Africa Refugee Rights News

Vol. 1, Issue 3, August 2003

Welcome to Africa Refugee Rights News, a new email and web based newsletter focusing on issues affecting refugee protection in Africa.

The newsletter is coordinated and hosted by the International Refugee Program of the Lawyers Committee for Human Rights. Through the newsletter we hope to highlight and support efforts to enhance the protection of refugees and internally displaced persons in Africa, and to flag emerging challenges and opportunities for advocacy.

We hope that the newsletter will grow into a forum for exchange of information on refugee protection practice and policy in Africa and create a catalyst for new partnerships.

We very much welcome your comments and contributions.

If you would like to subscribe or unsubscribe from this list please send an e-mail to Olivia Bueno at buenoo@lchr.org. Or write to the International Refugee Program, Lawyers Committee for Human Rights, 333 7th Avenue, 13th floor, New York, NY 10001.

THE WORLD’S MOST WANTED

Earlier this year U.N. High Commissioner for Refugees Ruud Lubbers visited West Africa to assess the safety and humanitarian situation of the almost two million refugees and displaced in the region. Having visited camps under constant threat of violent rebel incursions, heard of rapes, abduction and forced recruitment, and met with exhausted refugees who had been forced to flee into exile
repeatedly, the overwhelmed Commissioner declared that Liberian President Charles Taylor was “the epicenter of the crisis.”

Last month Taylor was indicted by the Special Court for Sierra Leone, charged with “bearing the greatest responsibility for war crimes, crimes against humanity and serious violations of international humanitarian law within the territory of Sierra Leone since 30 November 1996.” Taylor’s activities and support for armed rebels all across the region has had a devastating effect on refugees in Liberia, Sierra Leone, Guinea and Ivory Coast.

But whether Taylor will ever face trial is uncertain. As conflict in Liberia escalates there are some who argue that Taylor should be allowed to slip into exile without trial. This must not be permitted. The Lawyers Committee strongly hopes that governments in the region will refuse to harbor Taylor, handing him over instead to the Sierra Leone Special Court for trial. The victims of Taylor’s actions across the region deserve justice.

The Requirements of Justice

International law requires that Taylor must be tried for the crimes for which he has been indicted. The Geneva Conventions, to which most nations are party, classify war crimes as crimes so serious that states have an obligation either to try these crimes themselves or to hand over suspects to a competent tribunal. The Sierra Leone Special Court, having been authorized by both the United Nations and the Government of Sierra Leone to try crimes committed in the course of the Sierra Leonean civil war, carries such authority.

The United Nations Security Council has called upon all states to cooperate fully with the Special Court. This call, however, does not carry the same legal weight as the compulsory obligation that the Security Council imposed when it created the ad-hoc International Criminal Tribunals for Rwanda and the Former Yugoslavia. The President of the Special Court has requested that the Security Council give the Court a mandate under Chapter VII of the U.N. Charter—similar to that of the ad-hoc tribunals. A Sierra Leonean NGO, the Campaign for Good Governance, has also been lobbying the Security Council in support of a resolution to this effect.

With or without any change in the enforcement powers of the Special Court, the law still clearly requires that any country finding Taylor on its soil must examine how best to ensure that he is brought to trial. And the Special Court seems best poised to do that as the only court currently with an indictment against him outstanding is the Special Court.

The requirement of justice is not just a matter of law. Allowing President Taylor to escape justice only promises to undermine international human rights principles and fuel the cycle of violence and impunity which has engulfed the region for the past decade.

Offers of “Safe Haven”

Even as Taylor’s government faced overthrow by insurgent forces, neighboring states were offering Taylor “safe haven,” threatening to undermine the work of Sierra Leone’s Special Court and Africa’s progress toward ending impunity for the most serious human rights crimes.

On June 4 of this year, on the day of the announcement of the indictment, Taylor was in Ghana. But Ghanaian authorities allowed Taylor to return to Liberia despite having been directly requested by the Sierra Leone Special Court to detain him. The chief prosecutor of the Special Court, David Crane, spoke out soon afterward to declare that: “Any nation that finds Taylor within its borders is legally bound to execute [the arrest warrant]."

