Faculty Blog: Refugees, Migrants, and State Responsibility

Anyone who has followed the recent refugee crisis will notice the interchangeable use of the terms “migrant” and “refugee” to describe the people fleeing Syria, Iraq and North Africa, who are attempting to find safety and a better life in Europe. Depending upon your source of news, you might also hear the almost belligerent use of phrases and words like “economic migrant” and “opening the floodgates.”

It was Hannah Arendt who used the term “scum of the earth,” to describe not the refugees fleeing Nazi control during World War II, but the treatment they received as they metaphorically washed up on shores of neighboring countries. She was describing the phenomenon that transpires when one country or regime has designated some people as inferior, and how everyone else then views them that way — needy, dangerous, and likely to cause a run on resources.

In fact, it was this distaste of refugee flows and the problems that arose when other countries, including the United States, shut their doors on refugees fleeing persecution during World War II that led to the drafting and ratification of not just the 1951 Convention on the Status of Refugees, but the creation of the United Nations itself. The drafters’ goal set forth in the UN Charter, “to save succeeding generations from the scourge of war,” were as mindful of the refugee problem as they were the death and destruction that accompany interstate conflict. Today, of course, many of our refugee flows emanate from intrastate conflict, but the problem remains the same. If it is not safe to remain in your home, where can you go and who, if anyone, is legally obliged to take you in?

It is worth noting at the outset that the “refugee crisis” in Europe is not new. As early as the late 1990’s, people were departing Libya in rickety boats, attempting to make land in Europe. Prior to 2011, they came primarily from Sudan, Somalia, Eritrea, and occasionally Iraq. Their objectives, though, were the same — fleeing persecution, fleeing starvation, fleeing sexual violence, and searching for a better life. Many of these boats capsized, even in the early days before we began regularly hearing of it. In the summer of 2008, I was visiting a refugee center outside of Valletta, Malta when one of the refugees received a call from a sinking boat. His friend was hanging onto a tuna net in the middle of the ocean, their boat capsized. We were frantic to reach the navy or coast guard and ask to send out a boat for them, but there were no coordinates to give. When we reached the naval responders they told us that looking for this man would be like hunting for one grain of sand in the desert.

At least 25,000 people are known to have died in this manner since 2000. The number is undoubtedly vastly larger. As early as 1997, Italian naval authorities noted increasing reports of the foundering and shipwreck of boats departing from North Africa and Albania. Because in most instances the boats and the people were long since perished by the time authorities investigated (when they investigated), these began being referred to as “phantom migrant shipwrecks.” In the first nine months of 2014 alone, more than 3,000 people drowned, but now the world’s attention was beginning to focus on the tragic journey. For a brief time in 2014, several southern European countries banded together and developed Mare Nostrum, a “military-humanitarian mission” focused on plotting the course of refugees (work done by Frontex, the EU external border control agency established in 2005), and endeavoring to rescue people on foundering vessels. The operation lasted less than a year before it was ended through lack of political and economic will to keep it going in the face of pressure to return refugees, not rescue them and bring them to shore. It is estimated that 300,000 people have attempted the Mediterranean boat crossing in the first nine months of 2015 alone.

Although many or even most of those on the boats are legitimate refugees, people with a legitimate claim for asylum, those operating the boats are most certainly the worst sort of smugglers and human traffickers, profiting from the desperation of their passengers. These smugglers’ rates depend on their assumptions about the economic means of refugees based on their countries of origin. A sub-Saharan African might pay $900, while a Syrian might be charged $2500; these prices are much reduced from several years ago now that the “market is saturated.” The fee includes a grueling round of travel across the southern Libyan Desert, which some say they would rather die than repeat, before they are delivered to the coast. The boats that will carry them are packed with 100 — 300 people typically aboard. One single 100 — 200 mile run from the Libyan coast to Malta or the southernmost island of Italy might yield a smuggler 90 — 750,000 USD. Tunisian, Libyan, Italian, Greek, and Maltese fisherman have regularly encountered foundering boats and, as is required of them under various laws of the sea, many have assisted and brought the passengers to shore. Only to then themselves be arrested for migrant smuggling.

