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Abstract
This article examines the meaning of ‘protection’ as applied by the United Nations High Commissioner for Refugees in its policy in the Middle East, with particular reference to Jordan and Lebanon. It traces the move by human rights and development agencies to adopt a ‘rights-based approach' in their activities, and critiques the adoption of such an approach by the United Nations High Commissioner for Refugees (and non-governmental organisations) in the definition of ‘(international) protection'. The article then proceeds to explore how this interpretation of protection manifests itself in the context of Iraqi and Syrian flight to neighbouring states. It concludes by arguing that the language of protection continues to be confusing and that a rights-based definition not only does not reflect the reality of assistance on the ground, but may, in fact, impede the willingness of states in the region to support refugees in the long term.
Acknowledgements
I am grateful to Susan Kneebone for her helpful comments on this article.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributor
Dallal Stevens is Associate Professor (Reader) and Director of Research at the School of Law, University of Warwick.
Notes
1. Here I employ the international relations understanding of ‘norms’ as ‘a standard for appropriate behavior for actors with a given identity’: Martha Finnemore and Kathryn Sikkink, ‘International Norm Dynamics and Political Change’, International Organization 52, no. 4 (1998): 887; Finnemore and Sikkink describe three stages in a norm's influence: norm emergence, norm cascade and internationalisation, ibid., 896. ‘Norm entrepreneurs’ are those actors who ‘attempt to convince a critical mass of states (norm leaders) to embrace new norms’ during the first stage of a norm's emergence: ibid., 895, 896–9.
2. Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150, (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, 31 January 1967, 606 UNTS 267.
3. The UNHCR is mandated to conduct refugee status determinations under its Statute – the 1950 Statute of the Office of the UNHCR, 14 December 1950, UNGA Res 428(v) (the UNHCR Statute), paras 6A(ii) and 6B.
4. Ibid., [2]: ‘The work of the High Commissioner shall be … humanitarian and social … '.
5. I have discussed this in more detail elsewhere and build on my analysis here, extending the legal and conceptual to the practical. See Dallal Stevens, ‘What Do We Mean By Protection?’, International Journal of Minority and Group Rights 20, no. 1 (2013): 233–62.
6. See below and the UNHCR Statute [8] for the original definition of ‘international protection' to be applied by the UNHCR.
7. For a history of humanitarianism see Michael Barnett, Empire of Humanity – A History of Humanitarianism (Ithaca, NY: Cornell University Press, 2011).
8. Arthur Helton, ‘What is Refugee Protection? A Question Revisited', in Problems of Protection – the UNHCR, Refugees, and Human Rights, ed. Niklaus Steiner, Mark Gibney and Gil Loescher (London: Routledge, 2003), 20.
9. See, for discussion of the meaning of protection in the Refugee Convention, Andreas Zimmerman and Claudia Mahler, ‘Article 1 A, para. 2', in The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol – A Commentary, ed. Andreas Zimmerman (Oxford: Oxford University Press, 2011), 444–9; Susan Kneebone and Maria O'Sullivan, ‘Article 1C’ in ibid., 522–30.
10. Article 1A(2): ‘owing to 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; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it’ (emphasis added).
11. See Antonio Fortín, ‘The Meaning of “Protection” in the Refugee Definition', International Journal of Refugee Law 12, no. 4 (2000): 548.
12. Zimmerman and Mahler, ‘Article 1 A, para. 2’, 445.
13. For example: Article 14 ‘Artistic rights and industrial property’; Article 15 ‘Right of association’. Article 12 on ‘Personal status’, Article 17 on ‘Wage-earning employment’, and Article 26 ‘Freedom of movement’ refer to rights in their text.
14. Helton, ‘What is Refugee Protection?’, 22; see also James Hathaway, The Rights of Refugees under International Law (Cambridge: Cambridge University Press, 2005). One might also add a number of other treaties: inter alia, the 1969 American Convention on Human Rights, the 1981 African Charter on Human and Peoples’ Rights, the 1950 European Convention on Human Rights, the 2000 EU Charter of Fundamental Rights.
