TAC – June 2008

REFUGEE PROTECTION IN AFRICA

Jacob van GarderenLawyers for Human Rights

Origins and development of international refugee law

South African refugee law Xenophobia

Concept of asylum

Exercise: Word association – Asylum

International origins of refugee protection

Sheltering people fleeing persecution and war part of human history and religious and social practice

– Arab world• Istijara and ijara• Aman

– Judeo-Christian tradition

Recent developments

Awareness of international responsibility to provide protection – only since League of Nations 1921

Post WWII: Refugee issue a priority at first meeting of UN

– IRO established in 1947

– UNHCR 1951

Introduction to International Refugee Law

International refugee law – branch of human rights law Developed to protect human beings in specific circumstances Various international instruments offer protection to refugees; e.g

Universal Declaration, Torture, CRC etc. Primary refugee instruments:

– 1951 UN Refugee Convention– 1969 OAU Refugee Convention

1951 Convention Relating to the Status of Refugees

Preparation 1947-1950 East/West tensions on the increase resulting

in persistent refugee flows Significance of Convention

– General definition of “refugee”– Embodied principle of non-refoulement– Minimum standards of treatment, basic rights– Other provisions: juridical status, welfare,

employment, identification, naturalisation etc– States to cooperate with UNHCR

1951 Convention Relating to the Status of Refugees

Limitations – Geographical: only European refugees– Datelines: Pre-1951

1967 Protocol– New refugee movements – Africa (60’s)– Removed ’51 dateline and geographical

limitation

Definition of a Refugee

Inclusion– UN definition

• Well founded fear of persecution or danger for reasons of race, religion, nationality, membership of a social group or political opinion, and

• Outside country of nationality• Not protection by country of nationality

Inclusion Alienage

– outside country; refugee sur place Well founded fear

– Subjective element: reasonable fear – Objective element – general political situation

Persecution– No universally accepted definition– Art 33 “threat to life or freedom on account of race,

nationality, religion, political opinion, membership– Persecutor: State or Non-State Actors– Discrimination – only serious prejudicial treatment– Prosecution – victim of injustice, not fugitive from justice

Exclusion Clause

Persons not in need of protection– Two elements

• Enjoying rights equal to citizens• Enjoy full protection against deportation

Persons already receiving protection– Assistance from other UN agencies

• UNRWA for Palestinian refugees in Middle East

Exclusion Clause

Persons not deserving of protection– Where there are serious reasons for considering

that a person has committed:• Crimes against peace – planning/initiating war of

aggression• War crimes – e.g. murder, torture, plundering, wanton

destruction, deportation• Crimes against humanity – same as war crimes, just on

larger scale, e.g. genocide, extermination, enslavement• Serious non-political crimes • Acts contrary to the UN and OAU

Cessation – Loss of Status

Change of circumstances– Determination made by State –

controversial – Objective assessment

• Fundamental changes• Time since change took place/ durability

– Reconsideration of individual cases

Cessation – Loss of Status

Withdrawal of status when:– Voluntary acts

• Re-availment or re-establishment of protection in CON• Acquisition of nationality• Acquisition of new nationality

– Three elements• Must be voluntary• Intention obtain protection• Actual obtaining of protection

Other Instruments

Human rights conventions– ICESR, ICCPR, CRC, CEDAW, CAT

Convention relating to the Status of Stateless Persons– Standards of treatment of stateless persons (same

as refugees) Convention on Reduction of Statelessness

– To avoid statelessness by birth or on religion, racial and political grounds

Geneva Conventions

Regional Instruments Europe

– Dublin and Schengen Conventions: criteria on which members state is responsible for determining refugee status

Latin America - 1984 Cartagena Declaration– Initially designed to protect victims of wars in El

Salvador, Guatemala and Nicaragua.– Definition similar to OAU definition

• protecting people fleeing generalised violence, massive human rights violations, internal conflicts etc

– Most Latin-American countries have incorporated provisions into national legislation

Development of Refugee Policy in Africa 1945 – creation of

United Nations Only three states

independent– Egypt, Ethiopia and

Liberia In 1960’s only fifteen

African states ratified 1951 UN convention– many bound by

declarations made by previous colonial powers

Development of Refugee Policy in Africa 1960’s decision by OAU

to draft regional refugee instrument

Primary considerations– Concern for refugees v

Pan Africanist ideal of eliminating sources of tension between African states

– African solution for refugee problem

– To address jurisdictional problem of UN Convention

1969 OAU Refugee Convention

Peculiar features of refugee movements in Africa

– Large scale movements due to struggles against colonialism, armed conflict

– individual determination impossible – group status

Definition contains 1951 UN Convention definition and expanded definition– “external aggression,

occupation, foreign domination or events seriously disturbing public order in part or whole of the country”

