After the end of the Cold War, the international community had to build an entirely new agenda for human rights, democracy and development in the world’s most troubled regions (Forsythe, 2006: 210-215; Normand & Zaidi, 2008: 316-323).
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In Africa, conflicts in the Congo, Rwanda and Somalia left the region tormented by an ongoing refugee crisis. The lack of stable political institutions and representative democracy in these countries necessitated the revision of international legal standards, in order to cope with the refugee crisis and to provide security and shelter.
With over 3 million recognized refugees at present, Africa is considered by the UNHCR the biggest challenge, absorbing the largest proportion of the budget and humanitarian programmes (Zolberg et. al, 1989). This paper will focus on the treatment of Somali refugees in two of the neighbouring countries – Kenya and Ethiopia, which reportedly host the largest proportion of the refugees at present (UNHCR, 2011a;b;c). The reason why Somali refugees were chosen as the subject of this paper is because this is one of the longest ongoing political and humanitarian crises, and its implications upon regional politics and the local populations are perpetual. It also demonstrates the discrepancies in international law in dealing with displacement and human right violations of the Somali refugees. The paper will assess the treatment of refugees in these two countries. Based on this assessment, the author will make recommendations for the improvement of the treatment of the refugees.
1.2 Research question
The purpose of this essay is to explore the treatment of Somali refugees in Kenya and Ethiopia. Their treatment will be looked at through the prism of basic human rights conventions and will ideally seek to provide a broader understanding on the status of the refugees in a global era. It will highlight the main challenges, which refugees from Somalia face on the territories of Kenya and Ethiopia and will explain how these challenges are posed by inconsistencies in international law.
In order to do this, the author will first critically approach the definition of the term “refugee”. Next, the author will attempt to trace whether basic provisions stipulated by the 1951 Convention on the Status of the Refugees have been met by the authorities in Ethiopia and Kenya. Before this, a brief historical overview of the main events leading to the refugee crisis will be provided.
The Somali refugee crisis – the prelude
In Somalia, the transition to political independence has been scarred by factionalism and division. In the early 1990s, the clan based opposition groups ousted the military government, which led to the outbreak of decade long civil war, throughout which various factions were competing for power (Waldron & Hasci, 1994). In 2004, the Transitional Federal Government (TFG) was formed. Its opposing faction was the Islamic Courts Union (ICU), which soon lost power to the TFG in the south. Subsequently, the TFG split into radical groups, Al-Shabaab being one of them. Since then, the Al-Shabaab has been fighting the TFG over political and economic supremacy (UNHCR, 2011c).
The civil war resulted in the displacement of millions of Somali people, turning them into the third largest refugee group in the world, after the Iraq and Afghanistan refugees (UNHCR, 2011c). Apart from Western countries such as UK and Italy, Somali refugees travel to neighbouring countries, mostly Ethiopia and Kenya. As of July 2011, on the territory of Ethiopia there were 160,000 Somali refugees, residing in six large camps in the eastern and south-eastern part of the country. In 2011 the number of new arrivals increased dramatically with up to 23,000 people arriving per month. In Kenya, currently there are around 280,000 Somali refugees, and as of July 2011, their number has dramatically increased because of the draught in East Africa (UNHCR, 2011b).
3. Problems of definition
The purposes if this essay would not be fulfilled, if the author does not provide a definition of the term “refugee”.
According to Article 1 (2) of the 1951 UNHCR Convention on the Status of the Refugees, the term “refugee” shall apply to any person who: “[…]owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country […]” (UNHCR, 1951). The same definition can be found in the OAU 1969 Convention on the Refugees in Africa (Article 1).
The main criticism, which this definition obviously provokes, is the lack of prescriptions for the state of origin, and the obligations of the host countries. The definition exhausts the basic connotation of a refugee, which has not changed much to this day, but does not define the responsibilities and actions, which the host authorities are obliged to take under international law. The definition explains the confines of the country of persecution, but not the terms of protection of refugees in foreign territories. This is not a technical flaw of the definition, as embedded in the convention, but a general weakness of international law, when it comes to the treatment of refugees in host countries (Marfleet, 2006; 9-20; Gibney, 2005:6-13).
This raises several issues related to legitimacy, and they are not, as proposed by Zolberg et.al (1989) related to the debate who is a refugee under international law. These controversies are related to the lack of legally binding prescriptions for the host countries, sheltering refugees. Despite the fact that there has been ongoing development of the understanding of the term persecution since 1951, it remains unclear how persecution of refugees can be prevented in the host territories. Therefore, it is important to trace the implications of this inconsistency in terms of policy and treatment of the Somali refuges in Ethiopia and Kenya and identify problems, which might arise from the lack of a clear definition of persecution and the responsibilities of the host countries. The following sections will demonstrate the practical implications of this gap in international law in relation to the treatment of Somali refugees in Kenya and Ethiopia.
