The refugee crisis unfolding across Europe has been well documented over the past few months. One need not repeat here stories of the shocking conditions and growing death toll of those fleeing violence and conflict, often from the Middle East and the Horn of Africa.

However, the estimated 600,000 asylum applications that were made in the EU last year constitutes a fraction of the 59.5 million people the UN High Commissioner for Refugees (UNHCR) estimates are forcibly displaced across the globe. Nearly 20 million of these people come under the mandates of UNHCR, or of UNWRA, which administers Palestinian refugee camps.

These statistics might hold the attention for a moment, if only to demonstrate the scale of refugee populations; but they do not convey the diversity of refugee experiences. In this post, I want to focus on one sector of refugee populations in particular – those in ‘protracted refugee situations’, where 25,000 or more people originating from the same country have unsuccessfully sought asylum for more than five consecutive years in a host state. Generally in these situations, camps are set up to cope with refugees from nearby countries that the host state, which is more often than not a developing country, cannot or refuses to integrate. In theory, refugees remain in the camps until they can return to their country of origin, are integrated into their host country, or can resettle in a country with the will or capacity to do so.

A New York Times op-ed this month by Ben Rawlence, “The Other Refugee Crisis”, tells the story of the Dadaab camps in eastern Kenya, established in 1991, which are home to half a million refugees fleeing Somalia’s civil war.

Rawlence has this to say about the camps:

“At first, I was blown away by the fact of its existence: How could this place still be here? And how could the world allow all these people to stay in this baking hot limbo, unable to work and unable to leave, to spend their whole lives in an open prison? But five years later, after following residents through their daily lives and listening to their hopes and fears, I have came to a very different realization: Dadaab is not an anachronism, or a hangover from a former world order. It is the future.”

Dadaab symbolises a trend in refugee movements: as many conflicts become intractable, camps turn from a present place of temporary shelter into a perpetual place of purgatory. Inhabitants are unable to take on paid work or leave the camp without citizenship, and therefore largely rely on externally provided aid. In Dadaab, without governmental permission to build permanent residences, refugees build temporary structures out of mud and thorns that will survive the harsh weather conditions.

The US Department of State found in 2011 that there were over 10 million refugees in 30 countries in protracted refugee situations. Rawlence’s estimate is around 14 million, of whom nearly 400,000 live in the Dadaab camps.

Many of the camps, including Dadaab, are administered by UNHCR. Much like the refugees, UNHCR is perpetually being told that its position is temporary. When UNHCR was set up, it was given a three-year mandate to complete its work; even now it must renew its mandate every five years. Yet, as more and more people find themselves in intractable situations, UNHCR’s mandate continues to broaden, both in time and scale.

In such a catastrophic situation questions of human rights can easily be left behind. refugees in protracted situations, who by definition have fled potential human rights abuses in their home country, are at the mercy of states that may or may not integrate them, potentially indefinitely. If refugees are to be able to express the universal rights they hold, one must first ascertain who is legally responsible for upholding them, and how refugees can employ those rights in practice – questions that, sadly, have remarkably unclear answers in practice.

The standard answer to questions of human rights obligations is generally to suggest that the host country bears responsibility, as it does for all those on its territory. As the International Covenant on Civil and Political Rights notes, states are responsible for the human rights of those “within its territory and subject to its jurisdiction”. To this end, UNHCR suggests that:

“Host governments are responsible for the security and safety of, assistance to, and law and order among refugees and internally displaced persons (IDPs) on their territory. Governments often rely on the international community to help share the burden, and UNHCR provides assistance at the request of governments or the UN Secretary General.”

On such an understanding, when non-state actors including UNHCR and NGOs (non-governmental organisations) administer refugee camps, it is done at the invitation of the host state, and thus on the basis of the host’s international human rights obligations, including to refugees in its territory. If UNHCR or an NGO was to violate refugees’ human rights in its administration of the camps, the host state would be obligated to hold the non-state actor accountable on behalf of the refugee individual. However, states without the will or capacity to integrate refugees are unlikely to be able to fulfill even these limited obligations. The Red Cross has also suggested that in some situations states may look to involve non-state actors in order to reduce their own legal liability for refugees’ human rights, which they do not anticipate being able to fulfill in practice.

In the absence of legal or effective state protection, non-state actors such as UNHCR frequently take on state-like functions, creating a situation where, although the state technically continues to bear legal responsibility, the non-state actor has de facto control over the population and territory. These circumstances create significant impediments to upholding human rights. Perhaps most significantly, denying citizenship (which occurs in the Dadaab camp and many others) obstructs refugees’ access to national courts where they would be able to challenge their treatment – removing the enforceability of refugees’ legal entitlements.

