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The Refugee Convention at 50.

4The Geneva Convention has been the cornerstone of protection for 50 years, but there isa lively debate about its relevance today.By Marilyn Achiron

Personal viewThe Convention.By Jack Straw, British Foreign Secretary

New problemsGender-based persecution leaves the shadows.By Judith Kumin

CessationWhen the Convention is over.

16 Q U E S T I O N S A N D A N S W E R S

The most frequently asked questions about the Refugee Convention.

ExclusionWho is NOT protected by the GenevaConvention.

BBCBroadcasting to the world.

The firing lineMaking the Convention work.By Peter Showler

24 A S Y L U M

One man’s struggle to obtain asylum.By Lisa Getter

SignatoriesSigning up for the Convention and its Protocol.

30 P E O P L E A N D P L A C E S

31 Q U O T E U N Q U O T E

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4The internationalcommunity adopted the1951 Geneva Refugee

Convention mainly inresponse to the atrocitiescommitted in World War IIand to help the millions ofpeople uprooted by thatconflict. Refugee crisesspread around the world inthe following decades.

24 Even when fleeingcivilians reachapparent safety, their

ordeal is often not ended.One story of a long effort toobtain asylum.

16A key provision in theConvention is thenon-forcible return of

civilians fleeing such crises asthose currently engulfingWest Africa. Other questionsand answers on theConvention.

EEddiittoorr::Ray Wilkinson

FFrreenncchh eeddiittoorr::Mounira Skandrani

CCoonnttrriibbuuttoorrss::Walter Brill, Nathalie Karsenty,Patrick Tigere

EEddiittoorriiaall aassssiissttaanntt::Virginia Zekrya

PPhhoottoo ddeeppaarrttmmeenntt::Suzy Hopper, Anne Kellner

DDeessiiggnn::Vincent Winter Associés

PPrroodduuccttiioonn::Françoise Peyroux

AAddmmiinniissttrraattiioonn::Anne-Marie Le Galliard

DDiissttrriibbuuttiioonn::John O’Connor, Frédéric Tissot

MMaapp::UNHCR - Mapping Unit

HHiissttoorriiccaall ddooccuummeennttss::UNHCR Archives

RReeffuuggeeeess is published by the PublicInformation Section of the UnitedNations High Commissioner forRefugees. The opinions expressed bycontributors are not necessarily thoseof UNHCR. The designations andmaps used do not imply the expressionof any opinion or recognition on thepart of UNHCR concerning the legalstatus of a territory or of its authorities.

RReeffuuggeeeess reserves the right to edit allarticles before publication. Articlesand photos not covered by copyright ©may be reprinted without priorpermission. Please credit UNHCR andthe photographer. Glossy prints andslide duplicates of photographs notcovered by copyright © may be madeavailable for professional use only.

English and French editions printedin Italy by AMILCARE PIZZIS.p.A., Milan.Circulation: 227,500 in English,French, German, Italian, Japanese,Spanish, Arabic, Russian andChinese.

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T H E E D I T O R ’ S D E S K

When delegates from 26 countries as

diverse as the United States, Israel and

Iraq gathered in the elegant Swiss city of

Geneva in 1951, they had some unfinished business to

attend to.

World War II had long since ended, but hundreds of

thousands of refugees still wandered aimlessly across

the European continent or squatted in makeshift camps.

The international community had, on several occasions

earlier in the century, established refugee organizations

and approved refugee conventions, but legal protection

and assistance remained rudimentary.

After more than three weeks of tough legal wran-

gling, delegates on 28 July adopted what has become

known as the Magna Carta of international refugee law,

the 1951 Convention relating to the Status of Refugees.

This resulting instrument was a legal compromise

“conceived out of enlightened self-interest,” according to

one expert. Governments refused to “sign a blank

check” against the future, limiting the scope of the

Convention mainly to refugees in Europe and to events

occurring before 1 January 1951.

It was hoped the ‘refugee crisis’ could be cleared up

quickly. The United Nations High Commissioner for

Refugees, the guardian of the Convention, which had

been created shortly before, was given a three-year

mandate and was then expected to ‘go out of business’

with the problem solved.

Fifty years later, the treaty remains a cornerstone of

protection. There have been momentous achievements

and changes along the way. Regional conventions were

created in its image. Some provisions such as the defini-

tion of the term ‘refugee’ and the principle of non-

forcible return of people to territories where they could

face persecution (non-refoulement) have become funda-

mental international law. With the treaty’s help,

UNHCR assisted an estimated 50 million people restart

their lives.

The global crisis outgrew parts of the original docu-

ment and a 1967 Protocol to the Convention eliminated

the time constraints. Issues which the original delegates,

all males, never even considered such as gender-based

persecution became major problems.

This refugee world also became more crowded, with

millions of refugees, economic migrants and others on

the move. All of this, some critics argue, has made the

Convention outdated and irrelevant.

On the 50th anniversary of its adoption, a lively

debate is underway. British Prime Minister Tony Blair

says though the treaty’s “values are timeless” it is now

time to “stand back and consider its application in

today’s world.” Many jurists say the Convention has

shown extraordinary longevity and flexibility in meet-

ing known and unforeseen challenges.

Whatever the outcome of these discussions, it is cer-

tain that millions of uprooted people will continue to

rely on the Convention for their protection.

The Refugee Convention at 50…

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The Geneva Refugee Convention is 50 years old. It has helped millions of the world’s downtrodden, but facescontinued criticism.

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A ‘TIMELESS’TREATY UNDERATTACK

Protection: Travelor identity documentsfor refugees equalnew opportunitiesand happiness.

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The images were stark andshocking: in the heart of Eu-rope, tens of thousands ofpeople were fleeing terrorand murder, inflicted by

their own government, because of theirethnic background. Men, women and chil-dren, bundled in blankets and carryingwhatever possessions they could fit intobags or, if they were lucky, broken downcarts and rusting tractors, staggered intoneighboring countries in search of safety.

These images were eerily reminiscentof an earlier era, though they were not inthe grainy black-and-white of the mid-1940s; rather, they were in color and trans-mitted live into every TV-owning house-hold around the world just two years agofrom Kosovo and the Balkan region.

Five decades earlier the internationalcommunity had faced a similar tragedy inthe aftermath of World War II when mil-lions of uprooted peoples wandered hun-gry and aimlessly through devastated land-scapes and cities. In a spirit of empathy andhumanitarianism, and with a hope thatsuch widespread suffering might beaverted in the future, nations came to-gether in the stately Swiss city of Genevaand codified binding, international stan-dards for the treatment of refugees and theobligations of countries towards them.

The resultant, groundbreaking, 1951Convention relating to the Status ofRefugees subsequently helped millions of

civilians to rebuild their lives and has be-come “the wall behind which refugees canshelter,” says Erika Feller, director of theDepartment of International Protection ofthe United Nations High Commissionerfor Refugees (UNHCR). “It is the best wehave, at the international level, to temperthe behavior of states.”

But on the 50th anniversary of its adop-tion, the Convention is coming apart at theseams, according to some of the same cap-itals which had breathed life into the pro-tection regime a half century ago. Crisessuch as Kosovo have multiplied, spillingmillions of people into headlong flight insearch of a safe haven. Intercontinental

travel has become easy and a burgeoningbusiness in human trafficking has swelledthe number of illegal immigrants. Statessay their asylum systems are being over-whelmed with this tangled mass ofrefugees and economic migrants and areurging a legal retrenchment. The Con-vention, they say, is outdated, unworkable

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A REFUGEE IS A PERSON WITH A “WELL-FOUNDED FEAROF BEING PERSECUTED FOR REASONS OF RACE, RELIGION, NATIONALITY,

MEMBERSHIP OF A PARTICULAR SOCIAL GROUP OR POLITICAL OPINION...” Article 1A (2)

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A ‘TIMELESS’TREATY UNDERATTACK

Scenes like this led to the 1951 Refugee Convention.

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and irrelevant.The treaty’s “values are timeless,”

British Prime Minister Tony Blair insistedrecently. But he added that “with vastly in-creasing economic migration around theworld and most especially in Europe, thereis an obvious need to set proper rules andprocedures… The United Kingdom is tak-ing the lead in arguing for reform, not ofthe Convention’s values, but of how it op-erates.”

Ruud Lubbers, a former Dutch PrimeMinister and recently appointed HighCommissioner, has warned, however, that“many prosperous countries with strongeconomies complain about the large num-ber of asylum seekers, but offer too little

to prevent refugee crises,like investing in conflictprevention, return, reinte-gration.” In Europe, he said,“It is a real problem thatEuropeans try to lessenobligations to refugees… Inany case, no wall will behigh enough to prevent people from com-ing.”

This debate is already taking placewithin the context of a series of meetings,termed ‘global consultations’, which UN-HCR, as the guardian of the Convention,is holding with the 140 countries that haveacceded to the original instrument and asubsequent Protocol, and other interested

parties. Where it will all lead remains un-clear.

DEVELOPING PROTECTIONPeople have fled persecution from the

moment in earliest history when they be-gan forming communities. A tradition ofoffering asylum began at almost the sametime; and when nations began to developan international conscience in the early20th century, efforts to help refugees alsowent global. Fridtjof Nansen was appointedin 1921 as the first refugee High Commis-sioner of the League of Nations, the fore-runner of the United Nations.

The United Nations Relief and Reha-bilitation Agency (UNRRA) assisted sevenmillion people during and after the Sec-ond World War and a third group, the In-ternational Refugee Organization (IRO),

created in 1946, resettled more than onemillion displaced Europeans around theworld and helped 73,000 civilians to re-turn to their former homes.

A body of refugee law also began to takeroot. The 1933 League of Nations’ Con-vention relating to the International Statusof Refugees and the 1938 Convention con-cerning the Status of Refugees coming

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from Germany provided limited protec-tion for uprooted peoples. The 1933 in-strument, for instance, had introduced thenotion that signatory states were obligated

not to expel authorized refugees from theirterritories and to avoid “non-admittance[of refugees] at the frontier.” But that Con-vention lacked teeth: only eight countriesratified it, several of them after imposingsubstantial limitations on their obligations.

But none of these early refugee organi-zations were totally successful, legal pro-tection remained rudimentary and lead-ing members of the newly created UnitedNations, formed to “save succeeding gen-erations from the scourge of war”, deter-mined that a stronger refugee regime wasnecessary.

With nearly one million refugees stillmilling hopelessly around Europe long af-ter the end of the war, UNHCR was cre-ated in 1950 and the following year theRefugee Convention, the major legal foun-dation on which UNHCR’s work is based,was adopted. The 26 participating coun-tries were heavily western or liberal in ori-entation, though they were joined by otherstates such as Iraq, Egypt and Colombia.

Conspicuously absent, with the exceptionof Yugoslavia, was the Soviet-dominatedcommunist bloc.

For three weeks, in the United Nations

European Office overlooking Lake Geneva,delegates hammered out a refugee bill ofrights. It involved long and hard bargain-ing, interminable legal wrangling and a

constant eye cocked to protect the rightsof sovereign states. “The modern system ofrefugee rights was… conceived out of en-lightened self-interest,” James C. Hathaway,professor of law and director of the Pro-gram in Refugee and Asylum Law at theUniversity of Michigan has written.

