, Refugee Children: Guidelines for Protection & Care, 1994, Preface.

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UNHCR: UNHCR is committed to protecting and providing adequately for the needs of all children within its competence as refugee children are a policy priority for UNHCR. Promoting respect for the rights of refugee girls and boys, including adolescents, of diverse backgrounds and abilities is UNHCRs responsibility. UNHCRs Executive Committee has adopted three Conclusions specifically regarding refugee children: Refugee Children - Conclusion No. 47 (XXXVIII):213 Urged action aimed at addressing the human rights and needs of children who are refugees; Highlighted the particular vulnerability of unaccompanied and disabled refugee children and the need for action by UNHCR to protect and assist them; Recommended regular and timely, people-oriented assessment and review of the needs of refugee children; Recognized the need to promote cooperation between the Office and other concerned agencies and bodies; & Refugee Children - Conclusion No. 59 (XL):214 The Executive Committee reaffirmed and expanded upon the need for particular attention to the needs of refugee children; Gave examples of how these needs could be assessed, monitored and met; Drew special attention to UNHCRs particular need to ensure the right of refugee children to education, as well as their protection from military recruitment and irregular adoption. It urged UNHCR to intensify its efforts in the area of public awareness of these issues. In particular the effects of persecution and armed conflict on refugee children; Urged UNHCR to develop training materials to improve the capacity of field staff to identify and address refugee childrens protection and assistance needs. Children at Risk - Conclusion No. 107 (LVIII): 215 Affirming that children, because of their age, social status and physical and mental development are often more vulnerable than adults in situations of forced displacement; Recognizing that forced displacement, return to post-conflict situations, integration in new societies, protracted situations of displacement, and statelessness can increase the vulnerability of children generally; Taking into account the particular vulnerability of refugee children to being forcibly exposed to the risks of physical and psychological injury, exploitation and death in connection with armed conflict; Acknowledging that wider environmental factors and individual risk factors, particularly when combined, can put children in situations of heightened risk; & Acknowledging that, while both girls and boys face many of the same protection risks, they also experience protection challenges specific to their gender, and reaffirming that, while many risks may be prevalent in all settings, camp and urban environments may generate different protection needs.

213 214

Executive Committee Conclusion, Refugee Children, No. 47 (XXXVIII) 1987. Executive Committee Conclusion, Refugee Children, No. 59 (XL) 1989. 215 Executive Committee Conclusion on Children at Risk, 5 October 2007. No. 107 (LVIII) - 2007

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UNHCRs 5 Main Global Priority Issues:216 Priority issue #1: Separation from families and caregivers:217 Separation of children from their families or caregivers should be prevented. For those girls and boys who have been separated, it is important to identify, register and document them in order to provide protection and undertake tracing of parents or primary caregivers. Family reunification should occur if it is in the best interests of the child. Monitoring of all interim care arrangements should be undertaken regularly by UNHCR and partners as temporary care can present other problems for these girls and boys. Durable solutions must be tailored to their needs. Priority issue #2: Sexual exploitation, abuse and violence:218 Refugee girls and boys have to be protected from sexual exploitation, abuse and violence as well as HIV/AIDS, teenage pregnancies and harmful traditional practices. This is the responsibility of the host government, the refugee community and humanitarian organizations. Abuse can be prevented through awareness raising, ensuring improved access to assistance and education as well as safe living conditions and school environments. Response mechanisms include health care, psycho-social support, measures to ensure the safety of the victim/survivor and legal redress. Priority issue #3: Military recruitment:219 A refugee child may be recruited compulsorily, forcibly or voluntarily by armed groups or forces. Both girls and boys participate in fighting as well as take on other duties as porters, cooks, cleaners, and messengers. Girls are at a higher risk of sexual abuse, forced marriage and pregnancy. These risks can be prevented by providing alternatives such as enrolment in schools and training centres. While recognizing that girls and boys may have different needs, they should benefit in an equitable manner from disarmament, demobilization, and reintegration programs. Priority issue #4: Education:220 Girls and boys of all ages have a right to equal access to quality education in a safe environment. Education, including literacy and vocational training, serves as an important tool to protect them from sexual and gender-based violence (SGBV), HIV and AIDS, military recruitment, crime and drugs. It adds to a sense of normality in everyday life and provides them with skills and knowledge for the future. Priority issue #5: Specific concerns of adolescents:221 In refugee situations, younger children are often being cared for while their communities and organizations tend to overlook the needs of adolescents, who may also be heading households. Based on participatory processes with adolescent girls and boys, opportunities for formal and non-formal education, skills-training, income generating activities/employment, participation in decision-making processes, recreational activities and life-skills education should be created.

