Genocide and Crimes Against Humanity | Refugees

Refugees have always existed, but the establishment of the international community's responsibility to provide protection to and solutions for refugees only dates back to the League of Nations. After the Armenian Genocide of 1915 and the Russian Revolution of 1917, refugees became, for the first time in modern history, an issue for the world community. In 1921 the League of Nations created the Office of the High Commissioner for Refugees, headed by Fridtjof Nansen. He established the "Nansen passport," which provided refugees with an official identity and recognizable status, and enabled them to start afresh. Nansen's mandate was subsequently extended to other groups of refugees, including the Armenians in 1924, and Assyrian, Assyro-Chaldean, and Turkish refugees in 1928. Nansen's successor, the American James McDonald, resigned late in 1935: He believed that a large-scale human tragedy was unfolding in Nazi Germany, one that the Office of the High Commissioner for Refugees was ill-equipped to stop because the international community remained unwilling to help fleeing Jews. Despite international conferences (in Evian, Switzerland, in 1938 and Bermuda in 1943) and the creation of an Intergovernmental Committee on Refugees to address the growing problem, only limited numbers of Jews were saved from the Holocaust. The fact of thirty million persons uprooted by war and the world community's comprehension of the full scale of Nazi atrocities did, however, lead to the development of institutions with more authority to deal with the plight of refugees (Kushner and Knox, 1999).

The United Nations Relief and Rehabilitation Administration (UNRRA), founded in 1943 to provide relief to areas liberated from Axis powers, returned some seven million displaced persons to their countries of origin and provided camps for approximately one million refugees unwilling to be repatriated. UNRRA was replaced by the International Refugee Organization (IRO) in 1946. Conceived as a temporary agency, the IRO attempted to find permanent solutions for the 1.5 million refugees remaining on the European continent, but was quickly hampered by the cold war, unable to operate in the Soviet-occupied zone in Germany. IRO terminated its work in 1952 and was succeeded by another temporary organization to aid the remaining refugees in Europe, the Office of the United Nations High Commissioner for Refugees (UNHCR). The UNHCR was created in January 1951 and has remained in existence ever since, with its mandate renewed every five years.

Evolution of the Definition of Refugee

In the period between World War I and World War II the League of Nations defined refugees according to group affiliation, specifically in relation to their country of origin. For instance, the definition of a Russian refugee adopted by the Office of the High Commissioner for Refugees in May 1926 included "any person of Russian origin who does not enjoy, or who no longer enjoys the protection of the government of the Soviet Union and who has not acquired another nationality" (Kushner and Knox, 1999). This group definition inspired much dissension over which refugee groups should be assisted. Germany opposed the notion of aid to Jews and dissidents fleeing the Third Reich and deliberately hindered responses to their exodus in the 1930s. After World War II pressure for a universal definition of refugee gathered momentum, leading to the definition included in the 1951 UN Convention Relating to the Status of Refugees (the so-called Refugee Convention), which emphasized the causes of flight. The Refugee Convention, still the standard benchmark for establishing refugee status, defines a refugee as "a person who, . . . owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country" (Article 1A[2]). The defining event is one's physical presence in a foreign land in order to secure protection from persecution in another country.

The Refugee Convention was modified by the 1967 Bellagio Protocol that removed the limitations that restricted the scope of the refugees in time and geography (in Europe who had fled as a result of events occurring before 1951). The Refugee Convention delineates the content and conditions of refugee rights that must be respected by a host state. The cornerstone of refugee protection is the principle of "nonrefoulement," stating that "no Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." This principle applies to all refugees, whether or not they have been recognized as such by a host state, and, indeed, many historians have concluded that Article 33 has achieved the status of customary international law in that it is a reflection of state practice and recognized by states as legally binding.

Challenges to the Definition of Refugee

The Refugee Convention has not gone unchallenged since its adoption. First, it has often been regarded as irrelevant. For example, falling outside the mandate of the UNHCR are "internally displaced persons" (IDPs), people who flee for the same reasons as refugees, but do not cross an international border. By not actually leaving their country of origin and therefore remaining at the mercy of their persecutors, IDPs are generally more vulnerable than refugees outside their homelands who are the beneficiaries of international protection and assistance. The principle of territorial sovereignty prevents "humanitarian interventions" to assist and protect them.

