EXAMINATION OF CAMP CONFINEMENT POLICIES UNDER INTERNATIONAL LAW
For both Kenya and Uganda, the relevant international law applicable to refugees can be found in the 1951 Convention Relating to the Status of Refugees and its Related Protocol (the "Refugee Convention"), the OAU Refugee Convention, and the ICCPR.
Once an individual has entered a country and has been recognized on either a prima facie240 or individualized basis as a refugee, his or her rights and duties as a refugee under international law do not change based on whether he or she is located in a city or a refugee camp. The same international standards, originating from the Refugee Convention or the OAU Refugee Convention or other forms of human rights law,241 apply irrespective of where a refugee lives within a particular country.
The Refugee Convention affords refugees the right to freedom of movement, subject to any restrictions applicable to aliens generally in the same circumstance.242 While the Refugee Convention provides for this right, it has been better elaborated upon and is more protective243 in the ICCPR, which is complementary to the Refugee Convention on this subject, and to which both Kenya and Uganda are parties.244 The Human Rights Committee has recognized that the ICCPR must apply "without discrimination between citizens and aliens."245 The term "aliens" includes asylum seekers and refugees. The Committee further notes that, "Aliens have the full right to liberty and security of the person.... They have the right to liberty of movement and free choice of residence.... These rights of aliens may be qualified only by such limitations as may be lawfully imposed under the Covenant." 246
Camp Confinement Policies as a Violation of Freedom of Movement
The ICCPR provides for the principle of freedom of movement247 in the following manner:
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.248
This right to freedom of movement can only be restricted as "provided by law" if "necessary to protect national security, public order, public health, or morals, or the rights and freedoms of others."249
In sum, the right can be understood in the following manner:
· Every non-citizen (including an asylum seeker or refugee) who is lawfully present in a country must enjoy the right to freedom of movement;
· Limits enacted in law can be placed on this right if a non-citizen is not lawfully present;
· Limits enacted in law can be placed on this right if a non-citizen presents a threat to national security, public order, public health, etc.;
· Governments cannot discriminate between the freedom of movement rights of non-citizens and citizens, unless non-citizens present a threat to national security, in which case the limits on the right must be enacted in law; and
· Governments cannot discriminate between the freedom of movement rights of different categories of non-citizens.
UNHCR's ExCom has encouraged "States to intensify their efforts to protect the rights of refugees. . .to avoid unnecessary and severe curtailment of their freedom of movement."250
Non-citizens who enter Kenya or Uganda must have their status as refugees recognized before they can be considered lawfully present in either country. In the case of asylum-seekers who enter either Kenya or Uganda unlawfully (which many do), the Refugee Convention does allow for restrictions on the movement of asylum seekers if necessary until their status is assessed.251
As described more fully above, Kenya and Uganda each have two methods for recognizing the status of refugees. First, refugees who are fleeing events disturbing security in their countries of origin are recognized as refugees under the OAU Refugee Convention. The OAU Refugee Convention expands the definition of refugees to include persons compelled to seek refuge from "external aggression, occupation, foreign domination, or events seriously disturbing internal order in either part or the whole of [the] country of origin." Both Kenya and Uganda have implemented their obligations under the OAU Refugee Convention by affording prima facie252 status to all refugees fleeing Sudan and Somalia, as well as to some fleeing Ethiopia and Congo.
Second, refugees may be recognized through UNHCR-run or government-run individualized determinations.
Uganda acknowledges in its domestic law and policy that individual refugees recognized either on a prima facie basis or through individual determinations are lawfully present. In Kenya, the government has requested UNHCR to conduct individual determinations on its behalf and the government has officially recognized that Somalis and Sudanese are prima facie refugees. Therefore, as in Uganda, refugees recognized as such either on a prima facie basis or through UNHCR individual determinations are lawfully present in Kenya. Once they are lawfully present in either Kenya or Uganda, refugees are entitled to the right of freedom of movement under the ICCPR.253
Kenya and Uganda justify limits on the freedom of movement of refugees by asserting that refugees present a threat to the national security of Kenya or Uganda.254 It is not altogether evident that the concentration of refugees into large and long-standing camp settings near to borders, in places within easy reach of armed groups and small-arms traders, actually addresses the security concerns. By placing refugee camps so close to the borders with Sudan (in the case of Uganda) and with Sudan and Somalia (in the case of Kenya), the countries have contravened the OAU Convention, which requires governments to, as far as possible, "settle refugees at a reasonable distance from the frontier of their country of origin."255 In addition, security risks are heightened by the simple fact that camps are set up in a single location, where sometimes hostile ethnic or national groups must live together and where rebel leaders know they can launch recruiting raids or find humanitarian assistance.0
National governments have considerable discretion as to what constitutes a threat to national security. However, the ICCPR requires that in the absence of a derogation during a time of public emergency,1 limits placed on freedom of movement in the name of national security must be "necessary."2 In order to determine whether something is "necessary," the severity of the security concerns must be weighed against the severity of limits on freedom of movement. The primary means by which such limits can be balanced against the national security concerns at stake is through legislative debate, which is one reason why the ICCPR requires that such provisions be enacted "in law."3
Neither Kenya nor Uganda have enacted legislation to identify the security concerns of either of the host governments and provide for limits on refugees' freedom of movement tailored to the need to address those concerns. Instead, both governments have adopted unwritten ad hoc policies that allow for exceptions to the camp confinement rule. The presumption for legislators should be that people are not confined to camps, except for reasons that fully meet the international standard, and to which there should be appropriate exceptions and procedures put in place to determine impartially whether an individual fits within one of the exceptions. If Kenya and Uganda did so, the human rights of refugees would be better respected.
