Gender and Disaster

(Delighted to welcome back alumna Fionnuala Ni Aoláin, who contributes this guest post)

Given recent events in Japan it seems like an opportune moment to reflect on the gendered dimensions of natural and other kinds of disasters. The reflections here are part of a more sustained analysis I make in an article forthcoming in the Michigan Journal of Gender and Law entitled "Women, Vulnerability and Humanitarian Emergencies."
The catastrophic dimensions of humanitarian emergencies are increasingly understood and more visible to states and international institutions. There is also some recognition of the gendered dimensions of humanitarian emergencies in policy and institutional contexts.
It is generally acknowledged that women are overrepresented in the refugee and internally displaced communities that typically result from many humanitarian crises. Women bear acute care responsibilities in most societies, and also disproportionately bear familial and communal care responsibilities in communities affected by disaster, war and natural emergencies. Women, given their disparate social and legal status in many jurisdictions, may have less access to capital, social goods and other legal means to protect themselves when crises arise. While tacit acknowledgement of this reality increasingly permeates academic and political discourses, the depth of the descriptive often fails to capture and fully grasp the extent of gender harms and gender insecurity.
Moreover, as experts and policymakers calculate how best national and international communities should respond to such emergencies, women are frequently substantively and procedurally sidelined. This follows from the dual effects of a dearth of women decisionmakers in the relevant high-level fora and the failure to meaningfully imagine and include solutions to the particular issues affecting women in communities emerging from various emergencies. Disaster-related research suffers from considerable bias, revealing an asymmetrical distribution of gender themes, an absence of data on women’s lives and a male bias in identifying the channels from which information is sought.
The recent events in Japan offer us further opportunity to reflect on the intersection of women’s experiences with situations of humanitarian crisis. My goal is to give greater traction to a feminist analysis of women’s experiences in situations of extremity.
In particular, I argue that in order to fully understand the context of women’s specific vulnerabilities, we have to widen and deepen the frame of investigation. In short, we need to take account of pre-existing conditions. We must start by contextualizing the ordinary experiences shaping women’s lives, which form the bedrock upon which a specific crisis is then foisted. The specificity of vulnerabilities subsequently identified in the moment of crisis can only be completely understood and fully addressed by reference to the backdrop. But, accepting the reality of such situated vulnerability does not take us far enough. Institutionalizing helplessness and propagating its inevitability continues to perpetuate a conceptual framework that fails to address the underlying causes of women vulnerability in situations of extremity. This requires a more nuanced approach, seeing compounded vulnerabilities for women in which prior discrimination, exclusion and social marginalization interplay with the specific harms and vulnerabilities foisted on women in situations of crisis. These two elements [the prior and the present] are in constant interplay. Moreover unless experts accept the predictability of such crises their planning will suffer from obvious, gender-biased defects.
By extending and reframing our understanding of why vulnerability is pronounced for women we may both expose and address the limits of current international legal obligations in addressing women’s harms and needs in the context of humanitarian crises. We do so by returning to basics, addressing the persistent social, economic and political discriminations that are routine for most women in most societies, most of the time.

(photos from post-tsunami Japan (c) 2011 Associated Press, available in slide show here)

On the Brink of Genocide?

On Wednesday, Youssoufou Bamba, the Ivory Coast's newly minted Ambassador to the United Nations, warned that his country was "on the brink of genocide." Bamba, who was appointed by Alassane Outtara, the internationally recognized victor in the country's recent elections, voiced concern over massive human rights violations in recent weeks. (The BBC offers an excellent summary of the post-election crisis here.)
Should Bamba's statement be taken at face value? The signs are certainly concerning. Last week, the UN deputy human rights commissioner reported the deaths of nearly 200 Outtara supporters in the post-election violence, as well as many cases of arrest, detention, and torture. This is just the tip of the iceberg, as the UN has been prevented from investigating many serious allegations of human rights abuses. In one example, the UN Operation in Cote d'Ivoire was blocked from investigating a possible mass execution site north of Abidjan.
Senior UN officials have expressed concern over "incitement to hatred and violence" through the national radio and television and some private newspapers. Bamba noted that some houses have been marked according to their residents' ethnic background, a claim echoed by UN officials. Gbagbo has told the UN to leave and his youth minister, Charles Blé Goudé, has warned ECOWAS not to intervene. In his chilling words:

'They should prepare themselves very well because we are thinking about totally liberating our country, and soon I will launch the final assault.'