A month later, on July 6, Taylor and Nigerian President Olusegun Obasanjo appeared side by side in front of cameras in Monrovia to announce an offer of “safe haven” to Taylor in Nigeria.

The presidents of both Nigeria and Ghana have argued that allowing Taylor to avoid prosecution is a key element in negotiating a successful peace settlement in the current bloodletting in Liberia. Defending his offer of safe haven, President Obasanjo has defined it as a “necessary gesture for peace.” The argument grows increasingly flimsy as the Taylor regime nears collapse—and in the light of Taylor’s pledges to return to Liberia, even if he is temporarily driven from power.

In fact, there is little likelihood that a free ticket out of Liberia would ensure Taylor’s definitive removal from influence. The experience of Sierra Leone after the Lomé accords serves as a cautionary tale. The grant of amnesty under Lomé was not enough to dissuade the rebels from fomenting further violence. By declaring openly his intention to remain active in Liberian politics, Taylor has given no indication his future plans are any different.

In the United States, the Bush Administration has been quiet on the issue of “safe haven” for Taylor, preoccupied with thinking through the immediate questions surrounding the request by both the U.N. and Taylor himself to send troops to Liberia to support an international peacekeeping force. While maintaining that Taylor must step down, President Bush has been hesitant to take a public stand on whether or not exile with impunity is a satisfactory option. This is despite the fact that the United States has up until now been a strong supporter, both financially and politically, of the Sierra Leone Special Court.

Can an Accused Criminal be Granted “Safe Haven”?

International refugee law prohibits the granting of refugee protection to an individual where there are “serious reasons to consider” that he or she has committed serious crimes.

There are many dangers inherent in failing to exclude those responsible for gross human rights abuse from protection as refugees. First, blurring the distinction between suspected international criminals, their victims and those genuinely in need of protection can undermine the confidence of the host population in refugee protection procedures. It can also, more seriously, threaten the security of the host country and set back international efforts to promote accountability for human rights violations. The current conflict in the Democratic Republic of Congo is in many ways the fruit of a failure to do this in the aftermath of the Rwandan genocide.

The indictment of Taylor by the Special Court for Sierra Leone establishes a firm basis upon which Taylor could be excluded from protection if he seeks asylum as a refugee.

Of course, Nigeria may admit Taylor to its territory without considering him a refugee. And whatever it decides to do, it must protect him from serious violations of his human rights. But at the same time, it is also obliged to ensure that Taylor—an indicted war criminal—is brought to justice.

Blurring the Distinctions between “Refugee” and “Fugitive”

Unfortunately, the language being used by those discussing Taylor today—including words such as asylum, safe haven, sanctuary, and refuge—threatens to blur the distinction between indicted criminals like Taylor and the victims of human rights violations who seek protection abroad (refugees).

There is a danger that the institution of asylum will be tainted by association with impunity if such a high profile fugitive is granted sanctuary. It is vital that if Taylor does go into exile he is not portrayed as benefiting from the refugee protection regime—and that ultimately he is handed over to the Special Court for Sierra Leone.

In the past, in the absence of effective international mechanisms of justice, a number of prominent African leaders accused of torture, mass murder, and related crimes have been allowed to slip quietly into exile after their governments have been overthrown—among them Uganda’s Idi Amin and Ethiopia’s Mengistu Haile Mariam.

The Rwandan genocide marked a watershed in recognition by African leaders of the need for international justice and accountability in the region. The atrocities in Sierra Leone, where the amputation of limbs became the signature crime of rebel forces, further impelled international action. The establishment of the international criminal tribunal on Rwanda, and the mixed international-national tribunal on Sierra Leone, against the backdrop of the International Criminal Court, has provided new hope that atrocities will be punished—and that justice will serve as a deterrent to renewed atrocities. The efforts to prosecute Charles Taylor reflect this new reality.

Read more:

Lawyers Committee for Human Rights, “The Special Court for Sierra Leone.”

Lawyers Committee for Human Rights, “Wanted by the Sierra Leone Special Court: Ghana fails to arrest Charles Taylor,” June 6, 2003.

