Responsibility Sharing

Detention of Asylum Seekers

Repatriation or Refoulement?

Protection and Security

Relevant Human Rights Watch reports

The link between forced displacement and human rights is a crucial one. Human rights violations are a principal root cause of forcible displacement; the human rights of the displaced—asylum seekers, refugees and internally displaced persons alike—are frequently violated and threatened while they are displaced; and respect for fundamental human rights is a key factor in the search for a durable solution to any situation of displacement.

By the end of 1997 there were an estimated 13.6 million refugees and asylum seekers worldwide and an estimated seventeen million internally displaced persons. While the number of refugees and asylum seekers had dropped from 14.5 million in 1996, the number of internally displaced persons had grown significantly.

This illustrated several inter-connected global trends which continued in 1998. Violent internal conflicts in countries such as Colombia, Sierra Leone, and Kosovo, in which civilians were targeted and forced displacement was a deliberate tactic of warfare, led to an ever-growing number of internally displaced persons. At the same time, countries of asylum throughout the world were becoming increasingly reluctant to host refugee populations. Policies of containment and deterrence had become the norm, and refugees were increasingly barred entry and returned to countries where their lives and liberty were at risk, in clear violation of the international principle of non-refoulement. In western Europe and North America, a barrage of restrictive measures made it ever more difficult for asylum seekers to find refuge, while from Malaysia, Tanzania, and a score of other countries, refugees were forcibly returned to countries where their lives were in danger and their human rights could not be guaranteed. Across the globe, states were more preoccupied with protecting themselves against refugees than providing protection to them.
Furthermore, 1998 witnessed the continuation of an alarming trend away from an equitable and global sharing of responsibility for the world refugee crisis. Through increasingly elaborate strategies the wealthy, industrialized states of the north were shifting the “burden” back onto those states least able to bear the brunt, and failing to take equal responsibility for what remained a global problem. The desire of west European states to contain potential refugee flows from Kosovo, Turkey, and northern Iraq through “in-country” and regional strategies, and the very slow international response to the major refugee crises in west Africa (Guinea, Liberia, and Guinea Bissau), were but a few examples of failures in international responsibility sharing in 1998. As a result of these trends, people were less likely to be able to find lasting refuge from violence, persecution and discrimination. In the year of the fiftieth anniversary of the Universal Declaration of Human Rights, many states appeared to have forgotten that the right to “seek and enjoy in other countries asylum from persecution” is a fundamental and universal human right and one which cannot be bargained away.

Although both the human rights and humanitarian sectors in the past have tended to work in parallel, without often acting on the fundamental connection between refugee protection and human rights, there has been a growing awareness in recent years of the critical role that human rights monitoring can play in promoting the rights of refugees, asylum seekers, and the displaced—especially with regard to refugee protection, which has come under increasing threat in countries across the world.
Human Rights Watch monitors the entire spectrum of the refugee experience: from the human rights violations that cause refugee flows; to conditions during flight and reception in the country of asylum; to protection of refugees’ human rights in countries of asylum; to the search for a durable solution and conditions of return; and finally, to post-return human rights monitoring, rehabilitation, and reintegration.

Responsibility Sharing

The vast majority of the world’s refugees continued in 1998 to seek haven in the poorest states. Countries in the developing world have long offered refuge to thousands of people who flee en masse from persecution, civil conflict, violence, discrimination, and social and economic hardships. Sadly, this tradition of generosity has been changing over recent years, as countries in the developed and developing world alike close their doors to those seeking asylum. This trend has been led largely by the industrialized states of the north, which in proportional terms host very few of the world’s refugees.

Western Europe
Throughout 1998 western European states demonstrated a growing reluctance to provide refuge to asylum seekers. Governments favored “in-country” strategies such as “safe havens”, “preventive protection” and “internal flight alternatives” as methods to contain and stem refugee flows from the Balkans, the Middle East and elsewhere. “Safe third country” and “safe country of origin” policies designed to limit states’ obligations to asylum seekers continued to be applied. Carrier sanctions, visa restrictions, and widespread use of often lengthy detention were used as deterrent strategies and served to criminalize the act of seeking asylum. Accelerated procedures, limited rights of appeal, and restrictive interpretations of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol continued to deprive asylum seekers of international protection.

