Address by Ms Erika Feller, Director, Department of International Protection, UNHCR, on the occasion of the 4th International Conference of the International Association of Refugee Law Judges (Berne, 25 October 2000)
Mr Chairman, Distinguished Justices and Judges, Ladies and Gentlemen
It is with great pleasure and some trepidation that I take the floor before so many eminent jurists. Your presence is testament to the major role that the judiciary has to play in today's turbulent and disturbed world in protecting the safety and rights of some of the world's most vulnerable people. It is also a tribute to the unique function served by the International Association of Refugee Law Judges, which has been able to bring together representatives of the legal traditions of more than sixty countries. I would like to thank the Association, together with the Swiss Asylum Appeal Commission, for hosting an event of such importance - and one of particular significance to UNHCR in this the year of its 50th Anniversary. Our sincere thanks also go to the Swiss Government for the generous financial support it has provided, which has made possible the attendance of so many judges both here and in Geneva earlier this week for the Professional Development Workshop.
I have been asked to offer some reflections on the changing nature of persecution. Perhaps the best way to address this rather elusive subject is to focus on change more broadly across the spectrum of the refugee problem, its impact on the possibilities available to persecuted individuals to access effective protection and on the role of judges, in particular, in enhancing these possibilities. I do so not least because, in the fifty years of UNHCR's existence, it is not our experience that man's inhumanity to man has qualitatively changed, or that persecution itself has significantly altered its character. Gross violations of human rights and a flagrant disregard for the sanctity and dignity of the human condition have remained recurring elements in inter-state and intra-state politics for centuries. There is little cause for celebration in the fact that, fifty years on, we are recognizing the universal and still contemporary importance of the anniversaries both of an office [UNHCR] originally set up for five years only and an instrument [the 1951 Convention Relating to the Status of Refugees] promulgated to respond to what were thought to be the particular dynamics of the aftermath of two world wars.
In analysing the changes since 1951 from the persecution perspective, several questions present themselves for examination: If persecution has remained a feature of human society, has it actually taken on new forms or rather is it that certain insidious forms are only now coming to be recognized for what they are, that is as manifestations of persecution rather than as endemic and culturally sanctioned behaviour ? If it is not persecution which has changed, have the persecutors themselves ? Are there new challenges to delivering protection which are giving the notion of persecution a more relative place in the process of determining status and state responsibilities? Are there gaps in the framework of existing principles which might necessitate some additions thereto to ensure that protection remains available against persecution? To all these questions, for UNHCR, the answer is yes.
Mr Chairman, let me take one question at a time.
Persecution is an age old practice. That there is no definition of it in the 1951 Convention is indicative of the fact that its forms are perhaps as various as its years are many. A determination of whether or not persecution is at issue is more often made by reference to some notion of the severity of the act, or the rights or security of person which are being violated, rather than to the act itself. Relativity has been the result, with the persecutory nature of acts being closely tied, in the final analysis, to their time and social and cultural context. If there has been any change in the nature of persecution, it is far less in the acts themselves and much more in their social and cultural acceptability. It is here that the crux of the matter lies. Behaviours persist but increasingly, as tolerance of them diminishes, the likelihood grows that they will be classified as persecutory activities entitling the victim to protection as a refugee. One clear example of this that I would like to mention - and indeed it is on your agenda for later discussion - are acts of gender related violence.
Gender is not specifically prescribed as a ground of persecution. As has been noted somewhat flippantly by one commentator, "the drafters of the Geneva Convention bequeathed to history a critical, male, intellectual, political activist with a high profile in the resistance movement, organised and ideologically motivated, as the classic example of the refugee."
Happily this stereotype is starting to break down, as surely it must , to allow the Convention to serve as a shield against certain forms of gender violence. There are many types of violence against women which in different societies have been tolerated for centuries. This is particularly the case where the mores of a particular society relegate women to a secondary and subservient place, or when the subjugation of women to traditional practices of various sorts are part of the social expectations and fabric of a society. Violence against women in situations of armed conflict, including rape and sexual violence, has been a longstanding phenomenon as well. Certain offences have traditionally been outside the realm of application of the 1951 Convention, being classified as regrettable acts of human excess, or failures in personal judgement rather than as contemptible violations of fundamental rights, capable of incalculable, even if more invisible, harm. UNHCR's position has long been that, if the drafters of the Convention did not reflect it clearly in words, nevertheless, violence with a basis in gender is as persecutory in Convention terms as any other violence when the harm inflicted is sufficiently serious and it can be linked to a Convention ground. AND it does not matter in this regard that the Convention is silent on gender as a ground for persecution. AND it does not matter that the crime is gender specific with women as its victims. This position is increasingly a shared one. The need to interpret the refugee definition in such a gender sensitive way has been endorsed by our Executive Committee, and indeed courts around the world are more and more allowing the definition to incorporate gender related claims.