One heated debate was sparked overthe refusal of some delegates to committhemselves to open-ended legal obligations.In elaborating one of the Convention’s coredefinitions—who could be considered arefugee—some countries favored a generaldescription covering all future refugees.Others wanted to limit the definition tothen existing categories of refugees.

In the end, inevitably, there was a com-promise. A general definition emerged,based on a “well-founded fear of persecu-tion” and limited to those who had becomerefugees “as a result of events occurringbefore 1 January 1951.”

This temporal limitation—and the op-tion to impose a geographical limitation

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“CONTRACTING STATES SHALL APPLY THE PROVISIONS OF THIS CONVENTION TO REFUGEES WITHOUT DISCRIMINATION...” Article 3

In the beginning: The Geneva Refugee Convention was adopted on 28 July 1951 and opened for signature.

After helping settle World War II erarefugees, Hungary was the first majorchallenge for UNHCR and theConvention. An amputee in the mid-1950s waves good luck to fellowrefugees in Austria.

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Man’s inhumanity to man. A tritephrase, often quoted, but onethat sums up the reason for the

existence of the 1951 Refugee Convention.And 50 years later—50 years of torture,persecution, violence and human rightsabuse—the Convention is as important asever for protecting those who have noother source of protection.

It is a commonly repeated truth that inthe 50 years since the signing of the 1951instrument, the world has moved on. In avery real sense, the world is smaller thanit was in 1951. Information travels betweencontinents in seconds, and the technolo-gies that enable this are becoming moreand more accessible. All of us can benefitfrom the eclectic mixture of cultureswhich has resulted from globalization.

But just as we have become moreaware of ways of life in other countries,so too have the inhabitants of developingcountries become aware of the advantagesof life in developed countries.

The complex set of technological, in-stitutional, organizational, social and cul-tural changes, which are summed up inthe term ‘globalization’ have created aworld where the prospect of travellingmany hundreds of miles to seek out a newlife seems not an impossible dream, butrather an achievable reality.

So I can understand why so many peo-ple want to leave their own countries andsettle in the United Kingdom and otherdeveloped countries, in the hope ofachieving a better life for themselves andtheir families.

But they are not refugees. Our asylumprocesses were set up in order to admin-ister the international protection affordedto refugees under the 1951 Convention.Those who are not truly refugees donothing but harm by seeking to circum-

The need for debate is now

The Convention:Britain’s view

by Jack Straw vent lawful immigration controls. It is inthe interests of genuine refugees, as muchas anyone else, for the United Kingdomand other countries to take strict mea-sures to maintain the integrity of our asy-lum system

TAKING ACTIONWith this in mind, we have taken ac-

tion to improve the administration of ourdomestic asylum system. This has in-cluded speeding up the initial decisionmaking and appeals pro-cess and reducing thebacklog of undecided casesto its lowest level for adecade. There is much stillto be done on the domesticfront, but we have made astrong beginning to theprocess of putting our ownhouse in order.

As well as looking at do-mestic systems, we need tolook more generally at theinternational system ofprotection.

We need to reconsiderthe ways in which we seekto protect those genuinelyin need. While developedcountries such as theUnited Kingdom are devoting resourcesto dealing with applications for asylum,so many of which are unfounded, we arenot paying enough attention to the largenumbers of refugees who are living intheir regions of origin in hardship, andsometimes in danger. But having recog-nized this, we need to do something aboutit.

Most genuine refugees want nothingmore than an opportunity to return insafety and dignity to their homes. Theydo not wish to entrust themselves andtheir families to criminal traffickers and

agents but sometimes, mistakenly, thinkthat is the only way of achieving theirgoals.

I have made some key proposals whichfocus on the importance of supportingrefugees in their regions of origin, whilehelping the minority who cannot safelyremain in those regions to gain access tothe international protection regime. I alsowelcome the European Commission pro-posal to carry out a study of the feasibil-ity of an EU resettlement program.These

proposals have receivedacross Europe more sup-port than I anticipated.

We have a long road totravel before we canachieve a protectionregime which is gen-uinely fair and effectiveand not subverted bycriminal traffickers. Wecan only properly makethis journey throughopen and frank debateabout these issues. Thisdebate needs input fromall interested parties;refugee producing coun-tries, countries whichhost refugees, countriesof first asylum, UNHCR

and other interested organizations. In this 50th anniversary year, the time is

right to have this debate. I am very gladthat UNHCR has recognized this andacted upon it by instigating the globalconsultations exercise. The United King-dom is keen to make a full contributionto the consultation exercise as part of ajourney to a modern international pro-tection regime. B

Jack Straw was, until recently, Britain’sHome Secretary in charge of immigration andasylum issues. He is now Foreign Secretary.

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“We have along road totravel beforewe can achievea protectionregime whichis genuinelyfair andeffective…”

by interpreting the word ‘events’ to meaneither ‘events occurring in Europe’ or‘events occurring in Europe or elsewhere’—was incorporated because the drafters felt“it would be difficult for governments tosign a blank check and to undertake obli-gations towards future refugees, the ori-gin and number of which would be un-known.”

Arguably the Convention’s most im-portant provision—the obligation by gov-ernments not to expel or return (refouler)an asylum seeker to a territory where (s)hefaced persecution—was also fought over atlength. Diplomats questioned whethernon-refoulement applied to persons whohad not yet entered a country and, thus,whether governments were under anyobligation to allow large numbers of per-sons claiming refugee status to cross theirfrontiers.

Though the principle of non-refoule-ment is now generally recognized as so ba-sic it is considered part of customary law,the particular debate continues. In a con-troversial 1993 decision, the United StatesSupreme Court concluded that immigra-tion officials did not strictly contravenethe Convention when they seized and

repatriated boatloads of Haitian asylumseekers in waters outside U.S. territory. Butin the type of intricate legal opinion thatmight baffle anyone but a lawyer, theSupreme Court also acknowledged thatthe Convention’s drafters “may not havecontemplated that any nation wouldgather fleeing refugees and return themto the one country they had desperatelysought to escape; such actions may evenviolate the spirit of Article 33”, which for-bids forcible return.

The conference ended on 25 July 1951and the Convention was formally adoptedthree days later, but much hard work stilllay ahead. There was interminable finetuning and hard bargaining. As late as1959, UNHCR’s representative in Greececabled Geneva in despair: “I doubt whetherI have ever in my life asked so many timesthe most different persons for one and thesame thing as I have pressed in Greece forthe ratification of the Convention. Still theprospects are not brilliant.”

In a letter to UNHCR in 1956, India out-lined its domestic refugee concerns andconcluded, “In view of this, the govern-ment of India do not propose to become aparty to the above mentioned Convention

for the present.” India, the second mostpopulous country in the world, has stillnot acceded to the Convention, though itis, ironically perhaps, a member of UN-HCR’s Executive Committee, which helpsestablish global refugee policy.

Despite the hiccups and hesitations, inDecember 1952, Denmark became the firstcountry to ratify the Convention. Afterfive additional states—Norway, Belgium,Luxembourg, the Federal Republic of Ger-many and Australia—had also acceded, theConvention officially came into force on22 April 1954.

For the first time, there was a globalinstrument that represented a major im-provement on pre-World War II treaties

One of the key provisions of the Convention is

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and advanced international law in severalimportant ways.

The 1951 Convention contains a moregeneral definition of the term refugee andit accords them a broader range of rights.Influenced by the 1933 Refugee Conven-

tion and the 1948 Universal Declaration ofHuman Rights, the 1951 instrument allowsrefugees the freedom to practice religionand provide religious education to theirchildren, access to courts, elementary ed-ucation and public assistance. In the field

of housing and jobs, a refugee should betreated at least as favorably as other na-tionals of a foreign country.

Conversely, the Convention also spelledout the obligations of refugees toward hostcountries. “Too often, the refugee was far

from conforming to the rules of the com-munity,” a French delegate said at the timeof the drafting in pushing for such an out-line. “Often, too, the refugee exploited thecommunity.”

The instrument stipulated who is not

covered by its provisions in its ‘exclusionclause’ (people who commit war crimes,for instance) and when the Conventionceases to apply in its cessation clauses.

For the first time it created a formal linkbetween the treaty and an international

agency, UNHCR, which was given au-thority to supervise its application.

Crucially, more states helped draft thetreaty—and have since ratified it—than havesupported any other refugee instrument.

Despite its compromises and its limi-

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is non-refoulement or the non-forcible return of people to conditions such as these in Central Africa in the mid-1990s.

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GENDER: Persecution in the s

tations “what was done forrefugees through the Conventionwas a major achievement in thehumanitarian field,” according toIvor C. Jackson, who worked forUNHCR for 30 years, includingas deputy director of the organi-zation’s Department of Interna-tional Protection.

A NEW PHASEThe original framers had not expected

refugee issues to be a major international

problem for very long. UNHCR had beengiven a limited three-year mandate to helpthe post-World War II refugees and then, it

was hoped, go out of business. In-stead, the refugee crisis spread,from Europe in the 1950s to Africain the 1960s and then to Asia andby the 1990s back to Europe.

The Convention obviouslyneeded strengthening to remainrelevant for these new waves ofexiles. In 1967 the U.N. General As-sembly adopted the Protocol re-

lating to the Status of Refugees, which ef-fectively removed the earlier 1951 deadlineand the geographical restrictions while re-

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“Where, after all, do universal human rights

In 1989 Mihai and Maria fled the bru-tal regime of Romanian strongmanNicolae Ceausescu, floating on inner

tubes across the Danube River, before ap-plying for refugee status at UNHCR’s Bel-grade office.“I can’t find any grounds forrecognition,” a troubled male colleaguetold me “but I think you should talk to thewife. I have the feeling she has somethingto say, but she won’t say it to me. She won’teven look at me.”

Over a cup of coffee, outof earshot of her husband,Maria told a chilling story ofhumiliation and sexualabuse at the hands of Roma-nia’s secret police, the Secu-ritate, who were convincedher husband was involved inan underground oppositiongroup, and were determinedto get Maria to admit it.

Soon after Maria’s inter-view, the couple were reset-tled to the United States. Wehave stayed in touch overthe years, and I have oftenthought about how close wecame to denying their appli-cation and handing themover to the Yugoslav police,who would, in turn, have re-

turned them to the Securitate.When the fathers of the 1951 Conven-

tion—all men—drew up what would be-come the Magna Carta of internationalrefugee law, they crafted a refugee defini-tion which required a well-founded fear ofpersecution based on race, religion, na-tionality, membership of a particular so-cial group, and political opinion. They didnot deliberately omit persecution based ongender—it was not even considered.

Although it was recognized that womenmay be refugees in their own right, in

practice they had diffi-culty asserting claims. Of-ten, wives were not givena chance to tell their ownstories. Sometimes, likeMaria, they hesitated todo so in front of male in-terviewers. Little thoughtwas given to forms of per-secution which mightonly affect women.