Lawyers Committee for Human Rights, Refugees and Rebels and the Quest for Justice.

AFRICAN COMMISSION PUSHED ON REFUGEE RIGHTS

If events at its most recent session in Niamey, Niger, are anything to go by, the African Commission for Human and Peoples’ Rights is poised to take on a more dynamic role in monitoring refugee protection in Africa.

Founded in 1986, the African Commission has three main functions: to conduct awareness-raising on human rights issues, to collect and evaluate periodic reports by states on their compliance with the African Charter on Human and People’s Rights and to issue judgments on communications brought before it by states, individuals or organizations alleging human rights violations.

The African Charter is the anchor of the Commission’s monitoring and decision-making on refugee issues. It guarantees the right “to seek and obtain asylum” and many of its provisions, such as the right to life and to due process of law, apply equally to refugees and citizens.

Over the years the African Commission has heard communications relating to refugee matters, but it is through its reporting and monitoring functions that the Commission may be finding a way to most effectively contribute to refugee protection in Africa today.

The situation of refugees and internally displaced persons in Africa is now a standing item on the agenda of the Commission’s biannual meetings. NGOs and civil society groups are permitted to contribute to the discussions through submissions prepared during an NGO forum which normally precedes the Commission meeting. A new network of West African refugee advocates, the West Africa Refugee and Internally Displaced Persons Network (WARIPNET), has been taking the lead on presenting twice annual statements on the state of refugee protection on the continent.

During the past few years a group of NGOs, WARIPNET and the Lawyers Committee, have been urging the appointment of a Special Rapporteur on Refugees and IDPs as a way of focusing the work of the Commission even further on refugee rights.

At the May 2003 Commission meeting in Niamey, Commissioners stressed the important place which monitoring the protection of refugees should have within the Commission’s deliberations. Commissioner Barney Pityana deplored the dearth of specific mechanisms to enforce the refugee guarantees in the African Charter and the OAU Refugee Convention. It was also critical, he said, to explore how a burden sharing mechanism might be developed to support countries receiving large flows of refugees.

UNHCR took up this theme, pointing out that the absence of an effective monitoring mechanism was “one of the major constraints to the effective protection of refugees.” The Commission was called upon to explore how best to remedy those deficiencies.

Commissioner Jainaba Djom reported that a consultative meeting had been held between the Commission and UNHCR in Addis Ababa in March to examine more effective strategies for using the African Charter and the 1969 OAU Refugee Convention to protect the rights of refugees. To move the process forward, a memorandum of understanding (MOU) was agreed between UNHCR and the Commission.

With the agreement of the UNHCR MOU there is a new opportunity for States, NGOs, and others to develop a strategy which will more deeply engage the Commission in protecting refugee rights.

*For detailed discussion of the role of the African Commission in refugee protection see the article by Chidi Odinkalu and Monette Zard, “African Regional Mechanisms That Can Be Utilized On Behalf of the Forcibly Displaced,” in Joan Fitzpatrick, Human Right Protection for Refugees Asylum-Seekers and Internally Displaced Persons: A Guide to International Mechanisms and Procedures.

USING ONLINE VIDEO TO PRESSURE FOR IDP RIGHTS

The international NGO WITNESS and its partner organization Burma Issues have launched an advocacy campaign to aid internally displaced persons in Burma using online video.

WITNESS is an organization that works to help human rights partner organizations around the world use video effectively in their advocacy. WITNESS’ latest project partnered them with Burma Issues, an NGO based in Thailand that works directly with oppressed and marginalized communities. The two organizations worked together to produce a video “No Place to Go” which gave displaced ethnic Karen villagers the opportunity to speak out about their experiences of repression and displacement. The video was shown to activists, lawmakers and educators in the US and Europe.

WITNESS has also helped partners to advocate for the displaced in Africa. In 2000, it helped RADDHO in Senegal to produce a video on the economic and social rights of refugees. The video, accompanied by a briefing paper developed in collaboration with the Lawyers Committee, was first screened at a meeting of UNHCR’s Executive Committee meeting in Geneva.

