Refugees Magazine, 1 September 1995
In several European countries, people persecuted by groups and organizations other than the state are not recognized as refugees – no matter how bad the persecution.
By Rupert Colville
In January 1993, a 29-year-old Liberian named Thomas arrived in Germany with his wife. Back home, his father had been killed by one of the largest of the armed factions which have been tearing Liberia apart since the government collapsed in 1990. Shortly afterwards, Thomas was forcibly recruited by the same faction. Subsequently, suspected of spying for a rival group, he was made to watch as his wife was raped. As another test of his loyalty, he was forced to kill a number of children who had also been accused of spying. Fearing their days were numbered, Thomas and his wife managed to stow away on a cargo ship which took them to Italy. They then travelled by car to Germany, where they applied for asylum.
Their experiences would appear to qualify them as refugees. Or so one might think, given the very reasonable fears they expressed for their personal safety and the fact that, by 1993, the system of "national protection" – a functioning police force and judicial system – was extinct in Liberia. Unfortunately for Thomas and his wife, in several European countries, including Germany, it is who you fear may persecute you that matters – rather than what they may do to you.
Even though the grotesque series of events that led to their flight was not disputed, in September 1993 the German Federal Office for the Recognition of Foreign Refugees rejected Thomas and his wife's asylum claims as "manifestly unfounded." This despite the fact that they were manifestly in danger if forced to return to their home country. Their current whereabouts are unknown. Like many other asylum-seekers from states in disarray, they are victims of a highly contentious interpretation of the refugee definition contained in the 1951 Convention Relating to the Status of Refugees.
Thomas's big mistake was to be persecuted by a faction rather than by official state authorities such as the army or secret police. An Iranian or a Libyan facing several years in jail for printing political pamphlets critical of the government would – quite rightly – probably be recognized as a refugee by every European country, under the 1951 Convention. However, in Germany, France, Italy, Norway, Sweden and Switzerland, many people with a genuine fear of being specifically targeted by "non-state agents" – in other words, by groups or organizations that are not controlled by their country's government, or in countries that do not have a functioning government – do not normally qualify for refugee status and risk being sent back to situations of extreme danger.
Because Thomas' and his wife's persecutors were not part of a government force, but belonged to a faction in a country without a functioning government, the couple somehow, according to some European countries, cease to be victims of persecution and therefore fail to qualify as refugees.
This situation may get even worse. If ongoing efforts by the 15 member states of the European Union to harmonize their interpretation of the refugee definition finally settle on the lowest common denominator – as many people fear may happen – a Liberian like Thomas will not just have fled to the wrong country but to the wrong continent.
The problem lies in an extremely restrictive interpretation by the above-named asylum countries of the word "persecuted" in Article 1A of the 1951 Convention Relating to the Status of Refugees. Persecution, according to the restrictive interpretation, can only be carried out by a government or – a recent concession in some asylum countries – by some other "state-like" authority. In addition, some countries grant refugee status if they feel the state was actively unwilling – rather than unable – to prevent persecution by a non-state agent.
In parts of Liberia or Somalia, however, warring clans, factions and sub-factions have been operating in situations close to anarchy rather than running identifiable, if unofficial, statelets with functioning administrations. As a result, despite the fact that some 150,000 Liberians are estimated to have been killed since 1989, in Germany only one Liberian was recognized as a refugee in 1994 while 1,850 were rejected. During the same year, over 8,771 Turks – mainly Kurds – were accepted and 23,683 rejected. A 21 percent recognition rate for Turks against a 0.05 percent rate for Liberians.
In Switzerland, the statistics show a similar pattern. In 1994, a total of 143 Liberians asylum-seekers were rejected and none accepted (0 percent recognition rate); 314 Algerians were rejected and none accepted (0 percent recognition); two Angolans out of 854 were accepted, the rest rejected (0.2 percent recognition). Yet in the same year, 654 Turks – again, mainly Kurds – were accepted and 631 rejected (51 percent recognition). And 32 Pakistanis were accepted, while 330 were rejected (10 percent recognition).
The statistics, of course, do not tell the whole story. Even if the most liberal interpretation of the 1951 Convention were applied, not all Algerians who applied for asylum in Switzerland would qualify as refugees because of a genuine fear of persecution at the hands of state or non-state agents. Nevertheless, the situation in Algeria is sufficiently grave, with thousands killed over the past three years – many as a result of individual targeting – to create an expectation of an acceptance rate somewhat higher than 0 percent. In 1994, the civil wars in Liberia and Angola were among the most murderous on the planet.
In France, the Refugee Appeals Commission has recognized a few Liberians and Afghans on the grounds that they were the victims of persecution by factions which held de facto, state-like authority in given regions, or because de facto authority was shared by two different factions, which meant that the asylum-seekers in question could not seek protection from the "public authorities."