15. For example, see Excom Conclusions on Temporary Refuge (No. 19 (XXXI) – 1980); Protection of Asylum-Seekers in Situations of Large-Scale Influx (No. 22 (XXXII) – 1981); and the UNHCR's current view about generalised violence and armed conflict: Volker Türk, UNHCR, ‘Protection Gaps in Europe? Persons Fleeing the Indiscriminate Effects of Generalized Violence’, 18 January 2011, http://www.refworld.org/pdfid/4d37d8402.pdf; Vanessa Holzer, The 1951 Refugee Convention and the Protection of People Fleeing Armed Conflict and Other Situations of Violence (UNHCR, Division of International Protection, September 2012).
16. Excom Conclusions on Protection of Asylum-Seekers in Situations of Large-Scale Influx (No. 22(XXXII) – 1981).
17. Excom Conclusions on International Solidarity and Refugee Protection (No. 52 (XXXIX) – 1988).
18. An interesting issue is whether the UNHCR has over-compromised. For example, the organisation has been criticised for its undue humanitarianism at the expense of its legal mandate: see Guy Goodwin-Gill, ‘Refugee Identity and Protection's Fading Prospect', in Refugee Rights and Realities: International Concepts and Regimes, ed. Frances Nicholson and Patrick Twomey (Cambridge: Cambridge University Press, 1999), Ch. 9; and S. Alex Cunliffe and Michael Pugh, ‘UNHCR as Leader in Humanitarian Assistance: A Triumph of Politics Over Law?’, in ibid., Ch. 11.
19. UNHCR Statute: [2].
20. Gil Loescher, The UNHCR and World Politics (Oxford: Oxford University Press, 2001), Chs 4 and 5; Phil Orchard, A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge: Cambridge University Press, 2014), Ch. 7.
21. Ibid. High Commissioner Felix Schnyder stated in 1961 that ‘in his opinion the “good offices” concept was elastic enough to permit him, when asked, to bring effective aid to nearly any group of refugees provided there was sufficient interest and support on the part of the international community’: Press Release No. Ref. 638, 1 February 1961, cited in Despatch from the Mission in Geneva to the Department of State, No. 311, 6 April 1961,
https://history.state.gov/historicaldocuments/frus1961-63v25/d311.
22. See Laura Barnett, ‘Global Governance and the Evolution of the International Refugee Regime', International Journal of Refugee Law 14, nos 2–3 (2002): 238–62; Volker Türk, ‘The Role of the UNHCR in the Development of International Refugee Law’, in Refugee Rights and Realities: International Concepts and Regimes, ed. Frances Nicholson and Patrick Twomey (Cambridge: Cambridge University Press, 1999), Ch. 8.
23. Jeff Crisp, ‘Mind the Gap! UNHCR, Humanitarian Assistance and the Development Process', New Issues in Refugee Research, Working Paper No. 43 (UNHCR, May 2001), 7.
24. Barnett, ‘Global Governance and the Evolution of the International Refugee Regime', 251.
25. Most notably in relation to the Rwandan refugees, when the UNHCR was accused of being complicit in forced repatriation of innocent Rwandans by the Tanzanian government in 1996, and during the Yugoslavian War (1991–1999), when the UNHCR introduced the concept of ‘preventative protection' during the Bosnian crisis (1992–1995), aimed at limiting the scale of the refugee crisis, but was, instead, accused of stopping the right to seek asylum. The UNHCR has also been accused of departing too far from its original legal mandate for refugees thereby undermining their protection.
26. UNGA, Note on International Protection 1994, A/AC.96/830, 7 September 1994: [32].
27. Though it should be noted that the Memoranda of Understanding between the UNHCR and state in question might apply a definition of ‘refugee' that is based on Article 1A(2) of the Refugee Convention and is therefore much more restrictive. Furthermore, any attempt to resettle refugees to Northern states is likely to require a status determination based on Article 1A(2) before resettlement would be entertained.
28. UNGA, Note on International Protection 1994, [11].
29. Ibid.
30. See text in notes 16 and 17 above.
31. Ibid., [12].
32. Ibid. This emphasis on needs correlates with the move towards an increasing humanitarian role adopted by the UNHCR in the 1990s: see for example, Goodwin-Gill, ‘Refugee Identity and Protection's Fading Prospect'; and, generally, Loescher, The UNHCR and World Politics.
33. UNGA, Note on International Protection 1994, [14].
34. As stated above, international protection ‘involves seeking … to meet the whole range of needs that result from the absence of national protection', ibid., [12].
