Global: The accountability gap in refugee protection

There is an accountability gap in refugee protection in the developing world. Host states consider refugees to be the responsibility of the "international community," and are pleased to cede their sovereignty on this issue to UNHCR, an unaccountable international organization. Yet, legally, host states are responsible for the human rights of refugees within their borders.

UNHCR plans, manages, and funds refugee camps in developing countries, yet denies responsibility for the human rights conditions in those camps, blaming host governments.
But why do refugee camps exist? And why does UNHCR do status determination? It wasn't always that way, and it doesn't have to be that way. Why is accountability for refugee rights handed off like a baton in a relay race? Today, I don't want to just catalogue problems, but to seek a structural explanation for why there is an accountability gap, and make some proposals for overcoming it.

All of you are familiar with USCRI's anti-warehousing campaign.

This, in my opinion, is one of the most innovative and important human rights campaigns going on now anywhere, on any topic. It takes on some powerful entrenched interests amongst NGOs, international organizations, and governments. Why? Because "helping" refugees--the "care and maintenance" operations that have been the hallmark of refugee aid for the past thirty years--is very lucrative for operational NGOs, much like distributing U.S. food aid is. It is like a business, it sustains them. That is why, at least for food aid, there is a lobbyist-lawyer who represents everyone involved in helping supposedly starving people and lobbies Congress to increase food aid. This includes port authorities, farmers, bag manufacturers, ink manufacturers, shipping companies, rail companies, and so forth. That is why there are groups that lobby Congress for ever more money to support policies that promote the encampment of refugees. USCRI challenged that comfortable consensus.
USCRI's campaign made explicit what everyone who has ever worked in a refugee camp knows: refugee camps are inhumane.

It is impossible to enjoy human rights in refugee camps. Former High Commissioner for Refugees Sadako Ogata stated this, and it has been reiterated by her successors. It is a truism. Refugees are denied basic rights like freedom of movement and freedom to work. In some camps they are forbidden to grow food. Historically UNHCR, WFP, and host governments looked askance at refugees selling or bartering their rations. Camps are sometimes militarized, and refugees, particularly boys, are subject to forced recruitment or extortion in support of the "war effort." The concentration of refugees in one place makes this a lot easier. An Oxford biological anthropologist named Ken Porter found that Burundian refugee children in camps in Tanzania in the 1990s were significantly shorter than local Tanzanian children, suggesting chronic malnutrition. Refugees in Kakuma in the 1990s also suffered chronic malnutrition--a doctor who worked there and often spoke with researchers about the state of malnutrition in the camp had his contract "un-renewed" for being too open about it. Unni Karunakara of MSF, a public health expert, found that encamped Sudanese refugees in West Nile in northern Uganda were healthier than their self-settled counterparts, but were significantly more likely to suffer violent attacks.

Yet even though everyone knows camps are an abomination, it seems no one can be held responsible for their continuing existence. Even though UNHCR pays for the camps and runs them, it blames host governments. Yet host governments respond to the incentives in front of them, and there is lots of money for encampment. Host governments and UNHCR are rarely criticised by human rights groups for the very existence of camps. In Uganda and Kenya, UNHCR played a role in designing encampment policies, and promoted a strategy for "urban refugees" that insisted on their deportation to camps. Donors give UNHCR the money to run the camps, tending to believe that there is no viable political alternative.

Few ask whether there are other ways to help refugees and their hosts.

The answer is that there are alternatives, but they are rarely considered. In almost any protracted refugee situation, there are thousands of families who "escape" the confines of the humanitarian regime and make their own way in towns and as sharecroppers in rural areas. They are usually ignored by aid agencies, and they often do not benefit from legal protection. Legal protection is essential because it is what prevents a refugee from "re-foulement"--deportation to the country where he or she fears persecution. But they remain there because they judge they are better off economically or in terms of safety. This was the case with Ugandans in Sudan in the 1980s and with Guineans and Guinea-Bissauans in the 1960s in Sierra Leone. In the course of my own research on eastern Congo, I found letters in UNHCR's archives from the 1960s from local officials in Kivu asking UNHCR for more refugees! The local leaders found that the refugees were adding to the area's agricultural productivity, and that the assistance UNHCR was providing benefited everyone in the area.

Today, UNHCR and aid agencies (the latter usually under contract to UNHCR as an "implementing partner") build parallel health and education services for refugees that citizens do not have access to. In a number of cases, these structures have been deliberately destroyed when the refugees go home, to discourage them from coming back. Malawi hosted hundreds of thousands of Mozambican refugees in the 1980s, and despite great numbers and significant environmental damage, did not force them into camps. Similarly the anthropologist Art Hansen documented the self-settlement of Angolan refugees in western Zambia. Such refugees are usually the most agriculturally productive members of society. Even in Iran and Pakistan, many Afghans led their lives outside of camps.

It is possible to assist refugees differently. We can design strategies for helping refugees that promote integration and economic development.

