|By David Rieff
Two emblematic figures, the exile and the refugee, loom large in our consciousness at the beginning of this new century as at the end of the last. Vast refugee flows have become a feature of the contemporary world. Part of this can be attributed to the fact that it is easier to cross borders now than it was, say, 150 years ago. People have always wanted to move away from danger zones; today, whatever the risks, they have the means to do so. As a result, when Hurricane Mitch devastated Honduras in 1998, many predicted that within a matter of months Honduran refugees would pour into the United States.
Of course, there is nothing new about repression, and the question of whether war has grown more barbarous in the twentieth century remains a controversial one. Those who, in the aftermath of World War II, devised the international humanitarian law (IHL) on refugees seemed to have believed that it had. So do those who have spent time in such killing zones as Bosnia, South Sudan, and the Great Lakes region of Africa. There, civilians are more often than not the preferred targets of the belligerents, and every villager caught in these maelstroms is, when viewed in a certain light, a potential refugee.
Perhaps this is why Sadako Ogata, the United Nations High Commissioner for Refugees, once observed that “refugees are the symptoms of the ills of an age”—our age. In almost every crisis that has plagued or baffled us since the end of the Cold War, from Tajikistan to Burundi, the refugee issue has been at the center. There has been no escaping it, and, it seems, no resolving it.
This is not because of an absence of laws, but, rather, a lack of implementation. Indeed, if the political will of the powerful nations of the world matched the legal protections that already exist for refugees, many of the cruelest tragedies of the last part of the twentieth century might have been greatly diminished. A raft of treaties passed in the aftermath of World War II, and, half a century later, the accumulating weight of customary law guarantees refugee rights. Unlike in the case, say, of internally displaced persons (the distinction is that a refugee is a person who crosses an international border), refugees enjoy a wide array of rights and protections including the right to certain kinds of legal aid and material assistance. Compared to what should be, the situation of refugees in the world today is appalling; compared to what it would be without IHL, it is at least not hopeless. The most important laws concerning refugees are the Fourth Geneva Convention of 1949, the 1977 First Additional Protocol to the Geneva Conventions, and the 1951 UN Convention Relating to the Status of Refugees. The Geneva Conventions required a certain humane standard of treatment for civilians who do not enjoy diplomatic status. The Fourth Convention granted refugees the right not to be returned to the country where they faced danger or could legitimately claim that they would be subject to religious or political persecution. Additional Protocol I extended the standard for civilian protection set in the 1949 Geneva Conventions to include all civilians regardless of their nationality.
The UN Convention Relating to the Status of Refugees defines who refugees are and how they are to be treated. For the most part, the guarantees the convention grants are the basic human rights outlined in other international legal instruments. Refugees are not to be returned to the place where they face persecution, nor, except on grounds of national security, are they to be expelled without due process. They are not to be treated as illegal aliens (a key right, particularly in Western Europe and North America where the authorities routinely try to claim that people claiming refugee status are really economic migrants). Their right to move about in their country of asylum is not to be unnecessarily restricted, and they are to be given identity papers if they do not have them.
In a world awash in refugees, where people in rich countries feel overwhelmed by the press of economic migrants, legal and illegal, and where people in poor countries in areas adjacent to conflict zones have neither the resources nor the expertise to deal with vast refugee flows (2 million Rwandan refugees crossed the border into Zaire in less than a week in the summer of 1994), this has meant that where refugees have been concerned, the situation has grown more and more difficult. In particular, the burdens on the main international organization charged with protecting refugees, the Office of the UN High Commissioner for Refugees, have become excruciating. More generally, the gap between the law and realities on the ground is greater in the area of refugee rights than almost any other. Perhaps that gap is an emblem of failure. But many refugee advocates say that it gives us the means actually to make the ideals of refugee protection a reality, whereas if no such body of law existed, and the idea of protection had not been enshrined within it, the situation would be even more dire than it is.