The United Nations High Commissioner for Refugees (UNHCR) The Office of the UNHCR, located in Geneva, was established on December 14, 1950 by United Nations General Assembly Resolution 428 with a mandate to lead and coordinate international efforts to protect refugees and find solutions to refugee problems throughout the world.[1] Using the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol as its major tools, the UNHCR strives to ensure the basic human values of persons in distress and to prevent refugees from being involuntarily returned to the country from which they fled, or expelled to another country where they may face persecution. As of today, there are 147 States Parties to one or both of these legal instruments.[2] The primary organs of the UNHCR are the High Commissioner, elected by the UN General Assembly on the nomination of the Secretary-General, a Deputy, appointed by the High Commissioner, and the Executive Committee of the High Commissioner's Programme, established by the Economic and Social Council. Although ECOSOC elects its members, the Executive Committee functions as a subsidiary organ of the General Assembly, reporting directly to it. Recent Development: State Responsibility for Refugees in Times of Occupation I. CEASED CIRCUMSTANCES While Sweden takes up the EU Presidency, the European Union finds itself at a critical juncture in regard to the creation of a Common European Asylum System (CEAS). The Reform Treaty, expected to be ratified by all Member States by the end of this year and enter into force in early 2010, introduces a system of integrated management of the EU's external borders, incorporates the Charter of Fundamental Rights which guarantees the right to asylum[3], and expands the competence of the Court of Justice of the European Communities (ECJ) with a view to questions of asylum and immigration.[4] In that context a recent request by the German Federal Administrative Court for a preliminary ruling by the ECJ with respect to the interpretation of an article of a European Council Directive[5] gains importance as the outcome would not only have significance for all EU Member States, but the subject matter highlights a problem of global reach and contention. The provision in question (Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004) concerns the cessation of refugee status 'because the circumstances in connection with which he or she has been recognized as a refugee have ceased to exist', a stipulation commonly referred to as the 'ceased circumstances' clause. Article 11(1)(e) of said Directive is based on Article 1(C)(5) of the 1951 UN Convention Relating to the Status of Refugees, which therefore would be of relevance in the present case. According to Article 1(A)(2) of the Refugee Convention and its 1967 Protocol, a refugee is a person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. .The special protection thus conferred to a person defined as refugee shall cease to apply if [h]e can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;. this.shall not apply to a refugee.who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality.Based on a narrow reading of this provision, in recent years a number of countries, including Germany, had started returning refugees, especially from Iraq, to their country of nationality, asserting that circumstances had sufficiently changed to justify them back. In reviewing refugee status and interpreting the criteria for cessation the German authorities e.g. had focused on whether the individual concerned, at the time of the review, faced a risk of persecution in the country of origin, either in the form of continuation of the previous danger of persecution or a new risk.[6] In order to justify returning refugees, UNHCR Cessation Guidelines require change in circumstances to be (1) fundamental, (2) durable, and (3) to result in effective protection being available in the country of origin.