This article has been written by Diya Banerjee, Symbiosis Law School, NOIDA. The article discusses the possible solutions to large refugee influxes and protection under international law.
Table of Contents
Introduction
International law has played a key role in bringing the entire world on the same platform and tackling global and cross-border issues from social to the military. International law has emerged as the binding force which brings together the different legal systems under one giant umbrella. While it is true that international law is the solution to many international problems, one problem which has particularly been hard to tackle and has become acute is the refugee crisis. This has made a temporary protection regime in line with international law, the need of the hour to stop further destruction to those already under its fire. These large scale displacements can be the results of military and public clashes, cross-border aggression between two States or persecution of a certain class, caste or section of the society.
“Temporary protection” refers to the temporary provisions to accommodate the displaced groups within the territory of a safer and powerful country which acts as a mediator to settle and resolve the conflict. In most cases, the role of the mediator and justice delivering party is taken by the United States because of its power and authority.
The critical condition of the refugee crisis globally
The refugee crisis has become so huge that even young kids have learnt what it means. We hear it on the news and read it on newspapers and smartphones. Such a large flow of people living in another continent altogether and travelling across the ocean to find a safe place for survival has caused distress to not only the countries taking them in but also on the resources which have been exhausted to keep the refugees secure. And we are talking about more than 70 million such displaced people! It would be equivalent to everyone living in the United Kingdom to leave behind an empty land. Refugees are the people who have to forcibly flee from their own countries due to reasons like war, violence and/or persecution. The 5 largest refugee crisis which have made and continue to make headlines are-
Syria
Who on earth has not heard about Syria’s gut-wrenching conditions and the violence against its citizens along with its refugees? Syrian refugees are the largest group to have been forcibly displaced and this issue has been the worst and most distressing on earth. Nearly 12 million Syrians need some kind of humanitarian assistance with 6.7 million refugees who are at the receiving end of all kinds of hate crime and exploitation.
It all started with the Syrian Civil war which in itself was a result of the Arab Spring, a series of protests in most of the Arab States against the oppressive political and military regime along with the low standards of living. The protests were a result of the unending restrictions on individual rights to freedom of speech, expression, opinion, etc., and other such human rights.
The Syrian Civil war was quintessentially instigated by the fall of the Assad government, the military clashes with domestic and external factors and the rise of “intervention” by terrorist organizations. Add to that the poor socio-economic background of the country, poverty and human rights violations, it is the recipe for disaster. Another factor which festered into a significant reason why such a large scale migration happened, was the drought which lasted from 2006 to 2011. It led to crop failure and high inflation rates. Only the high-class with connections to the military and politicians were unperturbed.
The use of nuclear, chemical weapons and frequent bombing has taken away whatever resource the victims of war had, from roads to hospitals. Out of the numbers of the refugees and displaced, 60% are children. The violence which the displaced groups of refugees face ranges from bullying to sexual violence, including both women and men. The most vulnerable are the members of the LBGT community who are tortured and in some terrifyingly gruesome cases, killed. This proves that violence against the affected is not as uncommon as it first seemed.
Afghanistan
Afghanistan has the second most affected refugee cases after Syria and the largest in Asia, with current figures at more than 2 million refugees either internally displaced or forced to flee the country not once but twice. The Afghan refugees are victims of persecution and oppression from the Marxist reforms under the Taraki and Amin government and then the Soviet invasion 1979, which progressively forced nearly four million Afghans to give up their homes and leave. With the help and protection from the United Nations High Commissioner for Refugees (UNHCR), most of the refugees returned to Afghanistan but facing persecution in the hands of jihadists, most fled to nearby countries of Pakistan and Iran, and some Afghan Sikhs and Hindus crossed over to India.
The Afghan Civil War from 1992 to 1996 was the first round of displacement for the Afghans, who fled to avoid the brutality from the Taliban ruled areas. Even in Pakistan, there have been cases of Afghan refugees becoming victims of terrorism. Those fortunate enough made it to the United States and Europe to start over but most have been suffering in the refugee camps. Some have lived in the refugee camps for many generations, growing to become a part of the society but still not recognized as citizens and thus, are denied their rights, demonized and have to constantly live in the fear of deportation.
Ironically, even though Afghanistan is second to Syria when it comes to statistics of the refugee count, it has replaced Syria to become the “least peaceful” country in 2019. Despite all this, international organizations have done the least to resolve the problems of the Afghan refugees who are subjected to fear and torture like in Australia’s offshore detention camps. Moreover, forcefully returning the refugees back to Afghanistan adds on to the country’s instability because neither can the refugees adjust to the life back there nor does the society accept them back.
South Sudan
The South Sudan refugee crisis is the largest crisis in Africa. The brutal civil war in 2013 displaced more than 4 million people, out of which over 2 million crossed over to nearby countries. Most of the refugees are women and children.
