"closing ranks to deny access to asylum," bill frelick, immigration newsletter (national lawyers...

8/4/2019 "Closing Ranks to Deny Access to Asylum," Bill Frelick, Immigration Newsletter (National Lawyers Guild), 20:3 (199

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" ' ' ' ' " 1: THE U.S. COMMITTEE FOR , REFUGEES

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National Immigration Project of the National Lawyers Guild, Inc.

IMMIGRATIONNEWSLETTERVolume 20 No.3, 1991 Published in August 1992

Closing Ranks to Deny Access to Asylumby Bill Frelick

IntroductionThe fundamental principle of asylum-that a person

claiming to flee persecution ought to be temporarily pro-tected and assisted pending an adjudication of the claim torefugee status-has been steadily eroded during the 19805.But nothing in state practices in the '80s represents so full-fledged an assault on this principle as three events in 1991.Taken together. and in combination with other trends. suchas the harmonization of entry and asylum procedures in theEuropean Community (EC),' these three watershed eventsin 1991 constitute the most serious assault on the principleof asylum since before the Second World War.

The first event was Turkey's refusal in April 1991 toadmit almost 452,000 Iraqi refugees. overwhelminglyKurdish, amassed at its border. With a few exceptions, therefugees were denied entry. The world looked on as imagesof refugees clinging to the sides of mountains flashedacross our tv screens.Secondly, in August 1991 the Italian government herded17,000 Albanian asylum seekers like cattle on the pier inBari. It rounded up and returned them to Albania withoutany opportunity to raise asylum claims.

Finally, in November 1991 the United States forciblyreturned the first Haitian asylum seekers interdicted by theU.S. Coast Guard following the coup that overthrew thedemocratically elected government of Jean BertrandAristide. The Haitian boat people were subjected to "asylumpre-screening" interviews aboard the cutters or at the U.S.naval base at Guantanamo Bay, Cuba. The "screened out"were returned to Haiti despite their expressed fear of perse-cution and without a full hearing on their claims. In the sixmonths following the coup, the Coast Guard interdictedabout 20,000 Haitians, and screened out and forcibly

returned half of them. In May 1992 the policy took a tumfor the worse, following President Bush's decision to returnall interdicted Haitians summarily without so much as a pre-screening interview to determine potential refugee status.

This essay will look at these three events singly andtogether. assessing them in both the political and historicalcontext of in ternational refugee law. It also will examinethe implications of these events for the future of refugeeprotection.'International Refugee Law Biased Toward MaintainingState Sovereignty

At the close of World War II. as the world divided intothe two camps that would wage the Cold War for the nextfour and half decades, a "world order" of sorts emerged inwhich the place of a 'Class of refugees-those meeting thedefinition of the 1951 United Nations Convention Relatingto the Status of Refugees ("Convenlion")-found a com-fortable fit. The obligation of states not to return refugeeswas formally restricted to persons outside their home coun-tries who feared persecution on account of a narrow spec-trum of human rights violations: "race, religion, nationality,membership in a particular social group, or political opin-ion."

The Convention was both explicitly and implicitlyWestern and Eurocentric in orientation. It explicitly limitedits legal force to refugees affected by events occurring priorto 1951 in Europe, thus excluding the rest of the world'srefugees from its protection mandate. Although the geo-graphic limit and cut-off date were subsequently dropped inthe 1967 United Nations Protocol Relating to th e Status ofRefugees ("Protocol"), the implicit Western andEurocentric state bias remained untouched. The notion of awell-founded fear of persecution based on deprivation ofcertain civil and political rights accorded easily with theWestern view of Soviet-style communist repression of dis-sidents and minorities. It accommodated the bona fide needof those people, while at the same time enabling the Westto score points in the Cold War's ideological battle by

Bill Frelick is Senior Policy Analyst for the U.S; Committeefor Refugees. He is Associate Editor of the World RefugeeSurvey and co-editor of Refugee Reports. He focuses 011asylum policies in North America and Europe as well asrefugees in the Middle East and Southwest Asia.

1025 VERMONT AVENUE, N.W., SUITE 920 WASHINGTON, DC 20005Tel: (202) 347-3507 Fax: (202) 347-3418


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encouraging disaffected elements with the East bloc to"vote with their feet."

The refugee definition failed, however, to address forcedmigration resulting from deprivation of economic, social,and cultural rights, such as the right to food and shelter orthe right to self-determination, causes of significant massdisplacement during the past forty years. Similarly, byfocusing exclusively on individualized persecution, it failedto account for warfare as the cause of most refugee move-ment throughout human history, including in this century.

The incompleteness of the Convention and Protocol defi-nition was most acutely felt in the third world, where itwas, consequently, superseded in Africa and Latin Americaby a more inclusive one that more closely comports withthe reality of forced migration in those parts of the world.Both the Organization of African Unity's (OAU)Convention Regarding the Specific Aspects of RefugeeProblems in Africa and the Cartagena Declaration of theOrganization of American States (OAS) include as refugeespersons falling within the definition of the RefugeeConvention and Protocol, but, in addition, extend protectionof persons compelled to flee their country due to foreignaggression (OAU and OAS), occupation (OAU), foreigndomination (OAU), internal conflicts (OAS), massive viola-tions of human rights (OAS), or other circumstances thathave seriously disturbed public order.

The bias implicit in the Convention was that of preserv-ing the prerogatives of the states that drafted itaccording tothe principle of state sovereignty. The determination ofrefugee status-whether a person's fear was genuine, orwhether the persecution indeed stemmed from one of thefive enumerated grounds-was left entirely in the hands ofstates. Although the principle that "everyone has the rightto seek and to enjoy in other countries asylum from perse-cution" has been recognized in Article 14(1) of the non-binding Universal Declaration of Human Rights,states-particularly Western states which have played a keyrole in drafting the relevant international treaties-havebeen unwilling to make the right to asylum obligatory. AUnited Nations conference convened in 1977 to draft aninternationally binding convention on the right to asylumwas described by one expert as "an abject failure.")

In contrast, theOAUConvention'imposes a specific obli-gation on African states to endeavor to "receive refugeesand to secure the settlement of those refugees." Westernstates are under no such obligation..Their only obligationunder the terms of Article 33(1) of the Refugee Conventionand Protocol is not to "expel or return (refouler) arefugee...to the frontiers of territories where his life or free-dom would be threatened on account of his race, religion,

nationality, membership in a particular social group. orpolitical opinion." Nonrefoulement, as this principle iscalled, is decidedly not the same thing as asylum. particu-larlyas interpreted by Western states.

James C. Hathaway has recently argued that the RefugeeConvention and Protocol were drafted less to meet theneeds of the forcibly displaced than to legitimize state dis-cretion in limiting their admission and rationalizing states'denial of protection to them. He observes:

The general tenor of the Convention's draftinghistory and subsequent evolution in prac-tice....[allowed] states...to take direct control ofthe process of refugee determinationand...established an international legal frame-work that permits the screening of applicantsfor refugee protection on a variety of nationalinterest grounds. The cumulative effect...hasbeen the legitimation of a political rationale forrefugee law, the evolution of a two-tiered pro-tection scheme that shields the Western statesfrom most Third World asylum seekers, and thetransfer to states of the authority to administerrefugee law in a manner consistent with theirown national interests.'

Among the legal concepts that have tilted in favor ofstate sovereignty to the detriment of asylum seekers is thatof "entry." As the principle of nonrefoulement has beeninterpreted by some Western states, including the UnitedStates, the obligation of non-return exists only if therefugee has effected an entry into the asylum country. Ifthewould-be refugee is interdicted en route or prevented fromadmission at a port of entry, states argue they are not underobligation to admit him or her. As the U.S. governmentargued most recently before the Supreme Court inHaitianRefugee Center v. Baker in support of forcibly repatriatinginterdicted Haitians:

In the first place, Article 33(1) is simply inap-plicable in this case....Article 33(1) applies onlyto refugees within the territory of the contract-ing State.

