Refugees Magazine Issue 99 (Regional solutions) - How long is temporary?

Refugees (99, I - 1995)

Facing the increasingly restrictive eligibility screening of many Western governments, UNHCR has called for temporary protection for refugees from former Yugoslavia.

(Editor's note: This issue of Refugees focuses on the growing international trend toward comprehensive or regional solutions to refugee problems. This topic is also examined in UNHCR's biennial report, The State of the World's Refugees: The Search for Solutions, published by Oxford University Press in November 1995.)

By Ruth Marshall

A single mother of four small children flees a Muslim town in Bosnia after neighbouring villages are burned to the ground by murderers bent on ethnic cleansing. An elderly Croatian couple leaves after a group of Krajina Serbs cuts off access to their fields nearby. Neither family has been targeted for individual attack. Both make their way abroad. They need assistance. They need protection. But are they refugees?

The refugee's defining characteristic is, of course, "a well-founded fear of persecution." But for many people fleeing former Yugoslavia, that resounding phrase is not enough. In many Western countries, increasingly restrictive interpretations of the 1951 Convention Relating to the Status of Refugees have narrowed the bedrock definition. Most African and Latin American countries have ratified more generous legal instruments that explicitly give protection and assistance to people fleeing war, civil strife or violations of human rights. But in Western Europe and North America some countries restrict refugee status to those who fear being singled out for individual persecution by their government.

People fleeing the horrific violence and abuse prevalent in the shattered states of former Yugoslavia ought, by any human standards, to have access to asylum. But many of them fear various kinds of persecution at the hands of one or more parties to that many-sided conflict - not at the hands of the legal authorities. Others may be fleeing the war's indiscriminate destruction of homes, harvests, and means for recourse. The restrictive interpretations of many Western governments mean that hundreds of thousands of them have no claim to legal status as refugees.

"This whittling away at the Convention is absolutely deadly," comments Karin Landgren, UNHCR's General Legal Advice Coordinator. "[Governments ask] were they really compelled to leave the country? Was there an internal flight option? Was the agent of persecution the legal government or some other authority? And as a result you have a Muslim woman who has been raped, who has fled to a Western European country, but who is issued a deportation order because she is allegedly not a refugee."

Facing the prospect of asylum being denied to people clearly in need, UNHCR called in 1992 for countries to institute a swifter, more flexible approach. The concept of temporary protection bypassed the need for individual scrutiny under cumbersome and restrictive eligibility procedures. It gave protection to broad categories of persons in urgent need. Conceived as one element in a comprehensive approach that would include efforts to solve the conflict and enable safe return, temporary protection encompasses admission of victims of war and violence; non-refoulement, or non-return to danger; humanitarian treatment; and repatriation when conditions in the countries of origin significantly improve. In other words, temporary protection was originally seen as an emergency measure of short duration, to provide mass inflows of people with a kind of prima facie recognition and a more limited range of benefits.

From Belgium to Bulgaria, the reality of these arrangements varied hugely. Some beneficiaries of temporary protection had almost all the rights given refugees. Others were not permitted to work. In some countries, the temporarily protected had no access to education, or social benefits, or family reunion. They were parked in hostels or camps, knowing their status was only provisional.

"The crucial word is temporary," explains Pascale Moreau, a desk officer for Central Europe. "We didn't, in any case, have a choice. But even many of the refugees wanted a temporary solution: they were committed to going home as soon as possible."

That was 1992. By now, in 1995, many refugees from former Yugoslavia have spent three years in exile. Though some states have moved towards regularizing and improving the situation of beneficiaries of temporary protection, others have not. With some refugee children in Central Europe still not attending school or benefiting from proper housing, UNHCR is urging governments to initiate improvements.

"Now is the time to move on to a second stage," says Ulrich von Blumenthal, head of the Western and Northern Europe desk. "We have to give them a more secure status, with rights similar to those of refugees. Human dignity demands that after three years, they get the right to work and to send their children to school."

Many NGOs feel UNHCR should push harder for durable solutions for the temporarily protected, whether it be local integration or third-country resettlement. They would also like to see UNHCR advocate new international legal agreements to bridge the Convention's gaps.

"For how long should people go without the prospect of a solution to their need for new, permanent home?" asks Arthur Helton, Director of Migration Programs at the Open Society Institute, a U.S. research and advocacy group on refugee issues. "I think six months might be appropriate. But for some of the former Yugoslavs, who have sought refuge for several years, temporary protection is becoming an undue deprivation.

"When the time period is relatively short and the motivations of governments are benign, clearly temporary protection can be an extension of protection," Helton continues. "But it is tempting for governments to provide lesser forms of protection solutions to foreigners in the current political climate. If temporary protection is used to undercut the available protection regime, or where the period of temporary arrangements becomes extended, then those individuals are suffering a contravention to their human rights as refugees. UNHCR should provide leadership and begin to advocate new instruments, starting at regional levels."

Many in UNHCR fear there is little likelihood that the 1951 Convention can be significantly expanded in the xenophobic climate of the 1990s. "Anything negotiated now will be worse," comments Landgren. "There is no reason why the Convention cannot be used for short-term protection. The main issue that needs to be addressed is this: do refugees from indiscriminate war inherently require less, or different, protection than victims of persecution do? Is there a group of people that requires a different type of protection than that provided under the Convention? Or is the Convention large enough for everyone? Maybe we need to change the way governments choose to interpret it, not change the Convention itself."

"We should be encouraging states to a more liberal application of refugee status - and, indeed, of cessation, as well," echoes Raymond Hall, Chief of Secretariat at UNHCR. "Temporary protection can be an acceptable and even the most appropriate short-term arrangement in response to flight from conflict. But its legal content is not well defined. If states granting asylum under the Convention feel refugees will never go home irrespective of change for the better in their country of origin, there is a danger that they will resort to temporary, ad hoc arrangements that undermine the quality of asylum and jeopardize fundamental human rights. Thus the need to use the Convention, including its cessation clauses, more flexibly. But if you offer to renegotiate the Convention, then you risk throwing out the baby with the bathwater - you could lose the Convention and come up with something much weaker."

Meanwhile, for many refugees, the strain of waiting is beginning to tell. "People have lived in the hope that something would happen," explains Moreau. "They thought the war would end and they could go home quickly - and now they're becoming discouraged. They've been too long in limbo."

In the Slovak Republic, 2,000 ex-Yugoslavs benefit from temporary protection, but have no right to work. Many simply sit around all day drinking, says Vincent Cochetel, UNHCR's liaison officer. Their depression is chronic. Explains Slovak psychologist Lydia Zakova, "You don't need to have experienced war to go crazy after three years doing nothing."

The exile of the former Yugoslavs no longer seems so temporary. With their country in splinters and their lives awry, they badly need more generous support.

Source: Refugees Magazine Issue 99 (1995)