What was initially affecting only a few countries soon turned into a full-fledged humanitarian crisis to protect the lives of many. Lack of proper food, employment and shelter threatened the survival of millions and the situation has continued to deteriorate because of frequent droughts, famines and floods. Most of the refugees have settled in Ethiopia and Uganda, but even there, they have not been spared from the cross-border threat of deportation and persecution for political means.
Myanmar
Who has not heard of the Rohingya crisis? India was itself a party to the national fiasco of whether to rehabilitate them or to throw them back into the hellhole they had escaped from, the neighbouring country of Myanmar.
Myanmar had derecognised Rohingya Muslims back in 1982, but they began fleeing their country only in 2012. The Rohingya problem started with a gangrape and murder case in Myanmar. Some Rohingyas were charged with the gangrape and murder of a Buddhist woman in the Rakhine region. This led to clashes between the Rohingyas and Buddhists, and soon the entire country was engulfed by riots. Then the military had been deployed to put the Rohingyas into concentration camps, with lack of sufficient food and water and poor medical facilities. Many were dying due to starvation.
Soon, many of the Rohingyas had escaped on boats and were seeking asylum in Bangladesh and Indonesia. However, both the countries closed their gates after the population in their territory was increasing too much. That is when the Rohingyas turned to India.
In India, the Rohingyas are living in refugee camps in Assam, Bengal, Uttar Pradesh, Delhi, Jammu and Kashmir, Andhra Pradesh and Kerala. They have steered clear from places parallel to Myanmar’s borders. All the Rohingyas were registered with the office of UNHCR.
India had welcomed Rohingyas much before the 2017 genocide but in recent times, the Indian government has adopted a similar attitude like that of Myanmar’s, doing little to improve the lives of the “illegal” immigrants and deporting them back where they will be deprived of their basic human rights and imprisoned.
Somalia
It has been more nearly 30 years since the Somali Refugee crisis began because of the country’s political instability and the civil war. On top of that, droughts and famine have become frequent in the country causing a high number of deaths due to starvation and dehydration. The deteriorating state of the country has also pushed its citizens into perpetual poverty, giving rise to all kinds of crimes, within and outside the country, like pirate attacks and terrorism. The combination of all these internal and external forces had led to many fleeing the country and seeking asylum in Ethiopia and Yemen, some making it into the United States as well.
Fortunately, there has been a decrease in the Somali refugee count since 2013, but the living conditions of Somalia have gotten much worse since the 1990s, making many refugees take citizenship of countries they were settled in. UNHCR has been the organization working for those displaced by providing them places to stay, employment, education and vocational training, all an attempt to help them resettle with skills to survive.
Refugee laws and rights
There are certain principles when it comes to determining the rights and laws for refugees and the internally displaced population. They are-
- Protection action in three categories-
- Responsive action: action aimed at preventing the recurrence of abuse, putting a stop to it and alleviating its immediate effect.
- Remedial action: action to ensure that the dignity of the people affected is restored and that they are provided adequate living conditions. It is also aimed to protect them through due process of law and justice.
- Environment building: activities encouraging respecting the rights of the people.
- General rights include-
- Right to life and liberty
- Right to a fair trial
- Right to security
- Freedom of expression, religion and association
- Freedom from torture, degrading treatment, slavery, compulsory labour
- Equality before the law and equal protection of the law
If we talk specifically about Refugee laws, then the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol lay down certain basic rights they have provided-
- For Refugees
- Right to seek asylum
- Right not to be forcefully returned to a country where the refugee’s life and rights would be in danger
- Right to non-discrimination
- Right to documentation and to access work and education
- Right to freedom of movement, to access courts and practice one’s religion
- For Internally Displaced
- Freedom from gender-specific crimes like rape, prostitution, sexual exploitation, sale into marriage
- Freedom from slavery, forced child labour
- Right to non-discrimination and equality for employment and economic activities
- Right to full and equal participation and involvement of women in educational and vocational training programmes
- Special care and attention to women’s needs and reproductive as well as psychological health
- Right to respect family links and reunification
UN Refugee Agency
The UNHCR or the UN Refugee Agency is a United Nations agency with the mandate to protect the refugees and represent their rights and legal concerns. It was established in 1950 after the Second World War. It has provided aid during the uprising in Hungary, to Chinese refugees in Hong Kong and was closely associated with the growing crisis after refugees fled from Tunisia, which marked the beginning of the Arab Spring, responsible for the depleting conditions of Somalia, Sudan, Egypt, Yemen and Syria. It has partnerships with the United Nations along with the International Labour Organization (ILO), International Maritime Organization (IMO) and UN International Children’s Fund (UNICEF) to enable the protection and legislation for asylum-seekers with the help of member countries of these organizations.