1969 OAU Convention (Cont.)

Add important principles to international law:– Broader definition– Granting of asylum humanitarian and

peaceful act – Duty on refugees to abstain from

subversive activities– Non-refoulement and rejection at borders– International solidarity and burden-sharing

Refugees in Africa

Characterized by large refugee movements, internal population displacements and mass repatriation

Region is hosting second largest refugee population in the world

Significant decrease from 6 million in 1994 to approx 3 million today

4 geographical regions – Horn, Great Lakes, West and Southern Africa

Development of Refugee policy Two stages

– 1960 – 1990 ‘Golden era’– Since 1990 Restrictive approach

Golden era– Protection despite limited resources– 1969 OAU Convention– Solidarity against colonialism and Apartheid

Restrictive approach– New policies of containment, rejection at borders,

premature repatriation– Paradoxically – new refugee legislation adopted

Recent policy developments

Regional initiatives to regulate free movement of people, – ECOWAS – SADC Protocol on Facilitation of Movement of People

NePAD places obligation on states to address root causes of conflict.

Bilateral Agreements – Lesotho, Mozambique etc

Southern African Customs Union

African Commission on Human and Peoples’ Rights

Rencontre Africaine pour la Defense des Droits de l’Homee (RADDHO) v. Zambia– In response to mass expulsion of West African nationals, the

Commission required all states to secure the rights in the Charter to all persons within their jurisdiction

Organisation Mondiale Contre La Torture and Others v. Rwanda– Commission found that the deportation of Burundian

refugees of Hutu identity was a breach of non-discrimination principle

Ouko v Kenya– Repatriation agreements which do not satisfy the OAU

Convention requirements

Refugees in South Africa

Numbers– +/- 250 000 asylum seekers since 1994– +/- 120 000 adjudicated – 12% recognised as refugees– 63% from Southern Africa– 18% from East Africa– 11% from Asia

Many are educated, single urban based males Small, but increasing number of unaccompanied

minors

South African refugee policy

Initially, no refugee policy – “prohibited persons”

1998: Adoption of Refugees Act 2000: Regulations

– Restrictive– Work and study prohibition

2002: Immigration Act, amended in 2004

SA Refugees Act - different refugee situations

Individual Mass Arrival

Collective determination

Prima facie

Case-by-case Refugee status Refugee status determinationdetermination

Refugees Act of 1998 Considerable input from civil society 3 stage RSD Both UN and OAU definitions Non-refoulement principle Rights and obligations

• formal written recognition of status• full legal protection per Ch 2 Constitution• to apply for Permanent Residency• to an identity document• to a travel document• to seek employment• to same health care and education as SA citizens

Asylum procedure

Lodge an application for asylum at a Refugee Reception Office

Application process: complete forms, finger prints, biometrics, photos

Receive a section 22 permit After 30 days - Status Determination Hearing After 180 days receive an outcome to your interview-

either receive a rejection of your application OR be granted refugee status

Lodge an appeal against the rejection with RAB Judicial review

Implementation of Refugee Protection Access to asylum procedures

– Long queues– Selective assistance– Corruption

Delays in adjudication Restrictive interpretation

– Internal flight alternative– Safe 3rd country

Documentation RSD Hearings

– Interpreters– Delays– Insensitive to protection issues

Detention No mandatory detention, only

in exceptional circumstances Regular arrests,

detention and deportation

Various reports– Arbitrary arrests– 30 days– Detention conditions

Detention of persons after lodging asylum claims

Detention monitoring programme

Case Law Non-refoulement

– LHR v MoHA Safe third country principle

– LHR v MoHA; Kabuika Work and Study

– Watchenuka (SCA) Unaccompanied Minors

– Van Garderen N.O; Centre for Child Law Disability grants

– Scalabrini Brothers Employment

– Union of Refugee Women Access

– Somali Refugee Forum; Tafira Detention

– SAHRC; Centre for Child Law; LHR; CoRMSA; ZEF

NEW INTERNATIONAL TRENDS

Numbers– 9 Million, lowest in 25 years– Reasons: fewer crisis, several conflict

came to end, repatriation– Fewer interstate conflict, more internal

strife, thus more IDPs (7.5 m in Sudan and DRC)

Numbers: Age and Gender

54% - Children as proportion of population

50% women

Children

Children – largest demographic refugee group

Special category:– Children are vulnerable, – Children are dependent,– Children are developing,– Children face greater

dangers

Internally displaced persons

Africa – 13 million– Sudan 6 million– Uganda 1.4 million– DRC 1.5

Causes of displacement– Conflict and persecution– Natural disasters– Development and

involuntary resettlement

Who is an IDP?

