17 The Need To Institutionalize The Principles Of Prevention and Prohibition of Cruel, Inhuman Or Degrading Treatment As Envisaged By The Convention On Refugees – I

Rohini Sen

1. Outline

International refugee law is part of a larger mosaic of international human rights law and international humanitarian law. Human rights law constitutes the broad framework within which refugee law provisions should be seen. The International Covenant on Civil and Political Rights has been interpreted to prohibit return to torture.

UN convention and protocol relating to status of refugees was drafted relying upon Article 14 of the Universal Declaration of human rights 1948, which recognizes the right of persons to seek asylum from persecution in other countries. Refugee law emerged post World War II when displacement was rampant and there arose a need to protect persons who were forced to leave their state, which could not protect their rights.

2. Objectives:

• To understand the dependency of refugee law and human rights law on general international humanitarian law.
• To understand the rights of refugees and the duty of States towards them.

3. Introduction

There is a clear relationship between the problems of refugee and the issue of human rights. Violations of human rights are not only among the major causes of mass exoduses but they also rule out the option of voluntary repatriation for as long as they persist. Violations of rights of minorities and ethnic conflicts are increasingly at the source of both mass exoduses and internal displacements.

Armed conflict and international humanitarian law are of relevance to refugee law and refugee protection in a number of ways. Another point of interface between international humanitarian law and refugee law is in relation to issues of exclusion. Violations of certain provisions of international humanitarian law are war crimes and their commission may exclude a particular individual from entitlement to protection as a refugee.

Also, International humanitarian law offers refugees who find themselves in a state experiencing armed conflict a two–tiered protection. First, provided that they are not taking a direct part in hostilities, as civilians refugees are entitled to protection from the effects of hostilities. Secondly, in addition to this general protection, international humanitarian law grants refugees additional rights and protections in view of their situation as aliens in the territory of a party to a conflict and their consequent specific vulnerabilities. It offers them certain general protections as well as specific ones.

4. Learning Outcomes

• Understanding the interplay between various factions of international humanitarian law
• Gaining a perspective on Refugees and the law that protects them

5. ‘Refugee’ under Human Rights Law

It is the responsibility of States to protect their citizens. When governments are unwilling or unable to protect their citizens, individuals may suffer such serious violations of their rights that they are forced to leave their homes, and often even their families, to seek safety in another country. A refugee is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.The convention set a minimum standard for treatment of refugees. Those who flee their own countries in search of protection abroad do so precisely because their human rights are at risk in their own country. To decide that an individual has a “well-founded fear of persecution“ is in effect to conclude that one or more of his or her basic human rights are not being respected. Similarly, to determine that a group of people fleeing conflict or serious disturbances of the public order are prima facie refugees is in most cases to acknowledge that they are victims of violations of human rights or humanitarian law.

Those who flee their own countries in search of protection abroad do so precisely because their human rights are at risk in their own country. To decide that an individual has a “well-founded fear of persecution“ is in effect to conclude that one or more of his or her basic human rights are not being respected. Similarly, to determine that a group of people fleeing conflict or serious disturbances of the public order are prima facie refugees is in most cases to acknowledge that they are victims of violations of human rights or humanitarian law.

6. Rights accorded to refugees under human rights law

Grounded in Article 14 of the Universal Declaration of human rights 1948, which recognizes the right of persons to seek asylum from persecution in other countries, the United Nations Convention relating to the Status of Refugees, adopted in 1951, is the centerpiece of international refugee protection today. The convention upholds the principle of universal declaration of human rights which prohibits discrimination of persons based on their race, religion, gender, political affinities, nationality etc. In the event of fleeing to another country, often immigration norms are violated for which the refugees may face persecution and may be sent back to their countries. But a refugees who are fleeing their conflict ridden homes are protected from such suits as international law gives them the right to non-persecution.

Disregard for the minimum rights of refugees and internally displaced persons is another dimension of the relationship between the two issues. During the process of seeking asylum, a growing number of people are faced with restrictive measures which deny them access to safe territories. In some instances asylum seekers and refugees are detained or forcibly returned to areas where their lives, liberty and security are threatened. Some are attacked by armed groups, or recruited into armed forces and forced to fight for one side or the other in civil conflicts. Asylum-seekers and refugees are also victims of racist aggression. Refugees have rights which should be respected prior to, during, and after the process of seeking asylum. In the words of the United Nations High Commissioner for Refugees, Sadako Ogata, “the refugee issue must be put to all governments and peoples as a test of their commitment to human rights”

Unfortunately, the fear of eviction coupled with their poor living standards in the host countries has caused refugees to resort to a life of crime. This has led to a rise in State crime. In fact, politicians have used this as an opportunity to identify nationalism in the context of ‘us’ and ‘them,’ treating the refugees as outsiders.

