Appendices: Special Protection Issues
Women share the protection problems experienced by all refugees. Just like other refugees, they need protection against forced return to their countries of origin; security against armed attacks and other forms of violence; protection from unjustified and unduly prolonged detention; a legal status that accords them adequate social, economic and legal rights; and access to basic necessities such as food, shelter, clothing and medical care.
But in addition, refugee women and girls have special protection needs. They need protection against manipulation, sexual and physical abuse and exploitation, and protection against discrimination in the delivery of goods and services.
Protection problems can follow refugee women through all stages of their lives as refugees. Refugee women may endure
The rights of refugee women are spelled out not only in the 1951 Refugee Convention and its 1967 Protocol, but in many other relevant international legal texts, such as:
While these documents may not be signed by every State, they provide a framework of international human rights standards that supports protection and assistance activities related to refugee women.
National laws and policies in the country of asylum also govern the protection of refugee women. These include laws and policies that determine what legal status an individual receives, where she will live, and what assistance she will receive. Many offenses perpetrated against women, such as rape and physical attack, are punishable under national laws.
But international protection goes beyond adherence to legal principles. The protection of refugee women requires planning and a great deal of common sense in establishing programmes and priorities that ensure their safety and well-being. Refugee women who are unable to feed, clothe and shelter themselves and their children will be more vulnerable to manipulation and to physical and sexual abuse in order to obtain such necessities. Refugee women who are detained among strangers and/or where traditional social protection systems no longer exist, will face greater dangers than those living among family and friends. Refugee women who must bribe guards to obtain food, water or other essential goods will be more susceptible to sexual harassment. Refugee women who formerly had a means of expressing their views in the community may find themselves unable to do so through the camp leadership, which is often composed of men.
Since a large proportion of refugees are women, many of them solely responsible for their dependent children, it is essential that they be involved in planning and delivering assistance. Programmes that are not planned in consultation with the beneficiaries, nor implemented with their participation, cannot be effective. And participation, itself, promotes protection. Protection problems are often due as much to people's feelings of isolation, frustration, lack of belonging to a structured society and lack of control over their own future as they are to any other form of social problem. This may be particularly evident in overcrowded camp conditions. Refugee participation helps build the values and sense of community that help reduce protection problems.
Protection problems are also often the result of a misunderstanding of the needs and resources of refugee women. Sometimes aid workers feel they cannot regard women as decision-makers since, they believe, those women probably had a very limited role in decision-making in their country of origin. But the reality is often very different from the perception. Prior to flight, women typically have opportunities to express their concerns and needs, sometimes through their husbands, sometimes through traditional support networks. Indeed, women often make the key decisions in daily life. In refugee camps, however, many of these traditional systems of communication and decision-making have broken down. It is essential, then, that initiatives are created to ensure that women's voices are heard and that their perspectives are included in decision-making.
Early assessment of protection issues affecting refugee women is crucial. Refugee women may be particularly vulnerable to protection violations as they cross the border into an asylum country. The sooner aid workers can assess the dangers these women face, the sooner protection problems can be addressed. During refugee emergencies, early decisions about such fundamental matters as camp layout and food distribution-decisions that involve the refugee women, themselves-can help create an environment in which women are well protected and feel secure.
It can be difficult obtaining information about the protection needs of refugee women. Refugee women may not have the authority or willingness to speak for themselves; and their protection problems often involve sensitive issues, such as sexual assault, which they may be reluctant to reveal. It is important, if not essential, to use female staff when trying to elicit information from female refugees.
It is essential, too, to encourage the organisation of women's committees. These not only become sources of information about refugee women's needs and concerns, but they provide welcome fora in which women can discuss their concerns among themselves. In doing so, women not only foster a sense of self-worth and self-reliance, they also help each other through informal counselling. Information about women's needs and concerns can also be gathered from other NGO staff workers, country-of-asylum ministries of health, education and social services, and from direct, on-the-spot observations.