No legal definition of Internally Displaced Persons (IDP).

The Guiding Principles on Internal Displacement in 1998 (Deng Principles) defines IDP as – “persons or groups of persons who have been forced or

obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.”

AU Convention on the Prevention of Internal Displacement Definition - “Internally Displaced Persons” means

persons or groups of persons who are inside the an internationally recognized State borders of their country but who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid

– the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters,

– the effects of large scale large scale development projects or lack of development.

Internal Displacement and International Law Deng Principles - displacement is

prohibited when it is based on policies of apartheid, ethnic cleansing or similar practices aimed at/or resulting in altering the ethnic, religious or racial composition of the affected population.

Responsibility to Assist and Protect Responsibility to assist and protect IDPs -

States When the states are unwilling/unable to meet

their responsibilities, international organisations have the right to offer their services based on protection needs and human rights of the displaced.

States should grant rapid and unimpeded access to the IDP.

AU Convention on the Prevention of Internal Displacement

Objectives– Address and eliminate root causes– Develop framework on IDP and

humanitarian assistance– Create responsibilities on States and non-

state actors to prevent displacement– Establish a legal framework for reparation

including restitution, just and adequate compensation and rehabilitation

Treaty monitoring

High Commissioner of the African Union for Internally Displaced Persons – supervisory responsibility for monitoring

and enforcing States Parties’ compliance – Compile and detail breaches of the

international obligations – Undertake capacity building

XENOPHOBIA IN SOUTHERN AFRICA

Anti immigrant intolerance global phenomenon

Negative attitudes officially recognized as problem

Impact on regional policy development SAMP Survey

– Exaggerated immigration and refugee figures– Migration viewed as ‘problem’– Scapegoating of foreigners– Harshest sentiments – SA, Botswana, Namibia

XENOPHOBIA (Continue)

Profile of anti-foreigner intolerance Absence of regional consciousness – little

distinction between regional migrants and other

Most citizens prefer ‘tough’ immigration laws Fear that migrants steal rather than create

jobs Massive education necessary - RBX

XENOPHOBIC ATTACKS IN SA

SA experiencing xenophobic attacks on an unprecedented scale

More than 50 killed, 30 000 displaced

SA Gvt’s response– General condemnation– President authorised the

deployment of army– camps

Issues– Attacks unexpected?– What or who caused it?

Attacks over the last 12 months Delmas (MP) – October 07. 40 non-nationals attacked and forced to flee. Mooiplaas – (GP) Dec 07. Clashes between South African and Zimbabwean nationals –

over 100 shacks being burned. Duncan Village (EC) – Jan 08. Two Somalis were found burned to death in their shop.

Police later arrested seven people in connection with the incident. Jeffrey’s Bay (EC) – January 08. Crowd attacked Somali owned shops and many Somali

nationals sought shelter at the police station Soshanguve (GP) – Jan 08. Attacks started after four non-nationals allegedly broke into a

spaza shop owned by a local trader. Residents apprehended the suspects and allegedly burnt one of the suspects to death. After this incident, residents called for foreigners to leave. Shacks were burnt and shops belonging to non-nationals looted. Many non-nationals fled the area.

Albert Park (KZN) – Jan 08. The community forum meeting - indicated during meeting that they wanted non-nationals living in that area to leave.

Laudium (GP) February 08. At a community meeting in the informal settlement of Itireleng some members encouraged residents to chase the non-nationals out of the area. Violent clashes took place. Shacks and shops belonging to non-nationals were burnt and others looted.

Valhalla Park (WC) – February 08. Residents forcefully evicted at least five Somali shop owners from the area after having apparently ‘warned’ the shop owners to leave three months before.

Atteridgeville (GP)- March 08. At least 7 killed in a series of attacks that took place over a week. Approximately 150 shacks and shops were burnt down, destroyed or vandalized. Approximately 500 people sought refuge elsewhere.

Worcester (WC) – March 08. A large group of Zwelethemba informal settlement residents destroyed foreign-run shops and leaving a large number of foreign nationals homeless.

Mamelodi (GP) – April 08. The first sign of attacks being coordinated across multiple sites by a single organisation. Fifteen shacks and spaza shops were also burnt down in the area. One girl was burnt to death in her shack.