Inmigrantes de Salcajá, Guatemala

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En el pueblo de Salcajá, cerca de la ciudad de Quetzaltenango, Guatemala, hay una estatua que honra a los migrantes que se han instalado en Estados Unidos. En las últimas décadas, mucha gente de este pueblo se ha ido para buscar mejores oportunidades en el norte.

Por las remesas en los últimos 30 años, los familiares de estos inmigrantes han recibido alrededor he $192 millones para construcción y $123 millones para la compra de tierras. Se estiman que aproximadamente 5,000 personas procedentes de Salcajá viven en Estados Unidos – una figura que representa el 25% de la población en 1980, cuando la migración a los Estados Unidos (de Salcajá) comenzó.

El 40% de los ingresos en este pueblo vienen de las remesas, y los efectos de este dinero son evidentes cuando se pasa por las calles. Hay más casas de varios niveles que están en buena forma, y los grandes festivales religiosos son pagados por aquellos que están en el extranjero. Parece que la vida y la economía son completamente entrelazadas con la inmigración y que la inmigración le toca a toda la gente.

Es difícil imaginar una falta de oportunidades tan dura que empuje a tantas personas a tomar la decisión de alejarse de sus familias, cultura y tradiciones para encontrar una vida mejor. Creo que si más estadounidenses tuvieran la oportunidad de ver las condiciones aquí en Guatemela y entender las fuerzas fuertes de globalización, no mantendrán opiniones tan duras contra los inmigrantes. También es importante que los estadounidenses entiendan la relación entre las políticas de nuestro gobierno, los hechos de las empresas multinacionales, y la situación aquí. Si nuestro gobierno no hubiera llevado a cabo muchas decisiones que han dañado severamente el desarrollo de Guatemala, no tendríamos tantas personas saliendo del país en búsqueda de mejores opciones.

Puedo escribir hojas y hojas acerca de la relación entre las políticas de países poderosos y el ciclo de inmigración. Ojalá que la gente en países ricos abriera los ojos para entender un poco de lo que han experimentado y sacrificado muchos inmigrantes.

Keeping Local Law Enforcement Out of Immigration Enforcement is American as Apple Pie

Sanctuary cities are areas across the United States that limit the cooperation of local law enforcement with federal immigration agents. Opponents of sanctuary cities argue that these areas ‘breed crime’ (they don’t),[1] violate federal law (nope),[2] and undermine respect for the law (a much more subjective question). The assumption seems to be that that local law enforcement must cooperate with federal immigration agents. Perhaps many would be surprised to learn that sanctuary cities are more in line with the traditional division of powers between states and the federal government.

Throughout most of the twentieth century, state and local police forces in the United States did not enforce immigration laws.[3] It is widely established that the power to regulate immigration rests with Congress, not states. Until recently, the Department of Justice’s longstanding position was that state and local police forces lacked the authority to arrest irregular migrants for the sole purpose of initiating civil removal proceedings.[4] In other words, police could only arrest irregular migrants for criminal conduct, not violations of immigration law.[5]

Although the federal government through the 1980s and 90s fostered more formal and institutionalized relationships with state and local governments to identify deportable noncitizens, these efforts really ramped up in the early 2000s as part of the war on terror.[6] According to the revised policy of the Department of Justice, police officers possess the ‘inherent authority’ to enforce all immigration laws.[7] As a result, police powers relating to immigration enforcement, including surveillance powers, have greatly expanded to facilitate deportations.[8] The change in policy also led the federal government to place increasing pressure on local law enforcement to cooperate in immigration enforcement.[9] Although the federal government may encourage such cooperation, the anti-commandeering doctrine prevents the federal government from mandating that states enforce federal laws, such as immigration laws.

Shortly after the September 11th terrorist attacks, the Bush Administration directed immigration officials to enter hundreds of thousands of civil immigration records into the National Crime Information Centre (NCIC) of the Federal Bureau of Investigation.[10] The categories for inclusion in the NCIC have continually increased and now include student visa violators.[11] The federal government claimed that through the expanded NCIC, local police forces would be better able to apprehend terrorists.[12] Yet most of the records added in the post September 11th era were of Latino immigrants wanted for civil immigration violation charges.[13]

The Secure Communities program, inaugurated in 2008, aimed to identify every non-citizen in custody and prioritize the removal of violent offenders.[14] The Secure Communities program relied heavily on automated biometric identification and information sharing among federal, state, and local agencies.[15] Once a police officer took an arrestee’s fingerprints, the prints automatically went to the Department of Homeland Security for verification of the person’s immigration status.[16] When many localities opted not to participate in Secure Communities, the Department of Homeland Security declared the program to be mandatory, despite the lack of clear statutory authority or regulations governing the program.[17] In November 2014, the Department of Homeland Security abolished the program, but Donald Trump has stated that he will renew it.

