Strengthening Refugee Protection against Xenophobia and Discrimination

Submission to the World Conference against Racism,
Xenophobia, Racial Discrimination and Related Intolerance

August 31- September 7, 2001

I. Introduction

II. Key Principles

III. Recommendations on the Draft Declaration
(A/CONF.189/4) and Programme of Action (A/CONF.189.5)

I. Introduction

Refugees are victims, or potential victims, of serious human rights violations committed for a discriminatory reason. They look to the international community to provide the protection they are unable to access from their home State. But gaining refugee status is not always a passport to protection. Unfortunately today, the very fact of becoming a refugee is likely to increase an individual’s vulnerability to racist or xenophobic attack. As civil and ethnic strife becomes the new hallmark of war, refugees find themselves in situations of displacement which have been generated and exploited as part of deliberate combat strategy. Even in those countries where refugees seek final safety, discriminatory foreign policy goals and xenophobic sentiment can taint the humanitarian response to their plight. Effective refugee protection therefore is not only an appropriate response to victims of discrimination and intolerance – increasingly it is also an essential mechanism for preventing further violations of human rights.

Protecting refugees is an indispensable strategy in the contemporary fight to eliminate racism, racial discrimination and xenophobia and other forms of intolerance. However, that protection - a fundamental human right - is too often bargained away in the political calculations about controlling entry to, and movement within, borders. States are extremely reluctant to acknowledge that protecting refugees is an obligation, rather than a matter of discretion. This was strikingly reflected during preparatory discussions for the World Conference on Racism (WCAR), when strong opposition was expressed to identifying refugees explicitly as requiring specific protection against racism and intolerance. As a result refugees are almost completely missing from the adopted text sections of the draft Declaration (DD) and Programme of Action (POA).

This omission must be redressed. Human Rights First (Human Rights First) has identified four key goals which the WCAR Declaration and Programme of Action must articulate in order to ensure refugees' right to protection again racism :

(a) secure recognition that discrimination against refugees and asylum seekers is a contemporary form of racism

(b) strengthen the institution of asylum and the enjoyment of refugee rights without discrimination

(c) enhance the protection of refugees in situations of armed conflict

(d) acknowledge collective international responsibility for refugee protection

II. Key Principles

(a) Securing recognition that discrimination against refugees and asylum seekers is a contemporary form of racism

Refugees and their specific protection needs must be unequivocally affirmed in the WCAR Declaration and Programme of Action. Currently, the drafts of both documents contain significant references to the rights and needs of migrants generally, with only a small number of adopted clauses explicitly addressing refugee rights.

Human Rights First recommends that the WCAR

• acknowledge that discrimination against refugees is a particular form of racism against which States must take a specific stand.
  
  
• Recognise the critical causal link between racism, displacement, and refugee flows

(b) Strengthening the institution of asylum and the enjoyment of refugee rights without discrimination

The guarantee of non-refoulement is the foundation stone of refugee protection. As a principle of customary international law it must be enjoyed absolutely without discrimination. The creation of an efficient and effective asylum system is one way States ensure respect for this essential right. The institution of asylum, as the primary mechanism for recognizing and providing protection to victims of racism and related intolerance outside their countries of origin, is at the same time one of the cornerstones of the fight against racism. Recently, however the institution of asylum has come under attack. The growth of racism and xenophobia has been acknowledged as one of the underlying causes of this development.

Where an asylum procedure is in place, the way that the system is accessed and administered can minimize or exacerbate discrimination against refugees seeking protection. Increasingly States are taking measures around the institution of asylum which are having a discriminatory impact on the right of non-refoulement, utterly unrelated to the goal of protection. Restrictive interception and entry policies (interdiction, visa restrictions, creation of safe havens etc.,) affect a refugee’s ability even to approach the borders of a safe haven. Once refugees do arrive, notions such as ‘safe third country’, ‘safe country of origin’, and fast track procedures such as expedited removal, are often implemented in a way which again cuts down the protection available to a refugee in an arbitrary manner.