The forced migration dimension of the story leaves little doubt about the gravity of the situation. On Tuesday, UNHCR reported that 19,000 Ivorians had fled to Liberia. The refugees, largely women and children, are primarily supporters of Outtara but also include some pro-Gbagbo; all sides fear the consequences of a civil war. Most come from western Ivory Coast, a region already known for lawlessness and severe sexual violence prior to the election. While UNHCR has provisions for just over 10,000 additional refugees, humanitarian needs may soon eclipse their capacity.
In the new year, the European Union will tighten sanctions against Gbagbo and his supporters. As indicated in Diane's post yesterday, International Criminal Court Prosecutor Luis Moreno Ocampo has warned that "leaders who are planning violence will end up in the Hague," a call welcomed by Outtara, who has invited an ICC investigation. More to the point, ECOWAS has given Gbagbo a deadline of January 3 to step down or face forcible removal. One can only hope that these international efforts will be sufficient to pull the Ivory Coast back from the brink.

Going Back to Baghdad

Two recent reports, one by the International Organization for Migration and one by the US Government Accountability Office, describe the situation of returning Iraqi refugees and internally displaced persons, and it's not a pretty picture. While the overall security situation in Iraq has improved, attacks continue to occur, particularly in Baghdad, Diyala, and Ninewa governorates -- from whence ninety percent of recent Iraqi IDPs originate. Of the 1.6 million Iraqis displaced since 2006, less than half have returned home.

Those who do return face a grim existence. Returnees find it hard to secure shelter, let alone property restitution or compensation. One-third of the heads of returnee families are unemployed, and many lack adequate essential services such as food, water, sanitation, electricity, and health care. Violence against women and minorities occurs often and is rarely punished.
The IOM found that these challenges were exacerbated for female-headed households (see prior post). Over eighty percent of female heads of households are unemployed. Many of these families include children and elderly members, which leads forty percent of them to rely on others for assistance. One in four female-headed households lack access to health care and the same number include a family member with a chronic illness. Nearly three-quarters cite food as an urgent need. As domestic violence has increased in Iraq in recent years, many of these women have fled their husbands and must contend with the resulting psychological burdens and social stigmas.
While numerous projects have been established to address impediments to return, the GAO found significant coordination and strategic gaps. To start, the impact of these projects on reintegration is not consistently measured or reported, in part because American goals and outcomes are classified and Iraqi government efforts suffer from insufficient commitment and capacity.
At the international level, there is no integrated strategy to coordinate the various UN organizations and internationally funded assistance efforts. Basic definitional questions such as when the displaced are considered reintegrated have yet to be answered. There are troubling holes in the data gathered by these agencies; for example, nobody has taken inventory of and assessed financial assistance programs for IDPs and returnees to determine gaps, overlap, and impact. And there is turf warfare, with different UN bodies competing rather than coordinating there efforts. In one example, UNHCR has not shared its raw data on IDPs and refugees with other entities working in Iraq.
In short, it's a mess -- one that we helped to create and should help to resolve. As the GAO suggests, the Secretary of State and the USAID Administrator in Iraq should assist the Iraqi government in creating a coherent and integrated international strategy to reintegrate displaced Iraqis. In order to spur successful voluntary return, such a plan must not only overcome current coordination failures but should also address the particular needs of female-headed households and other vulnerable groups.

