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UNHCR's Mandate
1.
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UNHCR's fundamental responsibilities are to: i. Provide international protection to refugees; and ii. Seek permanent solutions for their problems. |
2. The need for international protection arises from the fact that refugees, unlike ordinary aliens, no longer have the protection of their home country. International protection is a temporary substitute for the protection normally provided by States to their nationals abroad until the refugee can again benefit from national protection.
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In an emergency it must first be established that the persons endangered are of Concern to UNHCR and thus entitled to protection. |
3. The legal basis for securing this protection, the aim of protection, and the means to provide it, must be clearly understood. This chapter addresses these questions.
Legal Instruments
4. All UNHCR staff must be familiar with the key international instruments covering the protection of refugees. Of fundamental importance are the following:
i. Statute of the Office of the United Nations High Commissioner for Refugees;
ii. 1951 Convention Relating to the Status of Refugees and its 1967 Protocol;
iii. 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa of the Organization of African Unity (OAU); iv. 1984 Cartagena Declaration on Refugees, and 1994 San Jose Declaration.
5. Annex 1 lists these and other relevant international instruments and their main purpose(s).
6. Refugees enjoy basic human rights set out in instruments such as the Universal Declaration of Human Rights, and other instruments listed in Annex 1, as well as the rights they have as refugees which are described in the various refugee instruments.
Refugee Definition
7. A refugee is defined as:
any person who is outside his/her country of origin and who is unwilling or unable to return there or to avail him/herself of its protection because of:
i. a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
ii. a threat to life or security as a result of armed conflict and other forms of widespread violence which seriously disturb the public order.
Whether a person is a refugee is not dependent on formal recognition, but on the fact of meeting the definition of refugee.
8. On the spot presence and quick action are generally crucial to the attainment of UNHCR's objectives, particularly where there is danger of refoulement or abuses such as arbitrary detention or mistreatment.
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The aim of international protection in emergencies is to: i. Ensure admission and at least temporary asylum; ii. Prevent forcible return ("refoulement"); iii. Ensure refugees are treated according to basic human rights standards. |
Admission and Non-refoulement
9. The first and most urgent priority is to ensure refugees' right to asylum is respected, and to ensure they are not forcibly returned (refouled).
Non-refoulement
10. Of cardinal importance is the principle of non-refoulement. This principle is set out in Paragraph 1 of Article 33 of the 1951 Convention which states that:
"No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion".
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Non-refoulement includes not rejecting or turning away a refugee at the border, as well as not returning him/her subsequent to admission to a country where he/she could face persecution. |
11. The 1951 Convention provides for very limited exceptions to the principle of non-refoulement of refugees, namely, for those reasonably regarded as a danger to the security of the country where they are, or for those who, having been convicted by a final judgement of a particularly serious crime, constitute a danger to the community of that country.
12. The principle of non-refoulement has found specific expression in a number of international instruments adopted at the universal and regional levels.
13. Because of its fundamental and universally accepted character, the principle of non-refoulement has been recognized as a principle of customary international law, and hence binding on all states.
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Non refoulement is a principle of international law and binding on all States irrespective of whether or not they are party to the 1951 Convention or other international refugee instrument |
Admission
14. Asylum seekers must be admitted to the state in which they seek refuge, without discrimination as to race, religion, nationality, political opinion or physical incapacity. The Universal Declaration of Human Rights states that:
"Everyone has the right to seek and to enjoy in other countries asylum from persecution".
15. The General Assembly, on adopting the UNHCR Statute, called on governments to cooperate with the High Commissioner in the performance of his/her functions by, admitting refugees to their territories.
16. Refugees may not be able to meet normal immigration requirements because of their flight. The 1951 Convention obliges states not to penalize refugees for having entered their host country without the legally required formalities.
Status Determination
17. Refugees may be recognized either on the basis of "prima facie" group determination, or following individual status determination.
18. At the outset of an emergency when asylum-seekers arrive in large numbers over a short period of time, it is often impractical to resort to an individual determination of refugee status for each member of the group. In most emergencies those seeking refuge may be of concern to UNHCR, and the Statute calls for action on their behalf. When protection is clearly an urgent humanitarian need, the benefit of the doubt has to be accorded at least until a considered opinion is available.
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In the case of mass influx, the aim is to secure treatment in accordance with universally recognized humanitarian principles not necessarily directly linked to the legal status of those in heed. Speed of intervention to secure protection is thus the first priority. |
19. In such circumstances, UNHCR and states usually resort to refugee status determination for the entire group based on their knowledge of objective conditions in the country of origin. Every member of the group is thus considered a refugee prima facie, i.e. a refugee in the absence of evidence to the contrary.
