American Enterprise Institute

May 4, 2007

[Edited transcript from audio tapes]

1:15 p.m.	Registration
1:30	Introduction:	John R. Bolton, AEI
2:00	Presenters:	Thomas Albrecht, UNHCR
		Mauro De Lorenzo, AEI Kelly Ryan, U.S. Department of State
		Merrill Smith, U.S. Committee for Refugees and Immigrants
		Guglielmo Verdirame, University of Cambridge
	Moderator:	Danielle Pletka, AEI
3:30	Adjournment

Proceedings:

Danielle Pletka:  Good afternoon, everybody.  Welcome.  I’m Danielle Pletka.  I’m the vice president for foreign and defense policy studies here at the American Enterprise Institute.  Welcome to our event on the United Nations High Commissioner for Refugees.

There is a pervasive rule, unwritten perhaps, that criticism of the United Nations is somehow unacceptable.  In application that rule plays out in one of two ways.  Either there is no criticism at all, or the United Nations itself in New York is criticized but its special agencies receive something of a special carve-out.  The phrase, “Well, the UN is a problem but its specialized agencies do a wonderful job,” is one that is very commonly heard.

This unwritten rule and what I would call a rather opaque accounting and management structure and the rather amoeba-like quality of the Secretariat in New York has fostered what some have suggested is a culture of impunity inside the United Nations and its agencies.  Criticism, even important, constructive criticism, is too often rejected out of hand. 

In that regard I want to really commend Thomas Albrecht, who is here from the UNHCR, who has agreed to be on this panel for what I hope will be a very constructive discussion.  We tend to hear the headlines, and we’ve heard them in the last few years in the context of the Oil-for-Food Program and other problems in peacekeeping – whether it is theft or prostitution rings or extortion, dual standards, or the normal accusation of lowest-common-denominator politics – and those really are the headline criticisms.  But what about the things that don’t make the headlines?

Today we’re going to really have a chance to talk a little bit about the UNHCR and how its intended job is done.  Are refugees better off under the protection of the UNHCR?  Are they well served?  Are they resettled effectively and justly?  Is the UNHCR too much in the thrall of domineering powers, such as China, that have a political agenda?  Or are they really able to carry out their work effectively without that kind of influence?

To discuss this, we have a distinguished group of panelists here today.  But we’re going to start out with a small introduction from Ambassador John Bolton.  John is a senior fellow here at the American Enterprise Institute.  He is the former ambassador of the United States to the United Nations and prior to that, undersecretary of state for international security and nonproliferation, and prior to that, a scholar at the American Enterprise Institute.  A very distinguished résumé.

What I’m going to do is introduce the panelists after John gives a little talk.  John will speak for a few minutes and then he’s also agreed to take some questions.  So without talking any further, let me turn things over to you, John.  Thank you very much.

John Bolton:  Thank you very much, Dany.  Welcome to everybody here to what I think will be a very interesting discussion on a series of very important topics.  I’m really glad to see that we’ve got representation from a lot of the institutional interests that cover these issues, because they are serious and they deserve discussion.

The High Commissioner for Refugees is one of the most important of the UN’s agencies and programs because of the work it’s done historically, because of what it represents.  But I think we all know the High Commissioner’s office has had its ups and downs.  Under the leadership of Sadruddin Aga Khan in the late 1960s through the 1970s, it was really an organization that achieved some major successes.  It was reflected in the decision to award the Office of the High Commissioner the Nobel Peace Prize. 

After that, under the administration of Jean-Pierre Hocké we had a tragic circumstance of personal corruption, the misuse of trust funds and the requirement that the member governments step in and remove the High Commissioner.  But he was succeeded after a brief interval with Thorvald Stoltenberg, who I think lasted about six months until he became foreign minister of Norway.  Replaced by Mrs. Ogata, who I think was one of the most important, one of the most significant High Commissioners, particularly in the very difficult circumstances after the first Persian Gulf War, when tens of thousands of Kurdish refugees were forced out of their homes in northern Iraq.  Some went into Turkey and therefore qualified under the traditional definition of refugee but many did not.  Many were simply internally displaced, and yet Mrs. Ogata made what I think was the correct and courageous decision that nonetheless the High Commissioner should be involved in providing protection and assistance for the Kurds.

But I think today we’ve got a series of questions, several of which the panelists will be debating, that I do think require some further deliberation on the part of member governments and people who are concerned about the broad question of refugees. 

One issue is the basic subject of determining who is a refugee under the existing definitions.  We have circumstances where dozens of countries, scores of countries really, have turned over a substantial part of that responsibility – determining who qualifies as a refugee – to the High Commissioner.  Now, there will be discussion I think about how well UNHCR is performing that function, whether there’s adequate due process in the decision-making. 

I want to raise a somewhat different issue, which is whether and to what extent it’s really appropriate for UNHCR to be accepting this handoff from member governments and whether there’s not a hidden agenda on both sides here.  A hidden agenda on the part of many of the governments that would just as soon not have to make the political hard choices that making refugee determinations entail – I’ve certainly seen this in a variety of contexts in the UN.  The U.S. is just as guilty of it as anybody else. 

Within the State Department, the ability to say that that issue is with the United Nations – whether it’s with the Security Council or the High Commissioner – is a way for the State Department and the U.S. government, and for many other governments, simply to get themselves out of the line of fire in handling questions.  I think in the politically sensitive area of refugee status determination, this is something that the member governments, although they may profess they have inadequate infrastructures, they’re not capable of making the decisions, in many respects this is an act of ducking the political responsibility.

So UNHCR’s response would be, well, somebody has to do it, why not us?  My response would be that even if there are temporary or emergency circumstances where that might be the case, this is fundamentally a sovereign decision by member governments.  UNHCR’s most productive role, I would submit, would be in training and helping to provide assistance to governments to return the decision-making authority on status determination to the governments themselves.

This arises in a variety of different contexts.  One that I am particularly concerned about is the issue of North Korean refugees leaving the DPRK and going into the People’s Republic of China.  I know from the way this controversy has been described in print and the discussions I’ve had with a number of people that one of the problems here is a lack of understanding as to exactly what’s happening to these refugees from North Korea.  UNHCR and China are very strongly of the view that they’re handling this question properly.  I would have to say I have my doubts about that.  But I think more than anything else, the questions I have have to do with what exactly it is UNHCR is doing. 

I think this is a broad problem for the United Nations system, although it’s particularly important in the context of UNHCR.  As Dany said, the issue of transparency is one that is not really adequately addressed across the UN system.  But here, if there were ever an opportunity to look back at the original intent of those who formed UNHCR in the wake of World War II and the refugee policies that were adopted during the Cold War – which were predominantly aimed, and I don’t say this with any sense of embarrassment, at solving the legacy of the Nazi aggression in Europe and providing for refugee status for people fleeing communism in Eastern and Central Europe and the Soviet Union – here you have people fleeing the last communist dictatorship on earth and yet somehow they seem to have trouble acquiring refugee status.  So I think this is an issue that does require attention and UNHCR may have a perfectly good explanation.  But I don’t believe to date that we have heard it.

There are a series of other problems with the handling of refugees around the world that I don’t think can be laid, under an objective assessment, entirely at UNHCR’s door.  It is part of the UN system after all.  It deals with aspects of broader underlying political conflicts, the failure to resolve which conflicts is certainly not UNHCR’s fault or their responsibility but I think put a particular responsibility on member governments that they’re not fulfilling especially.  Not fulfilling in the Security Council through the resolution of disputes that give rise to peacekeeping operations or that resolve issues dealing with refugees.

I think one of the fundamental questions we have in the case of UNHCR is one that applies in a number of humanitarian situations, and that is whether the actual operation of the humanitarian situation does not in itself perpetuate the underlying political problems.  So that when we look at the circumstances of large numbers of refugees who are caught in refugee camps for long periods of time – they can’t be repatriated to their country of origin because conditions don’t warrant it, the country of first asylum doesn’t want them, doesn’t want them integrated into their society, and there are simply inadequate numbers of other countries that are willing to take the refugees coming out of the camps. 

These camps acquire their own cultures.  They are frequently used as refuges for the fighters in cases of civil strife.  Everybody knows that, it’s one of the worst-kept secrets in the world that we’re not simply dealing with a humanitarian relief here but in effect too often rest and relaxation for fighters from various different factions.  We know that the contesting factions in the Great Lakes region in Africa, in refugee camps in the Congo, have used the camps for their own purposes and indeed carried the intimidation from their own ethnic struggles into the camps themselves.  Not a UNHCR issue but a UN issue. 

The former UN Border Relief Organization, housing Cambodian refugees in Thailand, everybody knew that there were camps controlled by the Khmer Rouge, where the Khmer Rouge fighters existed.  Everybody knew the non-communist resistance had their camps.  That was a problem that existed right up until the Cambodian refugees were all returned.  In the case of UNRWA – again, not UNHCR but a UN refugee agency – the camps of Palestinians, which exist now as almost integral parts of cities in some cases, have been used for a political agenda by the Palestinians almost from their inception. 

In addition, even within the humanitarian context, you have a variety of nongovernmental organizations that are not content simply to be operational arms of UNHCR and the other UN humanitarian agencies but are pursuing their own political agendas, often Western political agendas that have nothing to do with the conflict at hand but which involve the refugees and use them. 