For further information:

To view “No Place to Go,” to take action, or to find out more about WITNESS or how your organization can apply to become a partner, visit them at www.witness.org. For more information on the displaced in Burma, visit Burma Issues at www.burmaissues.org.

PRESIDENT BUSH’S TRIP TO AFRICA: WHAT PLACE ON THE AGENDA FOR AFRICA’S REFUGEES?

The decision by US President George Bush to visit Africa earlier this month was both a positive development in US-Africa relations, and a missed opportunity to engage in some of the more urgent problems that beleaguer the continent. Although Africa finally appeared to have come under the spotlight of the US administration, many concerns critical to African lives, including those of refugees, were left off the agenda.

In conceiving the trip, the White House had designed an itinerary which focused on promoting trade and development and combating the HIV/AIDS epidemic. While refugees did not make it explicitly onto the President’s list of core concerns, the issues to which he dedicated the trip are ones which can have a critical impact on refugee lives—successfully combating HIV/AIDS and promoting development will benefit refugees as well as their hosts.

Combating HIV/AIDS

In Uganda, President Bush made the fight against HIV/AIDS the centerpiece of his Africa mission: “You are not alone in this fight. America has decided to act. Over the next five years, my country will spend $15 billion on the fight to fight AIDS around the world.”

The HIV/AIDS epidemic is clearly one of the most pressing issues facing Africa today. Some 29.4 million people are estimated to be living with the HIV virus on the continent, representing 70 percent of the adults and 80 percent of the children who have HIV worldwide.

President Bush’s announcement of billions of dollars of assistance to fight the disease in Africa is therefore welcome. But many uncertainties remain. The funds pledged are to be provided under the US Leadership Against HIV/AIDS, Tuberculosis and Malaria Act. But President Bush has not asked Congress to allocate the full amount of the pledge. Groups in the US such as the Advocacy Network for Africa are working hard to ensure that the promised funds are forthcoming.

It is also uncertain to what extent HIV/AIDS funding will result in additional assistance for refugees living with the HIV virus. Conflict and poverty, to which refugees are extremely vulnerable, exacerbate the spread of HIV and AIDS. Further, when it comes to battling the disease, UNHCR has noted that refugees, as non-nationals, are generally not covered by national AIDS control programs. And because the focus of the US plan is on bilateral assistance to governments, the responsibility for funding prevention and treatment programs for refugees is likely to fall on cash-starved multilateral institutions.

Development Assistance

During the trip, President Bush touted his new US aid package, the Millennium Challenge Account (MCA), as a central tool of the US drive to combat Africa’s underdevelopment. In the plan the US has undertaken to increase foreign aid by 50 percent in the next three years. In a CNN interview US Secretary of State Colin Powell claimed that the MCA would “make a major difference here in Africa by providing more money for aid.”

But the MCA is not an entirely Africa focused assistance program. It is designed to provide assistance to the world’s poorest countries which can also demonstrate good performance in three categories of indicators relating to "Governing Justly," "Investing in People," and "Promoting Economic Freedom." Only 13 nations are likely to qualify for the program next year. Of these only four are in Africa-Benin, The Gambia, Lesotho, and Malawi. Together these four countries represent less than half of one percent of Africa’s population and host an even smaller percentage of the continent’s refugees.

The Road Ahead?

Reflecting on President Bush’s visit to the continent, a number of African commentators have criticized US failure to back up promises on development policies and AIDS with sufficient concrete engagement. Others suggested that the US neglected to use the presence of the President to urge action on reducing conflict where it was in a particular position of influence and capacity—most specifically in Liberia and in the Democratic Republic of Congo.

At time of writing, however, the US has lifted its objections to the passage of a U.N. Security Council Resolution to extend the size and mandate of the U.N. peacekeeping force currently in the Democratic Republic of Congo (DRC). This decision brings hope to the over two and a half million displaced Congolese who were forced to flee the conflict during the last five years. It is a signal that the international community’s commitment to creating the conditions for peace-building in the war-torn country is taking concrete shape. But more needs to be done. As Bush himself declared in an address to the US-Africa Business Summit prior to his departure for Africa, “[t]o encourage progress across all of Africa, we must build peace at the heart of Africa.”