216 217 218

Summary Note, UNHCRs Strategy and Activities concerning Refugee Children, Geneva, October 2005, p.2. Ibid, p.3. Ibid, pp.3-4. 219 Ibid, pp.4-5. 220 Ibid, p.5. 221 Ibid, pp.5-6.

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HIV/AIDS
Conflict, displacement, food insecurity and poverty offer fertile ground for the spread of HIV/AIDS which has emerged as the most devastating disease humanity has ever confronted. In 2001, UNAIDS reported that AIDS has become the leading cause of death in Sub-Saharan Africa and the fourth leading cause of death worldwide.222 Furthermore, the report acknowledges extreme reductions in life expectancy in many countries.223 Therefore, the prevention and mitigation of HIV/AIDS must be seen as a fundamental part of the overall protection of refugees. In accordance with the UN Special Session Declaration of Commitment on HIV/AIDS 224 and the international Guidelines on HIV/AIDS and Human Rights,225 UNHCR adopts a rightsbased approach in all its programs and protection activities related to HIV/AIDS. Based on a human rights framework, it has three main objectives: 1. 2. To ensure that refugees live in dignity, free from discrimination, with their human rights respected;226 To ensure that a minimum and coordinated package of HIV/AIDS programs is provided in refugee emergency situations (safe blood supply; adherence to universal medical precautions; condom distribution; basic health care including treatment of sexually transmitted infections and contact tracing; HIV information, educationcommunication (IEC) materials; orphan tracing and protection and care of survivors of sexual violence);227 To implement multi-sectoral and comprehensive HIV/AIDS pilot programs in more stable situations that link prevention to care and reinforce surveillance, monitoring and evaluation.228

3.

Limited scope of UNHCR activities in returnee situations:229 HIV/AIDS prevention and care programs for returnees are primarily the responsibility of the Government of the country of origin, supported by UNAIDS and its co-sponsors. Thus, UNHCRs activities in these situations will mainly focus on: Sharing information with the country of origins National Aids Control Program about the status of HIV/AIDS programs for refugees in the country of asylum. Sharing information with refugees about the status of HIV/AIDS programs for nationals in their country of origin. Providing specific inputs as the need arises and based upon the available resources of UNHCR and the country of origins NACP.

222 223

UNHCR, UNHCRs Strategic Plan 2002-2004; HIV/AIDS & Refugees, 19/02/2002, p.1. Ibid. 224 The UN General Assembly at its Special Session called on States, by the year 2003, to enact, strengthen or enforce as appropriate, legislation, regulations and other measures to eliminate all forms of discrimination against, and to ensure the full enjoyment of all human rights and fundamental freedoms by, people living with HIV/AIDS and members of vulnerable groups; in particular, to ensure their access to, inter alia, education, inheritance, employment, health care, social and health services, prevention, support, treatment, information and legal protection, while respecting their privacy and confidentiality; to develop strategies to combat stigma and social exclusion connected with the epidemic. 225 See HIV/AIDS and Human Rights: International Guidelines, UNHCHR/UNAIDS, Geneva, 23-25 September 1996. 226 UNHCR, UNHCRs Strategic Plan 2002-2004; HIV/AIDS & Refugees, 19/02/2002, p.2. 227 Ibid, pp.2-3. 228 Ibid, p.3. 229 UNHCR, UNHCRs Strategic Plan 2002-2004; HIV/AIDS & Refugees, 19/02/2002, p.7.