Protecting Refugee Women in Camps and Settlements
Sensitivity to the special protection problems of refugee women and common sense can help prevent protection problems from arising in refugee camps and settlements. Too often refugee women face dangers stemming from poor camp design: communal housing that provides no privacy for women; location of basic services, such as latrines, at unsafe distances from where refugee women are housed; poor lighting. In many refugee situations, strangers are thrown together while no efforts are made to restore traditional communities; unaccompanied women and female-headed households may be intermixed with single men; traditional mechanisms for ensuring order within the community may be broken down. Women may not have equal access to food and other distributed items in camps; they may have to walk great distances alone to obtain water and firewood; they may not have equal access to health care, education and skills training and income-generating activities.
Some very practical steps can be taken to avoid these problems. Among them:
Protecting Dispersed Refugee Women
Refugee women living in urban environments or villages, under the jurisdiction of national laws, may also need protection against rights abuses. When working with dispersed refugee women, ensure they have
If necessary, lobby the government to amend its laws concerning refugees and refugee women, in particular.
About half of the world's refugees are children. In refugee emergencies around the world, children are increasingly becoming not only accidental victims of refugee movements, but deliberate targets.
Because of their dependence, their vulnerability and their developmental needs, all children, including refugee children, require special protection and care to realise their potential. In certain circumstances, adolescent refugees are more vulnerable to some human rights violations than are other age groups.
For example, in times of combat, adolescents are often forcibly recruited. (The Report on the Impact of Armed Conflict on Children, by Graça Machel, offers the most comprehensive analysis of the issue ever compiled.) Younger children are dependent upon their parents or other adults to provide the basic necessities for survival. If these necessities are difficult to obtain, younger children are physically more vulnerable than adolescents or adults to illness and malnutrition. When resources are scarce, young children are the first to die.
Life as a refugee is a life of trauma for children. They can suffer acutely from:
Refugee girls often face even greater protection problems than refugee boys. In some cultural and social contexts, girls are less valued than boys and so may be subject to neglect and abuse. Their participation in education programmes is often cut short; and they are victims of sexual abuse, assault and exploitation in greater numbers than are boys.
Among refugee children, the most vulnerable are those who have been separated from their parents or usual guardian or care giver. Sometimes, they travel with other relatives, family friends or others. When separated children travel alone, they are referred to as unaccompanied minors. But just because a child is "accompanied" does not mean he/she is protected. Special protection measures are required to ensure these children's rights are respected, to keep them safe from physical harm, and to help trace their family. If there are no special efforts to monitor and protect their well-being, the basic needs of separated and unaccompanied minors may go unmet and their rights may be violated.
Basic health care, nutrition and education are generally recognised as necessary for the physical and intellectual development of children. But basic programming for education not only ensures that the right to education is addressed; it also protects against human rights violations, such as child recruitment. Registration at birth not only protects the child when he/she is a refugee, but when he/she returns to the country of origin.
Healthy development also depends on the nurturing and stimulation children receive as they grow, and on the opportunities they have to learn and master new skills. For refugee children, healthy development also requires coping with the multiple traumas of loss, uprooting and, often, even more damaging experiences.
The grounds for special action on behalf of refugee children are well established in both national and international law. Refugee children share certain universal rights with all other people, have additional rights as children, and particular rights as refugees, including entitlement to international protection and the assistance of UNHCR.
The international treaty that sets the most comprehensive standards concerning children is the 1989 Convention on the Rights of the Child (CRC). The CRC is the most widely adopted of any international treaty; almost every country in the world has ratified it. Because its standards are universally recognised, the CRC can be used as a powerful tool for advocacy. When a State is a signatory to the CRC but not to any refugee treaty, the CRC may be used as the primary basis for protecting refugee children. Even if a State has signed the Refugee Convention, the CRC can be used to protect refugee children as children.
While the CRC is not a refugee treaty, refugee children are covered by the provisions of the Convention because all CRC rights are granted to all persons under 18 years of age (under Article 1 of the Convention) without discrimination of any kind (Article 2). That means that all children, including refugee and displaced children, within the jurisdiction of a State party to the CRC, are covered by the CRC's provisions. The CRC requires States parties to take appropriate measures to ensure that a child who is seeking refugee status or is considered a refugee receives appropriate protection and humanitarian assistance (Article 22).