In many of these cases UNHCR, by participating in the system, one can ask whether it’s not simply abetting the perpetuation of difficult situations.  Again, I don’t have any illusions about what UNHCR as an organization could do to solve these underlying problems.  But I do think it puts a particular burden on governments, especially governments in the Security Council, to do a better job than they have of trying to resolve these matters and not leaving it simply to the Secretariat, to the UN Secretariat or the Secretariat of the High Commissioner.

I think finally, and I’ll stop here, there is a generalized problem for UNHCR and for the UN system as a whole in that too often performance is measured by inputs and not outputs.  Performance is measured by how many dollars are contributed to UNHCR, what’s the level of American assistance in tsunamis, what are the inputs, how many dollars are you contributing.  As opposed to, are these dollars being used effectively?  Are they producing the right outcome?  Are they conducive, in the case of refugees, to their return and reintegration into the normal life of their country of origin when that finally happens?  I think this is something that across the UN system needs a lot more work.  I think UNHCR would benefit by taking a lead on it.

These are all questions that are very important to me because I have a particular interest in seeing UNHCR be an effective, transparent and responsive organization.  I believe very strongly that the main reform that the UN system needs is to move from a system of fundamentally assessed contributions to a system of voluntary contributions.  It’s always been my view that historically over the decades, the UN agencies that are funded primarily by voluntary contributions – like the High Commissioner, like the World Food Program, like UNICEF – tend to be better managed, tend to be more responsive, tend to be more transparent. 

So when difficulties or questions arise with agencies like UNHCR, to me this poses a particularly important challenge for governments like the United States, which has historically been UNHCR’s largest supporter, to see these problems corrected.  Because I think if we’re able to do that, it signals hope for more substantial reform across the UN system as a whole.  I hope today’s panel will help contribute to that discussion.

So let me again welcome everybody here on a Friday afternoon.  I know this will be a stimulating panel and I’d be delighted to answer at least a couple or three questions before the panel gets started.

Danielle Pletka:  Are there any questions?  John, you’ve been entirely persuasive.

John Bolton:  Well, we’ll leave the panel to cause disruption then and get things going.  Thank you all again for coming.  Good luck to you and to the panel.

Danielle Pletka:  I’m impressed.  That’s a first.  Let me take a very quick moment and introduce without too much ceremony our panelists today.  I’m going to go in alphabetical order because that’s what I have in front of me, if I may.

Thomas Albrecht is the deputy regional representative of the United Nations High Commissioner for Refugees in Washington.  Previously, prior to his arrival in 2005, he was the representative of UNHCR in Ghana and he joined UNHCR twenty years ago.  So a great depth of experience.

Mauro De Lorenzo, our own resident fellow in foreign and defense policy studies, works on development issues.  In this particular instance, one résumé item is of special interest – he was a researcher at both the American University in Cairo and the Makerere Institute of Social Research in Kampala, Uganda, focusing on refugee policy and the wars in Congo, Rwanda, and Burundi. 

Kelly Ryan joined the Department of State in 2002.  She is the deputy assistant secretary of state in the Bureau of Population, Refugees and Migration.

Merrill Smith is the director of international planning and analysis for the U.S. Committee for Refugees and Immigrants and has been the editor of their World Refugee Survey since the 2003 edition.

Last, Guglielmo Verdirame teaches international law at the University of Cambridge and is a visiting professor at Harvard Law School this year.  He is the author, with Barbara Harrell-Bond, of Rights in Exile, an exposé of refugee protection failures.

Our speakers will each give a presentation uninterrupted and then at the end we will take what I hope will be the questions our audience is able to think up, since they were unable to think up questions just now.  Thank you for being here.

Kelly Ryan:  Thanks very much.  It is very difficult to follow Ambassador Bolton and I’m going to humbly try.  I thought rather than deliver a prepared speech I would try to give you a couple – explain to you from what I think is a unique perspective my understanding of not only the U.S.-UNHCR relationship but what the U.S. government is doing in terms of refugee protection.  Talk a little bit about North Korea and talk about this issue of accountability.

I’m actually rather unusual because I’ve been a Department of Justice attorney for ten years and then a Department of State attorney.  At the Justice Department, I was actually in charge of the application of asylum law in the United States.  There I worked very closely with UNHCR, which was fulfilling its obligation to give us supervisory advice as to our obligations under international conventions.  So while in general I would describe the relationship with the U.S. and UNHCR as very respectful and I would describe UNHCR as very responsive to U.S. requests, it would be fair to point out that there are times in our relationship where UNHCR has disagreed with positions the U.S. government has taken and has actually filed amicus briefs against the government in our Supreme Court.

For example, in interdiction, where the United States undertook to interdict Haitians and Cubans in extraterritorial water, the United States took the position that we had no obligation with respect to those persons to do an assessment of their asylum claim.  UNHCR disagreed and brought that position to our Supreme Court. 

Likewise, in a case involving whether someone was subject to Article I(F) exclusion of the Refugee Convention, UNHCR disagreed with when we evaluated that part of the claim, as to whether or not they were inside or outside of refugee protection.  They too again disagreed with us and took their position to the Supreme Court.  So I think it shows that we’re not too comfortable with each other.  We try to be very precise in what our understandings of our obligations are and I think it’s a very healthy relationship, if you will.

One of the questions that’s asked – whose obligation is it to protect refugees?  I stand squarely with Ambassador Bolton that it’s the states who have this primary responsibility to protect refugees within their territories, as defined under the 1951 Convention or its protocol.  In the United States, here we have a very robust asylum system with many review levels.  I think it’s the best in the world.  We talk to other countries about their asylum systems.  We work with UNHCR together.  We have done trainings with Mexico and Central America.  We’ve advised various countries on the development of their asylum law and we have a very good relationship with many countries that are just beginning to have a formalized asylum system.  We’ve had one in place for quite some time and we’ve had experiences where we’ve been successful and we’ve had experiences where we needed to change the way we developed a certain procedure because we were getting outcomes that we weren’t entirely satisfied with.

But it’s also important for us to remember what is UNHCR’s fundamental role.  It is to assume the function providing international protection under the auspices of the UN to refugees which fall within their scope and mandate.  They perform these functions in a number of ways.  They mobilize states to uphold this responsibility, and there are rogue states throughout the world that are unable or unwilling to help refugees.  But UNHCR is there, as is the United States, trying to make sure that refugees are protected from physical and mental harm, from forced return (refoulement), and from being disadvantaged by their status. 

It is absolutely true, as Merrill will probably discuss, that there are a whole range of ways states react and there’s a whole range of acceptable behaviors and unacceptable behaviors.  We see that throughout the world.  There’s no doubt that not all countries are perfect on this.  Some would say the United States is not perfect in this area.  But that is what UNHCR is trying to do and we in the United States are as well.

I think also it’s important for us to talk about what we are doing in the United States to try and promote international protection and why we believe that the UNHCR performs a very valuable function.  There are places in the world where the U.S. is not welcome, liked or influential.  There, it’s particularly effective to have UNHCR be an advocate for refugee protection.  There are places where we are actually more effective than UNHCR and that’s where we share our information with UNHCR and work collegially on it. There are times when the two entities together are able to do more than if we went alone and we work on that as well.

I agree with Ambassador Bolton, the amount of money you give is not as important as what is done with the money. But we are the largest bilateral donor of UNHCR and we work with them throughout the budget year to talk to them about the priorities for the United States.  So we are assisting UNHCR with voluntary refugee returns in southern Sudan and Afghanistan, in Liberia, where people are able to go home finally and begin their new lives.  We are helping them maintain the work they’re doing in Darfur and in Chad.  We work with them on the humanitarian corridors that were created in Lebanon, also permitting ICRC as well to have access to Lebanese as they were fleeing. 

We’ve worked on local integration.  I think there’s room for improvement in that.  This is not something that some states really welcome too much but there is the Zambian initiative that I would point those who are interested in it to.

Then I’d like to give a specific example from recent time that I think does show where refugee resettlement and local integration can be very powerful forces together, and that’s in the Kingdom of Thailand.  Earlier in 2003, 2004, I went to Thailand.  Many said the Thai government would never permit resettlement of Burmese nationals.  There are over 150,000 in camps along the border and they thought the magic M would be triggered – the magnet of people wanting to come if camps were emptied out. 

So we worked with the Thai government, agreeing to resettle Hmong who were also victims of persecution in their country, and then we resettled urban Burmese.  But we asked for permission to resettle Burmese from the camps if they were willing to come to the United States or other countries.  But at the same time we said for those who can’t go, we would like the opportunities for local integration to occur.  In these camps, you could not go to school past ninth grade.  You were not permitted to work.  These were really very difficult circumstances and it was a very protracted refugee situation.  Many had come in the 1980s but some in the Thai camps had been there as early as 1975.  So children were getting married at eighth grade to get their own hut.  This is just an unsustainable situation.

So our resettlement activities, and we will bring large numbers or perhaps even the majority of the people in the camps to the United States, will lead to local integration for those who are able to stay or willing to stay and will help them to have better success in their life.  We’re working with UNHCR and others to make sure that the resettlement is successful.

