Invocation of the “Ceased Circumstances Cessation Clause”: Is Rwanda Fundamentally Altered Enough?

By the end of December, protection measures of the 1951 Convention relating to the Status of Refugees may be rescinded from Rwandan refugees. The invocation of Article 4 (the “ceased circumstances cessation clause”) is currently being negotiated by the Executive Committee of the UN High Commissioner for Refugees (UNHCR) and the Government of Rwanda (GoR); application has the potential to strip Rwandan refugees of their legal rights in their host countries and possible forced relocation to Rwanda if they cannot otherwise regularise their legal status by becoming citizens or permanent residents of their host country.

The GoR has requested that UNHCR apply the cessation clause to Rwandan refugees since 2002; in 2009, the partners agreed on a roadmap that would allow for the cessation clause to be applied by 31 December 2011. While UNHCR guidelines are non-binding and the onus of legal responsibility is placed on states, they do inform many regional and domestic policy decisions, particularly for states with little legal and institutional capacity to assess individual asylum claims. The roadmap emphasised actively encouraging voluntary repatriation of Rwandan refugees, implementing reintegration projects, and regularising the legal status of Rwandans abroad who are unable or unwilling to return home.

The Legal Basis for Cessation

Clause C.5 of the Convention determines that the refugee experience ends when one “can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.” As application of the cessation clauses has traditionally been rare (although it’s worth noting it’s been applied much more in Global South countries where the state may already have strained logistical and financial resources, status may be declared on a prima facie basis for mass influxes, or the status of particular refugee groups may be contentious due to broader political questions), conceptual understandings are still being explored. According to UNCHR guidelines , the clause can only be implemented when there is a) a fundamental and profound change in country conditions such that they no longer have a well-founded fear of persecution, b) the change is demonstrably enduring and not merely transitory, and c) the change enables refugees to enjoy the protection of the government.

The GoR’s calls for the cessation clauses to be invoked is predicated on the belief that many of the Rwandan refugees abroad are survivors of the 1994 genocide that killed an estimated 800,000 members of the Tutsi ethnic groups (and moderate Hutus) in little over three months, and it’s time to return home. Tutsi refugee diaspora from neighbouring Uganda (many the children of Tutsis who fled the “practice genocide” of 1959) and under now-President Paul Kagame, formed the Rwandan Patriotic Front (RPF) in the late’80s and fought a civil war with the Hutu Power Government with a short-lived peace agreement before the war reignited with the commencement of the genocide. The RPF seized power in early July, prompting a mass exodus of Hutus fearing reprisal attacks and under force by the Hutu Power Government to neighbouring Goma, Zaire (now the Democratic Republic of the Congo, DRC). They have ruled ever since, making considerable progress transforming the country and promoting national reconciliation.

So has a “fundamental” change taken place?

Coming into power, the RPF faced immense challenges in rebuilding and healing the country, compounded by security threats from Hutu Power militias operating out of Eastern DRC. There is much to be admired in their leadership.

However, there is also much to be desired. A Memorandum by Fahamu’s Refugee Programme states that:

Rwanda has made much progress since the genocide but it did not do so through reliable constitutional, democratic, and peaceful means. It remains a fragile, volatile, authoritarian regime with little tolerance for dissent, freedom of speech, or independent human rights observation, reporting, or advocacy…social and political fissures remain unresolved and the government maintains an overtly hostile attitude toward its citizens who have fled…since 2009, more Rwandans have been fleeing and not just Hutu, but large numbers of genocide survivors who were never refugees before, as well as government officials and officers of its army.

Elections in 2010 were accompanied by a crackdown on opposition parties and journalists, with two opposition candidates arrested and charged with “genocide ideology." A report on Rwanda’s genocide ideology and sectarianism laws by Amnesty International claimed that “these broad and ill-defined laws have created a vague legal framework which is misused to criminalise criticism of the government and legitimate dissent. This has included suppressing calls for the prosecution of war crimes committed by the RPF”.

Read Part 2 here ...