35. Ibid., [9].
36. Note that broader definitions have been adopted where the protection of the ‘individual' is concerned as opposed to the refugee. See for example the definition of ‘protection' in Office for the Coordination of Humanitarian Affairs (OCHR), Glossary of Humanitarian Terms in relation to the Protection of Civilians in Armed Conflict (New York: OCHR, 2003), 25: ‘A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.’ By contrast, the International Committee of the Red Cross (ICRC) has stated that: ‘The concept of protection encompasses all activities aimed at ensuring full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law (i.e. human rights, humanitarian and refugee law)’ (IASC, Growing the Sheltering Tree – Protecting Rights through Humanitarian Action (2002), 11).
37. UNHCR, Protecting Refugees – A Field Guide for NGOs (September 1999), http://www.refworld.org/docid/3c03682d4.html, 18.
38. Reach Out Refugee Protection Training Project, Handouts on Refugee Protection (2005), http://www.unhcr.org/pages/4a16bb8a6.html, 39, quoting UNHCR, Department of International Protection, Designing Protection Strategies and Measuring Progress: Checklist for UNHCR Staff (2002).
39. 64th Session of the Executive Committee of the High Commissioner's Programme, Agenda Point 5(a), Statement by Volker Türk, Director of International Protection, 3 October 2013, http://www.unhcr.org/524d26059.html, 1–2.
40. 65th Session of the Executive Committee of the High Commissioner's Programme, Agenda Point 5(a), Statement by Volker Türk, Director of International Protection, 3 October 2014, http://www.unhcr.org/542e605d9.html, 2.
41. For example, Shannon Kindornay, James Ron, and Charli Carpenter, ‘Rights-based Approached to Development: Implications for NGOs', Human Rights Quarterly 34, no. 2 (2012): 472–506; Elvira Domínguez Redondo, ‘The Millennium Development Goals and the Human Rights Based Approach: Reflecting on Structural Chasms with the UN System', International Journal of Human Rights 13, no. 1 (2009): 29–43.
42. UNICEF, The State of The World's Children 2004, Annex B, 91; and see The Human Rights Based Approach to Development Cooperation – Towards a Common Understanding Among the UN Agencies (Interagency Workshop on a Human Rights-Based Approach in the Context of UN Reform 3–5 May 2003), available in OHCHR, ‘Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation’,
http://www.ohchr.org/Documents/Publications/FAQen.pdf, Annex II.
43. The Human Rights Based Approach to Development Cooperation Towards a Common Understanding among UN Agencies (“Common Understanding”) (outcome document from an Interagency Workshop on a Human Rights Based Approach in the Context of UN Reform, 3–5 May 2003): 1.
44. UNAIDS, Issue Paper: What Constitutes a Rights-based Approach? Definitions, Methods, and Practices, http://data.unaids.org/Topics/Human-Rights/hrissuepaper_rbadefinitions_en.pdf.
45. Ibid.
46. OHCHR, ‘Frequently Asked Questions on a Human Rights-Based Approach to Development Cooperation’,
47. Ibid.
48. The OHCHR describes the concern of human development as being the: ‘realization by all of basic freedoms, such as having the choice to meet bodily requirements or to escape preventable disease. It also includes enabling opportunities, such as those given by schooling, equality guarantees and a functioning justice system', ibid., 7.
49. UNDP, Human Development Report 2000: Human Rights and Human Development (New York: UNDP, 2000), 19.
50. Ibid., 1.
51. Jakob Kirkemann Boesen and Tomas Martin, Applying a Rights-Based Approach – An Inspirational Guide for Civil Society (The Danish Institute for Human Rights, 2007), 15.
52. The Human Rights Based Approach to Development Cooperation.
53. Kirkemann Boesen and Martin, Applying a Rights-Based Approach, 17.
54. Ibid., 11.
55. Ibid.
56. For example, the Scottish Human Rights Commission and the Australian Human Rights Commission.
57. UNHCR, Reach Out: A Refugee Protection Training Project – Handouts on Refugee Protection (2005), 19, http://www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=4371d8362&query=rights-basedapproach%20refugees.
58. Handbook for the Protection of Internally Displaced Persons (Global Protection Cluster Working Group), http://www.unhcr.org/4c2355229.pdf, 6.
59. Ibid., 11.
60. Statement by Volker Türk, above note 40, 2.
61. The 2013 statement by Türk includes a section on ‘Promoting more Government ownership and capacity in asylum/protection systems’, above note 40, 4–5.
