“paradigm shifts in the international response to refugees,” bill frelick, fear of persecution: ...

8/4/2019 Paradigm Shifts in the International Response to Refugees, Bill Frelick, Fear of Persecution: Global Human Rights, International Law, and Human Well-Being 2007.

1/14


2/14

2 Roberta Cohen.avoyer, J-P. (1995). Protection under international humanitarian law. ~nInternally 1!is-

placed Persons. Symposium, 23-25 October. Geneva: Internat ional Comnutteeof the Red Cross, pp.26-36. .

!lartin, S. et al (2005). The Uprooted: Improving Humanitarian Responses to Forced M,-gration. New York: Lexington Books.

!lcNamara, D. (2005). Who does what? Forced Migration Review, Supplement, October,pp.6-7. . .Ifinear, L., & Kent, R. C. (1998). Rwanda's internally displaced: A conundrum within aconundrum. In R. Cohen and F. M. Deng (Eds.), The forsaken people (p. 92).Washington, DC: Brookings Institution. .,

[eier, A. , & Leaning, 1. (1 ' 999) . Human rights challenges. In, J. Leam~g, S. M. Briggs,and L. C. Chen (Ed's . ), Humanitarian Crises, pp.195-209. Cambndge, Mass. : Har-vard University Press. .

.J"orwegianRefugee Council (2005). Global lOP Project Map, "Internally DIsplaced Peo-ple.Worldwide," M arch, .

)'NeiH, W.O. (2004). A N ew Chal/ellge [or Peacekeeper: Thelntemol/y I!ispiaced.Washington, u C : - Brookings-SA1S Project on Internal Displacement, ~pnL

)'Neill, W.O. & Cassis, V. (2005). Protect/rig Two Million Intemally Dlsp_Iaced: TheSuccesses and SllOr[comlilgs of the African U/lion ill. D a rf ur. Washmgton DC:Brookings-Bern Project on Internal Displacement, November. . " .)aul, D. (1999). Protection in practice: Field-level strategies for protectmg civil ians fromdeliberate harm. Relief and Rehabilitation Network. Paper #30, July . London, Eng-land.

)rendergast, 1. (1997). Crisis response: Humanitarian band-aids in Sudan and Somalia.London: Pluto Press.

JNHCR(1994a). Information notes onformer Yugoslavia, January. Geneva, Switzerland:UNHCR.

JNHCR Division of International Protection (1994b). UNHCR's operational experiencewith internally displaced persons. Geneva, Switzerland: UNHCR. .

JNHCR (2005). Fact File on People of Concern to UNHCR, March, available athttp://www.accord.org.zalctl2005-3/ct3 _2005 _pp28-29. pdf. .

Jnited Na tions (1995). Internal review of the case of the Kibeho Incident: Lessons forthe Future, Report of the Inter-Agency Task Force on Internally Displaced Persons,November. Geneva, Switzerland: United Nations. .

Jnited Nations (2003). Commission on Human Rights, Resolution 2003/51, ~3 Apnl.Jnited Nations (2005). General Assembly, World Summit Outcome ResolutionNRES/60/1, 15September, para. 132, available athttp://www.un.org/Depts/dhl/resguide/r60.htm .. .J.S. Committee for Refugees (1998a). Colombia's silent crisis: One million displaced byviolence. Washington, DC: U.S. Committee f~r .Refugees. , ..

J.S. Commit tee for Refugees (1998b) . News: 1.9rrulhon dead from Sudan s civi l war .December 10. Washington, DC: U.S. Committee for Refugees.Walke]', P. (1995). Working for internally displaced persons: Prospectsfor the future. InIntern aII}'Displaced Persons. Symposium. October 23-25, p.75. Geneva, SWitzer-land: International Committee of the Red Cross.

CHAPTER 2Paradigm Shifts in the International

Responses to RefugeesBi ll Fre li ck

What is known as the international refugee regime, the organized internationalcommunity's collective response to refugees, has seen three major paradigmssince the drafting of the 1951 Refugee Convent ion and the creation of the UN. High Conunissioner for Refugees (UNHCR) in the aftermath of World War II.

First , from roughly 1948 until 1991, the international refugee regime oper-ated according to the exilic model-refugees for the duration of the Cold Warwere mostly displaced from Communist or communist-dominated countries orfrom the Middie East and were not considered to have any realis tic hope of repa-triating to their home countries in any foreseeable future. The international refu-gee regime was largely preoccupied with establishing- their rights in exile and .where possible, in finding durable solutions outside the country of origin, and.where no t possible. wi th wa r ehous ing refugees in camps, often for decades.. The close of the Cold War ended a period of static political blocs and un-changing borders. It also. meant that the international community, led by one

super power, the United States, was more likely to intervene to .chiliigesituationson the ground that caused refugee flows, thus enabling the 'return of the dis-placed. Conseq_uentlyin the early 1990s, the international refugee regime shiftedto a second fundamental paradigm. n turned away from the exil ic model of re-sponse to refugee crises, and sought a source-country model to address thecauses of refugee flows. The international community would either seek to pre-
http://www.accord.org.zalctl2005-3/ct3http://www.un.org/Depts/dhl/resguide/r60.htmhttp://www.un.org/Depts/dhl/resguide/r60.htmhttp://www.accord.org.zalctl2005-3/ct3


3/14

34 Bill Frelickflows, thus enabling the quickest return possible of refugees and internally dis-'placed persons. Under the scurce-country paradigm, refugees were less likely tobe offered permanent asylum outside the ir home countries , Instead, they wereprovided temporary pro tect ion. c lose to the border or a "safe area" was ca .n_redout on their behalf inside the country of or igin, With the intent ion of protec tingthem pending an international intervention tha t would enable their return,

A decade later, t ile terror is t a ttacks of September 1] ,2001 appeared to mark' the beginning of a thi rd paradigm in the interna tional community 's response torefugees and complex humanitarian emergeacies=the security model. Whereasrefugees during the Cold War were looked upon in near heroic termsas free-dom-lovers escaping tyranny ( the re igning image being the Ber lin Wall ), andrefugees in the 1990s were arguably the "tail wagging the dog" that inspiredmili tary interven tions in such d iverse places as Hait i and Kosovo, in the ear lytwenty- fi rs t cen tu ry , refugees of ten came to be regarded with deep suspicion,sometimes seen as being ter ro rists themselves or as being the sea inwhich theterrorist fish could hide and swim, Fear of terrorism often exacerbated pre-ex is ting xenophobic and racist tendencies . Closing 'bordel :s and denying asy-lum-the security medel-ebecame part of counter-terrorist strategies to thedetriment of fundamental principles of refugee protection. that had been in place,however weakly. under both the exilic andsource-country solutions models.

Paradigm 1: The Cold War and the ExileThe traditional international refugee regime was not oriented to tackling the rootcauses of refugees in their countries of origin. Itwas based on the not ion of asy-lum, or providing .refuge first, and worrying about durable solutions later, oftenmnch Iater, The refugee regime, forged as it was during the C 0 1 d War, had,therefore, an exilic bias, the assumption that refugeehood with someexcepr ions ,meant permanent exile (Coles, 1989). . .During the Cold War, the possibility of repatriationoften.seemed unrealistic,even i llusory . Al thougb refugee pol icy makers during the Cold War rout ine lyarticulated three solutions for refugees-voluntary repatriation, local integration,or thi rd -coun try rese tt lement-refugees had l it tle objec tive reason to hope forthe fundamental changes in their home countries that would allow their sa~erepatriat ion and also had no meaningfu l chance of being integrated local ly moverburdened and unwilling countries of first asylum (Robinson, 1989). Inmostcases the only durable, practical solution was third-country resettlement.

In real ity, on ly a tiny f ract ion of the world's refugees.estimated at less thanone percent of the total, were ever removed from their misery and allowed toresettle inprosperous countries far away from the zones of conflict. The vastmajority of' refugeeswere condemned toprotracted stays in.often fetid and over-crowded refugee camps. By- the time of the shift to the third ,paradigm (Septe~-ber 200.}), there were still millions of refugees warehoused for protracted pen-

Paradigm Shifts in the International Responses to Refugees 35ods of time, caught between seemingly intractable situations in their countries oforigin and the unwillingness of the international community to find alternativesolutions. These included 4.5 million Afghan refugees, mostly in Pakistan andIr~ll~(many h~v!l1g been refugees for more than two decades) , more than fourmil lion Palestinians (refugees for more than 50 years), as wel l as hundreds ofthousands of Sudanese, Angolans, Iraqis, Ethiopians Eritreans Burmese Soma-lis,.Liberlans, refugees from western Sahara, Angoians, Vieu:amese (m~stly inChina), Rwandese, Nepalese, and Tibetans, Ina!LY of whom had beenliving incamps or under other restrictions fora decade or longer (USCR 2002).

