By Kelly O’Connor -
The United Nations High Commissioner for Refugees (UNHCR) recommends that the refugee status of all Rwandans who fled the country between 1959 and 1998 should cease in June 2013. Rwandan officials argue that the country is safe. Fahamu, Human Rights Watch, and refugees themselves respond that ending refugee status could lead to refoulement: forced return to Rwanda ‘where [refugees’ lives] or freedom would be threatened on account of [their] race, religion, nationality, membership of a particular social group or political opinion’. This dispute reflects a larger debate in international law: when, and how, should refugee status end?
Refugee status ends once an individual re-establishes a protective state-citizen bond through one of the three durable solutions of repatriation, third country resettlement, or local integration. UNHCR’s strategy for Rwandan refugees includes options for local integration and protection for those still at risk of persecution, but repatriation is favoured.
Repatriation can be voluntary or mandated. Voluntary repatriation is poorly defined, but article 1C(4) of the 1951 Convention Relating to the Status of Refugees allows refugees to re-establish themselves in their country of origin, even if they are still at risk of persecution. Articles 1C(5) and 1C(6) of the 1951 Convention allow host states to declare the cessation of refugees’ status and mandate their deportation. According to UNHCR, these articles can only be invoked if there have been fundamental, effective, and durable changes in a refugee’s country of origin that result in the re-establishment of protection.
Articles 1C(5) and (6) can be contentious for three reasons. First, exemptions due to the severity of past persecution and family ties to the host country are often not respected. Second, while states are responsible for judging if effective protection exists in refugees’ home countries, refugees may disagree with state conclusions. Finally, articles 1C(5), (6) and (4) can become conflated if host countries make life so unbearable for refugees they are forced to repatriate, resulting in possible refoulement.
Uganda’s treatment of Rwandan refugees illustrates these points. Although Uganda has not formally declared refugee status cessation, it has rejected new Rwandan refugee applicants and coerced refugees who are afraid to repatriate by cutting food rations and re-allocating their land. Amnesty International argues that conditions in Rwanda are still unsafe, and 300 out of 1, 945 refugees Uganda claimed to voluntarily repatriate between 2003-2004 had fled back to Uganda within a year. There are also concerns that planned exemption procedures for when Uganda does formally declare refugee status cessation are insufficient.
The Rwandan case demonstrates that UNHCR and partner countries must better balance state sovereignty and refugee agency. Without mechanisms to address state interests, countries will not agree to protect refugees. Without refugee participation in significant decisions, however, countries may violate refugee rights. In the context of cessation, three points where refugee views can be better integrated are during the formulation of UNHCR recommendations, state considerations of cessation, and exemption hearings. Michael Kagan suggests one approach to achieve this is via a UNHCR-established independent legal panel that reviews cessation and invites refugees and NGOs to rebut its conclusions. Other models could include refugee surveys. While these options require more investigation, UNHCR and its partners should consider such refugee perspectives an essential element of protection and cessation.
Kelly O’Connor is currently reading for a Master of Public Policy at the Blavatnik School of Government, Oxford. Last year she read for the MSc in Refugee and Forced Migration Studies.