August 7, 2014

VII. Legal Standards

Nonrefoulement in international refugee law is the principle that a state cannot return a refugee or asylum seeker to a country where there is a risk that his or her life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. The principle is recognized as customary international law, and is also guaranteed through the 1951 Refugee Convention and its 1967 Protocol. Refugee status is declaratory, that is it is derived from the recognition that a person meets the refugee definition, rather than a status that is conferred. As such, the fundamental principles of refugee protection apply equally to asylum seekers who have not yet been formally recognized as refugees.

Although not a party to the 1951 Refugee Convention or its 1967 Protocol, Jordan is nevertheless bound by customary international law not to return refugees to a place where their lives or freedom would be threatened. The Executive Committee of the United Nations High Commissioner for Refugees (UNHCR ExCom), of which Jordan is a member, adopted Conclusion 25 in 1982, declaring that “the principle of nonrefoulement ... was progressively acquiring the character of a peremptory rule of international law.”[104] A peremptory norm is one that is so fundamental that it is binding on all states, regardless of their practice or endorsement.

A state’s nonrefoulement obligation applies both on its territory and at its borders. In its October 2004 meeting, UNHCR ExCom issued Conclusion 99, which calls on states to ensure “full respect for the fundamental principle of nonrefoulement, including non-rejection at frontiers without access to fair and effective procedures for determining status and protection needs.”[105] Fair and effective procedures for determining status and protection needs are currently lacking at the border for arrivals from Syria in Jordan, and the massive numbers arriving make individualized refugee status determinations unfeasible for the time being.

UNHCR characterizes the Syrian situation as a “massive refugee exodus.”[106] UNHCR ExCom’s Conclusion 22 of 1981 on the Protection of Asylum Seekers in Situations of Large-scale Influx says:

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...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 nonrefoulement – including non-rejection at the frontier – must be scrupulously observed.[107]

The practical consequence of the application of the principle of nonrefoulement at the border requires Jordan to allow asylum seekers who are part of a mass influx fleeing widespread human rights abuses and generalized violence to enter the country, at least temporarily, to ensure that no one is returned to persecution.

In addition to its customary international law obligations, Jordan is a party to the Convention Against Torture,the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child, all of which contain nonrefoulement obligations, where there is a real risk that returning an individual would lead to a violation of a fundamental human rights such as freedom from torture.[108] Moreover, the government of Jordan has repeatedly agreed to uphold its obligation not to return asylum seekers. In the Memorandum of Understanding Jordan signed with UNHCR in April 1998, it agreed:

In order to safeguard the asylum institution in Jordan and to enable UNHCR to act within its mandate ... it was agreed ... that the principle of nonrefoulement should be respected that no refugee seeking asylum in Jordan will be returned to a country where his life or freedom could be threatened because of his race, religion, nationality, membership of a particular social group, or political opinion.[109]

When Jordan presented its candidacy to the UN Human Rights Council on April 20, 2006, it formally provided the United Nations with its pledges and commitments to promote and protect human rights. It said:

Over the last decades, the country has given shelter and protection to many waves of refugees; Jordan, as a long-standing host country, reiterates its commitment to fulfilling its obligations in accordance with the principles of international refugee law including those which are peremptory as well as international human rights law.[110]

Jordan reiterated this commitment in March 2012 before the United Nations Committee on the Elimination of Racial Discrimination, where the Jordanian delegate is reported as saying that “although his country was not a signatory to the 1951 Convention relating to the Status of Refugees, it had always recognized and upheld the peremptory norms of international refugee law, notably the principle of non-refoulement.”[111]

Jordan’s statements formally recognize that refugee protection is an obligation, and that it is committed to fulfilling this obligation. For refugees, the most fundamental of these norms is the principle of nonrefoulement.

Jordan claims that its discriminatory treatment of Palestinians from Syria is necessary to preserve national security, yet it is plain that they are fleeing the same wartime conditions as other residents of Syria. In situations of mass influx, screening for refugee status may be impracticable, but UNHCR Excom’s Conclusion Number 22 states that asylum seekers should be admitted and protected at least on a temporary basis, that their admission should be without discrimination with regard to their national origin, and that the principle of nonrefoulement should be scrupulously observed.[112]

There is no valid basis in international refugee law to turn back refugees simply on the basis of their ethnic or national origin. Individuals may be excluded from refugee status for having committed a war crime, a crime against peace, or a crime against humanity.[113] They may also be excluded from refugee status for having committed a serious non-political crime outside the country of their refuge.[114] However, exclusions on these bases must be established individually after a person has been recognized as otherwise qualifying for refugee status. A statement of criminal status cannot be imputed to any group as a whole on the basis of historical circumstances or past political affiliation. In any event, it is doubtful that such exclusions apply to many, if any, Palestinians seeking entry from Syria.