Ambassador Bolton talked about North Korea.  I think the president has been quite clear on his views of North Korea.  We believe that people fleeing North Korea are refugees and we are working as hard as we can to try to create opportunities for them in the region and in the United States.  It’s a very small number but we have gotten thirty to come to the United States and we’re very pleased that they’re here to begin their new lives.  Thousands have been able to go to the Republic of Korea.  More are trying to leave North Korea and have been traveling to China, Thailand and other parts of Asia.

I just got back from Thailand, China and Mongolia, interviewing close to a hundred North Korean refugees.  These are some of the worst refugee cases I’ve seen in my fifteen years of working on refugee matters.  They are extremely afraid of return.  They realize that return will mean death in some circumstances.  They have a genuine fear of persecution and we need to do more to try and convince the Chinese government and others that these are not economic migrants, these are people who are either refugees, sometimes victims of crime, and also there are trafficking victims in the groups as well.  I could tell you terrible stories of tragic circumstances of North Koreans.

One good and interesting thing is there are networks of NGOs that are working on this, sometimes lawfully and sometimes not, in Asia.  They are providing support and protection and trying to work as best they can.  But UNHCR recognizes, in my view, and we’ve had long discussions about this, that these are genuine refugees.  There’s no debate in the international community about whether or not they’re refugees.  The debate is how and when and how quickly can we help as many as possible.

On accountability, this is a big issue in the UN.  If Mark Laygon [phonetic] were here, he could describe to you in detail our various efforts at UN reform, some of which haven’t gone as far obviously as we would like them to.  But in terms of accountability, one of the things that’s important for you to know is we do watch and manage the money that we send to UNHCR very closely.  When there was a scandal involving the exchange of food for benefits in a refugee camp, we worked very closely with UNHCR in developing its guidelines. 

Some in the international community, particularly the Americans, think that we’re sort of old-fashioned and fussy about our views that people in positions of control can’t exchange sex for various things, that that’s a non-consensual relationship.  But it’s one that we push very hard and it’s one that we’re absolutely right on, and it’s one that UNHCR agrees with us on.  But there are many people working in international organizations and in European nations who find us prudish or improvident in this view.

So we work with UNHCR to make sure each dollar is well spent.  We do monitoring and evaluation.  Some of my folks from PRM are here and they go out all the time to make sure that money isn’t going to an improper place or even worse, getting stuck in Geneva and not getting out to the field.

One thing that maybe Thomas will touch upon is High Commissioner Guterres’s efforts at reform from within.  As a former politician, he has a unique perspective on how to move bureaucracies and I think we’re going to see a lot of fantastic things from his efforts.  They are certainly challenging traditional ways of doing business in the UN so of course in some corners they probably will be unpopular.

Finally, I would say that one of the most important things that I do in my work with PRM is that we try to make sure that refugee issues are integrated into the broader human rights agenda and that it’s not viewed as a second-tier issue.  For that, what we try to do is include references to treatment of refugees in the State Department country conditions reports, the human rights reports.  We join with our colleagues in Democracy, Human Rights and Labor on bilateral dialogues.  We just had one recently with the government of Vietnam.  We raised different refugee cases with that government.  We are leaders in ex-com conclusions, which go late into the night, which are to guide executive committee members of UNHCR, their patterns and practice in the field.  We work with UNHCR on UN resolutions dealing directly or indirectly with refugee matters.

We’re currently discussing with Millennium Challenge folks and Freedom House how to more explicitly consider refugee rights within the indicators that determine MCC.  So if you have influence in that corridor, we would welcome you to join us because the way countries treat refugees is a direct matter of how they view human rights.

I would stop on one particular note, which is to quote my former boss, the general counsel of INS, David Martin.  When he testified one time before Congress, he made the point that a refugee or asylum adjudication is the most difficult and complicated administrative law decision done by the United States.  I think it’s very important for everyone in the room to recognize how difficult this decision is.  There are people who have engaged in defensive actions which have involved violence and there’s a really open question, some of those cases, as to whether what they did was appropriate.  We in the United States have teams of lawyers, we have people graduating now with sub-specialties in refugee and asylum laws.  When you look at other countries, these are very difficult cases and I do think that the International Protection Office of UNHCR is full of very competent, very talented and very precise personnel who are willing to help countries on that.

It’s certainly true that we’ve had many lawsuits in the United States.  We were accused and settled a lawsuit in the early 1990s in American Baptist Churches v. Thornburgh of unduly using foreign policy considerations in the adjudication of claims from asylum seekers from Salvador and Guatemala.  So no system is perfect but I think what we can do and should do is create conditions where UNHCR can do its job, where international protection can be expanded, where we have exchanges of personnel with other countries to share the way we can move forward, and where we can try to ensure that all refugees are treated with respect and dignity.  Thank you.

Thomas Albrecht:  Thank you very much for the kind invitation.  I’m very pleased to have the opportunity to discuss with you this important issue.  My only small regret is that Ambassador Bolton could not stay with us because I really wanted to also express my appreciation for his emphasis on state responsibility, which we very much share, but also his emphasis on the need to distinguish between humanitarian efforts and the political aspects.  As UNHCR is a strictly humanitarian and non-political organization, we certainly also need to put the emphasis on it.  But I hope we will have another opportunity to talk to him soon, particularly on the efforts by High Commissioner Guterres on accountability improvements and certainly in particular about the introduction of concepts of results-based management and other important efforts to ensure that exactly the vision that he has outlined.  And I think many of us shall agree to can be implemented, but also that we can identify what the real needs of refugees are, which I think is the other aspect that we have to very much look at.  It is not a question of if we had more money we could do better things or more things.  I think it’s first of all to look at what the needs of the refugees are that we try to serve.

Let me also say that this discussion actually began already two days ago, when Mr. De Lorenzo published an article in washingtonpost.com which was extremely critical of UNHCR.  We have submitted a response to washingtonpost.com and also brought copies for you which are outside in the reception, because I’m afraid time will not allow to go into all the detail.

But I would like now to bring us back to the reality in which UNHCR’s mandate is delivered.  One of the refugees whose courage and strength will be in my memory forever is a woman from West Africa.  Her husband was killed for political reasons by the regime in her home country.  She fled with her three children to a neighboring country.  Just after crossing the border she was stopped at a roadblock by rebels fighting the government in that country.  She was given a terrible choice – either to stay for several days with these thugs and be sexually available as a sex slave and to cook for them, or to be turned back to persecution. 

She had no choice and for the sake of her children, she stayed with the rebels.  After she finally managed to move on, she was found by UNHCR staff along the road.  She thought she was safe, only to find out months later that she had been infected with HIV.  After months of efforts by my UNHCR colleagues and NGO partners to ensure her immediate protection and wellbeing, a resettlement country agreed to receive her and her children.  She knew that she was marked for death but was consoled in the thought that her children were safe and could start life over. 

This is the front line of protection.  The fact that it has to be carried out more often than not in remote and dangerous locations, where a climate of impunity reigns, makes it a singularly difficult task.

Who is accountable for refugee rights is the topic of our discourse today.  Who is accountable for the unspeakable pain and suffering of this refugee woman should be our first question.  Who will hold accountable those who killed her husband and made her flee with her children?  Who will hold accountable the criminals who abused her just when she thought she had reached safety?  Who should answer for the reality that she could not find adequate protection in the country she fled to first?

Protecting people is one of the most important purposes and functions of the law.  UNHCR believes the rule of law is a critical factor in the delivery of effective protection to refugees, who are some of the most vulnerable people in any society.  At our panel discussion we are of course several steps removed from this field’s realities.  The issues are, however, not confined to so-called developing countries.  Refugee issues are often emotive ones, raising concerns over such things as state security, sovereignty and social cohesiveness.  Countries express concern about perceived inequalities in the distribution of the responsibility of hosting refugees, about the growth of international crime, people smuggling and terrorism, and its alleged link to unauthorized asylum arrivals, as well as about the difficulties in trying to distinguish between refugees and migrants.

Increasingly restrictive asylum assistance in a number of countries, marked not least by the contestable interpretation of the refugee definition and barriers to accessing the asylum process, is a parallel development of growing concern.  Interdiction or interception of persons, including refugees, trying to enter a country is established practice.  Even while asylum in another country is still the only viable protection possibility for many of the world’s forcibly displaced, the asylum space is becoming even narrower in response to security fears and local xenophobia.

Instead of the law being used as a humanitarian instrument to protect people in accordance with international obligations, it often becomes a shield to deflect those very same obligations.  UNHCR’s work is uncomfortable to many and even its mere existence the thorn to some.

Who is accountable for refugee rights?  As Ambassador Bolton highlighted, protection of rights is fundamentally a state responsibility.  This is emphasized in the 1951 convention relating to the status of refugees and the statute through which the General Assembly and the international community created UNHCR in 1950.  UNHCR is a rights-based organization.  Refugees and other persons of concern to us are victims of human rights abuses or human rights deficiencies and they lack a national government willing or able to redress their situation.  Protection at its most basic means activities to restore rights – the right to life, the right not to suffer torture or discrimination, the right of respect for human dignity, and family unity.  Protection is also about the creation of an enabling environment so that these and other rights have a real chance of being enjoyed until a durable solution is found.

These are uniquely responsibilities of states, who in addition to their legal obligations have a territory and a governance framework within which these fundamental rights can be brought to life.  Freedom of religion, the right to property, the right to employment, freedom of movement, and many other rights of refugees elaborated in the Convention cannot be guaranteed by UNHCR but by states only.