Persons Excluded From Refugee Status
20. Certain persons do not fall under the High Commissioner's competence and are excluded from protection. These are persons with respect to whom there are serious reasons for considering that they have committed a crime against peace, war crimes (e.g. torture or execution of prisoners), crimes against humanity (e.g. genocide), serious non-political crimes (e.g. murder or rape) outside the country of refuge, or acts contrary to the purposes of refuge, or that they have been guilty of acts contrary to the purposes and principles of the United Nations.
21. Headquarters must be informed immediately of such situations and as a rule, criteria for decisions on exclusion should be taken in consultation with Headquarters. Note that asylum seekers can be given prima facie recognition as refugees on a group basis, but can only be excluded from refugee recognition on an individual basis.
UNHCR and States' Responsibilities
22. The High Commissioner's universal protection responsibilities have been placed on him/her by the General Assembly (Statute of UNHCR). The exercise of the international protection function by UNHCR is not dependent upon a request by the government concerned.
23. In countries that are parties to the relevant legal instruments, UNHCR's protection function is facilitated. The 1951 Convention obliges States which are parties to the Convention to cooperate with UNHCR in the exercise of its functions and in particular to facilitate UNHCR's duty of monitoring the application of the Convention's provisions. The 1969 OAU Convention contains a similar clause.
24. Even when an emergency occurs in a country not party to the relevant international instruments, some of the principles embodied in the Convention are considered customary international law and hence are binding on all states. Foremost amongst them is the principle of non-refoulement. In addition, the moral strength and standard setting value of the conclusions of UNHCR's Executive Committee (EXCOM) is not limited to states which are members of the Executive Committee (see chapter 9 on external relations for more details on EXCOM members).
Basic Refugee Standards
25.A set of internationally recognized basic standards of treatment applicable in refugee emergencies has been agreed1.
a) Refugees and asylum seekers should not be penalized or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful; they should not be subjected to restrictions on their movements other than those which are necessary in the interest of public health and public order;
b) They should enjoy the fundamental civil rights internationally recognized, in particular those set out in the Universal Declaration of Human Rights;
c) They should receive all necessary assistance and be provided with the basic necessities of life including food, shelter and basic sanitary and health facilities; in this respect the international community should conform with the principles of international solidarity and burden-sharing;
d) They should be treated as persons whose tragic plight requires special understanding and sympathy. They shoud not be subjected to cruel, inhuman or degrading treatment;
e) There should be no discrimination on the grounds of race, religion, political opinion, nationality, country of origin or physical incapacity;
f) They are to be considered as persons before the law, enjoying free access to courts of law and other competent administrative authorities;
g) The location of asylum seekers should be determined by their safety and well-being as well as by the security needs of the receiving State. Asylum seekers should, as far as possible, be located at a reasonable distance from the frontier of their country of origin. They should not become involved in subversive activities against their country of origin or any other State;
h) Family unity should be respected;
i) All possible assistance should be given for the tracing of relatives;
j) Adequate provision should be made for the protection of minors and unaccompanied children;
k) The sending and receiving of mail should be allowed;
l) Material assistance from friends or relatives should be permitted;
m) Appropriate arrangements should be made, where possible, for the registration of births, deaths and marriages;
n) They should be granted all the necessary facilities to enable them to obtain a satisfactory durable situation;
o) They should be permitted to transfer assets which they have brought into a territory to the country where the durable solution is obtained; and
p) All steps should be taken to facilitate voluntary repatriation.
1 These were adopted by UNHCR's Executive Committee in 1981, Conclusion No 22.
Temporary Protection
26. Some countries adopt a narrow definition of the term "refugee" which does not encompass those persons who are fleeing from armed conflict (such persons are considered refugees within the definition contained in, for example, the OAU Convention). In countries with a narrow definition, the term "temporary protection" has been used to describe protection extended to categories of persons clearly in need of international protection, but in respect of whom recognition as refugees would present difficulties, either because they would not fall under the narrow definition, or because individual status determination would not be practical in view of the numbers of persons involved.
27. The basic elements of temporary protection include:
i. Admission to the country of refuge;
ii. Respect for basic human rights, with treatment in accordance with internationally recognized humanitarian standards (e.g. those basic refugee standards listed above);
iii. Protection against refoulement;
iv. Voluntary repatriation when conditions in the country of origin allow. Persons admitted to a country under a temporary protection scheme generally are not provided access to the full range of benefits accorded to individuals who are recognized as refugees.
Introduction
28. The legal basis on which UNHCR intervenes to secure the protection of refugees is contained in the instruments mentioned above. Frequently the practical course of action to be adopted is, however, of more concern than the legal instruments themselves.
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Often protection depends less on the fine print of a statute and more on swift appropriate action by UNHCR field staff. |
29. In order for UNHCR to effectively discharge its protection mandate, the staff of the organization must have free and unhindered access to all refugees and asylum seekers irrespective of their location.