In 2003, the countries of the European Union adopted the Dublin Regulation. By virtue of this multilateral pact, the European country in which a potential asylum seeker first set foot had to agree to process his or her application — anyone seeking asylum in an EU country had to seek it in the country in which he first landed. This agreement put a tremendous amount of pressure on countries like Greece, Malta, and Italy, which initially hosted a large number of asylum seekers, most of whom wished to seek asylum in the EU, but who were stuck in limbo, many detained in prison-like camps, hoping to secure an asylum interview or some processing of an asylum application. It also put a tremendous strain on the admittedly sporadic ocean search and rescue operations in effect to try to prevent the multiplying deaths at sea with lack of clarity even as to whom was responsible for which waters.

A refugee is a person who has a well-founded fear of being persecuted due to his race, religion, nationality, political opinion, or membership in a particular social group. People can be formally and legally identified as refugees, usually by UNHCR or one of their partner organizations, and if they are lucky, be picked by a country willing to resettle them. These people arrive in their new host country as formal refugees, with documents that identify them legally as such, sometimes even UN passports called laissez-passer if they are effectively stateless. Under the terms of the host countries’ domestic legislation, based on recommendations made by UNCHR and the Refugee Convention, these refugees are often eligible for food, shelter, medical assistance, education and job training, if it is available. Presently, 80% of the world’s refugees are hosted in developing countries. Neither Lebanon nor Jordan are party to the Refugee Convention. Pakistan currently hosts the largest number of refugees (1.6 million).

Those who arrive at the border of a potential host country without the refugee designation are considered asylum seekers. Presently, Germany, Sweden, and France host the top number of asylum seekers, followed by the UK, Italy, Belgium, Hungary, Austria, the Netherlands, and Poland. The burden is on the asylum applicant to prove he has a well-founded fear of persecution due to one of the five categories. Those whose primary motivation is deemed to be “improving their lives” or the lives of their children are considered “economic migrants,” not entitled to asylum or the refugee designation. It is almost as if by electing not to remain in a developing or already overwhelmed potential host country, a refugee is presumed to be an economic migrant, unless he can prove otherwise.

This is why you so often hear the Syrians fleeing to Europe referred to as “migrants.” The implication is that they are not refugees because their primary motivation is not fleeing persecution, but rather seeking a better life. This is also why you hear people saying, “they could have stayed in the refugee camps in Turkey or Lebanon or Jordan; they just didn’t want to.” These people are arguing that they were “safe” from persecution when they hit the first host country; they only left those camps because they did not like them.

In order to examine this argument, it is important to understand the conditions for refugees in those camps, in most camps, really, most of which are not even “camps,” but actually people trying to find safety in urban settings, particularly those Syrians in Lebanon. To put these host countries in context consider the following: first, Turkey currently hosts almost 2 million refugees, Lebanon hosts over 1 million, and Jordan has more than 600,000. These three countries already hosted Iraqi refugees before the conflict in Syria even began. Now Iraq hosts 250,000 Syrian refugees. Secondly, at the time the conflict began, Syria also hosted thousands of Iraqi and Palestinian refugees and these people have also been displaced by the conflict. At a minimum, we can see that these “camps” are overcrowded, unsanitary, unsafe, and unwelcoming. They are riddled with human traffickers, child labor, organized crime networks, and others who would exploit the most displaced and vulnerable. Many refugees are unable to work, go to school, or have any real hope of a life for themselves or their children. Many state that their primary concern is lack of food.

This is why so many Syrians and Iraqis are seeking to enter Europe, first through North African routes, and more recently overland (or after reaching Albania) through Serbia and Hungary. Other factors are also in play. In 2012, Israel completed its border fence on its border with Egypt. Eritreans and Somalis who had previously been able to attempt to flee heading east, now turned west, adding to the flow of people attempting to depart North Africa by boat, headed for Europe. UNHCR reported the forced displacement of almost 6 million in the first six months of 2013 alone, about half Afghans, Somalis, and Syrians attempting to escape violence and “extraordinary hardship.” In August 2013, UNHCR estimated that there were 110,000 Syrian refugees in Libya in 2013. By September 2013, the estimate was 250–300,000 Syrians in Egypt, and Egypt was forcibly returning them to Syria, Lebanon, Gaza and Turkey. Pressure points have been building for some time. By 2013, Europe hosted 79% of the total number of asylum seekers in the world, with the US and Canada together accounting for 16%.

