“Almost Like Ghosts”: Who is Responsible for Abandoned Refugees?

Salam Sheikh-Khalil

Vol. 38 Associate Editor

On September 30, the Jordanian government finally agreed to a deal with the U.N. to resume humanitarian aid to 75,000 Syrians stranded on the Jordanian-Syrian border.[1] Living in a harsh desert no-man’s land known as “the berm,” some since July 2014, the Syrians had been refused entry to Jordan.[2] Conditions at the “berm” had become severe—water was scarce, aid organizations were denied entry, and the last food delivery (a 30-day supply) had been in early August.[3] A representative from Medicins San Frontiers (MSF, also known as Doctors without Borders) described the Syrians as follows: “They are not really even permitted to exist where they are so they are sort of being insidiously phased out of existence — almost like ghosts. They’re not seen and they are not recognized by any entity.”[4] The new deal will provide these forgotten persons with the basic necessities of life. But there is yet no word on whether they will be permitted entry into Jordan and formally recognized as refugees. And tragically, the Syrians at the “berm” are not the only “abandoned” refugees. Kenya recently announced it would be closing the Dadaab refugee camp (the world’s largest), beginning this process with “voluntary repatriations.”[5] Criticized for not actually being voluntary, the process has also left hundreds of refugees stuck on the Kenyan-Somali border, as Somali officials demand U.N. assistance before opening their doors.[6] Last summer, thousands of Rohingya refugees from Myanmar were stranded at sea for weeks as Southeast Asian countries refused to accept them. Though the governments eventually caved in to international pressure, the refugees remain trapped in detention centers and in legal limbo.[7] There are many similar examples: the victims of Australia’s illegal boat “turnbacks”[8], the refugees detained on Greece’s islands[9], and the bottleneck on the Serbian-Hungarian border.[10] Wanted by no country, refugees in these situations are stuck in a game of international “hot potato.” Whose responsibility are they? The 1951 Convention Relating to the Status of Refugees (and its 1967 Protocol) is the foundation of international refugee law. Like most international legal instruments, it only binds the countries who have signed it.[11] But those signatory countries (numbering 148[12]) are obliged not to send back refugees to “the frontiers of territories where [their lives] or freedom would be threatened”, a concept known as non-refoulement.[13] Nor may they punish refugees for illegally entering their territory to seek asylum.[14] Once those asylum-seekers are processed—and if they are formally granted refugee status—they become entitled to a slew of rights within the host country and effectively become its responsibility.[15] For countries reluctant to accept refugees, the trick has therefore been to stop these people from reaching them in the first place. Hence, Hungary, Austria, and other European states are building border fences.[16] Australia redirects boats to Nauru and Papua New Guinea.[17] And Jordan keeps its gates shut. In response to recent criticism regarding its handling of the Syrian refugees at the “berm,” a Jordanian official insisted that they were “not Jordan’s problem”; rather, they were the world’s responsibility, and Jordan would only take on its fair share.[18] To an extent, he is absolutely right. The 1951 Convention was aimed at facilitating international cooperation so that certain countries would not bear undue burdens.[19] For countries overwhelmed by refugee influxes, their hesitation to accept even more is at least understandable. Increasingly, these countries are demanding international cooperation from wealthy donor states, and—playing on those states’ fears of security or an opening of the refugee “floodgates”[20]—they are receiving it. For instance, Jordan and Lebanon are negotiating millions of euros in aid packages from an all-too-eager E.U.[21] But even a strained economy does not justify a country in slamming the door in desperate people’s faces, leaving them stranded at a border or to return to a place of death and abuse. Barring cases in which a refugee is evaluated and deemed to be a security threat or a criminal, a country cannot turn her—and certainly not an entire group—back to potential danger.[22] That would be a clear violation of non-refoulement under international refugee law, and also of basic humanity. Moreover, even if a refugee has not entered a country’s territory, if that state exercises “extraterritorial control” over an area encompassing would-be refugees, that area is considered to be under its jurisdiction and its non-refoulement obligations apply.[23] In the case of Jordan’s de facto control over the berm area on its border, human rights organizations have argued that this is the case.[24] Its effective migration control outside of its borders imposes international refugee law responsibility on it for those individuals.[25] Thus, in instances of “abandoned refugees,” the state keeping them out—or the states trapping refugees between them—is responsible for at least screening those individuals’ claims to asylum and for not pushing them back to harm. So is anyone doing anything to remedy situations of abandoned refugees? International media attention can help a great deal, as was the case with the Syrian “berm” and the Rohingya boat refugees. On a systematic level, last month’s U.N. Summit for Refugees and Migrants was meant to be a forum for difficult and constructive conversations on burden-sharing and taking ownership. A donor pledging session garnered new funding promises by countries and private companies. But the only tangible outcome of the Summit was the adoption of the “New York Declaration, which vaguely calls for increased international cooperation.”[26] Time will tell if the New York Declaration will actually propel substantive initiatives, ones specifically increasing funding or pressuring countries to fulfill their refugees and humanitarian duties to abandoned refugees. But those initiatives should be motivated both by essential compassion and by the knowledge that actively ignoring the problem will only create more suffering, bitterness, and the seeds of the next refugee crisis.