62. Elsewhere, in similar statements, the duty-bearer is described as ‘the State and its agents’.
64. Statement by Volker Türk, above note 40.
65. UNHCR, A Community-Based Approach in UNHCR Operations (January 2008), http://www/efworld.org/pdfif/47da54722.pdf, 14.
66. Ibid., 17.
67. Ibid., 16.
68. Ibid., 17. It is also interesting to note the different accounts of needs-based approach, rights-based approach and the charity approach that are listed in the DIHR's guide, Applying a Rights-Based Approach, 10.
69. Statement by Volker Türk, above note 40, 7.
70. Kirkemann Boesen and Martin, Applying a Rights-Based Approach, 10.
71. Statement by Volker Türk, above note 40, 5.
72. There have been numerous critiques of the human rights movement in the humanitarian and development contexts. See for example, David Kennedy, The Dark Side of Virtue (Princeton, NJ: Princeton University Press, 2005), Ch. 1; Andrea Cornwall and Celestine Nyamu-Musembi, ‘Putting the “Rights-based Approach” to Development into Perspective', Third World Quarterly 25, no. 8 (2004): 1415–37; see also UNAIDS, Issue Paper: What Constitutes a Rights-based Approach?
A more positive commentary is provided by Paul Gready and Jonathan Ensor, eds, Reinventing Development? Translating Rights-based Approaches from Theory into Practice (London: Zed Books, 2005).
74. 2014 Syria Regional Response Plan – Strategic Overview, Foreword, 4, http://www.unhcr.org/syriarrp6/.
75. Ibid., Foreword, 5.
76. Ibid., Strategic Overview, 10.
77. Kirkemann Boesen and Martin, Applying a Rights-Based Approach.
78. 2014 Syria Regional Response Plan, 17.
79. Ibid.
80. Ibid., 10, and see also the table of contents where protection is a sub-heading of ‘Humanitarian needs overview'.
81. Ibid., 7.
82. Ibid.
83. Of particular note is the recent cross-country report by a student team from Boston University School of Law, led by Professor Susan Akram, a renowned refugee lawyer with expertise on the Middle East and Palestinians: Protecting Syrian Refugees: Laws, Policies, and Global Responsibility Sharing, http://www.bu.edu/law/central/jd/programs/clinics/international-human-rights/documents/FINALFullReport.pdf.
84. See for example, Dallal Stevens, ‘Legal Status, Labelling and Protection: The Case of Iraqi “Refugees” in Jordan', International Journal of Refugee Law 25, no. 1 (2013): 1–38.
85. Law No. 24 of 1973 on Residence and Foreigners’ Affairs (as amended) (Jordan); Liban: Loi réglementant l'entrée et le séjour des étrangers au Liban ainsi que leur sortie de ce pays, 10 July 1962 (Lebanon).
86. The issue of the numbers of Palestinians in Jordan is a sensitive one. Some estimates indicate that Palestinians comprise more than half the population of Jordan. Over 1.8 million have been granted Jordanian citizenship and there are more than two million registered Palestinian refugees already in Jordan.
87. Human Rights Watch, ‘Lebanon: Palestinians Barred, Sent to Syria’ (6 May 2014); Amnesty International, Denied Refuge – Palestinians from Syria Seeking Safety in Lebanon (2014). It should also be noted that in October 2014, Lebanon all but closed its border with Syria due to an inability to cope with the influx, and introduced new visa restrictions in January 2015.
88. Though not discussed in this article, Egypt has refused to recognise Palestinians as refugees and has been detaining as well as forcibly returning Palestinians to Syria. See for example, Human Rights Watch, Egypt Don't Force Palestinians Back to Syria (18 January 2013); Patrick Kingsley, ‘A Syrian Palestinian Refugee in Egypt: ‘If I Go Back to Syria I Will Die’, The Guardian (online ed.), 14 January 2014, http://www.theguardian.com/world/2014/jan/14/syrian-palestinian-refugee-egypt-mahmoud.
89. See for further discussion of the situation regarding Iraqis in Jordan, Stevens, ‘Legal Status, Labelling and Protection'.
90. Taylor Luck, ‘For Syrian Refugees Fleeing Violence, Zaatari Camp “Another Hell”’, The Jordan Times, 23 August 2012; Phoebe Greenwood, ‘Rape and Domestic Violence Follow Syrian Women into Refugee Camps’, The Guardian, 25 July 2013.