Recognized refugees may also be denied protection from refoulement, but in very narrow circumstances.[115] Where, after admission to the country of refuge, a refugee is convicted by a final judgment of a particularly serious crime and is deemed to constitute a danger to the community, refoulement on Refugee Convention grounds may be legally permissible.[116] However, UNHCR has advised that this exception would need to be narrowly construed, and confined to situations where refoulement is the last resort in the face of a serious danger to the country, and where the risks to the host community outweigh the risks of persecution on return.[117] So far, Human Rights Watch is unaware of any case where a Palestinian fleeing Syria was returned or excluded because of a final judgment of a court of a particularly serious crime. Even were an individual found to have been convicted of participation in Black September, for example, it would be unlikely that some forty years later they would still present a serious danger to the community and a threat to the Jordanian state. Human rights law, in particular the Convention Against Torture, bars any government from returning anyone without exception to a place where they would be at risk of torture.[118] So, persons judged as being excluded from the protection of the Refugee Convention may still be protected by nonrefoulement guarantees of human rights law pertaining to torture, which are nonderogable.

[104] UN High Commissioner for Refugees (UNHCR), “General Conclusion on International Protection, No. 25 (XXXIII) – 1982,” October 20, 1982, http://www.unhcr.org/excom/EXCOM/3ae68c434c.html (accessed May 25, 2014).

[105] UN High Commissioner for Refugees (UNHCR), “General Conclusion on International Protection, No. 99 (LV) – 2004,” October 8, 2004, http://www.unhcr.org/excom/EXCOM/41750ef74.html (accessed May 25, 2014).

[106] UN High Commissioner for Refugees (UNHCR), “Remarks to the United Nations Security Council António Guterres, United Nations High Commissioner for Refugees 27 February 2013,” February, 27, 2013, http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=512f4b082 (accessed May 25, 2014).

[107] UN High Commissioner for Refugees (UNHCR), “Protection of Asylum-Seekers in Situations of Large-Scale Influx,” October 21, 1981 http://www.unhcr.org/excom/EXCOM/3ae68c6e10.html (accessed May 25, 2014)

[108] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987; International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976; Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990.

[109] UN High Commissioner for Refugees (UNHCR), “Memorandum of Understanding between the Government of Jordan and UNHCR,” April 5, 1998. Available at: mawgeng.unblog.fr/files/2009/02/moujordan.doc (accessed May 25, 2014).

[110] Letter from the Permanent Mission of the Hashemite Kingdom of Jordan to the United Nations to United Nations Secretary-General Kofi Annan, April 20, 2006. Available at: http://www.un.org/ga/60/elect/hrc/jordan.pdf (accessed May 25, 2014).

[111]Committee on the Elimination of Racial Discrimination, “Consideration of reports, comments and information submitted by States parties under article 9 of the Convention, Thirteenth to seventeenth periodic reports of Jordan,” CERD/C/SR.2154, March 8, 2012, http://www.bayefsky.com/summary/jordan_cerd_c_sr2154_2012.pdf (accesssed May 25, 2014), para. 9.

[112] Protection of Asylum-Seekers in Situations of Large-Scale Influx UNHCR Executive Committee Conclusion No. 22 (XXXII) - 1981, October 21, 1981 (http://www.unhcr.org/3ae68c6e10.html) accessed July 2, 2014.

[113] See Refugee Convention, art. 1(F)(a).

[114] See Refugee Convention, art. 1(F)(b).

[115] Nothing in our research has suggested that Palestinians are being denied entry or stripped of citizenship because of allegations they personally were involved in the Black September events. However, even if any individuals were personally or directly implicated in those long-ago clashes, we have not discovered facts that would actually justify such actions by the Jordanian state.

[116] See Refugee Convention, art. 33(2).

[117] See UN High Commissioner for Refugees (UNHCR), Advisory Opinion from the Office of the United Nations High Commissioner for Refugees (UNHCR) on the Scope of the National Security Exception Under Article 33(2) of the 1951 Convention Relating to the Status of Refugees, 6 January 2006, available at: http://www.refworld.org/docid/43de2da94.html [accessed 27 June 2014

[118] Convention Against Torture, Article 3.1.