In the few instances in which it was successful, the exilic refugee regime wasbased on a care~lly wreught system of burden sharing intended to rel ieve pres-sures on countries .of first as_ylum-those states ' that, through an accident of ge-ography, were. subjected to influxes of refugees from neighboring countries. Inorder to perrmt refugees to seek asylum from persecutionoutsidetiletr owncountry-a princ iple enshrined in Art ic le 14 of the Universal Declarat ion ofHuman Rights -keeping the doors open to firs t asylum countries was long re-garded a~ the sine qu~ non.of international refugee protection, (United Nations ,1948). Distant countries, frequently IUOrestable politically and with greater re-sources than first asylum countries, lent support to countries offirstasylum notonly through financial and mater ial assis tance, but also by sharing the human~urden tm:ough resettlement. Third-country resettlement served a direct protec-tron function for ~efugees still endangered incountriesof" first asylum; it wasalso used to convmce f irs t asylum countries to maintain open borders for newrefugee arrivals. Finally, third-country resettlement served as a durable solutionfor refugees with no prospect for repatriat ion or loca l integrat ion. It not onlygave refugees a chance to start a new life, but also served to relieve first-asylumstates of the long-tenn burden of integrating large refugee populations,

Vietnam: First Asylum and ResettlementT~e exilic model took its essential form in the mid-1970s in response to theVIetnamese exodus. Following the triumph of communist forces in 1975 theinterilationat cO~1llllunityrecognized that Vietnamese refugees had no pros;ectsfor re~ and vJrtuallyoo hope of permanently remaining in neighboring South-east Asian states . Led by the Uni ted Sta tes , distant countries struck a bargainWith the f irs t asylum states , to keep thei r doors open and provide at least tempo-r a ry asylum. In return, the distant s ta tes would bear the l ion 's share of the f inan-cialcosts of maintaining the refugees in f irs t asylum, and would share the hu-.man burden as well by agreeing to reset tle refugees outside the region. Duringthe next 20 years, more than 1.3 million Vietnamese were admitted to the UnitedStates (USCR, 199.6).

The United States and allied governments applied the resettlement model toother refugee emergencies .as well. At least some among the millions of Cambo-


4/14

36 Bill Frelick Paradigm Shifts in the International Responses to Refugees 37d ia n s a n d Laotians, Afghans-and Iranians, Ethiopians and Somalis found durablesolutions to their plight as the United Sta te s and its partner resettlement statesadmitted them from countries offirst asy l um,

Refugee sc reening was a key component of such resettlement. Although arefugee'S initial escape across a border was usuallysudden, chaotic, and uncon-trolled, permanent resettlement to a distant third count ry was usually highly or-ganized, selective, and prolonged. However committed thi rd count ries mighthave been to the principle of inrernatienal burden sharing, refugee resettlementremained d i sc r e ti o na ry . Reset tl emen t gove rnmen ts regularly exercised their dis-cretion to screen out persons not meeting the refugee standard, as well as unde-sirables: those who might fear persecution if returned, including criminals; sus-pected persecutors of others; and others whose fault s might be less egregious.The Uni ted States wrote this discr etion into the Refugee Act of 1980, whichprovided the statutory framework for the resettlement procedure. Th e RefugeeAct reservedresettlementto refugees "of special humanitarian concern" (United,States GovemmentJmrnigration and Nationali ty Act 207.8U.S.C. 1157) tothe United S tates, often based , in practice, on speci fic t ies to the United States ,such as fami ly ties or for having been persecuted or threatened with persecutionfor having overtly sided with the U.S. government.The resulting system, while undoubtedlysaving far more lives than justthoseactually resettled, was nevertheless far from perfect . Countries of first asy-lum eould legi timately protest that reset tl ement s tates were 'creaming off ihebes t and the 'br ightest , and leaving them with the ' r esidua ls '


5/14

38 Bill FrelickRefu.gee Convention (United Nations) does not include a positive requirement toprov:1de< tsylum, .altll?ugh this would appear to be a corollary of fulfilling thenon~efoulemeJlt. (ArtIcle 33 of the Refugee Convention and Protocol' UnitedN a bo ns ; 1 9 51 ) , which prohibits the re turn ofa refugee to a place wher~ h is l if eor freedom would he threa tened The idea of protection without asyl)Jm-thatuproqted. people could b~ p.rotec~e.d,inside their home country before the y be-CRJnt;. refuge.es-was a gmdlllg principles of tIle source-country pa radigm., . Addr:essmg refugee flows at the point ' of origin, while providing hUmilnitar~la~ benefits, neverfhele,ss politicized the intemational response to refugees asn,eVtlf before. As the Uruted States,e.xperiencedfirst hand during the 1980 Marie]Boat exodus . refugee f lows can serve to rel ieve internal pol it ical pressures onIefugee~producmg countries Wh,iledestabiHzing refugee~hosdllg ones. A decadela~e~, WIth the Cold, War bel~nd it, ale international community wa s no longerwill~ng toaccept thlsdynal;l1lc, The focus shifted away from providing asylumo~tslde. the country of origin. The intemntional community committed itself toprotectmg fustcasylUll1 sjatesand to 'keeping the pressure on retugee-producmgstates. The outs tanding question was that of the safety of the refugees them-selves. Would they become pawns in a test of wil ls between their home govern-ment and its adversaries?. A focu.s on preventing flows and keeping potential refugees in the source

.country sl~ed the focus-away from the relatively straightforward humanitariantask of :anng fo r refugee:safterthey crossed a border . .The new model was oneof creating shorMer~l p~Ol'e?tion in pockets ,within the country of origin, or insome other ~xtratel' rltonaJ SIte, while seeking fuudalllental changes that wouldenable the'dlsplaced to go home-as soon as possible.

Northern Iraq (1991): Safe HavenIn t~e aftermath of the Persian Gulf War, the ant i-I raq al liance devised a way toaVOId refoulement and yet not provide asylum outside the potent ia l refugees'country of origin.

As an exodus of Iraqi Kurds massed on the Turkish border the UnitedSta t~s, Great ~ri tain, and France declared a "safe haven zone" in ;or thern Iraq .~nhke the VIetnamese refugee exper ience , in which the Uni ted States had ca~J~led and coerced Thailand; ~alaysia, and other neighbors of Vietnam to pro-VIde temporary asylum, this time, the United States agreed to help keep therefugees out and deny them asylum in Turkey rather than persuade or pressureTurkey to provide first asylum.

Pushing refugees back at ~heir border normally const itu tes refoulement.H~re, ~o,,:ever, the Western Alhance declared that it was providing a protectiveshIeld, inside Iraq, thus avoiding returning refugees to persecution, even while~eturnIng them, or compelling them to stay, within the territory of the persecut-mg state.

Paradigm Shifts in the International Responses to Refugees 39The authorization for the creation of the northern Iraq safe area, known as

Operation Provide Comfort, was based on a tenuous reading of UN SecurityCouncil Resolution 688. This resolution framed the threat to international peaceand security not as the human rights abuses perpetrated by the Iraqi governmenton its citizens but rather as "the massive flow of refugees toward and acrossinternat ional front ie rs ." The refugees themselves were seen as the th reat to in-ternational order and stability. Resolution 688, in fact, affirmed the sovereignty,territorial integrity, and political independence of Iraq, while also insisting thatthe Iraqi government "al low immediate access by internat ional humani tar ianorganizat ions to a ll those inneed of assistance in al l parts of Iraq." There was noexplicit authorization for U.S., British, and French military forces to enter no~h-em Iraq to establish Operation Provide Comfort, and it would be a stretch, m-deed, to regard such forces as "international humanitarian organizations."

While h is tory is l ike ly to judge Opera tion Prov ide Comfor t as a success, andcerta inly the northern I raqi Kurds regard i t as hav ing streng thened their hand increating an autonomous political zone within Iraq, it nevertheless subverted boththe idea from the Geneva Conventions of neutralized zones established with theconsent of all parties to a conflict to shelter civilians from the dangers of ~ar(Fourth Geneva Convention, 15), as well as the right to seek asylum outsideone's country (Universal Declaration of Human Rights, Article 14).

Haiti (1992-1994): Interdiction, Intervention, and Off-shoreSafe HavensThe Haitian refugee crisis from 1992 to 1994 directly confronted the UnitedSta tes with defining the responsibi li ties of a f irs t asylum country-in this case,i tsel f. Rather than allowing a mass refugee inf lux as i t had so often called uponpoor third world countries to do during the Cold War (and as it had done itselfwith respect to refugees fleeing from Cuba), the United States contrived variousmeans to avoid opening its territory to Haitian asylum seekers. Most egre-giously, for a time it interdicted and summarily returned Haitians with noscreening. Although, on i ts face this was refoulement, the U.S. Supreme Courtgave this practice its blessing in Sale v, Haitian Centers Council, through a con-voluted opinion holding that the Refugee Convention and Protocol are not s~lf~executing and that U.S. law, the Immigration and Nationality Act (INA), whichimplements the prohibition on refoulement, only applies within U.S. territory.