Even if admitted to a procedure, refugees may face a whole new range of additional obstacles to accessing their human rights. Discrimination based on ethnic background, gender, language or education skill sets can occur because of insufficient interpretation, legal and medical assistance services available to an asylum applicant. Detention for purposes of immigration control can also be imposed in a discriminatory manner, triggered by factors such as the method of entry to the State. It is important to recall that the imposition of detention can severely and differentially exacerbate the mental and physical suffering of a refugee, especially where he or she has previously experienced arbitrary detention or suffered torture or ill-treatment. Finally, refugees can be particularly vulnerable to suffering violations of their economic, social and cultural rights.

In the search for effective solutions to the plight of refugees , opportunities to contribute to combating the growth of racism and related intolerance may also be lost. In many circumstances refugees find themselves making a choice between inadequate or unsustainable protection in their country of asylum and return to persecution in their country of origin. By providing adequate refuge or opportunity for resettlement, host States can discourage a cycle of persecution, often based on race and ethnicity, which would be perpetuated by involuntary return. Conversely, exercise of the right to return for refugees should not be arbitrarily prevented for reason of ethnicity or race. Finally, it is also important that resettlement and integration policies do not inappropriately discriminate between groups of refugees.

Human Rights First recommends that the WCAR

• ensure that protection of the right to seek and enjoy asylum from persecution is given central prominence in the final Conference documents
  
• affirm that all measures taken in relation to asylum seekers and refugees should be fully in accordance with the obligations of the 1951 UN Refugee Convention Relating to the Status of Refugees, as amended by the 1967 Protocol; call for universal ratification of the Convention, without geographical reservation
  
• undertake to remove the particular barriers to protection faced by refugees within the country of asylum, particularly those which affect refugees’ right to protection against non-refoulement
  
• urge that detention of asylum seekers and refugees should only be resorted to in extreme circumstances, and then only to the extent strictly required by the circumscribed objective underlying the measure, in accordance with human rights norms
  
• recommend that attention be paid to finding ways of integrating support for the enjoyment of the social and economic rights of refugees into humanitarian assistance programs
  
• call for specialized legal, cultural, gender sensitive and psycho-social training for those officials and professionals involved in the administration of the asylum system
  
• emphasize that the decision on the part of an individual refugee to return to his or her homeland in safety and dignity must be voluntary and that exercise of the right to return should not be prevented simply for reason of ethnicity or race; further consider what steps are necessary in order to ensure that resettlement and integration policies do not inappropriately discriminate against particular nationalities or races.

(c) Enhancing the Protection of Refugees in Situations of Armed Conflict

Although the grant of asylum is intended to be a peaceful and humanitarian act there is a growing trend to perceive refugee movements as threats to national security. These apprehensions render refugees vulnerable to particular invidious discrimination, especially exacerbated in the context of armed conflict. As a result of fears about the combatant nature of the refugee flow, refugees may be summarily refused entry at the frontier by the authorities, without any genuine determination of their protection needs. Refugee populations forced to settle close to the border region of a country in conflict may be perceived as attracting aid to fuel the war machine. Even where there is a high probability that armed groups have become mixed in with the refugee population, direct threats of violence by those armed elements are not the only dangers. Refugees as a group may be particularly singled out for arbitrary detention, assault, torture and refoulement by governmental authorities in the name of maintaining ‘security’.

Refugees themselves are frequently perceived as inherently criminal, fuelled by war reports from the country of origin and the construction of inaccurate stereotypes around the character of those who tend to flee. Immigrants, migrant workers, asylum seekers and refugees are easily employed as scapegoats for the deficiencies persistent in host States, including those relating to the enforcement of criminal law. The general perception that criminals are being harbored by a refugee population can lead to widespread stigmatization and discrimination. In some cases there may even be threats of hostile attack from the local population. In the long term, the wholesale classification of a refugee population as complicit in conflict or suspect of motive greatly diminishes the opportunity for successful local integration and resettlement.

