By Michael Kagan
Four years ago next month, UNHCR issued its Policy on Refugee Protection and Solutions in Urban Areas, perhaps the UN’s most important 21st Century statement of protection strategy. Depending on who you listen to, we are either at the nascent stages of a new era of rights-based refugee assistance, or due for a skeptical realization that not much as changed.
On paper and in rhetoric, the 2009 urban policy represents a break from fundamental flaws of 20th Century refugee practice. A previous 1997 version of this policy was understood as condemning urban refugees as “irregular movers,” troublemakers who were making it more difficult for UNHCR and its partners. Camps were normal and good, and refugees should be discouraged from trying to leave them.
In UNHCR’s words, the new policy “marks the beginning of a new approach.” Refugees are now to be reconceived as people with autonomy. The focus is to be on their rights, their legal status, their ability to support themselves and to raise their families in dignity.
But as always, the situation on the ground is more complicated. Four years on, the world is still littered with refugee camps imposed on refugees whether they like it or not. In East Africa, on the Thai border with Burma, in dozens of other places refugees are directly or indirectly forced to live in remote camps.
This gap between policy and practice is the background for several new critiques of UNHCR’s urban refugee policy. The gist of the critiques, with varying degrees of nuance, is that old habits die hard, and while the new policy sounds good, UNHCR’s commitment to urban refugees in practice is not always clear. Camps are still abundant, and they are still central to UNHCR’s work.
The critiques warrant a response, and in the process we might be able to bring the rhetoric about rights-based refugee policy closer to realities on the ground.
You won’t get an apology
UNHCR’s urban refugee policy has long been entangled with a great deal of symbolism beyond the scope of any specific text. On paper, the 1997 urban policy was actually a bit of a mixed bag, with at least grudging acknowledgement that refugees have rights. But the policy was understood as a symbol of humanitarian paternalism driven by the interests of aid agencies rather then the rights of refugees.
Guglielmo Verdirame and Jason Pobjoy want UNHCR to apologize for this legacy. They note that although the new urban refugee policy is explicitly a break from the old path, UNHCR has not actually admitted that there was anything wrong with the 1997 policy, at the time when it was written.
Instead of admitting an error, UNHCR explains the new urban policy as an adaptation to new circumstances. UNHCR says that with increased rural-to-urban migration, it makes sense to embrace urban refugees in 2009, whereas in 1997 refugees were reasonably assumed to be rural.
This is not terribly convincing. I’m not a demographer, but I do believe that urban migration has been going on for a quite awhile. UNHCR’s explanation might have been plausible if the original policy had been written in 1897. But, really, in 1997 UNHCR did not know that so many people lived in cities?
To its great credit, the 2009 urban refugee policy is quite self-critical about the “negative attitude of some UNHCR staff” that contributes to tension with urban refugee communities. We should also not forget that the new policy grew out of nearly a decade of critical reports and studies many of which were sponsored by UNHCR itself (especially by the Policy Development and Evaluation Service).
In 2009 I heard high ranking UNHCR officials speak eloquently about what was misguided in the old policy and about the importance of adopting a new approach to urban refugees. I heard UNHCR officials talk about the evils of forced encampment, the degradation of forced isolation, the importance of refugee rights. Yes, it would have been wonderful if such frankness ended up in the actual policy. But it’s easier for an institution to move on to a new policy than to apologize. Letting UNHCR save face is a small price to pay for a better approach.
Results-based accounting doesn’t always work with UNHCR
When UNHCR publishes a document that does not quite match facts on the ground, it is tempting to question UNHCR’s motivations. In the sharpest terms, Simone Haysom of the Humanitarian Policy Group wrote: “UNHCR’s own commitment to its landmark 2009 urban refugee policy should be called into question.” Tim Morris and Sonia Ben Ali ask if UNHCR is reviewing its own work in implementing its new policy with “an air of complacency?” (question mark original).
The hint of hypocrisy is a seductive hook for criticism. But it’s analytically limited.
It is certainly fair to compare UNHCR policy and UNHCR practice. In fact, if we want UNHCR to fulfill its mission, it is essential. As Verdirame and Pobjoy write:
If the 2009 Urban Policy had been adopted by the department of a national government in a free country, its implementation would be subject to various checks and balances. … These checks and balances are not in place in the case of UNHCR and international institutions in general.