Although the U.S. Supreme Court essentially gave the Clinton Administra-tion carte blanche to refoule refugees interdicted outside U.S. territory, Clintonappeared uncomfortable with such arbitrary power. After several false starts, heestablished a "safe haven" outs ide both Haiti and the United States-the U.S.naval base a t Guan tanamo Bay, Cuba. The INA did not apply at Guan tanamo,Refugees could be held there indefinitely without screening, without due processrights. Interestingly, Guantanamo bore one particular similarity to northern Iraq:


6/14

40 Bill Frelicka's in northern I r aq . although ultimate sovereigntyr~sted with a n enemy state, inthis case, Cuba , actual control was in t he h a n ds of the United States.

The prompt re turn of the Hait ians to Hait i was assumed from the very begin-ning of th e Guantanamo operation. In Ju ne 1 99 4 this author spoke to the U.S.military commander at Guantanamo. wh o said tbatthecamp would be,closed illsi x months. He also said tha t tb e l"efu,gees would not be allowed to proceed tothe United States .One can only speculate about the extent to which the refugeeissue drove foreign policy. III any event, the United States and its pa r tne rs Inter-vened inHait~sending in international troops and restoring President Ber t r andAristide to power jn October 1 9 9 4. S ix mOllthS after GU8ntanamo was estab-Iished asa temporary safe haVenC8mp, i t was closed . The U.S. authori ties de-clared a fundamental change ill the status of Haiti so that the refugees couldsafely renun, Those who refused to return voluntarily were.forced back.

Would t he U n it ed States have intervened to restore President Aristide topower ifnet' for the fear of aconti lluing exodus of boat people and a desire notto establi.sh a permanent refugee camp a t Guantanamo? It appeared that theUnited States' w il li ng ne ss t o e mb a rk on a m a jo r m il ita ry interv,el1tion in Hail iwas not for the usual foreign policy objectives, bu t rather p ti ma r iJ y t o effect th er et ur n o f refugees a nd to c h a nge , t h e conditions tha t would cause more toflee.

Bosnia (1992-1995): Temporary Protection and Safe HavensThe Weste rn Europeans' reaction' to the i nf lu x o f Bosnjans was Dot unlike tha tof the United States towards the Haitians. AldlOUgh the Europeans did nothavethe options of .high seas interdictions and detentions o f refugees on island com-pounds they were equaUy intent on preventing Bosnian access to asylum proce-dures and due process rights, a nd fashioned a "tenipor-ary protection" regimethat was predica ted on th e return of the Bosnians to thei r homeland. Hand inhand with the temporary protection regime came a visa regime that restrictedBosnian access to most West European territories.

TheintemationaJ cOlmnuility Wasslow to create.safe areas inside Bosnia a h iOperation Provide Comfort, in large part because, u nlike Ira q in 1 9 91 , there wasinsufficient p ol it ic a l w il l t o devote the forces necessary toensure protection. Th einternatiOnal community tried to establish aitlifts or "safe corridors" for deliveryof food to unsafe areas, su c h as Sarajevo and Gorazde, an d in February 1993resorted to food air drops to enclaves, such as Srebrenica, that couldn't bereached Safely. The UN $~curity Council in 1992 passed Resolution 770 callingon states totake "all necessary measures" to facilitate the delivery of relief sup-pl ies . The then U.S. Secre tary of State made all expl ici t connection betweenproviding humanitarian assistance to areas that were unsafe and discouragingrefugee flows:

41aradigm Shifts in the International Responses to Refugees" , e to hundreds of thousands more whoWe must a lso funnel hun:amtanan assls~nc t become the next wave of refugees.are besieged inside Bosma, so that the~ 0 no plish this goal. (Eagle burger,It wil l require the opening of safe corndors to accom

1992). . UN Security Council declared Srebrenica .aFinally, on April 16, 19~3,. t he h d t escape (or for its desperate rest-"safe area," supposedly obviating t e nee hetoric never became a reality. AI-

dents to be evacuated). But ~e safe ar~a :her besieged areas inBosnia as "safethough the UN Security Council declare 0 93 safe did not follow from UNareas" as well (Resolution 82~of May 6, 1: ), be~ame among the least safeSecurity Council guarantees; m fac t, the sa e areasplaces in the world. tr 1 d militarized zones establishedThe Bosnian safe areas. were not ne~. at' b et instead were central to thewith the consent of all parties to hthe con tlCth'hUe'artof ethnic cleansing _ and. d r aw i battle t at was a e ddemographic map- rawm~ iac) litical leaders were adamantly opposeresistance to i t. The Mushm (BOS~l~l~Pf rl safe areas even when evacuat ion. fth . own ClVIlans om, .to any evacuations 0 err f th trapped in the enclaves. Bosniacwas demonstrably the desire of man~ 0 f ose ithin the eastern enclaves, com-d hi d n opera t ions rom WI S bforces also wage It an ru d king the Serbs. After er. h .tari character an provo hpromising their uma~ anan 11 1995 revealing the utter impotence oft eforces overran Srebrenica on Ju~y, , teet it the name Srebrenica came toDutch blue helmeted troops assigned to pro t W'th echoes of the Nazi Halo-symbolize the failure of the safe arean~o~c:l~s ~ho had taken shelter at thecaust, Serb forces separated males a d b s off to be executed. Many otherDutch UN compound, and ledk~te :en t~~y d~peratelY sought to escape to theBosniac men and boys were I e asBosnian a rmy lines.. . did t want to concede or tolerateAlthough the internat ional commumty I itir of refugees i t was not will -idi f orderly evacua Ion , .ethnic cleansing by provi mg or t protect them in place. Its POSl-'1' urces necessary 0ing to muster the nu itary reso . i led insofar as Western Europeans ap-tion also came to appea~ I~ss than -:.m~h~ temporary protection regimes estab-peared resistant to providing asylu ( f llowed almost immediatelyE vernments were 0, .lished by most West uropean go . . f 'sa requirements for Bosnians),in a lmost every case with the imposl~IOn ~ o; t~n even temporary) asylum wasTherefore, for the most part, pennandenB(an. ns either were forced to remain in. W t Europe an osma t thnot available III es em , . b bbles designed to preven e. hi t orary protection u .unsafe safe areas or WIt m e~p . d t di courage local integration. AfterI . . tion nghts an 0 IS dacquisition of lega imnugra I d i on another safe area, Goraz e,the fa ll o f Srebrenica and as Serb forces c ~ed I~th more robust force , bombingthe international c~mrnu.nity finally res~~n eCr:tian military offensive, forcedSerb positions. ThIS action, togethe.r wdl . aD yt n Orno and signed in Decem-. . ord negotiate mao, futhe signing of a peace ace . d c lled for the rerum of re geesber 1995, which redrew the map of Bosma an aand IDPs.


7/14

42 Bill Frelick. ~it l~ a redrawn Bosnia divided along ethnic l ines , many refugees and IDPs0 ~l gm :a tm g f rom a r ea s where they were in tile ethnic minority no longer hadVIable prospects of r~tum to their places of origin. In Germany and elsewhere,

however, courts ~eclded that Bosnians could be returned to parts of Bosniaw~~!erhey were. m th e e th nic ~j?rity, even if it meant not returning to theiroriginal bomes=-in effect, creating intemally displaced persons.

Rwanda (1994-1996): Operation Turquoise andCoerced RepatriationAfter the genocidal wave of ki~li~gserupted inRwanda in 1994, followed by theadvan~e of the Rwanda Patriotic Front against the Hutu perpetrators of thegeno~lde , the s~fe haven c~ncept was formally broached by the French for thefirst ~rnelll.Africa. Operation Tur~uoise, a "safe humanitarian zone" created bythe.Frencb ~ south:,est Rwanda ill 1 9 94 , showed the extent to which humani-tar~an rhetoric co~~. b~ bent to political purposes. Operation Turquoise was aunilateral French imtiative, en,dor~ed by the UN Security Council, purportedly tocreate a sa~e ~lavenfor both1tsts and Hutus in a corner of southwest' Rwanda.It was r~numscent of the Operanon Provide Comfort safe haven in northernu : aq, which the Uni ted States , Great Bri ta in, and France establ ished with am-blguou~lJ.N'S~curity Council blessing, and which was not limited to providinghu:maru~a~l8na1(I,but.a.ls,o disooufllged cross-border refugee movements. It had~he addi tlOna~ ge~pol itJca l purpose of stopping the advance of one side in aninternal conflict with .tlte effect{intentional or not) ofpropping up the other ..Although the region where Opera tion Turquoise was establ ished had been

the scene of Hutu genocidal ~ssacres directed against the Tutsi minority,Fran~e~ as a bac~er of the previous Hutu Power government, appeared to beprovid ing pro tect ion and support to members of tbe deposed government, thepro-Frenc~ perpetrators of-the genocide, although French troops did also protectsome Tutsis from being massacred.