Gender-based persecu-tion started to surface inthe 1980s, during the firstU.N. Decade for Women.In 1984, the European Par-liament passed what wasthen a revolutionary res-olution, asking states toconsider women whotransgress religious or so-

cietal mores as a “particular social group”for the purpose of refugee status determi-nation.

Some critics saw this as western im-pingement on cultural traditions of non-western societies. Others felt it was toobroad, and argued that persecution had tobe personal and specific. In 1985, UNHCR’sExecutive Committee adopted its firstConclusion on Refugee Women and In-ternational Protection, and in 1988, UN-HCR organized its first Consultation onRefugee Women.

TURNING POINTBut the real turning point came in the

1990s. Human rights violations of womengained visibility, and the movement to rec-ognize the universality of human rightsgained credibility. There was growing con-sensus that certain gender-related claimscan and do fall within the 1951 Convention.In 1991, UNHCR issued its “Guidelines onthe Protection of Refugee Women.” In 1993,Canada’s Immigration and Refugee Boardpublished groundbreaking guidelines on“Women Refugee Claimants fearing Gen-der-Related Persecution.” The UnitedStates, Australia and the United Kingdomfollowed with their own guidelines. Today,states are increasingly hesitant to denyclaims from women using the age-old ar-gument of ‘cultural relativism,’ that is, thatviolations of women’s rights are private in-

by Judith Kumin

The Convention is all about providing protection. UNHCR officials help a newly returned couple toGuatemala with their papers and documentation.

The MagnaCarta ofinternationalrefugee law…did notdeliberatelyomitpersecutionbased ongender… it wasnot evenconsidered.

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begin? In small places, close to home.” – Eleanor Roosevelt

taining other main provisions of the in-strument.

This was only one response as refugeeproblems became more complex in the fol-lowing decades, as the number of peopleseeking safety swelled from less than onemillion to a high of more than 27 million in

1995, and as new categories of exiles, suchas so-called internally displaced people,were created.

In one innovative and relatively benignapproach, some countries resorted tohome-grown ‘temporary protection’ ar-rangements to accommodate large-scale

influxes of asylum seekers, such as thehundreds of thousands of civilians whofled Bosnia and, later, Kosovo during the1990s.

These schemes had both benefits anddrawbacks. They allowed civilians to en-ter a country speedily and with a mini-

cidents specific to a particular religion orculture.

A handful of countries, led by Germany,still argue that, for an individual to be rec-ognized as a refugee, the persecution fearedmust be perpetrated by the state, or by anagent of the state. But UNHCR, and the

majority of asylum countries, insistthat what is important is not whoperpetrates the harm, but whetherthe state is willing and able to pro-tect the victim.

Another contentious issue iswhether there must be maliciousintent to harm the victim. This isparticularly important in the con-text of traditional practices such asfemale genital mutilation, where itis certainly not the intent of the per-petrators to harm girls, even thoughit is widely accepted that the prac-tice results in serious damage.

Political opinion is a complex area.Women may be persecuted not onlybecause of their own opinions, butalso because of those of their spouses.Females can face discriminatorytreatment because of religious stric-tures including travel, dress, or em-ployment more often than men.

But it is ‘membership in a partic-ular social group’ which has gener-ated the most debate. Though it iswidely accepted that some women

may be considered part of a ‘particular so-cial group’ for the purpose of status deter-mination, there is less agreement abouthow far that argument should go, in par-ticular in connection with women who arevictims of domestic abuse—the leadingcause of injury to women worldwide. Must

the state be unwilling to protect thewoman? Or simply unable to protect her?How effective must state protection be?

U.S. Attorney General Janet Reno grap-pled with these issues just hours beforeleaving office in January 2001. She subse-quently ordered the Board of ImmigrationAppeals to review a 1999 decision to denyasylum to a severely battered Guatemalanwoman who had sought protection in theU.S. from abuse by her former husband.

A historic development came with theadoption in Rome in July 1998 of theStatute of the International CriminalCourt which will adjudicate a broad spec-trum of gender-related acts: rape, sexualslavery, enforced prostitution, forced preg-nancy, enforced sterilization. In February2001, the International Criminal Court forthe former Yugoslavia handed down itsfirst convictions of Bosnian Serb officersfor rape as a crime against humanity.

Fifty years after the Refugee Conven-tion was adopted, it still contains just fivegrounds for recognizing someone as arefugee. There have been suggestions thata sixth ground—gender—should be added.But case law from around the world pro-vides ample evidence that gender-relatedclaims can be handled within the frame-work of the existing text. Gender-basedpersecution, and the persecution ofwomen in particular, has emerged fromthe shadows. B

Somali refugees attend a campaign againstfemale genital mutilation, a protectionproblem the Convention did not envisage.

STATES “SHALL ACCORD TO REFUGEES THE SAME TREATMENT AS IS ACCORDED TO NATIONALS WITH RESPECT TO ELEMENTARY EDUCATION...” Article 22

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mum of red tape, but since there were nobinding universal standards that apply totemporary protection, the rights accordedto asylum seekers were often fewer innumber and less generous in scope thanthose provided for under the Convention.In addition, beneficiaries were usually

granted only ‘temporary’ residence, as theterm implies, and governments could endtheir protection arrangements at their owndiscretion. Thus temporary protectionmay be a practical complement to the Con-vention, but according to UNHCR, it is

not, and should not be used as, a substitutefor the treaty.

There were also many negative devel-opments. Countries which earlier had wel-comed limited numbers of refugees or hadaccepted large groups for political as wellas humanitarian considerations (people

fleeing to the West from European com-munist countries, for instance) began toclose their doors. The term ‘Fortress Eu-rope’ was coined.

Inevitably, the Convention came undercloser scrutiny and convoluted legal argu-

ments were formulated to try to stem theflow of asylum seekers when politically ex-pedient.

Because the 1951 instrument does notdefine the term ‘persecution’ the definitionitself has been subject to wildly differing—and increasingly restrictive—interpreta-

tions. Some capitals argued that the natureof persecution has changed over the past50 years, and that people who flee civil war,generalized violence or a range of humanrights abuses in their home countries, and

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W hen a radical group of young officers overthrew Ethiopia’sailing Emperor Haile Selassie

in 1974, they ushered in nearly twodecades of mayhem. Thousands of peoplewere killed during the infamous Red andWhite Terror campaigns and hundreds ofthousands of civilians fled to sur-rounding East African states.

The discredited military wasitself ousted in 1991. The major-ity of refugees willingly returnedhome as a new civilian govern-ment instituted democratic re-form and in 2000, UNHCR ap-plied the so-called ‘cessationclauses’ of the 1951 Geneva Con-vention toward several thousandEthiopians who had left home be-fore 1991.

NO LONGER ELIGIBLEEffectively, the refugees were

told they were no longer eligiblefor international protection be-cause they could go back freelywithout fear of facing any type ofpersecution.

During any crisis, world atten-tion normally focuses on the‘front end’ of the problem—theflight of civilians, their attemptsto find asylum and the reactionof governments. The cessationclauses, which receive far less at-tention, were designed to helptidy up the ‘loose ends’ and findlong-term solutions in the after-math of crises.

As the Convention was beingframed, UNHCR’s first High Commis-sioner G.J. van Heuven Goedhart madeclear that both approaches were necessary.Protection was obviously vital, but itshould last only as long as absolutely nec-essary. “Refugee status,” he said, “shouldnot be granted for one day longer than isabsolutely necessary.”

TWO AREASThe cessation clauses were born in 1951.

They cover two broad areas. Four clausesrelate to major changes in the personal cir-cumstances of a refugee, for instance, if(s)he willingly returns home or obtains apassport or residency in another state.

The second area, ‘ceased circumstances’clause is applied following a fundamentalchange in the circumstances in which acivilian was forced to flee in the first place,an example being if his or her country oforigin returns to a state of democracy aftera period of war.

In this last category, UNHCR declared

cessation for 15 national groups in the last20 years including the Ethiopians who fledthe country before 1991, Chileans follow-ing democratic developments in that coun-try and Namibians following indepen-dence in their southern African state.

A low-key cessation debate continuesabout when and how the clausesshould be implemented, especiallyduring mass flight or when statesprovide so-called ‘temporary pro-tection’ to fleeing civilians ratherthan full Convention rights.

European and other nations of-fered hundreds of thousands ofcivilians who fled the Balkans inthe 1990s this kind of temporaryshelter. To ensure that govern-ments continue such ‘open door’policies in the future, some offi-cials argue that the cessationclauses must be applied swiftlyand liberally to encourage them.

Opponents counter that statesare already reluctant to extend fullConvention rights during ‘tem-porary protection’ situations andmight take such ‘flexibility’ as agreen light to apply the clauses ar-bitrarily against individuals.

There are other debates. Couldnot, for instance, many of an esti-mated 3.5 million Afghanrefugees, who are of the same eth-nicity as the ruling Taliban, returnsafely to peaceful parts of that dev-astated country after spendingyears in exile? UNHCR has ar-gued forcefully that “where onetype of civil war replaces another

as in the case of Afghanistan, cessation can-not be invoked.”

Some officials shudder at the conse-quences of such thinking. “The system hasworked well until now and must be usedsparingly,” one expert said. “We cannot runthe risk of opening a Pandora’s box and allkinds of nasty surprises jumping out.” B

CESSATION: When is a refugee not a refugee?

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sic human rights are threatened flee theirhomes, often to another country, wherethey may be classed as refugees and beguaranteed basic rights.

Who protects refugees?Host governments are primarily respon-sible for protecting refugees and the 140parties to the Convention and/or the Pro-tocol are obliged to carry out its provisions.UNHCR maintains a ‘watching brief ’, in-tervening if necessary to ensure bona fiderefugees are granted asylum and are notforcibly returned to countries where theirlives may be in danger. The agency seeksways to help refugees restart their lives,either through local integration, volun-tary return to their homeland or, if that isnot possible, through resettlement in‘third’ countries.

Is the Convention still relevant for the new millennium?Yes. It was originally adopted to deal withthe aftermath of World War II in Europeand growing East-West political tensions.But though the nature of conflict and mi-gration patterns have changed in the in-tervening decades, the Convention hasproved remarkably re-silient in helping toprotect an estimated 50million people in alltypes of situations. Aslong as persecution ofindividuals and groupspersists, there will be aneed for the Conven-tion.

Is the Conventionmeant to regulatemigratory move-ments?No. Millions of ‘eco-nomic’ and other mi-grants have taken ad-vantage of improvedcommunications in thelast few decades to seeknew lives in other,mainly western, coun-tries. However, they

should not be confused, as they sometimesare, with bona fide refugees who are flee-ing life-threatening persecution and notmerely economic hardship. Modern mi-gratory patterns can be extremely com-plex and contain a mix of economic mi-grants, genuine refugees and others. Gov-ernments face a daunting task inseparating the various groupings andtreating genuine refugees in the appro-priate manner—through established andfair asylum procedures.

How are refugees and economic migrants different?An economic migrant normally leaves acountry voluntarily to seek a better life.Should he or she elect to return home theywould continue to receive the protection oftheir government. Refugees flee becauseof the threat of persecution and cannot re-turn safely to their homes in the circum-stances then prevailing.

