Guillaume Cliche-Rivard
The 1951 Convention Relating to the Status of Refugees defines that the refugee status is temporary. Articles 1C (1) to (6) describe the so-called ‘Cessation Clauses’. When invoked, these provisions cease the international protection of a specific group of refugees: ‘He [the refugee] can no longer, because of circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality’[1]. Since 2002, the Government of Rwanda has repeatedly requested UNHCR to recommend the invocation of the Cessation Clause for Rwandan refugees. This pressure succeeded as UNHCR’s Executive Committee’s 60th Session (2009) declared that it was considering invoking the Clause in 2011.
To counter this measure, the Fahamu Refugee Programme, other NGOs and concerned individuals signed a petition, which argued that such a drastic measure was not appropriate at this point in time. This strategy succeeded in temporarily postponing the invocation of the Cessation Clause to June 2013, while UNHCR has recommended that States ‘commence to progressively implement throughout 2012 all aspects of cessation of refugee status’ [2]. Invoking the Cessation Clause signifies the end to the international protection of certain refugee groups. UNHCR’s recommendation at this time, in the case of Rwanda, raises fundamental political, ethical and juridical concerns. This article examines these issues and questions the whole rationale behind UNHCR’s recommendation to invoke the Cessation Clause and aims to mobilise the international community to request its withdrawal.
Assessing Change in Rwanda
UNHCR’s Comprehensive strategy for Rwanda recalls that both the 1951 Refugee Convention and the OAU Refugee Convention require that cessation of refugee status can only occur when ‘positive changes have taken place in the country of nationality (or country of habitual residence), such that the causes of refugee flight no longer exist. The changes must be of a fundamental and durable character’[3]. This requirement, however, necessitates further elaboration: How have ‘positive’, ‘fundamental’ and ‘durable’ been defined? After what period of time are changes reputed to be durable? How are host States to be convinced that these changes are real?
NGO reports, such as the 2011 country report by Amnesty International, raise important concerns with the political stability of Rwanda and the protection of fundamental human rights under President Kagame’s administration, especially the violation of freedom of expression and the vague charge of ‘genocide ideology’[4]. There are also numerous concerns regarding Kagame government’s claims of free and fair elections and substantive democratic reforms. In light of the evidence that civil and political rights in Rwanda continue to be violated, how can it be argued that fundamental and durable changes have occurred justifying the invocation of the Cessation Clause? As the recommendation expresses that the Cessation is not going to be applied on Rwandans who escaped the country after 1998 or are still seeking asylum, it clearly indicates that fundamental, durable, and positive changes have not occurred in Rwanda.
Additionally, the Guidelines on International Protection state that ‘changes in the refugee’s country of origin affecting only part of the territory should not, in principle, lead to cessation of refugee status’ [5]. According to the Internal Displacement Monitoring Centre (IDMC): Some refugees had been prevented from returning home by the [Forces Democratiques de liberation du Rwanda] FDLR, but they had also been reluctant to return because did not trust the Rwandan Gacaca courts and did not think they would be able to reintegrate. The prospects of returnees and those resettled depend on continuing reconciliation and the equitable distribution and management of scarce land [6].
How could any host State and UNHCR justify the invocation of the Cessation Clause when these changes are not countrywide and understanding that some Rwandan refugees do not trust the country’s administration?
Moreover, Paragraph 135 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees states that the Cessation Clause will be invoked when ‘fundamental changes in the country, which can be assumed to remove the basis of the fear of persecution’ have occurred [7]. Paragraph 115 states that the Cessation Clause can be invoked only if ‘the reasons for a person becoming a refugee have ceased to exist’. Is there a difference between ‘fundamental changes’ in the country and ‘ceased to exist’ conditions? What could be understood as ‘fundamental changes’ and is this requirement less restrictive than the ‘ceased to exist’ conditions? These conflicting terminologies are confusing to both legal advisors and refugees. Even if it were agreed that fundamental changes have occurred in Rwanda, given that Rwandans continue to flee, it would be impossible to argue that the previous conditions leading to these exiles have ‘ceased to exist’.