Camp confinement policies impose an extreme limit on refugees' freedom of movement, and while recognizing legitimate security concerns of the governments involved, without providing a framework for the policy in law, the policy violates freedom of movement under the ICCPR.
Long-term Camp Confinement Policies as Analogous to Arbitrary and Indefinite Detention
Camp confinement policies are not the same as arbitrary and indefinite detention. However, there are some important comparisons to be drawn that should guide governments when confining refugees to camps. The ICCPR sets forth the following protection against arbitrary and indefinite detention:
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 procedures as are established by law.4
Similarly, the African Charter on Human and Peoples' Rights states that, "Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained."5
The ICCPR also requires that detained individuals have access to a court to determine the lawfulness of the detention:
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.6
The right to be free from arbitrary and indefinite detention is not dependent upon whether an individual is lawfully present in a country. UNHCR has repeatedly reminded governments that the detention of asylum seekers, some of whom may enter a country unlawfully, is inherently undesirable.7 Refugees should not be arbitrarily detained.
Interpreting the Refugee Convention and norms of international human rights law, UNHCR's Revised Guidelines define detention as "confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory."8 In addition, UNHCR Guidelines state that, "persons who are subject to limitations on domicile and residency are not generally considered to be in detention." 9 Finally, UNHCR notes that, "the cumulative impact of the restrictions as well as the degree and intensity of each of them should also be assessed." 10
Under UNHCR's definition, camp confinement policies in Kenya and Uganda could be considered a form of detention. While the camps are not completely closed, freedom of movement is "substantially curtailed." For many refugees, the only opportunity to leave the camps will come when they agree to repatriate, or "leave the territory." However, UNHCR does note in the above definition that persons limited in their "residency" are not generally considered to be in detention, which appears to distinguish camp confinement from detention. At the same time, the camp confinement policies do have a marked "cumulative impact" on the lives of refugees, which UNHCR suggests "should be assessed."
By way of comparison with other governmental policies, governments from Côte d'Ivoire to Thailand have hosted large numbers of refugees in camp settings. Particularly well-known camps of the "closed" variety were set up for the hundreds of thousands of Cambodian refugees who fled first to the border areas of Cambodia and later to Thailand in the late 1970s and early 1980s. Thailand, which unlike Kenya and Uganda is not party to the Refugee Convention, insisted in 1984-5 that the camps for Cambodians should be closed.11 Thai ranger unit12 personnel were stationed around the camps to monitor the refugee's movements. In addition, internal political pressures kept refugees from fleeing the camps.13
However, permission to leave the camp could be bought with a bribe, and refugees were able to leave after bribing officials on a periodic basis. Refugees often left the camps to search for food, to visit family inside Cambodia and to travel to market centers in nearby villages.14 However, living in nearby Thai villages was not an option and refugees always had to return to the camps. Finally, while bribes could be paid, sometimes travel outside the camp came at a very high price. Thai officials were known to shoot and kill refugees found outside the camps.
In contrast to the above, the recognized best practice is for camps to be "open" so that refugees can travel in and out freely-which refugees living in Kenya or Uganda simply cannot do. For example, Côte d'Ivoire has hosted large populations of refugees in some four hundred and fifty sites within its zone d'accueil.15 The zone is a swath of territory, located in the west of the country, in which individual refugees can choose to live anywhere-in a more rural setting or an urban environment-within the designated area.