Does the Convention cover internallydisplaced persons?Not specifically. Refugees are people whohave crossed an international border intoa second country seeking sanctuary. In-

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Why is the Convention important?It was the first truly international agree-ment covering the most fundamental as-pects of a refugee’s life. It spelled out a setof basic human rights which should be atleast equivalent to freedoms enjoyed byforeign nationals living legally in a givencountry and in many cases those of citi-zens of that state. It recognized the inter-national scope of refugee crises and thenecessity of international cooperation, in-cluding burden-sharing among states, intackling the problem.

What is contained in the 1951Convention?It defines what the term ‘refugee’ means.It outlines a refugee’s rights including suchthings as freedom of religion and move-ment, the right to work, education and ac-cessibility to travel documents, but it alsounderscores a refugee’s obligations to ahost government. A key provision stipu-lates that refugees should not be returned,or refouled, to a country where he or shefears persecution. It also spells out peopleor groups of people who are not coveredby the Convention.

What is contained in the 1967 Protocol?It removes the geographical and time lim-itations written into the original Conven-tion under which mainly Europeans in-volved in events occurring before 1 Jan-uary 1951, could apply for refugee status.

Who is a refugee?Article 1 of the Convention defines arefugee as a person who is outside his/hercountry of nationality or habitual resi-dence; has a well-founded fear of perse-cution because of his/her race, religion,nationality, membership in a particularsocial group or political opinion; and is un-able or unwilling to avail himself/herselfof the protection of that country, or to re-turn there, for fear of persecution.

What is protection?Governments are responsible for enforc-ing a country’s laws. When they are un-able or unwilling to do so, often during aconflict or civil unrest, people whose ba-

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ternally displaced persons (IDPs) may havefled for similar reasons, but remain withintheir own territory and thus are still sub-ject to the laws of that state. In specificcrises, UNHCR assists several million, butnot all of the estimated 20-25 million IDPsworldwide. There is widespread interna-tional debate currently underway on howthis group of uprooted people can be bet-ter protected and by whom.

Can the Convention resolve refugeeproblems?People become refugees, either on an in-dividual basis or as part of a mass exodus,because of political, religious, military andother problems in their home country.The Convention was not designed totackle these root causes, but rather to al-leviate their consequences by offering vic-tims a degree of international legal pro-tection and other assistance and eventu-ally to help them begin their lives anew.Protection can contribute to an overall so-lution, but as the number of refugees in-creased dramatically in recent decades, ithas become clear that humanitarian workcannot act as a substitute for political ac-tion in avoiding or solving future crises.

What obligationsdoes a refugee have?Refugees are re-quired to respect thelaws and regulationsof their country ofasylum.

Is a Convention sig-natory required togive permanentasylum to allrefugees?The Conventiondoes not provide au-tomatic or perma-nent protection.There will be situa-tions where refugeeswill integrate perma-nently in their coun-try of asylum, but al-ternatively a person

may cease to be a refugee when the basisfor his or her refugee status ceases to exist.Voluntary repatriation of refugees to theircountry of origin is UNHCR’s ‘preferred’solution, but only when conditions in thatstate permit their safe return.

Who is not covered by the Convention?Persons who have committed crimesagainst peace, a war crime, crimes againsthumanity or a serious non-political crimeoutside the country of refuge.

Can a soldier be a refugee?A refugee is a civilian. Former soldiersmay qualify, for instance, but a person whocontinues to take part in military activi-ties cannot be considered for asylum.

Can non-Convention countries refuseto admit would-be refugees?The principle of non-refoulement—theforcible return of people to countrieswhere they face persecution—is part of cus-tomary international law and is bindingon all states. Therefore no governmentshould expel a person in those circum-stances.

Who or what is an ‘agent of persecution’?This refers to a person or organization—governments, rebels or other groups—which force people to flee their homes.The origin of the persecution, however,should not be decisive in determiningwhether a person is eligible for refugeestatus. What is important is whether a per-son deserves international protection be-cause it is not available in the country oforigin.

What is ‘temporary protection’?Nations at times offer ‘temporary protec-tion’ when they face a sudden mass influxof people, as happened during the conflictin the former Yugoslavia in the early1990s, and their regular asylum systemswould be overwhelmed. In such circum-stances people can be speedily admitted tosafe countries, but without any guaranteeof permanent asylum. Thus ‘temporaryprotection’ can work to the advantage ofboth governments and asylum seekers in

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specific circumstances. But it only com-plements and does not substitute for thewider protection measures, includingrefugee asylum, offered by the Conven-tion.

Are some countries, such as those inEurope, being swamped by asylumseekers?Countries around the world, includingsome in Europe, believe they are beingoverwhelmed by asylum seekers. Andwhile it is true that numbers have in-creased inexorably in the last few decadesin many areas, the concerns of individualstates are all relative. The bottom line isthat some nations in Africa and Asia—states with far fewer economic resourcesthan industrialized countries—sometimeshost larger numbers of refugees for farlonger periods of time.

But does the very fact of accession to the Convention provide a ‘pull’ factor for increasing numbers of asylum seekers?No. Some states hosting the largest refugeepopulations are not parties to refugee in-struments. Geopolitical considerations orfamily links play a more crucial role as faras ‘attractiveness’ of destination is con-cerned.

Does accession infringe upon statesovereignty?Sovereignty is never absolute. Interna-tional relations imply a reasonable and ac-ceptable level of compromise. The refugeeinstruments reconcile state interests withprotection. The granting of asylum, forinstance, has not been incorporated intothe refugee instruments and continues tobe at the discretion of individual govern-ments.

Can a country be declared ‘safe’ in thesense that it cannot produce refugees?No. Even in states where there is gener-ally no serious risk of persecution, claimsby nationals must still be considered.These may be channeled through an ‘ac-celerated procedure’ provided that the asy-lum seeker is given a fair hearing. B

about the Refugee Convention

who usually do so in large numbers, arenot fleeing persecution per se.

UNHCR says that war and violencehave been used increasingly as instrumentsof persecution according to the Conven-tion. In conflicts in the former Yugoslavia,the Great Lakes region of Africa andKosovo, for instance, violence was deliber-ately used to persecute specific communi-ties; ethnic or religious ‘cleansing’ was theultimate goal of those conflicts.

THE BAD GUYSIn 1951, so-called ‘agents of persecution’

were generally assumed to be states. Now,refugees more often flee areas where thereis no functioning government, where theyare victims of shadowy organizations, rebelmovements or local militia. A few gov-ernments insist that actions by these ‘non-state agents’ cannot be considered ‘perse-cution’ under the Convention. Others rea-son that if a country tolerates, is complicitin, or cannot prevent persecution by non-

EXCLUSION: To exclude or not to exclude

W hen a hijacked Afghan airlinertouched down at London’sStansted airport in early 2000,

the incident touched off an internationalfurore. Britain’s media initially greeted theAfghan passengers as innocents escapingthe wrath of the vengeful Taliban rulers.

But in an atmosphere of rising xeno-phobia, the welcome quickly turned intocondemnation and even women and chil-dren were denounced by some newspapersas frauds, so-called ‘bogus’ asylum seekersstaying in luxury hotels at the taxpayersexpense.

Britain’s government insisted no Afghanwould stay in the country a moment morethan absolutely necessary. European gov-ernments watched as the drama developedinto a test case of sorts on the issue of pro-tection.

The hijackers claimed they had escapedAfghanistan only one step ahead of the

Taliban who had already tortured some oftheir group. The government set asidetheir asylum claims and put 12 of them ontrial. Nearly 80 civilians, including somefamily members of the hijackers, claimedasylum. Two claims were approved and 37rejected cases are being appealed. The crewand other passengers returned home.

Which is where the story becomes in-teresting. Persons involved in hijackingnormally could be denied refugee statusunder the so-called ‘exclusion clauses’ con-tained in the 1951 Convention. UNHCRhas insisted, however, despite mountingpressure from governments worried aboutincreased terrorism, that even seeminglyclear cut exclusion situations must betreated with the utmost delicacy, an ap-proach vindicated in the hijack drama.

Though members of the airline crewinitially were treated as heroes, they weresubsequently harassed and threatened.

Three crew members escaped to neigh-boring Pakistan.The fate of the civilian pas-sengers is unclear.

BARRING CLAIMANTSThe Convention’s exclusion clauses bar

a person from refugee status for a varietyof reasons including crimes against hu-manity, war crimes, serious non-politicalcrimes committed outside the country ofrefuge and acts contrary to the purposesand principles of the United Nations.These include a wide range of offensesfrom murder and rape to the wanton de-struction of cities.

The clauses were designed “to depriveperpetrators of heinous acts of refugee pro-tection and to safeguard the receivingcountry from criminals who present a dan-ger to that country’s security,” accordingto a UNHCR briefing note on the issueand “from this perspective, exclusion

Innovative programs such as ‘temporary protection’ are employed in cases ofmass influxes of people. Here civilians fleeing Kosovo arrive in the United Statesunder one such initiative.

When can a person be excluded from protection?

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clauses help to preserve the (overall) in-tegrity of the asylum concept.”

But widespread atrocities committed inthe Balkans during the 1990s and theRwandan genocide fueled concerns aboutinternational legal loopholes. Some gov-ernments feared terrorists could use theConvention as a shield and increasinglyrely on anti-terrorism international in-

struments to combat what they perceiveas the menace.

UNHCR has insisted that the Conven-tion and its exclusion clauses are wideranging and flexible enough to bar unde-sirables from achieving refugee status. Theagency worried instead that “in a climateof numerous challenges to asylum, exclu-sion clauses should not become another

avenue by which deserving cases are de-nied international protection.”

Even if a person has committed an of-fense serious enough to warrant exclusion,jurists say, the severity of the crime shouldstill be ‘balanced’ against the likely fate ofthe claimant if (s)he is barred from the asy-lum process. For example, if a drug traf-ficker faces torture or execution upon re-turn, he may be granted refugee status.

There are unresolved issues which havebeen explored during the current globalconsultations. The consequences of exclu-sion, for instance; whether a person ex-cluded should be prosecuted by the hostauthorities or returned to the country oforigin.

Humanitarian officials worry too aboutthe forcible return (refoulement) of unde-sirable people from countries which havenot acceded to international human rightsinstruments.

“This whole area is very sensitive,” onelawyer said, “because we are generallydealing with a potential refugee who mayalso be a criminal. The bottom line, how-ever, is that application of the exclusionclauses must also remain the exceptionrather than the norm.” B

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state agents, then refugee status should begranted to the victims.

Given the Convention’s silence on theissue, UNHCR believes the source of thepersecution is less a factor in determiningrefugee status than whether mistreatmentstems from one of the grounds stipulated

in the Convention. Last year, the EuropeanCourt of Human Rights reaffirmed thatpersecution by non-state agents is still per-secution by ruling that returning asylumseekers to situations in which they couldface persecution violates the EuropeanConvention of Human Rights, whateverthe origin of the persecution.

