Asylum seekers and refugees ~ Persecution
To understand fully what it is that drives a refugee to flee and seek asylum, it is useful to examine the implications of the term ‘persecution’. In 1996 the Council of the European Union sought to harmonise definition of the term ‘refugee’ with UNHCR, in order that European states could prepare common guidelines for the recognition and admission of persons claiming refugee status. The ‘well-founded fear’ of persecution had to be appreciated in the light of the circumstances of each case. It is for the asylum seeker to submit the evidence needed to assess the strength of a case, with the additional safeguard that once the credibility of the case has been established the asylum seeker should be given the benefit of the doubt unless there are good reasons to the contrary. The term ‘persecution’ is notoriously difficult to pin down in definition. The Convention does not do that, nor does UNHCR at all clearly. Nevertheless, there is broad agreement that persecution relates to actions which deny human dignity in any key way through systemic and sustained denial of basic human rights such as are codified, for example, in the Universal Declaration of Human Rights of 1948. What is important here is the extent to which a person deserves international protection because this is not available in the homeland.
Persecution itself is not legally defined but is generally based on persistent and consistent patterns of abuse, intervention and intolerance. Apart from the Universal Declaration, there have been many attempts to set these rights down as incontrovertible and universal. A moment’s reflection, however, presents what are termed fundamental rights as subject to conditions and cultural factors; indeed, to a mass of enabling or prescriptive factors. The conventional nostrum that human rights are universal, indivisible, interdependent and interrelated has never looked entirely credible since 1951 (and many never thought it so even then). After all, as many relief workers in disaster areas used to say, ‘human rights begin with the availability of breakfast’. Granted that this may be so, one has to start somewhere and one rather basic tabling of rights might be on these lines :
1. Freedom from-arbitrary deprivation of life or liberty or movement, inhumane or degrading treatment.
2. Freedom to-express thoughts and attitudes in public, to practise social and religious participation, to enjoy fair and equal protection in law, and benefit from socioeconomic rights in relation to shelter, jobs, health, education.
Denial of rights and freedoms such as these, where it is deliberate and ongoing, is surely persecution but the term is double-edged. The state has failed to ensure and guarantee protection. Recently, UNHCR even encapsulated this twin relationship in a formula where: Persecution=the risk of individual serious harm+failure of state protection.
As for state failure to protect, this may be because the state responsible for what is held to be harmful action condones it, tolerates it, or generally either refuses adequate protection or is for some reason unable to offer it. No breach of human rights can be ignored, discounted, or explained away on the basis of culture, tradition or religion. (Frequent violations of basic rights occur in Afghanistan, Myanmar, Saudi Arabia and among Palestinian refugees in Israel).
For many years, Amnesty International has chronicled spiralling political violence in very many countries which, when it bears down upon certain groups and particularly upon individuals, constitutes persecution. Colombia, Chechnya, Pakistan, Sudan, Congo, Israel, China, North Korea, Uzbekistan, Georgia and Indonesia are countries where arbitrary detention has furnished a host of ‘prisoners of conscience’ and, for those who escape, a revelation that physical abuse including torture is either a sustained means of dealing with those who dissent on moral grounds, or episodic, so leading to mental breakdown, attempted escape, even suicide. A particular difficulty for a claimant and often for UNHCR investigators is that persecution may well be a form of behaviour whose exact instigators are difficult to trace. Is a government to be held responsible for violations and abuses committed constantly or from time to time by its security forces or by independent agents? Governments, and, indeed, their agents are unlikely to admit guilt and may even act claiming some degree of impunity. How far is it possible to shame, as it were, a government into redressing human rights violations when an escaped refugee provides full and impartial evidence of ill treatment, ‘disappearances’, arrest and detention? Another complex point for a refugee claimant to assert is that ‘well-founded fear’ is in one sense hypothetical. It is quite possible that a fear of persecution need not necessarily exist at the time of an asylum seeker’s leaving his country of origin (Amnesty International’s reports give plenty of substance to this). A well-founded fear, as the term suggests, may be based on the fact that circumstances in country of origin have deteriorated so much since he left that a return would have the gravest of consequences.
Discrimination on its own is not an established case for refugee status, although it is often cited as an instance of deliberate persecution. Where it leads to genocide, as it did in Central Africa and the Balkans, there is an unanswerable case for swift and decisive refugee protection. Persons considering themselves as being treated less fairly than others may have an understandable grievance but they are not necessarily victims of persecution, unless it can be proven that their ethnic or religious or political characteristics are used to set them apart at a disadvantage. A measure of a selective approach to a community for whom a state is responsible will exist in many societies to a greater or lesser degree. It was never easy for UNHCR to mediate at the time of political persecution in the Soviet Union when a ‘dissenter’ might be arrested and charged for waywardness and refused permission to emigrate. Nor could a supposedly neutral United Nations effectively intervene when from other Eastern Bloc states, countries in Central and South America and in Africa there was a steady exit of dissatisfied ‘deviationists’. Their case brought liberal support in most Western countries, which then could support the freedom journey of someone such as Solzhenitsyn, Nureyev or Rostropovitch, but they were never refugees in the care of UNHCR.
Book International Law that use in this reference :
David J, Whittaker, 2006. Asylum seekers and refugees in the contemporary World. Routledge Taylor & Francis Group: London and New York
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Labels: International Law