According to the UNHCR Executive Committee Conclusion 69, before invoking the Cessation Clause ‘States must carefully assess the fundamental character of the changes in the country of nationality or origin’ (emphasis added) [8]. Given that this statement stresses that States are responsible for assessing these ‘fundamental changes’, why is UNHCR appearing to have already made this determination in the case of Rwanda? Moreover, if UNHCR has already determined that the changes in Rwanda are fundamental and durable, under which criteria was this assessment made? What response was given to NGO concerns? Understanding that both the invocation of the Cessation Clause and the assessment of fundamental changes are States’ responsibilities, why does UNHCR seem to be leading the discussion of States’ obligations? What is driving UNHCR’s agenda? How was the decision to recommend the Cessation Clause for Rwandan refugees made? Understanding the current situation presented by Amnesty International and IDMC, why is cessation recommended at this time?
Internal Contradictions
In 2003, UNHCR produced Guidelines on International Protection: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstances” Clauses). The Guidelines state ‘Cessation under Article IC(5) and IC(6) does not require the consent of or a voluntary act by the refugee’ [9]. However, this interpretation in contested in some host States. The First Secretary of the Rwandan High Commission in Uganda, Mr John Ngarambe, at a meeting held in Nakivale Refugee Camp on 28 February 2012, was reported as stating that ‘the Cessation Clause does not allow anyone to forcefully repatriate Rwandan refugees’ [10]. It is unclear when — and to whom — UNHCR or a State intends to ‘operationalise’ the ‘non-requirement for consent. What is UNHCR’s response to this statement of Mr Ngarambe?
In addition, is UNHCR promoting the Cessation Clause globally or just for Africa? It has appointed ‘focal points’ for 21 African States, but remained silent on how the invocation is to affect other continents. Have all African States hosting Rwandan refugees accepted UNHCR’s recommendation for invocation and does UNHCR expect States to apply its guidance on the exemptions procedures guidelines?[11] What if States develop their own guidelines or if they do not decide to invoke the Cessation Clause at all? What would be the consequence of inconsistent decisions? Could refugees then seek asylum in another State that had refused to invoke it?
Other Protection Issues
If the Cessation Clause is invoked by 30 June 2013, as recommended by UNHCR, the process will raise several other protection issues — particularly with regard to legal aid and State assistance. The Comprehensive Strategy states that ‘UNHCR will provide advice and technical or such other support and resources as may be required by States for the implementation of the Cessation Clauses’ [12]. What will this ‘advice and technical or such other support and resources’ constitute? Will UNHCR recruit lawyers for each African host State to assist in interviewing Rwandans as was done for Sudan?[13] There is strong evidence to suggest that most Rwandan refugees currently resist the notion of return. Will there be any legal aid provided so as to ensure they are competently represented before a State or UNHCR adjudication process?
Concerning Rwandans in Europe, a telephone conversation on 17 April 2012 with Michele Cavinato (Policy Officer at UNHCR’s European Bureau in Brussels and focal point for Rwandan Cessation Clause in Europe), assured that Europe is unlikely to follow UNHCR’s recommendation to invoke the Cessation Clause for Rwandan refugees [14]. What impact could such a decision have on UNHCR’s credibility?
While Mr Cavinato noted that the majority of Rwandans have been locally integrated in their host States, the concern was expressed for those currently seeking asylum in Europe. Mr Cavinato was reassuring in his confirmation that Europe will normally not consider Rwanda as a safe country of origin, and hopes that the recommendation will not affect the new refugees or persons who are seeking asylum for facts occurring after 1998.
Unlike Europe, up until now, no provisions for local integration in Africa have materialised, and the cessation recommendation is still pending. Why is UNHCR pursuing cessation before provisions for local integration are official? How can refugees be asked to choose between repatriation and local integration when the terms of ‘local integration’ have not yet been defined?
