Who Is A Refugee? : Part 2

We finally bring you the second installment of ‘Who Is A Refugee?’, our two-part review of a recent UCL debate, featuring esteemed refugee academics Professor Elsbeth Guild, Ahmad Al Rashid and Dr Phillip Cole.

In Part 1 the talk centered around defining refugeehood under the current UN convention, establishing its parameters, and discussing whether these parameters remain compatible with our contemporary geopolitical and environmental landscape. All speakers recognised the fact that the current EU migrant system is severely dysfunctional, and in its current form, is letting down thousands of people who have fled their native countries for legitimate reasons.

In the next phase the speakers consider solutions to protracted refugee situations, and balance the advantages and disadvantages of changing the basic UN Refugee Convention, or keeping it the same and creating adjacent conventions. The ethical problem of distinguishing different groups by their level of ‘need’ as defined by the outdated conditions of non-refoulement, and on that basis, awarding certain groups more rights and privileges than others, is also discussed, as well as the theoretical justifications for why all states have a shared interest in protecting refugees.

IMPORTANT REFERENCES

• Cartagena Refugee Declaration

• Convention against Torture

• Convention Against Enforced Disappearances

• Joseph Carens’ Theory of Responsibility

• Andrew Shacknove’s Refugee Definition

• African Union (AU) Refugee Definition

PHASE 4: THE NON-REFOULEMENT LOOPHOLE. Speakers discuss significant flaws in the UN Refugee Convention, and share suggestions for strategies and policies which would provide more security for refugees, including making countries such as Turkey officially ratify the convention, rather than rely on ad-hoc ‘soft-law’ solutions, which are not internationally recognised.

“How do you see the move of more conventions as improving the prospects for protection, over the option of trying to expand the definition of the refugee itself? Why should that be the better move in your view?”

Professor Guilds reiterates her earlier assertion that the Refugee Convention is sufficient, and that there are supplementary conventions being added to cater for more people at risk, citing the Convention against Torture and the Convention Against Enforced Disappearances. She adds that more countries need to ratify the convention, such as Turkey, which has not yet done so. Al Rashid returns to the immediate concerns of Syrian refugees, and other groups such as Palestinian and Kurdish people, who are all living in host territories. He explains that granting them citizenship to their new homes is problematic, particularly in dense refugee zones such as Lebanon, where the entire population is now 25% Syrian refugees. This of course is causing tensions with the native population, and a lot of political and religious unrest. Similarly in Turkey, where there is a current backlash by Turkish Nationalists, who are concerned that their ‘Turkish-ness’ is being compromised.

Dr Cole echoes Prof Guild by stating the need for further conventions to cover the internally and environmentally displaced. In relation to Al Rashid’s previous point about the ‘guest’ process in Turkey and other states, Dr Cole emphasises the need for these soft law systems to be made legally binding and internationally recognised. This would give these groups proper protection.

Dr Cole also highlights a fundamental flaw with the current persecution-based refugee definition: Non-refoulement protects a refugee from being returned to his or her country of origin where he or she could face persecution, BUT non-refoulement does not give them the right to escape that danger in the first place. In other words, refugees have the right to remain in a place of safety, but they have no right to freely access this place of safety. This results in individual states employing tactics which prevent refugees from crossing their borders and claiming non-refoulement. These tactics include, establishing physical barriers (such as border fences), human barriers (such as armed police along the Hungarian border, or coastal authorities patrolling the Mediterranean), and legislative barriers (such as European visa policies.)

“We know the global north is trying to stop people getting to safety because one of the problems with the convention is that you have the non-refoulement right not to be sent back to danger, but you don’t have the right to escape danger. The question of safe passage becomes absolutely crucial.”

Prof Guild agrees that there is a huge injustice with the current non-entry policies promoted by North America and Europe.

“If we want to think about responsible border controls in the international community then we have to think very carefully about what border controls should be. Responsible border controls are not those which create death at the border, or on the way to the border.”

PHASE 5: THE CAUSES OF THE REFUGEE MOVEMENT: WHO IS RESPONSIBLE? AND TO WHAT EXTENT? It is self-evident that some countries, for example, the U.S, have had more involvement in the destabilization of states than others; however, does this translate into more responsibility to the refugees they helped create? Whilst on face-value this is an attractive conversion method (more involvement=more responsibility), speakers explore why every state has an equal responsibility to help refugees.