[7] However, for change to be accepted as fundamental, in the case of persecution by a state, German courts regarded it as sufficient that the persecuting regime had lost power. In regard to durability of change the only question of relevance was whether the former regime was likely to regain power. Instability resulting e.g. from military intervention was considered irrelevant insofar as there was no likelihood of the return of the previous regime[8], and the availability of effective protection and general issues of safety other than the likelihood of renewed persecution had not been taken into account at all. Thus, as neither widespread insecurity, precarious living conditions, nor the transitional character of the occupation of Iraq by the multinational forces were considered as relevant arguments against cessation, in practice this approach resulted in the systematic revocation of refugee status, especially of Iraqis who had fled the regime of Saddam Hussein. However, in view of the highly volatile security situation in Iraq invoking the 'ceased circumstances' clause in regard to refugees originating from that country would seem premature as, in the opinion of the UNHCR, the current conditions on the ground have neither fundamentally or durably changed, nor may availability of effective protection be reduced to protection against a recurring risk of persecution.[9] Recognition of refugee status leading to international protection in the first place entails protection against return to a country where the threat of persecution persists as enshrined in the principle of non-refoulement[10], but also protection allowing for a life in dignity in the host State[11]. As the overarching objective of international protection thus is "to provide the refugee with a durable solution in addition to and beyond safety from persecution"[12], this aspect has to be taken into account when the 'mirror image' of the decision to grant refugee status, i.e. revocation based on alleged 'ceased circumstances' is being considered. If the ECJ subscribes to such a reading of the 'ceased circumstances' clause in its ruling, revocation of refugee status throughout the EU and beyond, not least in regard to refugees from a still fragile occupied country, is likely to be reversed in numerous cases[13], based on the principle of non-refoulement. II. PRIMARY RESPONSIBILITY Another important, related aspect concerns the general question of who bears (primary) responsibility for refugees in any given situation. While the Refugee Convention obliges all States Parties to cooperate with the UNHCR in fulfilling its function of supervising the application of the provisions of the Convention[14] and prohibits the expulsion or return ('refoulement') of a refugee 'in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened'[15], the Convention itself is silent in regard to distributing the burden of accepting refugees, which is why, as a point of departure, neighboring states usually still are left with the main burden of dealing with refugee crises[16]. Looking at the Iraqi situation, neither the U.S., nor Iraq are even States Parties to the Refugee Convention, though the U.S. is a State Party to the 1967 Protocol. Furthermore, applicability of the provisions of the Refugee Convention could be based on customary international law. But even so, no particular legal obligation to accept a certain number of refugees may be inferred from those international rules. Yet, it seems intuitively wrong that of all Iraqi citizens claiming asylum in 2007, half of those claims were made in a small country like Sweden, '[a]nd Sodertalje, a city of 83,000 people, took in more Iraqis than the United States and Canada combined.'[17] In acknowledging heightened responsibility for refugees stemming from Iraq, especially in regard to Iraqis that cooperated with the U.S. and because of this association have been exposed to reprisals by insurgents, last year the U.S. adopted new legislation, the so-called Kennedy Bill, increasing the total intake of Iraqi refugees to the U.S. and granting preferential status to e.g. Iraqi interpreters and translators seeking resettlement in the United States[18]. But a more general claim may be made that an occupying country always carries primary responsibility for the protection of people whose lives were specifically affected by the occupying power's actions, for refugees 'created' by war or intervention, irrespective of the legitimacy of those acts, i.e. for people who would not have been refugees were it not for preceding actions of intervening forces. Apart from a potentially increased refugee basis (i.e. the 'surplus' compared to the number of individuals who, regardless of outside intervention and for various reasons would have been refugees at a relevant juncture), such state responsibility would all the more apply in regard to persons targeted because of their direct work for the occupying powers, or indirect cooperation. Despite the recently adopted Kennedy Bill, in the main such duty currently constitutes merely a moral obligation, not a legal responsibility akin to a 'guarantor's obligation', though it may be time to reconsider that stance. A final matter of concern meriting further scrutiny relates to the question of honoring