Article 33(1) provides that a contractingState shall not "expel or return ('refouler') arefugee" to the frontiers or territories where hislife or freedom would be threatened for politi-cal reasons..:.Petitioners fail to appreciate...thatthe term "return" in Article 33(1) is expresslydefined by the parenthetical insertion of theFrench word "refouler." As relevant to thiscase, Cass el l's F r en c h D ic ti ona ry 627 (1978)defines "refouler" to mean "expel (aliens)"-a


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definition that obviously encompasses onlyaliens physically present in the territory of thecontracting State.'

Furthermore, states have not applied the principle ofnonrefoulement to the broader class of refugees not coveredby the Convention, people fleeing war and generalizedpolitical violence. While many states (including mostrecently the United States with its designation ofTemporary Protected Status in the Immigration Act of(990) have developed discretionary and ad hoc measures toprotect civil war refugees from return, they have not gener-ally accepted an obligation of non-return for these people,despite recognized fears of danger upon return. KayHailbronner articulates this view: Codified refugee law is plainly inapplicable topersons fleeing generalized violence in theirhome countries. A customary norm of nonre-foulement for humanitarian refugees, however

merited on humanitarian grounds, is not nowsupported by the requirements of broad andconsistent state practice and opiniojuris ....Despite the efforts of some observers,international law should not be viewed asdemanding an obligation of states to adhere tononrefoulement or provide temporary refuge forall humanitarian refugees.'

Foreign Policy Incentive to Assist Refugees Fueled byCold War

Despite efforts of Western governments not to bind theirhands in determining how to treat refugees and asylumseekers, in fact many of these governments proved to begenerous in their refugee policies during the Cold War forrefugees and asylum seekers who, by and large, were flee-ing communist regimes. The United States, however,showed a particular bias against those fleeing "friendly,"noncommunist regimes.'

The denial of the right to leave was among the mostobvious of the failings of the communist world; extending

what amounted to an open invitation to defectors andescapees kept the pressure on the eastern bloc. The BerlinWall effectively symbolized the divided world of the ColdWar era; when East Gennany could no longer stem thewestward flow, not only did the Wall itself fall, but thewhole Soviet-bloc communist edifice crumbled.But the commitment of the new east European regimes todemocratic principles and their adherence to human rightsnorms, including the right to leave, have removed the senseof obligation from the West European states. Furthermore,the relative poverty and contieuing economic disruption inthe east, combined with the newfound freedom to travel,

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are strong enticements to westward migration. In effect.Western Europe has now seen utility in reconstructing a"Berlin Wall" to block entry, as opposed to deterringescape. This leads to the first of the three major denials ofasylum in 1991.Italy Summarily Returns Albanians

For decades, Albania was one of the world's most repres-sive societies. Travel in or out was highly restricted. Thecriminal code carried five-year prison sentences for "illegalborder crossing." Many would-be refugees were shot andkilled at the border. Those apprehended could also becharged with treason with penalties ranging as high astwenty-five years'imprisonment or death,"

Any Albanian who managed to escape was automaticallyregarded as a refugee and given asylum. There were twooutstanding reasons for this: first, the numbers were sosmall that Albanians did not represent a burden to any hostcountries; secondly, the very act of leaving without permis-sion subjected the emigrant to persecution if returned. Nofurther test of the well-foundedness of the fear of persecu-tion was necessary.Now the pendulum has swung abruptly in the oppositedirection; Western host countries have been quick to switchfrom near total acceptance to near total rejection. Butchanges in Albania have not been so abrupt.' In 1989 and1990, as other East European countries rushed to adoptdemocratic reforms, changes agreed to by the Albaniangovernment were grudging and limited. In July 1990, thou-sands of Albanians burst into foreign embassies in Tiranaseeking asylum. Student protests continued for the remain-der of 1990, and elections were scheduled for February1991. As political pressures building toward the electionmounted in December 1990 and January 1991, a mass exo-dus of refugees fled to Greece. Demonstrations increased inintensity, and the elections were postponed until March 31.In March, with the country's political future very much indoubt, the first mass exodus to Italy occurred. When theelections finally were held, the Socialist Party, which underother names (the Communist Party, and, later, the Party ofLabor) had ruled Albania for the past forty-six years,received more than two-thirds of the vote. The electionresults only caused further tunnoil-strikes, demonstra-tions; food riots. In June, the government agreed to stepdown and allow a caretaker "national salvation" govern-ment to be formed pending new elections. It was at thistime of continuing instability that the second mass exodusto Italy took place.

The Italian response to the Albanian asylum seekers wasinfluenced both by the end of the Cold War and by ECefforts to create an integrated European Community. Until1991, Italy had been one of the more open Western


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European countries to immigrants and refugees. But Italyhas also enjoyed a remarkable economic boom in the pastseveral years, and has been most anxious to shed its imageas the poor cousin of the European Community and to placeitself on an equal footing with the other EC members.

The EC has been moving steadily towards a single mar-ket, with the free movement of people and goods across theinternal borders of its members. Nevertheless, the fear thata "weak link in the chain" would allow asylum seekers freeacces~ anywhere within the EC has placed considerablepressure on countries such as Italy to tighten admissioncontrols and asylum procedures.

The restrictive changes began in 1990 when Italy signedthe Dublin Convention, which requires that asylum applica-tions be filed in only one member state and sets criteria fordetermining which member state is responsible for adjudi-cating asylum claims, regardless of where the applicationmay have been filed. That year it also signed the SchengenSupplementary Agreement, which standardizes visarequirements and entry criteria among its signatories. Atfirst, the Schengen Group included France, Germany, andthe Benelux countries, but subsequently was expanded toinclude Spain, Portugal, and Italy.

When Italy initially expressed an interest in joining theSchengen Group in 1987, the Group, seeing Italy as a leakysieve for undocumented aliens, required the Italian govern-ment to meet four conditions before allowing it to join:

1) institute visa requirements for NorthAfricans;

2) establish records of the existing number ofimmigrants;

3) develop and institute a plan to improve, immigrants' living conditions in Italy to

encourage them to remain there: and4) increase the border patrol, particularly

along the coastline."Similar to the United States' "immigration reform" of

1986, in which an amnesty for undocumented aliens pre-ceded the imposition of employer sanctions, Italy attemptedto clear the decks for a new approach to asylum adjudica-tion by instituting an amnesty under which 225,000 aliensregularized their status. II The government then establisheda new legal framework for dealing with asylum seekers. Onthe positive side, the new law introduced a definition of"refugee" into statute and included a nonrefoulement provi-sion, but it also limited the role of the United Nations HighCommission on Refugees (UNHCR) in the determinationof refugee claims to an advisory one and gave legal authori-ty to reject asylum seekers at the border if they arrive viacountries that are signatories to the Refugee Convention.

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Within the first four months of 1991, Italian officialsturned away about 30,000 foreigners at the border underprovisions of the new law.'! Italy also refused to allow asy-lum seekers who had valid visas for third countries to enterat airports. Somalis with valid visas to East European coun-tries were affected the most directly. and officials reported-ly returned some to Somalia apparently without hearingtheir asylum claims.

As a result of the new restrictive measures, only 3,376applicants were able to request asylum in Italy in 1990,"Although Albanians represented nearly 40 percent of allclaimants in 1990, their numbers remained manageableuntil March of 1991, with the sudden influx of 28,000 atthe Brindisi harbor. Statistics as of July 31, 1991, whichincluded about 20,000 Albanian claimants from the Marchinflux, but not the next major influx in August, showed thedramatic shift both in total numbers and approval rates. Atotal of 25,354 claims were presented-including 20,897Albanians-in the first six months of 1991. Of the casesdecided at that point, about 5.5 percent were approved,down from a 59 percent approval rate a year earlier. For allof 1991, 31,373 asylum claims were registered. of which22,835 were Albanian. Some 1,698 cases were declaredadmissible. 4,533 were rejected, and 24,820 remainedundecided at year's end.