30. It should be borne in mind that action taken at the outset of an emergency may have significant long-term consequences, both for continued protection, including perhaps for other groups of refugees within the country, and for the promotion of durable solutions.
Rapid Deployment, Continuing Presence and Free Access
31. The first priority is rapid deployment of staff.
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A continuing UNHCR presence with direct and unhindered access to refugees should be established in the area concerned for as long as required. |
Free access and continuing presence are the vital practical support to ensuring UNHCR's mandate. Sufficient female staff must be present as this will help ensure that women refugees can express protection problems, and that these problems are recognized and dealt with appropriately.
Assessment
32. Good protection requires good information. UNHCR staff, often together with local officials, should visit all points of influx and refugee locations to gather information from refugees regarding the issues and questions set out in Annex 1 to chapter 5 on initial assessment (in particular those relating to who the refugees are, where they are from, why they have fled and identification of vulnerable groups). In addition, the refugees should be asked about the situation along the flight route and any problems encountered upon entering the country of refuge.
33. Sources of information must be developed and direct communication with contacts established in the field to ensure that UNHCR is quickly informed of any new influx or protection problem. Such open lines of communication are especially important for border regions which are remote from the capital, where UNHCR may not yet have a local presence.
34. Potential sources of information include:
Asylum seekers themselves;
35. If possible the central authorities should participate in fact finding missions, as this reduces the risk of misunderstanding between UNHCR and the central authorities and between the central and local authorities.
Ensuring Respect for Non-refoulement
36. The best way to ensure respect for the principle of non-refoulement and basic human rights is to create awareness among national authorities at all levels. In a crisis situation, it may not be possible to provide formal training, but in daily contacts with camp authorities, local authorities, army personnel and border officials, the principle of non-refoulement must be made clear. Give concrete examples to the authorities of what can happen to a refugee who is returned: it can mean loss of life. Awareness may also need to be raised in the local population -the media may provide a forum - and public opinion can be an important influence.
Ensuring an Understanding of UNHCR's Mandate
37. The basis for UNHCR's concern and involvement should be explained in as practical terms as possible. Local officials may not know of UNHCR's mandate, nor of the assistance which UNHCR may already be giving elsewhere in the country.
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The approach Should stress that the work of the High Commissioner is of an entirely non-political character and is strictly humanitarian and social. |
Border Presence
38. Develop good contact with border authorities and monitor cross border movements: this also helps provide contact with the refugees, and gives information about what is happening in the country of origin as well as potential problems in border crossings on both sides of the border. If it is not possible for staff to be present at all border crossing points on a permanent basis, each crossing point should be checked frequently.
39. Any protection problems relating to the admission or treatment of refugees at the border should be brought immediately to the attention of the competent authorities in the host country and any other country involved, for urgent remedial action.
Location of Refugees
40. Refugees should be accommodated sufficiently far away from the borders of the country of origin to avoid security problems.
Maintaining Contact with Local Authorities
41. At both the local and central level, there must be assured access at all times to those officials whose decisions will affect the refugees' situation. Establish who they are, contact them and if possible request home telephone numbers and other means of communication so that if a protection problem arises it can be brought to the right official's attention at once. Refoulements often take place very rapidly.
42. The most senior local official directly responsible should be approached and requested to allow (at least temporary) asylum. In some cases this may be the local military commander for a region.
43. NGOs may be able to advise on the local infrastructure and decision-making process, and influential local personalities, such as community or religious leaders, may be helpful.
44. Local authorities should be kept informed of demarches UNHCR has made or intends to make in the capital - these should not only be the demarches of a political or formal nature, but also those covering practical and assistance aspects of the programme.
Protection and Assistance
45. Protection and material assistance should be planned as complementary parts of a single UNHCR operation. Assistance cannot be provided without assured asylum and without life-sustaining material assistance, protection alone will not preserve the lives and well-being of the refugees. There should be an early indication that UNHCR's intervention may result in material assistance - in other words, that the granting of asylum and meeting of immediate needs will not be a burden on local authorities' budgets. Field Officers must receive early guidance contained in section III on the extent to which commitments on material assistance may be given, in order to communicate this information with local authorities. If the influx consists of additional asylum seekers clearly belonging to a group already assisted by UNHCR, a firm assurance of material assistance within the means available is usually given. Although the link between such assistance and protection responsibilities is self-evident to UNHCR, it should be borne in mind that the connection is not necessarily so clear to local or central authorities.
Registration
46. A registration exercise should be conducted at the earliest possible stage of an emergency operation (for more details see chapter 11 on population estimation and registration).
Women and Children
47. Refugees, and in particular women and children, travelling alone or in small groups in remote border areas, are very vulnerable to extortion, abuse and sexual violence. A proactive approach is needed to ensure that protection needs are met.