Some states argued that the Conven-tion only applies to individuals (“…the term‘refugee’ shall apply to any person who…”);

therefore, the provisions of the Conven-tion do not apply to large groups of peopleseeking asylum in a country en masse,which is increasingly the case. Humani-tarian jurists say that nothing in the defi-nition implies that it refers only to indi-viduals and underline that when the Con-

vention was drafted, its intendedbeneficiaries were, in fact, large groups ofpeople displaced by World War II.

The Convention’s provisions present acomplex legal challenge. While some ar-ticles are absolute, many are flexibleenough to allow the treaty to live andevolve, through interpretation, as timesand circumstances change. Equally, theConvention’s silence on a number of issues,including asylum, gender and burden-

sharing, has ignited heated debate in re-cent years among governments, legalscholars and UNHCR.

Although the Universal Declaration ofHuman Rights asserts the right of personsto seek and enjoy asylum, the Conventionmakes no mention of such a right, nor of

any obligation on countries to admit asy-lum seekers. The Convention does protectthose refugees who lost, left behind orcould not obtain proper documentationand so entered a potential asylum countryunlawfully. States are obliged not to im-pose penalties on those people as long as“they present themselves without delay tothe authorities and show good cause fortheir illegal entry or presence.”

The only reference to states’ responsi-

STATES “SHALL NOT IMPOSE PENALTIES, ON ACCOUNT OF THEIR ILLEGAL ENTRY OR PRESENCE, ON REFUGEES...” Article 31

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bilities in admitting refugees appears inthe drafters’ Final Act. They recom-mended “that Governments continue toreceive refugees in their territories and…act in concert in a true spirit of interna-tional cooperation in order that theserefugees may find asylum and the possi-bility of resettlement.”

GENDER VIOLENCEThe Convention doesn’t mention gen-

der in its list of grounds on which refugeestatus is based, but there is growing recog-

nition that gender-related violence undercertain circumstances falls within therefugee definition (see box). In consideringa case in 1999, Great Britain’s House ofLords determined that women could beconsidered “a particular social group”when persecuted because of behaviors orattitudes at odds with prevalent socialmores—mores, say, that discriminateagainst women or accord them less legalprotection than men.

While the Convention is predicated oninternational cooperation and recognizesthe need to share equitably the burdensand responsibilities of protecting refugees,it gives no prescription on how to do so.

Burden-sharing has become one of themost contentious issues among receivingcountries, one that involves not just peo-ple and money but competition for food,medical services, jobs, housing and the en-vironment. Left unresolved, the issuecould threaten the very existence of theinternational refugee protection regime.

The problem of internally displacedpersons—people displaced by war and gen-eralized violence but who remain withintheir home countries—demands urgent ac-tion. This group now numbers between

20 and 25 million in at least 40 countries,compared with an estimated 12 millionrefugees. Although they may have fledtheir homes for the same reasons asrefugees, because they have not crossed aninternational border, they still, at least intheory, enjoy the legal protection of theirgovernments and so are not covered by theRefugee Convention. But given the mini-mal or non-existent protection accordedto most IDPs, the international commu-nity has begun considering how best to se-cure their rights.

The growing tendency among somegovernments to interpret the Convention’sprovisions restrictively is a reaction to the

strain imposed on asylum systemsby the rise in uncontrolled mi-gration and both real and per-ceived abuse of those systems.Cheap international travel andglobal communications areprompting increasing numbers ofpeople to abandon their homesand to try to improve their lotelsewhere, whether for economicor refugee-related reasons.

Smugglers and traffickers havelaunched a multi-billion dollartrade in people. Economic mi-grants and genuine refugees oftenbecome hopelessly entangled inthe race to reach ‘promised land.’As the distinction between the twobecomes blurred, sometimes in-tentionally so, the rhetoric againstall those perceived as ‘foreigners’and ‘bogus refugees’ and, increas-ingly, against the Refugee Con-

vention, itself, has become more barbed.There is no question that the number of

those seeking asylum in developed coun-tries increased substantially over the pasttwo decades. In 2000, just over 400,000persons applied for asylum in the 15 coun-tries of the European Union (EU), doublethe number in 1980, but down from a highof 700,000 in 1992. With the increase inasylum seekers comes an increase in ex-penditures to pay for refugee status deter-mination procedures and for the social as-sistance provided to asylum seekers. By

one estimate, that expense among devel-oped countries around the world reached$10 billion in 2000. When only one-quar-ter of asylum seekers is ultimately grantedrefugee status, as happened in the EU in1999, governments balk.

RECONSIDERING THE CONVENTIONBritish Prime Minister Blair said it was

now time to “stand back and consider its[the Convention’s] applications in today’sworld.” British policy in future, he said,would be “asylum for those who qualifyunder the rules, fast action to deal withthose who don’t.” British Home SecretaryJack Straw concurred that “the Conven-

The Convention details people who are NOT eligible for refugee status, including soldiers.

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tion is no longer working as its framers in-tended.” Citing a tenfold increase in thenumber of asylum seekers in Great Britainsince 1988, Straw added that “would-be mi-grants are taking advantage of one aspectof the Convention—namely, that it placesan obligation on states to consider any ap-plication for asylum made on their terri-tory, however ill-founded.”

Australian Minister for Immigrationand Multicultural Affairs Philip Ruddock

has become an outspoken critic both of theConvention and UNHCR’s overall perfor-mance. The agency, he said recently,“spends cents a day looking after people inAfrica and we spend tens of thousands ofdollars on people in developed countrieswho have been free enough to travel andhad the money to engage people smug-glers.” There appeared, he said “one stan-dard for the UNHCR, and there is another

standard that elements of the UNHCR im-pose on developed countries and I don’tthink it can go on.” One casualty of this sit-uation and the increasing number of peo-ple unilaterally arriving in Australia, Rud-dock said, was the government might haveto slash the numbers of refugees it admit-ted annually for permanent resettlement.

Lawmakers from Washington to Berlinhave worried that the Convention was aconvenient screen behind which everyone

from terrorists to mass murderers anddope dealers could hide. Humanitarianlawyers insist that existing provisions arealready strong and flexible enough to meetthese challenges and already exclude suchcategories of persons.

Many of the arguments made by crit-ics also miss or disregard a fundamentalfact: the Convention was never intendedto be a migration control instrument. “The

problem of migration has to be addressedin tandem with the refugee problem, butusing different tools,” says Feller. “TheConvention can’t be held responsible forfailing to deal with situations it was neverdesigned to address.”

It may be open to interpretation, but ac-cording to Feller a restrictive reading ofthe Convention is not the appropriate re-action. “There are provisions in the Con-vention that could be written better; the

letter, the terms have, to some extent,worked against the instrument in today’sworld,” she said. “But you cannot interpretinternational law as though it is domesticlegislation. It is in one sense an instrumentof compromise, drafted by diplomats. Thebasis of the Convention is timeless.”

While some governments of developedcountries are reading the Convention ever-more restrictively, and jeopardizing the

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The British Broadcasting Corporation(BBC) World Service radio network

is producing one of its most ambitious se-ries ever to coincide with the anniversaryof the 1951 Refugee Convention. EntitledThe Right to Refuge, the landmark pack-age will cover every aspect of the complexworld of the refugee—from flight, to asy-lum and eventual return home.

BBC teams were deployed worldwidefor many weeks to gather material. Pro-grams will be broadcast in a total of ninelanguages, some to a global audience, oth-ers to regional listeners, over a period ofseveral months starting in June.

A special web site will carry audio of se-ries programs, analysis, first person refugeetestimonies and interactive maps. In a re-

lated program, Talking Point, World Ser-vice listeners will be able to put their ques-tions to Ruud Lubbers, the United NationsHigh Commissioner for Refugees.

The BBC calls the refugee community“a hugely misunderstood and misrepre-sented group.” The series will present a“dispassionate and clear appraisal of an is-sue” which is surrounded by myths andobscured by a mounting controversy over‘bogus asylum seekers’.

The programs will be designed to raiseawareness of refugee issues, “cut throughthe claims and counter claims” aboutrefugees, give uprooted peoples themselvesa direct voice in talking about their livesand create a dialogue between refugees andvarious government and agency officials.

The main six programs, each 30 min-utes long, will be broadcast in English.They will include a historical overview ofthe changing world of refugees, the in-creasing threats to refugee protectionworldwide, ‘forgotten’ refugees in devel-oping countries and asylum seekers in theWest. Other programs will tackle the prob-lem of when refugees should return homeand the future of the Geneva Convention.

Twelve shorter, 15-minute programsaimed specifically for educational use, willtackle key themes and issues and eight se-ries of up to 10 programs exploring re-gional problems will be broadcast in Per-sian/Pashto, French for Africa, Indone-sian, Albanian, Serbian/Croatian, Urdu,Russian and Spanish for the Americas. B

Broadcasting to the world…The BBC launches a landmark series on the world of refugees

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OR A CRIME AGAINST HUMANITY...” Article 1F (a)

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safety of genuine refugees in the process,the quality of asylum in developing coun-tries has been steadily deteriorating.Refugee camps have been attacked, armedmilitias have been allowed to mingle with,and intimidate, refugees with seeming im-

punity and civilians, including tens ofthousands of children, have been forciblyrecruited by the gunmen.

Many developing countries host largenumbers of refugees for long periods oftime, with ruinous consequences for their

already scarce economic and natural re-sources. Yet, they say, they receive little as-sistance from the developed world for do-ing so. Two countries in southwest Asia,Iran and Pakistan, host twice as manyrefugees as do all the countries of western

Desperately seeking An official view of the daily drama behind the quest for refuge

R efugees can change the law. A mannamed Singh sought asylum inCanada in the early 1980s claim-

ing fear of persecution in India. He wasinterviewed by an immigration officerand a verbatim record was sent to an of-ficial panel in another city. The decision-makers never saw him; they never heardhim describe his experiences or speakabout his fear of persecution if he were re-turned to India.They rejected his claimfor asylum based solelyon the record of his in-terview and other docu-mentation.

Mr. Singh’s story didnot end there. He ap-pealed his rejection and in1985 the Supreme Courtof Canada said that proce-dural fairness requiredthat a refugee claimantmust be allowed to speakdirectly to an asylumpanel. This was particu-larly true if the credibil-ity of the refugee claimantwas at issue.

At the time (and stilltoday in many westerndemocracies) immigra-tion or justice officials interviewed andmade an initial decision on refugee claims.Courts or administrative law tribunalswere reserved for reviewing the decisionsof government officials by way of appeal.Some appellate bodies had the authorityto hear the live testimony of the claimant,others were limited to a review of the writ-

ten evidence.Following the Singh decision, Canada

chose a radically different way. All eligi-ble claimants would now receive a hear-ing before a two-member panel of the Im-migration and Refugee Board (IRB) to en-sure that (s)he received a full opportunityto explain why (s)he feared persecution. Ifpanel members disagreed, the claim wouldbe decided in favor of the applicant.

The claimant was assured a wide rangeof protection including the right to coun-sel and an interpreter, the right to be heard,

prior disclosure of all doc-umentary evidence andwritten reasons justifyinga negative decision.