There's No Place Like Home

Though voluntary repatriation is the most appealing of the durable solutions available for refugees, those who return home face many obstacles. The news this week is full of stories of the hardships confronted by returning IDPs and refugees: of the impact of floods in northern Sri Lanka on those who have just returned home, of the difficult readjustment from urban to rural living for southern Sudanese, and of the landmines facing those who fled the Lord's Resistance Army in northern Uganda. Despite these challenging realities, the repatriation process as currently designed assumes that once refugees return home, they're safe and they're there to stay.
Dr. Lucy Hovil (prior IntLawGrrls post), Senior Researcher for the International Refugee Rights Initiative, (pictured below right) published last month a UNHCR Research Paper challenging this disconnect between the policy and reality of repatriation. The article, entitled Hoping for peace, afraid of war: the dilemmas of repatriation and belonging on the borders of Uganda and South Sudan, notes that while the official process of repatriation is a unidirectional single course of action, the realities on the ground are significantly more multi-faceted. Hovil argues that repatriation should be reconceived as restoration of citizenship bonds or empatriation rather than just the crossing of a border.
What exactly does she mean by this? Using the case study of southern Sudanese refugees living in northern Uganda, Hovil notes that while Sudan has reached an officially acceptable level of stability according to UNHCR, individuals and families who return still face threats to their safety and chronic uncertainty. As a result, those who return informally tend to do so in several steps, carefully ensuring the safety of their family. One interviewee described how he returned to Sudan to see his land and build a house, then returned a year later to farm his land, and then a year later brought back his family members. Even at that point he did not consider himself fully repatriated; he was still monitoring the situation and was ready to return to northern Uganda if necessary.
In other words, restoration of the bonds of citizenship is a process that takes time; abrupt return fosters dependence and insecurity. In contrast to those who are allowed to return at their own pace, those repatriated by UNHCR have only the food they come with and have forgone the opportunity for protection from future threats by officially relinquishing their refugee status.
Hovil also notes that the reconstruction of community is a slow and organic process. Returnees generally repatriate out of a desire to restore the roots lost through exile. They are in search of community, which will in turn provide them with a sense of local belonging and also of national legitimacy.
Hovil argues that successful community reconstruction requires freedom of movement within and between states so that former refugees can access social, economic, and cultural resources outside of their state of origin. Without such reconstruction, the profound political change needed to stabilize a shattered state is unlikely.

(credit for photo above left)

Building Barricades to Protection

This week, Israel began building a $372 million, 155-mile barrier, including electric fencing and surveillance technology, along its border with Egypt.
As other routes for African migrants (such as the sea route between Libya and Italy) have been blocked, the numbers of migrants crossing the border from Egypt has increased dramatically. In 2009, Israel reported just over 4,000 undocumented migrants; that number is up to over 10,000 so far this calendar year. While the Israeli government claims that the wall will prevent Islamic militants and human traffickers from reaching Israel, it will also significantly impair the ability of asylum seekers to reach Israel.
One might expect a nation of refugees for whom the UN Refugee Convention was created to have a generous policy towards those seeking protection within its borders. This new barrier, however, presents just one more instance of Israel's failures to live up to its responsibilities under the UN Refugee Convention.
Israel hosted just over 4,000 asylum seekers in 2009, most from Eritrea and Sudan, yet Israeli NGOs report that the country has granted asylum to fewer than 200 applicants since it ratified the UN Refugee Convention in 1954. As described further in this report by the Israeli NGO Refugees' Rights Forum, the asylum process in Israel is dysfunctional, often requiring a wait of over a year for an interview. Rather than legally recognizing refugees from Eritrea and Sudan -- nations to which the UNHCR forbids deportation because of the dangers facing those who return -- Israel instead grants most of them temporary protection, a much less stable status that does not permit them to work and allows the Israeli government to return them when the situation the refugees' home country improves.
Those who are less lucky are detained (currently, over 2000 asylum seekers) or worse. Under Israel's "Hot Return" policy, authorities expel undocumented migrants directly to Egypt without providing access to asylum procedures and without obtaining guarantees against refoulement from the Egyptian government. The U.S. State Department reports that Egyptian authorities detain some of these asylum seekers, holding them in conditions that violate international human rights standards, and refoules thousands of others back to Eritrea and Sudan.
Though Israel must take seriously threats to its national security, this nation of refugees does itself a disservice by building further barricades to protection for those fleeing persecution.