4. Treatment of Somali refugees in Kenya
According to the UNHCR, more than 600, 000 Somali refugees are now residing in neighbouring countries (2011). At present, Kenya is the country, where largest proportions of the Somali refugees are seeking shelter. Currently, it is hosting around 280 000 refugees, residing in three large camps, located in the North Eastern Daabab camps (UNHCR, 2011b).
Although it is clear that Kenya has been unable to cope with the intense wave of Somali immigrants without the assistance of the international community, in 2010, Amnesty International has reported grieve violations of rights of the refuges on behalf of the Kenyan authorities (Amnesty International Report AFR 32/015, 2010). The report says that thousands of refugees were forcibly returned to Somalia, and asylum was not provided to the individuals which claimed for it. The report also reveals the implications of the fact that a large proportion of the refugees were not screened because of the closure of the immigration centre at the Kenya-Somali border. It was closed because Kenyan authorities were concerned that ongoing violence in Somalia and persistent acts of terrorism could spread on their own territory (Amnesty International Report AFR 32/015, 2010). The other conclusions of Amnesty International are related to police harassment in the camps, and violation of the principle of non-refoulement (Amnesty International Report AFR 32/015, 2010). The principle of non-refoulement, which is embedded in the UNHCR Convention for the Refugees prohibits “the expulsion, extradition, deportation, return or otherwise removal of any person in any manner whatsoever to a country or territory where he or she would face a real risk of persecution or serious harm” (UNHCR Convention on the Status of the Refugees, 1951).
The report reveals that when the Kenyan authorities closed the border, around 4000 Somalis were trapped alongside and 360 were refouled. In 2009, 93 Somali asylum seekers were forcibly refouled back to Somalia. It is now clear that by choosing to close its border, Kenya has violated the principle of non-refoulement of the UN and the 1967 Protocol, as well as its own 2006 Refugee Act. Further implications of the closure of the transit border centre is that the newly arrived refugees are no longer screened for health purposes, and some of them have suffered exhaustion and malnutrition on their way to the camps (which are located about 80 km from the border).
Another type of violations is related to the security and well being of the refugees, often threatened by the Kenyan security forces. As of December 2010, issues related to limited access to water, shelter, sanitation and other essential services due to overcrowding have been reported. In addition, the refugees are not allowed outside the camps unless in exceptional circumstances such as relocation to third countries (Amnesty International, 2010). Other violations include sexual harassment, forced marriages in the camps, as well as the involuntary recruitment of refugees for military service. Based on this report, it is not difficult to determine that Kenyan authorities have allowed the unlawful treatment of Somali refugees by local militias, and have committed violations related to their treatment on the territory of the host country.
In sum, a closer look at the treatment of the Somali refugees in Kenya reveals that there have been violations of key provisions, related to the status of the refugees. From a legal perspective, this is due to the fact that there are no legally binding provisions, which define the responsibilities of the host countries, or penalties in case of violations. By no legally binding it is meant that the existing rules and regulations remain prescriptive of how the hosting countries need to treat refugees, seeking shelter on their territory. As stated earlier before, there is not a clear definition of persecution and the counter-measures, which it entails, therefore the actions of the Kenyan authorities remain unaddressed under international law. As the next section will reveal, the situation in Ethiopia is quite similar.
5. Treatment of Somali refugees in Ethiopia
As mentioned earlier in the essay, Ethiopia is the country, where the second highest proportion of Somali refugees resides. An estimate of 280, 000 refugees have fled to Ethiopia since the beginning of the conflict in Somalia more than two decades ago. They have been accommodated in eight camps along the Ethio-Somali border (UNHCR, 2011). Similarly to the case in Kenya, the refugees are denied access to education and work opportunities, as well as free movement and access to healthcare. According to Markos (2011), the main reasons for the unlawful treatment of the Somali refugees in Ethiopia generate from the gap between national legislation and international legal standards, related to the status of the refugees. Despite the fact that Ethiopia has ratified key international refugee instruments such as the 1951 Convention, the 1967 Protocol and the 1969 OAU Convention, the treatment of the Somali refugees on the territory of the country is a signifier that constraints to the implementation of their provision on national level are ostensible.