All in all, this leads to a situation where serious human rights abuses can and do occur outside of state jurisdiction, as Ann Vibeke Eggli has noted:

“It cannot be excluded that IGOs and/or NGOs sometimes submit refugees under their care and authority to human rights violations. This may result from internal and extrajudicial measures of detention, other forms of punishment, arbitrary or biased distribution of food, or forcible relocation of camp inhabitants. For all practical purposes, these matters remain, by and large, outside the review of the ordinary national judicial system in poor as in affluent refuge hosting countries.”

It is therefore worth evaluating the efforts of UNHCR and NGOs to protect refugees’ human rights, and suggesting potential solutions to the accountability deficit created in protracted refugee situations to create the potential for human rights law to be upheld.

UNHCR

EXCOM, UNHCR’s executive committee, has outlined a number of minimum standards for the treatment of refugees, in order that they “enjoy the fundamental civil rights internationally recognized, in particular those set out in the Universal Declaration of Human Rights”. UNHCR’s Handbook for Emergencies frequently discusses upholding human rights as a principle of its work. Furthermore, it claims that the provision of ‘care and maintenance’– a term generally suggested to encompass provision of food, water, household utensils, medical care, shelter, transportation, basic education, and vocational training – protects some of the rights outlined in the UN’s treaties. While UNHCR’s conduct clearly aims to uphold some human rights, its self-defined requirements are piecemeal and lack a clear overlap with those human rights defined in international law. Furthermore, they are not binding or enforceable – key characteristics of rights.

UNHCR does have some limited accountability mechanisms as a subsidiary body of the UN. It must submit annual reports both to the UN General Assembly and to EXCOM, which is made up of 98 donor states. While this does not make UNHCR accountable to individuals, it at least makes it accountable to donor states’ interests, which for many include upholding refugees’ human rights.

Moreover, one can argue that, when UNHCR takes on state-like functions, it may open itself up to international legal accountability for human rights violations. In such a situation, UNHCR’s conduct may be covered under Articles 8 and 9 of the International Law Commission’s Articles on State Responsibility. Article 8 notes that the conduct of a group of persons may be considered an act of state if they are under the direction or control of that state. This would potentially include the responsibility delegated to UNHCR for the administration of refugee camps, in the absence of domestic accountability. Article 9 allows for conduct to be considered an act of state if they exercise “elements of the governmental authority in the absence or default of the official authorities”. It is clear that in many camps, UNHCR does in fact take on elements of the governmental authority, which, as Ann Vibeke Eggli points out, are most clearly expressed “when a total disintegration of state structures and institutions has occurred.” While the articles are formally non-binding, they are frequently invoked as a source of authoritative guidance for determining state responsibility in international law.

Ralph Wilde’s analysis of UNHCR’s role in the Dadaab camps uses an alternative justification for demonstrating international human rights law’s applicability to UNHCR’s actions. Wilde claims, on the basis of the International Court of Justice’s Reparations for Injuries Opinion, that UNHCR has the necessary personality in international law to directly engage the international human rights law applying to refugees.

In situations where the state has asked UNHCR to administer camps but does not uphold its own human rights obligations to refugees, it may therefore still possible to hold UNHCR accountable for their actions under international human rights law.

NGOs

Further complicating this puzzle is the fact that UNHCR delegates much of its day-to-day operations to NGO implementing partners. Although this may appear to imply hierarchy, these relationships are generally more horizontal. In these situations, NGOs take on various state-like functions, including the provision of medical and education services. As one example, Guglielmo Verdirame describes how the Lutheran World Federation was responsible for security inside the Kakuma refugee camp (which is, like Dadaab, located in Kenya). In cases like this, NGOs, rather than UNHCR or the state, may express de facto control over a particular camp.

However, because NGOs do not have the intergovernmental character of the UN, and because the vast majority of NGOs lack the resources that international organizations, such as the UN, can draw upon, it would be far more difficult to ascribe the same international legal personality that UNHCR holds in international law to NGOs. States do not tend to delegate responsibility directly to NGOs, so the ILC Articles would also not apply unless the state was to wholly disintegrate (and bring the situation under Article 9, as described above). UNHCR has also claimed that its responsibility for international protection cannot be delegated, precluding a circumstance in which NGOs are held legally accountable on the basis of UNHCR’s delegated international legal responsibilities.