No one was assigned theinstitutional role of oppos-ing the claim. A neutralrefugee hearing off icerwould assist board mem-bers by preparing docu-mentary evidence andquestioning the applicant.Both claimant and hearingofficer would have full ac-cess to a world-class docu-mentation center contain-ing human rights andcountry information. Theasylum seeker, as well asthe refugee officer, could

make submissions on the evidence.

WORKING WELLBy and large, the Canadian system has

been successful. Yet, despite all of the pro-cedural protections, there are certain in-herent qualities to the refugee experiencethat will always present a challenge to the

most astute and conscientious decision-maker.

In addition to the relentless pressure ofmounting caseloads demanding a rapidand efficient hearing, the decision-makermust address the unique realities of hear-ing refugee claims.

Every day board members hear storiesof human suffering. Occasionally, it is hor-rific: rape, beatings, imprisonment, tor-ture, threats of death to the claimant ortheir family. Sometimes it is unspeakable,beyond imagination. I recall a Tutsi sur-

“The mostterrible realityis that it isoften verydifficult todistinguishbetween agenuine andfalse refugee.”

Canada’s immigration court system in action.

by Peter Showler

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23R E F U G E E S

safety

vivor of Rwanda’s genocide whose homewas invaded by a gang of machete-wield-ing men, and who was left for dead. Sherecovered consciousness to find the bod-ies of her family littered about her on thefloor.

It is the member’s job to decide the cred-ibility and truth of each story and whetherthe claimant’s fear conforms with the def-inition of a Convention refugee.

It is a wonderful privilege for boardmembers, if a claimant is judged to betelling the truth, to inform someone who

genuinely fears persecutionthat they are safe and havefound asylum.

Many refugees also earn therespect of officials. They tellmore than a tale of oppression.Their stories are often a tri-umph of the human spirit, ofthe will to survive, to endure,to maintain a sense of personaldignity in the most debasing ofcircumstances.

Another reality in this dayby day drama is less pleasant,when a member does not be-lieve the claimant or finds hisor her fear of persecution is notwell-founded.

Sometimes their story doesnot fit the refugee definition,there has been a change of cir-cumstances or the specif icharm feared does not fit thedef inition of persecution.Sometimes the story is exag-gerated and the applicant issimply fleeing poverty, squalorand general oppression. Some-

times the story is fabricated but containsthe ring of truth because the claimant isthe persecutor rather than the persecuted.Sometimes the story is simply false.

TERRIBLE REALITIESThe most terrible reality is that it is of-

ten very difficult to distinguish betweena genuine and false refugee. Therein liesthe ultimate challenge.

The majority of claims fall into a mid-dle ground where the evidence is am-biguous and certainty is elusive. Board

members have several tools to assess cred-ibility: they are well-trained, they havecountry expertise and country informa-tion and a research center for specificclaimant information.

But the challenges remain formidable.Claimants are often not good witnesses.They may be poorly educated, confused,traumatized, inarticulate, frightened. Theircultural and social realities may be totallydifferent from that of a board member.

They don’t understand questions andappear evasive. They speak through an in-terpreter, which always blunts the imme-diacy of their testimony and occasionallycauses real confusion. The events they de-scribe occurred in far away countries inthe middle of civil strife and are often im-possible to document.

Both genuine and false asylum seekersuse illegal means to come to Canada. Iron-ically, while many people lack adequatedocuments, some wealthy ‘ illegal’claimants may have all the necessary pa-perwork, having bribed corrupt officialsor smugglers back home.

In summary, board members daily seepeople who tell imperfect stories of horri-ble personal abuse which may or may notbe true and which are not easily verifiedby normal objective forms of evidence.Their job is to listen carefully and to makea well-reasoned decision promptly, withinthe law and rules of natural justice. It is ahumbling and difficult task, but I am surethat Mr. Singh would agree, one well worththe effort. B

Peter Showler is the Chairman ofCanada’s Immigration and Refugee Board(IRB).

Europe combined. Yet in 2000, the world’swealthiest nations contributed less than $1billion—one-tenth the amount they spenton maintaining their own asylum sys-tems—to fund UNHCR’s protection workaround the world.

MAKING PROTECTION WORKBalancing the interests of governments

with the needs of refugees is difficult butessential. “We share states’ concerns aboutthe costs and misuse of the asylum system,the disproportionate and protracted bur-

den some nations have to bear, the un-availability of timely and appropriate solu-tions to refugees’ problems,” says Feller. “Ofcourse, burden-sharing can never be a pre-condition for meeting responsibilities.

ÃTurn to page 29

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24 R E F U G E E S

A 642-day journey through the American immigration courts

One by one, the 10 men line upagainst a wooden rail in a Virginiafederal courtroom, right hands

raised, pledging to tell the truth, the wholetruth and nothing but the truth. “I do,” eachreplies—one after another after another.

This is America at its most basic: achance for these men, eight of whom havefled persecution themselves, to tell an im-migration judge what they know aboutTialhei Zathang, a math teacher fromMyanmar who is applying for political asy-lum.

U.S. Immigration Court is unique inAmerican jurisprudence. There is nobailiff, no court reporter, no one to recordthe hearings but judge Joan V. Churchill,using a tape recorder that she can turn onand off at will. There isn’t even a full dayset aside for Zathang’s case, which meansthe witnesses will come back again andagain, workday after workday, some nevergetting a chance to testify.

For Zathang and his supporters, thewait will prove excruciating. From the timeZathang files his asylum application, 642days will pass before Churchill issues herruling. During those 21 months, documents

will be lost, attorneys will come and go andscheduling mistakes will multiply.

And the decision, when it finally comes,will appear to contradict much of what wassaid in court. While Zathang’s case may beunusual, its tortuous path reflects broaderproblems with the nation’s ImmigrationCourt system. Congress defines the mis-sion of the courts as “the expeditious, fairand proper resolution of matters comingbefore immigration judges.” But in reality,the courts are often backlogged. It is diffi-cult to find competent translators. And theidentity of each of the 219 judges can affectthe outcome. Statistics tell part of the story:only 20 judges granted asylum in morethan 30% of their cases, while 69 judges ap-proved fewer than 10% of the asylum cases.

To those immigrants who have experi-enced political or religious persecutionfirsthand, asylum is a cornerstone ofAmerica’s image as the land of the free andthe home of the brave. But relatively fewof them ever get it. A Los Angeles Timescomputer analysis of Immigration Courtstatistics during a six-year period from 1994to 2000 shows that judges approved asy-lum requests in about 14% of their cases.

This is the story of one case in onecourtroom, before just one of the immi-gration judges who decide the fates of tensof thousands of asylum seekers each year.

Tialhei Zathang shows up at an INS(Immigration and Naturalization Service)office in Arlington, Virginia, and appliesfor asylum. He says he had been persecutedin Myanmar, the southeast Asian nationformerly known as Burma.

He is a small, intense man with an in-dentation on the left side of his forehead.Zathang says it came at the hands of theBurmese military, who detained him for11 days in 1988 and beat him until he wasunconscious because he was a practicingChristian in a Buddhist country who ac-tively fought for democracy.

Zathang left Myanmar on February 27,

DAY ONE: December 4, 1998

by Lisa Getter

ASYLUM IN THE ‘LAND OF THE FREE’

Zathang, left, prays in his native Chin language at a church in Maryland.

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25R E F U G E E S

1998, after being warned he was about tobe arrested again. He says he and his fam-ily reached India after walking through thejungle for 16 grueling days, clearing a pathwith a machete as they went. He carriedhis 5-year-old daughter on his back, whilehis 6-year-old son walked on his own andhis 15-year-old son carried supplies. If hewere to return to his homeland, he says,he would be killed.

Friends and a Baptist pastor in India col-lected money for him to buy a plane ticketto New York and an Indian passport issuedillicitly by a local official willing to over-look the fact that Zathang was not a citi-zen of India. He arrived in the UnitedStates on November 1, 1998.

To win asylum under U.S. law, immi-grants must prove they cannot return totheir country “because of persecution or awell-founded fear of persecution on ac-count of race, religion, nationality, mem-bership in a particular social group, or po-litical opinion.”

Most applicants have little evidence toprove a well-founded fear of persecution.Often their only proof is the story they tell.Zathang’s interview is scheduled for Jan-

uary 4, 1999. If the INS officer who inter-views Zathang believes his story, he couldbe granted asylum immediately. But theofficer turns the application down. It is re-ferred to Immigration Court.

Six months go by. An INS lawyer mis-places, then finds, Zathang’s birth certifi-cate. A few days before the initial trial datein April, the INS decides to argue that Za-thang has committed fraud. Zathang’s teamsays it needs more time to prepare.

The case is set to begin at 1 p.m.Churchill enters the courtroom at 1:05 andsays she won’t get to the case until “2:30, atleast.” It is past 3:30 when she finally is ready.

Judges such as Churchill have enor-mous discretion to interpret immigration

DAY 206: June 28, 1999

law. The Board of Immigration Appealshas been reluctant to overrule judges, evenwhen some members believe they arewrong. Churchill, the toughest immigra-tion judge in the Washington D.C. area,grants fewer asylum requests than the na-tional average and awarded asylum in only233 of the 2,302 cases since October 1994.

Churchill is buried in paperwork. Whileimmigrants testify, she addresses, stuffs,then licks the back of an envelope. Sheshuffles documents. She schedules futurehearings. She copies documents on a ma-chine near her desk.

Zathang’s case file is 2 inches thick. Hiswitnesses, some of whom have beengranted asylum themselves, are eager totestify about the time he led a demonstra-tion that angered the military, about thetime he was imprisoned in his homelandfor 11 days. They spend most of their timesitting in the lobby. As witnesses, they can’tlisten to the testimony.

Under the U.S. Constitution, asylumseekers are not entitled to a government-paid lawyer. Law schools try to fill the gapby sponsoring immigration law clinics,which give students the chance to try cases.

Zathang’s legal team comes from nearbyGeorgetown University. Two second-yearlaw students, Jessica Attie and Grace Lou,have spent hundreds of hours preparinghis case. The weekend before his packetwas due at the court, they worked 72 hoursnonstop. The interpreter assigned to thecase does not speak the same dialect as Za-thang. Though it is clearly difficult for themen to understand each other, the trialproceeds. Karl Klauck, the INS trial attor-ney, is the third government lawyer on thecase. That kind of turnover is not unusualin asylum cases.

Klauck argues that Zathang’s applica-tion should be denied because of fraud. Hesays Zathang is not Burmese at all becausehe came to America with an Indian pass-port. He contends that Zathang is claimingMyanmar nationality simply to win asy-

lum. He says the case is “a house of cards.”Although it is late afternoon, the stu-

dent lawyers want to call retired RutgersUniversity political science professor JosefSilverstein as a witness. They have ar-ranged for him to testify by phone, a com-mon practice in Immigration Court be-cause few immigrants can afford to paytheir witnesses’ travel costs. Churchill isreluctant. “Why is it so urgent I hear thewitness today?” she asks.

