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FORUM: The UN needs a refugee court

May 11, 2005

The opinions expressed here may not represent the views of RSDWatch or Asylum Access, and are distributed here in the interests of public discussion.

By Michael Kagan

The UN has been beset by scandals in recent years, and its refugee agency (UNHCR) has played an unfortunate part.  There have been sex-for-food and money-for-resettlement affairs in Africa. And of course Ruud Lubbers was forced to resign as High Commissioner amid sexual harassment allegations.

These high profile scandals involve sensational cases of abuse, but that is not the refugee agency’s biggest accountability challenge. Outright misconduct is alarming, but it is not as harmful in the long run as a UN agency simply ignoring its own official positions in its actual practice.

UNHCR’s refugee status determination (RSD) procedures are a case in point. Through RSD, UNHCR decides whether someone who says they would be persecuted meets the international refugee definition and can get international protection. Sometimes this means protection from deportation, sometimes from detention, and sometimes it allows a person to reunite with family or find a new permanent home through resettlement.

The stakes are high and tens of thousands of people are affected every year. Even if UNHCR makes the right decision 99 percent of the time, hundreds of refugees would be put in danger by the remaining mistakes.

Rejecting applications and refusing to say why; refusing to let asylum-seekers see their own files even though their lives may be at stake; failing to establish an independent appeal system – these are examples of regular UNHCR practice.  Each procedural gap increases the risk of errantly refusing to protect a person in danger.

Like any government agency, UNHCR is torn between upholding rights and the need for bureaucratic and political expediency. When officials compromise refugee and asylum-seeker rights, they may believe they are doing so out of necessity. But can such high stakes choices be left entirely to official discretion?

The era when humanitarian agencies could just say “trust us” should be over. Noble mandates on their own do not ensure noble deeds. Many states are founded on high ideals – but governments only stay true to principle if official decisions are subject to scrutiny.

Just as when a government agency wields power over people, there should be a mechanism of administrative checks and balances at the UN.  But it is hard to challenge UNHCR decisions in normal courts because the UN has immunity from local jurisdiction.

So why not build a court inside UNHCR?

The model would be administrative tribunals that exist inside ministries of many governments. It might have regional branches, and an high appeals board in Geneva staffed by eminent authorities on refugee law. It could hear individual appeals challenging the substance or the procedure of UNHCR’s RSD decisions.

The UN Refugee Tribunal would be under UNHCR’s bureaucratic roof, but its members would be insulated from pressure from UNHCR officials. They should come mostly from outside the organization, appointed for set terms, and should not be subject to dismissal save for proven serious misconduct.

Tribunal decisions would be binding on UNHCR, and would be published (minus confidential details) in order to set clear precedents for the future.

There would be two main advantages.

First, the risk of real refugees being mistakenly refused protection in an overburdened and closed system would be reduced.

Second, UNHCR would bolster its moral authority. A UN refugee tribunal could develop precedents drawn from the actual on-the-ground protection dilemmas that UNHCR faces every day in its work around the world.  Its existence would show UNHCR to be an agency that practices what it preaches.

In the long run, the tribunal need not be limited to RSD. But RSD is a good place to start. Individual refugee applications are by nature adjudications, with written applications, dossiers, and case assessments. The tribunal would simply enhance a system that already exists.

The strongest governments in the world are those that have the strongest traditions of transparency and accountability. There will be those who say that government-style accountability isn’t possible at the UN. Such an excuse will equally please bureaucrats who don’t want their decisions questioned and enemies of international law who want a weak UN that steadily loses credibility.

Refugees can’t afford such weakness. A UN refugee agency willing to subject its own decisions to scrutiny will be an agency that refugees can count on. UNHCR has done a great deal to promote refugee law, but rule of law now has to start at home.

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