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ELDERLY:

Older refugees make up about 10 per cent of the population of concern to UNHCR.230 Frequently, the elderly are over-represented in refugee populations and the majority of such elderly persons are women. Of course, definitions of "older reflect average life expectancy of the region concerned; they range from the age of 46 in Ethiopia to 73 in Venezuela.231

DISABLED REFUGEES:
Disabled persons who have to leave their countries find themselves in particularly disadvantaged situations. Disabled refugees are an extremely vulnerable group and are, therefore, in need of special attention. However, there are no legal instruments at an international level, as such, to protect the rights disabled refugees. Disabled refugees can only refer to scattered provisions of conventions, instruments and international humanitarian law. Factors Affecting the Elderly & Disabled: 1. Social disintegration; the main factors behind the erosion of social support systems, whether formal or informal, are economic decline, resulting in a drastic reduction of living standards for the poorest with refugees among the hardest hit and the separation and dispersal of families as a result of war, flight and economic or security pressures, resulting in a rise in the number of unaccompanied elderly and disabled persons in need. In many cases, families have had to make painful choices about abandonment in order to survive;232 Protection concerns for unaccompanied elderly and disabled refugees; unaccompanied elderly and disabled refugees in developing countries may face situations of utmost misery and destitution. In both the Sudan and Yemen, the poorest among them may live a totally marginalized existence as beggars and may never even come to the notice of UNHCR and aid agencies. Due to bad nutrition, appalling living conditions and lack of medical attention, they are invariably prone to illness and their life expectancy is severely curtailed;233 Negative social selection in camps and collective centres, where the young, healthy, and able-bodied are the first to depart, leaving behind the more vulnerable members of the group, including the elderly and the disabled;234 Chronic dependency in many refugee situations, which produces, over time, a residual caseload of solitary older and disabled refugees who have not found a durable solution, are unable to secure state benefits or family support, and may become dependent on UNHCR for long periods of time.235

2.

3.

4.

230 231 232

UNHCR, The Situation of Older Refugees, (EC/48/SC/CRP.39), at para.2. Ibid. Ibid, at para.4. 233 Ibid, at para.7. 234 Ibid, at para.8. 235 Ibid, at para.11.

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14. GENDER BASED VIOLENCE (GBV):

Gender based violence involves aggression against and exploitation of women, because [they] are women, systemically and systematically.236 Even though women can be abused similarly to the ways in which men are abused, women are also violated in specific ways in which men are not. Notably, if men are violated in such ways, they become the exception to the rule. Many of these sex-specific violations are sexual and reproductive237 including rape, sexual murder, battery, honor killings, suttee, dowry burnings, Female Genital Mutilation (FGM), prostitution, forced abortion, sterilization and motherhood and sexual violence of any kind. A 1989 UN report declares that the risk of violence and violation within the household is one thing women, irrespective of their social position, creed, color or culture, share in common.238 PERPETRATORS: Perpetrators of GBV may include family members, community members, or those acting on behalf of cultural, religious, state, or intrastate institutions

1. a) b) c) d) e) f)

CATEGORIES OF GBV: Sexual violence: Rape, forced prostitution, incest, sexual abuse; Physical violence: Trafficking, slavery; Emotional & psychological violence: Abuse, humiliation, confinement; Harmful traditional practices: Female genital mutilation, early marriage, honour killing; Socio-economic violence: Discrimination, social exclusion/ostracism based on sexual orientation, forced sterilization and abortion. In the context of the Millennium Development Goals, the abuse of power in the family in relation to preventing female children from going to school or playing, or even having the same food as their brothers and being discriminated against is a form of GBV.

Expanded Definition of SGBV:239 Gender-based violence is violence that is directed against a person on the basis of gender or sex. It includes acts that inflict physical, mental, or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. While women, men, boys, and girls can be victims of gender-based violence, women and girls are the main victims.

2.

236

GBV THAT OFTEN OCCURS DURING & FOLLOWING CONFLICT INCLUDES:

Early and/or forced marriage; Female infanticide;

Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, The Belknap Press of Harvard University Press: Cambridge, 2006, p.29. 237 Ibid, p.181. 238 Un Center for Social Development and Humanitarian Affairs, Violence Against Women in the Family 20 (1989). 239 Based on Articles 1 and 2 of the UN General Assembly Declaration on the Elimination of Violence against Women (1993) and Recommendation 19, paragraph 6, of the 11th Session of the CEDAW Committee; Sexual and Gender-Based Violence against Refugees, Returnees and Internally Displaced Persons, Office of the United Nations High Commissioner for Refugees, Geneva 2003, p. 11.

