May 2007
Who Is Accountable for Refugee Rights?
Under international law, the United Nations High Commissioner for Refugees (UNHCR) has a mandate to protect refugees. Every state party to the 1951 Convention on the Status of Refugees is also obliged to guarantee basic economic freedoms and freedom of movement to refugees within their borders. Non-refoulement--the right not to be returned to a country in which you fear persecution--is the cardinal refugee right. With accountability for refugee rights so diffused in today's international system between agency and government, however, significant protection failures have arisen. Camps in which refugees are "warehoused" are hardly the paragon of humanitarianism they are touted to be.
Who is accountable when the most basic legal safeguards are missing from refugee status determination procedures? Is a refugee entitled to counsel, an independent appeal, and the right to know evidence used against him? Why does the United States regularly fail to fill the refugee resettlement quota permitted by Congress? What remedies are available, and what is the right distribution of accountability among UN agencies, Western governments, and refugee-hosting governments in the developing world?
John R. Bolton, AEI; Thomas Albrecht, UNHCR; Kelly Ryan, U.S. Department of State; Merrill Smith, U.S. Committee for Refugees and Immigrants; Mauro De Lorenzo, AEI; and Guglielmo Verdirame, University of Cambridge answered these and other questions on May 4. AEI's Danielle Pletka moderated.
John R. Bolton
AEI
The United Nations High Commissioner for Refugees is an important program that does excellent work with a fine history, but it is not without its ups and downs. During the 1960s and 1970s the organization was a great success, culminating in the awarding of the Nobel Peace Prize to the office of High Commissioner after Sadruddin Aga Khan. After this, during the administration of Jean-Pierre Hocké, the office was plagued with corruption. High commissioner Sadako Ogata restored the reputation of the UNHCR with her handling of the Kurdish refugee situation during the First Gulf War.
Some countries leave the responsibility of determining refugee status to the UNHCR, but given that this decision may be politically motivated, is this acceptable? Although UNHCR contends that it is as adept as any other body in determining refugee status, in fact, the organization should focus on its strength: helping to provide host countries with training and assistance. UNHCR has already proven its inability to handle status determination with regard to the difficulty that North Korean refugees have obtaining refugee status in China. Does the humanitarian system perpetuate political problems, such as refugee camps becoming havens for fighters in war zones? UNHCR performance is currently measured by inputs rather than outputs, and this needs to change. Rather than assessing the amount of money being put into programs, we need to asses how effectively that money is used. This type of reform needs to happen across the UN, but the UNHCR especially would benefit from this.
Kelly Ryan
U.S. State Department
The relationship between the United States and the UNHCR is respectful and responsive. There have been times when the two differ, however, and in these instances the UNHCR has filed amicus briefs with the Supreme Court. One example of this was during the Haitian and Cuban refugee situation. The United States believed it was not required to get involved, but the UNHCR disagreed, and thus an amicus brief was filed. This shows that both parties are not overly comfortable with each other and, in fact, have a healthy relationship.
The State Department agrees with Ambassador Bolton: states are responsible for protecting refugees, as defined in the 1951 Convention Relating to the Status of Refugees. The United States has a robust asylum system and has worked with the UNHCR to provide training and assistance to other countries to build their systems. It is in this manner that the UNHCR plays a key role. Its duty is to mobilize states to protect refugees and their rights. The United States also works with the UNHCR in areas in which the UNHCR is not welcome, and vice versa. Finally, the two work together in areas in which it is most effective for both parties to be involved. The United States is the largest bilateral donor to the UNHCR and the two bodies meet regularly to discuss priorities.
Those individuals fleeing North Korea are refugees and must be accommodated in the region (many have ended up in China, the Republic of Korea, or Thailand) or in the United States. These people genuinely fear return, in some cases for their life. The networks of nongovernmental organizations providing help on these cases need additional assistance.
The United States follows its donated money carefully and works with the UNHCR to develop guidelines for its use. Currently, High Commissioner Antonio Guterres is attempting to reform the UNHCR from within.
Thomas Albrecht
UNHCR
For the UNHCR, the rule of law is a critical factor for protecting refugees. Refugee issues are not confined to developing countries, but they raise issues of state sovereignty, security, and social cohesiveness around the world. As asylum systems become more restrictive, safe space for refugees decreases due to security reasons and domestic xenophobia. In these situations, the rule of law turns into a shield to deflect responsibility from the state. Refugee rights are the responsibility of states, as outlined in the 1951 Convention Relating to the Status of Refugees.
UNHCR is firmly a rights-based organization. Refugees are those who have had their rights taken away and do not have a friendly government to address their needs. Protection of such rights, including the right to live and protection against torture, are unique functions of the state. Helping states carry out these duties is at the core of the UNHCR mission. States have limitations on their power, and this is another area in which the UNHCR can help.
As states provide financial support to fund the works of UNHCR, UNHCR provides several layers of accountability. Ultimately, funding is only provided if the donor is convinced of the need and feasibility of the mission. There is also a move toward accountability to the beneficiary refugees by involving them in planning and adopting a community-based approach. UNHCR is working in some areas with host countries to engage civil societies in order to help the refugees gain working rights and freedom of movement. Other measures of accountability include the direct reporting of the High Commissioner to the General Assembly, implementation of a code of conduct, and regular financial and management audits, both internal and external.