Moreover, the trends in European asylum policy throughout 1998 suggested states’ growing unwillingness to adhere to their obligations under the 1951 convention. A demonstration of this attitude was the response of E.U. states to the arrival of several thousand Turkish and Iraqi Kurds in Italy in January. Panic at what was perceived as a “mass influx” prompted the E.U. to adopt an “E.U. Action Plan on the Influx of Migrants from Iraq and the Neighboring Region” of which Human Rights Watch was heavily critical ( see section on Asylum Policy in Western Europe).
Human Rights Watch has also been very concerned at the trend away from providing full refugee status towards variants of temporary protection. Temporary protection was always intended to be an exceptional measure to deal with mass influxes of refugees, as occurred during the crisis in the former Yugoslavia from 1992 onwards. Government practice and policy debates in 1998 suggested, however, that temporary protection was becoming the norm. In its role as presidency of the E.U., the Austrian government proposed introducing a new temporary protection regime and solidarity scheme for the reception of refugees in Europe which would supplement, amend, or replace the existing 1951convention, arguing that the convention was no longer applicable to most asylum seekers coming to Europe. This shift towards temporary protection may ultimately result in fewer rights for refugees, absolve governments of many of their international obligations, and shift the burden back to poorer developing countries which are least equipped to deal with large population influxes.

Africa
Countries in Africa continued to offer asylum to some three million refugees in 1998. In west Africa the states of Guinea and Liberia provided refuge to over a quarter-million new refugees fleeing the atrocities committed following a resurgence of violence in Sierra Leone starting in February. In 1998 Guinea proved a generous host to the largest number of refugees in Africa—a total of 430,000. In some parts of Guinea the refugee population actually outnumbered the host area’s inhabitants. Despite the enormous burden borne by these countries, however, the international community—with the exception of the U.S. and the E.U.—was slow to respond. By the end of 1998 urgently needed funds and logistical support were still not forthcoming. Some camps in Guinea had been cut off from assistance for several months, and malnutrition and mortality rates remained high. Lack of funds and resources to move camps away from precarious positions on the border with Sierra Leone meant that the security and protection of the refugees was jeopardized.

Elsewhere, countries with a generous record of providing asylum started to shut their doors. Tanzania, for example, which has offered generous and extended asylum to several million refugees over the past thirty years, started to tighten its asylum policies. Concerned about the heavy burden that large refugee populations placed on already over-taxed resources, the severe environmental degradation caused by refugee camps, and the effects of criminal and military elements amongst the refugees on local and national security, Tanzania closed its borders and engaged in roundups and expulsions of refugees living in its territory. At the beginning of 1997 Tanzania forcibly returned 126 Burundian refugees following the outbreak of violence at a refugee camp. Of these refugees, 124 were killed by the Burundian army on arrival. In late 1997, again on grounds of security, the Tanzanian government rounded up close to one hundred thousand Burundian and Congolese migrants and long-term refugees (including an estimated 50,000 children), some of whom had been in the country since the 1972 massacre in Burundi, and forced them into refugee camps.

Kosovo
The international community’s failure to take equitable responsibility for the problem of mass population displacements was vividly demonstrated in the emerging crisis in Kosovo. As of September, conservative estimates suggested that the conflict had created more than 260,000 internally displaced persons and more than 30,000 refugees. At the beginning of the crisis European states made it clear that they favored “in-country” or regional strategies to deal with population displacements resulting from the conflict and providedfunds for this purpose to the Office of the United Nations High Commissioner for Refugees (UNHCR). Despite calls from UNHCR to halt deportations, Germany and Switzerland expelled more than a thousand rejected asylum seekers to Kosovo during the first five months of the conflict under the terms of readmission agreements with the Federal Republic of Yugoslavia. Human Rights Watch was able to interview some of these people, who described being handed over to Serb police at the airports in Switzerland and Germany and being detained, interrogated and beaten on return to Kosovo. Switzerland imposed a temporary ban on deportations of non-criminals in June 1998, while Germany maintained a de facto ban due to its inability to carry out deportations on the sanctioned Yugoslav national airline. Human Rights Watch remained concerned about the precarious status of Kosovar Albanians and met with German and Swiss authorities in September 1998 to raise its concerns.