Immigration and Customs Enforcement (ICE) relies on local cooperation, often by issuing detainers that ask local law enforcement agencies or jails to keep a person detained for up to 48 hours after his release date. During this time, ICE decides whether to take a person into federal custody for removal purposes.[18] However in 2014 a federal appeals court ruled that local agencies are not legally required to abide by ICE requests issued through detainers.[19]

In short, voluntary state and local cooperation with federal immigration efforts have increased over the past 15-20 years. But let’s not pretend that this is a natural or established way of handling immigration enforcement. Sanctuary policies are not the illegal aberrations that opponents make them out to be.

 

References:

[1] Tom K. Wong, ‘The Efforts of Sanctuary Policies on Crime and the Economy’ (2017) Center for American Progress, available at: https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-of-sanctuary-policies-on-crime-and-the-economy/

[2] Under the anti-commandeering principle, the federal government cannot force states to enforce federal laws, like immigration laws. Printz v. United States, 521 U.S. 898 (1997); Brian Schoeneman, ‘The Conservative Case for Sanctuary Cities’ (7 February 2017), available at: https://bearingdrift.com/2017/02/07/conservative-case-sanctuary-cities/. Galarza v. Szalczyk, et al (3d Circuit, March 4, 2014) establishes that ICE cannot require local law enforcement to carry out immigration detainers; Although 8 U.S.C. 1373 prohibits local governments from restricting communication with federal immigration authorities around a person’s citizenship or immigration status, many sanctuary cities “do not directly prohibit employees from providing information to federal immigration authorities.” Renee Sloan Holtzman Sakai LLP, ‘Can the President Defund Sanctuary Cities’, available at: http://publiclawgroup.com/2017/01/27/can-the-president-defund-sanctuary-cities/. See also, Andrew P. Napolitano, ‘Judge Andree Napolitano: Are Sanctuary cities legal?’, Fox News (8 December 2016), available at: http://www.foxnews.com/opinion/2016/12/08/judge-andrew-napolitano-are-sanctuary-cities-legal.html.

[3] Anil Kalhan, ‘Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy’ (2013) 74 Ohio State L J 1105, 1111-1115.

[4] Kalhan (n. 3) 1111-1115.

[5] Kalhan (n. 3) 1111-1115.

[6] Michael Winshie, ‘State and Local Police Enforcement of Immigration Laws’ (2004) J of Constitutional L 1084, 1085-1095; James Walsh, ‘Watchful Citizens: Immigration Control, Surveillance and Societal Participation’ (2014) 23 Social & Legal Studies 237, 240.

[7] David A. Harris, ‘The War on Terror, Local Police, and Immigration Enforcement: A Curious Tale of Police Power in Post-9/11 America’ (2006) 38 Rutgers L J 1, 25-26.

[8] Doris Marie Provine and Gabriella Sanchez, ‘Suspecting Immigrants: Exploring Links Between Racialised Anxieties and Expanded Police Powers in Arizona’ (2011) 21 Policing & Society 468, 468; See William Bloss, ‘Escalating U.S. Police Surveillance After 9/11: An Examination of Causes and Effects’ (2007) 4 Surveillance & Society 208, 209.

[9] Harris (n. 7) 25-26.

[10] Kalhan (n. 3) 1122.

[11] Winshie (n. 6) 1087.

[12] Kalhan (n. 3) 1125.

[13] Harris (n. 7) 29.

[14] Kalhan (n. 3) 1126.

[15] Kalhan (n. 3) 1126.

[16] Elina Treyger, Aaron Chalfin, and Charles Loeffler, ‘Immigration Enforcement, Policing, and Crime: Evidence from the Secure Communities Program’ (2014) 13 Criminology & Public Policy 285, 286.

[17] Kalhan, 1129-1130.

[18] ACLU, ‘Immigration Detainers, available at: https://www.aclu.org/issues/immigrants-rights/ice-and-border-patrol-abuses/immigration-detainers

[19] Galarza v. Szalczyk, et al (3d Circuit, March 4, 2014); full opinion available here: https://www.immigrantjustice.org/litigation/blog/galarza-v-szalczyk-et-al

Agency and Intervention: The Operation of Law within Thai Camps for Karen Refugees

Introduction

The refugee is often depicted as a person devoid of agency — a victim that has been denied her citizenship rights, who is both voiceless and invisible.[1] The refugee-as-victim discourse helps to justify authoritarian rule within refugee camps.[2] This construction of refugee identity also marginalizes the role of refugees within camp management.[3] And yet refugees often subvert aid policies, stage protests, and manage their internal affairs through justice and other governance mechanisms.[4]