UNHCR considers a child to be:
a person below the age of 18 years, unless, under the law applicable to the child, majority is attained earlier,
as defined in the Convention on the Rights of the Child.
Note that gender-related persecution can be considered a ground for recognition under the definition of refugee.
UNHCR's Guidelines on the Protection of Refugee Women, and Refugee Children: Guidelines on Protection and Care (see key references) are essential reading for those designing a protection programme. More information on the procedures noted below is contained in section III of the Handbook, in particular chapter 10 on community services.
48. Prevent protection problems for refugee women and children through good programme design in all sectors, including:
Help Children by Helping the Family; Support Women to Preserve Family Unity.
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The single best way to promote the protection, well-being and safety of children is to support their families. |
Actively work to preserve family unity. Measures to promote the health and physical security of refugee women can help prevent separation of mother and child. A family, whose members have become separated or who are under serious stress, puts children at particular risk. Give priority to helping parents and other child care-givers meet the needs of their children. Also, recognize the parents' own needs. Families may need assistance in using their own coping techniques and rebuilding their support networks. Make every effort to preserve or reconstitute family help networks. Family groups wishing to live together should be helped to do so.
Monitoring and Reporting
49. Once immediate protection is secured, arrangements must be made to monitor the situation and ensure continuing respect of the rights of the refugees.
50. Immediate, clear and regular reports of developments, action taken and intended to be taken are important, whether from the Field Officer to the Head of Office or from the latter to Headquarters. Guidance must be requested as necessary and Headquarters level interventions recommended as appropriate. See Annex 3 to chapter 8 on implementing arrangements, for a standard situation report.
51. A prerequisite for intervention with a government, or for mobilization of international support, is accurate situation reporting.
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Field staff at the site, anxious to provide immediate help, must remember that unless information gathered locally is shared, its usefulness is Iimited. |
Formalizing Arrangements and Written Demarches
52. Any temporary or ad hoc agreements with the authorities should be formalized, as for example that covering the local UNHCR presence. Reference should be made to protection and durable solutions in any formal exchanges governing the provision of material assistance.
53. As a general rule, a written demarche should be made as soon as possible to the central authorities at the highest appropriate level. This level, and the form of the demarche, will be determined by the nature of UNHCR's presence in the country. A demarche by a newly arrived mission would normally be addressed to the Minister of Foreign Affairs (or perhaps Interior; the advice of UNDP and/or embassies should be sought). The communication might:
i. Refer to the information available to UNHCR on the influx or problem (qualifying it as necessary: the government will often know more than UNHCR);
ii. State UNHCR's view that persons involved are or may (as applicable) be of concern to the High Commissioner;
iii. Refer to the government's protection responsibilities;
iv. Request (confirm understanding, express gratitude for, etc.) assurances that persons will be granted (at least temporary) asylum (if appropriate: pending determination of status and longer-term arrangements);
v. Offer, where persons are found to be of concern to UNHCR, commitment in principle to provide material assistance (for example, "every effort" formula).
54. The text of representative level demarches should be communicated to Headquarters at once both for information and in order that they may be shared with the permanent mission and/or referred to in any subsequent Headquarters level demarches. Likewise, the texts of the latter should of course be shared at once with the field.
55. Representatives should immediately recommend action at the Headquarters level if they are in doubt that their interventions alone will secure protection.
56. New oral and written demarches must be made if there are any grounds for concern that protection is still not adequately assured (refoulement, abduction, arbitrary detention, mistreatment, abuse of women and children etc.). Complementary action at the local level should both closely monitor developments affecting protection, and concentrate to the extent possible on assisting the authorities to meet the practical problems of the influx.
Public Relations
57. In certain circumstances tensions in relations between neighbouring countries may make it necessary to stress even at the local level that the granting of asylum is a purely humanitarian act.
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Emphasize that the granting of asylum is purely humanitarian and therefore not a hostile ad, and that UNHCR's presence and involvement may help reduce tension. |
58. Particular attention should be paid to briefing other UN organizations and the diplomatic community, especially those interested governments whose influence may be able to facilitate protection (for example, by an early indication of support for UNHCR and/or of intent to contribute financially to the UNHCR operation).
59. Visits by national and international media and the diplomatic corps may help achieve a broader appreciation of UNHCR's protection function. The position to be taken with regard to the media will depend very much on the circumstances and whether or not publicity would help protect persons of concern to UNHCR. Close coordination within the various levels of UNHCR is necessary. Where UNHCR is already represented, previously established good contacts with the locally based (and especially local language) media may prove a valuable source of information and is useful in advancing an understanding of UNHCR's role. General guidance regarding media relations is provided in chapter 9 external relations.
