FECL 42 (March 1996):

IS THE UNHCR GOING ASTRAY?

The UNHCR's action is no longer governed by international law, but by the whims of states and public opinion, Jean-Pierre Hocké, a former UN High Commissioner for Refugees, claims. From the protection of refugees as defined in the Geneva Convention in 1951, when thousands of people were leaving communist Europe, the UNHCR is drifting towards a hazy "defence of human rights".

According to the UNHCR (Office of the United Nations High Commissioner for Refugees), the "New World Order" (after 1989) has both compelled and allowed the international community to address the refugee problem in an entirely new way. Indeed, the UNHCR wants to move from a "traditional", i.e. reactive, approach focusing on exile and the specificity of the refugee status to a new approach focusing on the countries of origin, and this in a global perspective.

 

A break-up in conventional categories of victims?

Moreover, according to the UNHCR, the events in the former Yugoslavia have clearly illustrated the break-up in conventional categories of victims. As a consequence, the UNHCR, although an agency for the world's refugees, has actually more and more been dealing with people displaced, or even besieged, inside their own country.

Somewhat surprisingly, the UNHCR concludes that the above evolution is leading an increasing number of analysts and operational agencies to abandon the definition of "refugee" under the 1951 Geneva Convention and instead, to talk in a more general manner of "displaced people", "uprooted populations" and "involuntary migrants".1)

With a view to the globalisation of the UNHCR's action and the efforts it wants to make in the domain of prevention and long-term solutions, the acting High Commissioner, Mrs Ogata, has pointed out that the work of the UNHCR lies within the wider framework of UN action for conducting political negotiations, carrying out peace-keeping operations, and economic and social development for the defence of human rights and the protection of the environment. What is Mrs Ogata trying to say by this?2)

In the early 1950s, the Convention was drawn up in order to grant protection to refugees from Communism. At that time, nobody would have believed that in 1985 a certain Mr Gorbachov was to launch the process of Perestroika that gradually brought about the implosion of the Soviet Union. Consequently, in 1951 the idea of permanent asylum was considered the only acceptable solution.

In the late 1970s then, with the massive exodus of the "boat people", the USA, haunted by their Vietnam remorse, were not in a position to demand the cooperation of the neighbouring Asian and South-East Asian countries beyond their ensuring the transit of Vietnamese refugees towards their final reception in either the USA or some other Western allied country. This was the background for the scheme of reinstallation in a third country.

 

The ambiguity of repatriation

However, ten years later, when the exodus took the shape of an endless night-mare, both the transit and the receiving countries carried through the return of refugees to Vietnam. In a similar way the return of refugees to their villages suggested itself as the most natural solution in Central America, when the Esquipula peace treaty put an end to the conflicts in Salvador and Nicaragua. In this situation, the UNHCR's task was to enable the refugees not only to reintegrate within their communities of origin but also to benefit fully from the development plan launched by the UN. These two schemes of action, however, also tend to show the ambiguity of repatriation in the country of origin as a possible solution: while this solution was acceptable and likely in the case of Central America, the dramatic incidents in Hong Kong were, at the very least, an indication of its premature character in the Asian context.

Thus, just as in the past, the nature of refugee generating conflicts and crises will continue to impose the solutions enabling the victims to become citizens in their full rights again. This is why I find it somewhat difficult to understand the difference now made by the UNHCR between a reactive attitude termed "traditional" and a proactive attitude.

 

From the "right to stay at home" to the "obligation to stay at home"

I wish to stress the ambiguity ensuing from the UNHCR's emphasis on the country of origin. This notion clearly introduces a new concept through the "right to stay at home".

Let us recall that, in the course of the last ten years governments - and particularly Western governments - have manipulated the definition of the term "refugee" under the 1951 Geneva Convention and decreed measures, first of dissuasion, and later of coercion, to arbitrarily limit their obligations under the Convention. The underlying logic of this policy has led the same countries to refuse refugee status to, for example, refugees of war. They decreed that in a conflict all civilians were exposed to the same risks and therefore could not use these risks as an argument making them eligible for refugee status.

The next step quite naturally leads to promoting the concept of the "right to stay at home". And all of a sudden, the UNHCR is championing the "obligation to stay at home".

It is astonishing that the UNHCR, in attempting to stick to the new realities of the post-Cold War era, moves away from the specificity of refugees for the sake of a global approach and of merging into the equally global actions of the UN.

 

Defense of the right of asylum or blurred struggle for human rights?

Not only does the UNHCR accept that the refugee is no longer a specific victim (admittedly less and less popular throughout the world), but it is surreptitiously slipping from the defence of the standards set by the 1951 Convention towards a more blurred and thinned-down struggle for human rights. By doing so, the UNHCR is renouncing its own responsibility as the guardian of the 1951 Convention and engaging, together with others, in a fight that is moral rather than legal. It is, indeed, so much more comfortable no longer to find oneself on the front line, and - in the event of failure - to hide behind a vague collective responsibility of the international community!

Is it really a coincidence, when these new categories of victims emphasised by the UNHCR - uprooted populations, involuntary migrants - do not at all enjoy the same specific legal protection as refugees, interned civilians, populations living under occupation, etc.?

At the very moment when the Secretary General of the United Nations is loudly deploring the powerlessness to which he is condemned by the Security Council, the UNHCR declares it has become the UN system's global agency in charge of acting in all sectors of activity displayed by the UN.

In trying to behave as a maid-of-all-work, the UNHCR is losing its credibility and its soul.