UNHCR, however, frequently works with governments to encourage and support them to uphold and give meaning to basic rights of refugees.  This work is critically illustrated yet again by a UNHCR review of 82 country operations, indicating that in over 50 percent of these situations, refugees are not able to fully enjoy freedom of movement and the right to work.  Many are condemned to an artificial life of mercy and dependency, sometimes for a generation and more.  This is neither the letter nor the spirit of the Refugee Convention, which calls for refugees to be given the same fundamental human rights that should be accorded to every human being.

To ensure that states make this obligation a reality is the core of UNHCR’s mission, as difficult and almost impossible as it may be.  But we also need to acknowledge the often very real limitations of countries hosting refugees who already face the challenge of realizing a meaningful existence for their own citizens.  This is where UNHCR wants and needs to share accountability together with the international community.  Financial support is one important measure to ensure that states can meaningfully live up to their protection obligations.

Accountability to donors is already built into UNHCR’s funding mechanism.  You may be surprised to hear that virtually all contributions to UNHCR are made by states on a voluntary basis, only some 3 percent through assessed contributions.  This means that UNHCR has to explain and justify each of its programs.  Funding for refugee operations will only be provided if the donor is convinced of the need and the feasibility of its implementation.  Through the introduction of global standards and indicators, as well as the results-based management approach, the impact of our efforts is being measured in increasing detail.  Global and country reports are routinely not only provided to donors but also to the general public.

Equally important, however, is accountability to beneficiaries.  So is the empowerment of refugees and the pursuit of protection and durable solutions.  For some years now, UNHCR has incorporated participatory planning with refugees and partners into its program cycle.  This approach has also been systematically incorporated in policies, guidelines and trainings.  With regard to implementation, this increasingly means that a rights-based approach is combined with a community-based approach, or more specifically, that the concerns and priorities of the community are taken as the starting point for engaging its members in protection and programming. 

However, this also means that refugees need to be part of the frequently difficult decision-making process of determining where scarce resources should be prioritized.  Again, who is accountable for refugee rights, in particular where budget constraints demand choices as to which basic right should be supported more than another?  How do we overcome these limitations considering that many donors have to decide among competing demands themselves to ensure that all rights can be made a reality?

UNHCR has long acknowledged that refugee protection is substandard in many situations.  This is due, however, not only to a lack of capacity and the fact that programs to assist refugees are under-funded against the needs, but also to the insecurity prevalent in many refugee-hosting areas and the lack of freedom of movement or of self-sufficiency possibilities in closed camp environments, and the precariousness of illegal or unregularized state for urban refugees who live in marginalized communities around the towns. 

Furthermore, refugee situations are still too often protracted.  UNHCR and its partners have regularly reminded the international community that there are some 38 such situations worldwide.  In the context in which in the late 1980s some colleagues at UNHCR have coined the term “warehouses,” and this is where we are proud to jointly work with partners like Merrill Smith and the U.S. Committee for Refugees and Immigrants, in special programs in refugee-hosting countries, to engage civil society organizations in refugee protection and to advance the policy environment towards the realization of refugee rights, in particular the right to work and the freedom of movement.

Wherever possible, UNHCR works toward avoiding the use of camps and similar artificial structures.  However, in some situations the setting up of camps is dictated by the circumstances, especially in large-scale emergencies, and often governments insist on the creation of camps for reasons already highlighted.

But there is also good news.  In an encouraging trend, the number of refugees fell 12 percent in 2005, to 8.4 million.  Over the past five years, the global refugee population has fallen by one-third and now stands at the lowest level since 1980.  One reason for that is that over the past years we assisted large numbers of refugees to voluntarily repatriate to countries such as Afghanistan and Liberia. 

To ensure and continuously improve operational efficiency and effectiveness as well as accountability, UNHCR has instituted a wide range of measures.  In addition, High Commissioner Antonio Guterres has committed himself and the organization to a wide-ranging reform effort which is already bearing fruit.  The time allotted is too short to elaborate on all existing oversight and accountability arrangements, so allow me to list the key aspects in some reforms.

In addition to the statutory obligation for the High Commissioner to frequently report to the General Assembly and the Executive Committee, the United Nations Office for Internal Oversight Services assists the Secretary General in fulfilling his internal oversight responsibilities.  These arrangements are complemented by the UNHCR inspector general, who more specifically addresses the constantly evolving demands for the inspection of the quality management of UNHCR operations and headquarters units and for investigations into allegations of misconduct by UNHCR personnel.  To clarify accountabilities for the staff of UNHCR as well as staff for implementing partners, the staff rules and regulations were elaborated through a code of conduct, precisely to avoid confusions like Kelly Ryan has pointed out from the past.

Financial and management audits are routinely performed by the internal audit service and external auditors.  The evaluation and policy unit is enhancing the agency’s capacity for organizational learning and performance review.  Evaluations are increasingly conducted jointly with personnel from governments, other international organizations and non-governmental organizations.  To reinforce the impact of the evaluation function and to contribute more broadly to the enhancement of evaluation standards for humanitarian work, UNHCR is engaged in the active learning network for accountability and performance in humanitarian assistance, which brings together the evaluation specialists of many international, governmental and non-governmental organizations.  All of these efforts are coupled with an ongoing dialogue with civil society.

Allow me to address in some reform one of the more particular items, as it is mentioned in the invitation, to this discussion – the issue of refugee status determination (RSD).  In exceptional circumstances UNHCR may be obliged very much by default and not by desire – again, here I can only appreciate the comments that Ambassador Bolton and Kelly Ryan already made – in exceptional circumstances, we may be obliged to carry out refugee status determination in order to ensure the protection of a refugee or to pursue a special protection intervention.  This again would only occur where the national authorities are either unwilling or unable to do so as well as for resettlement referrals, where resettlement countries require specific information.

While this work relates to less than 1 percent of the global refugee population, it is nevertheless of considerable importance.  In 2006, refugee status determination had to be conducted in nearly 80 countries.  So some 90 percent of status determination work involving some 50,000 decisions was carried out in fact in only 10 countries. 

With many of these signatories, UNHCR is engaging in promoting and resourcing the transfer of refugee status determination to national authorities.  In some instances, governments with established RSD systems assist through training arrangements like in the case of the United States.

To support these endeavors and to provide additional oversight to field offices, in 1999 a refugee status determination unit was created in the Department of International Protection.  In 2003, procedural standards for RSD under UNHCR’s mandate were issued internally to set core standards and to harmonize our RSD procedures in field offices worldwide.  In 2005, they were further enhanced and published.  RSD training for staff and NGO partners was intensified and remains a priority, notably because of the context in which UNHCR conducts RSD [indiscernible].

I’m asked to be a bit briefer than I had thought on this important issue but I’m sure that we have the opportunity to look at a number of other key aspects, in particular how the RSD function is carried out, the appeals processes and other safeguards and arrangements in the discussion time.

Let me say that in conclusion, I hope we can also – however, with one last word on status determination – look at the results.  In the largest three operations – in Kenya, Malaysia and Egypt – the recognition rates in 2006 were between 80 and 94 percent.  I hope this demonstrates, and it is also demonstrated through my presence here, that UNHCR welcomes constructive dialogue, accepts valid criticism, and admits mistakes and shortcomings.  We look forward that more concerned people will join us in the difficult endeavor of ensuring the protection of refugees in good faith rather than engaging in broadside attacks that distract attention from the very people who every day demonstrate courage, perseverance and strength – the refugees who deserve our protection and our respect.  Thank you.

Mauro De Lorenzo:  Thank you.  I’m just going to make a few points so that there’s time for my colleagues and for discussion.

The first is to point out the consensus that I think has already been established in the discussion so far.  One is that refugee camps are bad.  They’re inhumane and they’re something which we should be trying to eliminate, not reinforce.  Second, national governments are responsible for refugee protection.  Not the U.S. government, not UNHCR – they have a role to play in supporting it but each country is responsible for its own policies.  Many actors have a role to play in refugee protection so I want to say a few words why I think it’s appropriate to focus a special lens on UNHCR.

The first is that UNHCR is the only organization in the world that has a personality in international law that mandates it to protect refugees.  In that sense it engages the entire reputation of the international community and of its donors.  UNHCR is the organization that is by far most present on the ground and closest to the refugees.  It has the greatest deposit of experience and knowledge about refugee conditions and refugee law. 

UNHCR also designs and pays for with donor money the policies that we’re talking about.  Policies in refugee camps – UNHCR acts as the state in refugee camps, at least in the ones that I’m familiar with in Africa.  It contracts with NGOs to provide social services.  It often creates dispute resolution mechanisms.  We’re going to hear more details from other panelists.  It does more refugee status determination than any other authority in the world, including national governments.

It’s also the least scrutinized, and I think it’s important to consider why it’s the least scrutinized.  There’s always a lot of surprise when you point out UNHCR’s complicity in some of the failures we’ve been discussing.

One is that a lot of the organizations that work with refugees are in fact contracted – implementing partners, they’re called – they’re contracted with UNHCR.  People who work with refugees often depend on UNHCR for access to refugee camps, for permission to go there.  So it’s often considered ill-advised, unconstructive, unhelpful to be critical of the very organization which is doing the most to protect refugees.