In a further twist to the tragic circumstances in Kosovo, Montenegro closed its border to fleeing Kosovar Albanians in September 1998 and a few days later expelled more than three thousand people to Albania. With Albania in a state of internal turmoil and instability, with no refuge in Montenegro and with west European states unwilling to accept them, it was difficult to know where those fleeing the conflict in Kosovo could go. Human Rights Watch called on Montenegro to provide refuge to those displaced by the conflict and urged the international community to both ensure safe asylum to those fleeing the crisis and to further its relief efforts in Kosovo and neighboring countries.

Detention of Asylum Seekers

In industrialized and developing countries alike, the detention of asylum seekers has become a common practice often used as a deterrent strategy to stem refugee flows. Asylum seekers are frequently detained, sometimes arbitrarily and indefinitely and without the right to judicial review. The detention of asylum seekers frequently obstructs their access to legal assistance and information and thus the right to a full and fair hearing of their asylum applications. Furthermore, detaining asylum seekers—many of whom may have escaped from countries where they have been imprisoned, tortured, and ill-treated, have fled in fear and are severely disoriented—can have a serious impact on mental health. Incarceration in often inhumane conditions alongside prisoners who are criminally convicted or accused, prolonged confinement in prisons or prison-like conditions, and severe restrictions on freedom of movement is entirely inappropriate treatment for asylum seekers who are not criminally convicted or accused and violates international standards on humane treatment in detention.

United States
In 1998 Human Rights Watch published the findings of research conducted over eighteen months into detention of immigrants and asylum seekers in jails across the U.S. The U.S. Immigration and Naturalization Service (INS) housed more than half of its 16,000 detainees in local jails throughout the country in 1998. In visits to the jails and interviews with detainees Human Rights Watch found that the INS had failed to ensure that basic national and international standards requiring humane treatment and adequate conditions had been met. INS detainees were treated the same as local inmates, and jail staff were not trained to deal with the special problems of asylum seekers and immigrants. Many INS detainees had been physically abused by jail staff. Medical and dental care was found to be substandard at many of the jails, and access for families, friends, and legal representatives was severely curtailed due to strict jail rules that were inappropriate for immigration detainees. Lack of access to legal representation, information, and assistance often had serious implications for the cases of asylum seekers and immigrants and obstructed their right to a full and fair hearing.

Human Rights Watch recommended that detention conditions reflect the non-accused, non-criminal status of all INS detainees. Immigrant detainees should therefore not be held in local jails, prisons, or any other facility intended to house criminal populations. Asylum seekers should not, as a general rule, be detained. The right to seek and enjoy asylum is a basic human right, and individuals must never be punished for seeking asylum in the United States. Furthermore, the decision to detain an asylum seeker can be justified only when proven to be strictly necessary on a case-by-case basis. In all cases, Human Rights Watch urged that meaningful alternatives to detention should be utilized first before any decision to detain is made. Such alternatives include unsupervised and supervised parole, bail, and reporting systems. In cases where detention of asylum seekers is required, they should never be held in local jails where necessary access to legal counsel and other resources is severely hindered.

Repatriation or Refoulement?

As countries continued to favor voluntary repatriation as the preferred solution to refugee situations, debate about the conditions under which refugees return became one of the most controversial issues in refugee policy. The standard of voluntariness had been held up as the cornerstone of international refugee protection and the most important safeguard against the imposed return of refugees to countries where they could face persecution. In 1996 UNHCR published a handbook on voluntary repatriation which reiterated this principle. In practice, however, there were a series of incidents wherein refugees were forced to return to conditions of extreme insecurity where respect for their fundamental rights could not be guaranteed. Unfortunately UNHCR was party to the involuntary return of refugees to unsafe countries such as Burma and Rwanda and failed to provide refugees with adequate protection according to its own principles and guidelines.

As states and UNHCR adhere less and less frequently to the principle of voluntariness, there is an urgent need to re-examine standards to ensure that refugees are not forcibly returned to conditions where their basic rights and security are at risk and to ensure that the fundamental principle of non-refoulement is always upheld . Human Rights Watch is concerned that return should take placeonly to rights-respecting environments, within a clear human rights framework and according to clearly defined international human rights standards.

