The Responsibility to Protect and the “Migrant Crisis”

By Dr Alex J Bellamy

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Image: ©UNHCR/I.Prickett

The Responsibility to Protect (R2P) entails a responsibility to provide safe flight and asylum to those fleeing atrocity crimes. Yet some of those states that are the loudest advocates of R2P have been among the most reticent to extend protection to individuals fleeing atrocity crimes.  Adopting new and tougher restrictions, such as arbitrary detention and financial penalties, aimed at deterring asylum seekers, these states are not only failing to uphold their responsibility to protect, they are also fundamentally undermining International Refugee Law. This needs to change, and we need to recognize the centrality of asylum to the implementation of R2P.

Agreed at the 2005 World Summit, and reaffirmed by both the UN General Assembly and UN Security Council (which has now passed 43 resolutions referring to the principle), R2P rests on three mutually reinforcing pillars: (I) the responsibility of each state to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity and from their incitement; (II) the international community’s responsibility to encourage and assist states in protecting their own populations; and (III) the international community’s responsibility to use diplomatic, humanitarian and other peaceful means to protect populations from these atrocity crimes and, when that is judged inadequate and national authorities are “manifestly failing” to protect their population, to take timely and decisive action through the UN Charter. As the UN Secretary-General emphasized in 2012, R2P is universal and enduring. It applies everywhere and all the time inasmuch as there is never a situation in which states, and the international community, do not have a responsibility to protect populations from atrocity crimes.[1]  We should therefore never ask whether R2P applies, but rather what can be done to fulfill it. And governments should never look to others to shoulder their responsibilities. R2P is a responsibility that demands something of everyone.

When atrocity crimes are committed, as they have been on a massive scale in Syria, one of the things that determines whether civilians caught between barrel bombs and beheadings live or die is their capacity to flee from immediate harm. The more a targeted group is able to find refuge from violence, the lower the number of casualties from direct violence is likely to be. When civilian populations are trapped in besieged communities, such as Homs, Aleppo, Malakal, and Yarmouk in Syria – and Srebrenica in Bosnia two decades ago – the death toll from atrocities can reach astronomical scales, as indeed it has in Syria and did in Bosnia. When foreign countries refuse to permit refugees fleeing for their lives to land on their territory they contribute to the death toll. That is a lesson that should have been learned in Europe and North America in the 1930s. Back then, instead of facilitating the flight of Jews from Nazi Germany they prohibited. Tens if not hundreds of thousands of people who might have escaped the Holocaust did not because they were denied asylum in third countries.

But the granting of asylum is only part of the story. As we have come to learn only too well in the Aegean, the downside is that displacement significantly increases an individual’s exposure to harm. Flight, especially across water, is difficult and dangerous. Fleeing across land exposes individuals to a crippling loss of assets and the risk of attack. Most of the world’s displaced are deprived the “essentials of life,” namely shelter, food, medicine, education, community and a resource base for self-reliant livelihood. Indeed, mortality rates among displaced populations are higher than among almost any other group, with the exception of those who stay behind to face the violence. Refugee camps, such as those that have sprung up across Jordan, are sometimes quite violent places. Women and girls can face particular protection challenges, including significant threats of sexual violence and exploitation.

Bearing these two points in mind – that fleeing atrocities is a sound self-protection strategy but that flight itself can be risky —  it stands to reason that efforts to facilitate the safe flight of people from areas affected by atrocity crimes and to protect them once displaced are among the most significant and direct ways in which lives can be saved when threatened by atrocity crimes that shock the conscience of our common humanity.

Flight – leaving an area under threat to head for a second country, a safer region or a camp administered by international agencies – is one of the most common, and effective, forms of immediate self-protection. Decisions about when and where to flee are rarely arbitrary. People typically flee to where they believe it will be safer, either because of familial or other relationships or because of the promise of assistance from national authorities or humanitarian agencies. Often, people flee multiple times in search of safety. Although flight in the face of imminent danger is a good means of physical protection in the short-term, those who flee are often left relatively unprotected in the longer-term and vulnerable to other threats.

Today, the world faces an unprecedented crisis of displacement caused by a combination of massive new humanitarian crises, such as that in Syria and the international community’s failure to find long-term resettlement places for those displaced by past crises. According to the UNHCR, at 59.5 million, there are more displaced persons today than at any point since the end of the Second World War. Of these, 19.5 million are refugees. In 2014, 126,800 refugees decided to return home, while between them some 26 countries offered permanent resettlement places to 105,200 refugees. More than two-thirds of those places were offered by one country—the United States.

The relationship between R2P and the protection of refugees was recognized from the outset. Indeed, R2P itself grew out of attempts in 1990s to recast sovereignty in order to improve the protection of internally displaced populations. The UN Secretary-General, Ban Ki-moon, has repeatedly argued that full implementation of international refugee law is among the steps that states ought to take in order to fulfill their R2P. In 2008, two of the world’s leading thinkers on refugee protection, Brian Barbour and UNHCR’s Brian Gorlick, argued that “there may be no easier way for the international community to meet its responsibility to protect than by providing asylum and other international protection on adequate terms”.[2] Primarily, they argued, this involves simply the full and unimpeded implementation of the 1951 Convention on the Protection of Refugees and subsequent 1967 Protocol through the existing mechanisms, including UNHCR, already established to achieve that goal. “Asylum” – a term not often associated with R2P – ought to be a key element of the principle’s repertoire of responses to atrocity crimes. That is why, the Secretary-General’s Special Adviser on R2P, Jennifer Welsh, has pointed out that Jordan acted to fulfill its responsibility to protect by accommodating Syrian refugees and was praised for doing so.[3]