previous obligations in the process of transition from occupation to sovereignty. A point in case pertains e.g. to the People's Mojahedin Organization of Iran (PMOI), an Iranian opposition group based in Ashraf City, Iraq. Neutral during the 2003 Iraq war, the group's members had been designated as protected persons under the Fourth Geneva Convention by the U.S. forces and reportedly provided assistance to counter-terrorism efforts, and intelligence, exposing Iran's nuclear program. The Iraqi government however, while still in negotiations with the U.S. with respect to the expiration of the UN mandate of the multinational forces in Iraq[19], indicated it would claim control over Ashraf and threatened to expulse the inhabitants, even to their country of origin where serious reprisals including torture and death penalties would await them.[20] Now that the US-Iraqi Status of Forces Agreement[21] has been concluded, basically handing over responsibility for security in "Iraqi cities, villages, and localities" to Iraq by 30 June 2009[22], the Iraqi government did not waste much time carrying out that threat. On 28 July 2009 Iraqi security forces raided the PMOI camp in Ashraf, assaulting the unarmed Iranian dissidents inside, wounding several hundred and killing at least seven.[23] **** Irrespective of the underlying political skirmishes and interference on the part of Iran (the current Shiite dominated Iraqi government maintains strong ties with Shiite-led Iran) that might have triggered those attacks, the more general question would be whether or to which degree (based on the same reasoning applied in regard to refugees 'created' by conflict) an occupying power is under a (special) obligation to ensure the continued protection of those people once designated as protected persons, or whether such state responsibility to protect on the part of an occupier simply expires, i.e. is transferred to the occupied state once that state assumes sovereignty, without the initial designator being under a continued duty to ensure the well-being of the protected persons. Furthermore, could such designation as protected persons under the Geneva Conventions be regarded as akin to the granting of refugee status in the sense that allowing the status of protected persons to be reneged on and the individuals concerned sent back to the country they fled would amount to refoulement, which would be contrary to international legal provisions, such as Article 33 of the Refugee Convention? Obviously, there are no easy answers, neither to the question concerning the 'ceased circumstances' clause before the ECJ, nor in regard to the allocation of primary state responsibility for refugees and other protected persons, as the issues involved pitch numerous legitimate concerns against each other. 'Ceased circumstances' deals with the extent and duration of an individual refugee's right to protection and a life in dignity versus a state's limited resources in accommodating persons in dire straits. The question of state responsibility pertains not only to the extent of (heightened) moral, if not legal, obligations associated with occupation, but also touches more generally on the limits of such responsibilities. When does an occupation end and complete sovereignty of the occupied state begin, when and under which circumstances may an occupying power dispose of its responsibilities to protect those placed in a precarious predicament due to the occupying power's actions, or designated as protected persons under the Geneva Conventions, and how do we balance legitimate assertions of sovereignty on the part of a previously occupied state with concerns for the durable safeguarding of refugees and protected persons under international law? While days of occupation may be exceptional times it is all the more important to ensure that those ultimately and permanently endangered by the actions of occupying powers receive protection under international law that outlasts the occupational regime. Tom Syring Lecturer in International Law and Constitutional Theory University of Oslo August 2009 Footnotes: 1 GA Res. 428 (V) (14 December 1950), with Statute of the Office of the United Nations High Commissioner for Refugees, available at http://www.unhcr.org/3b66c39e1.html. 2 United Nations Convention Relating to the Status of Refugees, (28 July 1951) 189 UNTS 150; United Nations Protocol Relating to the Status of Refugees (31 January 1967) 606 UNTS 267. Text of both treaties and information on ratification is available at http://www.unhcr.org/pages/49da0e466.html. 3 Article 18, Charter of Fundamental Rights of the European Union 2000 O.J. (C 364) 1. 