Discussion of Bush’s trip to Africa in the US was in many ways eclipsed by domestic politics, illustrating the challenges of sustaining a focus on Africa. At the same time, however, it did provide an opportunity for the US government to put its agenda for US engagement in Africa before its public and the world. It is to be hoped that the renewed interest in the continent will endure and impact positively on policies affecting the lives of refugees. As a starting point, advocates must urge the US to keep the promises made by its President during his Africa sojourn.

Read more:

Lawyers Committee for Human Rights, Lawyers Committee Calls for International Action to Address Crisis in Ituri Province in the Congo

HARNESSING THE AFRICAN UNION FOR REFUGEE PROTECTION

Between July 4 and 12, African leaders met in the Mozambique’s capital Maputo, at the second summit of the newly constituted African Union (AU).

As the heads of state and representatives of the 53 nation AU grouping descended on Maputo, questions continued to abound about whether the new institution would be able to increase the health and wealth of Africa where its predecessor the Organization of African Unity (OAU) had failed.

Host nation Mozambique illustrates some of Africa’s most pressing problems. According to the United Nations close to 3 million of its 20 million citizens are infected with the HIV virus, 70 percent of the people live below the poverty line, and over 7,000 refugees fleeing war in Democratic Republic of Congo and Burundi crowd into the capital city of Maputo without humanitarian assistance.

But the strong presence of international leaders at the summit, including U.N. Secretary General, Kofi Annan, the head of the International Monetary Fund (IMF) Horst Kohler, and U.N. High Commissioner for Refugees Rudd Lubbers, emphasized the sense of possibility for change which has been sparked by the foundation of the new institution.

Taking up the challenge, Joachim Chissano, the President of Mozambique was elected as the new AU Chairman, replacing Thabo Mbeki of South Africa. Former Malian President Alpha Oumar Konare was elected Chairman of the African Union Commission—the Secretariat charged with coordinating and integrating the work.

Plight of Refugees Highlighted

In a speech to the AU assembly, U.N. High Commissioner Rudd Lubbers launched a Special Appeal for Africa’s Refugees. The appeal sought $41 million to alleviate “life threatening suffering” of over 100,000 people in seven countries—Central African Republic, Kenya, Uganda, Ethiopia, Republic of Congo, Rwanda, and Chad. Whether or not AU members can respond financially to this particular emergency appeal in the immediate term, the AU holds out the brightest long term hope for change for refugees on the continent.

While protection of refugees has not been a stated priority of the AU, peace and security, a pre-condition for refugee protection, is at the core of its agenda. Brokering peace amongst warring groups creates environments where refugees can voluntarily repatriate or indeed coexist with host populations.

Peace and Security Mandate

The Constitutive Act of the AU grants a robust peace and security mandate to the new organization—one which has more teeth than the old Organization for African Unity (OAU). In particular, the AU will be able to authorize forced interventions to protect civilians situations of “grave circumstances, namely war crimes, genocide and crimes against humanity.” (Art. 4(h) of the Constitutive Act). This new power sets the stage for more robust and effective action to protect refugees in the future.

Once the new organs which have been designed to carry out the mandate are in place, it is hoped that the institution will be able to deal with the conflicts that are the root causes of refugee flight on the continent. The Peace and Security Council will be the institution at the heart of the mandate.

The Peace and Security Protocol creates a Council that will serve as a collective security and early-warning mechanism, facilitating timely and efficient responses to conflicts and crisis situations in Africa. It will also establish an African Standby Force as well as a Military Staff Committee that would deal operationally with peace enforcement on the continent—and interventions under Article 4(h).

A constant note sounded at the summit was that of outgoing Chairman President Mbeki of South Africa in his repeated calls for the urgent ratification of the Protocol which creates the new Peace and Security Council. To date 17 countries have ratified the protocol; only 10 more are required to do so for it to come into force.

Meanwhile, despite not having all of its new institutions in place, the AU is already taking the lead in forging peace in various conflict spots on the continent. It has sent negotiators to the Democratic Republic of Congo, the Ivory Coast, Eritrea, Ethiopia, and Burundi, among others.