Introduction
60. Even after they have been admitted to a country of refuge, refugees may still face serious threats to their safety. In emergencies, some basic human rights are particularly threatened and will need to be specially protected by law as well as by action. These threats may originate from the country of origin or of asylum or from groups among the refugees themselves.
Camp Security
61. Threats of military attacks originating from the country of origin may be reduced by locating or relocating camps or settlements a reasonable distance from the border (see chapter 14 on site planning). In addition the authorities of the country of asylum may have to increase their military presence in the border area and around refugee settlements. However, military presence inside refugee camps or settlements should be avoided.
62. In the country of refuge, threats to physical safety of refugees (refoulement, unlawful detention, sexual violence, etc.) may emanate from officials dealing with the refugees.
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The authorities of the country of asylum must be made aware of the fact that they retain primary responsibility for security and must ensure the safety and well-being of refugees. |
63. Corrective action is in the hands of the authorities and must be taken resolutely. UNHCR must maintain contact with the refugees and the authorities to ensure that there is adequate response.
64. Criminal attacks and banditry against refugees should be addressed by civil authorities and security forces of the host country in close cooperation with UNHCR and the refugee community.
65. In situations where armed individuals are part of the refugee population, UNHCR should encourage the screening of the whole population and the separation of refugees from armed individuals, as well as their disarmament.
66. In all cases of military and police presence, general measures as described in paragraph 48 such as awareness campaigns and training for protection of the rights of refugee women and children are important in order to prevent sexual violence against them.
67. In cases of internal conflicts among the refugee population UNHCR should initially encourage a mediation by the refugee community. If this fails, UNHCR should request the authorities of the host country to resolve the conflict.
Reducing Tension Between the Refugee and the Local Community
68. In situations which may give rise to tension and conflict between the refugee community and the local population, the following measures may be considered in addition to action to address the specific causes of the problem:
i. Arranging regular meetings between the representatives of the refugees and the leaders of the local community;
ii. Sensitizing the local population to the plight of the refugees through local media (programmes on radio and TV, articles in newspapers) and community leaders;
iii. Sensitizing refugees to local customs and traditions;
iv. Ensuring that sufficient assistance is mobilized so that the presence of refugees does not impact negatively on scarce local resources;
v. Benefiting the local community through improvements in infrastructure in the areas of water, health, roads, etc.
69. As a measure of protection, UNHCR staff should encourage and support the organization of the refugee community and ensure its involvement alongside local authorities and communities, in all aspects of the administration of the refugee settlement. Women and adolescents should be included in such organizations, particularly those dealing with issues affecting their security. Other actions should include UNHCR presence in refugee camps and special training in international refugee standards and norms for all officials dealing with refugees.
Physical Safety in Areas of Conflict
70. International humanitarian law2 provides protection to civilians including refugees in situations of armed conflict. In non-international conflicts (i.e. internal armed conflict but not police operation), all parties to the conflict are bound by the 1949 Geneva Conventions to respect all persons not taking an active part in the hostilities, and in particular:
i. To treat them humanely and without distinction as to race, religion, sex, birth, wealth or any other similar criteria;
ii. To refrain from violence to life and person;
iii. Not to take hostages;
iv. To respect personal dignity;
v. Not to pass sentences or carry out executions without due process of law;
vi. To collect and care for the wounded and sick.
71. The International Committee of the Red Cross (ICRC) is the agency charged with supervising the implementation of international humanitarian law in situations of armed conflict. In most situations of armed conflict or civil strife, the ICRC offers its services to all parties to assist victims and ensure the protection of civilian populations - including, where applicable, refugees and other displaced populations - as well as detained combatants.
72. UNHCR staff should seek the cooperation of the ICRC, wherever it is present, and benefit from its expertise in dealing with state and non-state parties alike in situations of armed conflict.
2 The four Geneva Conventions of 1949 and their two Additional Protocol of 1977 deal with protection of civilians in armed conflicts.
Operations in Areas Controlled by Non-state Entities
73. In situations of civil strife or internal armed conflict, particular difficulties may arise from the fact that UNHCR's interlocutors are not states or regular armed forces answerable to states, but insurgent groups and other non-state entities. UNHCR may have no choice but to deal with these groups as they exercise de facto control over a refugee population. It will be important to highlight the impartial, non-political and humanitarian role of UNHCR and to exercise public pressure in order to convince these groups of the importance of adhering to humanitarian and refugee law. However, when dealing with these groups, UNHCR should not imply, through any of its actions or correspondence, a formal recognition of these non-state entities by the United Nations.
