A REJOINDER

By Guglielmo Verdirame and Jason Pobjoy

Michael Kagan’s recent post “Why Do We Still Have Refugee Camps?” provides a characteristically thoughtful overview of some of the challenges facing refugees in urban environments. Unsurprisingly we agree with the vast majority of Kagan’s arguments. In particular we agree that the 2009 Urban Policy is a welcome shift away from the refugee bias inherent in the incumbent 1997 Urban Policy. Contrary to what has been suggested, in our article “The End of Refugee Camps” we do not ask UNHCR to apologise for the legacy of the 1997 Urban Policy, although, like Kagan, we consider that it would have been more honest for the organization to acknowledge that the 1997 Urban Policy was wrong in principle, rather than just ill-suited to our times.

We also agree with Kagan that evaluating UNHCR practice in implementing its revised policy is difficult. In contrast to some of the other critiques cited in Kagan’s piece, we largely avoided these issues on the basis that we considered that, when we wrote the piece, such evaluation was premature; however, like Kagan, we emphasized the critical link between implementation and accountability.

Our issue with the 2009 Urban Policy is not its implementation (or, according to some, lack thereof), but rather aspects of the Policy itself. Although we consider that the Policy contains a number of positive features—indeed, the majority of our article is focused on outlining those features—it is clear that it also suffers from some critical flaws. Perhaps most significantly, in several respects the policy does not accord with international law.

We have been criticized for failing to take into account the behind-the-scenes negotiation and diplomacy involved in producing the 2009 Urban Policy, particularly in light of the entrenched refugee camp bias inherent in the 1997 document. Jeff Crisp is right to draw attention to the work of the Policy Development and Evaluation Unit which he headed until recently: the Syrian report to which he refers is one of a number of important studies written or commissioned by that Unit which have advanced critical thinking inside UNHCR (including on the question of encampment) and more generally contributed to the field of refugee studies. But we do not agree with the proposition that our failure to delve into the background of the 2009 Policy makes our criticism simplistic, for —as should have been clear — our criticisms are based on a face-value assessment of legality.

Our specific concerns with the 2009 Urban Policy are set out in detail in our article, which we would invite readers to look at. The primary concern is that the refugee camp bias is still evident in the revised Policy. For example, under the Policy financial assistance will only be provided to refugees in urban environments “if they have a demonstrable need to be in that location”.

A related concern is that the 2009 Urban Policy is inconsistent with the principle of freedom of movement, enshrined in Art. 26 of the Refugee Convention and Art. 12(1) of the Civil and Political Covenant. In particular, the policy’s analysis of the right to freedom of movement is infected with the idea that the exercise of this right should be assessed against whether an applicant has “good reasons” to be in an urban environment, or whether this would cause “difficulties” for state authorities. There is no place in international human rights law for the fungible notion that the exercise of a fundamental human right requires “good reasons”. Restrictions on freedom of movement are, in some cases, permissible — so why not adopt a policy that admits such restrictions by reference to existing legal criteria rather than to novel and looser standards?

To move the debate forward, we would draw attention to two important developments. The first one is the landmark decision of the High Court of Kenya upholding the human rights of out-of-camp refugees. UNHCR’s amicus curiae submission in that case advances an analysis of freedom of movement that is far closer to our position than to the 2009 Policy. The judgment of the Kenyan court also vindicates the argument, made among others by Harrell-Bond and Verdirame in Rights in Exile, that the involvement of local courts should be encouraged.

The second development concerns Jordan. As the report cited by Jeff Crisp confirms, the Jordanian government has changed policy on camps: having resisted the introduction of camps during the Iraqi refugee crisis, they are now building them for the Syrians. Today, the Za’atari refugee camp, near the Syrian border, is the world’s second largest refugee camp, behind Dadaab in Kenya. A recent report of the Brookings Institution has referred to Za’atari as “an awful place, with serious security problems”. Plans are presently underway to build another camp in Jordan capable of housing a further 130,000 Syrian refugees.

What was the impetus behind the Jordanian government’s drastic change in policy? A recent article appearing in the Time Magazine (27 July 2013) cites a senior UNHCR official who appears to suggest that the push for the shift in policy (i.e. a push for the creation of refugee camps) may have come from UNHCR itself. The senior official states that “Jordan was initially opposed to a camp” on the basis that Syrians were their “brothers and sisters” and were therefore allowed to “go directly into major cities”. In response to critics of the idea of building a refugee camp, the UNHCR official’s response was “whatever you want to say, we have to do it”. Although by no means seeking to downplay the complexities involved in dealing with the mass-influx of refugees from Syria, if the premise of this article is correct the UNHCR ought to be called upon to justify its decision to push the Jordanian government to revert to camp-based protection, rather than to support the initial, arguably more humanitarian views of the host government.