The official policy of the governments of Kenya and Uganda is that the refugee camps are "closed." Refugees are not allowed to settle elsewhere in Kenya or Uganda or even to travel in and out of the camps. Of course, the fact that Uganda grants refugees access to small portions of land for cultivation alters the degree to which refugees feel compelled to leave the settlement areas. And in practice in both countries, some refugees do move in and out of the camps, but always facing the risk that their lack of permission to travel or live (even for short periods of time) anywhere else in Uganda or Kenya makes them vulnerable to police harassment and even arrest and deportation. Few refugees are able to convince the camp authorities in either Kenya or Uganda to grant them official permission to travel out of the camps.
The Human Rights Committee has stated that "arbitrary detention" arises not only when there is no law allowing for it, but also when there are elements of inappropriateness, injustice, lack of predictability or disregard for due process of law.16
The Working Group on Arbitrary Detention has adopted a series of principles to govern the detention of non-citizens (including refugees). Principle Six requires that the decision to detain a non-citizen "must be taken by a duly empowered authority with a sufficient level of responsibility and must be founded on criteria of legality established by the law."17
The confinement of refugees in camps in Kenya and Uganda is analogous to arbitrary detention because the procedures and standards by which an application for leave to depart from the camp are not known to the refugees, and are arbitrarily implemented by camp authorities. If the Kenyan and Ugandan governments enacted exceptions to the camp confinement policy into law, and implemented standard procedures by which refugees could apply for permission to leave the camp, they would go a long way towards bringing their camp policies into line with international human rights standards.
The camp confinement policy is also of concern because refugees have been confined to camps for such a long period of time-in Kenya for eleven and in Uganda for fourteen years. The Working Group on Arbitrary Detention has stated in its Principle Seven that in all cases in which a non-citizen is detained, "[a] maximum period should be set by law and the custody may in no case be unlimited or of excessive length."18 In one decision of the Working Group, it was held that three Cuban nationals who had been detained in the United States for over ten years violated the prohibition against arbitrary detention in international human rights law.19
In addition, the U.S. Supreme Court has held that non-citizens cannot be indefinitely detained when they cannot be returned to their own country.20 The two individual non-citizens at issue in the case had been held in non-criminal detention for eight and five years, respectively.
Moreover, the serious problems refugee children face after several years of living in camp confinement were resoundingly criticized by ExCom when it
[n]oted with serious concern the detrimental effects that extended stays in camps have on the development of refugee children and called for international action to mitigate such effects and provide durable solutions as soon as possible.21
While there is no clear rule as to the permissible length of time, courts and human rights bodies have found detention particularly suspect when there is no end in sight.22 Like the non-citizens ordered released by the U.S. Supreme Court, many of the refugees living in Kenya and Uganda in long-term camp situations have no prospects of returning home. In addition, they have no prospects of being allowed to better integrate into Kenyan or Ugandan society.
In its Principle Seven, the Working Group on Arbitrary Detention has stated that governmental custody "may in no case be unlimited." The refugees living in Kenya and Uganda's camps are facing unlimited time in custody, making the fact of their camp confinement a human rights concern. It is for this reason that Human Rights Watch recommends that a time limit on refugees' presence in camps-after which they could apply to leave if they could show that their prospects for safe repatriation are few-be considered and implemented by the governments of Kenya and Uganda.
As this section has discussed, confinement in camps constitutes a serious limitation on refugees' freedom of movement. While governments do have the ability to determine whether the presence of refugees constitutes a national security threat, that threat must be balanced against refugees' freedom of movement rights. Any limitations on those rights must be proportionate to the threat, and must be enacted in law. Moreover, Kenya and Uganda's camp confinement policies are analogous to arbitrary and indefinite detention. First, the camp confinement policies could be considered a form of detention. Second, the policies are arbitrary because refugees are not informed about the procedures and standards by which an application for permission to leave the camp can be made, and camp authorities arbitrarily grant permission. Finally, the fact that some refugees have been confined to the camps for more than a decade, in a situation where they have few prospects of returning home, makes the policies analogous to indefinite detention.
240 See note 18, above for a definition of prima facie refugees.
241 UNHCR's ExCom has reiterated the importance of respecting other human rights of refugees, not merely those established in the Refugee Convention, on numerous occasions. See, e.g. "Conclusion on Safeguarding Asylum," ExCom Conclusion No. 82 (1997) para. (vi) (reiterating "the obligation to treat asylum-seekers and refugees in accordance with applicable human rights and refugee law standards as set out in relevant international instruments.").
242 See Refugee Convention, Article 26. It should be noted that neither Kenya nor Uganda has enacted general limits on freedom of movement applicable to all aliens in the same circumstances.