I also want to tack this to a larger issue – Ambassador Bolton mentioned it – the issue of accountability.  I appreciated the comments from both about the ways in which in the relationship between the United States and UNHCR, you’re very careful to account for all monies, and I have no doubt that that’s true.  The kind of accountability I’m talking about is different.  It’s accountability for the rights that are enshrined in refugee law.  It’s accountability to refugees.

The point I’m making is a general one that applies to UNHCR, it applies to other UN agencies, it applies to executive agencies in this country.  Mistakes and abuses are a predictable consequence of any executive agency that is not constrained by courts, by legislature, by democracy.  So the fact that there are many cases you can point to where UNHCR has failed doesn’t mean that UNHCR is bad or that its people are bad or it’s different from other organizations.  As Ambassador Bolton correctly pointed out, UNHCR’s performance is, at least to my knowledge, better than many other UN agencies, even specialized agencies.  That’s why I advocate, as my colleagues do too, putting the onus, the responsibility on national governments to protect refugees.

The reason I think it’s appropriate to focus on UNHCR’s role – UNHCR helps countries enact encampment policies, pays to maintain refugees in those camps, pays the staff who work there, and in fact creates incentives for governments to maintain those structures even though we all agree they’re inhumane and should be eliminated.  That’s the core of my concern. 

Refugee status determination, we’ll talk about more.  But again, it’s an argument about accountability.  It’s not that UNHCR staff people are bad or don’t know what they’re doing.  It’s that when there’s no way for you to be challenged, for your decisions to be scrutinized or appealed or reviewed, it is inevitable, it is predictable, that there will be mistakes and abuses.

That’s all I really have to say and I’ll let my colleagues take over.  I look forward to the discussion.

Guglielmo Verdirame:  Let me begin by identifying a set of key differences that has already emerged between refugees in the north, in places like Europe and North America, and refugees in the south, in Africa or Southeast Asia.  I’m personally more familiar with the situation in Africa. 

That difference concerns the role of the institutional actors and governments.  In the north, and we’ve heard it, governments are responsible for determining who is a refugee.  They are generally responsible for refugee policy.  UNHCR plays the important and generally very helpful role of an institutional advocate.  As Ambassador Bolton said, this is one field where we do need international rules and an international institution, because refugees are an international phenomenon.  As has been pointed out, UNHCR files amicus briefs.  They have done so in one case that I’m doing before the House of Lords in the United Kingdom and all of that is very helpful.

In the south, however, the situation is very different.  In the south, governments tend to exercise far fewer state functions in the field of refugee policy and some of the key functions are transferred or sometimes taken over – that’s a matter of contention, I appreciate that.  But the fact is that those functions are exercised to some extent by UNHCR branch offices.  This is an anomaly.  UNHCR in particular, as we have seen, administers camps.  The administration of camps incidentally is just not a matter of management.  It’s actually a question of the exercise of nearly the full spectrum of state functions – legislative, executive, judicial.  It is the de facto authority in these places where tens of thousands of refugees live.  The other example that has been given is that of the refugee status determination procedures.

So these are two key areas where UNHCR acts like a government.  It exercises governmental functions.  That’s an anomaly from the point of view of sovereignty.  This is also a point that has been made before.

But it’s also an anomaly from the point of view of liberty, and that’s the area in which I would like to focus on, because it puts UNHCR in a position where it can and does commit certain abuses, but it simply doesn’t have the structure that states have for dealing with these abuses.  So I’ll go back to these two key examples of camps and refugee status determination to describe some of the problems from the point of view of liberty, procedural fairness, human rights, that exist.

Camps are first of all a problem about freedom of movement.  Refugees are of course entitled to free movement under the 1951 Refugee Convention as well as under international human rights instruments and in most cases under national constitutions too.  There are exceptional situations in which the right to free movement can be limited, but in the case of refugees in the south, the relationship between the general rule and the exception is reversed.  The general situation is restriction of movement.  The exception is free movement.  That’s clearly unacceptable.

Another example from my research, and this is the case of an individual, but just to give you an idea of what happens in these camps. This was a journalist from Ethiopia who had fled his country on account of persecution, on the grounds of free speech essentially.  He was not allowed to write what he wanted to write.  He arrived in this camp in northwestern Kenya and organized a set of lectures about human rights.  The lectures proved controversial. 

The UNHCR branch office accused him of stirring up a riot and decided to transfer him to another refugee camp and wrote the following letter to him.  “You will recall that you were transferred from Kakuma refugee camp due to security problems following a series of human rights lectures given by you.  It is our view that the lectures were a direct cause for the wave of tension and the disruption of public order.  We have already taken the decision to transfer you to the Dadaab area.  We have noted your unwillingness to be transferred to Dadaab but regret to inform you that there are no viable options alternative at the moment.  Once in Dadaab, you will be expected to refrain from any conduct likely to disrupt public order in the camp, including the organization of such lectures.”

This is a straightforward violation of human rights.  I don’t think it is helpful or correct to say states are responsible.  This act is imputable to UNHCR.  It is not legally imputable to any state.  It is an international institution that took the decision, committed the act, and under any rule of attribution of acts under international law, this act is imputable to it.

Another example, again from the same camps – the first time I visited it, and this is already nearly ten years ago, there were prison cells in the center of the camp.  I interviewed some of the detainees there.  Two of the detainees were women who had been detained because of adultery.  Now, adultery is not a crime in Kenya.  No Kenyan court can convict any human being of adultery, and rightly so.  That’s Taliban-style justice.  But in those camps it happened.  A year later, another research field trip, two more women detained in the same prison cells, after we denounced it, for adultery.  I received an email just a few weeks ago from someone who had read our book and went to the camp, and again found women detained because they had allegedly committed adultery.

Those sanctions are imposed by customary courts.  But again, the authority, the institution that has effective control over the camps has to take responsibility as a matter of law and as a matter of principle for what goes on in those camps, not least because those customary courts are funded – at least in that case they were – by UNHCR.

A third example, and really one of the worst ones, and unfortunately not a sort of one-off case, is the imposition of collective punishment on the entire camp population.  I believe this has been referred to in the article by Mauro De Lorenzo and in UNHCR’s response.  There are a number of cases, some of which we have documented and referred to in our book, where following riots in refugee camps, food distribution is suspended.  In one case in particular, a letter was again sent by the UNHCR branch office to the refugee leaders saying unless you tell us who the ringleaders were, who the organizers of the riot were, food distribution will not be resumed.

This is something that no government can get away with.  Not even under the Geneva Conventions in times of war can collective punishment be imposed indiscriminately on a civilian population.  There is simply no justification in law or morals or whatever, in my view, for these kinds of actions.

I should have probably said before as another legal comment – camps are part of the sovereign territory of the host state.  There is no rule that allows any institution or any other state to take over the sovereign territory of another state.  So I accept that in terms of the responsibility for what goes on, in some of these cases an argument could be made for dual responsibility.  The international institution, UNHCR, is responsible for the act and the state is responsible for failing to ensure that certain acts did not take place, for being negligent, for surrendering responsibility.  But at the very least it is dual responsibility.  I don’t think a case can be made for the exclusive responsibility of the state in the examples that I’ve given.

Refugee status determination is the other area.  I think we’ve already heard that UNHCR is the largest status determination board in the world.  There are situations, it’s entirely correct, in which UNHCR is mandated to perform this function.  But the anomaly is when UNHCR actually takes over the entire refugee status determination procedures in countries, so that if you want to apply for asylum, you don’t go to a government office.  You go to the UNHCR branch office.  UNHCR has produced a wonderful handbook on refugee status determination that it uses especially in the north to advocate with governments to improve their standards on status determination.  But I don’t think, even after the recent improvements which I understand have taken place in UNHCR status determination procedures, I don’t think anyone even within UNHCR would say our procedures are as good as our handbook.  I really don’t think anyone would say this.  There’s still a significant discrepancy.

That, of course, puts the institution in a position that is almost impossible from the point of view of advocacy.  Because then you have to go to governments – and I remember witnessing this in Kenya, when the Kenyan government said we’ll do status determination again.  UNHCR tried to put on its advocate hat and said this is the handbook, this is how you have to do it. The Kenyan government said, sorry, we’re not taking lessons from you, because we know how you’ve been doing it for the last ten years.  So it puts UNHCR itself in a very difficult position.

To conclude, I think what Mauro has said in reference also to the comments of Ambassador Bolton is very important.  This is not a matter of personalities.  There are a lot of cause-driven, committed individuals that go into humanitarian work, that go into UNHCR and international institutions.  But the problem, it seems to me, is that when it comes to certain types of institutions, we have almost forgotten about a fundamental assumption about liberalism – and I use liberalism in the European sense, not the American one – 19th century liberalism.  That fundamental assumption is that human nature is flawed, fallible and ultimately quite bad. 

The reason why we need all these controls on human beings and on human institutions is because if we don’t have these controls, there will be abuses.  There will be arbitrariness.  Putting a humanitarian or international label on any institution will not make an inch of a difference. 

The kind of controls that exist so far, to which Thomas Albrecht referred, are mainly bureaucratic controls.  But the key types of controls – just think about the controls that exist on a government agency and how long it has taken us to actually tame, control government bureaucracies to make sure that they’re not abusive.  There are administrative controls, political controls, judicial, quasi-judicial, the press.  This range of checks and balances, of mechanisms for accountability, simply not available in relation to UNHCR.