Virtually every aspect of a child's life is covered in the Convention, from health and education to social and political rights. These social welfare rights are not just principles or abstract goals. Because they are rights, and because there is a prohibition against discrimination, whatever benefits a State gives to the children who are its citizens must be given to all children-including those who are refugees or even those who are illegal-on its territory.
Three main themes underpin the CRC: the "best interests" rule, non-discrimination and participation. According to the Convention, States must make "the best interests of the child a primary consideration" (Article 3). In other words, States must analyse how each course of action-whether in budget allocations, law-making or administration of the government-may affect children. The "best interests" rule also applies when a decision is being made about an individual child, such as in cases of abuse or neglect or adoption.
The non-discrimination article of the CRC (Article 2) stipulates that every child within a State's jurisdiction holds all CRC rights regardless of his/her citizenship, immigration status or any other status. Refugee children, asylum seekers and rejected asylum seekers are entitled to all the rights encoded in the CRC.
The theme of participation is also prominent throughout the CRC. Participation can take many forms: social participation in the family and in community life, participation of those with special needs, such as disabled children, and participation in decision-making. When children participate in decision-making, adults can make better choices because they take into consideration the thoughts, feelings and needs of children.
Participation in the context of the CRC goes beyond the right to expression. The CRC states that the views of the child be given due weight in accordance with the age and maturity of the child (Article 12). Participation also meets children's developmental needs: children learn decision-making skills and gain the confidence to use those skills by contributing to the decision-making process.
The CRC defines the word "child" as anyone "below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier" (Article 1). Eighteen is the widely accepted age of legal majority, or the age at which a person assumes the legal rights of adults. In some societies, however, adolescents under the age of 18 perform many of the same roles as adults-in marriage, child rearing, work or combat. But although adolescents may have adult bodies and perform adult roles, they generally have not yet fully developed the emotional maturity and judgment, nor achieved the social status, of adults.
Refugee adolescents, like all adolescents, are still developing their identities and learning essential skills; but they must do so in unfamiliar surroundings, facing an uncertain future, while often threatened with sexual abuse/ exploitation or military recruitment.
Although the CRC gives individual rights to children, it also emphasises children's relationships with others. The CRC recognises that the family is "the fundamental group of society" and places children's rights in the context of parental rights and duties. In its own Policy on Refugee Children (1993), UNHCR declares that "preserving and restoring family unity are of fundamental concern" and asserts that "actions to benefit refugee children should be directed primarily at enabling their primary care givers to fulfil their principal responsibility to meet their children's needs." In other words, the best way to promote the well-being of refugee children is to support their families; and one of the best ways to help families is to help the community.
How old is an "older" refugee? Ages can range from the mid-forties in some African countries to the mid-seventies and above in some Latin American nations. But while ages may be relative, older refugees everywhere share some common problems: they often have reduced access to training and employment opportunities; they often lack information about their rights and the services and facilities available to them; and they risk neglect or abandonment by family members who are unable to provide care.
There is a widely held assumption that older persons, and older refugees, in particular, are passive and dependent. That assumption has been repeatedly proven wrong. Many older persons want to contribute actively to the well-being of their next-of-kin. They become dependent only in the final stages of disability or illness. The tragedy of older people who have been forcibly displaced is not so much that they become dependent on others, but that they have been robbed of the means to provide for others in the manner they would wish.
Invariably, elderly persons are put at risk when families separate. Separation can occur at any stage of the refugee experience:
Everywhere in the world, the elderly have been the population group most affected by social disintegration. Social disintegration is usually caused by economic decline, resulting in drastic reductions of living standards for the poorest people (with refugees among the hardest hit) and the separation and dispersal of families as a result of war, flight and economic or security pressures. This results in a rise in the number of unaccompanied elderly persons in need. In addition, traditional support networks in many developing countries are eroding. Elderly persons in some of these countries no longer command the same authority, respect and support as they used to. As a result, unaccompanied elderly refugees in some developing countries face situations of utmost misery and destitution. The poorest among them may live marginalised lives as beggars and may never even come to the attention of aid agencies or UNHCR. Bad nutrition, appalling living conditions and lack of medical attention makes them susceptible to illness; their life expectancies plummet.