243 UNHCR notes that "when both the 1951 Convention and an international human rights treaty deal with a particular right affecting refugees (for example, the right to form associations) and the human rights treaty offers more generous protection.... The general rule to apply... is that the provision which is most generous should prevail." The only possible exception, UNHCR notes, is when a very general and more generous provision is in a human rights treaty and that provision is unclear as to whether it benefits refugees. See UNHCR Training Module, "Human Rights and Refugee Protection: Part I," October 1995, p. 47. This latter exception cannot apply to the ICCPR's freedom of movement provision since it is more specific than the provision in the Refugee Convention, and it clearly applies to all non-citizens, including refugees.
244 Kenya acceded to the ICCPR on May 1, 1972 and Uganda acceded on June 21, 1995. It should be noted that other rights set forth in the ICCPR are not necessarily more protective or detailed than those in the Refugee Convention.
245 See "The Position of Aliens Under the Covenant", CCPR General Comment 15, 1986 para. 2.
247 The Refugee Convention provides in its Article 26 that: "Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances."
248 See ICCPR, Article 12(1).
249 See ICCPR, Article 12(3).
250 See ExCom General Conclusion on International Protection No. 65 (1991) at (c).
251 See Refugee Convention, Article 31(2).
252 See note 16, above.
253 According to international standards, Kenya and Uganda also cannot distinguish between prima facie refugees of a particular nationality and refugees of other nationalities recognized through individual determinations in domestic legislation, without violating the conclusions of CERD that "legislation concerning asylum must treat all asylum-seekers equally without regard to national origin." If prima facie refugees (who come mostly from Sudan and Somalia) are afforded fewer rights than individually recognized refugees, the principle of non-discrimination between non-citizens is violated.
254 See e.g. BBC Monitoring Service: Africa, "Kenyan President Warns Police, Prison Officers Against Violating Human Rights," June 15, 2002 (reporting that Kenyan President Daniel arap Moi "expressed concern at the infiltration into Kenya by refugees, many of who [sic] were not regularized by the UN High Commissioner for Refugees (UNHCR). `This has caused a serious security situation in the country as some of the refugees brought with them firearms,' [Moi] said."); Xinhua News Agency, "Ugandan, Rwandan Presidents to Meet Again," November 23, 2001 (noting that the presence of Rwandan army officers in Uganda had led to "strained relations" between Rwanda and Uganda and promises between the two governments "not to harbor dissident groups seeking to destabilize relations between the two countries.").
255 OAU Refugee Convention, Article 2(6).
0 See the detailed discussion of these security problems in camps at pages 73-74 and 79-81, above.
1 See ICCPR, Article 4.
2 ICCPR, Article 12(3).
3 The Human Rights Committee (the UN body charged with interpreting and enforcing the ICCPR) has stated that States parties to the ICCPR "shall guarantee [the right of freedom of movement] to everyone lawfully within the territory of the State and thus, States parties must, if necessary, amend their domestic legislation accordingly." See Commission on Human Rights, Report of the Special Rapporteur on the Rights of Non-Citizens, E/CN.4/Sub.2/2001/20 at para. 52.
4 See ICCPR, Article 9(1).
5 See African Charter on Human and Peoples' Rights, OAU Doc. CAB/LEG/67/3/Rev.5, Article 6.
6 See ICCPR, Article 9(4).
7 See UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, February 1999, para. 1 (noting that "the detention of asylum seekers is, in the view of UNHCR inherently undesirable.").
11 See Tony Jackson, Just Waiting to Die?, Oxfam, 1987 at 1.
12 Ibid. at 5.
13 See e.g. Dr. Josephine Reynell, Socio-Economic Evaluation of the Khmer Camps on the Thai/Kampuchean Border, Refugee Studies Programme, 1986, p. 6 (stating that "the camps are closed not only because of Thai policy but also because of Khmer policy.").
14 Id. at 26.
15 See e.g. UNHCR, "Cote d'Ivoire," UNHCR Global Report 2002.
16 See Womah Mukong v. Cameroon, Communication No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991, August 10, 1994.
17 See Report of the Working Group on Arbitrary Detention, U.N. Doc. E/CN.4/2000/4, December 28, 1999.
19 See Decisions and Opinions Adopted by the Working Group on Arbitrary Detention, U.N. Doc. E/CN.4/1998/44/Add.1, November 3, 1998.
20 See Zadvydas v. Davis, 121 S.Ct.2941 (2001).
21 See "Refugee Children," ExCom Conclusion No. 47 (1987) para. (m).
22 The European Court of Human Rights has held that holding of asylum seekers risks becoming a "deprivation of liberty" when it is "prolonged excessively." See Amuur v. France, 22 EHRR 533 (1992).