4 European Union, Treaty of Lisbon Amending the Treaty on the European Union and the Treaty Establishing the European Community, 2007 O.J. (C 306) available at http://europa.eu/lisbon_treaty/index_en.htm. 5 On 28 April 2008 the German Federal Administrative Court submitted five identical references for preliminary ruling to the Court of Justice of the European Communities (ECJ) concerning the interpretation of said Article 11(1)(e) in the following cases: Case C-175/08, Aydin Salahadin Abdullah v. Federal Republic of Germany; Case C-176/08, Kamil Hasan v. Federal Republic of Germany; Case C-177/08, Khoshnaw Abdullah v. Federal Republic of Germany; Case C-178/08, Ahmed Adem and Hamrin Mosa Rashi v. Federal Republic of Germany; Case C-179/08, Dler Jamal v. Federal Republic of Germany; 2008 O.J. (C 197) 3-5, available at: http://eur-lex.europa.eu/JOIndex.do?year=2008&serie=C&textfield2=197&Submit=Search&ihmlang=en 6 Germany, Federal Administrative Court, Judgment of 1 November 2005 [1 C 21.04]. 7 UNHCR, Guidelines on International Protection: Cessation of Refugee Status under Article 1(C)(5) and (6) of the 1951 Convention Relating to the Status of Refugees (the "Ceased Circumstances" Clause) (10 February 10, 2003) HCR/GIP/03/03 available at http://www.unhcr.org/3e637a202.html. 8 Higher Administrative Court Lower-Saxony, Judgment of 1 March 2005 - 9 LA 46.05, available at http://www.asyl.net/dev/M_Doc_Ordner/8752.pdf; Higher Administrative Court North-Rhine Westphalia, Judgment of 4 April 2006 - 9 A 3590/05.A, available at http://www.asyl.net/dev/M_Doc_Ordner/8226.pdf; Higher Administrative Court Baden-Württemberg, Judgment of 4 May 2006 - A 2 S 1122/05, available at http://www.asyl.net/dev/M_Doc_Ordner/8743.pdf. 9 UNHCR, Statement on the "Ceased Circumstances" Clause of the EC Qualification Directive (August 2008) 11-12, available at: http://www.unhcr.org/protect/PROTECTION/48a2f2a42.pdf . 10 As enshrined in Article 33 of the Refugee Convention and Article 21 of the Qualification Directive. 11 As enshrined in Articles 3-34 of the Refugee Conventions and Articles 20, 22-34 of the Qualification Directive. 12 Statement on the "Ceased Circumstances" Clause of the EC Qualification Directive, 15. 13 In Germany alone, a review may apply to up to 14,495 Iraqi refugees whose status had been revoked between November 2003 and May 2007, based on the authority's considerations that the dangers prevailing in Iraq were general dangers threatening the entire population and, as a general rule, could not be equated with persecution, i.e. on the singling out of a particular person based on that person's specific characteristics or affiliations. 14 Article 35, Refugee Convention. 15 Article 33 (1), Refugee Convention. 16 Jordan and Syria e.g. currently combined host about two million Iraqi refugees, while Western countries accepted only a fraction of that number. 17 ''Little Baghdad' Thrives in Sweden: Sodertalje Has Taken in More Iraqis Than the U.S., But Mood is Changing', MSNBC (19 June 2008, available at: http://www.msnbc.msn.com/id/25004140/ . 18 'Briefing on Developments in the Iraqi Refugee and Special Immigrant Visa (SIV) Admissions Programs', U.S. Department of State, Washington, DC (4 February 2008) available at http://2001-2009.state.gov/p/nea/rls/rm/100030.htm . 19 In accordance with UN Security Council Resolution 1790, UN Doc. S/RES/1790 (18 December 2007), that mandate expired on 31 December 2008. 20 A decision of the Council of Ministers dated 17 June 2008 stressed that control of the PMOI should be handed over to the Iraqi government and repeated declarations by Iraqi officials echoed that claim, Call on the Iraqi Authorities and the USA, International Federation for Human Rights (9 September 2008) available at: http://www.unhcr.org/refworld/publisher/IFHR.html. 21 Agreement between the United States of America and the Republic of Iraq on the Withdrawal of the United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq, (US-Iraqi Status of Forces Agreement) signed on 17 November 2008 and entered into force on 1 January 2009. 22 US-Iraqi Status of Forces Agreement, Article 24 (2). 23 Iran Exiles Killed in Iraq Raid, BBC News (29 July 2009) available at: http://news.bbc.co.uk/2/hi/middle_east/8175171.stm; L'armée irakienne prend d'assaut le camp des Moudjahidine du peuple, Le Monde (28 July 2009) available at: http://www.lemonde.fr/proche-orient/article/2009/07/28/l-armee-irakienne-prend-d-assaut-le-camp-des-moudjahidine-du-peuple_1223674_3218.html. |
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