In many refugee camps and collective centres, those who are young and healthy are the first to leave while the more vulnerable members of the community-the sick, the handicapped, single mothers with children and the elderly-stay behind. Often, in the end, a core group of elderly persons is left with nowhere to go and no one to care for them. This can then lead to chronic dependency for those elderly refugees who have not found solutions to their problem and are unable to secure State benefits or family support. In some instances, elderly refugees have become dependent on UNHCR for long periods of time.
The protection problems most associated with elderly refugees are:
Often, elderly refugees are not even aware that UNHCR protection officers, legal support agencies or UNHCR-sponsored local lawyers are present to assist them. Even if they know about such services, the elderly may not be mobile or feel confident enough to seek their help.
Since many already feel isolated and alone, elderly refugees should not be segregated from the rest of the refugee community in programmes and/or living centres of their own. Rather, they should be included in community development projects. Regular contact with children can help elderly refugees-and refugee children-feel part of a larger community and feel less alone and uncared for.
Internally displaced persons are defined as
"...persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognised State border." (from Guiding Principles on Internal Displacement).
In general, internally displaced persons have many of the same protection needs as refugees, but they have not crossed an international border and sought refuge in another country.
UNHCR's Statute does not entrust the organisation with any specific legal obligations towards internally displaced persons. But an article in the Statute states that the High Commissioner for Refugees may "...engage in such activities...as the General Assembly may determine within the limits of the resources placed at [her] disposal" (Article 9). On the basis of this Article, the General Assembly has, on a number of occasions, either authorised the High Commissioner to act on behalf of internally displaced persons, or supported actions already taken by UNHCR on behalf of internally displaced persons. (However, it is not UNHCR's mandate to act on behalf of persons displaced by natural disasters.)
Still, UNHCR can work on behalf of internally displaced persons only if certain specific criteria, set by the UN General Assembly, are met. UNHCR must:
The United Nations Office for the Coordination of Humanitarian Affairs (OCHA) is mandated to coordinate protection and assistance activities for those humanitarian concerns that fall in the gaps of existing UN agency mandates-including internal displacement. OCHA advocates humanitarian issues with political organs and, through the Emergency Relief Coordinator (ERC), also coordinates humanitarian responses to emergencies, including those involving internal displacement.
The legal framework for the protection of internally displaced persons includes human rights law, humanitarian law and national laws. In April 1998, the Commission on Human Rights adopted the Guiding Principles on Internal Displacement, which consolidate many of the most important international protection principles applied to the protection of internally displaced persons. The Guiding Principles reflect and are consistent with human rights and humanitarian law and draw on relevant precepts of refugee law. They comprehensively address all phases of internal displacement and are intended to provide guidance to States, non-State actors, other authorities and inter-governmental and non-governmental organisations on issues of internal displacement.
Protecting internally displaced persons poses complex problems, since those persons remain under the jurisdiction of their country of origin-even though the country in question is unwilling or unable to guarantee the security of its citizens. All too often, relief agencies avoid these difficulties by providing only emergency assistance to displaced persons while neglecting the equally important issue of protection.
But with a concerted, coordinated effort, humanitarian agencies and UNHCR can provide protection to populations that are displaced and threatened with displacement. The very presence of humanitarian organisations can help moderate, if not prevent entirely, human rights abuses, especially if those agencies share information about human rights abuses with other organisations and the media.
In countries in which the structures of government have collapsed and armed conflict is raging, protecting displaced persons becomes even more difficult. Sometimes, the fighting parties may prevent humanitarian organisations from working in conflict zones. Or, if agencies are allowed to operate, their supplies may be plundered to support the war effort or used to sway the civilian population. In these instances, humanitarian agencies often have to negotiate with the warring parties to gain access to displaced populations. Sometimes this is accomplished through "relief corridors"-areas through which humanitarian assistance can be transported in relative safety-and "open relief centres", in which the local population can take refuge when threatened by the fighting. Still, it is often extremely difficult, if not impossible, to provide adequate protection and assistance when parties to the conflict obstruct access to displaced populations.
