Ten refugee protection concerns in the aftermath of Sept. 11

The horrifying Sept. 11 terror attacks in the United States have changed the world, profoundly affecting millions of people around the globe. The repercussions will be felt for years.

As the agency mandated to protect and assist millions of the world's most vulnerable people, the UN High Commissioner for Refugees is particularly concerned about the impact of Sept. 11 on those most in need of international protection and assistance.

UNHCR is concerned, for example, about the increasing public perception of refugees and asylum seekers as "criminals" and over attempts to create unwarranted links between refugees and terrorism. Even before the tragic events of Sept. 11, asylum seekers faced increasingly difficult obstacles in a number of countries, including gaining access to asylum procedures or overcoming presumptions about the validity of their claims because of their ethnicity or mode of arrival.

UNHCR is also aware that several governments are now looking at additional security safeguards to prevent terrorists from gaining admission to their territory through asylum channels. This is understandable and UNHCR endorses all efforts - multilateral or national - aimed at rooting out and effectively combating terrorism. In fact, UNHCR will be looking at what might be termed the "better practices" of the many governments that are undertaking these reviews.

The question being posed - what additional, security-based procedural safeguards can be taken by governments - is an inherently reasonable one. But we need to ensure that it is answered correctly, and that any new safeguards strike a proper balance with the refugee protection principles that may be at stake. UNHCR stands ready to work with governments on these issues.

As more and more governments undertake such reviews, UNHCR's main concern is twofold:

• Firstly, that bona-fide asylum seekers may be victimized as a result of public prejudice and unduly restrictive legislation or administrative measures.
• And secondly, that carefully-built refugee protection standards may be eroded.

Any discussion of security safeguards should start from the assumption that refugees are themselves escaping persecution and violence, including terrorism, and are not themselves the perpetrators of such acts.

It is also crucial that states understand that the 1951 Refugee Convention does not provide a safe haven to terrorists, nor does it protect them from criminal prosecution. On the contrary, the Convention is carefully framed to exclude persons who committed particularly serious crimes.

So as governments around the world look at various additional procedural safeguards in their efforts to combat terrorism in the wake of Sept. 11, UNHCR has formulated 10 specific concerns over possible actions that may directly affect asylum-seekers and refugees.

1. Racism and Xenophobia: UNHCR is seriously concerned over the all-too-common tendency to link asylum seekers and refugees to crime and terrorism. Making such unwarranted links incites racism and xenophobia and is provoking serious protection worries. Equating asylum with the provision of a safe haven for terrorists is not only legally wrong and unsupported by facts, but it vilifies refugees in the public mind and exposes persons of particular races or religions to discrimination and hate-based harassment.

2. Admission and Access to Refugee Status Determination: All persons have the right to seek asylum and to undergo individual refugee status determination. Rejection at the border can result in refoulement - sending people back into danger. This is contrary to international refugee legal obligations. UNHCR's concern is that legislation may be enacted which effectively denies access to refugee status determination procedures - or even leads to rejection at the border - of certain groups or individuals because their religion, ethnicity, national origin or political affiliation are somehow assumed to link them to terrorism. The 1951 Refugee Convention already contains a so-called "exclusion clause" which excludes persons who have committed particularly serious crimes. In addition, it lifts the prohibition on refoulement for those who are a danger to national security. If properly applied, the 1951 Convention will exclude those responsible for terrorist acts, and may even assist in their identification and eventual prosecution. In short, the 1951 Convention does not extend protection to the non-deserving.

3. Exclusion: UNHCR is concerned that governments may automatically or improperly apply exclusion clauses or other criteria to individual asylum seekers based on the assumption that they may be terrorists because of their religion, ethnicity, nationality or political affiliation. Genuine refugees are themselves the victims of terrorism and persecution, not its perpetrators. When appropriate, UNHCR encourages governments to rigorously use exclusion clauses contained in current international refugee instruments like the 1951 Convention. But the application of any exclusion clause must be individually assessed, based on available evidence and conform to basic standards of fairness and justice. The assessment has to be part of the overall status determination process.

4. Treatment of Asylum Seekers: UNHCR is concerned that governments might be inclined to resort to mandatory detention of asylum seekers, or to establish procedures that do not comply with the standards of due process. UNHCR's longstanding position is that detention of asylum seekers should be the exception, not the rule. Detention is only acceptable when circumstances surrounding the individual case justify it - including when there are solid reasons for suspecting links with terrorism. But detention should always comply with due process. Similarly, refugee status determination procedures put in place to deal with suspected terrorists must comply with minimum standards of due process, involve officials who are qualified and knowledgeable, and contain the possibility of review.

5. Withdrawal of Refugee Status: UNHCR is concerned that states may be inclined to withdraw the refugee status of individuals based on the assumption that they may be terrorists because of their religion, ethnicity, nationality or political affiliation. The rule is that the withdrawal of refugee status can only follow evidence of fraud or misrepresentation of facts that were central to the decision. A refugee's ethnicity or origin cannot in themselves be grounds for either denying or withdrawing status. The facts are what count.

6. Deportation: UNHCR is concerned that governments may be inclined to deport groups or individuals on the assumption that they may be terrorists because of their religion, ethnicity, nationality or political affiliation. While the 1951 Refugee Convention allows for the expulsion of individual refugees on grounds of national security or public order, it should only be done in pursuance of a decision reached under due process of law. This should include an opportunity for the refugee to counter the allegations.

7. Extradition: UNHCR is concerned that states may be inclined to expeditiously grant the extradition of groups or individuals on the assumption that they may be terrorists based on their religion, ethnicity, nationality or political affiliation. It is UNHCR's position that extradition should only be granted upon conclusion of the corresponding legal proceedings, and where it has been shown that the extradition is not being requested as a means to return a person to a country for purposes which in fact amount to persecution, not prosecution.

8. Resettlement: Resettlement to third countries is one of three main durable solutions for refugees (the others are repatriation to the country of origin and integration in the country of first-asylum). UNHCR is concerned that states may now be inclined not to maintain their resettlement programmes at promised levels, particularly for certain ethnic groups or nationalities. As far as UNHCR is concerned, resettlement remains imperative. This is especially true for some vulnerable refugees from places like Afghanistan, where women in particular may be at risk. Continued support for resettlement is vital. UNHCR is working to diversify the number of resettlement countries.

9. UN Security Council Resolution 1373: Security Council Resolution 1373 was adopted on September 28, 2001. Among other things, it calls on states to work together urgently to prevent and suppress terrorist acts and to complement that international cooperation by taking additional domestic measures. Resolution 1373, if properly interpreted and applied, is in line with principles of international refugee law. But care must be taken in its implementation to ensure that bona fide asylum seekers and refugees are not denied their basic rights under cover of the need to take anti-terrorism measures.

10. Draft Comprehensive Convention Against Terrorism: UNHCR would welcome the development and swift adoption of a comprehensive convention against terrorism. But it should not give legal force to unwarranted linkages between asylum seekers/refugees and terrorists. Nor should it be construed as implying that the 1951 Refugee Convention is inadequate for the exclusion of terrorists from refugee status, or that it somehow offers safe haven to terrorists.