However, Somalis have been systematically rejected by the French Commission. The reasoning given for the rejection of a Somali asylum-seeker in 1993 illustrates the French interpretation of the Convention on the non-state agent issue. The asylum-seeker in question, Mohammed, had been a mechanic in the army of the deposed president, Siad Barre. In 1991, after the president fled and the country splintered into an all-out civil war, one of the largest sub-clans wanted Mohammed to maintain its armed vehicles. Mohammed refused because he didn't want to take part in a war he considered to be fratricidal. On 10 October 1991, members of the sub-clan arrived at his home and killed two of his brothers. After this, Mohammed fled the country and made his way to France.
His case was rejected by the Refugee Appeals Commission on the grounds that the clans and sub-clans in Somalia, although fighting to create or extend "zones of influence," had failed to reach the point whereby they exercised enough "organized" control to be considered de facto authorities. The Commission did not consider whether or not Mohammed's fears for his personal safety were justified. As was the case with Thomas, the focus was entirely on the status of the persecutor. If the persecutor does not pass muster, the possible fate of the persecuted is considered irrelevant. And when it comes to warring clans and factions, their status appears to be dependent on the eye of the beholder.
Thus in Germany, many administrative courts now recognize persecution of Bosnian Muslims by "state-like agents" – Bosnian Serb authorities or militias. However, they do not in the case of Liberians and Somalis. France recognizes it in the case of some Liberians and Afghans, but not in the case of Somalis, because Somali factions are deemed to be less organized. Switzerland recognizes some Afghans and a few Somalis as victims of state-like persecution, but apparently not Liberians or Angolans. France has not recognized any victims of non-state persecution in Algeria, except a handful of cases in which the state has been judged unwilling (as opposed to unable) to protect certain individuals. Germany has only recognized Algerians who have been victims of persecution by the state, and Switzerland has not recognized any Algerians at all.
Clearly, the patchwork of different practices by European states could do with some harmonizing. But, harmonization down to the level of the lowest common denominator could lead to wholesale, continent-wide rejection of large numbers of people in clear need of protection: no recognition, anywhere in the European Union, for any Liberian, Somali, Angolan or any of the Algerian social groups (such as journalists, magistrates, teachers, intellectuals) who have been consistently targeted by extremist groups.
The European Council on Refugees and Exiles (ECRE) is a forum of non-governmental organizations in Europe. Its General Secretary, Philip Rudge, said, "The realities of the time are that we are, sadly, receiving people fleeing from many sources of persecution, not just states. In their efforts to achieve harmonization in their interpretation of Article 1, European countries should take note of the tragic realities. The human issue is the most important: is a person being persecuted? Does he or she need protection?"
Nowhere does the definition contained in the 1951 Convention – which was cited in support of the French Refugee Appeals Commission's rejection of Mohammed – say or even hint that only states or state-like authorities can persecute. To qualify as a refugee, a person must:
The identity of the persecutor is not discussed. Clearly, if no state or state-like authority exists, the person fearing persecution is "unable ... to avail himself" of any form of national protection.
Yet courts in several European countries have got into the habit of totally ignoring the victims' predicament while constructing labyrinthine legal arguments over the status of states and factions, using logic which even Orwell and Kafka would have had difficulty dreaming up. As UNHCR's Director of International Protection, Dennis McNamara, points out, "the restrictive interpretation can give rise to situations whereby someone who defects from an armed opposition group, but is still identified with it by his government, can be recognized as a refugee under the 1951 Convention. However, innocent people – women, children – who were persecuted by his group when he was still with them will be refused refugee status, under the restrictive interpretation."
Nobody seems quite able to put their finger on how the "non-state agent" provision became embedded in the jurisprudence of half a dozen countries. According to Ivor Jackson, a former UNHCR deputy director of international protection, it seems to have crept in towards the end of the Cold War. "It's a problem derived from the fact that in the Cold War, persecution normally emanated from a state authority. People now argue that, at the time the Convention was framed, the type of persecution which existed came from the state. That's true. Nevertheless, the world has changed considerably since then. The Convention has been applied in all sorts of situations that didn't exist in 1951 – and it has been shown to work."
It was not until the collapse of the Iron Curtain that the full impact of the restrictive interpretation was really felt, as a result of a dramatic change in the profile of asylum-seekers. More and more asylum-seekers were fleeing civil wars, and fewer matched the classic profile of the individually persecuted political refugee crawling under the Curtain into the welcoming arms of the West. The welcome rapidly wore thin, and the restrictive interpretation, which excluded all those persecuted by a non-state agent, was one way of cutting down the numbers.
