Background: Refugee Convention Violations

Human Rights Watch identified six core principles enshrined in the Refugee Convention that states regularly violate:

• Nonrefoulement
• Detention of asylum seekers
• Refugee definition: inclusion and exclusion
• Non-discrimination
• Compliance with the Convention
• International cooperation

The obligation of states not to return a refugee, in any manner whatsoever, to a country where his or her life or freedom would be threatened lies at the core of the Refugee Convention (Article 33). Non-refoulement is also a well-established principle of customary international law. Yet states continue to return refugees, either directly or indirectly, to countries where their lives are at risk.

• Refoulement can include countries closing their borders and refusing to allow asylum seekers entry - as witnessed when Pakistan, Iran, Tajikistan, and Uzbekistan closed their borders to refugees from Afghanistan

• Refoulement can also occur when asylum seekers are intercepted at sea or in transit, and are denied access to full and fair determination procedures, as has taken place in the U.S., Greece, the U.K. and in other members states of the E.U. Australia sparked an international incident in August when it refused to allow a boatload of some 438 asylum seekers, most of them Afghans, to reach Australian territory. In September, Australia introduced new legislation that allowed it to intercept asylum seekers arriving at any of its off-shore territories, deny them the opportunity to apply for asylum, and either send them to another Pacific island or simply return them to sea. The lives of hundreds of refugees, including women and children, have been put at risk by these policies, which could violate non-refoulement obligations.

• Fearing an influx of Afghan refugees in the aftermath of the September 11 attacks, the Greek government announced that it would not consider asylum applications from Afghan asylum seekers. Although the government subsequently reversed its decision in the wake of international protest, Greek coastguards continue to shadow boats carrying asylum seekers and prevent them from entering Greek waters. By refusing to allow Afghan and other asylum seekers to apply for asylum in Greece, the government could be violating its non-refoulement obligations.

Fifty years ago the drafters of the Refugee Convention realized the difficulties that refugees face when leaving their countries, and made provisions under Article 31 of the Convention to prohibit countries from penalizing asylum seekers who enter a country illegally or through irregular channels. Today restrictive immigration policies and the closure of legal migration channels have made it impossible for many asylum seekers to leave their country and seek asylum in a legal manner. With no other avenues open, asylum seekers risk their lives at the hands of illicit human smuggling and trafficking rings to reach a country of asylum.

Asylum seekers who arrive in this way, without documents or with false documents, are often treated as criminals and detained for long periods in poor conditions, in violation of Article 31 of the Convention. In its guidelines on the detention of asylum seekers, UNHCR states that as a general rule asylum seekers should not be detained. The substandard conditions of immigration detention and denial of access to procedural guarantees also violate other key human rights guarantees.

Since September 11, some governments have resorted to detention as a matter of first course, in some cases denying individuals their fundamental right to seek asylum and detaining them indefinitely until a deportation order can be executed.

• Since 1996, the United States has routinely detained asylum seekers who arrive without proper documentation, often holding them for lengthy periods of time in prisons and local jails alongside convicted or suspected criminals. Children are also held in immigration detention, frequently in high security juvenile detention centers. Human Rights Watch has documented a pattern of ill-treatment and inadequate conditions for asylum seekers in immigration detention in the U.S.

• Australia also pursues a policy of mandatory detention for unauthorized arrivals, holding asylum seekers, including children, in extremely remote detention centers thousands of kilometers from major population centers. International human rights bodies, including the U.N. Human Rights Committee, have criticized Australia's draconian detention policies, and charged that the detention centers are overcrowded and lack adequate medical and education facilities.

• In 1999 the U.N. Working Group on Arbitrary Detention issued a report criticizing the detention of asylum seekers in the U.K. The Working Group found that asylum seekers were held in detention for unacceptably long periods of time without access to legal recourse, independent judicial review, or the right to appeal the decision to detain. In addition, detainees were not informed of the reason for their detention or their rights while in custody.