The arrival of large ships jammed with Albanian asylumseekers in a five-day period. March 2-7, caught the Italianauthorities off guard. For several days. thousands of asylumseekers remained stranded on the docks with no shelterfrom the sun and elements. inadequate food and water. anda lack of sanitary facilities. About 3,000 opted for immedi-ate repatriation. Another 2,000 returned to Albania withinweeks of arriving. and by the end of July another 1,000 ofthe March cohort had agreed to return voluntarily. Giventhe lack of basic food. sanitation, and shelter, these "volun-tary" returns involved an element of coercion.

To relieve the strain on the Brindisi area, the authoritiesdispersed the remaining Albanians to temporary receivingcenters in Sicily and elsewhere in the country. They gavethe Albanians until July 15 (later extended to the end ofJuly) to find jobs. Those who failed to do so, or to establisha refugee claim, were told they would be deported.

The authorities were busy during the spring and summer,working to prevent a recurrence of the events of March.High-level officials traveled to Albania and secured thatgovernment's agreement to work to stem unauthorized boatdepartures and to facilitate the return of deportees. Inreturn, Italy pledged 60 billion lira (about $44 million) inaid. After completing the agreement, Italy's ImmigrationMinister announced, "Albanian citizens who now try toarrive along our coast will henceforth be considered as ille-gals, clandestine persons, and will, as a result. be deniedentry?"


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Italy imposed a naval brigade to interdict Albanians onthe high seas and began returning them without examiningtheir potential refugee status. On June 15. the Italian navyescorted six boats back into international waters after refus-ing their estimated 800 passengers permission to disem-bark. In all. about 2,000 Albanians in rafts and other smallcraft were returned in June."

On August 8, an old freighter, the Ylora, arrived at theBari harbor crammed with thousands of Albanian asylumseekers. The dismal welcome on the Brindisi pier lookedgood by comparison with the reception of the Augustarrivals at Bari. In Bari, in the August heat, no toilets were~provided for the 17,000 waiting on the pier, and the stenchof excrement hung over them. As the situation deteriorated,several clashes broke out between the Albanians and theItalian police.

This time Italy denied the Albanian asylum seekers anyopportunity to present. asylum claims. Thousands wereherded into planes to take them back to Albania. About2,000 who initially had been part of a group held at a soc-cer stadium refused to leave. They relented after beingpromised that their asylum claims would be considered.After leaving the stadium and being dispersed to variousother sites, however, these people were rounded up in thepre-dawn hours of August 18 and summarily deported.

Italian officials insisted that Albania was now a "safe"country and could no longer be considered to be producingrefugees, even though unrest in Albania continued through-out the summer months. The Italian government took theposition that "considering the new guarantees for respectfor human rights provided by the Tirana government, thedisplaced Albanians who arrived in Italy to escape the seri-ous economic crisis their country is suffering could not beconsidered political refugees.''"

Italy simply made a blanket determination that none ofthe Albanians who arrived in August were refugees. Andthe assertion went essentially unchallenged by the commu-nity of nations which, heretofore. has paid heed to thenotion that in the first instance a mass exodus of people inflight from their home country should be accepted on atemporary basis until a determination of their refugee statusis made or other arrangements are reached to accommodatetheir needs. .

These principles of asylum in the context of mass influxhave been arrived at less through the Refugee Conventionand Protocol, which have a bias towards the refugee as anindividual, than through the 'Conclusions of the ExecutiveCommittee of the UNHCR (Ex Com), which formalizescustomary law understandings on points of refugee protec-tion not addressed specifically or explicitly by theConvention and Protocol. Among the ExCom conclusionsthat touch on the obligation to provide temporary "first asy-lum" is Conclusion 22 (XXXII) of 1981, which states:

In situations of large-scale influx, asylum seek-ers should be admitted to the State in whichthey first seek refuge and if that State is unableto admit them on a durable basis, it shouldalways admit them at least on a temporary basisand provide them with protection .... In all casesthe fundamental principle ofnonrefoulemenl-inciuding non-rejection at theborder-must be scrupulously observed ....[T]hey should be treated as persons whose trag-ic plight requires special understanding andsympathy. They should not be subjected tocruel, inhuman or degrading treatment ....(T]heyare to be considered as persons before the law,enjoying free access to courts of law and othercompetent administrative authorities."

This principle of first asylum, which has been the corner-stone of the international system of refugee protection formore than forty years, appears to have come to an end in1991. Prior to that time, the United States and otherWestern nations exercised leadership by applying pressureon first_asylum states for failure to comply with this andother ExCom conclusions, and by providing financial assis-tance and resettlement opportunities for refugees in firstasylum countries. The U.S. resettlement program forSoutheast Asian refugees was predicated on maintainingfirst asylum in the region.

Thus, Italy's actions, and the silent complicity of theUnited States, the rest of Western Europe, and the UNHCRhave undermined the protection of refugees not only inEurope, but throughout the world.

In case any doubt was left about this change becauseItaly might not be at the forefront of the world's conscious-ness, the two other watershed events of 1991 involving theUnited States much more directly, constitute a whollychanged set of precedents that could bar the opportunity ofasylum for some time to come. We next look at the Kurdishrefugee crisis in the Spring of 1991.Iraqi Kurds: Stuck Between the Frying Pan and theFire

In the aftermath of the Persian Gulf War, the most mas-sive and sudden exodus in UNHCR's forty-year history wasstopped cold at the Turkish border. The Western coalition,rather than persuade or pressure Turkey to comply withinternational responsibilities and keep its border open, con-trived to keep the refugees out and deny them the asylumthey sought outside the borders of the home country whichwas persecuting them.

Forty years after the Refugee Convention went into


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effect, we find that the refugee crisis that rose on the heelsof the Gulf War owes much of its tragic character to thefailure of the Convention to address the right of asylum orto curb state power in manipulating the refugee definitionto suit other-than-humanitarian ends.

Under the "New World Order" proclaimed by PresidentBush, a protective shield was supposedly being providedfor a repressed and endangered minority in flight. In fact,true safety in the fonn of asylum was denied, and the assis-tance that did arrive came as much to shore up politicalalliances with friendly governments as to assist therefugees.

As noted above, the principle of a right to seek and enjoyasylum from persecution is recognized universally as ahuman right by the community of nations through the

- Universal Declaration of Human Rights. We have also seen, however, that the reality falls far short of the articulated

principle. And Turkey-a key ally in the U.S.-led coalitionagainst Saddam Hussein-has remained among the mostrecalcitrant European states regarding the applicability ofthe Refugee Convention and Protocol. While the otherEuropean states that have acceded to the RefugeeConvention have dropped its European-specific limitation,Turkey (along with Yugoslavia and Hungary) has steadfast-ly maintained a geographical reservation to its accession tothe Convention, limiting its definition of refugees to per-sons fleeing Europe. Maintaining its limit of refugee pro-tection exclusively to Europeans, Turkey has neither recog-nized nor protected any but a minute fraction of thehundreds of thousands of Iranians who have fled to Turkeyin the past decade. .

Refugees from Iraq, as well, are barred from considera-tion as refugees. Since most refugees who have sought asy-lum in Turkey from Iraq have been Kurds. a Turkishrefugee policy that excludes Kurds fits comfortably withTurkey's repression of its own Kurdish minority.

It' cam~ as 'no real surprise, therefore, that when a massexodus of Iraqi Kurds arrived on Turkey's borders at theend of March 1991, they were spurned and left to fend forthemselves clinging to the sides of mountains, !1 picture of

misery and death that briefly riveted the world's attentionand stirred its conscience. A Senate staff report observed,"If the refugees had been permitted to cross theborder-even by half a mile-to enter more hospitableTurkish valleys and facilities. some of the tragic loss of lifecould have been minimized during those desperate earlydays in April,?"

Was the U.S. government's response to that suffering touse moral suasion, or indeed the more taxing pressures theUnited States was in a position to exert, to force Turkey to

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open its border and provide refuge? No. Thrkey, the goodally, was essentially let off the hook. The needs of refugeeswere considerably lower on the scale of priorities than theneed to cement political alliances.