This post examines Burmese refugee-led justice mechanisms in Thai camps to illustrate how refugee-led legal and governance initiatives may be subverted by international interventions. Section 2 outlines the various sources of law that operate within refugee camps. Section 3 explores the operation of law and refugee-led justice mechanisms within Thai camps for Burmese refugees of Karen heritage. Finally, Section 4 argues that international mistrust of refugee-led justice mechanisms has hindered community-based governance within the camps. In examining these issues, this post draws heavily from the sociological work of Kirsten McConnachie, one of the few scholars to have studied extensively the governance and administration of justice within refugee camps.[5]

2. Law in Refugee Camps

International and domestic laws operate within refugee camps as formal sources of law, often alongside the legal customs of refugees themselves. Camps also operate pursuant to their own enforceable bylaws.[6] At the international level, various human rights treaties apply within camps, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The 1951 Refugee Convention is an important source of international law that often applies within refugee camps, both providing a definition for who constitutes a refugee and outlining the various rights of recognised refugees.[7] For those states that have not ratified these instruments, certain human rights and refugee law principles have become binding by virtue of their status as customary international law.[8] In theory, then, international law provides refugees with various universally recognised rights. However, as this post argues in the next section, international law can be a tool to delegitimize refugee-led justice mechanisms.

At the domestic level, refugees are required to adhere to the laws and regulations of the country in which the camp is located.[9] The degree to which the domestic laws of host states apply within camps vary widely.[10] Host state governments are often unwilling to actively address law and order issues within camps.[11] Local police forces do not always intervene when refugee rights are violated and refugees are often barred from accessing the formal justice sector.[12] The result is that UNHCR and its regulations often become the de facto authority.[13]

In practice, most legal disputes involving refugees are handled by informal justice systems and dispute resolution mechanisms.[14] These mechanisms are often based on customary or religious principles in the refugees’ countries or communities of origin.[15]   Generally, the decision-makers are respected members of the community.[16] As such, these mechanisms tend to enjoy high levels of legitimacy within refugee communities and benefit from significant community participation.[17] Although informal justice mechanisms play an important role in the lived experiences of refugees, scholars have paid little attention to the administration of justice in refugee camps.[18]

Refugee-led justice mechanisms often fill the voids left by weak implementation of domestic and international laws.[19] However, such mechanisms are sometimes criticised for their failure to adhere to international human rights standards.[20] Narrowly defined due process norms, such as the right to legal representation or principles of gender representation may be used to undermine the legitimacy of local justice initiatives and impose systems that comply with international human rights principles.[21]

 3. Community Justice within Thai Camps for Burmese Refugees

A protracted internal war began within Burma after the state gained independence in 1948.[22] Communist insurgents and ethnopolitical organisations fought against the central authority for decades, and conflicts continue under the current military government.[23] Thailand has received steady flows of Burmese refugees since the first camps were established within the country in the 1980s.[24] Although Thailand has not ratified either the 1951 Refugee Convention or its 1967 Protocol, the government currently allows nine camps to operate for Burmese refugees with assistance from UNHCR and international humanitarian organisations.[25] UNHCR began operating in Thailand in 1998, and although it continues to expand its role within the country, NGOs are the main humanitarian actors within the camps.[26] Due to the protracted nature of the conflicts within Burma, many refugees have spent their entire lives within camps.[27]

Historically, the government of Thailand has engaged very little in the governance of camps, allowing the refugees to handle most matters internally.[28] The government lacks adequate policing and court resources to handle refugees’ legal issues, and refugees have largely preferred handling matters amongst themselves.[29] Camps for ethnically Karen refugees operate with a relatively high degree of autonomy and self-governance, but the system of community-based management is changing due to increasing UNCHR and international involvement in the camps.[30] A shift in the Thai government’s policy has also harmed Karen refugees’ ability to self-govern. The government now embraces a policy of refugee containment in response to cross-border attacks against the camps.[31] Instead of spread out camps, refugees are now mostly contained within fenced areas and rely more heavily on international assistance.[32]

In the camps for Karen refugees, the laws of the Karen National Union govern.[33] The set of rules and regulations drafted by the Karen Elders Advisory Board in the early 1990s and revised in 2011 remains the only codification of law within the Karen camps.[34] The rules and regulations prohibit criminal activities like murder, physical violence, theft, and sexual assault, while also establishing administrative rules relating to hygiene, public participation, and morality.[35] These rules apply to all seven Karen camps, but different dispute resolution mechanisms operate within each camp.[36] For instance, in Mae La camp, a single judge handles all cases and disputes with the assistance of camp leaders, whereas in Mae Ra Ma Luang camp, a panel of five to seven camp committee members appointed by the camp leader handles all cases[37]