As this article was being revised, The Daily Guide reported on the situation of Liberian refugees in Ghana who are facing the Cessation Clause on 30 June 2012. Those who do not want to repatriate must report to the Ghanaian immigration office by 30 April to seek local integration. However, provisions for local integration ‘[have] not yet been defined by the Ghana government’ [15]. This situation is not unique to Ghana as the Lusaka Times[16] reported on 26 April 2012 a discussion about Angolans in Zambia also facing cessation in June 2012. What choice are refugees expected to make if the provisions for local integration are inexistent? There is, in fact, no choice [17].
Exemptions
Paragraph 5 of the Guidelines on Exemption Procedures describes two categories of refugees who should be exempted from cessation: ‘(1) refugees who continue to have a well founded fear of persecution, despite general positive changes in the country of origin, and (2) refugees, who due to compelling reasons arising out of previous persecution, cannot be expected to return to their country of origin’ [18]. The Guidelines on Exemption Procedures admit that there is ‘no fixed definition of, or scale on which acts of persecution are so severe that an exception on the basis of ‘compelling reasons’ is warranted’. However, it defines that ‘sufficient severity can be inferred from the act itself, e.g., including but not limited to genocide, torture and other degrading treatment, detention in camps or prisons, acts or threats of severe violence, including mutilation, rape and other forms of sexual assault’ [19]. If the recommendation is maintained, will every person who feared the genocide or acts/threats of severe violence be exempted? Would people who fled Kagame’s military intervention in DRC (including innocent Hutu and civilian Tutsis) be included in the exemptions as defined? Moreover, is a test (singular) necessary to assess the severity of the acts? Whether UNHCR will then provide the necessary medical and physiological expertise remains to be seen, and it is possible that refugees will be responsible for paying these services.
We know of cases of ‘Hutu’ refugees of ‘mixed’ parentage who came to Uganda before 1998 and subsequently returned to Rwanda, only to find living there intolerable and thus returned to Uganda. If they have returned to Uganda since 1998, will they be exempted?
Acquired Rights?
In several discussions at the annual UNHCR/NGO Consultations, George Okoth-Obbo, of UNHCR’s Africa Bureau, has spoken about ‘acquired rights’. The document, UNHCR Note on Suspension of ‘General Cessation’ Declaration in respect of particular persons or groups based on acquired rights to family unity, refers to social and economic rights.
UNHCR Note on Suspension of ‘General Cessation’ Declaration in respect of particular persons or groups based on acquired rights to family unity provides for a suspension of the Cessation Clause ‘to particular persons or group based on right to family unity’. This ‘suspension’ can be declared for someone who ‘cannot be expected to leave the country of asylum, due to a long stay in that country resulting in strong family, social and economic links’.
The suspension is not an exemption to the Cessation Clause and is limited to a maximum of one year. It would allow refugees to continue to benefit from protection ‘until such arrangements are agreed and/or implemented’ [20]. What constitutes these ‘arrangements’? Would one year be enough to establish the right to remain with one’s spouse? Do all States have such provisions for respecting family unity? And, more importantly, what is this document suggesting when it refers to ‘social and economic links’? Is this a reference to rights conferred by the International Covenant for Economical, Social and Cultural Rights?
Many Rwandans in Uganda have acquired land and property, the majority of whom have paid taxes to the Ugandan government over many years. Unknown numbers of Rwandan refugees have received university education in their host countries in Africa. Tutsi Rwandans in Tanzania were naturalised; have any of these Rwandans returned to Rwanda after the genocide, but returned to Tanzania again? Rwandans in Uganda and Tanzania were employed in various sectors of the economy. The majority of these refugees arrived before 1998. Would these elements facilitate local integration and status regularisation?
Some Final Questions
In its document, UNHCR Comprehensive Strategy for Rwandan Refugee Situation, UNHCR admits that the likelihood for local integration remains low. It states that, ‘broadly speaking, governments in countries of asylum have yet to step forward with concrete offers of local integration for Rwandan refugees generally, or to define the categories of refugees who may be eligible for this solution, many being reluctant to commit to local integration options absent clear progress with regard of voluntary repatriation’ [21].