While the displaced Hutus in the humanitarian zone of southwestern Rwandacould be fed. and shel t~red .and did: ~deed, avoid much of the misery experi -enced by their compatnots 10 the Zaman refugee camps in Goma, their situationwas .not safe. Although the perpetrators were never identified, violence contin-~ed III~e Operation Turquoise zone, particularly at night; the Rwandan authori-tl~s.~ttribut~~ the .attacks toc~m~ r.esidents .attacking people outside the camps.Citing 5ecu111)1concerns, and msisnng that It was safe for displaced civilians toreturn, the .new Rwandan authorities demanded that the camps in the southwestbe closed,~ncludlng Kibeho, the largest camp, which held up to 120,000 people.

InApril 1~9~"after France had turned over the operat ion to UNAMIR, theRwandan Patriotic A1:ny (RPA) moved to force the displaced out of Kibeho.What .happened next lS a matter of dispute . At night , dozens of people were

Paradigm Shifts in the International Responses to Refugees 43killed outside ' the camps by machete attacks. Dur ing the day , provocations a p-p ea red to escalate between camp residents a nd R PA t roops,as the RPA tight-ened the cordon around the camp, making it impossible for camp residents toc eo k m ea ls , use the lat rine, or even to lie down to sleep. At a certain point thetense stand-off erupted 'into a full-fledged massacre as R A troops, in full viewofUN peacekeepers and international humanitarian relief organizations, killed atleast hundreds and probably thousands of people. The Kibeho massacre demon-strates the failure of "humanitarian intervention" in the country of or igin in l ieuof asylum beyond the country's borders, particularly when 'safe areas" were notestablished as genuine lases of neutrality, but rather served political objectivesof both the quasi-imperial pO'WeTS and local players.In the Great Lakes, however, safe ty was not assured for about two mill ionRwandese refugees who crossed the borde-rs,of Rwanda into zaire, Tanzania,Burundi, and Uganda. Pormer soldiers and militiamen who had been responsiblefor the genocide inRwanda controlled the refugee c amps in eastern Zaire, whereabout 1 .4 million refugees initially congregated, and they showed every sign ofintending to regroup and counterattack the RPA. Tens of thousands died at theoutset from dysentery, cholera, and other diseases. The situation in the summerand fall of 1 9 94 , particularly in Goma, was extremely dangerous and chaotic.From the outset of the crisis, UNHCR pushed for repatriation of the refugees.This reflec ted both a sense that asylum in Zaire, in part icular , and the otherneighboring countries was not a viable eption and that the new governmentestablished in Kigali in July 1994 would ensure the safe return. of refugees.

That was not tobe the case, however. UNHCR sponsored an investigation bya highly respected American refugee expert, Robert Gersony, to assess condi-tions for repatriation ill Rwanda in the summer of 1 9 94 . Gersony and his teaminterviewed returnee-s throughout Rwanda, as well as refugees in Zaire, Burundi,and Tanzania. Gersony found evidence of large-scale indiscriminate killings inthe spring and summer both during and after the expulsion of the former gov-ernment and militia-soUNHCR offices also reported asystematic pattern of ar-rests and disappearances of refugees and returnees (Ogata, 2005) .

Despite a suspension of returns after the release of the Gersony report inSeptember 1 9 9 4, U NHCR remained committed to repatriation as the solution tothe crisis. The High Commissioner at the time, Sadako Ogata, wrote in hermemoir:

M y p o si ti on f rom t he very beginning wa s t o f a vo r an early.return of the refugees.Given the massiveness of the outflow, the camps could net be viable for long,andI wasin search of early solurions. The fact that I supported the Gerscny mis-sion attests to my readiness for early preparation. The suspension [of returns inlate September 1994] resulting from Gersony's report was clearly a setback forthe retorn of refugees. 1 .optedto continue thesearch for solutions. In December,a s we noted t he s ig n s o f ' im p rove rn en r of s ec u ri ty i n Rwanda, we lilted the sus-pension and en tered a phase o f fa cil ita tion o f those who volun tee red to re tu rn .(Ogata, 2005)


8/14

44 BiB Pre li ek

The fixation au a quick-repatr ia tion approach, even in the face of credib leand compelling evidence of serious human rights abuses directed a t r e tu rnees ,indicates not only the desperate sense of danger in Zaire and the incapacity ofthe international community to protect and assist refugees there, but also an al-most ideological commitment on the part of the High Commissioner to thesource-country solution.The situation in Zaire became increasingly dangerous. Former soldiers andmilitiamen threatened 'and intimidated refugees and intematienal humanitarianworkers . Medecins sans Frontieres-France, CARE International, an d others.pulled out, saying that the humanitarian character of the refugee camps had beencompromised by armed elements, As the new Rwandan government cal led forthe return of refugees , the neighboring s tates were also preoccupied with theburgeoning instabili ty and violence. UNHCR, faced with an International com-munity unwilling to provide international forces to provide security in thecamps , offered to pay for Zairean t roops sent by s trongman, Mobutu Sese Sekoto pol ice them. Backed by the new Tu rsi -domina ted governmen t in Rwanda, an dassisted by toops from Rwanda and its ally Uganda, Zairean rebels, the Alliance? f Democratic Forees for the, Liberation of Congo (AFDL), swept through ZaireU 1 November 1,996, forcing many refugees back into Rwanda, smashing campsin Zaire's Kivu region, massacr ing thousands , and scatter ing refugees, armedRwandan Hutus , and the Zairean pol ice forces deeper into Zaire (Rieff, 20P2;Ogata, 2005).As a consequence of perceptions that Rwandan refugees in neighboringcountries would be the cause of instabili ty and that Rwanda itself wa s relativelyquiet, UNHCR and other key actors in the international community acquiescedwhen the governments of Zaire, Burundi, and Tanzania forcibly.repatriated hun-dreds of thousands of Rwandese refugees in August J995 (from Zaire), July andAugust 1996 (l.ibout75,000 refuges from Burundi), November 1996 (more-than500,000 f rom Zaire), and December 1996 (about 500,000 refugees f rom Tanza-nia) (Amnesty International, 2.004),Rwanda deserves i ts place among the international communi ty 's ad hoc ex-periments with quick solutions to refugee problems both because of OperationTurquoise, as well as the inrematicnal humanitarian community's willingness tocount~nanee coerced repatr ia tion relativelyshortly after one of the his tory'smost mtense genocides (an estimated 800,000 people killed in a span of nineweeks). The acquiescence of l)NHCR. and others was based, at least in part , onan assessment that condit ions inside Rwanda were safer than they were in coun-tries of asylum, particularly eastern Zaire, and that refugees were net able tomake informed choices regarding repatriat ion because 'of the control , intimida-tion, and disinformation to which they were subjected by the militant groups thatcontrolled thecamps.

The international response to the Rwandan refugee emergency shows an in-temationalcomrnunity unable or unwilling to provide the resources (including

45Paradigm Shifts in the International Responses to Refugeesinternational military forces) to' maintain safe asylum outside the source country,but wil ling to give the benefi t of the doubt to tbe governm~nt of the h~D1eco~-try, despite i t c lear ly being.a party to the conflict and having a quest ionable re-cord with respect to the treatment of returnees.

Paradigm 3: Security and the Twenty-First CenturyThe "War on Terror ism" that has dominated international relatio~s in~e firstdecade of the twenty-first century represents the third ~aJor .paradlgm smce theestablishment of the modem international refugee regime 1~ t l~e aftermath ofWorld War two. It represents a significant erosion in the principles of~refugee-protection, particularly the r!ght to s~ek and e:njoy asy~um from persecution, anda diminished interest in 'finding S0fUtlOllS to refugee pltght. ,The security model that came to the fore in the 2000s wa~fo~eshadowed 10the 1990s. In the United States, two major pieces of 1egls1a1l.on that wereadopted in 1996, the Anti- Ter:i'orisn1.'~d Effective ?e.a~h Penalty Act CAE!JP~~and OleIDegal1mmigtation and lnim1grant ResponSibility Aet (IIRlRA)' slg~~eantly restricted a cc ess to th e asylum system. in the name of bo]sterin& security,an d were prompted In significant measure by the first terror attack o n th e WorldTrade Center in 1993 (Schrag, 1999). . .,.Writing in 1 9 95 , T . Alexander Alein ikoff noted the pa[adl~ ~hi ft then oc -curring , but pr-edicted that what he called the "source cont t:0l nught?~ mo~eabout containment than 'about tru ly altering the human rights condi1l.0DS,Ulsource countr i~s at the root of refugee f lows. Without predie~n? t~e comingcOllnter-terrorisrn-fueled backlash. he nevertheless sa",: the rcstClC'tiomst tenden-cies that would come to characterize the security paradigm:

Rather than a paradigm shift. then, we ma y well be wi tness ing the troubling u~ eof a humani ta r i an d is c ou rs e t o m ; ls k a reaf f irmat ion of state-centerednes.s.T,hat IS,tl~eemphasis on repatriation and [oat causes will help developed states Justtfy thene......strategies adopted to "solve" their asyJu~ "crises;" yet de~ply entrenehedpractices of non in terv ent ion W i l l prevent senous me.asures to Improve humanrights situations in countries of orillin. Ifthis a n . a l Y S l s IS corr,ect, then, the stor~. ofchange is 001 about themelding of rcf~g~e law 1 1 1 1 0~luman fights la~, ra~,e.r, It ISthe exchange of an exil ic bias foi' PO.ltCICSof ~~ntalDl"tlent--detentlon of asylumseekers, v isa I cqu i- r emen ts , closing opportumtles:for .resettlement, push-backs,lind return. These pol icies are grounded less in a desire to breach the walls ofs ta te sove re ignty than in an a ttempt to keep thi rd world re fugee problems fr ominconveniencing the developed states. (Aleinikoff, 1995)IfUN SecurltyCouncil resolution 688 in 1991 characterized ~he~rospect of

a "massive flow of refugees toward and across international front~ers. from Iraqas a threat to international peace and security, then the chara~tenzatlOn of r~fu-gees as possible security threats accelerated with the terronsm preoccupatIOn.