 

This contribution was dated 28/08/2013

11 thoughts on “A REJOINDER

  1. Michael Kagan

    I am very happy that Guglielmo Verdirame and Jason Pobjoy highlight UNHCR’s brief in the Kenyan case, which was brought to my attention after I posted my article. In addition to clarifying UNHCR’s role in the case (which has been the subject of some criticism), Verdirame and Pobjoy are right to see this as part of UNHCR’s continuing evolution on urban refugee policy. They are also quite right about the regrettable ways in which the 2009 policy hedges on what should be a full embrace of refugee freedom of movement.

    I do not know the facts of the Jordanian situation well enough to speak to this. But it does bring to mind a broader question that may be something of an elephant in the room: Do refugee camps ever have any legitimate use at all?

    It seems to me that the answer may be, sometimes, yes, but not camps as we have often known them. If we define a refugee camps and simply a place where refugees are housed, especially in an emergency situation, then it is hard to categorically condemn them. It seems intuitive that when a country experiences a genuine mass influx, the exigencies of housing and nutrition might naturally lead to the development of a cluster of emergency shelters and attendant infrastructure in a particular place. I know from my own country’s experience after Hurricane Katrina that “camps” of this type are likely to develop even when the migrants’ legal status and right to free movement is clear. If half a million extra people suddenly arrived in Chicago, I am not sure there would be sufficient housing stock for them, and so we might have to build structures fast. Some people might call this a camp, and this is not entirely different from what is doing on for some localities receiving Syrian refugees.

    It seems to me that there are two main problems with refugee encampment. The first – the one that we have been discussing most directly – is when the refugees are forced to stay in the camp by restrictions on their freedom of movement. This was and is the issue in Kenya. When this is the policy, it’s not encampment. It’s not even warehousing. We ought to call it by the normal name for the confinement of a person to a particular place: Refugee prison.

    The second problem is a bit less vivid, but incredibly important for UNHCR. How can an organization move from an emergency mindset — how can we help refugees survive their first day, their first month, their first winter — to the long term, indefinite reality of many refugee situations? Something that might be an acceptable solution during an emergency where mere survival is at risk may not acceptable if it remains unchanged after a year or two years.

    Reply
  2. Andrew Harper, UNHCR's Representative to the Hashemite Kingdom of Jordan

    UNHCR was tasked by the Government of Jordan to establish a refugee camp. The impetus of the Jordanian’s decision to open the camp was simply that the northern towns and villages of Jordan had become inundated with Syrian refugees and they needed to alleviate the pressure on what had been incredibly generous host communities. This was a Jordanian Govenment decision which was relayed to UNHCR in mid July 2012. To its credit Jordan had held out as long as it could before it decided to take the decision to open a camp. This decision was made only after lengthy discussions with northern tribal and government leaders who expressed growing concern about their respective communities ability to continue to absorb additional refugees. While the government did make the decision to open Zaatri it is worth noting that of the 340,000 Syrians who have been transferred to the camp, it “only” hosts some 120,000, with the vast majority having left the camp and now being accommodated in urban centres throughout the Kingdom. It is not correct that UNHCR pushed the government. What is correct is that UNHCR appreciated the challenges that the government and respective communities faced in absorbing such a massive refugee population and that there was no alternative but to establish a camp.

    Reply
    1. Emily Arnold-Fernandez, Executive Director, Asylum Access

      Andrew, I appreciate your comment and clarification. Reading your remark in light of Michael Kagan’s post, a few followup questions come immediately to mind: 1) Why don’t refugees in Za’atari have freedom of movement; and 2) What steps did UNHCR take in creating Za’atari to ensure that refugees there can enjoy all of their rights as quickly as possible?

      Starting with the latter: Your post suggests that there is a pipeline for moving refugees from Za’atari to urban areas around Jordan. If this is correct, it sounds to me like a significant and highly-positive innovation by UNHCR: Sixty-four percent of refugees who entered Za’atari are now out. That’s worthy of recognition as a big step forward.

      Can we learn more about this? Does UNHCR intend to replicate it in other camps? What other steps has UNHCR taken to ensure that refugees in Za’atari can enjoy all of their rights — including freedom of movement, the right to work, and access to equal protection of the law — as quickly as possible? What’s working in this innovation, what’s not, and why?

      As for the former: Why doesn’t Za’atari camp allow freedom of movement? Was this decision made by the Jordanian government, or by UNHCR (and others who implemented the camp)? If this decision was made by the Jordanian government, what did UNHCR do to urge the government to allow refugees in Za’atari to enjoy their rights to freedom of movement?

      If this decision was made by UNHCR as the camp was implemented, why? If UNHCR has decided to deprive over 100,000 refugees of their fundamental human rights in violation of the Refugee Convention and other human rights instruments, what is the agency’s justification for that choice?

      (Please know that I ask these questions not with the *assumption* that UNHCR acted wrongly in light of practical circumstances — I think we can all agree that the flight of refugees out of Syria presents huge and complex challenges for nearby countries receiving large influxes — but rather because I believe it’s important that refugees and civil society organizations working with and for refugees be able to discuss, critique, and evaluate UNHCR’s actions when rights violations occur. We have very few ways to hold UNHCR accountable; in most cases the institution is immune from recourse to the courts, for example. Public discussion, including the possibility of public critique or censure if warranted, is one of the few tools available to us to ensure that UNHCR is accountable for its actions and to the people it was created to support.)

