UNHCR seeks common sense European approach towards those fleeing violence

Setting the Agenda, 19 January 2011

© UNHCR/M.Sheikh Nor
Many people have fled the indiscriminate effect of generalized violence in Somalia. Here a group of Somalis flee from Mogadishu.

BRUSSELS, Belgium, January 19 (UNHCR) A top UNHCR official has questioned the approach that some European countries take towards people fleeing the indiscriminate effect of generalized violence in countries like Afghanistan, Iraq and Somalia, saying it "often defies common sense."

UNHCR Director of International Protection Volker Türk, at a forum organized in Brussels on Tuesday to launch UNHCR's Commemorations Year in Europe, said that some asylum states maintain that people fleeing conflict or large-scale violence cannot qualify as refugees. Türk said he believed this went against the spirit of the 1951 UN Refugee Convention, adding that "protecting refugees is what the Convention is made for."

Türk, whose speech addressed protection gaps in Europe, noted that there had been debate in the European Union (EU) in the 1980s and 1990s about the "non-state agent of persecution" issue, with some countries arguing that persecution coming from non-state agents was not sufficient to merit granting refugee status. That debate was resolved by the adoption of the so-called EU Qualification Directive, which favoured a broader interpretation of persecution.

Article 15c of the document extends subsidiary protection to civilians who would face a risk of serious harm in a situation of indiscriminate violence if sent home. But this provision is couched in what Türk called the "convoluted language of political compromise" and, as a result, it remains little utilized.

Türk pointed out that despite the EU Qualification Directive some European countries still send people back to areas marked by generalized violence such as Afghanistan, where the fluid and volatile nature of conflict and the worsening situation had led to an increased number of civilian casualties, more frequent security incidents and significant population displacement.

While Europe was getting lost in sophisticated discussions about legal concepts, Turk said, Asian and African countries were taking in victims of generalized violence in large numbers. He cited the example of Syria taking in Iraqis, Pakistan accepting Afghans and Kenya providing a safe haven for Somalis. Legal debates should not eclipse the "protection imperative," he said.

Türk revealed that UNHCR researchers examining adherence to the Directive had so far found "an exceedingly narrow interpretation, one which would defy common sense in many cases." He added that Article 15c was used in such a small number of cases that it risked being "an empty shell in protection terms."

This seemed to be due to narrow approaches adopted for the interpretation of words such as "serious harm," "civilian" and "indiscriminate" and the degree of individual targeting, among others. In many cases, although people are not recognized as refugees nor granted subsidiary protection, they are protected from return by a variety of disparate national statuses, but without a consistent set of rights.

Last year, around 20 per cent of asylum-seekers in Europe came from Afghanistan, Iraq and Somalia. Yet responses to their protection needs varied from one European country to another and many EU member states do not agree with UNHCR's contention that the 1951 Convention can and should be interpreted to protect people within large groups whose fear of persecution is generalized.

Knut Doermann, head of the legal division at the International Committee of the Red Cross, told the gathering that even in the face of new forms of conflict, the need for protecting civilian victims remained unchanged.

Sir Stephen Sedley, an appeals court judge for England and Wales, called the Qualification Directive a "bad piece of drafting," while Katelijne Declerck of the International Association of Refugee Law Judges said she hoped that a more consistent interpretation of Article 15c would help to ensure a more consistent response to civilians fleeing situations of violence.

Judith Kumin, director of UNHCR's Europe Bureau and moderator of the debate, noted that the refugee agency has a formal consultative role with respect to the Common European Asylum System and that it also works closely with EU states and institutions in support of the effort to build a system which is in accordance with the 1951 Convention and fills protection gaps.

Tuesday's forum was organized by UNHCR to discuss the extent to which people fleeing the indiscriminate effects of generalized violence find protection in Europe 60 years after adoption of the Refugee Convention. Those attending the forum included members of the judiciary, government and EU officials, academics and NGO representatives.