Despite differences in form, these mechanisms share many characteristics, including the limited codification of laws, processes led by community leaders rather than specialists, and the guiding principle of consensus and communal harmony.[38] Judges often offer moral guidance to the people involved in disputes, which functions as soft forms of social control.[39] The purpose of dispute resolution is to maintain social order within the camps, rather than the healing or restoration of relationships, as is typical in restorative justice mechanisms.[40] As such, the disposition of many disputes involves a fine or detention in a “jail” constructed of bamboo and fitted with wooden shackles.[41] Upon release from jail, the person expresses his commitment to obey the camp rules by signing a pledge.[42]

4. International Distrust of Refugee-led Justice Mechanisms

According to UNHCR, refugee-led dispute resolution mechanisms hinder the legal protection of refugees, because refugees are more likely to seek a remedy in informal systems than the formal Thai courts.[43] UNHCR contends that refugee-led mechanisms often fall short of international human rights standards and fail to address sexual and gender-based crimes.[44] International humanitarian organisations and donors have become increasingly critical of community-led governance structures, such as the Karen National Union, on the basis that these mechanisms are politicised.[45]

To correct these perceived problems, UNHCR has launched its Administration of Justice Program to establish a basic legal framework for handling serious crimes through Thai courts and less serious crimes through refugee-led justice systems.[46] The Programme also involves training refugees in principles of Thai and international law, and ‘building the capacity’ of community-led mechanisms to better conform to the standards of international human rights law.[47] Similarly, the International Rescue Committee opened numerous legal assistance centres within the camps that seek to strengthen refugee-led justice mechanisms.[48]

These interventions seek to reduce the barriers that refugees face in accessing the Thai justice system,[49] but they also reveal an institutional bias towards Thai and international law.[50]   In an interview, a UNHCR staff member acknowledged that refugee-led mechanisms handled most legal issues, then asserted that ‘such justice was not up to international standards.’[51] When UNHCR writes in reports that ‘refugees in the [Thai] camps do not have access to effective remedies in the law’ and Human Rights Watch asserts that Burmese refugees ‘are at a disadvantage when it comes to finding recourse to justice for the abuses they experience,’ the role of refugee-led justice mechanisms is ignored or marginalised.[52] International actors generally assume that ‘justice’ is delivered through the formal Thai legal system. This assumption fails to consider that refugee-led justice mechanisms are both a response to unequal treatment within the Thai legal system and an expression of preference for justice mechanisms that match refugees’ cultural values.[53]

Yet international actors continue to push for improving access to the Thai justice system, revealing that suspicion of refugee-led initiatives is widespread and persistent.[54]  McConnachie argues that the international lawyers and law students running justice interventions within the camps are the least appropriate people to work with community structures, as these actors look to their own legal system as the benchmark for success.[55] Many Karen refugees have expressed concern over encroaching Thai and international actors and perceive these interventions as attempts to subject the refugees to national and international authorities.[56] For instance, camp leaders have expressed concern that the International Rescue Committee-initiated Legal Assistance Centers hinder their ability to manage social problems within the camps.[57]

UNHCR and humanitarian actors are encouraging refugees to seek justice within the Thai courts and asserting more control over refugee-led justice initiatives within camps, while simultaneously expressing concern that refugees have become too dependent on outside assistance.[58] The narrative of refugee-as-victim fuels these interventions, but then refugees are chided for their dependency. However, the multifaceted dispute resolution systems that have operated within the camps for decades demonstrate the willingness and capability of Burmese refugees to handle their legal affairs. Although the refugee-led justice mechanisms do not always operate in accordance with international human rights standards and often struggle to enforce their own decisions, they are clear manifestations of refugee self-reliance and resilience in trying situations.[59]

Interventions aimed at improving justice mechanisms end up undermining the legal agency of refugee communities. UNCHR and international interventions chip away at community-based mechanisms and feed into the characterisation of refugees as requiring persistent international assistance. Uncritical examinations of humanitarian interventions have failed to notice that the power dynamics within these interventions—which inevitably place UNHCR and international actors at the top of the power pyramid, so to speak—can harm refugee communities.[60]

Conclusion

How politicians, scholars, and others characterize refugees is important. By ignoring the agency of refugees in favour of the tired narrative of refugees as helpless victims, UNHCR and humanitarian organisations become the unquestioned protagonists that protect refugee lives. However, if refugees were recognised as legal, political, and social actors, then we would have to confront how UNHCR and humanitarian organisations can stifle or sideline refugee-driven initiatives in order to appease the political interests of powerful states.