In my view, this is really a key struggle and a key issue for all international institutions because anyone who believes in international institutions realizes that unless they are dealt with, I think at some point a lot of people feel that they’re broadly speaking liberal, they will just prefer to go back to that good old “Leviathan,” the state, which after all we more or less know how to tame. 

Merrill Smith:  A pretty intimidating lineup to come at the end of.  I’ll see if I can say something original and interesting.

First I will have to note, although this may be a little boring, the consensus that seems to be pretty well established that I don’t think was really always there.  There’s widespread agreement now that warehousing is wrong.  As has been noted, we are not the first persons to use the term.  In our 2004 survey, where we launched a campaign to end the warehousing of refugees, I put a major article up, of which copies are there.  You’ll indeed note in the footnotes that many of the sources are UNHCR sources.  Certainly did not have an original thought there, but I certainly wanted to collect it and put it before a public audience.

But if you will give real credit to someone for the campaign to end the warehousing of refugees, the aims of which all seem to be endorsed here, I think it would have to go to the founders of the 1951 Convention.  They are the ones who when pressed with massive refugee flows in Europe, many in camps, could have done a lot of things when they drafted that convention.  But they drafted a convention that not only defined a refugee and enshrined the principle of non-refoulement, but it spelled out a virtual bill of rights for refugees, which we like to highlight in that article as the anti-warehousing rights of the 1951 Convention, including the right to work, to freedom of movement, to practice professions.  To essentially – to sum it up in one phrase – to live as normal a life as possible even while awaiting a durable solution. 

The word “camp” does not appear once in the 1951 Convention.  We checked.  We were looking for rules about how far a camp can be from a border, looking for the standards now in the Spearer [phonetic] standards, but it wasn’t there.  They didn’t mention it, which is odd because today we think of refugee camps – camps are for refugees, refugees belong in camps.  It’s almost one word.

Also the Convention doesn’t mention the expression we know today as “durable solutions.”  It does mention the solutions – citizenship in the host country, reinstallation in the source country – not mere return, voluntary return as we know it today – or resettlement.  But it mentions those only to say this is where refugee status ends.  These are cessation clauses.  In other words, the 1951 Convention applies only where durable solutions aren’t available.  In other words, while refugees are still refugees.  So we cannot fob that responsibility off on the notion that we’re pursuing durable solutions, much as we certainly all are and should be.

Such a consensus, I think one has to ask, why is it still going on?  Why has so little changed?  Nobody will defend it but it continues.  I think we can go back to that old adage that those of us of a certain age will remember from the 1970s – follow the money.  That led to the unraveling of the Watergate scandal but I think it also points to the structural bias of the refugee assistance and protection regime that allows warehousing to continue.

To bring that a little closer to specifics, this is also known in the literature as the relief-to-development gap – the difference between humanitarian assistance on the one hand and development assistance on the other, and the targets of those and the bureaucracies that manage them.  In more layperson’s terms that you will all recognize, it’s like the old adage – give a woman a fish, you’ve fed her for one day; give her a fishing pole – she can sell the damn thing and buy something that she really needed, but you wouldn’t have known if you didn’t ask.

Anyway, the point is, people are kept on these humanitarian assistance budgets because all refugee crises start as emergencies.  This is where the easiest money to access is.  There’s less strings attached.  You can go in and do the emergency thing that’s necessary but then twenty years later, refugees are still on humanitarian budgets.  They’re still on relief budgets as though it were still an emergency.  I defy to say that an emergency can last for generations, but funding-wise, it does.  But structurally that creates a whole set of institutions, not only from the tents and huts in the camps, to the aid agencies that provide it, to the UNHCR, to the state governments and the host countries, back to the donor governments that supply the money.  The institutions that help integrate people and help people restore livelihoods and be productive – that’s a completely different bureaucracy and there’s jealously guarded prerogatives and you’ll really be viewed as crashing the party to get refugees into development programs.

We’re not a development-specialized agency, but I think there’s a few things that have consensus in the development world that have emerged over some of the controversies about whether development assistance is really productive or not.  It’s not settled, but I think there’s a few things that have clearly emerged.  If you don’t have good policy, good governance, you’re wasting your money.  What the content of that good policy and good governance is involves a lot of things, but it also includes things like allowing people the basic freedom to support themselves and engage in economic activities.  The right to work, to practice professions, to run businesses, to own property, freedom of movement – does it sound familiar?  These are the rights in the 1951 Convention that the founders said should apply to refugees.

There have been steps made to integrate those principles.  I will say that we should approach this from at least two angles.  It’s a multifaceted problem.  It’s been a long time coming here and it’ll be a long time gone.  Before I get into more depth on the development side, I want to talk about also briefly, although I won’t dwell on it, on the humanitarian side.

The humanitarian assistance, which is more geared toward relief, lately has also been going under some self-examination, as well it should be.  One of the initiatives has been what’s called the Good Humanitarian Donorship Initiative, of which the United States is a part of.  It’s recognized that humanitarian action includes protection and that protection includes human rights standards, specifically including the major human rights agreements, including specifically the 1951 Convention on the status of refugees.  So far, so good.

It also includes the principle that restoration of normal livelihoods is an essential goal, objective, of good humanitarian donorship.  I say, let’s put the two together.  If you do that in situations of refugees, of course you have the problem that they are not citizens of the country by definition where they are, so they do not necessarily always have those rights.  So that is a mandate that applies to the humanitarian agencies, to move that forward.

Then on the other side, on the development, I want to talk about one particular program that has started in the United States called the Millennium Challenge Account.  Kelly Ryan alluded to it earlier and I’m very happy and gratified to hear the negotiations are taking place that she mentioned, because they’re sorely needed.

This is an initiative that started with high hopes, and I still have high hopes for it.  It was an additional form of assistance and it laid out sixteen criteria under which countries would be judged on eligibility and their proposals would be judged as to whether they advanced them.  I won’t go into all of them, it’s a very complex metric.  It takes a while to get a hold of it.  But I’ll mention two of the indicators specifically that I think have a great deal of relevance to refugees.

One is called civil liberties, which includes human rights and again, should include all human rights.  Another is regulatory quality, which people often don’t think of.  What’s that got to do with refugees?  That has to do with starting up businesses and inhibitions to economic activity.  Well, if you consider the problems of warehousing, it’s not just a matter of – these camps do not have electric fences and guard dogs around them. 

What they have is, you have status in that camp, you have no legal status outside.  You can eat in the camp, sometimes, but you cannot work outside the camp.  You basically have no rights outside.  That is the fence.  Though in some cases the camps really are more like detention centers.  But that is the real gist of it.  When we use the term warehousing, it gets a lot of attention.  What we do with that attention is draw the attention to the rights of the 1951 Convention.

Where I will say the Millennium Challenge Account has failed is in its metric for judging the civil liberties performance for countries, it takes their score entirely from Freedom House, which is a great organization that’s done yeoman’s work in human rights in many fields but does not specialize in refugee rights.  Its performance in rating refugee rights performance is uneven.  I’ll just give you some examples.  With our 2005 survey, which we have here, we started analytically breaking down the treatment of refugees in each country along five categories and assigning grades to that performance, measured against the standards of the 1951 Convention.  In a list of countries in this publication that you’ll find in your handout on the MCA, there’s a list of countries, major refugee-hosting countries, on which there is no mention or virtually none of the situation of refugee rights.  If MCA is going to be using that as their sole metric for civil liberties, then the refugee rights are not going to be included at all. 

Bangladesh, one of the most egregious refugee rights violators in the world with the treatment of the Rohingya.  China, which refoules North Koreans, sometimes to their deaths – no mention of refugees.  Iran, no mention.  Kenya, where Kakama camps are, they mention their presence and some criminal activities.  I’m sure some refugees do engage in crimes, especially if they’re not allowed to work.  Malaysia, straight Fs, no mention.  The Russian Federation, again, straight Fs in the treatment of refugees and asylum seekers, no mention. 

If the MCA is truly going to address refugee rights in their development assistance programs, they’re going to have to do better than that.  I should say we’re not the only game in town on this.  PRM has been giving information to the Bureau of Human Rights, Democracy and Labor to include in their country reports.  UNHCR has the strengthening protection capacity, which an integral part is doing gaps analyses, which is very much after our own heart in that respect, matching the 1951 Convention standards against the actual treatment.  But this is not filtering through.

Another criteria I mentioned, the indicator of economic regulatory quality, which is very central to some of the rights of self-sufficiency for refugees, the sources are almost entirely opaque.  They are proprietary sources that the World Bank Institute gathers.  In most cases, you can’t find them.  In the cases that I was able to find them, they generally not only do not mention refugees but many other vulnerable populations – women, slum-dwellers, other people who ought to count if you’re interested in development assistance, if you’re interested in actually moving things forward.

We had high hopes for the MCA, as I recall.  I remember when Tanzania was on the threshold, had not really qualified yet but maybe in another year or two, maybe you will.  We spoke to the Tanzanian government, met at their embassy, called their finance ministry in Dar es Salaam.  They said, you look very interesting.  You’re from the U.S. Committee for Refugees and Immigrants? 