9/14

46 Bill FrelickRefugees were to be feared not simply because thei r numbers and needs mightbe overwhelming, but a lso because ter ro rists, c riminals, or other malevolentactors might be hiding among them. Another often articulated view was thatpeople purporting to be refugees might actually be-making fraudulent Claims inorder to evade immigration controls, or, at the least, that they were "ji.lmping 'thequeue" of an orderly system that, i n f a ct , did not reafly exist for admitting theoveJwbelming majority of refugees. As barriers to inegularintemationaI migra-t io n b ec am e ever more formidable., refugees and a s yl um s ee ke r s turnedincreas-ingty to smugglers and traffickers to evade migration controls. Consequently,refugees and asylum seekersweie sometimes conflated in the popular imagina-t ion with the smugglers and traf fickers as cohor ts in cnminal enterp rises, In ad-dition, popular . se rr ti me nr i ll many host countries of ten came to regard the refu-gees l iving among them' as culturally or politically incompatible with the hostsociety. These factors have resulted ill a xenophobic backlash in which sympa-thy for the pl ight o f refugees has often been superseded by mist rust and pre ju-dice,

The most obvious sign of this paradigm shUt hasbeen the waning of thegranting of asylum in Western industrialized countries. UNHCR reports that thenumber of asylum requests in 50 indUStrialized countries. fell by 22 percent,f rom 5 .0 8, I 0 0 in 2 00 3 to 3 96 ,4 00 rn 2004jand that asylum applieations havedropped by 40 percent'since 1991 ( UNIiCR , 2 0 05 ) .1 0 Germany, on ee i li e lead-ing asylum r~ceiving state in Europe, ' the number of asylum applications filed in2004 was the lowest since 1984. The drop was particularly marked for the indus-trialized states outside Europe. Canada and the Dnited States received 48 percentfewer asylum requests j 1 1 20 0 4 t ha n in 2001, an d asylum requests fell by 74 per-cent inAustralia and New Zealan_d(UNHCR, 2005).

The terrorist th reat has lead to a major devaluing oirefugees. During theCold War-reign of the' exilic paradigm; -refugees were v alU ed a s people who"voted witll their feet," as proof of the bankruptcy of communism and of thetenacious will for freedom. DUring the 1990s source-Cowltry paradigm, refugeesWere;generallyseem sympathetically as victims of wa r and human rights abuse,and, more strategieaIly, Were valued as providing a rationale for the intematicmalcommunlty to chlltlJ!'nge the sovereignty of despots, ancl,in some cases, to de-pose them.. The W ar on T erro r, how ever , paints a more ambiguous military and politicalpicture. Terrorist cells, while they may enjoy the SUpport of certain reguesrates,are hidden and seeretive, their organizational structure varied and-ad boc. Unlikethe ethnic cleansers of the -aalkaris.or the Great Lakes; terrorists are not seen asbeing particularly inteLcstedin displacing civilian populations, largely becausethey have no renitorial objectives. On the other hand refugee camps are per-ceived as breeding grounds for terrorists, as well as the locations where they canhide and hatch their plots.ln reality, if al-Qaeda ca n be used as an example, te r-rorists generally do not come f rom destitute backgrounds and have not person-ally lived lives of misery ( 9 /11 Report, 2004).

Paradigm Shifts in the International Responses to Refugees. . fu are devalued to the point where pro-Under the secunty paradigm, re ideso try solutions are trumped by. . to provl e source-counviding asylum or mterve~lllg As with the previous paradigms, these are notthe desire to. keep t~rronsts out.. itions but rather represent generalformalized mternatIOnal-~ommu~lty :os t~ That being said, the author

trends, for which there ~111 ce:t~mly e e:~efu:~s'stems of Western industrial-suggests four examples, m addlhondt? the y d toYbeoperating in the fi rs t hal f. d countries where the new para 19m seeme ..~zfethe2000s: Chechnya, Afghanistan, Iraq, Colombia and Halh.

47

Chechnya (1999-2004): Displaced and Off-limitshn . 1999 (for the second time in theNeither the outbreak of war in Checd y: m ted people it created, registereddecade), nor t~e ~undred~ of thousan ~itO':1~~anitarian response radar screen.more than a blip mternaho~al commu y. ce included five main elements: (1)The factors tha t have conspired for such sllet~II ge old ethnic conf lict be tweenid I h ld vi that this was an essen ta ya - .the WI eye v~ew 11 bl tr ib I people' (2 ) deference accorded RUSSIa,Russians and a wild, uncontro .a e .1 .a. . 'area considered within its he-

the erstwhile .supeLpower, for ItS.a~~i:~~~e;~~:~ceived interference wit~ its in-gemony, particularly when RUSSIa . t tional humanitarian commumty of aternal affairs; (3) a perception by t~e l::er;a of international humanitarian work-lack of leverage; (4) concern ~or t e s ~ (5) the stigma attaching to the Che-ers in Chechnya and surrounding area~, anchens themselves as terroris~s o~terronst support::\ound in Chechnya has been

The international humamtanan p~esencelon t dg of six International Com-. t si the execution-sty e mur ers 1al~ost non-existen smce . 1996. When the few other internationarmttee of the Red ~ro~s delegates m HCR and Medecins sans Frontieres ven-humanitarian orgamzations, such as UN h. .d rkers were kidnapped, caus-tured in to Chechnya and n.ear?y areas, ~ e lr; :ga :~at ion of Secur ity and Coop-ing these and other organizations, sue aseration i~ Europe (OSCE) monitors, ~o:u11 o~:rian organizations at arms length

Rus.sia has also. ke.pt internatlO~a : t : a a ; and using its power as a perma.nentby closing down mISSIOnS~bstruCh~~o render UN agencies, in particular, mef-member of the UN Secunty Counci ise it t power the threat of a vetoith tu 11 having to exercise 1s ve 0, .fective. WI out ac a Y it C neil as a forum for addressmgalone has been suf ficient to silent the se~ur~ y ~~ Council au thor izat ion of ef -human rights in Chec~y~, ah~ to s~ynu~ ti ecur::the aftermath of 9/11, humanfor ts to prov~de .humamtanan aid to~s ~~s:~dminist rat ion tempered i ts priorrights organizations obsen:ed that t e . h . Iions in Chechnya. This wasmodest criticisms of RUSSian human fIg. ts VIOa I found allies in the War ond U S d ference to the RUSSians as new hinteLprete as .. e. I. n of the Chechens less as victims wort yTerror, and a new Amencan eva uatio f t rism or harborers of terroristsof sympathy and more as perpetrators 0 erro(HRW, 2002).

,


10/14

, . .48 Bill Frelick

At the $.8th ses~ion of the UN Human. Rights Commission, in March-April2 00 2, t he fIrst meet in g a f te r 9 1 ' 1 1 ,1 : 1esolution tha t called en Russia to invite UNmo?jt~rs t~ investigate hum an r ig h ts v io i at io n s in Russia was narrowly defeated,an 'indication that pressure on Russia by the international community regardinghuman rights violations had eased.

Djsp~aced ~hec?e~s were poorlyassisted, an d evenmore poorly protected.Those displaced ~~lln. Chechnya itself, particularly the residents of 'Grozny,~ere reduced to l iving ill rubble with no prospects fo r income genera tion andlittle available humanitarian assistance. Th e more than 1 00 0 00 who f led intoneighboring Ingushetia were under a lmost constant pressure ~by the Russians toreturn ~~~echnya. D i sp la c e d p e rs ons living intent c amps were harassed, foodan~ ut ili ties cut .o ff , and the carnpsclosed. The interna tional communi ty re-I~amed ~argel 51.1ent:No one frem the international community attempted a:llYkind of intervention tn th e region of origin to address th e causes of th e forceddisplacement; a sy lum f or C h ec h en s was no t forthcoming (there were no reset-tlement programs for Chechen refugees), and th e forced return of Chechensfrom Ingnshetia happened i n t he absence of effecti ve international mouitnnng.