The only way to try to fill this gap is for those on the outside to ask tough questions of UNHCR, and to offer tough critique when UNHCR is not doing what it should be. When a matter of refugee policy is fully within UNHCR’s authority, it’s especially fair to hold UNHCR’s feet to the fire.
But not everything that affects refugees is within UNHCR’s control. The mere fact that many refugees are still warehoused in camps does not on its own mean UNHCR is to blame. The 2009 Urban Refugee Policy is, for the most part, a statement of what UNHCR wants to happen, not about what UNHCR will actually be able to do. Since the policy aspires to far more than UNHCR can deliver on its own, one has to be cautious about measuring UNHCR by the results.
It is always possible to find gaps in UNHCR practice. It is a big, complicated, human institution being pulled in competing directions, working under severe constraints in dozens of countries to try to do essential things that, quite often, no one else will do. Its staff do amazing things, and also make mistakes. On any given day with UNHCR, you can find heroism, innovation, competence, mediocrity, indifference, and occasional cruelty. Sometimes you can find all of that in one field office.
It is often difficult to discern whether a UNHCR failure is merely an exception, or the tip of an iceberg. Moreover, while UNHCR tries hard to speak with one voice in public documents, it is always churning with internal divisions and debates. These internal contradictions can lead to accusations of hypocrisy and insincerity, since some people who work for UNHCR really are not committed to the official policy. But it also simply reflects the complexity and difficulty of the subject matter.
That doesn’t mean that UNHCR should not face tough questions about its activities. It is important to ask, as Verdirame and Pobjoy do, why urban refugee programs still seem to be getting the short end of the stick in the UNHCR budget. And it is reasonable to ask if UNHCR is being assertive enough in telling governments that urban refugees exist, and that they have rights. Take, as an example, Tanzania, where legislation restricts refugees to camps and largely prohibits refugees from living in the city. It is reasonable to ask UNHCR if it is doing all it can to convince the government that refugees have a right to be in the city, and to provide them assistance.
These are legitimate questions. But they should not necessarily be understood as criticisms. Rather, they are an effort to prevent hard choices from being covered over by soothing diplomatic verbiage. The world is complicated, and responsibility is often diffuse. UNHCR needs to be held accountable, but its critics also need to be modest in not exaggerating UNHCR’s flaws.
Interpreting UNHCR silence
For Haysom, Morris and Ben Ali, and Verdirame and Pobjoy, a primary basis for questioning UNHCR’s commitment to the new urban policy is the fact that UNHCR has not always publicly criticized governments for forcing refugees into camps.
Morris and Ben Ali’s essay is in many ways a critique of way UN agencies talk. They give the example of how Human Rights Watch reported that it was “impossible” for refugees in Nairobi to get ID cards, but UNHCR would only say it was “challenging.” Anyone who has worked in this field has learned to engage in some semantic softening like this. Don’t say you are outraged. Say you are concerned. Don’t say you had an argument. Say you had a dialogue. And if you don’t have anything nice to say, maybe don’t say anything at all. Let’s call this Genevaspeak.
There’s some force to this critique – and not just about urban refugees. UNHCR wants to be, and largely is, the primary global authority on refugee issues. But can UNHCR credibly play this role and still be selective about revealing what it knows about what certain governments are doing?
What are we to make of the fact that earlier this year the High Commissioner applauded the United Arab Emirates for its “very generous commitment” to Syrian refugees (i.e. as a donor and logistics hub), despite the UAE’s atrocious record on migrant rights generally, including reports of torturing Syrian refugees?
In the future, I would suggest that UNHCR avoid the appearance that its compliments (or its silence) can be bought. But even if UNHCR avoids that pitfall in the future, Morris and Ben Ali are pointing to a more ambiguous problem. What about UNHCR’s general hesitation about criticizing governments?
Consider Haysom’s criticism of UNHCR in Kenya, when the Kenyan Government was planning to force all refugees into the camps:
While the UN Refugee Agency (UNHCR) has said it will not support forcible relocation to the camps and has urged the government to abandon the directive, it has committed assistance to refugees who wish to voluntarily return to camps. UNHCR has joined a government-run taskforce to oversee the implementation of the directive to ensure it is done humanely.