Professor Guild asserts that one of the key components of being considered a sovereign state in the eyes of the international community, is to be able and willing to uphold refugee rights:

“Yes, we need strong states, but we also need states which are strong enough to stand up and to comply with the international obligations which they have undertaken. That must be seen as part of the responsibility of being a sovereign state in an international community. One of those obligations is to behave in a manner of solidarity towards refugees.“

Despite Guild’s encouraging words about international solidarity and shared responsibility, Al Rashid returns to the sobering facts; he speaks about the deep feelings of personal abandonment experienced by refugees all over the world, and the fact that none of them feel supported, or even know who is in charge, or how to communicate with them:

“If you go today and ask any Syrian person what the international community is doing, the first thing they would ask is, “Who is the international community? Who are they? Where are they? Where can I meet them!?””

Al-Rashid goes on to mention the unsettling, yet brutal truth, that dictators such as Assad in Syria, or Saddam Hussein in Iraq provided leadership and stability for their countries. Now that they are gone the whole country has been destabilized, and owing to lack of infrastructure and established institutions, and inadequate support from the international community, a vacuum has been created.

“When it comes to the international community, dealing with dictators, dealing with criminals, there are no alternatives. If the dictator goes it means that the whole structure will fall.. I believe the international community did not do enough to build institutions to ensure that when these dictators, these butchers leave, these countries could stand up.”

Al-Rashid also highlights the hypocrisy of Western States which condemn the violence and barbarism of conflict, but refuse to take in more refugees- particularly America and its recent ban on Muslims.

“When a province was attacked by a chemical weapons, we’ve seen Donald Trump talk about the “horrible deaths of little baby children in Syria, killed by criminals”. Two hour later, “We will not take in syrian refugees, not any refugees from seven muslim countries.” This contradiction is beyond imagination. It’s … its crazy. These are very scary times to be a refugee.”

Al-Rashid finishes by acknowledging the part Syrians themselves played in causing the conflict, and also condemns media giants and weapons companies for their cynical and money-motivated involvement in the crisis.

“Who to blame? First of all, I would blame ourselves, Syrians. We started it. But today we cannot stop it because it is not about us anymore. I do blame the media; I blame the conscious world that let this happen. I blame the weapon companies, the media giants who deceived us and stole our dream of just living as a human being. We’ve learnt but it was too late for us.”

Dr. Cole takes a more abstract approach to the question, citing Joseph Carens’ three-dimensional theory of responsibility, which provides three rationales for why independent states all have a responsibility to take in refugees: One is purely humanitarian, one is cause and responsibility, and the third, which Carens favours, is based upon a mutually beneficial interest in maintaining the international social contract. The latter, Dr Cole argues, is a much better framework for justifying responsibility as it shares the responsibility equally amongst all states. Of course, some would argue that this isn’t fair as certain states have been more instrumental in causing humanitarian crises than others, however, if we choose the ‘cause and effect’ model of responsibility, this would legitimize the non-involvement of many states (e.g Australia’s Operation Sovereign Borders policy).

“Refugees are created by the failure of the state system. If the states have an interest in that system working then all states have an equal responsibility to take refugees. So it’s an international responsibility to take them, wherever they come from.”

“The problem with the cause and responsibility argument, is that it’s tempting to aim it at a certain state. But then another state can say, “they’re not our problem, we did nothing, it’s their problem over there, we are not going to take them in”. So this is why people are cautious about that, although it has an attraction.”

Dr Cole goes on to explain that simply ‘taking in’ refugees is not sufficient; he outlines the UNHCR’s three main strategies for dealing with the current refugee camp gridlock (repatriation, integration, or resettlement), and mentions the staggering statistic that the average stay time for a protracted refugee case is 26 years.

“The UNHCR has three durable solutions to the refugee situation: One is repatriation, where refugees go home. The other is local integration, giving citizenship. The other is resettlement. If you look at the numbers in all of those, if you combine them all, probably less than 10% of refugees are moving through any of those systems.”

PHASE 6: DIVISIONS. The categorization of human beings into groups which ‘deserve’ the help of the international community, and groups which do not, is ethically dubious to say the least. The differing treatment received by refugees and non-refugees, and even refugee groups themselves, serves to highlight the seemingly arbitrary and severely limited nature of the current Refugee Definition. But should it ultimately be changed?

A quotation by Andrew E.Shacknove (provide link) (1985) introduces the relatively unexplored topic of refugee hierarchies within migrant camps.

“In a sense, being a refugee is a kind of privileged status when compared to lots of people who are on the move, or indeed not on the move, because they are stuck where they are. Many people would like to have the rights attached to the status of a refugee.”

