|Handbook for Emergencies - Second Edition (United Nations High Commissioner for Refugees (UNHCR) / Alto Comisionado de Naciones Unidas para los Refugiados (ACNUR), 1999, 414 p.)|
8. On the spot presence and quick action are generally crucial to the attainment of UNHCR's objectives, particularly where there is danger of refoulement or abuses such as arbitrary detention or mistreatment.
The aim of international protection in emergencies is to:
i. Ensure admission and at least temporary asylum;
ii. Prevent forcible return ("refoulement");
iii. Ensure refugees are treated according to basic human rights standards.
Admission and Non-refoulement
9. The first and most urgent priority is to ensure refugees' right to asylum is respected, and to ensure they are not forcibly returned (refouled).
10. Of cardinal importance is the principle of non-refoulement. This principle is set out in Paragraph 1 of Article 33 of the 1951 Convention which states that:
"No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion".
Non-refoulement includes not rejecting or turning away a refugee at the border, as well as not returning him/her subsequent to admission to a country where he/she could face persecution.
11. The 1951 Convention provides for very limited exceptions to the principle of non-refoulement of refugees, namely, for those reasonably regarded as a danger to the security of the country where they are, or for those who, having been convicted by a final judgement of a particularly serious crime, constitute a danger to the community of that country.
12. The principle of non-refoulement has found specific expression in a number of international instruments adopted at the universal and regional levels.
13. Because of its fundamental and universally accepted character, the principle of non-refoulement has been recognized as a principle of customary international law, and hence binding on all states.
Non refoulement is a principle of international law and binding on all States irrespective of whether or not they are party to the 1951 Convention or other international refugee instrument
14. Asylum seekers must be admitted to the state in which they seek refuge, without discrimination as to race, religion, nationality, political opinion or physical incapacity. The Universal Declaration of Human Rights states that:
"Everyone has the right to seek and to enjoy in other countries asylum from persecution".
15. The General Assembly, on adopting the UNHCR Statute, called on governments to cooperate with the High Commissioner in the performance of his/her functions by, admitting refugees to their territories.
16. Refugees may not be able to meet normal immigration requirements because of their flight. The 1951 Convention obliges states not to penalize refugees for having entered their host country without the legally required formalities.
17. Refugees may be recognized either on the basis of "prima facie" group determination, or following individual status determination.
18. At the outset of an emergency when asylum-seekers arrive in large numbers over a short period of time, it is often impractical to resort to an individual determination of refugee status for each member of the group. In most emergencies those seeking refuge may be of concern to UNHCR, and the Statute calls for action on their behalf. When protection is clearly an urgent humanitarian need, the benefit of the doubt has to be accorded at least until a considered opinion is available.
In the case of mass influx, the aim is to secure treatment in accordance with universally recognized humanitarian principles not necessarily directly linked to the legal status of those in heed. Speed of intervention to secure protection is thus the first priority.
19. In such circumstances, UNHCR and states usually resort to refugee status determination for the entire group based on their knowledge of objective conditions in the country of origin. Every member of the group is thus considered a refugee prima facie, i.e. a refugee in the absence of evidence to the contrary.
Persons Excluded From Refugee Status
20. Certain persons do not fall under the High Commissioner's competence and are excluded from protection. These are persons with respect to whom there are serious reasons for considering that they have committed a crime against peace, war crimes (e.g. torture or execution of prisoners), crimes against humanity (e.g. genocide), serious non-political crimes (e.g. murder or rape) outside the country of refuge, or acts contrary to the purposes of refuge, or that they have been guilty of acts contrary to the purposes and principles of the United Nations.
21. Headquarters must be informed immediately of such situations and as a rule, criteria for decisions on exclusion should be taken in consultation with Headquarters. Note that asylum seekers can be given prima facie recognition as refugees on a group basis, but can only be excluded from refugee recognition on an individual basis.
UNHCR and States' Responsibilities
22. The High Commissioner's universal protection responsibilities have been placed on him/her by the General Assembly (Statute of UNHCR). The exercise of the international protection function by UNHCR is not dependent upon a request by the government concerned.
23. In countries that are parties to the relevant legal instruments, UNHCR's protection function is facilitated. The 1951 Convention obliges States which are parties to the Convention to cooperate with UNHCR in the exercise of its functions and in particular to facilitate UNHCR's duty of monitoring the application of the Convention's provisions. The 1969 OAU Convention contains a similar clause.
24. Even when an emergency occurs in a country not party to the relevant international instruments, some of the principles embodied in the Convention are considered customary international law and hence are binding on all states. Foremost amongst them is the principle of non-refoulement. In addition, the moral strength and standard setting value of the conclusions of UNHCR's Executive Committee (EXCOM) is not limited to states which are members of the Executive Committee (see chapter 9 on external relations for more details on EXCOM members).
Basic Refugee Standards
25.A set of internationally recognized basic standards of treatment applicable in refugee emergencies has been agreed1.
a) Refugees and asylum seekers should not be penalized or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful; they should not be subjected to restrictions on their movements other than those which are necessary in the interest of public health and public order;
b) They should enjoy the fundamental civil rights internationally recognized, in particular those set out in the Universal Declaration of Human Rights;
c) They should receive all necessary assistance and be provided with the basic necessities of life including food, shelter and basic sanitary and health facilities; in this respect the international community should conform with the principles of international solidarity and burden-sharing;
d) They should be treated as persons whose tragic plight requires special understanding and sympathy. They should not be subjected to cruel, inhuman or degrading treatment;
e) There should be no discrimination on the grounds of race, religion, political opinion, nationality, country of origin or physical incapacity;
f) They are to be considered as persons before the law, enjoying free access to courts of law and other competent administrative authorities;
g) The location of asylum seekers should be determined by their safety and well-being as well as by the security needs of the receiving State. Asylum seekers should, as far as possible, be located at a reasonable distance from the frontier of their country of origin. They should not become involved in subversive activities against their country of origin or any other State;
h) Family unity should be respected;
i) All possible assistance should be given for the tracing of relatives;
j) Adequate provision should be made for the protection of minors and unaccompanied children;
k) The sending and receiving of mail should be allowed;
l) Material assistance from friends or relatives should be permitted;
m) Appropriate arrangements should be made, where possible, for the registration of births, deaths and marriages;
n) They should be granted all the necessary facilities to enable them to obtain a satisfactory durable situation;
o) They should be permitted to transfer assets which they have brought into a territory to the country where the durable solution is obtained; and
p) All steps should be taken to facilitate voluntary repatriation.
1 These were adopted by UNHCR's Executive Committee in 1981, Conclusion No 22.
26. Some countries adopt a narrow definition of the term "refugee" which does not encompass those persons who are fleeing from armed conflict (such persons are considered refugees within the definition contained in, for example, the OAU Convention). In countries with a narrow definition, the term "temporary protection" has been used to describe protection extended to categories of persons clearly in need of international protection, but in respect of whom recognition as refugees would present difficulties, either because they would not fall under the narrow definition, or because individual status determination would not be practical in view of the numbers of persons involved.
27. The basic elements of temporary protection include:
i. Admission to the country of refuge;
ii. Respect for basic human rights, with treatment in accordance with internationally recognized humanitarian standards (e.g. those basic refugee standards listed above);
iii. Protection against refoulement;
iv. Voluntary repatriation when conditions in the country of origin allow. Persons admitted to a country under a temporary protection scheme generally are not provided access to the full range of benefits accorded to individuals who are recognized as refugees.