References

[1] Jennifer Hyndman, Managing Displacement: Refugees and the Politics of Humanitarianism (University of Minnesota Press 2000) xiv-xv; see also Barbara Harrell-Bond, ‘The Experience of Refugees as Recipients of Aid,’ in Alastair Ager (ed.) Refugees: Perspectives on the Experience of Forced Migration (Continuum 1999) 147-149.
[2] Barbara Harrell-Bond, ‘Can Humanitarian Work with Refugees be Humane?’ (2002) 24 Human Rights Quarterly.
[3] Kirsten McConnachie, Governing Refugees: Justice, Order and Legal Pluralism (Routledge 2014) 42.
[4] E.g., Carolina Moulin and Peter Nyers, ‘“We Live in a Country of UNHCR” – Refugee Protests and Global Political Society’ (2007) 1 Intl Political Sociology 356-372; McConnachie (n 3) 42.
[5] Anna Purkey, Book Review (2014) Refuge 103-105.
[6] Anna Lise Purkey, ‘Whose Right to What Justice? The Administration of Justice in Refugee Camps’ (2011) 17 New England J of Intl and Comparative L 121, 127.
[7] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS (Refugee Convention).
[8] E.g., Anthony D’Amato, ‘Human Rights as Part of Customary International Law: A Plea for Change of Paradigms’ (2010) Faculty Working Papers: Paper 88 <http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/88&gt;.
[9] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 art 2.
[10] Purkey, ‘Whose Right to What Justice?’ (n 6) 122.
[11] Rosa da Costa, ‘The Administration of Justice in Refugee Camps: A Study of Practice’ (March 2006) UNHCR: Legal and Protection Policy Research Series PPLA/2006/01, 6.
[12] ibid.
[13] Ralph Wilde, ‘Quis Custodiet Ipsos Custodes?: Why and How UNHCR Governance of “Development” Refugee Camps Should be Subject to International Human Rights Law’ (1998) 1 Yale Human Rights and Development L J 107, 107.
[14] Purkey, ‘Whose Right to What Justice?’ (n 6) 126.
[15] ibid 128.
[16] ibid 128.
[17] ibid 128.
[18] Da Costa (n 11) 2.
[19] ibid 6; Purkey (n 6) 129.
[20] Da Costa (n 11) 6.
[21] McConnachie (n 3) 236-237; Phil Clark, Justice Without Lawyers: Peace, Justice and Reconciliation in Rwanda (CUP 2010) 132-68.
[22] Hazel J. Lang, Fear and Sanctuary: Burmese Refugees in Thailand (Cornell Southeast Asia Program, 2002) 11.
[23] ibid.
[24] ibid.
[25] UNHCR, ‘2015 UNHCR Country Operations Profile – Thailand’ <http://www.unhcr.org/pages/49e489646.html&gt; accessed 28 April 2015.
[26] Elisabeth Olivius, ‘(Un)Governable Subjects: The Limits of Refugee Participation in the Promotion of Gender Equality in Humanitarian Aid’ (2013) J of Refugee Studies 42, 52.[27] Burma Link, ‘Background: Refugee Camps’ < http://www.burmalink.org/background/thailand-burma-border/displaced-in-thailand/refugee-camps/&gt; accessed 28 April 2015; see also UNHCR, ‘2015 UNHCR Country Operations Profile – Thailand’ <http://www.unhcr.org/pages/49e489646.html&gt; accessed 28 April 2015.
[28] Joel Harding et al, ‘Access to Justice and the Rule of Law’ (2008) Forced Migration Review: Burma’s Displaced People 28-30; McConnachie (n 3) 214-215.
[29] Harding (n 28) 28-30.
[30] Olivius (n 26) 53.
[31] Sally Thompson, ‘Community-based Camp Management’ (2008) Forced Migration Review: Burma’s Displaced People 26.
[32] ibid.
[33] Da Costa (n 11) 24.
[34] Karen Refugee Committee, ‘Code of Conduct and Disciplinary Procedure’ (7 October 2011) < http://www.pseataskforce.org/uploads/tools/1351628020.pdf&gt; accessed 21 April 2015; McConnachie (n 3) 220-221.
[35] Karen Refugee Committee (n 36).
[36] McConnachie (n 3) 220-221.
[37] ibid 222.
[38] ibid 224.
[39] ibid 225.
[40] ibid 226.
[41] ibid .
[42] ibid.
[43] UNHCR, ‘Analysis of Gaps in Refugee Protection Capacity, Thailand’ (November 2006) 35.
[44] ibid 36.
[45] Olivius (n 26) 53.
[46] UNHCR, ‘Analysis of Gaps in Refugee Protection Capacity, Thailand’ 35.
[47] ibid.
[48] International Rescue Committee, ‘IRC: International Rescue Committee – Thailand’ <http://microjusticeworkplace.net/partners/international-rescue-committee-thailand/&gt; accessed 24 April 2015; IRIN News, ‘Myanmar-Thailand: Bringing the Law to Burmese Refugee Camps (23 April 2009). <http://www.irinnews.org/report/84057/myanmar-thailand-bringing-the-law-to-burmese-refugee-camps&gt; accessed 24 April 2015.
[49] IRIN News (n 50).
[50] McConnachie (n 3) 242.
[51] IRIN News (n 50).
[52] Human Rights Watch, ‘Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers’ (2012) 54.
[53] ibid
[54] ibid.
[55] ibid.
[56] ibid 242.
[57] Human Rights Watch, ‘Ad Hoc and Inadequate: Thailand’s Treatment of Refugees and Asylum Seekers’ (2012) 55; UNHCR, ‘Analysis of Gaps in Refugee Protection Capacity, Thailand’ 35.
[58] E.g., Kirsten McConnachie, ‘Rethinking the “Refugee Warrior”: The Karen National Union and Refugee Protection on the Thai-Burma Border’ (2010) J of Human Rights Practice 30, 35.
[59] McConnachie (n 3).
[60] Anna Purkey, Book Review (2014) Refuge 103-105.