Specific measures to support the protection of refugees who flee atrocity crimes that could be undertaken by states with the support of agencies such as the UNHCR and IOM include:

 

  • Ensuring that neighboring states open their borders and make it as easy as possible for threatened people to seek asylum;

 

  • Providing support to the receiving states to ensure that they are able to adequately house, shelter and protect refugees;

 

  • Relieving the burden on receiving states by facilitating the movement of refugees to third countries for temporary protection;

 

  • Significantly expand the availability of long-term protection and resettlement options to reduce the number of displaced people worldwide;

 

  • Advocating strongly for the granting of asylum and protection to potential victims of atrocity crimes;[4]

 

  • Ensure that the unique protection needs of women and girls are addressed;

 

  • Improve understanding of the reasons why people are fleeing a particular situation in order to increase the amount of information available about atrocity crimes.[5]

 

Beyond these, Barbour and Gorlick suggested a range of ways in which R2P’s first two pillars could be utilized to enhance upstream protections, such as through urging states to prioritize the development of legal processes for the determination of an asylum-seeker’s status, measures to tackle the underlying protection needs of victims and the causes of displacement, and action to reduce statelessness. These are all necessary, but as yet too often overlooked, components of R2P’s implementation. They should be at the forefront of efforts to implement the principle.

With each year that passes the gap between the number of refugees and the global capacity to safely return or resettle them is growing. Meanwhile, developed states are generally tightening their own refugee and immigration policies, making it more difficult for the forcibly displaced to find asylum while making frontline states shoulder the principal responsibility for housing them.  In 2014, the principal host states were Turkey, Pakistan, Lebanon, Iran, Ethiopia, and Jordan – many of which have their own profound insecurities. In total, some 86% of the world’s refugees are housed in the developing world, and some 25% in UN-defined Least Developed Countries.

The granting of asylum may be one the most straightforward and effective ways in which states can fulfill their responsibility to protect, but the gap between demand and response is growing rapidly. This needs to be addressed urgently through the reaffirming of support for asylum and redoubling of efforts to protect refugees and displaced persons. The ambitions of R2P will not be achieved without the adoption of bold measures to reaffirm faith in the right of asylum.  This requires nothing short of a sea change in the way that the UN’s member states relate to asylum and the protection of refugees.

In order to encourage this necessary change, the UN Secretary-General and UNHCR could consider convening a high-level panel or taskforce to examine the current crisis of displacement and recommend concrete steps that can be taken to better protect refugees and displaced populations from atrocity crimes. The UNHCR could also consider appointing its own special envoy or adviser specifically focused on R2P and asylum to act as a constant reminder that achieving the commitment to R2P requires the provision of asylum, and to prod states to live up to their own solemn commitments.

What, though, is needed right now to respond effectively to Syrian refugee crisis? Last year, my colleague at the Asia Pacific Centre for R2P, Phil Orchard, advanced a three pronged approach to the crisis, crystallized as a comprehensive and global program involving (1) increased humanitarian assistance to the countries neighboring Syria and housing most of the refugees; (2) safe processing centres, managed by UNHCR, in Turkey and perhaps Jordan to rapidly assess asylum claims; (3) a global resettlement scheme for refugees and provision for safe return for those whose claims are denied.[6] The first element would strengthen the capacity of frontline states to meet the urgent protection needs of those fleeing atrocities in Syria. The second would deter asylum seekers from taking the dangerous voyage to Europe by allowing their claims to be assessed in situ. The third would allow an equitable distribution of refugees around the world, giving states with the capacity to do so the opportunity to fulfil their responsibility to protect. Orchard estimated that it was not unreasonable to expect a global commitment to take 400,000 refugees – 10% of the Syrian total – from these processing centres. That, relatively small, intake would help ease the pressure on the frontline states and make a significant and direct contribution to protection.

Whether or not this particular plan is adopted, it is imperative that states come to see the granting of safe passage and asylum as pivotal to fulfilling their responsibility to protect and not as an optional extra.


Alex Bellamy is Director of the Asia Pacific Centre for the Responsibility to Protect and Professor of Peace and Conflict Studies at The University of Queensland, Australia. He is also Non-Resident Senior Adviser at the International Peace Institute, New York and Fellow of the Academy of Social Sciences in Australia. He tweets @Alex_J_Bellamy

 

[1] Responsibility to Protect: Timely and Decisive Response. Report of the Secretary-General. A/66/874-S/2012/578, 25 July 2012, para. 13.

[2] Brian Barbour and Brian Gorlick, “Embracing the Responsibility to Protect: A Repertoire of Measures Including Asylum for Potential Victims”, International Journal of Refugee Law, 20 (4) 2008, p. 533.

[3] Jennifer Welsh, “Fortress Europe and the Responsibility to Protect: Framing the Issue”, European Union Institute Forum, 17-18 November 2014, p. 3.

[4] Barbour and Gorlick, “Embracing R2P”, p. 558.

[5] Barbour and Gorlick, “Embracing R2P”, p. 558.

[6] https://theconversation.com/only-a-global-response-can-solve-europes-refugee-crisis-47040

Author: protectiongateway

Human Protection Hub

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