A. United Nations High Commissioner For Refugees: Ten Refugee Protection Concerns In The Aftermath Of September 11th 2001
The horrifying Sept. 11 terror attacks in the United States have changed the world, profoundly affecting millions of people around the globe. The repercussions will be felt for years.
As the agency mandated to protect and assist millions of the world's most vulnerable people, the UN High Commissioner for Refugees is particularly concerned about the impact of Sept. 11 on those most in need of international protection and assistance.
UNHCR is concerned, for example, about the increasing public perception of refugees and asylum seekers as "criminals" and over attempts to create unwarranted links between refugees and terrorism. Even before the tragic events of Sept. 11, asylum seekers faced increasingly difficult obstacles in a number of countries, including gaining access to asylum procedures or overcoming presumptions about the validity of their claims because of their ethnicity or mode of arrival.
UNHCR is also aware that several governments are now looking at additional security safeguards to prevent terrorists from gaining admission to their territory through asylum channels. This is understandable and UNHCR endorses all efforts - multilateral or national - aimed at rooting out and effectively combating terrorism. In fact, UNHCR will be looking at what might be termed the "better practices" of the many governments that are undertaking these reviews.
The question being posed - what additional, security-based procedural safeguards can be taken by governments - is an inherently reasonable one. But we need to ensure that it is answered correctly, and that any new safeguards strike a proper balance with the refugee protection principles that may be at stake. UNHCR stands ready to work with governments on these issues.
As more and more governments undertake such reviews, UNHCR's main concern is twofold:
·
Firstly, that bona-fide asylum seekers may be victimised as a result of
public prejudice and unduly restrictive legislation or administrative
measures.
· And secondly, that carefully-built refugee protection standards
may be eroded.
Any discussion of security safeguards should start from the assumption that refugees are themselves escaping persecution and violence, including terrorism, and are not themselves the perpetrators of such acts.
It is also crucial that states understand that the 1951 Refugee Convention does not provide a safe haven to terrorists, nor does it protect them from criminal prosecution. On the contrary, the Convention is carefully framed to exclude persons who committed particularly serious crimes.
So as governments around the world look at various additional procedural safeguards in their efforts to combat terrorism in the wake of Sept. 11, UNHCR has formulated 10 specific concerns over possible actions that may directly affect asylum-seekers and refugees.
1. Racism
and Xenophobia: UNHCR is seriously concerned over the all-too-common
tendency to link asylum seekers and refugees to crime and terrorism. Making
such unwarranted links incites racism and xenophobia and is provoking
serious protection worries. Equating asylum with the provision of a safe
haven for terrorists is not only legally wrong and unsupported by facts,
but it vilifies refugees in the public mind and exposes persons of particular
races or religions to discrimination and hate-based harassment.
2. Admission and Access to Refugee Status Determination: All persons
have the right to seek asylum and to undergo individual refugee status
determination. Rejection at the border can result in refoulement -- sending
people back into danger. This is contrary to international refugee legal
obligations. UNHCR's concern is that legislation may be enacted which
effectively denies access to refugee status determination procedures --
or even leads to rejection at the border -- of certain groups or individuals
because their religion, ethnicity, national origin or political affiliation
are somehow assumed to link them to terrorism. The 1951 Refugee Convention
already contains a so-called "exclusion clause" which excludes
persons who have committed particularly serious crimes. In addition, it
lifts the prohibition on refoulement for those who are a danger to national
security. If properly applied, the 1951 Convention will exclude those
responsible for terrorist acts, and may even assist in their identification
and eventual prosecution. In short, the 1951 Convention does not extend
protection to the non-deserving.
3. Exclusion: UNHCR is concerned that governments may automatically
or improperly apply exclusion clauses or other criteria to individual
asylum seekers based on the assumption that they may be terrorists because
of their religion, ethnicity, nationality or political affiliation. Genuine
refugees are themselves the victims of terrorism and persecution, not
its perpetrators. When appropriate, UNHCR encourages governments to rigorously
use exclusion clauses contained in current international refugee instruments
like the 1951 Convention. But the application of any exclusion clause
must be individually assessed, based on available evidence and conform
to basic standards of fairness and justice. The assessment has to be part
of the overall status determination process.
4. Treatment of Asylum Seekers: UNHCR is concerned that governments
might be inclined to resort to mandatory detention of asylum seekers,
or to establish procedures that do not comply with the standards of due
process. UNHCR's longstanding position is that detention of asylum seekers
should be the exception, not the rule. Detention is only acceptable when
circumstances surrounding the individual case justify it - including when
there are solid reasons for suspecting links with terrorism. But detention
should always comply with due process. Similarly, refugee status determination
procedures put in place to deal with suspected terrorists must comply
with minimum standards of due process, involve officials who are qualified
and knowledgeable, and contain the possibility of review.
5. Withdrawal of Refugee Status: UNHCR is concerned that states
may be inclined to withdraw the refugee status of individuals based on
the assumption that they may be terrorists because of their religion,
ethnicity, nationality or political affiliation. The rule is that the
withdrawal of refugee status can only follow evidence of fraud or misrepresentation
of facts that were central to the decision. A refugee's ethnicity or origin
cannot in themselves be grounds for either denying or withdrawing status.
The facts are what count.
6. Deportation: UNHCR is concerned that governments may be inclined
to deport groups or individuals on the assumption that they may be terrorists
because of their religion, ethnicity, nationality or political affiliation.
While the 1951 Refugee Convention allows for the expulsion of individual
refugees on grounds of national security or public order, it should only
be done in pursuance of a decision reached under due process of law. This
should include an opportunity for the refugee to counter the allegations.
7. Extradition: UNHCR is concerned that states may be inclined
to expeditiously grant the extradition of groups or individuals on the
assumption that they may be terrorists based on their religion, ethnicity,
nationality or political affiliation. It is UNHCR's position that extradition
should only be granted upon conclusion of the corresponding legal proceedings,
and where it has been shown that the extradition is not being requested
as a means to return a person to a country for purposes which in fact
amount to persecution, not prosecution.
8. Resettlement: Resettlement to third countries is one of three
main durable solutions for refugees (the others are repatriation to the
country of origin and integration in the country of first-asylum). UNHCR
is concerned that states may now be inclined not to maintain their resettlement
programs at promised levels, particularly for certain ethnic groups or
nationalities. As far as UNHCR is concerned, resettlement remains imperative.
This is especially true for some vulnerable refugees from places like
Afghanistan, where women in particular may be at risk. Continued support
for resettlement is vital. UNHCR is working to diversify the number of
resettlement countries.
9. UN Security Council Resolution 1373: Security Council Resolution
1373 was adopted on September 28, 2001. Among other things, it calls on
states to work together urgently to prevent and suppress terrorist acts
and to complement that international co-operation by taking additional
domestic measures. Resolution 1373, if properly interpreted and applied,
is in line with principles of international refugee law. But care must
be taken in its implementation to ensure that bona fide asylum seekers
and refugees are not denied their basic rights under cover of the need
to take anti-terrorism measures.
10. Draft Comprehensive Convention Against Terrorism: UNHCR would
welcome the development and swift adoption of a comprehensive convention
against terrorism. But it should not give legal force to unwarranted linkages
between asylum seekers/refugees and terrorists. Nor should it be construed
as implying that the 1951 Refugee Convention is inadequate for the exclusion
of terrorists from refugee status, or that it somehow offers safe haven
to terrorists.