Ivor Jackson, who joined UNHCR in 1958, is seen both inside and outside the organization as one the foremost experts on the genesis and evolution of the 1951 Convention. In his view, refusal of refugee status on the grounds of non-state agents of persecution is "a vicious interpretation." Jackson has trawled through all the travaux preparatoires – or background working papers – which document the negotiations and proposals that took place prior to the acceptance of the final version of the 1951 Convention. "In the travaux preparatoires," he said, "there's nothing to support this interpretation. They never addressed their minds to the question whether persecution can only emanate from the state."
Outside of the legal departments of the countries which apply the restrictive interpretation, it has few supporters. Philip Rudge of ECRE said "There is a very broad consensus among NGOs in Europe that the issue is the persecution, and the agent of it is clearly secondary. We believe that the facts relating to the persecution are incomparably more important than the identity of the persecutor. The singular notion that states have a monopoly to be evil is outmoded."
The majority of European countries do not automatically exclude people with well-founded fear of persecution at the hands of non-state agents from being recognized as Convention refugees. Austria, Denmark, the Netherlands and Spain make no distinction between the state being unable or unwilling to provide protection, and there are examples of recognition of non-state-agent persecution in the case law of several countries. In others, administrative practice means that such refugees are usually given some sort of humanitarian status, even if they do not receive full Convention refugee status.
Even in the countries which are most loath to recognize non-state agents of persecution, potential victims of such persecution are often not actually deported – although sometimes this is simply due to the practical difficulties of deporting people to countries such as Liberia and Somalia.
While clearly preferable to deportation, an informal policy of non-deportation is still the weakest form of international protection there is. People in such a position remain cast in the role of illegal immigrants. In most countries, they have no status in society, no opportunity to earn a living legally, no recourse to authority, no legal protection. They know that if the powers-that-be suddenly decide "the boat is full," the policy of non-deportation could change overnight. They can be picked up by the police as an illegal immigrant at any time. Each morning they wake up with the sword of Damocles hanging over their heads.The various humanitarian statuses applied by some European countries provide for better protection and social conditions. However, they too can be revoked at any time by the country concerned, for example in response to a sudden gust of political xenophobia. Only recognition under the 1951 Convention can remove such doubts and uncertainties, making a refugee's life – which is hard under any circumstances – a little more bearable.
In Sweden, a significant breakthrough on the non-state-agent issue may be in the making. A government-appointed commission consisting of parliamentarians and experts has been looking into Swedish refugee policy, which currently restricts recognition on grounds of persecution by non-state agents. In June, the Refugee Policy Commission published a series of proposals favouring a more liberal interpretation of the Convention, in particular on the issue of non-state agents of persecution. Under the proposals, victims of non-state agents would be included as 1951 Convention refugees. Most of the recommendations are expected to be adopted by the Swedish Parliament, leading to legislation that should come into force some time in 1996. According to John Horekens, Director of UNHCR's Europe bureau, "this is a welcome development which UNHCR follows with great interest. This could have a positive impact on the general discussion over the issue, particularly within the European Union."
UNHCR's position on the issue of non-state agents of persecution is crystal clear, and has been for years. Its 1979 Handbook on Procedures and Criteria for Determining Refugee Status is generally accepted as the main international guidelines for interpretation of the Convention, and in particular of the definition. In Paragraph 65 it states: "Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned.... Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection."
A March 1995 UNHCR information note addressed to the member states of the European Union stated: "Persecution that does not involve state complicity is still, nonetheless, persecution." To someone unacquainted with the non-state issue, this might appear to be stating the obvious. UNHCR's bottom line on the Convention definition seems equally obvious. The essential issue in establishing whether the 1951 Convention definition applies is to determine whether an applicant does or does not enjoy national protection against serious violation of his or her human rights, whoever the perpetrator of these violations may be.
For UNHCR, the proposed harmonization of the refugee definition by the E.U. member states goes right to the heart of its mandate. The 1951 Convention contains a provision that makes the High Commissioner responsible for supervising the application of the Convention. For this reason, the organization has strongly urged that any harmonization document include recognition of people persecuted by non-state agents – a category who are recognized as Convention refugees by many countries around the world. Although the majority of E.U. member states also do in fact recognize non-state agents, adoption of a harmonization document requires unanimity – hence the fears of the lowest common denominator: it only requires one hard-line state to veto acceptance of non-state agents as valid persecutors.
If the final document harmonizing the E.U. position excludes persecution by non-state agents as valid grounds for granting refugee status, UNHCR believes it would contravene the spirit and purpose of the 1951 Convention, and have a negative impact on refugee protection worldwide. "For this reason," says McNamara, "we have made it clear that UNHCR cannot endorse any text that does not make recognition as a refugee under the 1951 Convention mandatory for this group."
Source: Refugees Magazine Issue 101 (1995)