Which States are expected to change their position and allow local integration? What would be Rwandans’ immigration status? What rights would be granted to them? Have any States agreed to naturalise Rwandans? We have noted that neither Ghana nor Zambia have done so yet. Despite this, the cessation clause is still recommended for Rwandans for June 2013. What is the rationale behind such a hurry?
The cessation of refugee status itself is not the fundamental problem raised by this recommendation. The main issue represents the absence of local integration policies and the inexistent choices that Rwandan refugees have to face. A cessation clause accompanied by large provisions for local integration would mean there is a real choice for refugees; it would not force them to repatriate. This article raised an important number of political, ethical and juridical issues generated by UNHCR’s recommendation to invoke Cessation Clause for Rwandan refugees and has demonstrate why it is not time for such decision for Rwanda. The Fahamu Refugee Programme is asking individuals, NGOs, and governments to refuse the recommendation for cessation.
References
[1] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.
[2] UN High Commissioner for Refugees, Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation, including UNHCR’s recommendation on the Applicability of the ‘Ceased Circumstances’ Cessation Clauses, Inter-Office Memorandum No. 093/2011, 31 December 2011, AF/00/DIR/048/11.
[3] Ibid.
[4]Amnesty International: Rwanda Annual Report 2011; ‘Rwanda urged to end clampdown on dissent as Charles Ntakirutinka released’, March 2012; ‘Vague laws used to criminalise criticism of government in Rwanda’, 2010.
[5] UN High Commissioner for Refugees, Guidelines on Exemption Procedures in respect of Cessation Declarations, December 2011.
[6] International Displacement Centre, Rwanda: Ensuring durable solutions for Rwanda’s displaced:a chapter too early closed.
[7] UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, January 1992.
[8] UN High Commissioner for Refugees, Cessation of Status, ExCom Conclusions 69, October 1992.
[9] UN High Commissioner for Refugees, Guidelines on International Protection No. 3: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the ‘Ceased Circumstances’ Clauses), 10 February 2003, HCR/GIP/03/03.
[10] Mutuyimana Manzi, Report of the meeting of the 28 February 2012 held in Nakivale Refugee Camp, unofficial.
[11] Op cit., UN High Commissioner for Refugees, Guidelines on Exemption Procedures.
[12] Op cit., UN High Commissioner for Refugees Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation.
[13] Siddiqui, Y. Reviewing the Application of the Cessation Clause of the 1951 Convention relating to the Status of Refugees in Africa, 2009, Oxford University.
[14] Telephonic communication with Michele Cavinato, Policy Officer of UNHCR’s European Bureau and focal point for Rwanda Cessation Clause in Europe, 17 April 2012.
[15] The Daily Guide, ‘The Dilemma Liberian Refugees’, 28 April 2012.
[16] Lusaka Times, ‘Angolan Refugees Asked to Leave Zambia’, 26 April 2012.
[17] See also Lusaka Times, ‘Zambia has no intentions of integrating refugees’,12 July 2011.
[18] Op cit., UN High Commissioner for Refugees, Guidelines on Exemption Procedures.
[19] Ibid.
[20] UN High Commissioner for Refugees, Note on Suspension of ‘General Cessation’ Declarations in respect of particular persons or groups based on acquired rights to family unity, December 2011.
[21] Op cit., UN High Commissioner for Refugees Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation, including UNHCR’s recommendations on the Applicability of the ‘Ceased Circumstances’ Cessation Clauses.
The author wishes to acknowledge the helpful comments on this article by Dr Alice Edwards, Dr James Hathaway, Martin Jones, Dr Galya Ruffer, and Manzi Mutuyimana, and states that any errors in interpretation are his own.
Courtesy – FAHAMU Refugee Legal Aid Newsletter –
http://frlan.tumblr.com/post/22196505143/may-2012
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