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UNHCR’s Rwanda cessation: Flawed, but perhaps not entirely wrong

January 22, 2013

map-rwandaA group of activists led by the Fahamu Refugee Rights Program has been trying for months to rally internet opposition to UNHCR’s 2011 decision to support the cessation of refugee protection for around 100,000 Rwandan refugees who fled before, during and immediately after the 1994 genocide.

Technically, UNHCR is simply making a recommendation to governments – mostly the states in East and Central Africa where the majority of the Rwandan refugees have lived. The recommendation applies only to those who fled Rwanda through the end of 1998, and calls for exemptions for refugees still at risk of persecution or who have compelling reasons to not want to return because of previous persecution in Rwanda.

What this means in practice is that governments that have been anxious for years to expel the Rwandans will now be able to do so with UNHCR’s public blessing that, at least in most cases, forced deportations do not violate international law. Without cessation, only voluntary repatriation would have been permissible.

Refugee advocates often do not like cessation, for good reason. In this case, it means that a person who has lived in exile for 15 years or more and who has declined to participate in a voluntary repatriation program will now be forced to go back anyway.

The existence of this clause in the 1951 Refugee Convention and in the African Refugee Convention means that refugees are always in a state of legal limbo, unless and until a government chooses under its domestic law to grant them a more permanent status. But however cruel it may be in practice, it is part of international law.

Exceptions swallowed by the rule

Cessation requires fundamental, durable and effective changes in the situation that led people to become refugees. The basic criticism of the Rwandan cessation is that Paul Kagame’s government is autocratic and continues to persecute  its political opposition. A video posted online on January 13 proclaims, “Rwandans still have reasons to flee.” For example, Rebecca Wilson wrote on OpenDemocracy.org:

There is little evidence to suggest that Rwanda is now a truly democratic country. On the contrary, President Kagame’s regime continues to oppress political opposition and to threaten the people of Rwanda both at home and abroad.

The Center for Strategic and International Studies summarized Rwandan politics this way:

President Paul Kagame, who has been credited with bringing an end to the genocide and restoring order, is an erudite and persuasive man, who has cultivated strong global allies, including within successive U.S. administrations. But the country’s apparent stability masks deep-rooted tensions, unresolved resentments, and an authoritarian government that is unwilling to countenance criticism or open political debate.

The problem is that it is not clear as a matter of law that a country must become democratic in order to meet the cessation criteria. The rampant conflict of the 1990s has ended, and most of the cases of persecution cited by critics are of high profile activists and defectors. UNHCR may be correct that the great majority of refugees from the 1990s can return without an objective risk of persecution.

Yet, the UNHCR recommendation is only narrowly justifiable with the  exceptions for individuals still at risk, and for anyone who fled from 1999 onwards. But implementing these exceptions would require a process of refugee status determination guaranteeing due process to each individual applicant. What if the Democratic Republic of the Congo, Uganda, Malawi, or South Africa fails set up such a system? There have long been indications that Uganda is failing to do so, including  “gunpoint deportations” of Rwandans in 2011.

The legal answer should be that if a state fails to provide a fair system for applying for exemptions, it should not be able to apply cessation or deport anyone by force. UNHCR should have said that a government first must set up a fair system to adjudicate cases, and only then gain UNHCR endorsement for cessation.

Instead, UNHCR recommended an arbitrary deadline: “status definitely to cease, latest by 30 June 2013.” That was actually a delay from a previous target, but is not conditioned on the hosting governments guaranteeing due process.

UNHCR had fair warning about what the rigid deadline might mean. In February 2011, the Rwandan Embassy in South Africa issued a press statement with a chilling first line: “No Rwandan living abroad will qualify for refugee status” after the UNHCR deadline. Somewhere between Geneva and Pretoria, the essential exceptions and limitations disappeared.

In sum, UNHCR issued a policy that is technically defensible as written because it has the proper exceptions on paper. But for many of the refugees, the exceptions may be little more than ink on paper.

Politics gets in the way

Although UNHCR’s cessation recommendation may be narrowly justifiable as a matter of law, it is not an open and shut case by any stretch. And there’s the rub, because UNHCR made this decision under a certain amount of pressure.

It is the job of the Office of the High Commissioner to work with governments that do not always have protection of human rights at the top of their agenda. In East and Central Africa, many of these governments had been pushing for Rwandan cessation for quite some time. Loudest among all of these was the Rwandan government itself.

UNHCR has to listen to these governments in order to maintain its ability to work on the ground in the region. But we do not know if these political pressures influenced the cessation decision, and it’s hardly unreasonable to worry that they did.

UNHCR could handle such decisions differently. Instead of simply issuing a recommendation, UNHCR could instead convene a panel of independent refugee law experts and submit the reasons why it believes cessation is warranted. The panel could then invite refugees and NGOs to submit arguments against, and then it could publish a decision.

Even if UNHCR was legally correct about cessation, a high stakes decision about the law should not be subject to such cynical doubt. But that is the situation for thousands of Rwandans who are now likely to have no choice but to go back.

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2 Comments
  1. Refugee Archives at UEL permalink
    January 23, 2013 12:03 am

    Reblogged this on Refugee Archives Blog.

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