Creating a safe haven zone inside Iraq was a convenient"single edged sword" for the United States: blunt on theTurkish side, protecting its ally from any encroachment, yetrazor sharp on the side jabbing into Iraq. The United States,joined by Britain and France, justified its creation of a "safehaven zone" in northern Iraq by citing UN Resolution 688(adopted by the Security Council on April 5, (991).

The resolution is important both for what it says anddoesn't say. It frames its condemnation of SaddamHussein's repression not in terms of the human rights viola-tions committed against Iraqi citizens inside Iraq, but ratherin terms of the "massive flow of refugees towards andacross international frontiers" caused by that repression. Sothe concern is not primarily about Saddam's threat to theKurds of Iraq. but rather a fear of the Kurdsthemselves-that their flight to other countries will "threat-en international peace and security in the region.""

Resolution 688, therefore, should not be read as usheringin a new day for human rights against the evil of govern-ment abuse of its citizens committed under the umbrella ofstate sovereignty. On the contrary, the resolution affirms the"sovereignty, territorial integrity and political independenceof Iraq and of all States in the area."

But Resolution 688 did make a significant advance. Itinsisted that Iraq "allow immediate access by internationalhumanitarian organizations to all those in need of assis-tance in all parts of Iraq." In compliance with Resolution688. Iraq did conclude a Memorandum of Understandingwith the UN Secretary General's Executive Delegate,Prince Sadruddin Aga Khan, on April 18 that allowed theUN to provide humanitarian assistance wherever it believednecessary. But this did not satisfy the wishes of the bigpowers.

Without the explicit authorization of the SecurityCouncil the United States, France, and Britain tookResolution 688 and ran. Resolution 688 had made a gen-uine advance by expressing the consensus of the worldcommunity that international humanitarian organizationsshould be allowed free access to assist within Iraq .Nowhere, however, was the U.S. Army defined as an inter-.national humanitarian organization.

Justifying their action through a strained interpretation ofResolution 688, Britain, France, and the United States cre-ated an occupied military zone in the name of internationalstability that was intended in actuality to destabilize and. undermine the government of Iraq. While this may havebeen a legitimate military and political goal, it hardly need-ed the gloss of humanitarian intervention to maintain amoralistic facade.


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Far from being the breakthrough for human rights andhumanitarian assistance to displaced persons that washailed, the allied intervention on behalf-of the Kurds of Iraqinstead affirmed power politics as usual.

A situation like Iraq is not likely soon to be repeated.Rarely will the international community react with such adegree of unanimous revulsion as it did when confrontedwith Saddam Hussein. But a precedent has been setnonetheless that compromises the rights of refugees, mostespecially the right to asylum and against forced return toconditions of political violence and persecution.

Now we tum our attention to the Haitian crisis, whichreinforces the precedents set in the Italian and Turkish con-texts. Legal Limbo for Haitian Asylum SeekersAlthough the U.S. government had been interdicting andreturning Haitians since 1981 with only the most cursoryinterviews to determine potential refugee status (betweenthe beginning of the interdiction program in 1981 and theSeptember 30, 1991 coup only 28 persons out of a total of24,559 interdicted had been brought ashore to pursue asy-lum claims)," after the overthrow of President Aristide thegovernment briefly stopped returning those Haitians who itinterdicted. On October 23, 1991. INS spokesman DukeAustin told the Miami Herald, "There is not a blanket sus-pension of deportation [of Haitians] ....But we will be cir-cumspect and cautious about returning anyone at thistime,'?'

Those noncommittal but relatively promising words wereuttered before the exodus began on October 28 with a boatload of nineteen persons. From there, the numbers grewrapidly. As the cutters became more and more crowded, thegovernment was caught in a quandary. On the one hand, itseemed reluctant to return the Haitians to Haiti; on theother, it had no interest in bringing them to the UnitedStates. So the Haitians remained on board the cutters, notdesigned to accommodate passengers, in extremelycramped conditions. By November 10, some of the cuttersbegan mooring in Guantanamo Bay and the U.S. govern-ment began intensive efforts to pressure U.S. allies in theCaribbean basin to allow the refugees to stay on their terri-tories.

At stake initially was the principle of first asylum.Suddenly, with the Haitian crisis, 'the United States founditself in the position of a country of first asylwn. Under thecircumstances in the post-coup period, the straightforwardcourse of action would have been for the United States tohave allowed the Haitians to land and give them the oppor-tunity to apply for asyium. This is the practice accepted as acustomary norm and formalized in the UNHCR's ExComConclusion No. 23 (XXXII), which places a positive obli-gation on states not only not to return asylum seekers res-

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cued at sea, but to admit them on a temporary basis:In accordance with established internationalpractice, supported by the relevant internationalinstruments, persons rescued at sea should nor-mally be disembarked at the next port of call.This practice should also be applied in the caseof asylum seekers rescued at sea. In cases oflarge-scale irflux, asylum seekers rescued atsea should always be admitted, at least on atemporary basis. States should assist in facili-tating their disembarkation by acting in accor-dance with the principles of international soli-darity and burden-sharing in grantingresettlement opportunities. [emphasis added]"

On November II, UNHCR called on the United States to"allow all of the individuals now on board [U.S. CoastGuard] vessels to be disembarked in the United States andadmitted for determination of their refugee status.?"But that clearly was not the intention of the U.S. govern-ment. Admitting the Haitians. even temporarily, was not anoption the United States would choose. The creation of a"safe haven zone" within Haiti-the model utilized for theKurds in Iraq-did not seem feasible. Then the governmentcame up with the idea to create an artificial tier of first-asy-lum countries in the region. It began shopping around theCaribbean to create middlemen to take on the Haitiansinterdicted by the U.S. Coast guard. The choices-Belize,Venezuela, and Honduras-were demonstrably less wellequipped than the United States to shoulder the burden ofcaring for the refugees.

By November 25, the number had reached 4,530. Of thatnumber, about 3,600 were on U.S. Coast Guard or Navyvessels in international waters of the Caribbean or at theU.S. Navy base at Guantanamo Bay, Cuba; 120 had beenscreened in to the United States to pursue asylum claims;and 351 were transferred to Venezuela and Honduras.Conditions for the 250 Haitians in Honduras were harsh .Honduras, not even a signatory to the UN Refugee

.Convention and Protocol, and with a deplorable record ofhaving kept Salvadoran refugees as virtual prisoners inclosed camps during the 1980s, held the Haitians in aschool building surrounded by barbed wire and guarded bysoldiers. Within a short period of time, nearly all of theHaitians in Honduras "voluntarily" repatriated.

The "dumping grounds" for Haitians were limited, how-ever, and, on November 18 and 19, the Coast Guardreturned the first two boat loads of Haitians to Port-au-Prince, totaling 538 people.

The UN High Commissioner. Madame Sadaka Ogata,who had worked from the outset to seek a solution for the


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Haitian boat people involving regional burden sharing,issued a statement on November 19 saying UNHCR"regrets that the U.S. government has decided to proceedunilaterally and return a number of asylum seekers toHaiti.'''

On that same day, November 19, within two hours of thesecond Coast Guard cutter offloading interdicted Haitiansto Port-au-Prince, the protracted legal battle began.Responding to a complaint filed by the Haitian RefugeeCenter ,(HRC) in Miami, Judge Donald L. Graham of thedistrict court for southern Florida issued a temporaryrestraining order (TRO) to prevent the Coast Guard fromreturning any more Haitian boat people.

The suit claimed that the return of Haitians at that timeviolated the Presidential Proclamation and ExecutiveOrders of September 29, 1981, creating the UnitedStates/Haitian interdiction program," which say that norefugees will be returned. The HRC complaint requestedthe injunction "until the INS has followed its own rules set-ting forth procedures to identify and protect those who arepotential refugees.?"

The descriptive heart of the HRC complaint noted thatonly eleven immigration officers had been assigned tointerview more than 1,500 interdicted Haitians. "Accordingto INS officials," said the complaint, "interviews consistedof a few minutes of questioning concerning the Haitian'sidentity and whether there was any reason he or she couldnot go back to Haiti. The interviews were not conducted inprivacy and under other conditions required by guidelines,and were otherwise insufficient given the conditions underwhich the interviews took place.?"