The Committee and the Courts are aided in this regard by important advances in human rights law, which are helping to change the characterisation of violations against women as those relegated to the private realm alone. The rights of refugee women have been particularly and positively impacted through developments with the Convention on the Elimination of All Forms of Discrimination against Women (1979), which has had the effect, inter alia, of lifting the cultural or religious taboos against sanctioning certain abuses against women. The doctrine of the universality of human rights requires their assessment against evolving international human rights standards.
This is not to say that violations of women's rights or discrimination of whatever sort are enough to establish a case for refugee status. Clearly, a distinction must be drawn, for example , between discrimination and persecution. However, various acts of discrimination, in their cumulative effect, can deny human safety and dignity in key ways and are properly recognised as persecution for the purposes of the Convention. Lord Hoffman, in the decision by the House of Lords of Shah and Islam, wrote that "the concept of discrimination in matters affecting fundamental rights and freedoms is central to an understanding of the  Convention. And in the context of a human rights instrument, discrimination means making distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being to equal treatment and respect" . Put another way, human rights law should and must provide the broad and objective indicators against which the term "persecution" can be interpreted.
Mr. Chairman, if persecution has not changed, the next question is, have the persecutors?
The approach to persecution, or more broadly to recognition that persecutory acts must attract international responsibility for providing protection through the grant of refugee status, has also radically been influenced by changes in the international environment in which refugees find themselves today and the 1951 Convention has to function. These changes have impacted on the preparedness of States to accept protection responsibilities in the particular case. This has found its reflection, in the legal area, in a restrictive approach to applying the persecution/refugee status formula in the 1951 Convention, coupled with the growth of concepts which in effect keep the definition at bay.
Today, persecution takes place increasingly in a climate of general lawlessness and impunity within rather than between States. For many diverse reasons, ethnic conflicts and inter-community violence are allowed to flourish because central government has collapsed, or lacks the willingness or simply the ability to govern effectively. There has been a growth in internal, inter-ethnic conflicts characterised by massive population displacements which are not their unintended result, but their actual objective. The victims, unable to find effective relief from serious harm within their own countries, are obliged to claim protection beyond the borders of their State. The perpetrators of this harm and violence range from traditional agents of the State - such as police and military - to militia, paramilitary groups, separatist rebels, bandits, and even thugs. But the victims remain largely the same people - predominantly women, children and the elderly.
In this environment, perhaps the greatest impediment to a "victim-oriented " or "protection-based" approach to refugee protection is the notion, adhered to by a few asylum States, that only those who are victims of actual persecution at the hands of the State or a State-like authority, are legally entitled to international refugee protection. Acquiescence in or complicity by the State in the acts of private individuals or groups are seen as pre-requisites for the State to be accountable for those acts. It is argued that, without this nexus, the edifice of international refugee protection is not even engaged, irrespective of the harm caused to human beings. In the view of UNHCR and a growing number of others, this approach is legally questionable at best. If we accept that the primary purpose of asylum is to provide a temporary and surrogate place of safety for people where, for whatever reason, this is not reasonably available in their countries of origin, then any approach that draws an arbitrary "line in the sand" between different but equally deserving victims, must run counter to the objects, purposes and spirit, indeed the letter, of the refugee protection framework.
Legal support for the alternative and preferred "protection view" that places objective protection imperatives over the need to establish a nexus of accountability to the State, can be found in related areas of law - notably, in international human rights law, humanitarian law and criminal law.
As previously mentioned, human rights law has not been static over the past 50 years - not least on the question of acts by non-state entities. For instance, the case law of international bodies such as the European Court of Human Rights, the UN Human Rights Committee and the Inter-American Court of Human Rights have each held that people cannot be returned (refouled) to situations where they are at risk of torture or inhuman treatment - irrespective of the source of this ill-treatment. Although at first reading, the UN Convention against Torture has a narrower definition of torture that is confined to state entities, its supervisory UN Committee has interpreted it in a broad and inclusive way, for example to protect from refoulement, a victim of inter-clan violence in Somalia - a country which lacks any form of effective central government.1
As for developments in international criminal law, the International Criminal Court Statute recognises that crimes against humanity, including "persecution", can also be carried out by private actors as part of an organisational policy. Criminal liability would extend to the perpetrators of ethnic cleansing and persecution, irrespective of whether they are acting as agents of the State or not.