Refugee Women

Another instrument discussed at the summit also has the potential to impact refugee lives—the AU Protocol on the Rights of Women. Although 15 countries need to ratify the instrument before it goes into force, it is a potentially powerful and progressive new tool for protecting women in Africa. In addition to providing, for the first time, an express prohibition on the practice of female genital mutilation, the Protocol contains important provisions for the protection of women in refugee settings.

Article 11 of the Protocol, for example, acknowledges the right of women to be involved in promoting peace and particularly calls on States to take special measures to ensure effective protection of displaced women. Although existing instruments of refugee law recognize similar rights for both men and women, the inclusion of these provisions is an important recognition of the specific difficulties faced by this vulnerable group.

The Protocol also requires that states “take all appropriate measures” to involve women in crafting responses to displacement and protecting refugees at both national and international level. States are particularly enjoined to involve women at all levels of the structures established “for the management of camps and asylum areas.” This specific direction to include women embraces the principle of participation which is so crucial to ensuring the protection of women in refugee situations.

The Future?

The processes through which change can be achieved are still slow. But there is every indication that there may finally be a pan-African institution with the will, and the tools, to begin to tackle the problems facing refugees on the continent.

OUT OF SIGHT, OUT OF MIND, BUT WHERE?

In the April edition of Africa Refugee Rights News we reported on a proposal made by the United Kingdom to set up processing centers for asylum seekers outside the borders of the European Union. The proposal raised alarms for a host of reasons, including the fact that many of the proposed sites for the centers (in Eastern Europe and Russia) have poor records of refugee protection. The processing plan was also criticized as an attempt by the wealthiest nations to deflect the weight of their obligations to refugees onto the shoulders of those nations less able to cope with the challenges of assisting refugees.

There was great relief in refugee advocacy circles when the UK withdrew the proposal prior to the EU summit in Thessaloniki, Greece in June. The decision came after sustained opposition from Germany and Sweden and from NGOs in Europe. But other proposals to keep asylum seekers from European shores were also on the table for discussion. For example, proposals to designate “zones of protection” for refugees in the main regions from which refugees originate—including Africa—are still under examination. Details are sketchy but it is understood that a pilot project may be set up in Kenya in the near future.

In addition, the processing center proposal itself has not been truly abandoned. While the UK did agree to drop the proposal from its EU agenda, it is unclear whether it will pursue a similar strategy unilaterally.

UNHCR has itself submitted a proposal for centers within the European Union to expedite asylum processing of case loads from countries that produce very small numbers of refugees. Although the likelihood of abuses occurring in the centers is lower within the EU, where strong human rights protections exist, there are still concerns about how the centers will operate, and particularly whether asylum seekers would be held in conditions amounting to detention.

UNHCR has been clear that it will be difficult for such centers not to be “closed” facilities unless there is no “fear of absconding or irregular movement in a particular case.” Advocates have expressed concern that this proposal sees UNHCR retreating from its longstanding position that asylum seekers should be detained only in exceptional circumstances.

The UNHCR’s EU processing centre proposal will most likely be discussed in November in the context of the creation of an EU-wide common asylum process by the end of 2003. NGOs will need to watch all these developments closely—especially African NGOs as the “zones of protection” proposal gathers momentum. Some nations, and even UNHCR, seem to be increasingly intent on putting refugees as Amnesty International has charged, “out of sight and out of mind.”

Publications

Amnesty International, “No Escape: Liberian Refugees in Cote d’Ivoire,” June 24, 2003.

Jacobsen, Karen and Loren Landau, “Researching refugees: some methodological and ethical considerations in social science and forced migration,” (New Issues in Refugee Research Working Paper No. 91), June 2003.

Human Rights Watch, “The Regional Crisis and Human Rights Abuses in West Africa: A Briefing Paper to the U.N. Security Council,” June 20, 2003.

Legal Resources Foundation, A Reference Guide to Refugee Law and Policy Issues in Southern Africa.

Africa Refugee Rights News is produced by staff of the International Refugee Program at the Lawyers Committee for Human Rights. Interns Emily Berman, Bola Olupuna and Mariam Toure contributed to this issue.