Silverstein has been waiting at his NewJersey home for hours. He has testified be-fore Congress on Myanmar. He has alsotestified in Immigration Court. Most of hisresearch has been about Myanmar’s eth-nic minorities such as Zathang, who sayshe is from the Chin state near the borderwith India.

In his written affidavit, Silverstein urgesthe court to grant Zathang asylum. “Basedon my professional and personal experi-ence, I can attest that should Mr. Zathangbe deported back to Burma, he would mostcertainly face imprisonment and torture,and even execution.”

Static crackles on the speaker phone,which makes it hard for Silverstein to hear.

Churchill loses her patience and soon cutshim off. It is almost 6 p.m. The judgereschedules the case for another day, amonth away.

Expectations are high among Zathang’sfriends as the hearing resumes. Churchillhad said she will set aside enough time tohear his case today. But she has alreadyscheduled other cases for the afternoon. An-other lawyer, Lora Ries, is handling the case.

Churchill wants to know whether theINS would support asylum if Zathangproves he is Burmese. Ries says the INS“still has some trouble with the case” andwould oppose asylum even then.

This time, Silverstein has taken thetrain from New Jersey to testify in person,

DAY 238: July 30, 1999

U.S. IMMIGRATION COURT IS UNIQUE IN AMERICAN JURISPRUDENCE. THERE IS NO BAILIFF, NO COURT REPORTER,

NO ONE TO RECORD THE HEARINGS BUT THE JUDGE HERSELF,USING A TAPE RECORDER THAT SHE CAN TURN ON AND OFF AT WILL.

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26 R E F U G E E S

the ticket paid for by the law school. Buthe still has trouble making his points. Thejudge interrupts Ries, instructing her howto ask the questions. Frederic K. Lehman,an anthropology and linguistics professorat the University of Illinois, takes thestand.

Lehman offers a piece of evidence thatseems to cut right through the govern-ment’s case: he knew Zathang in Burma.They met at the University of Mandalaywhen Lehman was a visiting professor in1981.

Not only that Zathang speaks a dialectfound only in the Chin state he claims ashome. The judge promises to get back tothe case after she wraps up some othermatters on her docket.

The hours go by. Finally, it is Zathang’s

turn to tell his story. He sits with his stu-dent lawyers, facing the judge, and testifiesthrough a different interpreter, who thistime speaks his dialect. Churchill tells Za-thang he must look at her while he testi-fies, but then the judge rarely looks his way.

“Just because I wanted to have democ-racy in my country, I was beaten and tor-tured,” Zathang says. “I can’t even expressthe words about how I hate the militarypeople in my country.”

Churchill wants to know why he won’tagree to be sent back to India. Zathangtakes off his glasses, holds them in hishands and looks straight ahead. He un-derstands some English and knows this isnot a good sign.

He says he is afraid to go back to Indiabecause the authorities there have recentlybegun deporting Myanmar refugees backto their homeland.

The judge breaks again to hear anotherunrelated matter. By now, the INS lawyerhas a headache. Attie’s mother, who hascome to watch the proceedings, gives thelawyer aspirin. After the break, Zathangcontinues to describe his life in Myanmar.

He explains how he became a memberof the Chin National Front, a pro-democ-

racy group, how he was forced to spendmore than 10 hours a day carrying equip-ment for the soldiers and how, finally, hewas warned by the wife of the villageleader that he would be arrested again. Sohe fled to India, where he managed to buythe passport that has become the crux ofthe government’s case against him.

When he is finished, his first cousinPhilip Hrengling speaks on his behalf.Hrengling, a pastor, already has beengranted asylum. Like Zathang, he fledMyanmar to India, where he too bought apassport on the black market.

Churchill wants to know whyHrengling doesn’t have the same last nameas Zathang. In the back of the room, pro-fessor Lehman shakes his head, knowingthat few Burmese use surnames. “I can tell

you for sure he is not an Indian citizen. Weare born in the same village and his fatherand my father are brothers,” Hrenglingtestifies.

The case is not over yet, but it has beena long day. The only free day the judge canfind on her calendar is one when the lawstudents won’t be in town. She schedulesthe case for that day anyway.

Georgetown University law professorMary Brittingham cuts short a vacation totry the case for her two students.

INS lawyer Ries isn’t there either. Inher place is still another INS trial attor-ney, Sandra Czaykowsky, who is unfamil-iar with the case.

The INS lawyer raises another obsta-cle. She says the interpreter at the previoushearing had met Zathang at a church ser-vice, a disclosure not made to the court.She says the law students helped pick theinterpreter, which makes his interpreta-tion of Zathang’s testimony suspect.

But it is too late to make a change.Zathang takes the stand again. He be-

comes animated when describing a 15-

DAY 245: August 6, 1999

minute speech he gave at an all-daydemonstration in front of thousands: “Isaid the military system of governmenthas to come down!”

“There was a time when you actuallyleft Burma, yes or no?” the INS lawyerasks Zathang.

“He’s here,” Churchill interrupts. “Whywould you ask a question like that?”

The judge breaks for lunch and tellseveryone to be back at 1:15 p.m. But she hasdouble-booked her calendar again andtakes up other cases upon her return.

It is nearly 3 p.m. when Zathang’s trialresumes. The key INS witness, a docu-ment analyst, has left. Churchill is in-censed. But the case moves forward.

Zo T. Hmung, the uncle of Zathang’swife, relates that Zathang’s flight from

Myanmar was described in an Indiannewspaper. The judge wants to see a copy.

The article was published on July 7,1998. It says Zathang, who was born inBurma and had been “arrested, torturedand jailed,” had fled to India. “Police areseeking him for interrogation” the articlesays. Lian Uk, who was elected to theBurmese Parliament but not allowed bythe government to assume his seat, testi-fies that he has known Zathang for morethan 20 years.

“He’s, of course, a citizen of Burma,” Uksays. “No, no, no, he can’t be a citizen of In-dia. The Indian government does not ac-cept dual citizenship.”

By now, the evidence seems over-whelmingly in favor of Zathang. “I’m won-dering if the government is willing to con-cede I should just grant this applicant asy-lum?” Churchill asks. Czaykowsky saysno. “We will appeal. There are several is-sues in this case.”

John Ross, the document expert, testi-fies that the Indian passport is authentic,but he can’t determine if it was bought on

DAY 250: August 11, 1999

TO THOSE IMMIGRANTS WHO HAVE EXPERIENCED POLITICAL OR RELIGIOUS PERSECUTION FIRSTHAND, ASYLUM IS A CORNERSTONE OF AMERICA’S

IMAGE AS THE LAND OF THE FREE AND THE HOME OF THE BRAVE.BUT RELATIVELY FEW OF THEM WILL EVER GET IT.

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27R E F U G E E S

the black market by Zathang. He also can-not draw any conclusions about Zathang’sblue-colored Burmese birth certificate be-cause the INS has no similar documentsto which to compare it.

Attie delivers her closing argument.She says Zathang was forced to buy an In-dian passport “to save his own life” andnotes that his route to freedom was iden-tical to that of others who have beengranted asylum.

It is the INS lawyer’s turn. Ries is back.She argues that “it is entirely possible thatthe applicant is an Indian citizen.” Shespeculates that perhaps Zathang oncelived in Myanmar, but he must havemoved to India. She dismisses his role inorganizing the pro-democracy movement.If India were not safe, she asks, why wouldhe leave his wife and children there?

The judge questions Zathang at lengthand says she will issue her decision afterlunch. But within minutes she changesher mind, saying she will take the case un-der advisement and render judgment later.

Later is more than a year away.

Nearly 13 months after the final hear-ing, Churchill issues her ruling, giving noexplanation for the delay.

She denies Zathang’s request for asy-lum. Despite her own comments in the

courtroom, despite the testimony of Za-thang’s witnesses, despite the publishedaccount of his flight from Myanmar andthe paucity of evidence to support the gov-ernment’s position, Churchill says she be-lieves Zathang is actually Indian becauseof his passport. She concedes that he “mayhave Burmese nationality as well” but con-cludes that the time he spent in Indiaproved he was living there without per-secution and could return safely.

“We cannot, from the record, com-pletely sort out the truth from the fictions,”she writes. “It is our conclusion, from thepreponderance of the evidence here, thathe has Indian nationality, despite hisclaims to the contrary. It is not necessary

DAY 642: September 6, 2000

for us to make any other factual findings.We note, though, that his general credi-bility is in some question.”

She orders Zathang back to India butgrants him a special dispensation calledvoluntary departure, which would allowhim to leave America at his own expensewith a clean immigration record.

Zathang’s lawyers file a notice of ap-peal. In the motion, Georgetown Univer-sity fellow Virgil Wiebe points out that thejudge referred to Zathang’s witnesses as“convincing.” He argues that Churchill’sdecision is not supported by the law or bythe evidence and that it contains “signif-icant factual errors and omissions.”

The request is pending before theBoard of Immigration Appeals. It couldtake years before the panel rules.

Zathang, now 42, is allowed to stay inthe U.S. pending his appeal. He is livingwith friends in Maryland, looking forwork. He finally got a work permit fromthe INS last June. The card classifies himas Burmese.

When he learned of Churchill’s deci-sion, he was so upset he couldn’t sleep fordays. He said he does not know what else

he could have told the judge. “I have allthe proof I am a Burmese citizen,” he said.“If they couldn’t accept that, I don’t knowwhat more I could do.”

The Los Angeles Times discoveredthat Zathang is listed on an Internet siteidentifying Burmese Chin residing in theUnited States. His attorneys were un-aware of the reference, which helps cor-roborate Zathang’s nationality.

The Times also found other BurmeseChin who verified Zathang’s ethnicity.“He is not only my oldest brother’s friendbut also his classmate when they were inMandalay University,” said Siang Dun,who left Myanmar in 1995. ZapengSakhong, who taught at Mandalay Uni-

E P I L O G U E

DAY 688: October 2, 2000

versity, said he and Zathang came fromnearby villages in Myanmar, that heknew him at the university and hadheard of his political activities. “He is re-ally from Burma,” Sakhong said.

Zathang’s family remains in India.They move every few days. Had Zathangbeen granted asylum, he would havestarted the paperwork to bring them tothe United States legally.

Zathang spoke with his wife by phonefor 10 minutes in August 2000 on thesame day Amnesty International warnedthat many ethnic Chin in northeasternIndia were in danger of deportation.

Attie, now 27, graduated from lawschool in May 2000. She is a clerk for afederal judge. She said she lost her ideal-ism about the asylum process long beforeChurchill ruled in Zathang’s case. Ries,the INS lawyer, now works for a con-gressional immigration subcommittee.She thinks Churchill made the right de-cision. “There were credibility questions,”she said. The 13 months it took Churchillto issue her decision violated a 60-dayrule set by Chief Immigration JudgeMichael J. Creppy. “Justice delayed is jus-tice denied,” Creppy said in an interview.

Churchill declined to talk directlyabout Zathang’s case but through a courtspokesman said “she needed all that time.It required a lot of consideration.”

After the trial ended, the Immigration

Service invited one of Zathang’s witnessesto speak at a celebration of asylum reform.At the event, the witness thanked Amer-ica for granting him asylum. But then hementioned the case of a teacher from hisvillage, a man who first fled to India whenhe learned he was going to be arrested.