Second, the word persecution is not a precise legal term and many countries have tried to evade their international obligations by narrowly interpreting the definition of refugee. It should be noted that the Refugee Convention does not prescribe any obligation with respect to the means for determining refugee status. In practical terms a state that refuses to determine the status of refugees will be in breach of its obligations to protect refugees under international agreements concerning refugees, but it remains free to decide, on a discretionary basis, how it will fulfill its substantive obligations (although international human rights law also limits a state's freedom of action in certain areas; see Goodwin-Gill, 1989). This has resulted, on the one hand, in some European states excluding individuals who flee situations of generalized violence and civil war, such as in Sri Lanka, or persecution by nonstate actors, such as guerrilla groups in Colombia, or situations of state breakdown, such as in Somalia or Afghanistan.

During the 1990s, Germany, for example, refused to recognize as refugees the almost 400,000 Bosnians living there, in spite of their clear need for protection, as they were deemed to be victims of civil war, not of persecution per se. The UNHCR did not officially protest, as Germany was providing the Bosnians with a measure of protection. At the same time France refused to recognize as refugees the numerous Algerians who fled the civil war in their homeland, declaring that persecution meant victims of government-sponsored violence. The Algerians were, in fact, mainly victims of violence committed by Islamist fundamentalists against whom the government was fighting. French authorities very often provided them with no protection whatsoever, save not returning them to Algeria.

On the other hand, some countries, such as Canada, have recognized this new climate and suggested a teleological interpretation of the refugee definition, by focusing on not only individualized persecution by the infrastructure of state authorities, but also situations of generalized violence and persecution by nonstate actors. As such, they follow the lead of two important regional legal instruments that updated the international definition of refugee by expressly extending it to victims of generalized conflict and violence, when the state is unwilling or unable to protect them: the 1969 Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (the so-called OAU Convention) and the 1984 Latin American Cartegena Declaration on Refugees (the socalled Cartagena Declaration). The OAU Convention notes that "the term refugee shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality." The Cartegena Declaration includes "persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order."

Third, in spite of its numbers, the persecution of women has often been viewed as falling outside the purview of international protection. The UNHCR and other humanitarian organizations agree that 80 percent of refugees and displaced persons are women and children, many of whom have experienced rape and sexual violence in their countries of origin before fleeing. In spite of the high levels of abuse, persecution, and vulnerability for women and children, according to Nahla more than 75 percent of the refugees seeking asylum in industrialized countries are men. Indeed until recently, a woman's ability to seek protection from her own state was tenuous. One writer has characterized the use of violence against women in developing states as a "global holocaust," a situation tantamount to "the systematic genocide of Third World women" (Wali, 1995, p. 339). In international criminal case law and the 1998 Rome Statute of the International Criminal Court (ICC), systematic rape gained the status of a war crime and crime against humanity. This should help justify refugee status for women victims of violence, as Canada has already recognized (Immigration and Refugee Board, 1993).

The debate surrounding the complexity of determining refugee status has to be understood in light of the overall objective of all modern-day industrialized states to reduce the number of asylum claims to be processed by any refugee determination system. Several mechanisms aimed at better controlling and preventing migratory flows now coalesce to achieve a clear cumulative effect. Either they aim at the return as soon as possible of the maximum number of persons who have entered the territory and made a claim of asylum (maximization of removal mechanisms, accelerated procedures in the refugee status determination system, alternative national protection regimes of more limited duration and scope than that of the Refugee Convention, reduction of lawyers' assistance, suppression of appeal procedures, safe third-country agreements, readmission and asylum-sharing agreements, etc.), or they attempt to prevent asylum-seekers from even reaching a state's borders (visa requirements, reinforced border controls, carrier sanctions, training of carrier and airport personnel, short-stop operations, police cooperation, readmission agreements, immigration intelligence gathering, etc.).

A concrete example of this phenomenon is the Bosnian refugee crisis brought on by that country's civil war and Germany's protection of the Bosnians residing there through the establishment of an alternate protection regime. The 1995 Bosnia peace plan turned the spotlight on the Bosnians living in Germany in identifying them as geduldet ("tolerated" foreigners) allowed to remain in Germany at least until March 1996. The German government granted these Bosnians only temporary protection status and expressly disallowed their application for refugee status: The purpose of this policy decision was for Germany to avoid the restrictions of any international obligations and secure the freedom to treat the Bosnians as it saw fit. This precarious status, in turn, facilitates their return to Bosnia as soon as materially possible and spares Germany the somewhat permanent nature of refugee status generally associated with the Refugee Convention. It results in unequal levels of protection: Several years after fleeing Bosnia, on the expiration of their temporary protected status (decided by the host country's authorities at will), it will be difficult for individuals to provide evidence of their well-founded fear of persecution were they to return, and to demonstrate that they should be awarded refugee status. Most Bosnians would therefore be returned quickly (forcibly if necessary), and this was the ultimate objective of German policy.