Essentially, UNHCR was engaged in a balancing act. It opposed forced encampment. But if it were to happen, UNHCR wanted to be involved so as to make it as humane as possible. This is a morally debatable strategy, certainly. UNHCR’s involvement will lend legitimacy to an oppressive policy. But it will also probably relieve immediate suffering.
The fact of the matter is that UNHCR is not Human Rights Watch. Putting out public statements is not its main work. UNHCR has millions of people on the ground depending on it. Every day, UNHCR staff are trying to get refugees out of detention, trying to get deputy ministers of interior on the phone, trying to stop deportations. It is important for refugees that the deputy ministers return UNHCR’s phone calls (and they often don’t). But the danger is that by staying engaged, UNHCR will implicitly legitimize policies that violate refugee rights, when the offending government says, “We did this in consultation with the UN.”
The question is where to draw the red line, a question that has followed the humanitarian movement since the founding of the International Committee of the Red Cross. Although UNHCR does not have a doctrine of neutrality quite as developed as the ICRC, UNHCR’s approach owes much to the ICRC heritage. And so before criticizing UNHCR it is worth considering the ICRS’s “principles under fire”:
Neutrality should not be confused with confidentiality. The ICRC’s neutrality has a very specific purpose, namely to enable the organisation to gain the trust of all the parties to a conflict, whatever their stance, and thus to come to the aid of all the victims. … This is not the same thing as silence, or cowardice, or compromise. It is more difficult to say to a security minister that a country’s prisons are unsanitary, overcrowded and run by staff that torture inmates than to publish an article denouncing these facts in the press. …
Confidentiality, however, has limits. … In other words, the ICRC is fully aware that there are limits to persuasion and that public denunciation – the means of action favoured by organisations like Human Rights Watch or Amnesty International – can sometimes, albeit not always, be more effective. When the ICRC decides to take a public stand on violations of humanitarian law because its efforts at persuasion have been to no avail, it is not departing from the principle of neutrality but from the practice of confidentiality.
I have always had reservations about this, chiefly because I think that in a crisis, human beings working in large organizations will usually take the lowest risk path. That is, they will usually do what seems safest for the aid organization, not for the people who are in danger, and that usually means staying quiet too long.
But I must acknowledge that it does take a special kind of strength to try to work with a government that means to do wrong, and to try to soften the blow. While it can feel more morally satisfying for activists to put out principled press releases, it is important that someone keep channels of communication open. For refugees, that someone is typically UNHCR, and looking back at the 10 years I spent working with refugees in the Middle East, I cannot imagine what we would have done if UNHCR had not played this role.
I tend to agree with the critics that UNHCR is sometimes more cautious than it needs to be. UNHCR should see that many governments do seek out its praise and are angered by its criticism, when it comes. That’s good. It means that UNHCR has at least a little bit of power, and it should learn to use this. But these are tough calls to make, and critics should acknowledge as much. UNHCR’s public silence should not be automatically construed as endorsement.
The challenge is bigger than camps
I wish that the 2009 policy had dispensed with the term “urban refugee” altogether, because it promotes a distracting focus on geographic location rather than human rights. The assumption is that there is a dichotomy between refugees who are forced en masse into refugee camps in rural areas, and those who live more independently in cities. But even the 1997 urban policy acknowledged that a refugee should have the same rights regardless of where she chooses to live.
There is something extreme about refugee camps. As Verdirame and Pobjoy write, “The essence of a refugee camp is separation”. When refugee camps are the assumed foundation of refugee policy, operational energy shifts toward logistics. How do we supply X amount of calories and Y quantity of shelter to Z location? But when one thinks about refugees outside of camps, living on their own, the focus shifts toward what refugees can do for themselves, and that highlights the importance of legal status and rights.
Verdirame is the scholarly authority on the ways in which refugee camps are anomalies in international law, places where whole pieces of territory are de facto governed by international aid agencies instead of sovereign governments.
Legal separation is especially visible when refugees are confined in remote places. But not all refugee camps are isolated geographically. Many Palestinian camps in the Middle East are in the middle of cities. Not all refugees who are in camps are confined. Nor does leaving a camp ensure integration.
Legal separation can occur even when refugees are free to live wherever they want, if they are denied the right to work, if their kids cannot go to school, if local authorities will not recognize their marriages and divorces, or provide them routine police protection. It’s usually host governments, not UNHCR, that impose this separation on refugees.