7. Right to seek Asylum

Article 14 of the United Nations Declarations on Human Rights states that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” The right to asylum is an individual right that an asylum-seeker has vis-a-vis his state of origin. Essentially, it is the right of an individual to leave his country of residence in pursuit of asylum. The basis for this right is the principle that “a State may not claim to ‘own’ its nationals or residents. Refugees have been the targets of violent attacks and intimidation, largely because they were perceived as “different” from the communities in which they had temporarily settled. Countries that once generously opened their doors to refugees have been tempted to shut those doors for fear of assuming open-ended responsibilities, of abetting uncontrolled migration and people-smuggling, or of jeopardizing national security. This led to creation of laws with respect to providing asylum to Refugees.

Refugees are entitled to two partially overlapping sets of rights: those rights accorded to them as individuals and guaranteed under international human rights standards and national law, and specific rights related to their status as refugees. It provides refugees general rights and protection from a state (protection from displacement).It provides refugees special rights (Protection as aliens in the territory of a party to a conflict)

Three major instruments decided the fate of the rights of a refugee in international law, the 1951 Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees and Resolution 2198 (XXI) adopted by the United Nations General Assembly. While the 1951 convention, an instrument of the post second world war, covered persons seeking refuge due to events which occurred before 1951, the 67 protocol made it a universal rule.

8. Exceptions to the Right to seek Asylum:

The word “asylum” is not defined in international law; but it has become an umbrella term for the sum total of protection provided by a country to refugees on its territory. Asylum means,

at the very least, basic protection – i.e., no forcible return (refoulement) to the frontiers of territories where the refugee’s life or freedom would be threatened – for a temporary period, with the possibility of staying in the host country until a solution outside that country can be found. The circumstances under which an individual can be denied asylum are based on the duty of every individual to uphold the Universal declaration of Human Rights. A person who has committed war crimes outside the host country may be refused asylum. Similarly, persons who have committed major non-political crimes are refused asylum as well. Another exception pertains to persons who are benefitting from the help of a United Nations agency other than the UNHRC. An exception to the principle of non-refoulement is that persons, if they threaten the security of the host country may be denied asylum.

9. Overall Relationship: What International Law determines

a. Human rights law can reinforce existing refugee law

The most basic right for refugees is the right not to be subject to refoulement, which is set out in Article 33 of the 1951 Convention. But the 1951 Convention is not the only international treaty which provides protection against refoulement. See Chapter 9 in Part II on Specific Issues.

Similarly, other rights provided for by refugee law, such as non-discrimination, are found in international human rights instruments.

Moreover, many refugee protection standards are set out in non-binding conclusions of UNHCR’s Executive Committee. While states should follow Executive Committee conclusions, it is difficult to argue that they are legally obliged to do so. Yet, many of the standards set out in Executive Committee conclusions are also found in inter-nation

“Human rights violations are a major factor in causing the flight of refugees as well as an obstacle to their safe and voluntary return home. Safeguarding human rights in countries of origin is therefore critical both for the prevention and for the solution of refugee problems. Respect for human rights is also essential for the protection of refugees in countries of asylum.“

Refugees are entitled to two partially overlapping sets of rights: those rights accorded to them as individuals and those guaranteed under international human rights standards and national law, and specific rights  related to  their status  as  refugees.

b. Two international human rights treaties have a particularly significant role in international refugee law:

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides for protection from refoulement, or forced return, to situations where there is a substantial risk of torture. The non-refoulement provision of the Convention against Torture is absolute, unlike the non-refoulement provision of the Refugee Convention, which requires that protection be linked to a fear of persecution because of a person’s race, religion, nationality, membership of a particular social group, or political opinion. In addition, no exceptions may be made to the Convention against Torture’s nonrefoulement obligation. Unlike the Refugee Convention, the Convention against Torture does not have any provision excluding perpetrators of particularly serious crimes or other undeserving persons from i protection.

The Convention on the Rights of the Child, to which nearly every State in the world is a party, applies to all children without discrimination, including child refugees and asylum-seekers. The Convention specifically stipulates that every child seeking refugee status has a right to protection and humanitarian assistance in the enjoyment of the rights set forth in that Convention and in others to which the State is a party.

In addition to the aforementioned rules for the benefit of all aliens in the territory of a party to a conflict, the Fourth Geneva Convention contains two further provisions expressly for the benefit of refugees. The first provides that refugees should not be treated as enemy aliens – and thus susceptible to the measures of control – solely on the basis of their nationality. This recognizes the fact refugees no longer have a link of allegiance with that state and are thus not automatically a potential threat to their host state.