Refugees are to be protected even if they have committed certain crimes in their country of origin. However, some crimes are so horrendous that they justify the exclusion of the perpetrators from the benefits of refugee status, as stated in Article 1F(a) of the Refugee Convention: genocide, war crimes, and crimes against humanity. In this sense the perpetrators are considered "undeserving of refugee protection" (Lisbon Expert Roundtable, 2001, p. 1). Other reasons for exclusion clauses include the need to ensure that fugitives from justice do not avoid prosecution by resorting to the protection provided by the Refugee Convention, and to protect the host community from serious criminals. The purpose of exclusion clauses is therefore to deny refugee protection to certain individuals, while leaving law enforcement to other legal processes. The tension between the need to avoid impunity and the need for protection has been sometimes questioned: The refugee crisis following the Rwandan genocide dramatically illustrated the international community's lack of preparedness in establishing procedures to deal with refugees who had committed international crimes in their country and later taken control of refugee camps abroad through intimidation and access to international assistance.

Conflicts in Liberia and Sierra Leone in the late 1990s sparked another exodus of civilians. Failure to implement exclusion again compromised the civilian nature of refugee camps, put refugees at risk, and fostered impunity. The crisis in West Africa confirmed the findings from Rwanda and revealed tensions between the rights of refugees and security of countries at war. It was clear, in all these situations, that if the refugees were to be protected effectively in instances of mass influx, exclusion of war criminals and perpretrators of massive human rights violations or crimes against humanity would have to be approached in a consistent manner. At the same time, at the other end of the spectrum, the rights of refugees in other parts of the world were also being threatened by the way in which exclusion was applied within individualized refugee determination procedures. In those contexts an overly broad interpretation of exclusion constituted a convenient "one-size fits-all" approach to unwanted applications.

An urgent need exists for benchmarks to steer decision makers between these two extremes, as well as a growing recognition of the need to interpret Article 1F(a) within the context of different, rapidly evolving sources of international criminal law (the Rome Statute, the statutes of the two ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, and other instruments of international humanitarian law), refugee law, and human rights law. Specific avenues and complementary security strategies for refugees, from camp size and location to military intervention, must be taken into account.

The search for solutions, such as excluding some people from refugee camps, is a clear sign of the overwhelming complexity of the modern world. Given the new emphasis placed on civilian populations as instruments in warfare and the flow of displaced persons generated by contemporary conflicts, the definition of refugee within the Refugee Convention remains continuously challenged. The experience in the Great Lakes region of Central Africa (Burundi, Congo, Uganda, Rwanda) also raised a host of questions related to the role of humanitarian actors in complex emergencies, in particular those having to do with the relationship between humanitarian action and political/security interests. For example, can humanitarian action increase insecurity? How do humanitarian actors reconcile the different parts of their mandate that may come into conflict?

Controversial Role of the UNHCR during the Rwanda Genocide

The mass movements of population linked to widespread human rights abuse are not a new phenomenon in the Great Lakes region, but they have reached unprecedented proportions since the 1994 genocide in Rwanda, which claimed as many as one million lives. In its aftermath two million Rwandese fled their country for Zaire, Tanzania, and Burundi, and set up refugee camps. These, however, were the scene of widespread violence, which provoked fear and instability in host countries and compromised humanitarian assistance efforts. In the worst moments of the Rwandan genocide, thousands of refugees were slaughtered, settlements were destroyed, and refugees were again compelled to flee, into the Zairian forests or toward Rwanda. The presence in the refugee camps of soldiers who had actively participated in the genocide, and who were in a position of authority over the population, was one of the main obstacles preventing the safe and voluntary return of refugees to Rwanda. Indeed, those who wished to return home were often threatened by camp leaders and pressured into changing their minds.

Faced with this terrible situation, the UNHCR organized, in 1996, forced repatriations and the dismantling of camp facilities. A key issue was the applicability of the principle of nonrefoulement: Refugees were frequently sent back to their country of origin against their will and were, for a number of reasons, unable to actually make a decision whether to return or not. Furthermore, there were no reliable mechanisms to ensure that human rights were protected in the event of a mass return. The role played by the UNHCR has come under great criticism by humanitarian organizations that contend it was not appropriate for a protection agency to provide a political solution to the crisis. Others still believe that it was the best course of action, given the exceedingly complex and insecure situation and the international community's overall lack of support.

SEE ALSO Humanitarian Law; War Crimes

François Crépeau
Delphine Nakache