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Enforced sterilisation or pregnancy; Domestic violence; Forced or coerced prostitution or other forms of sexual exploitation; Trafficking in women, girls, and boys; Intentional HIV transmission; Forced sale of children.

Throughout history, GBV has been an integral component of armed conflict. GBV is often used to express the authority of the victors and as a tool of psychological warfare to spread terror and panic amongst the enemy. Such violence is frequent in countries where total impunity of perpetrators is the rule, following the collapse of police and legal systems and the total chaos inherent in war.240 Sexual violence is often systematic for the purposes of destabilising populations and destroying bonds within communities and families, advancing ethnic-cleansing, expressing hatred for the enemy, or supplying combatants with sexual services. The use of rape as a weapon of war has increased dramatically in recent years in conflict areas. For example, in the former Yugoslavia, in Rwanda and now currently in Darfur and the DRC. Furthermore, GBV has also been used to destroy another ethnic group by eliminating women or having them give birth to children of mixed ethnicity, who in turn are likely to be outcasts.

3.

LINK BETWEEN GENDER BASED CRIMES AND HUMAN RIGHTS LAW:

No international instrument expressly prohibits gender-based crimes. There is no enumerated ground in any international convention that includes based on sex or gender as an element. For example, in Art. 1A(2) of the 1951 Refugee Convention an individual can only apply for surrogate protection when they posses a: Well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Moreover, there are only rare references to sex or gender in international humanitarian law or to any crimes that include sex as an element.241 Crimes against humanity, which can often be gendered, for example rape, sexual slavery, enforced prostitution and forced pregnancy, are not a component of treaty law, they are characterized as international customary law. Hence there is no duty to prevent such atrocities and very little impetus for one state to interfere in anothers internal affairs. However, it must be noted that the Rome Statute of the International Criminal Court (ICC) changed this:

240

United Nations, Women, Peace and Security, study submitted by the Secretary-General pursuant to Security Council Resolution 1325, 2002, p. 2. 241 Kelly D. Askin, Women and International Humanitarian Law in Women and International Human Rights Law, Volume 1 (Kelly D. Askin and Dorean M. Koenig, eds) Transnational Publishers: NY, 1998. pp.45-47.

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Art. 7(1)(g) ICC: 242 For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; In Art.7(1)(h) the ICC defined persecution on the basis of gender as a crime against humanity; For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3 . . . Furthermore, while many international crimes are based on sex, for example, rape in war and trafficking in women, international law has a tendency to suppress their gendered element.243 There is no international crime which acknowledges the destruction of women as women, as a group or as members of the group.244 Equality is an abstract notion steeped in natural law. For example, the Universal Declaration of Human Rights (UDHR) bestows equality without distinction of any kind.245 Art. 2 UDHR: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. However, if legal equality is to treat similarly situated people alike, and women are defined as different, then women should not be treated similarly. Hence, distinction is not the problem and the lack of distinction is clearly not the resolution.246 Furthermore, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) classifies such discrimination against women in largely gender-neutral and referential terms.247 CEDAW guarantees the enjoyment of rights on a basis of equality of men and women.248 Art. 1 CEDAW: For the purposes of this Declaration, the term "violence against women" means any act of gender based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. However, this has been construed non-substantively and claims by individuals or groups, claims against governments who remain inactive and claims against private parties have
242 243

The Rome Statute of the International Criminal Court. July 17, 1998, U.N Doc A/CONF.183/9. Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.192. 244 Ibid. 245 Universal Declaration of Human Rights, art. 2 General Assembly Resolution 217 A (III) of Dec, 10, 1948. 246 Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.153. 247 Ibid. 248 CEDAW pt. I, art. 1, adopted Dec. 18, 1979.