Let me make it clear that I have no intention of pressing the UNHCR into a strait jacket, to forbid it any evolution. The experience gathered in the course of the last 30 years clearly underlines the vital need for movement, imagination and flexibility, all of which humanitarian organisations must show in order to adapt to constantly changing situations. But the entrusted humanitarian organisations can canvass new trails only on condition that they keep their orientation. At the risk of going astray, they may at no time take their eyes off the guiding star - international humanitarian law. It represents this "common good" that symbolises the few progresses made by mankind for nearly two centuries in containing its predatory instinct and in trying not to lapse into the most abject barbary whenever it resorts to violence.

In defending this "common good" the UNHCR as well as the ICRC (International Committee of the Red Cross) must always navigate with utmost caution. From time to time they must endeavour to "reconcile" the respect of the commitments made by the states with the arguments the latter put forward in order to escape their obligations under the relevant conventions.

 

Humanitarian action as a political bargaining chip

The error of approach made by the UNHCR lies in its belief that it can develop a partnership with the governments that is based on a durable convergence between humanitarian objectives and the political interests, no matter how legitimate, of the latter.

The states are all too familiar with the practice of double standards for their commitment to "interfere" in a non-partial and systematic way to be credible: one intervenes in Iraqi Kurdistan but lets the genocide in Rwanda happen; the atrocities committed last summer in Srebrenica (8000-10,000 people massacred or disappeared) are covered with a veil. These very days [December 1995], the UNHCR is witnessing a new rupture of the convergence described above, as the European Union has just restricted the right of asylum by excluding victims of extremist [non-state sponsored] groups [see FECL No.39: "Joint Position on a common definition of the term 'refugee'"].

Recent examples show that whenever the UNHCR merges into a UN action comprising political negotiation, a peace-keeping operation (blue helmets) and humanitarian action, the latter is always subordinated to the two first. By force of circumstances the humanitarian objectives become bargaining chips in the negotiation process. They are used by the international mediators for the purpose of achieving progress in negotiations. Most often, this is detrimental to the fate and the rights of the victims.

 

Western powers have made off with humanitarian commitments

The trend I am pointing at is all the more disquieting in view of the fact that since 1989 the Western powers, liberated from Soviet pressure, have made off with humanitarian commitments, while at the same time claiming their commitment to solve conflicts. The truth, however, is that, while abounding in humanitarian goodwill and showing pity for the victims, they let the political problems deteriorate. Think of Somalia, Bosnia and Rwanda.

In the era of the Cold War, it sufficed to complain to the respective "protective big brother" to usually obtain a better behaviour of the "little brother" concerned. Thus, a visit to Fidel Castro enabled me to get the MPLA in Angola to lift their ban on aid convoys in support of the civilian populations in areas controlled by UNITA. In the same way, a visit in Washington resulted in the ICRC being granted access again to the prisoners detained by the Salvadorian military.

In short, the "humanitarians" were good at "making use" of the politicians. Today, the opposite is true. It is therefore absolutely necessary that the UNHCR and the ICRC regain initiative.

The point is of course not to create conflict between the governments and the humanitarians. Indeed, the humanitarians would certainly find themselves as the losers in such a game. On the other hand, the entrusted agencies - the ICRC and the UNHCR - must preserve and widen their right of humanitarian initiative. To achieve this, they would be well advised to draw benefit from temporary convergences between their humanitarian objectives and legitimate political interests of the governments. As soon as such a convergence ceases to exist, the conditions must be created for promoting a new situation of convergence. This is a process without end, but at the same time it is the condition sine qua non for the humanitarians not to be snowed under.

 

UNHCR must demand the respect of agreed legal obligations

You might find it surprising that a former chief of operations of the ICRC and former High Commissioner for refugees who is not even a jurist, insists so strongly on the law and, in particular, on agreed legal obligations in the field.

You will easily understand the reason for my approach through a quotation from Olivier Russbach's book "L'ONU contre L'ONU" [The UN against the UN]: By placing oneself in a perspective of creation of new international law, one automatically makes oneself dependent on the states that are alone empowered to sign new texts . . . By, on the other hand, placing oneself in the perspective of existing law, one is able to demand the respect of contracted obligations. The first perspective results in a political approach in which the states are the actors, the second results in a legal approach in which the states are debtors of obligations they have contracted".

By resolutely placing themselves in this latter perspective the humanitarians can widen the scope of their interventions in favour of the victims and can obtain a better conditions for developing the widest possible range through very concrete actions. In short, law must facilitate action. In its turn, action strengthens the law and, in the long term, enables its development.

In recent years, the major protagonists of humanitarian action have been too cruelly defeated. They have no reason to be satisfied with results they like to present as "globally positive".

Many conflicts are still going on - 35 today throughout the world - and others threaten to break out in the near future.

It is in these conflicts, and primarily on the field, i.e. there where the victims can be found, that the UNHCR and the ICRC will either prove faithful or betray their mandate, succeed or fail in saving millions of victims from death, hunger and humiliation. We are not questioning the commitment of their personnel on the field. It is indeed remarkable. On the other hand, it is for the senior executives of these institutions to move away from all ambiguities and shady deals into which some would like to lure them. This is the price of the life and the dignity they have been entrusted to preserve.

Jean-Pierre Hocké (Geneva)

1) See: State of the World Refugees - In Search of Solutions, UNHCR, Geneva, November 1995.
2) Ibid: preface by High Commissioner Mrs Ogata.