Thailand
Even though it was not a party to the 1951 refugee Convention, Thailand was still bound by the principle of non-refoulement, which has a well-established status under international customary law. Nevertheless, as an October 1998 Human Rights Watch report documenting ten years of Thai policy towards Burmese refugees demonstrated, Thailand had repeatedly violated the principle of non-refoulement. During this period Thailand had on numerous occasions barred entry to refugees coming from Burma, pushed people back at the border, and expelled large numbers of refugees. Refugees were returned to border areas of Burma where their security could not be guaranteed, where serious human rights violations continued to occur, and where their safety and liberty were severely compromised. During 1998, it was reported that Thailand had effectively closed entry to the refugee camps for all new arrivals since June, thereby denying access to safe and secure asylum. Furthermore, in efforts to expel undocumented migrants from Thailand and in the absence of effective refugee status determination procedures, there was a serious fear that many people with a well-founded fear of persecution would be forcibly returned to Burma. Human Rights Watch called on the Thai government to ensure access to asylum to those fleeing Burma, cease rejection at the border, and cease the forced return of those with a well-founded fear of persecution.

Protection and Security

Unfortunately, when large numbers of people flee situations of conflict and grave human rights violations, their security and protection often remain at risk even when they reach places of refuge. The problem of security in refugee camps has received a great deal of international attention in recent years, largely, but not only, prompted by the ongoing refugee crisis in the Great Lakes region of Africa. The militarization and non-civilian character of refugee camps, the use of camps as military training grounds, cross-border attacks and incursions, the forced conscription and abduction of children into armed forces, and sexual and domestic violence against women are all problems that Human Rights Watch has reported on in the course of monitoring refugee situations in the Great Lakes region, Tanzania, Guinea, Liberia, Thailand and Pakistan.

Guinea and Liberia
In both Guinea and Liberia the proximity of the refugee camps to the border with Sierra Leone and the presence of former combatants amongst the civilian refugee population in the Liberian camps posed serious security problems in 1998. Plans to relocate the Guinean refugee camps to a safer distance away from the border were hampered by very poor infrastructure, serious logistical problems, and a lack of funds. Cross-border attacks and shooting posed a constant threat for refugees. One camp, Toumandou, located less than ten kilometers from the Sierra Leone border, was attacked in September, and seven refugees were killed.

In Liberia, many former combatants identified themselves in hope of being demobilized and reintegrated into civilian society. Vahun camp, situated several kilometers away from the border, was infiltrated by rebel AFRC/RUF soldiers, some of whom used the camp as a base for recruitment, to sell looted goods from Sierra Leone, and to re-stock on food, supplies, and clothing. The camp’s proximity to the border also made it vulnerable to cross-border attacks and looting. In June 1998 plans were underway to relocate the refugees to Kolahun camp, located fifty kilometers from the border. By September, 18,000 refugees had been relocated to Kolahun, while 15,000 remained in Vahun. Unfortunately, ex-combatants remained mixed with the refugee population, and no attempt appeared to have been made to screen or separate civilians from combatants.

The Guinean government, on the other hand, screened out and detained suspected AFRC/ RUF soldiers trying to enter Guinea. Neither UNHCR or the International Committee of the Red Cross (ICRC) were given access to the detainees, and the procedures and criteria used to screen out former combatants were not made public. Concerns were raised that some of those detained may have had a valid claim to international refugee protection and should have been screened according to international standards. In some cases soldiers were returned to the authorities in Freetown and there was little information about their whereabouts and safety. Human Rights Watch voiced concerns that individuals suspected of having committed war crimes should be held accountable for the violations they had committed in accordance with international standards. On October 19 1998, twenty-four AFRC/RUF soldiers were executed in Freetown following hearings in a military court that did not conform with international human rights standards.

Not only did proximity to the border and the presence of former combatants undermine security and protection in the camps, but it also seriously hampered the delivery of humanitarian assistance. In June 1998, the Guinean government closed access to some fifty refugee camps along the border—housing more than 150,000 refugees—due to the escalation of fighting on the Sierra Leone side of the border and cross-border shooting. Although access was resumed a month later, delivery of humanitarian assistance remained sporadic, and many refugees still did not receive adequate food and other supplies. Due to poor coordination among humanitarian agencies, precarious road conditions, and an uncertain security situation, refugees in Vahun camp only received one fourteen-day ration from UNHCR between February and June 1998.