Dr Cole discusses the binary opposition between refugee and non-refugee peoples, and the often unfair demonisation of economic migrants and other migratory groups, who have legitimate claims for fleeing their country of origin, but who are not classed as refugees under current UN law.

“The economic migrant is often the villain of this piece. It’s the economic migrant who gets the finger pointed at them... If you look at the people who fall under this category, who are fleeing extreme poverty and deprivation, to say that they are not forced to move does not stand up for more than a split second- it just depends on a very tendentious definition of what counts as being forced to move.”

By attaching certain rights and privileges to refugees, the international community is implicitly with-holding these rights from other groups of people- this is problematic because all migrant groups are vulnerable to certain degrees, and most notably, they all have the same set of fundamental human rights, many of which, are not being upheld within the current migrant system.

“In asking the question, “who is a refugee?”, we are also at the same time asking ourselves who is NOT a refugee? … If we are going to have a definition, we are saying the refugee has a set of international protections. People who fall outside this definition will not have these. What do we do about these people? What responsibilities do we have to them?”

“...there is still a lot of work to do on the refugee definition. It is target based, it is persecution based, and we know that the vast majority of people fleeing military violence are not specific targets of that violence- they are just in the way, they’re not being persecuted directly as such.”

Despite his criticism of the restrictive nature of the current definition, Dr Cole suggests that supplementary conventions and agreements could be added, as opposed to a fundamental expansion of the definition. Dr.Cole also references the Cartegena Refugee Declaration for Latin America and the African Union definition, both of which, are much less stringent. He adds, that the definition developed by the global north was written during the cold war, to address a cold war issue- this of course begs the question of whether this Eurocentric 20th-century definition of a refugee can be considered globally relevant or applicable in 2018.

However, Al Rashid makes the important point that if the definition is tinkered with too much, this could harm its legitimacy as a foundational and aspirational system of human protection. Too much modification could lead to lack of consensus, and a splintering off by individual states who reject the revamped version.

“Given the current political situation the least we could do today is stick to the current refugee convention. If we lose it, globally there is no consensus….I would say, losing the current refugee convention with all its imperfection would be a disaster. At least maintaining it would still be a plus for many many people. It would save millions of lives.”

Turning back to the topic of needs-based hierarchies within the refugee system, Al Rashid explains that at the moment it is very ‘trendy’ to be a Syrian refugee; this favoured treatment by authorities extends to even building them a completely separate, better facilitated camp. Naturally, this leads to hatred and division amongst different migrant groups, which Al Rashid wonders, could be a deliberate tactic by policy makers to create division and divert attention from more fundamental problems.

“It is a very trendy thing to be a Syrian refugee in the EU. Honestly. However it is very problematic if you are a refugee from Uganda or Ethiopia or even Afghanistan… On one of the Greek islands there are two refugee camps. Syrians are kept in a separate 5-star refugee camp. This creates a lot of hatred.”

Al Rashid finishes by stressing the need for a human rights based, rather than a security based approach to refugees. He adds that the EU’s reaction to ‘refugee crisis’ is something which countries with far less resources, such as Lebanon and Jordan, have been dealing with for years. Citing Betts and Colliers recent book, ‘Refuge’, Al Rashid criticises the misleading narration that refugees are just more mouths to feed, when in actual fact many of them are pre-trained, pre-educated people who arrive in Europe, eager to work and contribute to society.

“...These are the most intelligent people in their country. Today they’re in Europe, doctors, engineers, these people will make a lot of contributions. Take the case of Germany; over 4000 Syrian doctors are living today in Germany. Imagine how much money it would cost Germany to pay for medical training of that many people. Think of the savings they have made by having 4000 doctors ready made.”

Al Rashid acknowledges the rise of terrorism and ISIS, but insists that this should not be the dominant factor when considering policy decisions on refugees. Finally, he implores for more involvement for refugees in the decision making process, and the need for a much more humane and personal relationship with refugees.

“I would really appreciate a new approach to look at it from a humanitarian perspective, not from a Eurocentric perspective; to involve the refugees because if you never feel the pain, it’s very difficult. I meet some people who say, ‘I understand what you’ve been through’... you will never understand it. You’ve never seen a person being turned into pieces in front of your eyes. You’ve never seen a person be beheaded in front of your eyes. You’ve never seen a father throw his wife and his children into the sea because he wanted to save one little child. You’ve never seen this, how on earth could you understand this?”

THE CONCLUSION. So much was covered in this debate that it’s difficult to summarize everything, or even draw a concrete conclusion; such is the nature of the debate surrounding refugeehood, that it it will continue to evolve over time.