Forced Recruitment
74. Another protection issue likely to arise where refugees find themselves in or near a conflict zone is that of forcible recruitment of refugees by one or more parties to the conflict. In confronting this issue, UNHCR staff must remember - and remind the authorities -that:
i. The civilian character of refugee camps and settlements must be preserved and respected in all circumstances. Therefore recruitment of any age group for military and paramilitary purposes is unacceptable;
ii. Recruitment by force may amount to cruel, inhuman or degrading treatment, which is prohibited in all circumstances;
iii. Recruitment and direct participation in hostilities of minors under 15 years of age is prohibited, and UNHCR advocates the non-involvement of all children under 18, whether they are required to participate directly in hostilities or to perform support tasks;
iv. Where refugees are forced or coerced to return to their country of origin to fight, this is tantamount to refoulement, which is prohibited in all circumstances.
Combatants
75. UNHCR is not competent to intervene on behalf of combatants. Combatants placed hors de combat (sick, wounded, shipwrecked and prisoners of war) are primarily protected by international humanitarian law, and fall under the competence of the ICRC.
76. An ex-combatant may qualify as a refugee if a well-founded fear of persecution can be established, and if there are no serious reasons for considering that the person should be excluded3.
77. Finally, note that simply because a person is carrying a weapon does not mean that he/she is a combatant - in some societies, carrying weapons e.g. knives, is traditional.
3 See Note on the Application of Exclusion clauses, IOM/83/ 96 FOM/93/96, UNHCR, 1996.
78. A special type of protection emergency can occur as the result of a sudden change, for whatever reason, in government policy towards persons of concern to UNHCR already on its territory. Those affected may include both persons known to UNHCR and recognized as refugees, and others who have hitherto neither formally requested asylum nor made themselves known to UNHCR, but who may nevertheless fall within the High Commissioner's competence.
79. The action to take in protection emergencies of this type will vary greatly in each case and only very general guidance can be given. Accurate information, a UNHCR presence where needed, and a clear and consistent policy in defence of the rights of the refugees will always be required. The guidelines that follow must be modified as necessary in light of the actual situation. Some of the considerations discussed in the previous sections may also be relevant.
80. UNHCR should immediately try to identify and if possible establish a list of persons who are, or may be at risk but were not previously known to UNHCR staff. This list must be constantly updated. Sources of information include the diplomatic community (some persons may approach or even seek asylum in embassies), the ICRC, the national Red Cross or Red Crescent society, churches and NGOs. Care should be taken to ensure the confidentiality of individual cases when establishing contacts with Embassies. Early identification, and, if possible registration of, these new cases by UNHCR can often be a very important source of protection.
81. UNHCR must maintain (or in the case of a new regime establish) close and continuing cooperation with the authorities. If the country has acceded to the relevant international instruments, these obligations remain binding, whatever new policies may be adopted. If the country is not a party to any of the refugee instruments, the Statute and universal instruments must be invoked.
82. The government is, of course, responsible for the physical security of the refugees. Every effort must be made to encourage the government to protect refugees, particularly during any periods of civil tension. The immediate aim is that refugees should be able to remain in safety in their present country of asylum. Respect of the principle of non-refoulement is of paramount importance.
83. There may be circumstances in which movement of the refugees to another country is necessary as a last resort. Such moves are quite different from large-scale resettlement as a durable solution. They may be necessary either as a result of a direct request from the government or where no other way of protecting the refugees exists. Immediate approaches to potential countries of asylum must be made at both local, embassy, and Headquarters levels. Receipt of resettlement offers may have an important influence on the government's attitude towards the refugees. Operational partners must be identified. In addition to locally-based NGOs, the assistance of the ICRC (for example, with travel documents) and the International Organization for Migration (IOM) may be sought.
84. In extreme and tense situations where refugees lives were threatened, there were cases where some form of "safe Haven" for refugees have been established. However, UNHCR's experience with "safe havens" demonstrated that refugees often could not be provided with adequate protection and continued to be exposed to high risks. It is therefore not recommended to formally establish "safe havens".
85. In addition to refugees as defined by the relevant international instruments (see paragraph 7 above), UNHCR has also been empowered to extend protection to the following categories. Refugees, as well as the categories of persons described below, are often referred to as "persons of concern to UNHCR".
Returnees
86. Returnees are refugees who return voluntarily to their country of origin and who formally cease to be refugees as soon as they cross the border. UNHCR has been entrusted by the UN General Assembly to protect and assist returnees, both during the journey and once back in the country of origin and to facilitate finding durable solutions to their problems.
Stateless Persons
87. A stateless person is a person who is not considered as a national by any country. The Universal Declaration of Human Rights states that everyone has a right to a nationality and no one should be arbitrarily deprived of his/her nationality or of the right to change his/her nationality. The main international instruments dealing with statelessness are listed in Annex 1. UNHCR has been designated as the body which can assist stateless persons in presenting their claims to appropriate authorities, and in providing technical and advisory services to states on the preparation and implementation of nationality legislation.