The HRC complaint alleged that several of the Haitians,including babies, children, and pregnant women; were illand had high fevers, and that many of the Haitians wereseasick, having spent several days at sea in rough waters."The Haitians were exposed to extreme temperatures on thedeck of the Coast Guard vessels, where they were not shel-tered or only partially sheltered, from sun, rain and windand cold," it charged. "The Haitians were exhausted, andwere in too much physical and mental distress to under-stand the import of the interviews or become aware of theirrights.''2J

President George Bush quickly weighed in on November20, saying, "It is a fair policy." The policy, he said, "doesmake a distinction between economic refugees and politicalrefugees. But let me assure you, it is not based on somerace or double standard." Bush's concern was elearly lesswith the rights of asylum seekers than maintaining controlover immigration. "I'm saying that I don't want to have apolicy that acts as a magnet to risk these people's lives.''2t

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When its initial efforts to vacate the restraining orderfailed, and with few offers in the region to take on moreHaitians, the U.S. government reluctantly began construct-ing a large tent camp on the grounds of the U.S. naval baseat Guantanamo on November 28. Originally set up toaccommodate 2,500 Haitians,the camp at Guantanamo wassoon expanded to hold 10,000. Conditions at the tent campwere basic; the Haitians housed there were given military-issue meals-ready-to-eat (MREs) twice per day; men andwomen were segregated.

The court ordered the government to allow the HRClawyers to conduct discovery interviews at Guantanamoafter the INS refused to bring witnesses to the UnitedStates. As a result of those interviews, seventeen Haitians atGuantanamo were named as plaintiffs in the lawsuit, aswell as all other Haitians not screened in by the INS. Thedepositions taken by the lawyers for the Haitian RefugeeCenter revealed what lead attorney Ira J. Kurzban called..shocking .... wholly arbitrary [screening] procedures" atGuantanarno." Kurzban testified before a House hearingthat:

INS officers readily admitted that they hadinterviewed hundreds of Haitians withoutreceiving any information about the politicalconditions in Haiti. They also candidlyacknowledged that they had received no train-ing on interviewing Haitian asylum applicants,and were literally interviewing them in a politi-cal vacuum .. . . .This lack of knowledge extended to suchissues as not knowing who the President andPrime Minister of Haiti were, not knowing whoGeneral Cedras was, and not knowing any ofthe organizations that were supportive ofPresident Aristide.

_ Immigration officers were also applyingincorrect [legal] standards. One officer couldnot even name all the grounds necessary toobtain asylum. Another officer admitted thatshe had applied an incorrect legal standard, andthat those person were not re-interviewed,

In addition, record keeping was so poor andchaotic that the INS did not know who they hadagreed to screen in or screen out and send backto Haiti. The conditions were so chaotic that theChief Asylum officer of the United States con-eludedin a memo on November 12, 1991 thatthe interview process should be suspended. Hefound the interviews were "increasingly incon-elusive" and "also of rapidly decreasing validi-ty." A superior to the Officer returned his memoto him, did not discuss it. and through a subor-


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"

-9-dinate instructed him to "file it." Promptlythereafter his supervisor relieved him of hispre-screening responsibilities at Guantanamo.(citations omitted)"

and adequate screening procedures (citationomitted) ...The interdiction program is a cleareffort by the government to circumvent thisresult.

The United Nations Protocol on Refugees,and the United States immigration laws whichexecute it, were motivated by the World War IIrefugee experience. Jewish refugees seeking toescape the horror of Nazi Germany sat on shipsin New York Harbor, only to be rebuffed andreturned to Nazi Germany gas chambers. Doesanyone seriously contend that the UnitedStates's responsibility for the consequences ofits inaction would have been any less if theUnited States had stopped the refugee shipsbefore they reached our territorial waters?Having promised the international communityof nations that it would not tum back refugeesat the border, the government yet contends thatit may go out into international waters andactively prevent Haitian refugees from reachingthe border. Such a contention makes a sham ofour international treaty obligations and domes-tic laws for the protection of refugees."

The U.S. General Accounting Office (GAO) confirmedth e findings on lax administrative procedures resulting inmistaken deportations from G ua nta narn o. O n April 9, 1 992,it issued a report. U.S. Processing of Haitian AsylumSeekers, . that found numerous errors in the INS computerdata base. which is used in the processing of individuals fo rreturn to Haiti. "We found that because of these weaknessesat least 54 Haitians were apparently mistakenly repatriat-ed," said the report. The GAO added that "we believe ournumbers may understate the problem, '? '

The class action suit. HRC v. Baker, went through a rapid

roller-coaster ride through the courts. For only the thirdtime in U.S. history, the Solicitor General of the UnitedStates argued the government's case before a U.S. districtcourt." On December 3, U.S. District Judge C. ClydeAtkins issued a preliminary injunction maintaining the barto forced repatriation of the Haitians and gave theAdministration one week to show how it would "implementand follow procedures such as those contained in the INSguidelines to ensure that Haitians with bona fide politicalasylum claims are not forced to return to Haiti in violationof Article 33 of the Protocol,'?' Basing his ruling primarilyon Article 33 of the 1951 UN Convention Relating to theStatus of Refugees and its 1967 Protocol. to which theUnited States acceded in 1967, Judge Atkins invoked U.S.international legal obligations on the principle of nonre-foulement. .

Despite having bound itself not to return refugees toHaiti in Executive Order 12324, the government argued incourt that the United States was not bound by Article 33not to return Haitian refugees to Haiti, even if their lives orfreedom would be threatened there. J'

On December 17, a panel of the U.S. Court of Appealsfor the Eleventh Circuit by a two-to-one vote dissolved thepreliminary injunction and remanded the case to the districtcourt "with instructions to dismiss, on the merits, the

claims predicated on Article 33.")6 .Judge Joseph W. Hatchett wrote a blistering, detailed dis-

sent (fifteen pages of text as opposed to the majority'sthree). He directly addressed the relevance of Article 33:

The UNHCR, which rarely faces off directly with theUnited States, its largest donor, nevertheless wrote an ami-CIIS brief that challenged the Administration's interpretationof Article 33 and reaffirmed the obligation under interna-tional law not to forcibly return refugees outside U.S. terri-tory:

At the bottom of this case is the govern-ment's decision to intercept Haitian refugees on.the high seas, in international waters, to preventthem from reaching United States territory. Ifthese refugees reach United States territory,they will have the right to insist, in UnitedStates courts, that they be accorded proper .fair,

Article 33 proscribes the return of refugees "inany manner whatsoever" to the frontiers of ter-ritories where their lives or freedom would beendangered. Although international guidelinesand State practice support at least the tempo-rary admission of "boat people" and asylumseekers in situations of mass influx, this case isnot about admission' or asylum. It is about theobligation of States not to return refugees to aplace where their lives or freedom would bethreatened by persecution.

Appellants' position is that Article 33applies only to refugees who have gained entryinto the territory of a contracting State and that.since the Haitian refugees who have been inter-cepted on the high seas, placed on UnitedStatts Coast Guard vessels, or transferred to theUnited States naval facilities have not "enteredthe United States," Article 33 does not protectthem. Thus, Appellants conclude, the return of


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such refugees by the United States to a placewhere their lives or freedom would be threat-ened is permissible under international law. Tosupport this view, Appellants rely largely onsupplementary and ambiguous comments madeby another government's delegate at a negotiat-ing conference convened to complete the 1951convention. Apparently ignoring the plainmeaning of treaty language, the purpose andintent of the treaty, and the negotiating com-ments of the United States' own delegate to theConvention's drafting committee, Appellantsasked the District Court below to adopt arestrictive interpretation of Article 33....(T)heprinciple of non-refoulement contained inArticle 33 guarantees to refugees a specific andfundamental protection that is independentfrom the question of admission to the UnitedStates or the grant of asylum....Artic1e33 iden-tifies the place to which no refugee may besent; no exception is provided that conditionsthe obligation on the place from which arefugee is returned."

determined to have a communicable disease that is not cur-able should be given an interview to determine whether heor she is a refugee...the interview should...be identical inform and substance, or as nearly so as possible, to thoseconducted by asylum officers...[for] an applicant already inthe United States.?"The government also changed the screening policy fornewly interdicted Haitians. During the period of the HRCsuit, Haitians were being brought to Guantanamo wherethey were being screened after being given an opportunityto rest and recover from the sea journey. After the SupremeCourt ruling, however, the INS resumed screening aboardthe Coast Guard cutters.