Human Rights First recommends that the WCAR

• recognise that preservation of the civilian and humanitarian character of refugee camps and settlements contributes to safeguarding the institution of asylum itself, and thus to ensuring that asylum as an essential form of protection for victims of racism and related intolerance continues to be available
  
• urge that measures be taken to minimize the risk that xenophobia, accentuated by State security concerns, precipitates action by governmental authorities or the local population which threatens the safety of the refugee and host population
  
• endorse the principle of the safe location of refugee camps and settlements
  
• urge that disarmament and separation of armed elements out from the refugee population is carried out at the earliest possible juncture during a refugee inflow, and that all measures are conducted in a strictly rights respecting manner, humanitarian, refugee and human rights law requirements
  
• call for the implementation of fair procedures to ensure that a clear distinction is made between genuine refugees and those who deserve to be ‘excluded’ from international protection because they have committed serious criminal acts[1] , bearing in mind that conduct of such ‘exclusion’ procedures may be the firs step towards the prosecution of those who are responsible for racist or discriminatory acts amounting to violations of international criminal law
  
• recommend the conduct of specialized training , and the development of operational guidelines for, appropriate military and civilian personnel around refugee rights
  
• recognize the vital role of civil society in combating misperceptions and raising awareness about the needs and rights of asylum seekers and refugees especially in volatile situations involving conflict or the arrival of large refugee groups

(d) Acknowledging Collective International Responsibility for Refugee Protection

Inequality in the international community’s response to refugee crisis can have the effect of exacerbating the stress placed on a local economy and social structure by the arrival of large refugee populations. It is a reality that developing countries receive and protect the great majority of displaced persons seeking asylum. Other countries do not provide the resources and support, financial and otherwise, (whether via the conduct of a resettlement procedure or political engagement with the origins of the crisis), which would ensure that the responsibility is shared equitably. The result is not only problematic for the host country struggling to live up to its primary obligation to protect refugees. As countries become increasingly politically and economically interconnected, refugee flows take on more complex roots and present consequences with an inevitable global reach. There is ever more practical and moral requirement for collective action around protection of refugees.

Human Rights First recommends that the WCAR

• acknowledge that responsibility for protecting refugees has a manifestly international character and that the international community is called upon to collectively respond, and seek solutions, to refugee situations
  
• urge States that in decision-making about the appropriate response, financial or otherwise, to a refugee crisis, they are not guided by considerations of the race, color, or national or ethnic origin of the refugee population
  
• call for support for capacity building within local governmental and non-governmental institutions in host countries, for the development of effective refugee policy and practices

Human Rights First makes the following recommendations for the adaptation of the draft texts of the Draft Declaration (DD) and Programme of Action (POA). Please note that all additions are indicated in bold.

(a) Securing recognition that discrimination against refugees and asylum seekers is a contemporary form of racism

• retention of DD 19 currently under debate: “Recognizing that xenophobia against migrants, refugees and non-nationals constitutes one of the main sources of contemporary racism and that most human rights violations against such groups occur in the context of discriminatory, xenophobic and racist practices;”
  
• support for the proposal by Human Rights Watch [2]for amendment of DD PP24: “Affirming that racism, racial discrimination, xenophobia and related intolerance [acts] are against the dignity of humankind, may constitute most serious violations of human rights, offences to humanity, obstacles to friendly and peaceful relations among peoples and nations and are among the root causes of many internal and international conflicts, including armed conflicts with the consequent displacement of populations;”
  
• amendment of DD 55 as follows: “We reaffirm the sovereign right of each State to formulate and apply its own legal framework and policies for migration, subject to the principle of non-refoulement, a principle of customary international law, and further affirm that these policies should be consistent with applicable human rights instruments, norms and standards, in particular those relating to the protection of refugees, and designed to ensure that they are free of racism, racial discrimination, xenophobia and related intolerance”
  
• retention of alternative clauses DD (60 – 63 inclusive) in Section II Subtitle : Refugees
  
• amendment of POA 43 as follows: “Recognizes that victims of trafficking are particularly exposed to racism, racial discrimination, xenophobia and related intolerance. States shall ensure that all measures taken against trafficking in persons, in particular those that affect the victims of such trafficking, are consistent with internationally recognized principles of non-discrimination, including the prohibition of racial discrimination and the availability of appropriate legal redress, and consistent with the recognition that trafficked persons may also be entitled to protection as refugees”

(b) Strengthening the institution of asylum and the enjoyment of refugee rights without discrimination

• addition of a reference to the 1951 UN Convention Relating to the Status of Refugees, as amended by the 1967 Protocol to the list of instruments to which signature, ratification or accession is sought in DD PP17.
  
