April 1997 Vol. 9, No. 1 (G)
UNCERTAIN REFUGE
INTERNATIONAL FAILURES TO PROTECT REFUGEES
SUMMARY 2
INTRODUCTION 3
ENSURING THAT REPATRIATION IS VOLUNTARY 5
"Push" Factors 6
Neutral, Accurate and Objective Information 8
Access to Refugees: In the Country of Asylum 10
Access to Refugees: Monitoring Returnees 11
THE HANDBOOK ON VOLUNTARY REPATRIATION 13
PROTECTION OF THE RIGHTS OF REFUGEE WOMEN 15
PROTECTION OF THE RIGHTS OF REFUGEE CHILDREN 19
THE ROLE OF THE INTERNATIONAL COMMUNITY 19
THE ROLE OF NONGOVERNMENTAL ORGANIZATIONS 22
PROTECTION AND UNHCR: COMMENTS ON THE DELPHI PLAN OF ACTION 22
The Situational Approach 23
The Fate of the Division of International Protection 25
ACKNOWLEDGMENTS 26
Protection of refugees and asylum seekers around the world has deteriorated over the past couple of decades. Countries that have traditionally championed the rights of refugees are turning them away or passing legislation aimed at significantly curtailing their ability to exercise their fundamental right to apply for asylum. Elsewhere, externally displaced persons harbored in receiving countries under temporary protection are in danger of being returned to areas where the political situation remains far from stable, putting the safety of the prospective returnees at risk. At the same time, States around the world are hampering the ability of the Office of the United Nations High Commissioner for Refugees to carry out its activities on behalf of refugees and other displaced persons by, among other things, blocking UNHCR access to refugee camps and returnees.
Against the backdrop of this global retrenchment in refugee protections, UNHCR has sought to shift the focus of solutions for refugee crises from the exile-oriented strategies of the past to an emphasis on voluntary repatriation as the durable solution of choice, and on the prevention of refugee flows and the containment of refugee crises. This shift towards return-oriented solutions frequently conflicts with UNHCR's basic protection role in the context of voluntary repatriation, resulting in an erosion of the protection standards set forth in certain conclusions of its Executive Committee and in other public statements. Human Rights Watch has researched situations where, among other things, UNHCR employed or acquiesced to the use of negative factors such as the reduction of rations to "encourage" refugees to repatriate. In other instances, UNHCR failed to provide the neutral, accurate and objective information refugees need in order to make a truly voluntary choice to return. The Office of the High Commissioner has also agreed to assist in repatriation of refugees in situations where it did not have the access to refugees necessary to ensure that the decision to repatriate was voluntary, or access to returnees to ensure their safety. In addition, Human Rights Watch is concerned that the protection of refugee women continues to be inadequate, despite the publication in 1991 of guidelines on that subject. Changes in the organizational structure of UNHCR under the agency's Delphi Plan of Action also raise questions about UNHCR's ability to effectively protect refugees.
In light of this erosion of protection standards, Human Rights Watch welcomes, albeit with some reservations, UNHCR's Handbook-Voluntary Repatriation: International Protection (March 1996), Refugee Children-Guidelines on Protection and Care (1994), and its Sexual Violence Against Refugees: Guidelines on Prevention and Response (March 1995). However, given that the former largely reiterates protection standards promulgated in UNHCR's Executive Committee conclusions and other public statements, while the latter largely reiterates protection standards set forth in the July 1991 Guidelines on the Protection of Refugee Women, Human Rights Watch is concerned that the release of these documents will do little to reinforce protection standards without immediate, sustained and vigorous efforts to ensure their implementation. In general, the protection of refugee women and children should be integral to the implementation of protection measures. Human Rights Watch hopes that the lessons UNHCR learned from its work with the Somali refugees in Kenya may further protection for refugee women everywhere. The Executive Committee of UNHCR and donor governments should also ensure that receiving governments cooperate with UNHCR to institute protection programs to prevent sexual violence.
UNHCR remains the preeminent agency for protection of refugees, with the expertise and experience to ensure refugees' rights, better than any other entity. At the same time, the extensive experience that nongovernmental organizations have accumulated in working with refugees worldwide, including as implementing partners with UNHCR in many places, raises possibilities for cooperation between UNHCR and NGOs for problem-solving in protection. Human Rights Watch urges UNHCR to promote further development of such possible consultations. UNHCR's mandate has now evolved to address contemporary forced migrations, which increasingly result from generalized war or civil unrest. Human Rights Watch commends the 1995 Executive Committee's exhortation that the High Commissioner engage in consultations and discussions concerning measures to ensure international protection "to all who need it." Nevertheless, Human Rights Watch is concerned that erosion of UNHCR's protection policies in the field may render such declarations hollow.
UNHCR has vigorously and successfully carried out its protection functions in many voluntary repatriation programs. Human Rights Watch encourages UNHCR to continue in that tradition of vigorous and innovative approaches to the protection of refugees. Nevertheless, we are concerned that UNHCR is often constrained in its operations by the actions of governments hostile to protection efforts and that, as a result, UNHCR's protection for refugees has eroded. In this context, Human Rights Watch encourages UNHCR to take a stronger and more critical role with governments which obstruct the agency's efforts to protect refugees. Where States persist in their abuse of refugees or otherwise impede UNHCR's and relief organizations' efforts to aid and protect refugees, UNHCR should consider further use of ad hoc committees as contemplated by the Executive Committee, as well as other channels within the U.N. system. To ensure that refugees receive the greatest protection possible in the voluntary repatriation context, Human Rights Watch also encourages UNHCR to develop further possibilities for cooperation between the organization and NGOs with direct and long standing experience with refugees and human rights. In particular, UNHCR should consider closer consultation with NGOs with the requisite expertise in assessing whether conditions in a country of origin warrant promotion of repatriation, and consider also how NGOs and UNHCR may together gather and present information on those conditions. Finally, Human Rights Watch is particularly concerned with recent changes in the structure of UNHCR under the Delphi Plan of Action which may significantly alter the ability of the agency to provide essential protection to refugees.
Human Rights Watch recognizes that ultimately, the protection of refugees rests with the individual nations and the international community as a whole. States must be held accountable for falling short of their protection obligations under international human rights and humanitarian law, as well as the 1951 Convention on the Status of Refugees (as amended by the 1967 Protocol), for those States that are parties thereto.1 We urge governments that have not yet signed on to the 1951 Convention to do so as soon as possible, particularly the governments of Bangladesh, India, Lebanon, Pakistan and Thailand, which are members of the Executive Committee of UNHCR. Human Rights Watch calls on all governments to take measures to ensure that asylum seekers have a meaningful opportunity to exercise their right to seek asylum. We further urge governments to cooperate fully with UNHCR in the protection of refugees in the voluntary repatriation context. Among other things, governments must give UNHCR the access to refugees and returnees that is fundamental to the agency's protection function. Governments should also work together with UNHCR to ensure protection of refugee women and other refugee populations at particular risk. Human Rights Watch urges donor States to continue their support of receiving governments in the developing world that may be struggling with the presence of large numbers of refugees in their territories in order to continue protection and assistance for such refugees with a view to return which is genuinely voluntary. Where States persist in their abuse of refugees or otherwise impede UNHCR's and relief organizations' efforts to aid and protect refugees, Human Rights Watch calls for the international community to take necessary steps to encourage such States to cease practices abusive of refugees.