MCA has nothing to do with refugees.  Of course, we begged to differ and argued that civil liberties should be interpreted in a certain way and economic regulation and regulatory quality should be interpreted.  But another year went by, another set of reports came out absolutely ignoring the treatment of refugees in Tanzania, where there’s a four-kilometer rule, where refugees are arrested if they leave beyond 4 kilometers of the camps, and are arrested and sometimes serve up to two years in prison; where they’re not even allowed to grow food on the territory of the refugees that have left.  Repatriations are in many cases quite questionable as to whether they’re voluntary. 

I could go on and on, but I won’t.  Half a million people are being treated like this.  I would call this a binding constraint on development, besides being an egregious human rights violation, that ought to be taken into account.  Money talks, and it has to be done.  To my knowledge, the latest report still doesn’t do this.

We’ve included some specific language that we think would make a good technical amendment to MCA that was introduced by Congressmen Hyde and Lantos in the last Congress.  I’ll just leave it to you to read that in your handout and hopefully take action.

With that, I think I will turn it back over.

Danielle Pletka:  Thank you.  Let me also thank our panelists and our audience for patience.  We don’t usually have quite so many people on a panel, and in fact we wouldn’t have had quite so many people on a panel if we hadn’t brought me in as a ringer at the last minute and included Mauro on our panel at one of our panelist’s requests.  I found myself, I have to confess, feeling a little bit sympathetic for him [indiscernible] during the course of the panel.  You are a little bit, in our lineup, the underdog in terms of the discussion.  I do want to allow you a moment or two, and I mean that rather literally, to come back to some specific issues.

I will say, however, that as I thought about that, I recalled my own experience with UNRWA, which is not part of UNHCR but which has so thoroughly been captured by the political interests of parties that have no interest in refugees whatsoever, the complicity of the United Nations in perpetuating the downright corruption of UNRWA, that I pulled myself back a little bit for a moment and thought that perhaps this is a worthwhile discussion. 

I do commend you very much for listening and I hope taking in the spirit with which it was intended some of the criticism that you’ve heard here.  But I’m going to give the mike back to you, which is something I very rarely do.  Let me ask you to keep it brief and then we’ll turn to the audience.

Thomas Albrecht:  Thank you very much.  As you can reckon, I’m delighted to have the opportunity for constructive discussion and engagement.  I’m not quite delighted that unfortunately the tone and the contents of the article that was published by Mr. De Lorenzo is somewhat repeated again in the discussion, because unfortunately it’s full of inaccuracies, sweeping and unsubstantiated generalities, and examples that are taken out of context.  Let me give you one example here only and for the rest of the issues, I can only refer you again to our letter to washingtonpost.com that is out there and I think will give you in greater clarity a picture as to what I’m referring to.

When you referred to the example of Kakuma camp and the incidents that were in the article mentioned from 1994 and 1996, which is a little while ago as you can already see, I’m afraid the facts are completely distorted.  It was not UNHCR who had exercised any collective punishment.  Far from it.  UNHCR has been trying to exactly take food distribution for the rightful place and that is to the individual families, away from sometimes self-appointed community leaders who had done that in the past.  This is where, with these so-called community leaders at that time, some conflict arose.  That was not the making of UNHCR and certainly the subsequent issues were decisions that the government of Kenya has taken, which is well documented and which UNHCR has tried to discuss with the government in order to make sure that precisely refugee rights are fully respected.

On the other issues, I’m sorry, I can’t even comment because it is so out of place and out of the correct picture that a response, I think, is not even appropriate.  But let me probably also mention in terms of the issue of the setting up of camps, the running of camps as if we were a government, the freedom of movement.  I tried to highlight that in my short presentation.  These are unique issues that states are dealing with.  It is not us.  I think here we have to not be willfully unrealistic but precisely see what the facts are and also see what the responsibilities are and how they are exercised in the realities.

Danielle Pletka:  Can I just ask you a question in that regard?  I think you’ve been extremely reticent, and let me encourage everybody to also try and approach you and UNHCR to clarify some of these questions as well, if they raise them in your mind.  I was interested to hear that UNHCR has in several occasions filed amicus briefs before the United States Supreme Court on issues where they’ve disagreed with American interpretations. 

On this issue that you describe of lack of freedom of movement, where you blame the host government, have you in fact sought redress through local or national court systems in Africa or elsewhere, and taken these causes either to the press, as you have certainly in instances relating to the United States, if I remember several cases quite vividly, and also taken them to the press and taken them into the court systems in some of these cases?  You’re not denying that they’re taking place, you’re just denying that it’s the responsibility, something I understand.  Has that happened?

Thomas Albrecht:  I’m not denying that they have taken place.  I think some of the examples that have been raised are just simply factually incorrect.  Let me start on that note.  On other issues, surely we are fully engaged with governments.  The United States government on the issues that we have illustrated through the examples that Kelly Ryan has brought out, in other countries on a whole range of operational and legal protection issues.  Here we try to use all venues and avenues that are available, from quiet, more diplomatic discussions with governments where this is appropriate, to public statements. 

Usually however, as a UN agency, we do not address the issue through a court system because we have other appropriate avenues through our executive committee and through a whole range of other mechanisms where I think we quite successfully can bring these issues to all the relevant actors’ attention and also to those who should be taking the corrective action.

Let me just also mention that in the context of the 1951 Convention, there is a possibility for other states to also involve themselves and highlight the issues if they need correction.  It is not only UNHCR who would have that opportunity, and in fact a duty which we take very seriously and fully, but there is also a possibility for other state parties to hold other parties to the Convention responsible if they perceive that the actions do not fully meet the requirements of the Convention.

Danielle Pletka:  Let me open the floor to our very patient audience.

Question:  My name is Brian Bury, I’m a journalist for Europolitics.  The conversation today is a lot about camps in developing countries, but I’m from Europe, and in the last ten years or so there’s about 200 detention centers that have sprung up, and they are closed detention centers.  The governments of Europe are saying nothing about them, they’re just embarrassed about them.  I’ve spoken to NGOs on this and they said UNHCR has done nothing about it as well, they haven’t even commented on it.  Her view is that the previous UNHCR [indiscernible] wasn’t interested because he didn’t want to rock the boat with his former prime minister friends. 

Basically nothing is happening.  The EU has also washed its hands and said it’s a matter for the member states.  Can you just comment on that issue?  I know that they’re asylum seekers and not refugees but it’s taking two or three years to process their claims, so you’re getting people basically locked up for several years, including children.  Also, from Kelly Ryan, what is the U.S. policy on detention centers?

Thomas Albrecht:  Detention is certainly a very serious concern that UNHCR has expressed on many occasions to individual governments but also in principles, guidelines and policy documents.  I think on our website you shall find a good bit of that.  There are clear concerns that detention should be a very exceptional matter, if it is appropriate for very particular reasons that are also outlined and enumerated. 

The other related concern is not only the fact of detention itself but also that that fact of being detained may impact on the ability of an asylum seeker to meaningfully access the asylum procedures in some contexts and to have the information that is required to have the safeguards taken appropriately. 

So there is a scope of issues that we are concerned about and that we are discussing with governments on a continuous basis, including the government of the United States.

Kelly Ryan:  The U.S. policy on detention of asylum seekers is that we believe DHS will detain certain asylum seekers.  The majority of people seeking asylum in the United States are not detained but they are detained in immigration detention centers, federal, local and state jails around the country.  They’re subject to detention standards that are printed on DHS website, you can look at what those standards are that permit freedom of religion, access to attorneys, etc.  But if you present yourself at a land, sea or airport of entry and you seek asylum, you’re automatically detained until your case is adjudicated.

Question:  I’m [indiscernible], associate of [indiscernible].  With regard to handling of North Korean people who are said to cross illegally the border, I wish to ask Mr. Thomas Albrecht and Kelly Ryan about whether there already is some possibility for the UNHCR and the U.S. government to persuade China to cooperate – for example, not to deport them to North Korea based on their bilateral deportation agreement, or to open the UNHCR office near the border area to determine their status as quickly as possible for their protection.  If not, if they cannot cooperate, then what kind of action from UNHCR or any other country can they take against them?

Kelly Ryan:  I’ll start and then Thomas can correct me or add on.  This is a subject of great importance to the United States.  President Bush has raised the treatment of North Koreans with the premier of China.  We believe very much that many of them are genuine refugees in need of international protection and we have pressed and continue to press the Chinese on this.  The Chinese are a party to the 1951 Convention.  We ask them to live up to their international obligations not to return or refoule a refugee.  They believe or argue that many North Koreans are economic migrants.  We present to them evidence that they are harmed upon return and are viewed as political or religious dissidents.

We work very cooperatively and closely with UNHCR on this and we support the High Commissioner’s efforts to create what he calls a humanitarian space in China which would permit a broader range of actors to assist North Koreans who are genuinely afraid of returning and are subject to terrible human rights abuse even in China, including trafficking and further forms of violence against the person.

Thomas Albrecht:  I think Kelly Ryan has given you a good summary.  This is one of the issues that is more complex than probably what can be summarized in any just manner here.  But you are certainly more than welcome to get in touch with us and to have a further discussion at the appropriate time.

Question:  I’m Jihun Sohn from Voice of America.  My question is to Miss Kelly Ryan.  It’s been about three years since the North Korea Human Rights Act was passed and yet, as you mentioned earlier, there are only about thirty North Korean refugees who have been accepted, who have settled in the U.S.  The number seems rather small.  Why is that?  What is the U.S. government’s position in terms of the number of North Korean refugees that it’s willing to accept?