      Reply
  3. Jeff Crisp

    Critics of UNHCR’s policy on refugee protection and solutions in urban areas seem curiously reluctant to engage with the organization. Why cite an article from Time magazine to support the allegation that UNHCR insisted on the establishment of a camp in Jordan, when Andrew Harper, who tells the real story in the preceding comment, could have been approached directly?

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  4. Barbara Harrell-Bond

    I don’t understand what Jeff is arguing about. Harper was quoted in the article in Times Magazine. If the quote was wrongly attributed to him, why doesn’t UNHCR write to correct it? They are quite keen to respond to other’s criticisms, so why ignore a wrongly attributed quote in one of the world’s most widely read magazine?

    Barbara Harrell-Bond

    Reply
  5. Andrew Harper

    All great comments but frankly if we responded to every article that has been written about Zaatri we would never have the time to be doing our job – which is ultimately why I am here for. Just to give you an idea of the amount of media scrutiny that we have in Zaatri there is usually some 10 or more journalists visiting the site everyday. This is not to excuse any failings that do exist but just to emphasize that we need to focus on what is important. All the best.

    Reply
  6. Lucy Hovil

    While the discussion around camps in Jordan is interesting, I wanted to return to the earlier discussion between Michael Kagan and Guglielmo Verdirame and Jason Pobjoy. I certainly agree that the assumptions underlying the policy itself are troubling (with camps still feeling like the default position) and that implementation is a serious concern.

    However, I wonder if a different but complementary way of looking at the issues at hand is to ask whether policy and practice might change if the approach to ‘durable solutions’ changed. It seems to me that for as along as repatriation continues to be the default durable solution, the emphasis on refugee camps in practice is likely to remain. To use Michael Kagan’s term, refugee prisons are an ideal way to ensure that refugees don’t escape into the locality and can all be tidily returned to their country of origin. Urban refugees are a threat to this durable solution and make repatriation much, much harder to implement.

    Or put another way, would you ever put a refugee in a camp if local integration (de jura and de facto) was seriously being considered as a possible durable solution? If not, then it suggests that the only way in which refugee protection can be properly realised is if there is far more cognisance of the need to ensure that genuine local integration – the type that allows an individual to move towards possible naturalisation should they choose – is on the table right from the beginning.

    Of course this doesn’t resolve the problem of turning policy (however flawed) into reality; and I realise that talk of local integration is politically very sensitive. However, if the process of becoming a refugee, living in exile and ending exile were to be viewed through a prism of citizenship, with the intention being for loss of meaningful citizenship to be minimised, then could this create a framework for re-thinking refugee ‘management’?

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  7. Jeff Crisp

    Sorry to intervene yet again on this debate, but let me make a further contribution to what has become a very rich discussion.

    I could not agree with my friend Lucy Hovil that “the assumptions underlying the policy itself are troubling (with camps still feeling like the default position).” Quite the opposite in fact. The policy is based on the principle that refugees have a right to freedom of movement and should be free to take up residence in an urban area, irrespective of national refugee policy.

    There is certainly some language in the policy that seems to contradict this unequivocal principle, but that was the price that had to be paid in the negotiation of the document (and in which UNHCR’s external critics seem to be curiously uninterested). So yes, there is an element of ambiguity in UNHCR’s urban refugee policy. But I would argue that ambiguous progress is a lot better than no progress at all, and that non-operational think tanks, academics and consultants might want to develop a more collegial and consultative approach to this issue.

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  8. Jeff Crisp

    Breaking news: terrorist attacks in Nairobi

    Media reports are suggesting that the attacks were carried out by Somalis, that non-Muslims were deliberately targeted, and that Al-Shabaab have claimed responsibility for the violence. None of this bodes well for refugees living in Kenya’s capital city. How long will it be before forced relocations to Dadaab (and from Dadaab to Somalia) come back onto the agenda?

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  9. Sonia Ben Ali

    I agree with Lucy on the point of local integration. But is that feasible in case of mass influx like the Syrian crisis? How to put that solution “on the table” from the beginning? I think that part of the answer to that question has to do with how the crisis in question is perceived from the onset.

    Protracted refugee situations now tend to be the rule more than the exception. With the good probability of a sudden crisis becoming a protracted situation, it would make sense not to resort to the “old habit” of building a camp and concentrate the attention on how to make local integration feasible from the start. On that particular issue, I would like to draw your attention on a new debate launched by Dale Buscher on the Forum that I think offers some interesting pathways in this respect: http://urban-refugees.org/debate/approaches-urban-refugee-livelihoods/
    Although the article does not focus on the specific issue of massive influx, it gives interesting ideas on how to support host communities and enhance refugee local integration. Feel free to participate to the discussion!

    Reply

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