Refugees and state failure

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Prof. John Harbeson

Kenya recent renewed commitment to shut down its Dadaab and Kakuma refugee camps deepens the impoverishment and puts at risk the survival of more than four hundred thousand refugees from Somalia and other eastern African states. On its face, the Kenya policy violates global and African Union refugee protection conventions, to both of which Kenya is a signatory, along with almost all sub-Saharan African countries. At a deeper level, in further shredding the fundamental bonds that enable peoples to acquiesce in being governed together as one community, violations of these conventions threaten to deepen and enlarge at a global level the pervasive phenomenon of state weakness and failure in the continent. Transgressions of these conventions undermines the legitimacy and viability of African and global international regimes, established to strengthen these states as well as to ensure that they responsibly exercise their power to protect the vital interests and fundamental human rights of all who reside within their borders.

To the extent the Kenya government implements this commitment, it will follow the troubling example recently set by the European Union in engineering the repatriation of thousands of refugees, from mostly Middle Eastern countries, to Turkey where the government’s capacity and willingness to respect the basic human rights of these refugees is in doubt, based on how it has treated many of its own citizens. The Shengen Agreement by which more than two dozen European countries have abolished all internal boundaries in favour of common external borders, a signature accomplishment of the European Union, has been put at risk by Hungary, a signatory to the agreement, which has invested €100 million (Sh11 billion) in erecting a razor-wire fence to keep out refugees and migrants.

Extinguish sources of terrorism

The rationale for the coerced repatriation of the Dadaab refugees to Somalia and those of Kakuma mostly to other states in the region, each of whom has human rights records markedly worse than Kenya’s mixed record, appears essentially to be to extinguish sources of terrorism. No one can question that objective, but one can and must question whether its pursuit has been and is likely to be counter-productive. One may and must also inquire what evidence there is that the terrorist cancer has taken root in these cities of refugees, which have come to depend upon the hospitality of host states massively supported by international humanitarian assistance.

The humanitarian crisis these displaced peoples present is well known, as is the fact that humanitarian assistances agencies as well as hosting countries have been stretched to the limit in both financial and human terms in struggling to shelter these massive refugee communities.  And on top of all this, as is equally well known, there remain millions of internally displaced persons in both the sending and hosting countries, whose access to domestic as well as international humanitarian assistance has been less than adequate in many cases. Indeed, in at least some cases, refugees have been driven by circumstances in their own countries to migrate to neighbouring countries whose treatment of them, and capacity to treat them may be worse – classic instances of moving from the frying pan into the fire.

What is less appreciated and, indeed, perhaps also less well known, is that the vast majority of countries worldwide have committed themselves to the 1951 Geneva Convention on the status of refugees.  This Convention commits those countries to the principle of non refoulement, which bars countries from sending victims of persecution to countries that bear responsibility for creating refugee flows.  All but very few sub-Saharan African countries have adhered to this protocol, with the apparent and notable local exception of Tanzania.

Moreover, almost all sub-Saharan countries have also adhered to an African Union convention which reinforces that principle.  Article 2 of the African Union Convention specifies that “no person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened.”

In barring the deportation of refugees to their own or other countries where their livelihoods, safety, and basic human rights would be endangered, these conventions implicitly established that the internationally mandated responsibility of states to protect all residents within their borders is a shared responsibility.  Refugee hosting countries are mandated to protect refugees from countries whose governments are unwilling and/or unable to uphold their responsibility to protect their residents. Implicitly, the conventions bar refugee hosting countries from replicating the practices of sending countries by deporting whole communities of refugees identifiable by their race, religion, nationality or membership in a group holding a particular political opinion.

The African Union convention does afford states several grounds on the basis of which to deny individuals refugee status.  In particular, it enables states to cancel the refugee status of anyone who has committed a “serious non-political crime outside his country of refuge after his admission that country as a refugee”, or who has “otherwise seriously infringed the purposes and objectives of this Convention.”  However, these exceptions all apply to individuals not to whole groups.

Address political crimes

At the same time, both the global and the African Union refugee conventions appear flawed because they do not come to terms with circumstances in which either state or non-state based groups may be guilty of serious crimes. Moreover, the limitation of exclusions to “non-political” crimes implicitly leaves unaddressed how states are legitimately to define and address what they may regard as “political crimes,” e.g., conspiracies and insurgencies directed to the violent overthrow of governments and/or the reconstitution of the states themselves.  In a word, neither the African Union nor the global convention appear to instruct states on how they are to deal with refugee groups that may be aligned with the likes of ISIS, Al-Shabaab or Al-Qaeda affiliates.  More specifically, they appear to supply no empirical criteria by which a government can legitimately accuse whole groups of refugees of criminal violations of the terms of refugee status, as distinct from their acting on unsubstantiated claims of this nature.

At root, these international refugee protection conventions, indeed the democratisation and human rights movements generally, suffer from a fundamental weakness.  Flourishing in the late 20th Century when they were directed at authoritarian governments, these conventions have not been recalibrated to ensure that basic individual human liberties, democracy and social justice are not undermined by real and claimed terrorist threats and counter-terrorism initiatives. They have not incorporated the even deeper reality that the basis of state survival and state, at least in the post-colonial, post-Cold War global south, is no longer simply the Weberian model of legitimately if illusorily monopolised coercive capacity. Rather these states gain legitimacy and sustainability to the extent that governments, civil society, and the international community join in enabling peoples of all nationalities, religions and races to find terms on the basis of which they can acquiesce in being governed together.

Writer is Professor of Political Science Emeritus and a professorial lecturer for the African Studies Program at Johns Hopkins University School of Advanced International Studies

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