91. UNHCR/IRD, Syrian Refugees Living Outside Camps in Jordan, 18 March 2014, http://www.unhcr.org/urban/.
92. Issam Abdallah, ‘Lebanon Marks “Devastating” Milestone with Millionth Refugee’, Reuters (online ed.), 3 April 2014,
http://www.reuters.com/article/2014/04/03/us-syria-crisis-refugees-idUSBREA320T520140403.
93. ‘Lebanese Burn Down Syrian Refugee Camp’, Alakhbar English (online ed.), 2 December 2013, http://english.al-akhbar.com/node/17783; and in Turkey: ‘Xenophobia against Syrian Refugees on Rise: Turkish Government, Hurriyet Daily News (online ed.), 25 August 2014, http://www.hurriyetdailynews.com/xenophobia-against-syrian-refugees-on-rise-turkish-government-.aspx?PageID=238&NID=70857&NewsCatID=341.
94. ‘Freezing Conditions, Forgotten Camps – Refugees from Syria in Lebanon's Bekaa Valley', Livewire (online ed.), 20 December 2013,
95. UNHCR, ‘UNHCR Warns of Dramatic Consequences if Funding Gaps for Syrian Refugees Continue’, 3 July 2014,
96. Though this is culturally acceptable in some areas of Syria, very young girls are being forced to marry in Jordan and Lebanon for fear of rape: Mark Anderson, ‘Child Marriage Soars among Syrian Refugees in Jordan, The Guardian (online ed.), 16 July 2014,
http://www.theguardian.com/global-development/2014/jul/16/child-marriage-syria-refugees-jordan; IRIN, ‘Jordan: Early Marriage – A Coping Mechanism for Syrian Refugees?’ (online ed.), 19 July 2012,
http://www.irinnews.org/report/95902/jordan-early-marriage-a-coping-mechanism-for-syrian-refugees.
97. 2014 Syria Regional Response Plan; Jordan Response Plan Overview, 8–9; Lebanon Response Plan Overview, 6–7.
98. IRIN, ‘Jordan: Increased Domestic Violence among Iraqi Refugees – IOM Report' (online ed.), 29 April 2008,
http://www.irinnews.org/report/77972/jordan-increased-domestic-violence-among-iraqi-refugees-iom-report; Karen Leigh, ‘Domestic Violence on the Rise among Syrian Refugees’, The New York Times (online ed.), 29 August 2014, http://kristof.blogs.nytimes.com/2014/08/29/domestic-violence-on-the-rise-among-syrian-refugees/?_r=0.
99. However, the meaning of ‘human dignity' is also a subject for further reflection. See for example, Christopher McCrudden, ed., Understanding Human Dignity (Oxford: Oxford University Press, 2014).
100. See for example, UNHCR, ‘UNHCR Policy on Refugee Protection and Solutions in Urban Areas’ (UNHCR, September 2009), in which rights and needs are combined in a somewhat confusing manner in an attempt to articulate the concept of ‘protection space'; see also Anne Evans Barnes, ‘Realizing Protection Space for Iraqi Refugees: UNHCR in Syria, Jordan and Lebanon’, Research Paper No. 67 (UNHCR, January 2009); Jeff Crisp et al., ‘“Surviving in the City”: A Review of UNHCR's Operation for Iraqi Refugees in Urban Areas of Jordan, Lebanon and Syria' (UNHCR, July 2009). Crisp et al. define protection space as ‘the extent to which there is a conducive environment for the internationally recognized rights of refugees to be respected and upheld', ibid., 4.
101. See for example Marc Dubois, ‘Protection: The New Humanitarian fig-Leaf', http://www.rsc.ox.ac.uk/files/publications/other/dp-protection-fig-leaf-2009.pdf.
102. Ibid.
103. ‘Humanity' is, for me, a call for compassion, humaneness, and empathy to alleviate suffering. For a discussion of humanity, human rights and refugees, see Colin Harvey, ‘Is Humanity Enough? Refugees, Asylum Seekers and the Rights Regime', in Contemporary Issues in Refugee Law, ed. Satvinder Juss and Colin Harvey (Cheltenham: Edward Elgar, 2013), Ch. 3. Harvey discusses ‘the interaction between the international legal regime that continues to place great store by the fact of a legally imagined status, and a globalized practice of human rights that underlines the centrality of inclusive guarantees', 68.