“The INS made the improbable argu-ment that he is Indian… even though 10people, including professors and mem-bers of parliament, testified that he is aBurmese,” the witness said.

The INS posted Hmung’s speech—withits reference to Zathang—on its web site.B

Copyright 2001, Los Angeles Times.Reprinted with permission.

THE 13 MONTHS IT TOOK THE JUDGE TO ISSUE HER DECISION VIOLATEDA 60-DAY RULE. THE JUDGE INSISTED SHE NEEDED ALL THAT TIME. IT REQUIRED

A LOT OF CONSIDERATION.

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Albania

Algeria

Angola

Antigua and Barbuda

Argentina

Armenia

Australia

Austria

Azerbaijan

Bahamas

Belgium

Belize

Benin

Bolivia

Bosnia and Herzegovina

Botswana

Brazil

Bulgaria

Burkina Faso

Burundi

Cambodia

Cameroon

Canada

Cape Verde

Central African Republic

Chad

Chile

China

Colombia

Congo

Costa Rica

Côte d’Ivoire

Croatia

Cyprus

Czech Republic

Democratic Rep. of the Congo

Denmark

Djibouti

Dominica

Dominican Republic

Ecuador

Egypt

El Salvador

Equatorial Guinea

Estonia

Ethiopia

Fiji

Finland

France

Gabon

Gambia

Georgia

Germany

Ghana

Greece

Guatemala

Guinea

Guinea-Bissau

Haiti

Holy See

Honduras

Hungary

Iceland

Iran (Islamic Republic of)

Ireland

Israel

Italy

Jamaica

Japan

Kazakhstan

Kenya

Korea (Republic of)

Kyrgyzstan

Latvia

Lesotho

Liberia

Liechtenstein

Lithuania

Luxembourg

Macedonia (former YugoslavRep. of)

Madagascar

Malawi

Mali

Malta

Mauritania

Mexico

Monaco

Morocco

Mozambique

Namibia

Netherlands

New Zealand

Nicaragua

Niger

Nigeria

Norway

Panama

Papua New Guinea

Paraguay

Peru

Philippines

Poland

Portugal

Romania

Russian Federation

Rwanda

Saint Vincent and the Grenadines

Samoa

Sao Tome and Principe

Senegal

Seychelles

Sierra Leone

Slovakia

Slovenia

Solomon Islands

Somalia

South Africa

Spain

Sudan

Suriname

Swaziland

Sweden

Switzerland

Tajikistan

Tanzania (United Republic of)

Togo

Trinidad and Tobago

Tunisia

Turkey

Turkmenistan

Tuvalu

Uganda

United Kingdom

United States of America

Uruguay

Venezuela

Yemen

Yugoslavia

Zambia

Zimbabwe

List of 140 States Parties to the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees (at 1st May 2001)

The 1951 Convention relating to the Status of Refugees and the 1967 ProtocolDate of entry into force:22 April 1954 [Convention], 4 October 1967[Protocol]

At 1st May 2001:B Total number of States Parties to the 1951

Convention: 137

B Total number of States Parties to the 1967Protocol: 136

B States Parties to both the Convention andProtocol: 133

B States Parties to one or both of theseinstruments: 140

B States Parties to the 1951 Convention only:Madagascar, Monaco, Namibia and SaintVincent and the Grenadines

B States Parties to the 1967 Protocol only:Cape Verde, United States of America andVenezuela

29R E F U G E E S

These do, though, need to be rationalized.We have to get together and figure out howto make protection work, and how to keepthe Convention central to our work.”

UNHCR recently launched its globalconsultations with governments, legalscholars, non-governmental organizationsand refugees themselves, to do just that.The discussions are designed to reaffirmthe commitment of governments to theConvention, at the same time examining

key protection concerns not explicitly ad-dressed in the 1951 instrument.

“The objectives of the consultations areto promote a common understanding ofprotection dilemmas, improve cooperationin dealing with them, and generate newapproaches tailored to changed demandsand circumstances,” said Feller. The meet-ings will extend into 2002 and are orga-nized along three so-called ‘tracks’. The‘first-track’ discussions will be held at anunprecedented meeting of states parties

to the Convention in Geneva in Decem-ber. Ministerial-level participants at themeeting, convened jointly by UNHCR andthe government of Switzerland, will adopta declaration intended to commit signato-ries to the full and effective implementa-tion of the Convention and its Protocol.

Discussions concerning the interpreta-tion of various provisions of the Conven-tion will be organized in a series of roundtables involving government experts, NGOrepresentatives, scholars and representa-

tives of UNHCR. These ‘second-track’ talkswill focus on issues like exclusion and ces-sation, non-refoulement, family unity,refugee definition and the question of ille-gal entry into an asylum state.

‘Third-track’ discussions will be heldwithin the framework of UNHCR’s Exec-utive Committee at specially organizedsessions. They will examine such themesas protection of refugees in mass influx sit-uations, protection of refugees in individ-ual asylum systems, protection-based so-

lutions to the problems of refugees, andprotection of refugee women and children.

The intended outcome of these dis-cussions varies, from achieving a clearerconsensus on how to approach some ofthese problems to setting internationalstandards.

Much has changed over the past 50years. The world is more complex than itwas in 1951; people are more mobile; shadesof gray elude categorization where onceblack-and-white fitted neatly into hard-

won definitions. Humanitarianism hasseemingly been replaced by hard-nosedpragmatism, empathy by suspicion.

But one thing has not changed: peoplestill flee persecution, war and humanrights violations and have to seek refugein other countries. For refugees, now ashalf a century ago, the 1951 Convention isthe one truly universal, humanitariantreaty that offers some guarantee theirrights as human beings will be safe-guarded. B

“NO CONTRACTING STATE SHALL EXPEL OR RETURN... A REFUGEE... TO THE FRONTIERS OF TERRITORIES WHERE HIS/HER LIFE WOULD BE THREATENED...” Article 33

The major goal of protection and the Convention is the voluntary return home of uprooted persons.

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30 R E F U G E E S

The worldwide suffering of uprootedpeoples—and those trying to help

them—continues. Nsakala Tshiama, a lo-cal UNHCR employee in the town ofKimpese in Democratic Congo, wasgunned down in late March near the bor-der with Angola. He was driving alonewhen he was stopped by four armed menwho demanded his vehicle and then shothim twice in the back. The driver died lat-er in a local hospital. Three UNHCR fieldstaff were murdered in Atambua, WestTimor, in September 2000 and anotherofficial was gunned down a few weeks lat-er in Macenta, Guinea (see REFUGEES mag-azine N° 121). Six men were subsequentlysentenced to terms ranging from 10 to 20months for the Timor killings. UNHCRsaid it was “deeply disturbed” at the ver-dicts which “make a mockery of the inter-

national community’s insistence that jus-tice be done.” Staff were blunter, sayingthey were “outraged” at the ‘“mockery” ofa trial and by the light sentences. Severalweeks after Tshiama’s killing, six staffmembers of the International Committeeof the Red Cross (ICRC) were also mur-

dered, this time in the northeast of Demo-cratic Congo. The team was driving in ve-hicles clearly marked with the Red Crosson a road considered to be safe when theywere killed by unknown assailants. And aDutch pilot flying for the Red Cross waskilled when his aircraft was hit by groundfire in southern Sudan. Continuedkillings and other types of harassment ofhumanitarian workers have led to in-creasing demands for a major strength-ening of global security for field staff ofthe United Nations and other humani-tarian organizations.

Among refugees, the latest releasedfigures show UNHCR continues to carefor huge numbers of people, estimated at21.1 million worldwide. They included 8.4million in Asia, 5.6 million in Europe and5.3 million in Africa. B

He is the man who beganit all. In 1921, Dr. Fridtjof

Nansen, already a famed sci-entist and explorer fromNorway, was named by theLeague of Nations as thefirst High Commissioner forrefugees. The occasionmarked the start of the mod-ern international system forprotecting refugees, replac-ing an ad hoc arrangementadministered by private andvoluntary organizations.The United Nations HighCommissioner for Refugees,the successor to Nansen,keeps the link alive. Eachyear the agency awards theNansen Refugee Award to

individuals or organi-zations which have ac-complished outstand-ing refugee work. Andrecently, that connec-tion between past andpresent was furtherstrengthened. Italianartist Fausta Mengari-ni had sculpted thebust of Nansen inbronze for the Leagueof Nations, but beforeit could be donatedthe League was dis-solved. Mengarinikept the sculpture well hid-den during the World War IIyears because precious met-als were being requisitioned

for the war effort, but even-tually donated it to theDohrn family which hadfounded a famed interna-

tional center forzoological andoceanographicresearch inNaples whereNansen hadworked in 1876. Itwas kept in thefamily until 83-year-old PietroDohrn, a doctorand nephew ofthe founder ofthe Naples re-search center,decided to donate

it to UNHCR. It will be in-stalled in the agency’s Gene-va headquarters.

B

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The suffering continues

UNHCR driver Nsakala Tshiama.

Where it all started

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31R E F U G E E S

“Its values are timeless, butwe should stand back andconsider its application intoday’s world.”British Prime Minister Tony Blairon the 50th anniversary of theGeneva Refugee Convention.

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“It is the wall behind whichrefugees can shelter.”Erika Feller, UNHCR’s directorof international protection on theConvention.

“It would be difficult forgovernments to sign ablank check and to under-take obligations towardsfuture refugees, the originand number of whichwould be unknown.”The original drafters explainingthe reasons for various restric-tions in the Convention.

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“The modern system ofrefugee rights was…

conceived out of enlightened self-interest”on the part of states.Law professor James C. Hathaway.

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“The danger is that coun-tries confronted withgrowing numbers of asylumseekers will decide to cutback on their commitmentsto the UNHCR or, worse,exit the international

Refugee Convention. Thatwould be a tragedy.”Australian Immigration Minis-ter Philip Ruddock discussing theimpact of people smuggling on aidfor refugees.

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“Exile is violent, a total fall.It takes time to get out ofthis vertigo.”Afghan woman writer SpojmaiZariab, living in exile in France.

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“We want to be reunitedwith our parents and goback to school. Life here isbetter than the jungle.”Teenage twins Johnny and Luth-ern Htoo who led the God’s armyguerrillas in Myanmar’s junglesbefore surrendering in Thailand.

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“It is a real problem thatEuropeans try to lessenobligations to refugees.They must take seriouslythe responsibility of givingasylum.”H i gh Co m m i ss i o n e r Ru u dLubbers.

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“There are some indica-tions that Europe is losingsight of its duty to protectrefugees under interna-tional law, as set out in the1951 Convention. Theserisks have enormous im-pact on other regionswhich look to Europe as anexample.”U.N. Secretary-General Kofi Annan.

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“Is this an April Fool’sjoke?”Reaction of a middle-aged coupleon hearing about the arrest ofYugoslav President SlobodanMilosevic.

“In any case, no wall will be highenough to prevent people from coming…”High Commissioner Ruud Lubbers urging European countries not to close the door to asylum.

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