Mauro De Lorenzo
AEI
There is consensus that refugee camps are inhumane and that their existence should be eliminated rather than reinforced. Additionally, all are in agreement that each national government, rather than UNHCR, is ultimately responsible for ensuring the rights of refugees and for enforcing its own refugee policy. Still, it is appropriate to focus on UNHCR because of the breadth and depth of its involvement in every aspect of refugee management and its engagement with the reputation of its donors and of the international community.
Due to its tremendous knowledge and experience in this field, UNHCR often acts as the state in refugee camps by designing and funding the policies that govern them. In this respect, UNHCR's accountability is not just to its donors, but also to the refugees themselves. UNHCR's operations are insufficiently scrutinized, in part because its contractors and other agencies are reluctant to criticize the organization that does the most to protect refugees. Still, mistakes and abuses remain a predictable consequence for any executive agency that is not constrained by democratic oversight. UNHCR failures are not a criticism specific to the agency, but of an unmonitored environment in which UNHCR money creates incentives for national governments to maintain camps. Shifting the onus of refugee responsibility to the national governments can increase accountability and reverse these lopsided incentives.
Guglielmo Verdirame
University of Cambridge
There is a stark contrast between UNHCR's operations in those countries where it plays an advisory and advocacy role in support of strong state institutions that exist to deal with refugees, and its operations in those countries where it must often fulfill these state functions. Administering refugee camps and determining refugee status forces UNHCR to assume de facto legislative and judicial authority.
UNHCR is therefore placed in a position to commit inevitable abuses. In the case of African refugee camps, there is a general restriction on free movement of refugees. For example, an Ethiopian journalist who fled to Kenya to escape censorship was censured and unilaterally transferred by UNHCR to a new camp for disturbing the peace by exercising free speech. Similarly, women in Kenyan camps were repeatedly jailed on charges of adultery by customary courts funded by UNHCR. UNHCR has also engaged in collective punishment by withholding food following riots in another camp. It is not helpful to say that the states are responsible in these cases. As a matter of law and a matter of principle, these acts are imputable to UNHCR. Such failures handicap UNHCR's credibility as an advocate, especially in status determination.
The problem lies not with UNHCR's personnel, but its institutional nature. In the classical liberal model, controls on institutions exist to compensate for unavoidable human failures. Surrounding the modern state is a complex of bureaucratic, judicial, legislative, and press organizations that together ensure transparency and accountability. As a result, there is a tendency to fall back on national governments when international institutions, lacking this apparatus, seem less reliable. The difficulties that UNHCR must overcome mirror the larger challenge facing all international institutions seeking a high level of credibility.
Merrill Smith
U.S. Committee for Refugees and Immigrants
The consensus against warehousing refugees in camps is in perfect accord with the original 1951 Convention Relating to the Status of Refugees. The convention's authors deserve credit for having conceived a virtual refugee bill of rights, one which does not even mention camps or the search for "durable solutions" because of the value it places on integration as the means to end refugee status. Despite broad condemnation, little has changed. Over the decades, the global refugee assistance and protection regimes have developed a structural bias that sustains warehousing. The attempt to balance humanitarian and development spending has created jealously guarded prerogatives, leading to "emergency" humanitarian aid programs that may last indefinitely.
A solution to refugee status requires both good governance and good policy in order to be effective, and respect for refugee rights is crucial to good policy. The international Good Humanitarian Donorship Initiative, to which the United States is a party, states that humanitarian action must include physical protection and the protection of human rights. From a practical standpoint, an end to refugee status requires respect for basic economic freedoms--the right to work, to own property, to assume a profession, and most basically to move freely beyond the camp--in order to achieve a restoration of normal livelihoods. The issue at hand is how to combine these elements to ensure the rights of non-citizens.
Along these lines, the U.S. government has developed the Millennium Challenge Account, which lays forth sixteen criteria and specific metrics for judging a nation's viability for assistance. The two categories most pertinent to refugees are civil liberties (involving their human rights) and regulatory quality (affecting the refugees' ability to pursue economic life outside the camps). Unfortunately, in both areas the Millennium Challenge Account's metrics are seriously lacking. Civil liberties scores are derived almost exclusively from Freedom House, an organization with an uneven record of judging refugee abuses. In some cases, the evaluation of human rights makes no reference whatsoever to a country's record with respect to refugee rights, even in the case of sometimes-egregious offenders such as Bangladesh, China, Iran, Kenya, Malaysia, and Russia. The attitude of some governments toward refugee rights was illustrated by a Tanzanian government official--a country in which a refugee may be arrested for venturing farther than four kilometers from a designated camp--who, when contacted by the U.S. Committee for Refugees and Immigrants, asked what civil liberties had to do with refugees in the first place. Regarding regulatory quality, the data is taken almost exclusively from the World Bank, which, in turn, obtains its information from equally opaque sources.
Money for development and humanitarian relief must be tied to improvements in these areas, and more effective metrics must be employed. The U.S. Committee for Refugees and Immigrants has recommended language to be added to the Millennium Challenge Account bill which will better ensure refugee rights in this way.
AEI interns Albar Sheikh and Daniel Holman prepared this summary.