Afghanistan (2001-2004): Stigmatized RefugeesAt. the tim e o f the 9/1 '1 attacks, more than four mill ion Afghan refugees wereestlmat~d . to b e l iv iJ j~ in Pakis tan and Iran a n d a no th er m il li on as being dis-placed inside Afghanis tan (USeR 20 02 ). M a ny h ad been stuck in exile since theSoviet intervention In 1979 . Through two decades of misery they had been pre-vented f ~ om r e tu r n by a~l lcce~sio~ of wars, droughts , tribal infighting; an dC9mml1?lst, warlord, or Talibaa-inspired persecution and intolerance,Du ri ng t he Cold Wa r , the West valued th e r efu ge es in P ak ist an a s "warrior-refugees Who would wage a proxy war against the Soviet Union. At th e time,refu~ees were often regarded as chips to be played by the superpowers and theirproxies as par t o f strategies to destabi lize the enemy, and humani tar ian princ i-ples of neutrality were often ignored in the precess (Loescher, 1993 ) .. DLU'~ngthe experimental period of the 19905 , Afghanistan remained off theinternational r adar screen, as an essentially static back-water of little interest oroo~cem. But its very obscurity pushed it to center stage following the 9111 at-tac~. MaIl~ ~f the al-Qaeda terrorists, including Osama Bi n Laden, tracked theirpolit~~al ong~ls to pa.rticipation with the Afghan Mujaludeen waging guerrillawar-jihad against Soviet forces and their Afghan allies in the 1980s. DUring the19905 , al-Qaeda ~tJilt its b~ses in ~fghanistan With the support of the Talibanrule~s, and recrui ted ter ror is t candidates f rom among the Afghan refugees inPakistan who~e only opportt~nity for education was ill , the madrassas, privatelyfunded.Islamtc schools that Included a heavy dose of anti-Western indoctriaa-tion (9/11 Repor t, 2004) . . . .

49Paradigm Shifts in the International Responses to RefugeesAfter the 9/11 attacks, abou t 100,000 residents of K~bul .fled the capi ta l,

feari US attack When the bombs actua lly. s ta :rted falhng in October 2001,earmg a ..' . - . hthe movement of panicked civilians towards the borders accelerated. ~ ~ ex-pected new mass influx of t efi_ tgees into Pakistan ~nd Iran ne~er matena~lzed,however. Many Afghans, particularly among the Internally displaced, SImplylacked the means to leave; others h a vi ng l iv ed through decades o f w ar and dep-rivation calculated that their chances were no worse staying put. Bu t anotherfac tor was the increased resistance of neighbor ing Pakistan and I ran to a newinflux of refugees. Pakistan and Iran, which had kept their borders ope.n to refu-ees through two decades of war, famine, and persecution, ~losed their bor~ers~owould-be refugees (although in Pakistan's case the official, but not particu-lady effective, closing of the border occurred eadie~ in .the y~ar). "Unlike 1991, the United States did not work With Its alhes to create a safezone" a long either border or in any enclave where internat ional mili tary forceswould feed and protect civilians. On the contrary, military meals-r~ady-to-eat(MREs) were dropped out of planes just as o ther planes were droppmg bombs(and, in an ironic twist , were sometimes indist ingu ishab l~ to the people on theground since the yellow plastic MREs looked very much hke cluster bombs).

Th~se resourceful refugees who were able to pay smugglers to eva~e bordercontrols were trea ted as non-people by the author ities of the respective coun-tr ies . Local authori ties interfered with UNHCR attempts to register or a. ss is tthem, and resis ted construct ing new refugee camps or admit ting new arnvalsinto the old camps. Most of the refugees who did manage to cross ~ border re-mained with family or f riends, or rented space f rom strangers , but in any c~~ewere hidden. The relatively few who managed to enter camps, such as Jalozai inPakistan, were left to fend for themselves, building their own makeshift shelterswith sticks and scraps. Iran set up two camps, Makaki and Mile 46, on the Af-ghan side of its border where some assis tance was provided, but where safe tywas not at all assured: In fact, armed Afghan elements were present in andaround the camps, and fighting at one point broke out between pro- and anti-Taliban fact ions within the Makak i camp. Iran no t only pushed back would-berefugees at the border, but used the cover of war to forcibly repatriate t~~s ofthousands of Afghans who had been l iving in Iran f rom before the U.S. mili ta rycampaign. . .While the U.S. government craf ted a "humani tarian" strategy mSIde .Af-ghanistan hand-in-hand with its military strategy, it remained ess~ntJally SIlenton the refugee issue and the closing of borders to Afghans s.eekmg to escap.e(Rieff, 2002). Its main preoccupation was to catch Osama Bin Laden a~d hIScohorts and to prevent their escape across Afghanistan 's border~. The s~almg ofthe borders by Afghan istan' s ne ighbors , therefore , Was cons:s te .nt wi th U.S.military objectives, notwithstanding long enshrined refugee principles that barthe repulsing of refugees to. a place where their lives or freedom would bethreatened (UNHCR Convention, 1951).


11/14

50 Bill Frelickr,he low regard for refugees cont inued in the years fol lowing the 2001 mili -

tary intervention. Although UNHeR repor ted in early 2005 that more than threemillion Afghan refugees had repatriated, it also reported that more than two mil-lion r ~m a in ed i n Pakistan a nd Iran (UNHCR, 2005). Tolerance for A fg ha n r ef u-gee~ ID Iran and Pak istan bad. long since abated, and many returnees reportedhaving be~n harassed and coerced to leave (AI, 2003). Despite ongoing securityproblems Inm~ny areas of Afghan istan, cont inuing human rights abuses, dis-cnmmation against women and minorities, and localized factional fighting, Ai-ghan asylum seekers in the West were fewer in number (an 83 percent decreaseInasyl~m applications filed from 2001 t02004-UNHCR, 2005) arid founddecreasing receptivity totheir claims (AI 2003).. While Afghanistan in the early 2000s arguably continued the 1990s para-

dlgm.of ~ source-country solution, the difference was that refugees were ha rdlya factor III the international community 's calculations other than as possiblecover for al-Qaeda members to escape the country. There wa s virtually no sup-port from any of the involved governments , local or Western, to promote theright ~f r~fugees to cross borders fa seek asylum or to provide real protection ferthem inside Afghanistan. A significant humanitarian. assistance operation diddevel~p in the c?un~y hand in.hand with militarized pacification operations, but~e pnmary. m~tJvatJon for the intervention was security, even ifit did have posi-tive humanitarian consequences and ultimately led to millions of Afghans beingable to return home during the next several years.

Iraq 2003-2004: Mistrusted Refugees~ile I raq in 1991 ep itomized the source-country solut ion paradigm, the inter-na tional commumty's engagement in I raq in 2003-2004 showed securi ty con-cerns t rumping humani tarian considerat ions, and refugees and interna lly d is-placed persons being ignored at best, and rejected at worst as possible securi tythreats.

Unl ike the aftermath of the 1991 Persian Gulf War when Saddam Hussein~~~hed the Kurdish and Shi 'a upr is ings and caused a massive refugee flow, theini tia l phase of the U.S.-led invasion and occupation in spr ing 2003 producedhm:dly any refugees; and was generally seen by Iraqis who bad suffered decadesof internal and external dlsplacementasan opportunity to go home. Initially, theU.S.-led Coalition Provisional Authority (CPA) negotiated with the InternationalOrganization for Migration (JOM) to work on plans for the IDP returns. Butalmost immediately, both the civilian leaders of the CPA and their militarycounterparts actively discouraged both IDP and refugee returns as potentiallydestabilizing factors.

Instability in I raq would go well beyond migratory pressures , however , andby late 2003 TO M had to shelve its plans and the NOOs had to leave for theirown safety. Despi te I raq being on the news every night , and the presence of pos-

Paradigm Shifts in the International Responses to Refugees 51sibly hundreds of thousands of repatriating refugees from Iran and of h~ndredsof thousands of internally displaced persons (including people freshly displacedas a result of military operations), UNHCR's repeated requests to internationaldonors to fund i ts humani tar ian operat ions in Iraq were a lmost completely ig-nored (UNHCR, 2004).

The most significant refugee out-migration was surreptitious, and almost bymutual consent of the refugees themselves and the part ies to the conf lict , wasignored. Some 250,000 I raqis fled to Jordan where they remained under more orless benign neglec t as an undocumented and ignored populat ion unt il the No-vember 2005 hotel bombings, at which point Jordanian authorities began crack-ing down on Iraqis without documents and the situa tion for Iraqis a ttempting toflee the war became increasingly precarious. More than 500,000 also Iraqis fledinto Syr ia from the time of the U.S.-led invasion through the end of2005 (Refu-gees International, 2005). They were not registered by the Syrian government,not assisted by UNHCR, and not acknowledged by the United States or othergovernments. They did not live in collective centers; their existence was almostentirely ignored. At various times, U.S.-led forces tried to block the border withSyria, and to pressure the Syr ians to t igh ten the ir own border , both to block theescape of Ba'a thist leaders as well as to preven t the inf il tra tion of insurgen ts(Wilson, 2005). But the international community studiously ignored the humani-tarian dimension of the problem in either Jordan or Syria.