Internally Displaced Persons (IDPs).
88. IDPs can be broadly defined as persons who have been forced to flee their homes suddenly or unexpectedly in large numbers
Considerations Regarding UNHCR Involvement with IDP's.
89. The main requirements for UNHCR's involvement with the internally displaced4 are :
i. A specific request from the UN General Assembly, the Secretary General or other competent principle organ of the UN;
ii. The consent of the concerned state or other relevant entity;
iii. The relevance of UNHCR's expertise to assist, protect and seek solutions for internally displaced persons in the particular situation;
iv. The availability of resources for the activities in question.
4See; UNHCR's Role with Internally Displaced Persons, IOM87/97, FOM 91/97, UNHCR, 1997. as a result of armed conflict, internal strife, systematic violations of human rights or natural or man-made disasters and who are within the territory of their country.
Criteria for Involvement
Certain situations may demonstrate the usefulness of UNHCR's involvement. These are situations which present a clear link with activities UNHCR undertakes in fulfillment of its mandate, for example where internally displaced populations are, or are likely to be, mixed with returnee populations, or where the same causes have produced both internal displacement and a refugee flow, or where there is a risk of cross-border expansion of the internal displacement. Where the link with mandated activities is not present, UNHCR may consider involvement with IDPs to attenuate the causes of internal displacement and contribute to conflict resolution through humanitarian action.
Measures to Assist IDPs
Measures to assist IDPs are broadly similar to those used for refugees. However, by definition, IDPs remain within their own country, and it is the national laws of that state which provide the framework for their protection and rights, rather than specific international legal instruments. Universal human rights instruments, of course, also apply to IDPs.
The presence of UNHCR staff and the staff of other international organizations in the areas where IDPs have sought safety has proven helpful in encouraging authorities and parties to the conflict to respect national laws and universal human rights.
From the outset of an emergency, UNHCR must bear in mind the ultimate objective of refugee protection: to help refugees to overcome displacement and achieve a solution whereby national protection is re-established and they will no longer be refugees.
Voluntary Repatriation
90. Most large scale refugee emergencies are eventually resolved through the voluntary repatriation of refugees once the danger they have fled from has been removed or significantly reduced. See chapter 19 on voluntary repatriation.
Local Settlement
91. Local settlement means assimilation within the country of asylum. In the case of prolonged conflicts, refugees often at least de facto integrate into the host society. It is important in such situations that they should have official status in the country of asylum, a starting point for which should be recognition as refugees under the 1951 Convention.
Resettlement
92. Resettlement (meaning assimilation within another country) should be considered when refugees cannot repatriate or cannot settle in the country of first asylum, or are at risk in their country of refuge. The decision to resettle is taken when there is no other way to eliminate the danger to the legal or physical security of the persons concerned. Resettlement under the auspices of UNHCR is strictly limited to mandate refugees who have a continued need for international protection.
Emergency Resettlement
93. Emergency resettlement can be considered where there is:
i. An immediate threat of refoulement to the country of origin;
ii. An immediate threat of expulsion to another country from where the refugee may be refouled;
iii. A threat of arbitrary arrest, detention or imprisonment;
iv. A threat to physical safety or human rights in the country of refuge analogous to that under the refugee definition and rendering asylum untenable.
94. Categories of refugees who can be considered for emergency resettlement include: survivors of violence and torture, refugees with serious medical conditions which cannot be treated in the country of asylum, women-at-risk, children and adolescents. Priority attention should be given to those refugees with acute legal and physical protection needs such as women-at-risk, and unaccompanied children for whom a determination has been made that resettlement is in their best interests.
Emergency Resettlement Procedures
95. Emergency resettlement must be used selectively and on the basis of a thorough and objective assessment of both refugee status and urgency of removal. Emergency resettlement is undertaken when the immediacy of security and/or medical threat faced by the refugee necessitates the person's removal from the threatening conditions within a few days, or even within hours. For the sake of simplicity a notional limit of a maximum of five days is understood.
96. The following information should be sent to Headquarters immediately:
i. Full name, date of birth, place of birth, sex, nationality and ethnic origin;
ii. Detailed status determination analysis;
iii. Whether accompanied by family (if so, size);
iv. Details, as per (i), of each family member to accompany the candidate;
v. Explanation of the need(s) for resettlement;
vi. Justification for emergency categorization, and required time-frame for departure;
vii. Whether valid travel documents are held by all the refugees concerned;
viii. In case of medical emergency: diagnosis, prognosis, current condition of refugee (and family members if relevant), and whether an escort is needed;
ix. Recommendation on countries of resettlement and reasons, including third country links.
97. Detailed data in a duly completed Resettlement Registration Form (RRF) with supporting documentation must follow as soon as possible.