• amendment of DD 121 as follows: “We also strongly reaffirm as a pressing requirement of justice that victims of human rights violations resulting from racism, racial discrimination, xenophobia and related intolerance, especially in the light of their vulnerable situation, socially, culturally and economically, should be assured of having access to justice, including legal assistance where appropriate, effective and appropriate protection and remedies, including the right to seek and enjoy asylum from persecution, and to seek just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination, as enshrined in numerous international and regional human rights instruments, in particular the Universal Declaration of Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination and the 1951 Refugee Convention as amended by the 1967 Protocol;”.
  
• amendment of POA 38 as follows: “Urges States to comply with their obligations under international human rights, refugee and humanitarian law relating to refugees, asylum-seekers and displaced persons, and urges the international community to provide them with protection and assistance in an equitable manner and with due regard to their needs in different parts of the world, in keeping with principles of international solidarity, burden sharing and international cooperation to share responsibilities, and in particular urges that all measures relating to asylum-seekers and refugees are taken fully in accordance with obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, to which instruments we urge universal accession without geographical reservation”.
  
• addition of new Clause in POA Section II Subtitle : Refugees as follows “Urges States to apply the principle of non refoulement without discrimination, in particular by avoiding restrictive entry policies which affect a refugee’s access to an asylum procedure for reasons unrelated to the goal of protection; urges States to ensure that the ethnic background or language or education skill set of a refugee does not prevent his or her access to protection; calls the attention of States to the vulnerability of particular groups of refugees, inter alia, women, children, detainees and victims of human rights abuse, the discriminatory effects of which must be taken into account in the formulation of refugee practices and policies”.
  
• addition of new Clause in POA Section II Subtitle : Refugees as follows: “Calls on States to subject the use of detention against asylum seekers and refugees to the strictest scrutiny, bearing in mind the particularly detrimental effect which detention can have on torture victims and victims of other human rights violations; where detention is imposed for an immigration reason, its use should be strictly circumscribed in accordance with relevant human rights norms; further urges States to explore effective alternatives to detention”.
  
• full substitution of the current text of POA 41, in order to ensure its general application and relevance to all three durable solutions, with the following text: “Urges States to search for durable solutions to the plight of refugees, whether through voluntary return in safety and dignity, local integration in the host country, or resettlement in a third State, in a manner fully consonant with principle of non- discrimination”.
  
• endorsement of DD 62 alt: “We underline the urgency of addressing the root causes of displacement and of finding durable solutions for refugees and displaced persons, including voluntary return in safety and dignity, resettlement and local integration, when appropriate”.

• addition of new Clause in POA Section II Subtitle : Refugees as follows: “Urges States to reaffirm that the grant of asylum is a peaceful and humanitarian act and to takes steps to ensure that the conduct of measures to enhance security, including the relocation of refugee camps, the separation of armed elements, and the exclusion of individuals undeserving of refugee protection, does not violate human rights, refugee and humanitarian law rights norms, in particular the right of non-refoulement”.
  
• addition of new Clause in POA Section II Subtitle : Refugees as follows: “Call on States to consider the introduction, in collaboration with civil society, of awareness raising activities relating to the situation of refugees (especially in situations of mass influx and armed conflict), and the development of specialized training and operational guidelines on securing refugee rights for police and military personnel”.

• adoption of DD 63 alternative with the following amendment: “We affirm our commitment to respect our obligations relating to the protection of refugees, asylum seekers, returnees and internally displaced persons and in this regard urge the international community to provide assistance in cooperation with the United Nations High Commissioner for Refugees to host countries, in particular to host developing countries, in the spirit of responsibility and burden-sharing, to enable them to fulfil their international obligations towards protection of refugees as enshrined in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and other relevant instruments, including the principle of non-refoulement”.
  
• retention of clause D 131 recognizing the need for an equitable response to the situation of refugees worldwide.

Endnotes

[1] See the ‘exclusion clauses’ in Article 1 F of the 1951 United Nations Convention relating to the Status of Refugees and Article I (5) of the Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa. See also, “Safeguarding the Rights of Refugees Under the Exclusion Clauses: Summary Findings of a Project of Human Rights First”, Human Rights First, October 2000

[2] See “Protecting the Human Rights of Refugees, Asylum Seekers, Migrants and Internally Displaced Persons, Suggested Language”, Human Rights Watch, August 6, 2001, p 12 at www.hrw.org