UNHCR’s Complicity in Unjust Refugee Repatriation

Refugee_shelters_in_the_Dadaab_camp,_northern_Kenya,_July_2011_(5961213058) (2)
(Shelters in Dadaab camp, DFID – UK Department for International Development)

In May 2016 the Kenyan government announced its plans to close Dadaab refugee camp by November and to repatriate hundreds of thousands of Somali refugees. Constructed in eastern Kenya over twenty-five years ago as a temporary solution for Somalis fleeing their country’s civil war, Dadaab has become a sprawling slum-like city that hosts first, second, and third-generation refugees. Over the years, the government of Kenya has imposed measures that restrict refugees’ movements and make it difficult for refugees to travel outside of the camps in search of work. Somali refugees hold a tenuous place within Kenyan society; they are often the scapegoats for the country’s economic and security problems.

In 2013 the United Nations High Commissioner for Refugees (UNHCR) reached a tripartite agreement with the governments of Kenya and Somalia, which provides a legal framework for the repatriation of Somali refugees living in Kenya. The agreement does not establish a timeline for repatriation, but stresses the need for all returns to be voluntary. Pursuant to the agreement, UNHCR began repatriation operations in 2014, but very few Somali refugees have elected to participate.

Pressure to repatriate, however, has been mounting. In the aftermath of several terrorist attacks in Kenya in 2014, the government forcibly deported around 350 refugees. After the April 2015 terrorist attack in Garissa, during which gunman from the militant group Al-Shabaab killed nearly 150 people, the government amplified its anti-refugee rhetoric and committed to the closure of Dadaab. The government claims that Dadaab and other refugee camps have become havens for Islamist terrorists, although numerous sources dispute these claims.

UNHCR warns that immediate repatriation would have extreme humanitarian and practical consequences and has vowed not to support any measure that violates international law. Although the government of Kenya has yet to act on its stern commitments to close the camp, many Somalis fear that they will be forcibly repatriated. The lack of infrastructure, social services, and stability within many areas of Somalia renders any repatriation program in the near future insecure and, potentially, unlawful.

UNHCR’s role in the current push to repatriate Somali refugees is still developing. Will the refugee agency condemn forced repatriations, should they happen? Or will the refugee agency facilitate and assist repatriations, even if non-voluntary? Over the past three decades, UNHCR has become a vocal proponent of repatriation as the preferred solution for the world’s refugees, almost completely ignoring other possible solutions such as integration into the society of a host state or resettlement abroad to a different country.

At times, UNHCR has participated in highly dubious repatriation schemes, including the repatriation of Rohingyan Muslim refugees to Burma in the early 1990s. The refugee agency has provided quiet support to coercive measures that induce repatriation, such as the withdrawal of food rations and essential services or the introduction of travel and employment restrictions. Under these conditions, the voluntariness of a refugee’s decision to repatriate is suspect.

UNHCR is often reluctant to criticize government policies that pressure refugees to repatriate. The agency remained silent when the government of Bangladesh severely reduced food rations and other assistance to Rohingyan refugees. At other times, UNHCR has itself applied coercive measures to encourage repatriation. In the 1990s the UNHCR office in Afghanistan authorized the reduction of food rations to pressure Tajik refugees to repatriate.

The refugee agency has also promoted repatriation to unstable and unsafe countries of origin. Sudanese refugees in Chad recently expressed their concerns about the repatriation scheme that UNHCR is discussing with the governments of Chad and Sudan. The refugees claim that the situation in Darfur is more dangerous than when they left. Similarly, Rwandan refugees in Uganda have criticized the High Commissioner’s recommendation that countries hosting Rwandan refugees begin repatriation programs. The refugees argue that they remain at risk of persecution by the autocratic Rwandan government that cracks down on all forms of political dissent.