Under the UNCHR guidelines, there are three “durable solutions” for refugees: resettlement, repatriation and local integration. Given the saturation point in Jordan, Lebanon and Turkey, refugees are effectively or legally unable to integrate locally. This leaves two solutions — returning home (not an option) or resettlement to a third country. Unless or until a third country identifies a refugee and agrees to take him, resettlement is only a hypothetical. Unless the refugee can get to that country himself, apply for asylum, and obtain his refugee designation. This is why Syrians are now flooding into Europe.

The country claiming to take the largest share of refugees annually is the United States. There are a few problems with this claim. First, the cap set by Congress is the number typically cited. Not cited is the number that actually arrive. Secondly, several other countries take a much larger share per capita. Third, when a country publicly agrees to accept one refugee flow, operations often begin behind the scenes to “hurry along and deport” asylum seekers already in the country who are perceived to have less “grantable” claims. One of the goals of the Refugee Convention is to share the responsibility of meeting the needs of refugees among host countries. By 2014, UNHCR estimated more than 50 million refugees worldwide. Countries that might be expected to absorb some Syrian refugees, like Saudi Arabia, UAE, Kuwait, and Qatar, have taken none. While they have been silent as to why this is so, speculation centers on the fears of the leadership of these countries that the relatively well-educated and cosmopolitan Syrians would shake up the status quo too much for the these nations. The total number of refugees that accepting countries agree to take is less than 1% of the total number of refugees in the world. The total number that countries agree to take is often not a real number. For a variety of reasons (national security concerns, inefficiency, too long of a waiting time) countries routinely take far fewer than the total number they claim to be willing to accept. The United States, for instance, regularly falls short of its cap (typically set at between 50–70 thousand per year), sometimes by as many as 20–25,000 people.

One new problem with the conflation of refugees fleeing intrastate conflict and the “war on terror” is that we are looking at millions of effectively stateless people. In a country like Syria where fear of Assad has now shifted to fear of ISIS, speculation about whether a Syrian refugee might have provided material support to a terrorist group rises, and the likelihood that any will be safe to return home decreases. The more politicians speculate about the likelihood of Syrian refugees being terrorists or their supporters, the less likely it becomes that any country will accept them. There is no evidentiary requirement that a government prove why it thinks a particular person might be a terrorist sympathizer and therein not refugee material. A mere unfounded suspicion is sufficient. When one country speculates about a particular individual, no one will take that individual thereafter. The speculation and fear itself renders a large group of people effectively stateless. One need only remember the Uighurs held in Guantanamo by the United States to understand this dynamic.

It is worth noting a few more things: the refugees flooding into Europe now are not all Syrian, although the tragic plight of Syrians fleeing their decimated country provides the face for the current crisis. Furthermore, the United States has been faced with a similar crisis over the past few years. In the summer of 2014, the story of the thousands of women and children fleeing extreme violence in Central America and being detained on arrival in the United States was regularly in the news cycle. These women and children have not gone anywhere (except for those who have been deported), nor have they stopped fleeing, or been granted asylum, yet their “crisis” has been overtaken even in US news outlets by the one in Europe. These women and children, too, are being denied asylum and deported, cast as “migrants,” not refugees. The violence they are fleeing, they are told, does not fit under any of the five categories — a contestable claim, as many similar asylum cases have been won arguing that the targeting by gangs who cannot be controlled by their home government constitutes a particular social group.

The current “crisis” is a crisis because sovereign nations fear that the floodgates will open, that they will be unable to control their borders, that each refugee will cost the host government (an estimated $14,000 in the short term, to be precise, although a long term economic boon), or, inevitably, that they might be a security risk. The fact remains, though, that these were the same fears articulated during World War II, and yet we still came together to form the United Nations and ratify the Refugee Convention in order to prevent the scourge of future refugees flows depleting the resources of a few countries. And, it bears remembering, because we knew it was the right thing to do and we felt shame for having done it so badly.