On March 17, several Haitian advocacy groups based inNew York filed a new legal challenge, Haitian CentersCouncil v.McNary (HCC), focused on the rights of thosewho had been "screened in," initially meeting the thresholdtest of a "credible fear" of return, but who remained atGuantanamo and were being subjected to second interviewswithout the benefit of legal counsel.On March 27, U.S. District Court Judge SterlingJohnson, Jr. of the U.S. District Court for the EasternDistrict of New York issued a temporary restraining orderblocking the U.S. government from forcibly repatriatingsome 3,446 Haitians remaining at Guantanamo.

"The screened in plaintiffs are non-hostile individualswho were brought to Guantanarno forcibly, and who are 'incustody,' and incommunicado," U.S. District Judge SterlingJohnson observed when he made the order a preliminaryinjunction on April 6. "They are unable to move...and can-not even make a telephone call at their own expense. Theyare isolated from the world and treated in a manner worsethan the treatment that would be afforded to a criminaldefendant?"

Judge Johnson ruled that the government cannot inter-view. screen, or subject to exclusion or asylum proceedingsany Haitians at Guantanamo who have already beenscreened in. if they are being denied their right to comrnu-nieate with counsel. The plaintiffs could suffer "irreparableharm," Johnson wrote; the screened in Haitians "may face.torture [or] death if they lack access to counsel, fail in theirbid to receive asylum, and are repatriated toHaiti.?"

On April 22, the U.S. Supreme Court lifted the injunc-tion. The Court spJit five-to-four on the order, with JusticesBlackrnun and Stevens dissenting. Justices O'Connor andSouter joined that part of the dissent relating "to refugeeswho are and who remain 'screened in'," but they concurred .with lifting the injunction for Haitians who have beenscreened out,"

Shortly after the injunction was lifted, the INS resumedre-interviewing the HIV-positive Haitians at Guantanamo.On April 24, the authorities began making repeatedannouncements over the loudspeaker at the naval base that

Legal skirmishes continued. but the argument based onthe strongest, most fundamental human rights principle waslost. After several more fits and starts, the Haitian RefugeeCenter filed a petition for a hearing on the merits before theU.S. Supreme Court, but the writ of certiorari was deniedby the court on February 24 by a nine-to-one vote. Writingin dissent, Justice Blackmun said, "A quick glance at thisCourt's docket reveals not only that we have room to con-sider these issues but that they are at least as significant asany we have chosen to review today. If indeed the Haitiansare to be returned to an uncertain future in their strife-tornhomeland, that ruling should come from this Court, afterfull and careful consideration of the merits of theirclaims.'?'

After the Supreme Court ruling, the government movedforward quickly to repatriate thousands of Haitians. Asthose initially "screened out" on the basis of their inter-views with INS officers were being returned, the govern-ment's attention turned to the large number who had been"screened in" as having established credible asylum claims.but now needed full asylum hearings ..Among th is groupwere several hundred who had tested IllY positive, andthereby would require a waiver from being excluded fromentering the United States. On February 29, the INSGeneral Counsel issued a memorandum saying that "anyperson 'screened in' as a' possible refugee who has been


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"screened-in" Haitians had twenty-four hours to submit tosecond interviews.

In response, a group of Haitians organized as theAssociation of Haitian Political Refugees (AHPR) joinedtogether to say they would not submit to a second interviewwithout their lawyers or being brought to Miami. On April29. however, the government forcibly repatriated 89 of theAHPR members who had refused to be interviewed a sec-ond time without legal counsel. "The people who weretaken back were very political," said Tory Clawson, a mem-ber of the Haiti litigation team and a Yale law student."Some w~re named plaintiffs who were taken back becausethey took a stand on the right to counsel. These were someof the most politically active refugees in Haiti and atGuantanamo.?"

On appeal to the Second Circuit, the crux of the govern-ment's argument was that "aliens interdicted outside theUnited States have no constitutional right to due process.?"In contrast, the HCC's lawyers argued that "people involun-tarily held in government custody are entitled to talk totheir chosen lawyers before they face proceedings that maylead to the loss of their life or liberty?"

On June 10, the Second Circuit Court of Appeals grantedattorneys access to screened-in Haitians at Guantanamowho are undergoing second interviews." As of this print-ing, INS has halted all second interviews and continues tohold on Guantanarno the few hundred Haitians who had notyet undergone a second screening.

U.S. policy took a particularly Draconian tum on May24. when President Bush signed a new executive orderauthorizing the return, without screening for refugee status,of all Haitian boat people interdicted by the Coast Guard.The government also announced its intention to close downGuantanarno entirely. .

United Nations High Commissioner Sadako Ogata saidshe was "deeply disturbed that the Executive Order deniesthose Haitians genuinely in need of international protectionthe opportunity to present their claims, thus exposing themto risk upon return to Haiti.?"

The HCC litigation team again asked Judge Johnson tointervene following the May 24 Executive Order. On June5, Judge Johnson denied HCC's request for a preliminary

injunction. He said that to grant the injunction he must findboth that Haitians would suffer irreparable harm if theinjunction was not granted and that they would likely suc-ceed on the merits when the underlying legal question isdecided. He found that, although the plaintiffs "undeniablymake ... a substantial showing of irreparable harm," theircase was nevertheless "unlikely to succeed on the merits.?""On its face, Article 33 imposes a mandatory duty uponcontracting states such as the United States not to returnrefugees to countries in which they face political persecu-tion,?" but Bertrand v. Savel, the controlling case in the

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Second Circuit, "indicates that the Protocol's provisions arenot self-executing."!' This means that unless and untilCongress implements the Protocol 's provisions in domesticlaw, the Protocol itself cannot be interpreted or enforced asa source of rights: "As it stands now," the judge wrote."Article 33 is a cruel hoax and not worth the paper it isprinted on unless Congress enacts legislation implementingits provisions or a higher court reconsiders Bertrandl'"

Clearly, Judge Johnson was uncomfortable with his rul-ing. "It is unconscionable," he wrote, "that the UnitedStates should accede to the Protocol and later claim not tobe bound by it. This court is astonished that the UnitedStates would return Haitians to the jaws of political perse-cution, terror, death and uncertainty when it has contractednot to do so,'?' Judge Johnson called the government's con-duct "particularly hypocritical" since it had condemnedother countries who had failed to abide by Article 33, suchas Great Britain for its forcible repatriation of Vietnameseboat people whom it classifies as economic migrants."

The HCC legal team filed an expedited appeal to theSecond Circuit. They contend that section 243(h) of theINA reaffirms the self-executing obligation of Article 33 bymandating that "the Attorney General shall not deport orreturn any alien ... to a country if the Attorney Generaldetermines that such alien's life or freedom would bethreatened ... (emphasis added)?" The governmentargues-and Judge Johnson agreed-that section 243(h) is"unavailable as a source of relief for Haitian aliens in inter-national waters.?"

In the mean time, although information is sketchy aboutthose forcibly returned, lawyers for the HCC have trackedthe fate of a couple of the named litigants upon their returnto Haiti. One, called by the pseudonym "M. Bertrand" wasa political activist and supporter of Aristide whose closestrelatives were killed by the Haitian military," The CoastGuard used a fire hose to force him off the cutter onto thedocks at Port-au-Prince. He was fingerprinted and identi-fied by the Haitian military. Within forty-eight hours of hisreturn, he was beaten savagely by three Haitian militaryofficers, and his left arm was severely fractured. He hasbeen hiding in fear for his life since that time.B leak Prosp ects for R efu gees W orld wid e

Like it or not, the actions of the United States withrespect to refugee protection have enormous impact on theconduct of other countries. As mentioned above, the doorsfor hundreds of thousands of refugees from Vietnam,Cambodia, and Laos would have been closed if not for thegenerosity of the United States in taking in refugees admit-ted by countries such as Thailand, Malaysia, and Indonesia.When those countries wavered in their commitments, theUnited States was quick to exert its moral, political, and


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financial authority on the refugees' behalf. The UnitedStates maintained a critical posture toward the screeningprocedures in Hong Kong and opposed the return ofVietnamese from Hong Kong who were found not to meetthe refugee definition.