Why would UNHCR—an international organization mandated with protecting refugees—vigorously promote repatriation as the preferred solution for refugees, even when the conditions in a refugee’s country of origin are such that repatriation is untenable? In short, UNHCR is dependent on host and donor countries for both funding and access to refugees. As countries seek to limit the costs of refugee flows and exert more control over borders and migration management, UNHCR has become complicit in an international refugee law regime that provides limited and unstable legal protection, and prioritizes refugee return over long-term support.

(A version of this piece appears in the June issue of ‘New People: Pittsburgh’s Peace & Justice Newspaper)

Practical Solidarity in Calais

 

20160417_144719.jpg

Last weekend my husband and I volunteered with Calais Kitchens, preparing food packages for people living in the makeshift camps collectively known as ‘the Jungle.’ We spent our time working in a warehouse run by volunteers who receive, organize, and distribute donations to the thousands of migrants living within the camps. The experience prompted me to think more about the perceived apoliticism of humanitarian assistance.

Ostensibly we were there to provide people living in desperate conditions with food assistance – to make their lives within the camps a little more bearable. Yet in doing so, I believe we were supporting the efforts of migrants to frustrate the UK border regime. The goal of all the people living in the camps is to make the crossing from France across the Channel to the United Kingdom. To reach this goal, people scale barbed wire fences, sneak onto trucks and train carriages, and try to evade police detection – no small feat given the amount of police presence around the Calais port. People attempt to make the crossing night after night, often waiting in the camps to find a smuggler who will help facilitate their journey.

Simple humanitarian acts help people in their efforts to reach the United Kingdom. By providing food, clothing and other necessities people may be able to stay in the camps longer and make repeated attempts to cross the border. Donated items may even become tools for making the crossing. For example, people may use layers of donated clothes as protection against barbed wire fencing.

Rather than claim that my efforts are merely responsive to human needs, I embrace the politics of humanitarian action. I support people’s efforts to enter the United Kingdom. Many of the people living in the Calais camps come from Afghanistan, Eritrea and Syria. Situations in their home countries worsen, yet the options for legal migration to the United Kingdom, and Europe more widely, continue to dwindle due to ever tightening immigration laws and border control measures. In a very small way, volunteering in Calais allowed me to show practical solidarity with these people and say, through actions, that I will not be silent about unjust and inhumane border policies.

 

Safety on the Move: Protecting Asylum-Seeking Children in Europe

The recent agreement between the European Union and Turkey on how to handle asylum seekers reaching Greece will exacerbate the risks facing people seeking protection in Europe, particularly the risks facing asylum-seeking children. The deal seeks to stop asylum seekers from sailing across the Aegean Sea from Turkey to Greece. At the core of the agreement is a controversial one-to-one exchange of people: asylum seekers in Greece whose claims are deemed ‘unfounded’ or ‘inadmissible’ will be returned to Turkey; for every person returned, the European Union will accept one Syrian refugee in a Turkish camp for resettlement.

Many have questioned the legality and morality of the agreement. The Greek legal system—already strained by the country’s economic crisis—will struggle to guarantee each asylum seeker’s right to an individualized determination of her claim. If decisions are fast-tracked, then the risk of a person’s legitimate claim being rejected as ‘unfounded’ increases. More troubling is the potential for categorizing a claim as ‘inadmissible’. An inadmissible claim does not mean that the claim is without merit; rather it means that the government will not assess the claim.

There are two main grounds of inadmissibility that apply to asylum seekers reaching Greece: if the person has received refugee status in Turkey, or if that person could have applied for asylum in Turkey. The latter ground is referred to as ‘safe third country’.[1] Human rights organisations have condemned the designation of Turkey as a safe third country, noting that the Turkish government has forcibly returned refugees to war-afflicted areas and many refugees in Turkey cannot access basic services, including adequate housing, work opportunities, or education. Returning asylum seekers on inadmissibility grounds could amount to mass expulsions of people seeking protection in Europe.

On a practical level, blocking one of the major migration routes will not stop people from seeking safety in Europe. Most asylum-seeking children in Europe entered the EU by boat from Turkey to Greece. With borders closing and immigration regimes becoming more punitive, children seeking protection will turn to more dangerous routes. Combined with the already limited legal pathways into the EU, this agreement will place children at heightened risk of abuse and exploitation.

By 2015, at least 337,000 children were registered as asylum seekers in Europe. UNICEF estimates that 90,000 of these children are unaccompanied or separated from their families. Europol—the European Union’s criminal intelligence agency—reported in January that 10,000 unaccompanied asylum-seeking children have ‘disappeared’ after arriving in Europe. We do not know what has happened to these children, but it is feared that some have been targeted by criminal organizations. Some children may have left care placements due to poor conditions or to reunite with family members in other parts of Europe. Others may have left to find work opportunities in order to repay debt they or their families incurred in funding the migration.