Mr Chairman , turning to the third question, there are certainly new challenges to delivering protection which are giving persecution a more relative place in decisions by states to accept protection responsibilities for non-citizens. The recurring cycles of violence and systematic human rights violations in many parts of the world are generating more and more intractable displacement situations. The changing nature of armed conflict and patterns of displacement, the more and more unfavourable cost/benefit equation of asylum, and serious apprehensions about "uncontrolled" migration in this era of globalisation are increasingly part of the environment in which refugee protection has to be realised, and indeed persecution has to be defined. Trafficking and human smuggling, abuse of asylum procedures and difficulties in dealing with unsuccessful asylum-seekers are additional, compounding factors. Many traditional receiving countries increasingly have a sense that they are forced to react to the pressure of these developments, rather than being able to take the initiative to act in the first instance. This has caused a number of countries to put much imaginative effort into the erection of obstacles, including legal obstacles, to hinder access to territory and status determination procedures.
These developments have impacted clearly, if indirectly, on the extent to which persecution is the trigger for States to accept and offer asylum to refugees. To take only one example here - particular problems have been encountered in recent years with the determination of refugee claims that involve analysing whether the fear of persecution extends to the whole of the territory of the country of origin. In the practice of a number of countries, increasing insistence has been put on efforts which the asylum seeker should have made to explore relocating internally prior to seeking asylum. The possibility of accessing safety elsewhere inside the country of origin - termed the "internal flight alternative" or the "relocation principle" - has been used increasingly as a bar to the admissibility of claims for refugee status. The argument is that if the individual concerned could have found safety [however that is defined] within the home country, then the claim would have no foundation and the person could not be a refugee. But where is persecution in this equation? In UNHCR's view, the use of this notion to deny access in the first place to refugee status determination, rather than situating it where it belongs within the framework of the status determination analysis, risks seriously distorting refugee law, by creating a new criterion for refugee status which substitutes for the refugee definition.
We accept that new or refined notions, such as the internal flight alternative or the safe country notion, have a place in the developing repertoire of responses to complex displacement situations. However, preventing their misuse and channelling them into protection sensitive procedures is now one among many of the important challenges faced by UNHCR.
What is clear, Mr. Chairman, is that the 1951 Convention regime has reached a crossroads. Mindful of the many legal, but also very practical problems now confronting refugee protection, we have decided to take the opportunity of the forthcoming 50th Anniversary of the 1951 Convention to initiate a process of Global Consultations with governments, NGOs and refugee experts, like yourselves, with a view to revitalising the protection regime and the place of the Convention in it. Our purpose is both to preserve the Convention's centrality, and that of its basic working concepts, such as the notion of well founded fear of persecution, as a main basis for refugee decisions. We are also seeking to buttress the Convention, where needed, by harmonised additional protections. These Consultations were announced in July, will begin in substance next year and will more than likely continue throughout 2002.
We have a working frame for the Consultations, which has led them colloquially to be termed the "three circles consultations". The inner circle should be seen as the basic, globally agreed framework of the 1951 Convention. We hope that an event we intend to organise for the 50th Anniversary of the Convention will be the occasion for States parties unequivocally to reaffirm their commitment to full and effective implementation of the Convention, and more substantively, to examine ways in which this might be strengthened through better supervisory mechanisms. This, if you like, is the political part of the Consultations!
In the next circle of issues, the legal circle, we have placed certain open interpretative questions regarding the Convention. Our interest here is in examining how and in what directions the law has developed over recent years, that is in a stock taking exercise which would allow decision-makers to be better informed about how the Convention is being understood and applied globally today. We will be organising round-tables of experts, informed by background papers, on topics such as the interpretation of the cessation and exclusion provisions, the ground of membership of a particular social group in the definition , and gender related persecution. We will look to you for support in these roundtables. We intend to publish the papers and results of the discussions as a contribution not only to the 50th Anniversary, but also to better decision-making in the application of the Convention. Such a publication would, we hope, serve eventually as a complement to UNHCR's Handbook.
Finally, in the outer or "practice" circle, there are the gaps being the situations the Convention does not adequately, or at all, cover. Discussions in these matters will take place within the framework of UNHCR's Executive Committee and will focus, broadly speaking, on four thematic areas where, in UNHCR's experience, the practical problems lie: the civilian character of asylum and the protection of refugees in mass influx situations; protection of refugees through individual asylum systems, including the problems inherent in the migration/asylum interface; and realisation of protection-based durable solutions. The overarching theme which will run through these consultations is better co-operation and responsibility sharing solidarity. We hope the consultative process will better define the problems, as well as help to identify new approaches, tools or guidelines. There might even, at some point, be a standard-setting element involved.