In terms of the UN ratified definition of a refugee, the speakers appeared to be in agreement that the definition should not be radically changed, as this could destabilise the commitment by individual states to adhere to the convention. However, all speakers agreed that adjacent laws and conventions should be created to accommodate an expanding group of displaced people, most of whom, have legitimate claims to refugeehood.

Aside from the complexities surrounding legislation, much deeper questions rise to the surface when considering refugeehood as a concept. Dr Cole made some intriguing references to refugee theorists, such as Joseph Carens and Andrew Shacknove, who offer alternative views to the current persecution-orientated refugee definition. I took a closer look at Shacknove’s definition of refugeehood, and was impressed by the logic of his triple criterion theory, although I have my doubts about its practical application.

Shacknove asserts that how we answer the question, “Who is a refugee?”, has huge implications, not just for the people seeking refugee status, but for society itself. By defining refugeehood, we are defining a set of basic needs, which, if not met by the state, constitute a break in the social contract and a sufficient reason to abandon that state, and seek fulfillment of those needs from the international community. Broadly speaking, the three main threats to an individual’s basic needs are: ‘persecution, vital (economic) subsistence, and natural calamities’. Each of these categories, according to Shacknove, represents a sufficient threat to an individual’s basic needs to be considered grounds for seeking refugee status. Persecution is one of these conditions, but it is not an essential condition.

In addition to the violation of basic needs, there are two other criterion that Shacknove’s identifies as necessary for an individual to be classed as a refugee:

“[a refugee is a] person whose [1] basic needs are unprotected by their country of origin, [2] who have no remaining recourse other than to seek international restitution of their needs, and [3] who are so situated that international assistance is possible.”

Although Shacknove’s needs-based definition seems logically and ethically sound, many are concerned that if this theory were applied, half the world would become ‘bona fide refugees overnight’. This would put intense economic strain on relief programs, and could ultimately cause the entire international refugee aid system to collapse under the demand. Shacknove acknowledges that widening the definition presents a significant ‘procedural and institutional problem’, however, he argues that this technical problem does not refute the conceptual validity of his needs-based theory, nor justify its resolution by a ‘legalistic sleight of hand.’

Again, we reach a stalemate between ideology and pragmatism- how can states resolve their fundamental duty to protect and look after refugees, against their own economic and political constraints? One thing is for sure, as a collective, we are currently failing in our duty of care to protect the basic needs of millions of people who have fled their countries, or who are internally displaced within their own country and in need of help. Even if we are to disregard Shacknove’s theory, perhaps we could adopt a more inclusive definition, such as the one developed in Article 1 of the OAU (now African Union) Convention:

[Article 1, Section 2] “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 nationality."

No matter what definition we prefer, it is crucial to remember that these people, refugees and non-refugees, would not have left their homes if their safety, livelihood or welfare were not in serious jeopardy- given the dire conditions of migrant camps, and the thousands of lives lost in the journey across land and sea, it would be disrespectful to question the authenticity of these motivations.

Importantly, the narrative surrounding the ‘refugee crisis’ must be changed; many refugees are highly skilled, and eager to contribute their skills to society- as Al Rashid states, this should be considered a ‘golden opportunity’. There is also the wider positive effects of living in a diverse and multicultural society.

Perhaps, the word ‘refugee’ is simply not helpful any more? After all, it is easy to forget (and this is evident from the current condition of camps, and the growing enforcement of border fences), that antecedent to the label ‘refugee’, which is simply a legalistic categorisation, there is a more fundamental definition which we all share, and which demands that we treat each other with mutual love, respect and empathy: Human Being.

Instead of focussing on who is, or who isn’t a refugee, perhaps we should focus on this fact instead, and strive to create multi-lateral solutions which do not solely benefit refugees, but which benefit all people who are seeking help.

“Who is a refugee? A refugee is a human being.” - Ahmad Al Rashid

*Thank you for reading our post. If you haven't read already Section 1 then you can follow this link, where you will also find a recording of the full original UCL debate. And finally, don't forget to 'like' this post and share on social media! :) *

**We wish to note that we use ‘refugee crisis’ in inverted commas as a way of acknowledging the irony and inconsistency of this label. We are aware of the ongoing debate surrounding this phrase and we wish to signal our own criticism of it. As a euphemism, we believe it is unhelpful to refugee discourse, and has the effect of misdirecting the focus of the debate on to refugees and labelling them as as the ‘problem’, rather than focussing on the incompetence of refugee reception policies**