But U.S. conduct with respect to the Haitians has clearlyundermined its ability to take the moral high ground on theprincip,\e of first asylum and nonrefoulement in the contextof mass exodus of asylum seekers. When Hong Kongforcibly repatriated twenty-eight Vietnamese on December10, the State Department expressed "regret" that thereturnees had not been allowed to apply for a voluntaryreturn program run by the United Nations. No sooner hadhe spoken than the State Department spokesman was con-fronted with the question why the United States opposesforced returns to Vietnam but not to Haiti. He felt com-pelled to say that "the United States believes that countryconditions in Haiti are such that the persons who arereturned will not face persecution" but that in Vietnam "theUnited States opposes forcible repatriation under presentconditions in that country?"

At a House hearing on June 10. Rep. Steven Solarz (0-N.Y.), who chairs the Subcommittee on Asian and PacificAffairs and who introduced a bill reaffirming the applica-bility of Article 33 extraterritorially, commented.

I pity the poor American diplomat who in thefuture is asked to go to the British or theBangladeshis or the Malaysians or the Thaisand say, "Respect the principle of first asylum."There will be peals of laughter in the room.They will say, "Who are you kidding. You guysdon't respect the principle yourself. Whyshould we." We are forfeiting our moral leader-ship here. And we are compromising ourcapacity to come to the defense of refugees allover the world."

Already, disturbing trends in Asia and Africa are begin-ning to emerge that hardly seem merely coincidental withthe three actions discussed in this article. Thailand hasadopted a new stance with respect to its newest refugeeinflux. Fleeing one of theworld's most repressive regimes,about 10.000 Burmese have sought refuge in Thailand, yetare accepted neither as refugees nor as asylum seekers. TheThai government simply calls them illegal, deportablealiens." The Burmese students are subject to periodicround-ups, detentions, and forced repatriations. Thailandhas "repatriated thousands of Burmese-including studentsand ethnic minorities-and resisted virtually every offer of

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international assistance." There simply is no system forassessing the refugee claims of Burmese asylum seekers inThailand; no temporary protected status that would beaccorded without a refugee determination process; nothing.

The civil war in Somalia is one of the most violent andexplosive conflicts in the world today. Refugees from thatwar have sought asylum in Kenya. In April and May 1991,Kenya refused to allow boats carrying Somali refugees toland. The boats remained docked for a prolonged period.leading to severe health problems and conditions describedas "pathetic and sickening" for those on board," On May25, the State Department reported that two Kenyan navalvessels towed two boats carrying Somali refugees out to seaand cut them adrift in rough seas. The boats capsized andthirty-seven of the refugees on board drowned." Kenya hasnot responded t~ requests for a special inquiry on the mat-ter.

Those Somalis who have managed to enter Kenya havebeen treated horribly. They are crammed into crowded andunsanitary camps; in the Ifo camp. which holds some30,000 Somali refugees, 485 refugees died in March. A UNteam sent to assess camps now holding about 180.000Somali and Ethiopian refugees described them as "grosslyinadequate" and warned that death rates have reached"alarming proportions.?"

In short. if the United States. a country reputed to haveone of the world's strongest traditions of due process. pro-motes the idea that due process is not a human right butonly a right for persons residing in the territory, then allsorts of legal mischief are not only possible, but likely. Ifthe United States takes the even more troubling positionthat the right of nonrefoulement does not apply extraterrito-rially, then the world is likely to become a much more dan-gerous place for refugees for years to come.Conclusion

The year 1990 saw some significant reforms in the U.S.asylum system. A new asylum corps was created of special-ly trained officers; the Immigration Act of 1990 includedthe Temporary Protected Status provisions. But 1991 hasshown that access to these protections may be limited to arelatively select few. In March 1991 the term "Asylum Pre-Screening Officer" (APSO) was introduced with respect toonboard screening of Haitian boat people to see if they hada credible basis for tiling an asylum claim." Now APSOsare rapidly expanding to ports of entry and INS detentionfacilities." A new layer has been slipped in. No statutoryauthority, no regulation. Yet the INS has created a newstandard that asylum seekers must meet before they have anopportunity for an asylum hearing before a full-fledgedasylum officer with the rights to counsel and other due pro-cess safeguards written into the Immigration andNationality Act and the Constitution.


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r

But the May 24 Executive Order has created even more

dangerous precedents. The United States has pointed thedirection for handling the large numbers of asylum seekersseeking protection: Keep them out. Interdict them. Pushthem back. Put a fig leaf on the problem by creating a phan-tom "in-country" refugee processing program, as in Haiti,where persons in fear and danger have neither access to theprogram nor time to wait while their cases are being pro-cessed. Or create a "safe haven zone" in their home coun-try, such as Iraq, even if the tyrants that persecuted them arestill in power. The other nations of the world will be quickto follow.

For most refugees in the years to come gaining asylumcould well be a far-off dream. Since the right to asylum isleft as discretionary, states will adopt the hypocriticalstance that a refugee has the right to escape persecution, bu tdoes not have the right to enter. Many refugees, like theHaitians kept on Guantanamo, will remain in a twilightzone between exit and entry. This zone-whether createdaboard a Coast Guard cutter, at a border post. in the waitinglounge of an airport. or by some legal construct whichallows physical entry but maintains a fiction that legal entryhas not been effected-will not be a "safe haven" forrefugees, no matter what the governments say. On the con-trary. this twilight zone will allow governments to deny therights of those in their custody. And a denial of rightsmeans greater difficulty in effecting an entry. which, inturn, tips the refugee in the direction of forced return.Ultimately, the denial of access to asylum will have theeffect of undercutting the principle of nonrefoulement, themost fundamental human rights principle for the protectionof refugees.

NotesI. See description of of the Dublin Convention and theSchengen Supplementary Agreement in text at note 10.2. A number of historical facts discussed irt this article arebased on newspaper articles and other sources too numer-ous to cite; they are available from the author. In addition,some statements represent the views of the author.3. G.S. Goodwin-Gill, The Refugee in International Law111 (1983).4. Hathaway, A Reconsideration of the UnderlyingP re mise o f R efu ge e Law, 31 Harv. Int'l L. J. 144 (1990).5. Brief for Respondents in Opposition to Petition for aWrit of Certiorari at 10-11, Haitian Refugee Center, Inc v.Baker, 112 SCL 1245 (1992).6. K. Hailbronner, Non re fo ule m en t a nd "H um a nita ria n"Refugees, in The New Asylum Seekers: Refugee Law in the1980s 144 (D. Martin, ed. (988).7. See, e .g., Robinson and Frelick, Liv es in the Balance:Th e P olitic al a nd H um anita rian Im pulse s in U .S. R efu ge ePolicy, Int'I J. of Refugee L., September 1990 (special