Prior to 9 /11 , the Uni ted Sta tes had engaged in several I raqi refugee reset -tlement initiatives, including the evacuation of Iraqis from northern Iraq follow-ing the incursion into the autonomous region by government forces in Septem-ber 1996, the reset tlement of predominan tly Shi 'a I raqis from the Rafha camp inSaudi Arabia during the 1990s, as wel l as reset tlement of Iraqi refugees in Tur-key and elsewhere in the region.

That ended abruptly on September 11, 2001, however. Refugees who hadbeen accep ted for U.S. rese tt lement were l itera lly stopped on the tarmac, and amoratorium on all refugee admissions worldwide was imposed. Although refu-gee reset tlement even tual ly resumed for other nat ional it ies, albe it with fewernumbers admitted and under much greater scrutiny than before, the moratoriumremained in p lace for Iraqi refugees without regard to thei r individual c ircum-stances. By the end of 2004, Iraqi refugee rese tt lement to the Uni ted States hadno t resumed, the refugees accep ted for admission before September 11, 200 Iremained in limbo, and no new interviews were scheduled.At the same t ime, as the insurgency grew in strength and as the sec tar ian di-visions within Iraq deepened, increasing members of Iraqi religious minoritiesand people accused of collaborating with the U.S.-led occupation began fleeing,or attempting to flee, Iraq (UNHCR, 2004). The United States, and the rest ofthe West , ignored this. Like ly factors inc luded an unwil lingness on the par t ofthe United Sta tes and o ther members of the coal it ion to provide refuge for peo-ple f lee ing Iraq at the same t ime that they were send ing their own soldiers there


12/14

52 Bill Frelickto f ight and die, and a basic dist rust of the refugees as being securi ty threa ts at atime of war with their home country.

On March 17 ,2003 , the same evening that President George W. Bush deliv-ered his 48-hour ultimatum to Saddam Hussein and his sons to leave Iraq, Secre-tary of Homeland Secur ity Tom Ridge announced Operat ion Liberty Shield,under which asylum seekers f rom Iraq and 32 other unnamed countries "whereal Qaeda , al -Qaeda sympathizers , and other terrorist groups are known to haveopera ted" were to be subjec ted to mandatory detent ion for the durat ion of the irasylum procedures . The Department of Homeland Secur ity said tha t about 60percen t of the people from the designated Opera tion Liber ty Shield countrieswere Ir~qis. The obvious irony was that a war that was purportedly being fought,at least IIIpart , to secure the l iberty of Iraqis, would resul t in the fi rs t instance inthe depriva tion of l iberty for those flee ing I raq to seek asylum, and that the im-pl ic it purpose of the "shield" was to deter I raqis (and o thers f leeing predomi-nantly Muslim countries) from seeking asylum in the United States.

Enhanced security measures made it far more difficult to travel intemation-a lly to seek asylum after 9/11 , part icularly f rom the Middle East and predomi-nant ly Muslim countries . The number of I raqi asylum seekers in the West de-creased by 80 percen t from 2001 to 2004 (UNHCR, 2005). Given the levels offear, violence, and uncertainty within Iraq, it is certainly reasonable to speculatethat the war in Iraq would have produced significantly more refugees if they hadhad a way of escaping the country, but, in fact, enhanced security measures pre-cluded the opt ion of seeking asylum both because of the diff icul ty of crossingIraq' s borders and because of securi ty-imposed obstacles on onward intema-tional travel.

Colombia: War on Terror Undercuts Asylum ClaimsAsylum seekers and refugees from Colombia, a predominantly Christian countryin South Amer ica , might not a t fi rs t glance appear to have been touched by theW~r on Terror. But , severa l of the armed groups opera ting there , including theUmted Self-Defense Forces of Colombia (AUC), the Revolut ionary ArmedFor~es of Colombia (FARC), and the Nat ional Libera tion Army (ELN), weredesignated by the U.S. State Department as "foreign terrorist organizations."The AUC, ~ARC, and ELN perv~ded nearly al l aspects of Colombian l ife ,and were a major reason why at the time of the 9/11 attacks Colombia had thesecond largest number of internal ly displaced persons in the world, about twomillion. However refugees attempting to flee the country and seek asylum in theUnited States found themselves being denied asylum precisely because a desig-nated terrorist group had persecuted them.. The Ant i-Ter rorism and Effec tive Death Penal ty Act (AEDPA) of 1996, sec-tions 302 and 303, codified at 18 USC 2339B and 8 US.c. 1189, made it acr ime punishab le for up to li fe imprisonment for a person to provide "mater ial

Paradigm Shifts in the International Responses to Refugees 5 3support" to a designated terrorist organization. The I~gration and ~ationalityAct was amended to include as a ground for exclusion from the Umted Statesengagement in "ter ror is t act ivi ty," defined to inc lude "providing any. type ofmaterial support . .. to any individual the actor knows or has reason to beheve hascommitted or plans to commit a terrorist activity" (INA 212(a)(B)(iii)(III)).

UNHCR estimated that at least 70 percent of Colombian refugees referred tothe Uni ted States for reset tlement had been forced by the FARC or other desig-nated foreign terrorist organization to pay "taxes" or other types of coercedpayment . But the U.S. law made no expl ici t a llowance for a waiver of the mate-rial support provision for people who are forced to give terrorists food, shelter ,or money. The reality in Colombia, however, was that the AUC, FARC, andELN placed civilians under severe duress, which often included threats of harm,torture, or death to oneself or a loved one, to make such payments.

Because they decide refugee status within the context of U.S. law, both im-migration judges within the United States and U.S. immigration officials inLatin America considering UNHCR's referral of refugees for US. admissionbegan denying or deferring these cases. For many Colombian refugees and asy-lum seekers, therefore, the basis of their refugee claim-coercion to pay "taxes"to one of these groups on the l is t of fore ign terrorist organizat ions or else riskpossible death-was the very same act tha t rendered them ineligible for asylumor refugee admission to the Uni ted States . Al though Colombians were the fi rs tnationality group to face the "material support" bar, asylum seekers and refugeesfrom Burma and elsewhere soon began fac ing the same obstacle (Refugees In -ternational, 2005).

Haitian Refugees (2004): Barred on National Security GroundsHaitian refugees have been discussed earl ier as an example of the 1990s sourcecountry approach. In one of the many ironies discussed in this chapter, the par~-digm shift to the securi ty model revolved in part around the same figure : PreSI-dent Jean Ber trand Ar istide, who was restored to power in 1994 through a U.S.-led international intervention and deposed ten years later with U.S. involvementas well.

During the crisis of the mid-1990s, the United States tried several differentapproaches with respect to Haitian boat people, settling fmally on the safe havenat Guantanamo Bay, Cuba. In late February 2004, when pol itical violence andlawlessness were sweeping Haiti in the days leading to Aristide's forced depar-ture , President Bush declared, "I have made it abundant ly clear to the CoastGuard tha t we will turn back any refugee tha t a ttempts to reach our shore ." Heordered stepped-up Coast Guard patrols of f the coast of Hai ti and directed theCoast Guard to re tu rn f lee ing refugees. Dur ing the last weekend in February,905 Hai tians took to the sea, were in tercepted by US. Coast Guard cut ter s, andeveryone was summarily returned to Haiti.


13/14

54 Bill FrelickThe 905 were dumped on the Haitian Coast Guard dock at Port -au-Prince ,

some in shackles , and had to be escorted at gunpoint through a taunt ing crowd(Associated Press, 2004). No one knew at the t ime what governmental (or non-governmental ) author ity was functioning at that locat ion during the weekendwhen the Haitian president was forced f rom office and removed from the coun-t ry. No one from the US embassy met the Haitians as they were disembarked.No one f rom UNHCR was present . No one from the Hai ti 's Nat ional Migrat ionOffice was present.

President Bush made no pretext of protecting refugees. In fact, his statementflouted the principles that follow from his use of the word "refugee" itself, aterm with a prec ise legal defini tion tha t carries with i t an obl igat ion on the par tof sta tes to offer protec tion. Bush's unyielding stance undoubtedly deter redmany would be refugees from attempting the dangerous boat journey, and,unlike the crisis of the mid-1990s, Haiti produced virtually no refugees in 2004,despite evidence of widespread human rights abuses inside the country.Even before the events of 2004, the Bush Administra tion had acted to makesure that any Hait ians that evaded interdict ion and landed in the United Sta teswould be subjected to automatic detention. In October 2002 a wooden boatfi lled with Hai tians had succeeded in evading the normal Coast Guard cont in-gents and landing in Key Biscayne, Florida . An immigrat ion judge ruled that ateenager on the boat, David Joseph, should be re leased to his uncle, a legal resi-dent living in Brooklyn, N.Y., who was willing to post a $2,500 bond. The judgefound that David posed no threat if released. Finding his asylum claim to becredible, the judge said he was unlikely to abscond. The government appealed,but the Board of Immigration Appeals affirmed the judge's ruling to releaseDavid. It found that the judge correc tly appl ied the rules regarding release onbond to avoid unnecessary, prolonged detention.