You may be less familiar with refugee status determination (RSD). UNHCR is the largest refugee status decision-maker in the world, deciding some 88,000 cases in about eighty countries in 2005. UNHCR's manuals and guidelines are a paragon of best practice. The reality is different.

Here is a description of the situation in Kenya in the late 1990s by an evaluation team of the Jesuit Refugee Service. According to my sources, things have not changed much since then:

If granted an interview, she will sit in the waiting area from early in the morning probably until late afternoon and even then she may not be interviewed. . .. She will then be invited to return on another given date. . . . [She is eventually interviewed]. When she returns she will be delivered with her decision. She will be told that her letter is available for collection at the gate of the Wood Avenue compound. She will be handed it by one of the guards stationed at the gate. Reasons for the decision are not given. If it is a rejection she will have to deal with the shock, disappointment and above all stress alone for she will be told that there is nothing anyone can do for her. . . . If she has received a rejection with a 14-day appeal right she can go to the UNHCR office in Westlands to make her appeal. No one tells her this. And the letter does not tell her either. If she finds out what to do it will be by chance.

Refugees in UNHCR RSD faced issues of confidentiality--for example, in Uganda, some refugees found others of their own nationality, or from the host government, reading their case files, because UNHCR sub-contracted initial screening to a local NGO. Refugees are rarely given reasons for rejection of their application, much less a legal argument. Often the rejection seemed based on an intuitive judgement by a protection officer about "credibility." "I can tell if someone is lying or not in the first minute of the interview," said one UNHCR official. Really? I can't, can you? I have done hours-long interviews with hundreds of refugees over the past nine years, and I have little confidence in my ability to distinguish amongst liars, exaggerators, nervous truth-tellers, and traumatized people with disjointed memories. There is no clear appeal procedure in UNHCR RSD. Sometimes the appeal was to the original decision-maker. Interpreters were not always provided. Secret evidence is used. Any of these faults makes a mockery of due process.

I had assumed that UNHCR's questionable involvement in RSD was limited to poor countries. But a colleague recently received a query from a Mexican government asylum official, Barbara Perez-Martinez--a query, not an accusation, Ms Perez-Martinez stressed--about UNHCR involvement in a case in Spain. She recently granted asylum to a Colombian man who was persecuted by the FARC. He had been receiving threats from the FARC for a while, and went to Spain to claim asylum. He never got out of the airport. He was held in a room for four or five days, and different UNHCR officials visited him. On the second visit, he was told his case was rejected and was asked to sign a paper agreeing to be sent back to Colombia. He never had access to the Spanish government asylum procedure. A month after returning to Colombia, he was attacked by the FARC members who had been threatening him and was hit 27 times with a machete in his back, arms, face, and head. He lost his right eye and his left arm had to be reconstructed. About two years later he made it to Mexico, and was granted asylum there a few weeks ago. He asked Ms Perez-Martinez whether it is possible to take legal action against UNHCR. Is the testimony true and complete? If so, who is accountable?

Who is accountable? You cannot sue the UN. Ultimately, according to the judgement in D. vs. Turkey before the European Court of Human Rights, European governments are still responsible even if UNHCR makes a negative decision.

Why does the accountability gap exist? My critique of UNHCR is not really about UNHCR per se. It is certainly not about the personal characteristics of UNHCR officials. It is an argument about incentives and structures of accountability. The reason the accountability gap exists is that UNHCR is seen as, and often is, the provider of services and legal protection to refugees, and you cannot sue the UN. It has sovereign immunity under international law. Host governments of developing countries are not seen as responsible for refugee rights. But, if host governments were responsible for status determination, there would at least be the possibility of using courts and other legal measures to improve observance of refugee rights. UNHCR has a key role to play in increasing adherence to refugee law amongst host governments, but it cannot do it so long as it is performing the state's functions for it.

Indeed, in many circumstances UNHCR acts as a state. In refugee camps, it hires NGOs to provide social services. In some places it oversees camp security forces. It creates structures to arbitrate disputes. It establishes health systems, and sometimes holds elections for camp leadership positions. The host governments are not involved. In one camp in Kenya for example, UNHCR forcibly transferred an Ethiopian refugee who was holding human rights classes--which included criticism of UNHCR and the way it ran the camp--to another camp because UNHCR feared his activism could cause unrest. This recalls the actions of British colonial officials who used to exile troublesome Africans to the Seychelles until they cooled down. Yet even though it is performing state-like functions, UNHCR's actions are subject to no judicial or political control.

I recently argued that refugee rights advocates hold UNHCR to a very low standard and international human rights organizations. UNHCR always acts surprised and wounded when it is criticized, and implies that such criticism is ill informed, malicious, ideologically driven, and wholly inappropriate. UNHCR after all is on the front line of helping refugees, it responds, and its staff work in dangerous places, and so forth. But why should the fact that you consider yourself a humanitarian absolve you from being held to professional, legal standards? Should we be tolerant of medical malpractice because doctors are only trying to help? Should police overreach be ignored because their work is dangerous and they perform an essential public service? Should we fail to be angry when state child protective services do a poor job and children are later abused?