Migrating children, particularly unaccompanied children, are vulnerable to trafficking, violence, sexual abuse and exploitation, and extortion from smugglers. Children often spend long periods in reception or transit centers that lack basic sanitation facilities, child-friendly spaces, and decent healthcare. Children in need of money to fund their onward journeys are at risk of sexual exploitation, while others are sexually abused in camps and transit centers. Those that ultimately reach their destination countries face continuing insecurity—many countries do not have a legal guardianship scheme for unaccompanied children and children are often unable to critical services.[2]

We know that safety requires more than protection from physical harm. For asylum-seeking children, and their adult counterparts, legal status in a safe country is the foundation upon which safety is built.[3] Research suggests that children who are granted asylum then predicate feelings of safety upon finding predictable patterns of living, accessing education, receiving medical attention, and finding adults and peers that are trustworthy and reliable.[4]

Similarly, research into the experiences of trafficked and sexually exploited children in foster care suggests that ‘safety’ is multi-dimensional. Safety encompasses physical, relational, and psychological safety. Children enjoy relational safety when they are able to develop warm and trusting relationships with their carers. A child enjoys psychological safety when she develops a source of self-identity outside of abusive relationships and experiences.[5]

In a more perfect world, legal routes to an asylum-granting country would obviate the need to consider the child’s safety during migration. But we know that children, by the thousands, take irregular and dangerous migration routes because there are very few options for legal migration. If migration itself puts children at heightened abuse and disrupts all forms of stability within the child’s life, then what does ‘safety’ look like and mean for children on the move?

For migrating asylum-seeking children, safety can be conceived of as a process involving safe passage during a migration route, legal security in a safe destination country, and then access to meaningful services that will facilitate their relational and psychological safety.[6] At present, non-state actors—from UN agencies to volunteer-led grassroots initiatives—are working to safeguard migrating children under constrained circumstances and are able to provide children with a minimal level of safety.

UNICEF and UNHCR are working jointly to expand their ‘Blue Dot’ initiative, which places special support centers along known migration routes. In these centers children can play and access medical, legal, and psychological support. Save the Children works across Europe to meet the immediate needs of migrating children. The organization has established child and family-friendly centers where children can access legal advice and other support, registration centers that seek to reunite children separated from their families, and various distribution points where children can obtain food, blankets, clothes and other essential items.

In the camps of Calais in northern France, international and NGO presence is virtually non-existent. A recent census conducted by Help Refugees concludes that there are 651 children living in the camps, of which 423 are unaccompanied. Volunteer-led initiatives have stepped in, providing safe spaces and accommodation for unaccompanied children. Children of Calais is launching a mobile school bus for children to continue their education while living in the camps. Jungle Canopy recently converted caravans into living spaced for unaccompanied children. Networks of volunteers have also coordinated the deployment of youth workers to the camps and created a women and children’s center. However, French authorities recently demolished one of the youth centers.

Efforts to provide safe spaces and material goods to children, while laudable and critically important, can only provide basic safety. And even then, the sheer numbers of migrating children, their varied migration routes, and the efforts of European states to stop migration mean that not all children can access these limited services. The European Union continues to prioritize border protection over child protection. The ‘problem’ of migration and child migration will not cease in the near future. At a minimum, asylum-seeking children need access to legal security. The efforts of volunteers, social services, NGOs and humanitarian organizations cannot effectively meet a child’s safety needs until that child has the right to remain in a safe country.

 

[1] I have drawn from the thorough legal analyses of Steven Peers and Emanuela Roman. For more information on the legality of the recent agreement, click here. For more on whether Turkey constitutes a ‘safe third country’, click here.

[2] This paragraph summarizes some of the findings in the 2016 report Safety and Fundamental Rights at Stake for Children on the Move by the European Network of Ombudspersons for Children, available here.

[3] Ravi S. Kohli, Working to Ensure Safety, Belonging and Success for Unaccompanied Asylum-seeking children, Child Abuse Review (volume 20), pages 311-323 (2011).

[4] Kohli (note 3).

[5] This paragraph is based on the work of Dr. Lucie Shuker at the University of Bedfordshire. Lucie Shuker, ‘Constructs of Safety for Children in Care Affected by Child Sexual Exploitation’ in Critical Perspectives and Child Sexual Exploitation and Trafficking (Jenny Pearce and Margaret Melrose, eds) 2013.

[6] This assumes that children receive refugee status in a destination country. The fate and security of children whose claims are denied is another issue.