[1] ECHO Daily Flash: 30 September 2016, European Commission Humanitarian Aid and Civil Protection, http://erccportal.jrc.ec.europa.eu/ECHO-Flash/ECHO-Flash-List/yy/2016/mm/9 (last visited Oct. 3, 2016). [2] Sara Elizabeth Williams, The “Buffer Zone” Plan for 70,000 Stranded Syrian Refugees, IRIN News (Oct. 7, 2016), http://www.irinnews.org/analysis/2016/10/07/%E2%80%9Cbuffer-zone%E2%80%9D-plan-70000-stranded-syrian-refugees. [3] Jomana Karadsheh, Syria’s ‘Ghost Refugees’ Struggle for Survival in No Man’s Land, CNN (Sept. 19, 2016, 10:05 AM), http://www.cnn.com/2016/09/19/middleeast/jordan-syria-ghost-refugees. [4] See id. [5] Elsa Buchanan, Kenya Softens Its Position on Dadaab Refugee Camp Closures and Refugees Repatriation to Somalia, International Business Times (Aug. 22, 2016), http://www.ibtimes.co.uk/ngos-welcome-kenyas-decision-keep-dadaab-refugee-camp-open-1577383. [6] Conor Gaffey, Kenya’s Repatriation of Somali Refugees from Dadaab ‘Not Voluntary:’ Report, Newsweek (Sept. 15, 2016, 3:34 AM), http://www.newsweek.com/kenya-repatriation-somali-refugees-human-rights-dadaab-voluntary-unlawful-498575. [7] James Griffiths, Asia’s Worst Refugee Crisis in Recent Years Could Happen Again, CNN (June 19, 2016, 11:24 AM), http://www.cnn.com/2016/06/19/asia/myanmar-rohingya-refugees. [8] Helen Davidson & Ben Doherty, Australia’s ‘Abusive Refugee Policies’ Criticized in Damning International Report, The Guardian (Jan. 27, 2016, 4:03 AM), https://www.theguardian.com/law/2016/jan/27/australias-abusive-refugee-policies-criticised-in-damning-international-report. [9] Helena Smith, Vulnerable Refugess to be Moved from ‘Squalid’ Camps on Greek Islands, The Guardian (Oct. 3, 2016), https://www.theguardian.com/world/2016/oct/03/vulnerable-refugees-to-be-moved-from-squalid-camps-on-greek-islands. [10] Jelena Obradovic-Wochnik & Marta Stojic Mitrovic, The Plight of Refugees on the Serbia Border, Newsweek (Sept. 20, 2016, 9:39 AM), http://www.newsweek.com/plight-refugees-serbian-border-500585. [11] Asylum & The Rights of Refugees, Int’l Justice Res. Ctr., http://www.ijrcenter.org/refugee-law (last visited Oct.3, 2016). [12] U.N. High Commissioner for Refugees, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, http://www.unhcr.org/3b73b0d63.html. [13] Convention Relating to the Status of Refugees art. 33(1), opened for signature July 28, 1951, 189 U.N.T.S. 139. [14] Holly Yan, Are Countries Obligated to Take in Refugees? In Some Cases, Yes, CNN (Dec. 29, 2015, 5:15 AM), http://www.cnn.com/2015/09/08/world/refugee-obligation. [15] Int’l Justice Res. Ctr., supra note 10. [16] Gabriela Baczynska & Sara Ledwith, How Europe Builds Fences to Keep People Out, Reuters (Apr. 4, 2016, 10:29 AM), http://www.huffingtonpost.com/entry/europe-refugee-fences_us_57026a49e4b083f5c6081121. [17] Davidson & Doherty, supra note 7. [18] Mohammad Ghazal & Khetam Malkawi, Jordan Says Syrians in No-Man’s Land are World’s Responsibility, The Jordan Times (Aug. 6, 2016), http://jordantimes.com/news/local/jordan-says-syrians-no-man%E2%80%99s-land-are-world%E2%80%99s-responsibility. [19] James C. Hathaway, A Global Solution to a Global Refugee Crisis, RefLaw (Mar. 1, 2016), http://www.reflaw.org/a-global-solution-to-a-global-refugee-crisis. [20] Raziye Akkoc & Matthew Holehouse, Turkey Threatens to Open the Gates and Send Refugees to Europe, The Telegraph (Feb. 11, 2016), http://www.telegraph.co.uk/news/worldnews/europe/turkey/12151701/Turkey-threatens-to-open-the-gates-and-send-refugees-to-Europe.html. [21] JT, Germany Approves ‘Historic’ Grants to Kingdom, The Jordan Times (Oct. 4, 2016), http://www.jordantimes.com/news/local/germany-approves-historic%E2%80%99-grants-kingdom; Rollins, Tom, Uncertain Future for Syrians as EU-Lebanon Migration Deal Looms, Al-Monitor (Aug. 24, 2016), http://www.al-monitor.com/pulse/originals/2016/08/lebanon-deterrence-syrian-refugees-european-deal.html. [22] Convention Relating to the Status of Refugees, supra note 13, at art. 33(1). [23] Thomas Gammeltoft-Hansen, International Refugee Law and Refugee Policy: The Case of Deterrence Policies, 27 J. Refugee Stud. 574 (2014). [24] Bethan Staton, Special Report: Syrians Trapped in Desert No Man’s Land, IRIN News (June 9, 2016), https://www.irinnews.org/special-report/2016/06/09/syrians-trapped-desert-no-mans-land. [25] Gammeltoft-Hansen, supra note 23. [26] G.A. Res. 71/150, New York Declaration for Refugees and Migrants (Sept. 13, 2016).