Then, in Apr il 2003, At torney Genera l John Ashcroft stepped in. Cit ing hisdecision regarding David as a preceden t rul ing, he ruled that a ll Hai tian boatarriva ls should be ja iled. He invoked "nat ional securi ty" as his ra tionale, notbecause David Joseph himself ever harmed or threatened anyone, but in orderthat a surge of other boat people f rom Haiti would not " injure nat ional securi tyby diverting valuable Coast Guard and DOD [Department of Defense] resourcesfrom [their] counter-terrorism and homeland security responsibilities" (Benesch,2003) . Consequent ly, even for Hait ian refugees, coming f rom a nat ionali tygroup that had no involvement with terror ism whatsoever, ei ther as vict ims orperpetrators, U.S. policy makers invoked national security and counter-terrorismto deter their quest for safety and freedom.

ConclusionThe securi ty paradigm of the 2000s has fort ified physical barr iers a t borders,tightened travel restrictions, and crea ted new legal defini tions tha t preclude

55Paradigm Shifts in the International Responses to Refugeesfugees and would-be refugees from ever being considered for protect ion, in-re . d .side or outside the ir countries of or igin. The interna tional comrnumty, omi-nated more than ever by the Uni ted States, mayor may not intervene to change

the governments of the countries that produce refugees. But its doing so is moti-vated overwhelmingly by national security concerns, and the consequences forrefugees, positive or negative, is a distant afterthought.

) ReferencesAleinikoff, T. Alexander (1995). State-centered Refugee Law: From Resettlement toContainment. In E. Valentine Daniel and John Chr. Knudsen (Eds.), Mistrusting

Refugees (257-271). Berkeley: University of California Press.Amnesty International (2003). Afghanistan: Out of Sight, Out of Mind: The Fate of Af-ghanReturnees. AI Index: ASA 11/014/2003, June 2003. .Amnesty International (2004). Rwanda: Protecting Their Rights: Rwandese Refugees Inthe Great Lakes Region. AI Index: AFR47/016/2004, December 15,2004.Associated Press (2004). Coast Guard Patrols Increase, March 8, 2004.Benesch, Susan (2003). Haitians Trapped by 'War on Terrorism,' Amnesty Now, Volume29, Number 3, Fa112003,p. 13.Bronec, S.A. (1993). The History of the Comprehensive Plan of Action. InternationalJournal ofRefugee Law, 5(4), pp. 534-535, 574-575.Coles, G. (1989). Approaching the refugee problem today. In G. Loescher and L.Monahan (Eds.),Refugees and International Relations (pp. 387-93,403-4). Oxford,UK: Clarendon.Eagleburger, Lawrence, S. Intervention, London Conference, Queen Elizabeth II Confer-enceCenter, London, August 26, 1992.Frelick, B. (1992). Preventive Protection and the Right to Seek Asylum: A preliminarylook at Bosnia and Croatia. International Journal of Refugee Law. 4(4), pp. 439-454.Frelick, B. (1993). Preventing Refugee Flows: Protection orPeril? In, V. Hamilton (Ed.),World Refugee Survey (pp.5-13).Washington, DC: USeR.Frelick, B. (1995). Special Issue: TheDeath March fromSrebrenica.Refugee Reports, 16(7).Human Rights Watch (2002). Russia: Displaced Chechens in Ingushetia Face Abuses,NewYork: HRW, September 23, 2003.

Loescher, Gil (1993). Beyond Charity: International Cooperation and the Global RefugeeCrisis. Oxford: Oxford University Press, pp. 88-89.McCalmon, B. (1994). Winding it up in Hong Kong: The Increasing Impatience withVietnamese Asylum Seekers. Georgetown Immigration Law Journal. 8, pp. 333-340.National Commission on Terrorist Attacks Upon the United States (2004). The 9111Commission Report. NewYork:W.W. Norton, pp. 55, 160-161,231-235.Newland, K. (1999).The Decade in Review. In V. Hamilton (Ed.), World Refugee Survey1999 (pp. 14-21).Washington, DC:USCR.


14/14

56 Bill FrelickOgata, Sadako (2005). The Turbulent Decade: Confronting the Refugee Crises of the1990s. New York: W.W. Norton.Refugees International (2005). Iraqi Refugees in Syria : Silent Exodus Leaves 500,000 in

Need of Protect ion and Aid. Refugees International Bulletin, November 15,2005.Refugees International (2005). Thailand: Complications in the Resettlement of Burmese

Refugees. Refugees International Bulletin, December 8, 2005.Rieff, David. (2002). A Bedfor theNight: Humanitarianism in Crisis. New York: Simon

and Schuster, Inc.Robinson, C. (1989). Sins of Omission: The New Vietnamese Refugee Crisis. In, V.Hamilton (Ed.), WorldRefugee Survey (p. 5). Washington, DC: USCR.Schrag, Phillip G. (1999). A Well-FoundedFear: The Congressional Battle to Save Po-litical Asylum inAmerica. New York: Routledge, 39-44.Uni ted Nat ions (1948). Universal Declara tion of Human Rights. Uni ted Nat ions General

Assembly Resolution 217A (III)Uni ted Nat ions (1951). Convent ion Relat ing to the Sta tus of Refugees. 189 U.N.T.S. 150.Uni ted Nat ions (1967). Protocol Relat ing to the Sta tus of Refugees. 19 U.S.T. 6223,606

U.N.T.S.267.Uni ted Nat ions High Commissione r fo r Re fugees (2005). Anothe r 1 Mil li on Afghan

Refugees Are Likely to Return Home by 2006. Geneva: UNHCR, February 17,2005.

Uni ted Nat ions High Commissioner for Refugees (2005). Asylum Levels and Trends inIndustr ia lized Countries, 2004. Populat ion and Data Uni tlPGDS, Division of Op-erational Support, Geneva: UNHCR. (Available at: http.z/www.unhcr.ch/statistics.

Uni ted Nati ons High Commiss ione r for Refugees (2004). Ir aq : Despi te Repea ted Re -quests, No Contr ibut ions Received This Year. Geneva: UNHCR, June 1,2004.

Uni ted Nat ions High Commissioner for Refugees (2004). UNHCR Return Advisory Re-garding Iraqi Asylum Seekers and Refugees. Geneva: UNHCR, October 22, 2004.

Uni ted Sta tes Government (1980). Immigra ti on and Na tionali ty Act 207. 8U.S.C. 1157).

U.S. Committee for Refugees (1992). World Refugee Survey 1992. Washington, DC:USCR.

U.S . Commit tee for Re fugees (1994). The Order ly Depar tu re Prog ram, FY 94 . RefugeeReports, 15 (12), p. 5.U.S. Committee for Refugees (1996). Indochinese refugee act ivity: Cumulat ive since

April 1975. Refugee Reports, 17 (12 ), p . 5 .U.S. Committee for Refugees (1996). Safe haven col lapses in northern Iraq: U.S. evacu-

ates 2,000. Refugee Reports, 17 (9) , p . 11.U.S. Commit tee for Refugees (1999). Regional Refugee Cei lings and Admissions to the

United States, FY 87-2000. RefugeeReports, 20 (12), p. 9.U.S. Committee for Refugees (2000). World Refugee Survey 2000. Washington, DC:USCR.U.S. Committee for Refugees (2001). World Refugee Survey 2001. Washington, DC:

USCR.U.S. Committee for Refugees (2002). World Refugee Survey 2002. Washington, DC:USCR.Wilson, Scott (2005). Iraqi Refugees Overwhelm Syria : Migrants Who Fled Violence Put

Stress on Housing Market, Schools, The Washington Post, February 3 , 2005, p .A18.

S ec tio n II: Human R ig hts Is su es a nd Con ce rn sChapter 3. Refugees' Human Right to Adequate Food

George KentChapter 4. The Role of Relief NGO's in Human Rights

and ProtectionRichard J. BrennanGerald Martone\

Chapter 5. Culture and Human RightsHarry Minas

Chapter 6. A Confucian Perspective on Human RightsWeiming Tu

Chapter 7. Institutionalizing Human Rights in the Militaries ofthe Emerging Democracies: The Case of PeruJeffrey F. Addicott
http://http.z/www.unhcr.ch/statistics.http://http.z/www.unhcr.ch/statistics.

“paradigm shifts in the international response to refugees,” bill frelick, fear of persecution: ...

Documents