Thailand
Burmese refugee camps along the Thai-Burmese border housing refugees from different ethnic minority groups were also the target of frequent cross-border attacks and military incursions from 1994 to 1998. Close proximity to the border and the association of the refugees with ethnic minority rebel armies made the camps especially susceptible to cross-border attacks, abductions, and killingsby both the Burmese army and splinter groups operating with the tacit consent of the Burmese government. In March 1998, the Democratic Karen Buddhist Army (DKBA) attacked three refugee camps, killing five people and leaving 300 homeless. In one camp, Huay Kaloke, over 85 percent of the dwellings were destroyed. Eight months later, refugees from these camps had still not been relocated or rehoused.

Women refugees
Women refugees often faced particular protection and security risks in refugee camps. In many situations women made up a high proportion of the refugee population and there were a large number of women-headed households. This could be because male family members were away fighting, farming, working or trading, or because many men had been killed in conflict. Refugee women were subjected to rape, sexual exploitation, sexual abuse, and sexual violence in refugee camps. Levels of domestic violence could also be very high in refugee settings. To respond to some of these very serious protection problems, UNHCR compiled and disseminated guidelines on the protection of refugee women and on sexual violence against refugees.

In a mission to the Burundian refugee camps along the border between Burundi and Tanzania in May 1998, Human Rights Watch identified high rates of sexual and domestic violence against women refugees, perpetrated for the most part by other refugees. In most cases rape occurred either in the camps or outside while the women and girls were collecting firewood. Although the problem had been acknowledged by UNHCR and was beginning to be addressed in some camps through the hiring of a UNHCR consultant and through a sexual and gender violence project run by an implementing partner, the International Rescue Committee (IRC), Human Rights Watch noted a reluctance by UNHCR protection officers and the Tanzanian government to address the matter of sexual violence as a serious protection problem. UNHCR staff were not taking active measures to implement their own guidelines on the protection of refugee women and on the prevention of such violence in order to prevent further sexual violence from occurring in the camps, were not seeking to investigate incidents of sexual violence, and had taken almost no measures to bring the perpetrators to justice. The problem of domestic violence remained largely unrecognized, and the perpetrators enjoyed free movement in the camps.

Preventive measures
In all the above cases, Human Rights Watch supported various measures to improve protection and security. These included moving camps to a safe distance away from borders to prevent cross-border attacks; thoroughly screening refugee populations to ensure the civilian nature of camps; applying more rigorously the exclusion clauses of the 1951 convention, which exclude certain categories of individuals (such as war criminals) from international protection; strengthening UNHCR’s protection mandate; and improving the quality of protection provided in the field through better training of UNHCR field staff, including training in human rights and humanitarian standards. In response to the high incidence of sexual and domestic violence, Human Rights Watch has called for a more proactive implementation of existing guidelines on refugee women and sexual violence and for these matters to be dealt with as serious protection concerns by UNHCR and government staff. There is also an urgent need for UNHCR to more proactively address the problem of domestic violence in refugee camps, through the creation and implementation of guidelines and appropriate training of UNHCR and NGO staff. Greater community education is needed within refugee camps to provide education and awareness-raising around issues of gender-based violence. At the same time, the physical security of women in refugee camps must be enhanced and strong action taken to bring the perpetrators of sexual and domestic violence to justice.

In all these efforts, Human Rights Watch has advocated that protection and security must be provided within a rights-respecting environment. Security interests should not mean that fundamental rights such as freedom of movement are jeopardized. International protection must continue to be provided to all those deserving of it, and camps should not be arbitrarily closed. Concerns about security should not mean that refugee settlements are managed in a non-participatory, authoritarian manner.

Relevant Human Rights Watch reports:
"Prohibited Persons":Abuse of Undocumented Migrants, Asylum Seekers, and Refugees, 3/98
Sowing Terror: Atrocities against Civilians in Sierra Leone , 7/98
Locked Away: Immigration Detainees in Jails in the United States , 9/98
Unwanted and Unprotected: Burmese Refugees in Thailand, 10/98