98. The RRF can be obtained from the Resettlement and Special Cases Section at Headquarters. This is the section of the Division of International Protection that is responsible for processing emergency submissions. In addition, the Section helps coordinate and support the resettlement of difficult protection and special needs cases. It should be contacted for advice.
99. Additional information may be found in the UNHCR Resettlement Handbook.
Collection of Conclusions on the International Protection of Refugees adopted by the Executive Committee of the UNHCR Programme, UNHCR Geneva, 1995.
Collection of International Instruments Concerning Refugees, UNHCR, Geneva, 1995.
Guidelines on the Protection of Refugee Women, UNHCR Geneva, 1991.
Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, WHO, Geneva, 1997.
Handbook for Determining Refugee Status, UNHCR, Geneva 1979.
International Legal Standards Applicable to the Protection of Internally Displaced Persons, UNHCR, Geneva, 1996.
Refugee Children: Guidelines on Protection and Care, UNHCR, Geneva 1994.
Refworld CD-ROM, UNHCR, Geneva, (updated regularly).
Sexual Violence Against Refugees: Guidelines on Prevention and Response, UNHCR, Geneva, 1995.
UNHCR Resettlement Handbook, UNHCR, Geneva, 1997.
UNHCR's Role with Internally Displaced Persons, IOM 87/97, FOM91/97, UNHCR, Geneva, 1997.
Annex 1 - International Instruments Concerning Refugees and Related Instruments
|
International Instruments Concerning Refugees |
||
|
Short Name |
Full Name |
Description |
|
1951 Statute |
Statute of the Office of the United Nations High Commissioner for Refugees. |
The Statute of the High Commissioner's office, adopted by General Assembly Resolution 428 (V) of 14 December 1950. This sets out UNHCR's function and responsibility to provide international protection and to seek permanent solutions to the problem of refugees. It serves as UNHCR's constitution and includes a definition of persons who are of concern to the H.C. The mandate has been modified over time through subsequent General Assembly and ECOSOC resolutions. |
|
1951 Convention |
1951 Convention Relating to the Status of Refugees, and 1967 Protocol Relating to the Status of Refugees. |
An international treaty which is binding upon the signatory states. It sets out the responsibilities of states which are parties to the Convention vis-a-vis refugees on their territories, and sets out the obligations of the refugees. |
|
OAU Convention |
OAU Convention governing the specific aspects of refugee problems in Africa (Organization of African Unity, Addis Ababa, 1969). |
A regional complement to the 1951 Convention and 1967 Protocol. It contains an expanded refugee definition as well as provisions on safe and peaceful asylum, burden-sharing and voluntary repatriation. |
|
i. Cartagena Declaration ii. St. Jose Convention |
i. Cartagena Declaration on Refugees, 1984. |
Non binding declarations which have greatly influenced regional policies on refugees and asylum seekers, and contain an expanded refugee definition. |
|
Excom Conclusions |
Various conclusions on international protection adopted by UNHCR's Executive Committee. |
Contain important guidance to States and UNHCR. |
|
Related Instruments | ||
|
The UN Charter |
The Charter of the United Nations, 1945. |
Places certain general obligations on member states of the United Nations of particular relevance to UNHCR's international protection function. |
|
Universal Declaration of Human Rights |
Universal Declaration of Human Rights, 1948. |
Universal instrument setting out the basic human rights of all persons, including refugees. |
|
Convention Relating to the Status of Stateless Persons |
Convention Relating to the Status of Stateless Persons, 1954. |
Grants a recognized status to stateless persons who are lawful and habitual residents. Similar to the 1951 Convention Relating to the Status of Refugees. |
|
Convention on the Reduction of Statelessness |
Convention on the Reduction of Statelessness, 1961. |
Contains measures to ensure that persons do not become stateless. |
|
Covenant on Civil and Political Rights |
International Covenant on Civil and Political Rights 1966. |
Obliges states which are parties to the Covenant to respect and ensure the rights set out in the Covenant to all individuals (within the state's territory and jurisdiction), without distinction such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. |
|
Convention Against Torture |
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984. |
Includes the principle of non-refoulement. |
|
Convention Relating to the Rights of the Child |
Convention Relating to the Rights of the Child, 1989. |
A comprehensive code of rights for all children (defined as 18 years or under). |
|
Geneva Conventions and additional protocols |
Geneva Convention Relating to the Protection of Civilian Persons in Time of War (Geneva, 1949). |
Covers the treatment of civilians in time of war, including refugees. |
|
Declaration on Territorial Asylum |
United Nations Declaration on Territorial Asylum, 1967. |
Includes the principle of non-refoulement. |
|
Final Act of the United Nations Conference on the Status of Stateless Persons, 1954 |
United Nations Conference on the Status of Stateless Persons. |
Includes the principle of non-refoulement. |
 |
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