I think it is appropriate to focus carefully on UNHCR's role because of the power and influence it wields on refugee policy in developing countries and because historically, its operations have received very little public scrutiny. It is able to wrap itself in a cloak of humanitarian immunity, not to mention sovereign legal immunity. But just because you help people does not mean you should be beyond scrutiny.

I often hear refugee advocates complain about unfairness in the U.S. asylum system. From my perspective--comparing it to the situation in developing countries--it looks very different. The American refugee system is the best in the world. There are several levels of administrative and judicial review. The provisions of refugee law are interpreted generously. A recent court decision, for example, found that women who had experienced circumcision are refugees, even though they do not fear a repetition of the persecution.

The U.S. also resettles more refugees every year than any other country--by an order of magnitude. However the U.S. usually fails to fill the quota of allowable refugee admissions every year. There are many reasons for this, but one reason is that in some regions--particularly in Africa--the U.S. has historically relied on UNHCR to propose candidates for interview by U.S. asylum officers. Over the past few years the U.S. government has begun giving a greater role to U.S. NGOs in the field to propose candidates for resettlement. This is a positive development, which should be built on. American organizations are more accountable to the American people and have a more holistic approach to determining vulnerability than UNHCR does. It is appropriate that American organizations should play a key role in supporting the U.S. government to select the individuals who are most in need of resettlement to the United States. And once refugees arrive, they are quickly integrated into the mainstream of American life--at warp speed compared to the pace and depth of immigration in Europe. It is organizations like yours, who assist refugees in their first months of transition to life in the United States, that make this possible.

Earlier this month, I had a stopover in the Nairobi airport while returning from a trip to Rwanda. In the departure lounge, I encountered a large group of Banyamulenge--Congolese Tutsi--refugees. They are survivors of the Gatumba massacre of 150 people in Burundi in 2004, and they were on their way to the United States. I had worked in the Gatumba camp just before the massacre in the context of my doctoral research on the history of the Banyamulenge, and I was in the camp the day after. They were excited, a bit bewildered, and worried about how cold it is in places like Kentucky and Minnesota and Albany, New York. It is a source of pride that the only country that had the capacity and compassion to take this group in is the United States. This special resettlement operation was possible because of tireless work by the Bureau of Population, Refugees, and Migration of the U.S. State Department together with an American NGO.

But resettlement is not enough. It is not a solution for the vast majority of the world's refugees. Very few will ever qualify for resettlement in a Western country. The quest for resettlement also creates perverse incentives that can make refugee protection more difficult in poor countries, because non-refugees often attempt to enter the process as part of a migration strategy. That is why everyone concerned with refugee rights should be involved in monitoring and activism on behalf of refugee protection abroad.

I suggest a multi-pronged strategy.

First, as the people closest to new refugees in this country, begin to have conversations with new arrivals about the protection failures they experienced during the long years before they were resettled. This will give you your own holistic understanding of where the challenges are and who is responsible for what.

Second, insist on high standards from UNHCR in the administration of refugee camps (for as long as they continue to exist) and in its status determination procedures--the same standards we demand from our own government. UNHCR cannot fulfil its primary function--which is promoting refugee law--if it fails to measure up to its own standards. I have suggested that UNHCR should withdraw from status determination and insist on alternatives to camps. But other reasonable people can propose different pathways to reform.

Third, pressure host governments on refugee rights, just as we do on all other human rights. Under international law, they have the primary responsibility to protect the refugees on their territory. The fact that UNHCR often enables them to escape this responsibility does not make it moot.

Fourth, rely more on the 1969 OAU Convention's less individualized criteria for refugee status, such as "fleeing disturbances of public order" and rely more on prima facie status determination, which does not require consideration of individual circumstances. One way to reduce procedural failures in individual status determination when resources are scarce is to do less of it.

Fifth, support practical work in developing countries to help refugees realize their rights, especially legal aid for refugees vis-à-vis both UNHCR and host governments. Help bring refugee rights cases to domestic courts--something that UNHCR is pleased to do in the United States through amicus briefs filed in the U.S Courts of Appeal and the U.S. Supreme Court, but almost never does in poor countries.

The U.S. government will continue to play the leading role in the world on refugee policy. Leadership on refugee policy should be seen as a meaningful contribution to our overall foreign policy goals.

The U.S. should expect UNHCR to meet higher refugee protection standards. We should take the lead in pioneering new methods of refugee assistance that do not involve encampment. There are past successes that can be built on. We should provide assistance in such a way that refugees can settle themselves and enjoy the full panoply of human rights; their hosts will benefit from their presence as well.

Finally, in this time of political acrimony over immigration--which is really a debate about the identity of America in the next generation--let's make sure to maintain and strengthen the American tradition of being the world's ultimate safe harbour. In the long run, the benefits of asylum redound more to the host than to the refugee.

Mauro De Lorenzo is a resident fellow at AEI.