NGOs, for their part, have also demonstrated willingness to adhere to internationally recognised human rights principles. Some NGOs have set out codes of conduct; notably the Red Cross’s Code of Conduct, which has been signed by 587 NGOs at time of writing. The Sphere Project, another voluntary initiative by humanitarian agencies, sets out a more detailed framework of humanitarian principles, emphasizing that NGOs must be accountable specifically to affected communities. However, these are again non-binding, with no monitoring body, and do not incorporate the full range of human rights protections set out in the UN’s human rights treaties. These voluntary codes also define NGOs’ humanitarian obligations as existing only in relation to the primary role taken on by states, even though states may not be able to hold NGOs accountable for their actions. While the Sphere Project suggests the possibility of creating alternative systems of individual accountability, very few NGOs would have the ability to implement such a system in practice.

NGOs’ institutional limitations may also mean that refugees are placed at a greater risk of human rights violations in camps where they exercise control. For example, NGOs may not have trained police officers that can control populations of thousands of people and provide a deterrent to violence, or may lack mechanisms for the administration of justice, leaving refugees without legal recourse.

Conclusion



Talk of international legal accountability may seem high-flown or unnecessary when applied to the vital work that UNHCR and NGOs do with particularly vulnerable refugee populations. However, one cannot allow this work to become a substitute for the protections outlined in international human rights law. Not only have refugees in protracted situations often fled grievous human rights violations, they may also be denied the ability to speak up for their rights when they settle abroad. Even if human rights violations do not occur, it is widely understood that systems of accountability create predictability – if one knows that human rights violations will be addressed, one can at least live with a basic sense of security. Moreover, this is not a merely temporary phenomenon; as Rawlence says, these are not just the refugees of the present, but also the refugees of the future. If we are to aim at upholding their human rights, one must first find the relevant authority to hold to account.

So, how can meaningful accountability be created? One clear problem is that refugee camps, while de facto permanent structures, remain temporary in the eyes of the law. To make sense of this determination, one needs to take into account both the desire of some refugees to return home at some point in the future, and the inability of receiving states to uphold the rights of permanent residents. Both parties hope that refugee status will be temporary, even if that fails to materialise in practice.

In the interim, one could create accountability through an ombudsman, possibly inside the UN framework, who would hear individual complaints from refugees or members of other populations under UNHCR’s remit, including when camps are administered by NGOs, where states are unable or unwilling to uphold refugees’ human rights. This would mirror individuals’ rights to bring communications alleging state violations to many of the UN’s human rights treaty bodies. The ombudsman would consider complaints in the context of the UN’s human rights treaties, further mirroring states’ human rights obligations.

Where functions are delegated to NGOs, this mechanism could create obligations on NGOs to respect the human rights of refugees – to avoid the breach of refugees’ human rights, while limiting an obligation to ensure rights – a positive obligation to fulfill rights – to UNHCR, which more clearly possesses these obligations in international law. This would create accountability for NGOs while acknowledging their limited overall capacity to uphold rights and to build accountability mechanisms.

Such a proposal would have the advantage of familiarity; at least for NGOs and UNHCR, who would already be aware of the provisions of the UN’s human rights treaties. However, access to justice may remain difficult under this system. The arduous conditions of many camps are understandably difficult places in which to submit a claim that alleges a abuse of one’s human rights to a legal body sitting halfway round the world. In cases that involve NGOs, which may be based only in individual camps, the need for any mechanism to stay as local as possible is even clearer. Therefore, where possible, the ombudsman could locate some staff in individual camps, allowing them to hear complaints and submit them to the ombudsman without setting up a fully-fledged intra-camp judicial system.

Other potential solutions would require greater infrastructural changes. UNHCR could be further integrated into the UN’s human rights framework. One potential model would be the case of the UN Mission in Kosovo (UNMIK), which the UN Human Rights Committee monitored for compliance with the International Covenant on Civil and Political Rights in the absence of a national judicial system. Doing something similar for UNHCR would, however, be far more complex due to the number of refugee situations where it could be said to administer population and territory.

Whatever actions are taken, those faced with the potential of a life without the rights conferred by citizenship are, quite literally, not going anywhere. As Rawlence reminds us, “[i]n a world centered on nation-states, the full range of human rights is increasingly unavailable to those without citizenship. A whole gray population of second-class citizens has emerged, and their numbers are growing.”

In order to protect some of the world’s most vulnerable people, non-state actors that exercise control over refugees must be held accountable in the international human rights system. For now, we can only wait and see whether the future for refugees in protracted situations is as bleak as Rawlence suggests.