The UN High Commissioner for Refugees (UNHCR) is mandated by the United Nations to lead and coordinate international action for the worldwide protection of refugees and the resolution of refugee problems. Its primary purpose is to safeguard the rights and well-being of refugees, including by working with states to ensure everyone can access asylum, seek third country resettlement, or return voluntarily to their home state (the three “durable solutions”). UNHCR is also charged with enforcing (or encouraging; they have no enforcement authority) the principle of non-refoulement, whereby states are prohibited from forcing back or returning anyone who fears persecution in the home state. Non-Refoulement is jus cogens, binding even states not party to the Refugee Convention. The organization is donor funded, and its largest donors have consistently been member states of Western Europe and the European Union itself, along with Japan and the United States. Like most UN agencies, UNHCR is only permitted to operate in a country where it has permission from the host state. Thus, it begins a fine dance of attempting to lobby the state hosting a refugee population to do so according to the requirements of the Refugee Convention, without losing its mandate to operate in that state by acting too forcefully. UNHCR is currently operating in Libya “cautiously,” as it has no formal memo of understanding. Libya remains the transit sending state for most of the migrants heading to Europe through North Africa. The operating costs for UNHCR in Libya for 2012 alone amount to more than 31 million USD, although only 12.7 million USD was actually available.

At present, European countries are struggling to come to an agreement with one another on the share of refugees each will take. At the same time, anticipating they will take some, several are ridding themselves of lingering asylum seekers from other parts of the world to make way. More than half a million migrants have arrived in Germany this year, for example. Only about half of those who have already applied for asylum are from Syria or Iraq. The rest are from struggling European countries like Albania and Kosovo. Europe is changing its laws to try to stem the flow of so-called “economic migrants.” As of August, anyone who makes what is deemed to be a “baseless” or “frivolous” asylum claim can be barred from re-entering any of the European Union’s passport-free Schengen area, for up to five years. Germany and several other countries have also begun instituting random passport and document checks within the Schengen area, effectively altering the notion of the EU as a free travel zone. Six EU member states are outside of the Schengen zone (Bulgaria, Croatia, Cyprus, Ireland, Romania, and the UK) and three non-EU states are within the Schengen zone (Norway, Iceland, and Switzerland). Bulgaria, Croatia, Cyprus, and Romania have undertaken an obligation to enter the Schengen zone as part of their EU member status. Schengen states are only permitted to institute passport checks as a temporary measure and this has begun in earnest. Since last year, Austria, a country firmly within the Schengen open border zone, has stopped and denied entry to at least 2100 non-EU “foreigners” transiting from Italy.

The problem with “getting rid of” some applicants to make way for others is that many assumptions are then made about the viability of an asylum claim based not on individual circumstances, but on one’s country of origin. A presumption is set against those from Kosovo or Serbia, for example, and (potentially) favors someone from Syria. This is not the way the Refugee Convention is designed to operate. The notion of the Refugee Convention is that anyone with a well-founded, credible fear should be able to make that claim, obliging local authorities to protect anyone successful in doing so.

Hungary has erected a fence on its border with Serbia. Bulgaria is planning a fence on its border with Turkey and Greece has already erected one. Meanwhile, the current US presidential candidates are outdoing one another with the length and strength of their proposed border fences. Malta and Italy have attempted to push back people trying to land on their coasts, even when they were aboard ships that had rescued them after theirs sank. This should call to mind shiploads of Jewish European children and refugees attempting to land in the United States during World War II and being denied entry. Or the shiploads of Europeans attempting to flee violence in Europe during World War II by fleeing to North Africa. When we take the long view, it becomes easier to see why aiding refugees now is important for all of our sakes and all of our safety. When we operate out of fear, we are taking the short view.

Presently, we are operating out of fear. Certainly the refugees fleeing persecution and the migrants seeking a better life are, but also, and maybe most importantly, the nation-states into which these refugees and migrants hope to make their way are also. Instead of operating out of fear, we need to honor the agreements we committed to in creating the United Nations and ratifying the Refugee Convention. We need to remember the spirit in which we committed to these principles, and then we need to carry out these principles and protect refugees.

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