Article 1 of the Convention provides criteria for determining who should and should not receive international refugee protection. States, particularly in Western Europe, have increasingly interpreted and applied the refugee definition in a narrow and restrictive manner. This has resulted in the exclusion of women fleeing persecution by private actors, such as family members, where the state fails to take action to provide adequate redress and protection. Individuals fleeing persecution by non-state agents, such as guerrilla groups in Colombia, or situations of state breakdown, such as in Somalia or Afghanistan where no discernible or internationally recognized state authority exists, have also been excluded from refugee protection. Other E.U. states have excluded individuals who flee situations of generalized violence and civil war, such as in Sri Lanka. In a positive development, Germany announced in November that it would introduce legislation to reverse its practice of excluding from protection refugees who were persecuted by non-state actors.

At the same time, there is a risk that anti-terrorist legislation under discussion in several countries in the aftermath of the September 11 attacks, most notably in the U.K., could result in an over-broad application of the exclusion clauses of the Refugee Convention, without an adequate assessment of an individual's asylum claim. This could deprive refugees of the protection they need and runs counter to UNHCR guidelines that asylum seekers should receive a full and fair examination of their asylum claim before they are excluded from refugee protection, given the grave consequences of exclusion.

Article 3 of the Refugee Convention prohibits states from discriminating against refugees on the basis of their race, religion, or country of origin in the application of the Convention. Yet states persistently discriminate against refugees on these grounds in terms of entry policies, asylum determination procedures, and treatment in host countries. The entry policies of some countries discriminate against refugees of particular nationalities or ethnicities and can put them at higher risk of refoulement.

• In July 2001, the U.K. and Czech governments agreed to post British immigration officers at airports in the Czech Republic to prevent those with "unfounded" asylum claims from boarding flights to the U.K. The majority of the ninety people who were prevented from boarding planes to the U.K. during the first ten days of the policy were Roma, many of who held valid travel documents. Human rights groups criticized the checks for expressly discriminating against Roma and the policy was suspended in August following international pressure. Many of the Roma refused entry to the U.K. may have had valid asylum claims, based on the persecution they suffered in the Czech Republic. The U.K. government's interception of Roma asylum seekers could have resulted in refoulement and constituted discrimination on grounds of race and country of origin in violation of Article 3 of the Refugee Convention.

Unlike other international human rights instruments, there is no independent treaty body to supervise states' compliance with the Refugee Convention. Article 35 of the Convention requires states to cooperate fully with UNHCR in supervising the application and implementation of the Convention. Yet many states continue to ignore UNHCR guidelines, policies, and recommendations in their treatment of refugees. At the same time, existing U.N. treaty body mechanisms, including the Committee Against Torture, the Human Rights Committee, the Committee for the Elimination of Racial Discrimination, and the Committee on the Rights of the Child, have criticized many western states for their treatment of refugees and asylum seekers, highlighting the need for an independent mechanism for the Refugee Convention itself.

The preamble of the Refugee Convention recognizes that hosting large refugee populations can pose an unduly heavy burden on certain countries, and calls on states to cooperate to assist host countries and seek solutions to refugee situations. The greatest responsibility for refugees is borne by developing countries - often those least equipped to deal with large refugee populations. At the same time, industrialized countries have failed to provide adequate support - both in terms of financial and technical assistance to host countries and also a willingness to keep their own doors open to refugees.

• The crisis in Afghanistan is testament to this trend. Iran and Pakistan have hosted millions of Afghan refugees over the past twenty years, with grossly insufficient international assistance or support. The decision of both countries to close their doors to Afghan refugees in 2000 was in large measure a product of this international neglect. At the same time, a wealthy county like Australia, which takes in a tiny proportion of the world's refugees, has refused to allow any Afghan refugees arriving by boat to enter its territory since August. Such lack of generosity has not gone unnoticed by countries like Pakistan, whose President cited Australian behavior when justifying Pakistan's decision not to allow any more refugees to enter the country.