The second specific provision deals with the precarious position in which refugees may find themselves if the state which they have fled occupies their state of asylum. In such circumstances, the refugees may only be arrested, prosecuted, convicted or deported from the occupied territory by the occupying power for offences committed after the outbreak of hostilities, or for offences unrelated to the conflict committed before the outbreak of hostilities which, according to the law of the now occupied state of asylum, would have justified extradition in time of peace. The objective of this provision is to ensure that refugees are not punished for acts – such as political offences – which may have been the cause of their departure from their state of nationality, or for the mere fact of having sought asylum.

10. International instruments:

Apart from the conventions of 1951 and 61, there are other instruments which provide protection to refugees.

The 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in time of War: article 44 of this Convention, whose aim is the protection of civilian victims, deals with refugees and displaced persons. Article 73 of the 1977 Additional Protocol stipulates that refugees and stateless persons shall be protected persons under parts I and III of the Fourth Geneva Convention

The 1954 Convention relating to the Status of Stateless Persons: defines the term “stateless person” as a person who is not considered as a national by any State under the operation of its law. It further prescribes the standards of treatment to be accorded to stateless persons.

The 1961 Convention on the Reduction of Statelessness: : a State party to this Convention acyrees t grant its nationality to a person born in its territory who would otherwise be stateless. The State also agrees, subject to certain conditions, not to deprive a person of his nationality if such deprivation would render him stateless. The Convention specifies that a person or groups of persons shall not be deprived of their nationality on racial, ethnic, religious or political grounds.

The 1967 United Nations Declaration on Territorial Asylum: this Declaration of the United Nations General Assembly lays down a series of fundamental principles in regard to territorial asylum. It states that the granting of territorial asylum “is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State.” It upholds the basic humanitarian principle of non-refoulement and recalls articles 13 and 14 of the Universal Declaration of Human Rights, which spell out, respectively, the right to leave any country and to return to one’s country and the right to seek and enjoy asylum.

11. Case Studies:

a. Case Study: Bangladesh

Conflict: In Bangladesh, UNHCR provides protection and assistance to refugees residing in refugee camps to help address their humanitarian needs and ensure minimum standards of living are met, which helps to deter irregular onward movement. For unregistered refugees residing outside the camps, UNHCR advocates for them to be registered and provided with protection as needed. UNHCR also advocates for more self-reliance opportunities for urban refugees and seeks durable solutions for them. Advocacy for the prevention of statelessness will continue.

b. Case Study: Syria

An estimated 9 million Syrians have fled their homes since the outbreak of civil war in March 2011, taking refuge in neighboring countries or within Syria itself. According to the United Nations High Commissioner for Refugees (UNHCR), over 3 million have fled to Syria’s immediate neighbors Turkey, Lebanon, Jordan and Iraq. 6.5 million are internally displaced within Syria. Meanwhile, under 150,000 Syrians have declared asylum in the European Union, while member states have pledged to resettle a further 33,000 Syrians. The vast majority of these resettlement spots – 28,500 or 85% – are pledged by Germany. As of Feb, 2015, the situation continues to be one of grave concern despite the assistance extended by international organizations like the UNHRC and countries like the United States of America.

Reference

1. Sharon Pickering, Refugees and State Crime, Annandale, NSW: Federation Press, 2005.
2. DANIEL WARNER, JAMES HATHAWAY, Refugee Law and Human Rights: Warner and Hathaway in Debate, 5 J. Refugee Stud. 162 1992
3. Deborah E. Anker, Refugee Law, Gender, and the Human Rights Paradigm, 15 Harv. Hum. Rts. J. 133 2002
4. ROYCE BERNSTEIN MURRAY, Sex for Food in a Refugee Economy: Human Rights Implications and Accountability, 14 Geo. Immigr. L.J. 985 1999-2000
5. REFUGEE PROTECTION: A Guide to International Refugee Law, http://www.unhcr.org/3d4aba564.html
6. Bill Frelick, U.S. Refugee Program Ignores Dangers Children Face, Critics Say, Human Rights Watch, March 2015, http://www.hrw.org/news/2015/03/27/us-refugee-program-ignores-dangers-children-face-critics-say
7. Benjamin Ward, The EU Stands By as Thousands of Migrants Drown in the Mediterranean, Human Rights Watch, Feb 2015, http://www.hrw.org/news/2015/02/25/eu-stands-thousands-migrants-drown-mediterranean