As I have explained more extensively elsewhere (borrowing heavily from the work of Jeff Crisp of UNHCR’s Policy Development and Evaluation Service), host governments in the global south have strong incentives to marginalize refugees. Sometimes they to do this geographically, by confining refugees to camps (see: East Africa). Sometimes they tend to do this through more invisible legal restrictions (see: Middle East). But what happens in both scenarios is similar. The refugees are rendered more vulnerable and more dependent, while UNHCR becomes a “surrogate state.”
Critics of UNHCR often gloss over the power of local politics in promoting refugee separation. For instance, Verdirame and Pobjoy state broadly that host governments don’t like UNHCR offering parallel services to refugees rather than integrating refugees with locals. Maybe that is true of some countries. But I have my doubts. If a host government didn’t want UNHCR to run parallel services for refugees, why did they let UNHCR do it?
There are many governments that insist on separate services for refugees, that refuse to let refugee kids enroll in local schools, that will not discuss including refugees in national development plans, and that will not allow refugees to seek employment. (Examples: Tanzania, Egypt, Lebanon). One of the main goals of the 2009 policy is to re-focus on host state responsibility. But why should we think that local governments will be willing to open their schools, their medical clinics, their employment markets, and their housing supply to refugees, especially in a climate of xenophobia or economic distress? Isn’t it easier for a host governments to say, “Refugees are an international responsibility?”
It would indeed be easier if all of the blame for refugee separation belonged to UNHCR. Then UNHCR could fix it. But in reality UNHCR must adapt to the political realities in countries where host governments are simply unwilling to take responsibility for refugee protection or to let refugees integrate with their citizens. The new urban policy doesn’t clearly tell a UNHCR office what to do if a host government refuses to take responsibility for refugee rights, and that is a major weakness.
UNHCR’s greatest immediate potential is to expand refugee autonomy and dignity without dismantling the UNHCR surrogate state, finding new ways to deliver aid and focusing new attention on legal status and individualized services. With many countries denying refugees the right to work and impeding their access to governments services, UNHCR is focusing more on developing its own referral networks and experimenting with more creative ways to enhance refugee livelihoods. But such efforts will always represent a compromise with reality, because they still depend on UNHCR and continue kind of refugee separation.
Half full, half empty, or has the water just started pouring?
So, are we really at the beginning of a new era for refugee policy? Consider the case of Kenya again, where Haysom criticized UNHCR for its willingness to participate in proposed refugee relocation. Just last month, a Kenyan court blocked a plan to force tens of thousands of refugees in Nairobi into camps. It is disturbing that in 2013 a government would want to do this, and that does not bode well for the goals of the new urban policy. But it is also encouraging that a court said no. That could just be a fleeting victory. Or it could be a foundation for the future.
What stuck me most in UNHCR’s 2012 Global Survey of the implementation of its new urban policy is that it kept returning to the issue of legal barriers and legal status. I cannot recall a UNHCR report that places such a strong emphasis on law in the global south. Such concerns have always been a focus of UNHCR’s work in Europe, North America and Australia. But in the global south, in the past at least, UNHCR tended to talk in more operational terms. It may be tedious, but there are literally dozens of references to legal issues throughout the report – the challenges of legal barriers, the difficulties of determining legal status, the importance of legal aid and legal networking. This focus on law is new.
Yes, there are grounds for criticism. We do not know if UNHCR’s growing attention to legal obstacles to refugee livelihoods will translate into expanded refugee rights in practice. We do not know if UNHCR will focus as clearly on legal issues when reviewing its own policies. I can’t help but note that on refugee status determination by UNHCR, the 2012 Global Survey stressed backlogs and resources. In other words, the report stressed the logistical side of mandate RSD. But the report made little mention of the unfinished work of bringing greater fairness to the process – the legal rights at stake.
But UNHCR decided in 2009 to endorse an essentially rights-based approach to refugee assistance. It decided that good refugee protection takes refugees where you find them, rather than telling them where they have to go. UNHCR decided to put this document out in a high profile way knowing full well that the situation on the ground wouldn’t measure up. It is not yet a success. But it is a very good start.
Michael Kagan is Associate Professor of Law at the University of Nevada, Las Vegas. He writes the blog rsdwatch.org about refugee status determination by UNHCR.
This contribution is dated 10/08/13