Possible response from the national judiciary
In conclusion, Mr Chairman, I would like to offer some random thoughts on the role of the judiciary against the background of the problems and challenges confronting refugee protection today.
It is clear that in the search for effective yet humane refugee protection in the 21st Century, the 1951 Refugee Convention remains the foundation instrument - a useful and living one for both States and refugees. However, for its validity and relevance to continue to be assured, national judges have a crucial role to play in giving the terms of the Convention a proper interpretation that respects its objects and purposes. They must be able to search beyond the traditional context of their own national legal systems for guidance and inspiration in the normative framework of international human rights, humanitarian and criminal law. These standards are increasingly important reference points, with which in our experience judges need to be fully conversant.
To date, progress in this regard has been slow, but, if we may so observe, generally positive. Even in dualist legal systems where the transformation of international law into national law is a more circumspect and osmotic process, judges are showing a greater preparedness to refer to both international standards and jurisprudence from other national jurisdictions. This cross-fertilisation of ideas and experiences is a way of encouraging best practices amongst judges, with this Judges Association being, very clearly, an excellent network within which this can be promoted. Our expectation is that the Consultative process we are now engaged in will also make an important contribution in this regard.
It is not, of course, easy for national legal systems to absorb international legal principles. Judges may be reluctant to embrace standards that have no clear legal authority in their national laws. They may be cautious not to encroach too far into the realm of executive action and may wish to avoid any impression of judicial law-making. Clearly, part of the dilemma facing domestic judges is the imprecision of the language of international law itself. Its interpretation is not an exact legal science because by and large, refugee and human rights law has been crafted by diplomats, not domestic lawyers, with international law more often than not couched in the language of political compromise. To domestic lawyers and judges used to the precision of national law, these treaties may seem crude and imprecise - and perhaps unreasonably altruistic.
It is here that judges and advocates faced with interpreting international law in a national context have a dilemma. To ignore the principles runs the risk of creating injustice and hardship and may even make the judiciary complicit in a State's failure to translate its legal commitments into effective domestic action. On the other hand, if judges try to subject international law to minute legal dissection, then the spirit and ethical values of refugee protection may well be eviscerated. In fact, some of the restrictive trends I have just described have been contributed to, at least in part, by the unduly narrow interpretations of judges, rather than politicians. A current concern for example is the effort by the courts in one country to suggest that the absolute and non-derogable character of non-refoulement in cases of torture, might not apply to refugees facing torture, who fall within Article 33(2) of the Refugee Convention.
In our view, human rights law and refugee law should be each interpreted in a way that strengthens and enriches the broad protection framework rather than undermines it through aberrant exceptions. On refugee issues, a "purposive" approach to interpreting international law will ensure that the focus is kept on the victim and the palliative purpose of protection. It will also promote the dynamic rather than static character of international law and the State's commitment to it.
A second message I would like to leave for judges to consider relates to the fact that the sheer number of people trying to enter national asylum procedures inevitably seems to tempt some governments to look for economies of due process. These can take a variety of forms, including that of legal devices to allow summary dismissal of claims deemed manifestly unfounded, against criteria which stray far from the notion of what should constitute manifest unfoundedness. The creation of legal concepts which in effect serve as barriers to accessing the asylum procedures is also a concern here. UNHCR acknowledges the need for expeditious procedures and new concepts, but these can never be at the expense of key Convention notions - persecution among them - or basic principles of fairness and thorough enquiry. Here, judges will have an important if likely unpopular role to play.
UNHCR has often seen in this regard how active judicial supervision and an insistence on the rule of law have been able to disentangle refugees from the wider and more politicised net of migration control. This might not be the most popular judicial role but the rationale for it is incontestable. As Lord Bridge rightly observed in the British House of Lords,
"The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."2
In the limited time available, I have addressed but some of the many complex challenges that lie ahead. Clearly, if the legal principles and ethical values that underpin asylum and refugee protection are to be revitalised and if the law in this area is to be of contemporary relevance to both States and refugees, then it cannot be monolithic. It must be allowed to evolve organically but, at the same time, preserve its central integrity. The work of your Association, through its expanding membership and the ambitious themes of this Conference, can help to ensure that whatever the challenges, the process of evolution will remain principled and true to its real object and purpose.
1 Elmi v Australia, Communication No.120/1998, 25/05/99, CAT/C/22/D/120/1998
2 Bugdaycay et ors v Secretary of State for the Home Department (1987) ImmAR 250, 263.