Vol. 38 Associate Editor
In May 2016, the Kenyan government announced that it would start closing the world’s largest refugee camp – Dadaab camp. At the same time, the government determined, with the assistance of UNHCR, to speed up the expatriation process for Somali refugees who currently reside in the camp.This puts Kenyan government in clear violation of international law.
The 1951 Refugee Convention, to which Kenya is a signatory, provides “[n]o 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 threated on account of his race, religion, nationality, membership of a particular social group or political opinion.” Such non-refoulement principle has been widely embraced by different states. Moreover, the African Union Convention Governing Specific Aspects of Refugee Problems in Africa – a Convention Kenya has ratified – grants refugees a broader protection and forbids a Contracting State to reject “at the frontier,” which usually entails the action of closing the border completely to refugees – an action that would consequently “compel him to remain in a territory where his life … would be threatened.”
There are two occasions in which States are allowed to “repatriate” refugees. The first one is embraced by UNHCR Executive Committee in various occasions – voluntary repatriation. The second is security-based ground set out by Article 33(2) of 1951 Refugee Convention This section provides that “the benefit of” non-refoulement is not to “be claimed by a refugee whom there are reasonable grounds for regarding as a danger to security of the country in which he is … a danger to the community of that country.”
It is, therefore, important to examine whether the closing of Dadaab Camp constitutes as repatriation; and if so, whether such repatriation is voluntary or is justified by Refugee Convention Article 33(2).
Under international refugee law regime, voluntary repatriation encompasses the notion that refugees shall have all the information they need to make an informed and free decision on whether to return to their countries of origin. Such information includes country of origin information.
The Kenyan government and UNHCR keep reiterating that the repatriation is voluntary. As provided by UNHCR, the principle of “voluntariness” must be viewed in relation to both conditions in the country of origin (calling for an informed decision) and the situation in the country of asylum (permitting a free choice). Kenyan government’s closing of Camp is in violation of both conditions. According to a report issued by Human Rights Watch, a lot of Somalis residing in the camp were not given any information of Somalia, without which there is no way refugees are making an informed decision on whether to return or not. At the same time, the threat from Kenyan government unfortunately leaves refugees no choice but to return to Somalia – many decide to take UNHCR’s 400 USD in cash as return assistance package and leave. They do so only because they are afraid that if they did not, they would be collectively expelled to Somalia with nothing in November – the proposed deadline of voluntary return following the closing of the Camp.
In the same Handbook, UNHCR establishes the as a general rule, “UNHCR should be convinced that the positive pull-factors in the country of origin are an overriding element in the refugees’ decision to return rather than possible push-factors in the host country or negative pull-factors, such as threats to property, in the home country.” In understanding the push-factor, it is helpful to picture it as a battle between giving and receiving state: the push-factor is one that propels the giving state to push the refugees out of the country and the pull-factor can be understood as one that the deems the receiving state an attractive destination for refugees.
In this case, the one major push-factor is that Kenya believes that the Camp has become a hub for Islamic terrorism – Al-Shabab, which is at war with Somali government. The government formally announced the closing of Dadaab reaffirmed such standing, noting that “[because of] national security interests, [the government] has decided that hosting of refugees has to come to an end.” This is clearly a push-factor. At the other end of the spectrum, UNHCR has issued reports detailing the situation in Somalia, where most refugees living in Dadaab are from. According to this report, “civilians continue to be severely affected by the conflict, with reports of civilians being killed and injured in conflict-related violence, widespread sexual and gender-based violence against women and children, forced recruitment of children, and large-scale displacement.” This pull-factor undoubtedly makes Somalia not safe, let alone ideal, for refugees to return to.
Therefore, it is clear that although Kenya government and UNHCR have been arguing that all the repatriations are voluntary. However, it is hard to accept such argument because there is a substantial lack of information on Somalia’s conditions. Meanwhile, the individual’s free choice to decide whether to return is not respected.
The 1951 Refugee Convention itself does not justify collective repatriation, either, even in light of terrorism. As mentioned before, the non-refoulement principle can only be violated pursuant to Article 33(2). However, the language of the Convention – “a refugee” – reaffirms the idea that collective expulsion should never be the resorted to. Interpreted in a good faith, the drafters’ intention was clearly to expel individuals who would pose threat to national security. Dadaab Camp is home to at least 263,000 Somali refugees. It would clearly violate the protective purpose and goal of 1951 Refugee Convention if all the refugees were expelled or returned to Somalia without individual assessment. Nowhere in Convention did the drafters show the intention of the exercise of collective expulsion being allowed.
 President Kenyatta tells UN why Dadaab must be shut, Cap. News (May 20, 2016), http://www.capitalfm.co.ke/news/2016/05/president-kenyatta-tells-un-why-dadaab-must-be-shut/
 Convention and Protocol Relating to the Status of Refugees, 189 U.N.T.S 137 (1951).
 African Union, OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1974), http://www.unhcr.org/en-us/about-us/background/45dc1a682/oau-convention-governing-specific-aspects-refugee-problems-africa-adopted.html.
 See generally, UNHCR Handbook, Voluntary Repatriation: International Protection (1996), http://www.unhcr.org/publ/PUBL/3bfe68d32.pdf.
 See Convention, supra note 2, Art. 33.
 Human Rights Watch, Kenya: Involuntary Refugee Returns to Somalia (Sept. 14, 2016), https://www.hrw.org/news/2016/09/14/kenya-involuntary-refugee-returns-somalia.
 See UNHCR Handbook, supra note 4.
 See Human Rights Watch report, supra note 6.
 See id.
 See Handbook, supra note 4 at 10-11.
 Holly Yan, What is Al-Shabaab, and What Does It Want? CNN (Apr. 2, 2015), http://www.cnn.com/2015/04/02/world/africa/al-shabaab-explainer/
 Kenya: Government Statement on Refugees and Closure of Refugee Camps (June 5, 2016), https://minbane.wordpress.com/2016/05/06/httpwp-mep1xtjg-2ed/
 UNHCR, UNHCR Position on Returns to Southern and Central Somalia (2015), http://www.refworld.org/pdfid/573de9fe4.pdf