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issue).8. Amnesty International, 1984 Report 272 (1984). Se ealso A. Dowty, Closed Borders: The Contemporary Assaulton Freedom of Movement 116-17 (1987).9. See Minnesota Lawyers International Human RightsCommittee, Trimming the Cat's Claws: The Politics ofImpunity in Albania (March 1992).10. Whitaker, T he S ch en ge n A gr ee m en t a nd I ts P or te nt/o rthe F reedom 01 Personal Movem ent in Europe, 6 Geo.Immigration L. 1. 197-198 (1992).11. Interview with Clara Maria Bisegna, ConsigliereDiplomatico Del Ministro per Gli Italiani All' estero eL'immigrazione, in Rome (October 21, (991).12. Watson and Comfort, The European (May 10, (991).13. UNHCR branch office, Rome. statistics provided toauthor, October 1991.14 . Italy: Albanian Asylum Seekers Sent H om e, 100/91-7Migration News Sheet 6 (July (991).15. Bisegna interview, supra note 11.16. Letter from Roberto Toscano, Charge d' Affaires,Embassy of Italy, Washington, DC, to Roger P. Winter,Director, U.S. Committee for Refugees, Ref. No. 7931(August 30, (991) (on tile with author).17. Executive Committee of the UNHCR, 32nd Session,Conclusion No. 22 (XXXII), Protection of Asylum Seekersin Situations of Large-Scale Influx 49-50 (1981) (availablefrom the National Immigration Project).18. Staff of Senate Comm. on the Judiciary, Subc. onImmigration and Refugee Affairs, 102nd Congress, ltSess., Aftermath of War: The Persian Gulf Refugee Crisis36-37 (1991).19. Resolution 688, UN SCOR (2982nd mtg.), U.N.Doc.SIRES/688 (1991).20. Statistics provided to author by the United States Dep'tof State, based on figures provided to it by the UnitedStates Coast Guard and the Immigration and NaturalizationService. For more on the interdiction operation during the1980s, se e Lawyers Committee for Human Rights, RefugeeRefoulement: The Forced Return of Haitians under theU.S.-Haitian Interdiction Agreement (March 1990).21. Miami Herald, Oct, 23, '1991, c ite d in Haitian RefugeeCenter press release, Oct. 24, 1991.22. Executive Committee of the UNHCR, 32nd Sess.,Conclusion No. 23 (XXXII), Problems Related to theRescue of Asylum Seekers in Distress at Sea 53 (1981)(available from the National Immigration Project).23. Statement by the United Nations High Commissioner,Madame Sadaka Ogata (November 11, 1991) (on file withthe author).24. Statement by the United National High Commissioner,Madame Sadaka Ogata (November 19, 1991) (on file withthe author),


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. .

25. Exec. Order No. 12,324 (September 29, 1981),48 Fed.Reg. (October I,1981.) The executive order authorizes theCoast Guard to stop and board vessels "of foreign nationswith whom we have arrangements," and to "return the ves-sel and its passengers to the country from which it came,when there is reason to believe that an offense is beingcommitted against the United States immigrationlaws ... provided that no person who is a refugee will bereturned without his consent."26. Complaint for Declaratory and Injunctive Relief at 2,10, Haitian Refugee Center v. Baker, No. 91-6105(S.D.Aa., Dec. 3, 1991), vacated 953 F.2d 1498 (11th Cir.),c er t. d en ie d 112 S.Ct. 1245 (1992) (hereinafter cited asHaiti an R efu ge e C e nt er ). The "INS Role in and Guidelinesfor Interdiction at Sea" provide that INS officers on boardCoast Guard vessels "shall be constantly watchful for anyindication (in clu din g b ar e c la im s ) that a person or personson board the interdicted vessel may qualify as refugeesunder the United Nations Convention and Protocol (empha-sis added); ... .that interviews shalt be conducted in condi-tions, -including privacy, designed to ensure full presenta-tion of claims; .... that transcription of interviews and otherrecords shall be maintained to facilitate eventual presenta-tion of claims to authorities in the United States; and ....that potential asylees shall be removed from the vessel andprovided with passage to the United States (emphasisadded)." Id. at 7-8 .27. Id. at 1 0.28.ld.29. B ush D efe nds P olic y on R etu rn of H aitians, Wash. Post,Nov. 21, 1991.30. Hearings Before the Legislation and National SecuritySubcommittee of the Committee on GovernmentOperations (April 9, 1992) (testimony of Ira 1 . K u rz ba n,General Counsel for the Haitian Refugee Center, at 6-7)(hereinafter cited as Kurzban),31 . Id. at 5-7.32. United States General Accounting Office, U.S.Processing of Haitian Asylum Seekers at 3-4, GAOrr-NSIAD-92-25 (April 9, 1991) .33. Kurzban , supra note 30, at 1 0.34. Order Granting Preliminary Injunctive Relief andSupporting Memorandum Opinion at 62. Hai ti an R efu ge eCent er , s up r a note 26. .35. Respondent's Brief, H aitia n R efu ge e C en te r, su pra note26.36. Per Curiam Decision at 4, H aitian Refugee C enter,supra note 26.37.ld. (Hatchett, J., dissenting at 2-4).38. Brief for Am ic us C uria e, Office of the United NationsHigh Commissioner for Refugees, in Support of Appelleesat 3-4, Hait ia n R ef ug ee C en te r. s up ra note 26.39. Blackman, J., dissenting at I, Haitian Refugee Center v.Baker. supra note 26.40. G. 1. Rees, General Counsel, Immigration andNaturalization Service Memorandum, Interviews of"Screened In" Persons Subject to Medical Exclusion 2(February 29. (992).

-14- 1. Haitian Centers Council, Inc. v . McNary, __ F.Supp.

_. 92-CV-1258 28-29 (E.D.N.Y. Apr. 6. 1992), affd inpart and vacated in part, _F.2d_. Nos. 92-6090. 92-6104 (2nd Cir. June 1 0, 1992) (hereinafter cited as HaitianCen te r s Counci l) .42.ld. at 17-18.43. See 69 Interpreter Releases 507, 508 (April 27, 1992).44. Interview with Tory Clawson (April 30, 1992).45. Emergency Application for Stay Pending Appeal at 16,Hai tia n C e nte rs C ou nc il, s up ra note 41.46. Plaintiffs' Memorandum in Support of Motion for aTemporary Restraining Order at I,H aitian C entersCoun c il , s up r a note 41.4 7. R a iti an C en te rs C ou nc il , _F.2d_. supra note 41.48. Letter from United Nations High Commissioner.Madame Sadako Ogata. to Under-Secretary of State,Lawrence Eagleburger, cited in X Il( 5) Refugee Reports 2(May 29, 1992).49. Haitian Centers Council v. McNary, No. 92-CV-1258,slip op. at 6 (hereinafter cited as H aitia n C en te rs C ou nc il/1).SO./d.Sl.ld.at7.si.u. at 7-8.53.ld. at 7 .54. ld. at 7, n.2.55. INA 243(h)(l). .5 6. H aitia n C en te rs C ou nc il ll, su pra note 49, at 8.57. "M. Bertrand's" story is taken from Professor HaroldHongju Koh's testimony before the House Subcommitteeson International Operations and Western Hemisphere,Statement on the Nonrefoulement Reaffirmation Act of19929-19 (June 1 1 , 1992).58 . Basler, Hong Kong Ousts More Boat People , V.S.~xp r es se s Regr et , N.Y~limes. December II , 1991 tquot-mg State Department spokesman Daniel Rochman) .59. Hearing of tbe Subcommittees on InternationalOperations and Western Hemisphere (June 11, 1992) (state-ment by Rep. Steven Solarz), r ep rin te d in XllI(6) RefugeeReports 13 (June 19. 1992).60. See C. Robinson, B uyin g T im e: R efu ge e R ep atr ia tio nfr om T ha ila nd , in U.S. Committee for Refugees, WorldRefugee Survey 1992 23-24 (hereinafter cited as WorldRefugee Survey),61.ld. at 24.62. K eny a, World Refugee Survey 1992. supra note 60, at43.63. Id. at 43.64. XIII(4) Refugee Reports 5-6 (AprlI30, 1992).65. Memorandum from Erich Caller, Director, MiamiAsylum Office, Immigration and Naturalization Service,to Leon Jennings, Chief, Asylum Pre-Screening Unit.Procedural Changes in the INS Asylum Pre-ScreeningComponent of the AMIO (March 1, 1991) (on file withauthor).66. Office of the Commissioner, Immigration andNaturalization Service Memorandum, Parole Project forAsylum Seekers at Ports of Entry and in INS Detention(Apri120, 1992) (on file with author).

"closing ranks to deny access to asylum," bill frelick, immigration newsletter (national lawyers...

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