85

been regarded as impermissible.249 Nevertheless, the CEDAW committee has finally recognized violence against women as a type of sex discrimination, thus making states accountable for private acts if they fail to prevent, investigate or punish discriminatory acts of violence.250 Moreover, while Art. 3 and 26 of the International Covenant on Civil and Political Rights (ICCPR),251 guarantees sex equality, only the Optional Protocol allows complaints by individuals coupled with state parties.252 Art. 3 ICCPR: The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. Art. 26 ICCPR: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Nonetheless, only those states that have expressly signed and accepted this Optional Protocol can enable individuals or groups of that state to report breaches of the Convention. Many states who are signatories to the ICCPR have not signed onto the Optional Protocol. For example, the United States has not signed or ratified the protocol and only after the war did the former Yugoslavian states separately sign on.253 The ICCPR cannot be interpreted retrospectively, thus successfully denying victims of the war in the former Yugoslavia from reporting past atrocities. Furthermore, the International Court of the Former Yugoslavia (ICTY) has inherited the present construction of humanitarian crimes in its founding statute, which seeks to diminish womens harm and has yet to expressly distinguish gender based crimes. In Art. 5(g) of the ICTY statute, rape is only established as a crime against humanity, not as a tool of genocide:254 The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape;
249 250

Catherine A. MacKinnon, Are Women Human? And Other International Dialogues, op.cit., p.153. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19, Violence Against Women, CEDAW/C/1992?L/1/Add.15, Jan. 29, 1992. 251 ICCPR, General Assembly Resolution 2200A (XXI) of 16 December 1966. 252 Optional Protocol to the International Covenant on Civil and Political Rights, General Assembly resolution 2200A (XXI) of 16 December 1966. 253 ; Ibid, Bosnia and Herzegovina signed 1 March 1995; Croatia incorporated the protocol into its domestic legislation on 12 October 1995; Serbia signed 12 March 2001. 254 Statute of the International Criminal tribunal for the Former Yugoslavia, adopted May 25, 1993 by S/RES/827 (1993) art. 5(g).

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(h) persecutions on political, racial and religious grounds; (i) other inhumane acts.

Hence there is only a limited practical and bona fide link between the types of sexual and reproductive atrocities committed against women, as women, and the international human rights law available to such victims to hold the perpetrators accountable or to seek surrogate protection.

4.

REFUGEE & IDP WOMEN & GIRLS - BEYOND LEGAL MEASURES:

International protection transcends the observance of law. The protection of refugee women and girls requires preparation and common sense in creating and implementing programs that provides for their security and welfare. Daily Reality:255 Refugee women who are unable to feed, clothe and shelter themselves and their children will be more vulnerable to manipulation and to physical and sexual abuse in order to obtain such necessities. Refugee women who are detained among strangers and/or where traditional social protection systems no longer exist, will face greater dangers than those living among family and friends. Refugee women who must bribe guards to obtain firewood, water or other essential goods will be more susceptible to sexual harassment. Moreover, refugee women who formerly had a means of expressing their views in the community may find themselves unable to do so in the camp management committees established by assistance organizations. Key Issues - Emergency Stage:256 a) b) c) d) e) f) g) h) i) j) k) Prevention of attacks on refugee women in crossing the border. General knowledge of the demographic profile of the refugee population by gender and age. Participation of refugee women in planning and implementation of assistance services and protection measures. Physical organization and location of camps to ensure greater protection. Assistance policies that ensure that single refugee women and women-headed households gain access to food, shelter, health care, clean water, firewood, etc. Access of women to registration documents in their own names. Access of women asylum applicants, where applicable, to a fair hearing to determine their refugee status. Identification of particularly vulnerable populations to ensure that their protection receives special attention. Reunification of families separated during flight. Ensuring staff are sufficiently aware of needs of women to include social factors in planning. Ensuring an adequate number of women staff, particularly as protection workers and health workers.

255
256

UNHCR, Guidelines on the Protection of Refugee Women, Geneva, July 1991, at para.9. Ibid, at para. 23.

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Key Issues - Long-Term Refugee Situations:257 a) b) c) d) e) f) g) h) Demographic profile of the refugee population by gender and age. Participation of refugee women in planning and implementation of assistance, services and protection measures. Prevention of attacks on refugee women in refugee camps. Physical organization and location of camps to ensure greater safety and security for refugee women. Assistance policies that ensure that single refugee women and women-headed households gain access to food, shelter, health care, clean water, firewood, etc. Access of women to registration documents in their own names. Access of women to income-generation and skills-training programs to ensure their ability to support themselves and their families. Access of refugee women to programs for voluntary repatriation, resettlement and local integration and the information needed to make informed choices about durable solutions. Recruitment and training of staff, including women, who are sensitive to incorporating women's issues in planning and implementation of programs.

i)

257

Ibid.

88