According to the 1951 Convention and 1967 Protocol, there can be no reservations to the following fundamental rights as given under Article 42–
- Article 1 which provides the definition of “refugee”
- Article 3 which is Freedon from non-discrimination
- Article 4 which is Freedom of religion
- Article 16(1) which is the Right to access courts
- Article 33 which is Freedom from a forceful return to a country, i.e., non-refoulement
- Article 36-46 which are the final clauses
A temporary protection regime
Although there is no specific definition for a temporary protection regime, it is understood to be a series of emergency measures to deal with a mass refugee influx by first countries of asylum and other host countries which cannot cope with such large scale refugee movements through individual refugee stations. Sometimes, a temporary protection regime can also mean a national protection status, which is time-limited to discharge humanitarian aid to persons who fall out of the scope of the 1951 Convention and 1967 Protocol. However, a temporary protection regime may not always be for large mass refugee influx, it can be restricted to specific regions like the US Protection Regime is specifically for refugees from Iraq and Syria in Europe.
The reason why a temporary protection regime is relevant is that it is more practical and efficient that is custom made to deal with mass refugee influxes. It can be devised with case-specific rules and regulations in consonance with the basic assembly of the 1951 Convention and 1967 Protocol. Another reason behind it being a more preferable technique is that it actually ensures the stability of food, shelter, medical facilities and other basic emergency amenities.
The temporariness of the protection regime is the best solution to house asylum-seekers when individual States are against keeping the borders open for refugees because of its time constraint which makes it possible for host countries to revoke the regime when more durable solutions are found without getting involved in any legal battle for rights and violations. The combination of temporary protection and humanitarian aid actually helps to mitigate any backlash the domestic institutions might have against the host country government’s policy to house refugees and displaced.
Is it really possible or only good in theory?
In spite of all the good features of the temporary protection regime, there were conflicts which led to two of its major criticisms questioning its practical application-
- It provides fewer rights to the protection beneficiaries than what is provided under the 1951 Convention, undermining the latter’s value.
- It is quite vague on its implication with respect to repatriation, that is to say, as per its essential feature, a refugee might be sent back to the country he/she fled from if the host country has some ‘“insufficiency” with providing for the person. And the host country has impunity against such an act.
In a nutshell, the main reason why it has been criticized is that the pragmatic aspect of a temporary protection regime places the control of the refugees into the hands of the executive of the host country. In most cases where a temporary protection regime was enforced, like in Turkey and Germany, the disorganised manner in which the executive implemented the order failed to work as efficiently as it was expected to work out.
It is difficult to say if a temporary protection regime is a right way to go about it or not because, after 1995, it was never implemented due to the loopholes and inconsistency with the 1951 Convention and 1967 Protocol. However, with proper reasonings and corrective measures, it can be successful, although the possibility is itself dependent upon the situation and intensity of the influx.
Conclusion
Even after legal remedies were available, most of the international organizations only limited themselves to helping the ones who have been able to somehow come out of the danger zone. Nobody is saying that they do not help the ones who are out of the danger zone but it is equally important to bring more victims out of the epicentres of crime and exploitation.
Till now, international law has enabled the rehabilitation of survivors out of enemy hands, but more has to be done. Deploying the military in violent countries is only going to achieve so much. What is needed is the protection and securement of the refugees who are seeking asylums in foreign land not only in terms of physical protection but also including rights and remedies which are judiciously applied. Moreover, the duration of the temporary protection and withdrawal of temporary protection should be done on time, just randomly taking in and throwing the refugees out from the host country, whenever the government feels like it, jeopardises their safety more. Another aspect to solidify the success of a temporary protection regime is to keep all the fundamental and basic human rights at par with the ones given under the 1951 Convention so that conflicts between the two does not defeat the entire purpose behind the formulation of such a plan. Moreover, the power of the executive when it comes to planning a temporary protection regime has to be regulated so that their absurd whims and fancies do not cost the refugees their life and freedom. It is either “do it all the way or do not do it at all,”being half-hearted in these cases is simply mocking the gravity of those who are suffering.
Unquestionably, an exhaustive and well-rounded temporary protection regime should be formulated, but the international law in itself has to become strong so that such crimes causing mass-scale refugee influxes do not get perpetrated at all.
References
- Ineli-Ciger, M. (2016). A Temporary Protection Regime in Line with International Law: Utopia or Real Possibility?. International Community Law Review, 18(3-4), 278-316.
- Bastaki, J. (2018). Temporary Protection Regimes and Refugees: What Works? Comparing the Kuwaiti, Bosnian, and Syrian Refugee Protection Regimes. Refuge, 34 (2), 73–84.
- To refer to the United Nations Human Rights Commission report on Refugee laws, go to https://www.unhcr.org/3d4aba564.pdf
- To read up on the International Legal Framework for Protection, refer to https://www.who.int/hac/network/interagency/a2_international_legal_framework_for_protection.pdf
- To get a brief idea of the largest refugee crisis in the world, refer to https://www.mercycorps.org/blog/worlds-5-biggest-refugee-crises
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