Kelly Ryan:  We get asked this question a lot and I’m surprised there’s any information lacking on it.  We will accept for referral any North Korean refugee who presents themselves to us.  We are willing to interview them and to admit them if they’re genuinely a refugee.  We actually go out affirmatively and ask countries to let us process refugees on their territory, North Koreans, because we believe that both the government of the Republic of Korea and the United States are appropriate resettlement countries for North Koreans.  So we welcome the opportunity to interview genuine North Korean refugees and hope to admit more.  There are more that will be coming.  There are more in what we call the pipeline. 

The difficulties with admitting larger numbers immediately have had to do with host government permission to have exit permission.  That’s the only difficulty that the United States has no control over.  We wish we did but we don’t.

Question:  So which country denies exit?

Kelly Ryan:  There’s a number of them but the most obvious is China.

Danielle Pletka:  And this is something that the UNHCR has spoken to in public?  I want to go and research this further.

Kelly Ryan:  Yes.

Thomas Albrecht:  High Commissioner Guterres has spoken about these issues repeatedly.  As I said, I think because it’s a complex issue, you are more than welcome to have a further discussion where we have the appropriate time on that.

Kelly Ryan:  Not to mislead anyone, I’m not identifying the countries from which the North Koreans have arrived – I’m not going to parse that out.  But countries in the region have participated on a case-by-case basis.  But the difficulty is getting host government permission.

Question:  Do Im Park from Asylum Access in San Francisco.  So given U.S. history of refugee protection, what are the panelists’ thoughts on how material support is affecting refugee admission?  Two, what future does U.S. refugee protection policy hold if national security continues to shape human rights and refugee policy?

Kelly Ryan:  Thank you for that question.  The changes to the U.S. admission based on terrorism by the Real ID and Patriot Act have had a profound effect on the admission of asylees, refugees and immigrants to the United States.  We would have admitted 13,000 more people last year, primarily from Burma, if the law had not developed in the way it has.  We have exercised waivers for eight particular groups.  Secretary Rice led and Secretary Chertoff has followed, and Secretary Chertoff has issued now duress waivers for Tier 1, Tier 2, and Tier 3 terrorist organizations.  But what we would seek your support on is our legislative proposal, which is on the Hill, which would adjust the issue involving bars for actual combatancy.

So El Zados [phonetic], the Cubans who fought against Castro, the Hmong who fought with us in Vietnam, some of the Fulro [phonetic] cases, some of the Tibetans who sought to overthrow the Chinese government with the support of the CIA – all of those continue to be barred and that’s why we need this legislative fix.  It’s narrowly tailored and it’s appropriate and it gives back to the executive what the law has removed with the creation and the combination of the Patriot Act and Real ID Act in this area.

I do think it’s important to recognize though that criminal and national security grounds are important for any adjudication.  The Refugee Convention itself describes what makes somebody outside of protection of refugee protection, it’s in Article I(F).  I think generally our laws track with that in protecting us from having to admit somebody who’s engaged in gross human rights violations.  We’ve tried very hard to prevent persecutors, persons who have committed war crimes, crimes against humanity or genocide from entering the United States or being admitted as an asylee or refugee.  We think those are important preventions and important bars to create in our U.S. domestic law.

Question:  I’m Iselin Larson from Georgetown University.  I have a question for Mr. Valdirame.  I want to take up the question you brought up about accountability.  Although I realize this is somewhat of a sensitive issue, I think it’s very important what you brought up about the checks and balances.  You’ve highlighted a number of the weaknesses of the UNHCR, perhaps the system of refugees or inaction of the governments of the south or the north.  I’m wondering what kind of solutions do you see?  What should governments of the north or governments of the south or even the UNHCR – is it the policy or is it the reform?  Maybe you can allude to some of the solutions that you see.

Guglielmo Valdirame:  I think some of the problems are more structural than others.  Some of the issues I’ve highlighted are completely straightforward.  Solution to the arbitrary detention of women accused of adultery – just set them free.  Collective punishment – don’t impose it.  Some human rights issues have got a very straightforward solution.

Other questions like RSD are a bit more critical.  I think there should be a very clear plan to stop doing RSD on the part of UNHCR and to enter into a transitional phase where RSD responsibilities are transferred to government as soon as possible, and to announce it quite clearly and say that in the future, from Year X, if you don’t do it, that is your problem because that is your responsibility.

I think on the question of camps, the lodestar principle should be that any entity that exercises governmental functions should be subject to the kind of controls to which governments are subject in liberal democracies.  That means, for example, in the case of an international institution, that it should be prepared to waive its immunity before national courts if it acts like a government.  If you’re acting like a government, there’s no reason why you should be above judicial scrutiny.  That’s just one thing that should be done.  I cannot see any way in which any entity – governmental, nongovernmental, international, humanitarian – can actually exercise such wide powers without that tendency to abuse and arbitrariness that I’ve tried to highlight.

Mauro De Lorenzo:  I think the U.S. government and UNHCR have a key role to play in helping governments achieve these standards.  I understand from Kelly that some initiatives are already underway from the U.S. government.  Those should be expanded and endorsed and supported.

Kelly Ryan:  Yeah, we’ve been doing this for more than a decade.  This is nothing new for the United States to assist.  But I’ll give an example of South Africa.  We basically told them our asylum system and they basically adopted our asylum system, but they didn’t put any of the infrastructure in place. So there are thousands and thousands of people in South Africa who can’t get their asylum claim heard because we told them to give work permission to people who applied.  Everyone applied and they’ve now stopped accepting asylum applications.

So it’s not just states should be doing RSDs.  They need the capacity and they need the infrastructure to set it up.  When Salvador put together its asylum law, it came to us and said, well, we’re going to tell our asylees that they can stay here but they can’t ever speak critically of our government.  We had to say that’s not really consistent with the Refugee Convention obligations.  You’re coming into sort of questions about freedom of speech that implicate other humanitarian conventions and human rights treaties.

So it’s true that we have been working with countries around the world in trying to get them to have robust, fair and accurate and speedy RSDs.  But South Africa is a good example of where with the best intention we went in, said here’s our system, see what you like, pick it, and they picked it all and it is failing.  So we need to figure out ways to make countries succeed when they actually do take on the RSD function.

Question:  I’m with Hispanic Outlook on Higher Education.  I’ve been to endless hearings on immigration, actually writing a book on immigration.  I’m hearing a lot of the same language here and it’s really interesting to me.  I think there’s a basic framing here that I’m also seeing in the immigration conflict.  You see it today in a New York Times editorial, if I dare mention that paper here. 

Danielle Pletka:  You do, but you need to have a question.

Question:  I will.  I think this is really a central question here.  I think many people are seeing, like Mr. Smith, refugees and immigration as part of a human right.  You’re even talking about the right to work and that certainly is what immigration is all about, the right to work.  You talk about national security, the United States is now seeing immigration as part of a national security thing.  It seems to me refugees come here to the United States as permanent – they’re given a permanent green card.  But how can you do that in countries that are experiencing huge floods of refugees fleeing emergency situations?  I don’t see how they can be regarded as immigrants with the right to work.

Also, basic to immigration is national sovereignty.  It is a nation-state’s right to determine who can come into their country and who can stay and work.  That’s an immigrant.

Danielle Pletka:  I think we understand your question.  Let me even make it more pointed and say, just thinking about situations where there are millions of refugees – for example, Afghan refugees in either Iran or Pakistan – is it the suggestion of people who say that they should not be warehoused, which obviously does sound awful, that they should be integrated and mainstreamed into society?  Or are there limitations on that, that people see?  It wasn’t clear in the presentation.

Merrill Smith:  There are some limitations.  Refugees do not get the rights of nationals in all regards.  They don’t have the right to vote, not under the 1951 Convention.  They have the right to protection and to live as normal a life as possible even while in exile.

It’s interesting the way you phrased that, how can refugees have the same rights as immigrants?  Actually, if you’re talking about floods, including illegal immigrants, they don’t – they have more.  There is no convention that says that an illegal immigrant has the right to work in a country.  Countries may exclude them.  Countries may deport them.  There’s no international law that says you can’t. 

However, refugees are different.  They are not voluntary migrants, they are forced migrants.  Because they are forced migrants, because they are without the protection of their own government that everybody should have from their government, that is what triggers the international responsibility to international protection, because they are naked, so to speak, of the protection of their own country.  That makes it international and humanitarian – not adversarial – humanitarian right of the international community to say that they should have these certain rights.

But your expression, although odd under the international legal regime, refugees versus migrants, is actually remarkably common.  In Thailand migrants actually get some limited rights to work but refugees don’t.  Even as they’re having new guest worker schemes that are highly restrictive, refugees are still in the camps and not allowed to work at all.  It’s odd.  Refugees should have more rights than non-forced migrants.

Danielle Pletka:  I’m afraid I’m going to have to cut off the remaining people who have questions -- you should have asked them earlier when you had the chance – because we have gotten to our time limit and I’m enormously impressed that we have.  I’m very grateful to all our panelists for the most interesting and provocative presentations, and to the audience for your excellent questions. 

Thank you all.  We are closed.

[End of session]

[End of transcript]