Understandably, the Ethiopian authorities are trying to protect their scarce national resources and infrastructure, which explains why their tolerance to the refugee influx is not high (Waldron & Hasci, 1994). From the perspective of the international community however, this does not ameliorate the fact that many Somalis face grieve human rights violations in the camps on the territory of Ethiopia. Some of the key provisions of the 1951 Convention have been violated such as the right of freedom, the right to choose their place of residence, the right to move freely within the country, as well as the access to elementary and religious education.
In sum, although the situation with the treatment of the refugees in Ethiopia is not so grieve as the one in Kenya, Somali refugees in Ethiopia still face deprivations and human right violations. This is due to the scarce resources in the country, as well as the gaps in national legislation, which do not allow the direct implementation of key provisions of international law, related to the status of the refugees.
Based on the above observations on the treatment of the refugees in these two countries, a brief set of recommendations will be provided in the following section.
This section will provide a brief set of recommendations for policy reform and action for the improvement of the treatment of Somali refugees in Kenya and Ethiopia. The recommendations have been divided in four groups – general recommendations, recommendations for Kenya, recommendations for Ethiopia, and recommendations for the international community.
6.1 General recommendations
The previous sections have shown that without clear definition on persecution and the responsibilities of the host countries, it would be impossible to provide shield of refugees and displaced people under international law. Therefore, a revision of the legal provisions related with the refugees is necessary. In the near future however, a revision of existing refugee legislation might be a cumbersome and formidable process, because it would involve redrafting existing legislation, its ratification and its incorporation into host countries’ judiciary system. In addition, it is not clear how this would help overcome other challenges, related to refugee protection, such as the ones mentioned by Landgren (1998) – agents of persecution; the notion of political offence in extradition treaties; the criminalization of illegal departure; and the precipitation of repatriation. Despite the fact that the principle of non-refoulment remains one of the strongest refugee rights, and despite the presence of “minimum rights clauses” for the treatment of refugees in the 1951 Convention, their enforcement in countries, where poverty and political instability are persistent, remains a challenge. As a result, existing legislation needs to be revised in order to meet the new security threats, raised by globalization and the incapacity of many states to protect their own civilian populations. At present, the definition of the term refugee is problematic because it does not provide a clear direction of what responsibilities the host countries need to have. Therefore a revision of the definition, as well as existing legislation is necessary. As a result, the responsibilities of the host countries-signatories to the refugee instruments should be legally binding.
6.2 Recommendations for Kenya
The most important recommendation for the Kenyan authority is to open the border control camp which would facilitate the registration of the refugees, and the access of the newly arrived to healthcare, food and clean water. At present Kenyan authorities are concerned that if the border is open, this might provide access to Kenya of the militant members of Al-Shabaab, which is a major security threat for the civilian population (Daily Mail, 2011). However, a stronger border control and the allocation of additional police and military units, which would perform thorough checks on those wishing to cross the border, is a possible solution.
The most important recommendation for the Kenyan government in order to improve the situation with the refugees is to ensure that the security forces do not violate the principle of non-refoulement. This can take place if more international observers are allowed in the camps and on the Somali-Kenyan border.
6.3 Recommendations for Ethiopia
In Ethiopia, the revision of national legislation is crucial for the implementation of the international provisions, related with the rights of the refugees. In a country with feeble political and judiciary institutions, the process will be cumbersome, but legal revision is necessary in order to provide refugees and asylum-seekers protection.
6.4 Recommendations for the international community
As far as the actions of the international organisations, regional organisations and the donor countries are concerned, they need to be related with raising awareness of the situation, and stronger measures related to monitoring and accountability of the actions of the security forces on the territory of both countries. This means that institutions such as the UNHCR, and regional organisations such as OAU and ACHPR (African Commission on Human and Peoples’ Rights) need to play a more proactive role in liaising with local governments and observing the situation in countries like Kenya and Ethiopia. This can be implemented using two channels – a liaison with government agencies, and regular reports, provided by non-governmental organizations on the situation within the camps.
It is important that efforts for the protection of the refugees are made on all four of the above levels. Only the vertical harmonization of actions between national authorities and the international community, wrapped in an appropriate legal framework, can eventually lead to the creation of a safer environment for the Somali refugees, and the determination of their international status in the global era.
This paper has shown that despite the efforts of the international community, there are problems, related with the treatment of Somali refugees in Kenya and Ethiopia. The lack of commitment of the host countries, and the lack of coordination between national governments and international organisations have perpetuated the crisis. In order to fulfil its commitments for democratization and political stability on the African continent, the international community needs to revise key legal provisions relating to the status of the refugees, and to ensure that there are no constraints for their implementation on national level. In addition, the international status of the refugees needs to be determined, in order to give them legitimacy and protection in a global world.
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