On some occasions, multinational military forces have been called into areas of armed conflict with the objective of protecting or assisting displaced persons within their country of origin. These forces have been used to protect humanitarian activities and/or to insulate and protect a given geographical area from violence, thereby safeguarding the people who live in or who have returned to that "safe area", "safety zone" or "safe haven".
Unfortunately, many of these "safe areas" have proved to be anything but safe for the people they are supposed to protect. Sometimes they have been the targets of external attack; sometimes, local military forces continue to operate within them; sometimes, the "safe zones" threaten the principle of asylum and the right of freedom of movement if they are controlled by groups who do not allow people to leave.
Several key principles should govern efforts to protect internally displaced persons:
The right to a nationality or citizenship was described by US Supreme Court Justice Earl Warren as "the right to have rights". Nationality or citizenship forms the legal connection between individuals and the State. In addition to providing a person with a sense of belonging and identity, nationality provides an individual with very specific, very real civil and political rights. Without nationality, a person has no guarantee that he or she can obtain employment, go to school, have access to public services, participate in the political process, have access to a judicial system, or obtain a passport. This is what it means to be stateless.
Nationality is usually based on a person's place of birth, his/her parentage or the relationship he/she has established with a country through long-term residence there. These factors provide what is known as a "genuine and effective link" or connection between the individual and the State.
A person may be or become stateless:
In addition, there are strong links between displacement and statelessness:
Statelessness can seriously affect people's security and the realisation of their human rights. It can also be a source of regional instability and can even become a threat to international peace and security.
Statelessness is a problem that States should resolve. Governments must take steps, both formally and in practice, to ensure they do not withdraw or withhold the benefits of citizenship from whole sections of the population who can demonstrate a genuine and effective link with the country and who, without State action, would otherwise be stateless.
States argue that it is their sovereign right to determine, under their own laws, who are and are not their citizens. International law provides for the sovereign right of each State to determine its citizens. Equally, international law calls upon States to act in accordance with international conventions and customs and the principles of law-a basic tenet of which is the avoidance of statelessness-when addressing issues of nationality.
International documents that cite the right to a nationality include:
But the two primary international conventions on Statelessness are the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, both developed under the auspices of the United Nations.
The 1954 Convention relating to the Status of Stateless Persons helps regulate and improve the status of stateless persons and helps ensure that stateless persons enjoy fundamental rights and freedoms without discrimination. The Convention was adopted to cover those stateless persons who were not refugees and who were not, therefore, covered by the 1951 Convention relating to the Status of Refugees. The Convention's provisions are not a substitute for granting nationality to those born or habitually resident in a State's territory; they do not diminish the necessity of acquiring citizenship. Rather, the Convention sets forth the stateless persons' rights and obligations related to their legal status in the country of residence. Rights include access to courts, property rights and religious freedom. Obligations include conforming to the laws and regulations of the country. The Convention also addresses matters that affect the daily lives of people, such as access to employment, education, public relief, labour legislation and social security.
The 1961 Convention on the Reduction of Statelessness defines ways in which persons who would otherwise be stateless can acquire or retain nationality through an established link with a State through birth or descent. The Convention covers such issues as the granting of nationality, the loss or renunciation of nationality, deprivation of nationality and transfer of territory. Retention of nationality, once acquired, is also emphasised.
Unfortunately, relatively few states have acceded to either Convention perhaps because, among other reasons, there was no body appointed to supervise and promote these Conventions until relatively recently. It has become clear, however, that promoting accession to these Conventions is an important way of protecting stateless persons. Accession to the 1954 Convention provides stateless persons with many of the rights necessary to live a stable life. Accession to the 1961 Convention would help resolve many problems which result in statelessness. It would also serve as a reference point for national legislation.
In 1996, the UN General Assembly called on UNHCR to promote accession to the 1954 and 1961 Conventions on Statelessness and provide governments with technical and legal advice on their nationality legislation. The agency works with governments drafting nationality legislation, helps coordinate emerging legal systems, assists and advises in individual and group cases of statelessness, and helps negotiate treaties related to statelessness. For States, assessing the risk of statelessness and finding ways to avoid it is the first step toward solving the problem of statelessness.