Go On! U.S. refugee law

(Go On! is an occasional item on symposia and other events of interest)

The 30th Anniversary of the Refugee Act is the topic of a symposium to be held 10:30 a.m.-2:15 p.m. on November 12, 2010, by the Center for Immigrants' Rights at the Dickinson School of Law, Pennsylvania State University, University Park. (hat tip ImmigrationProf Blog)
Moderating the program will be Shoba Sivaprasad Wadhia (below right), Clinical Professor and Center Director. Speakers who will consider the United States' Refugee Act of 1980 in contemporary context include:
► Elizabeth Dallam, Senior Protection Officer at the Office of the U.N. High Commissioner for Refugees
► Regina Germain, Adjunct Professor at Sturm College of Law, University of Denver, and author of The Asylum Primer (6th ed., 2010)
► Tara Magner, Adjunct Professor at Georgetown University Law Center and Senior Counsel to the Chairman of the U.S. Senate Committee on the Judiciary, Senator Patrick Leahy
► Jeanne Smoot, Public Policy Director, Tahirih Justice Center, Washington, D.C.
► Anne Sovcik, Advocacy Counsel for Human Rights First's Refugee Protection Program and Chair of the Asylum Working Group
Program here; other details and registration available here.

Rejecting Refugees

The New York Times today reports on my most recent co-authored empirical study of the U.S. asylum system, Rejecting Refugees: Homeland Security's Administration of the One-Year Bar to Asylum, forthcoming in the William and Mary Law Review. As the title suggests, this article focuses on asylum law's one-year filing deadline, which was created by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Scholars and practitioners have long expressed concern that refugees have been denied asylum due solely for failure to apply within a year of entry, and fear that the bar has had a significant impact on the U.S. asylum system. Our article is the first systematic empirical study of the effects of the deadline on asylum seekers and the asylum system.

We focus on decision-making by the Department of Homeland Security, which adjudicates most applications for asylum in the first instance. The findings are troubling. Most notably, it is likely that since the one-year bar came into effect, in April 1998, through June 2009, DHS rejected on the deadline more than 15,000 asylum applications (affecting more than 21,000 refugees) that would otherwise have been granted.
"Rejected" means that these asylum seekers could, if they had sufficient resources, have pursued their case further in immigration court. Because the data systems used by DHS and the immigration courts (which are part of the Department of Justice) do not regularly coordinate and track cases, we cannot tell how many of these applicants were successful in immigration court. If immigration judges decided these cases the same way as the asylum officers, many refugees were ordered deported not because they failed to establish eligibility for asylum but because they did not file their applications within a year of entry. Even those asylum seekers lucky enough to win their one-year deadline arguments in immigration court faced the expense and trauma of an appeal, not to mention the delay, during which their family members remaining in their home country might suffer serious harm. (Spouses and children are eligible to join successful asylum seekers in the United States.)
The data give rise to concerns that certain populations were more adversely affected by the deadline than others. Women were significantly more likely to file very late (three or more years after the deadline had passed) than men, perhaps because they are more likely to suffer sexual violence and therefore more reluctant to reveal what happened to them. Moreover, women claiming asylum on gendered grounds, such as domestic violence and female genital mutilation, might not become aware that they are eligible under the law until they have lived in the U.S. for several years. Asylum seekers from certain countries, such as the Gambia and Sierra Leone, were much more disadvantaged by the deadline than applicants from other countries, such as Haiti and India. Though we can't know from the data the cause of this disadvantage, it is possible that the deadline particularly impacts refugees who do not have a strong community of immigrants from their home countries who can help to guide them through the asylum process.
Our recommendation? The deadline should be repealed, as several bills introduced in Congress propose. Short of repeal, the Obama administration should amend its regulations to broaden the scope of exceptions to the deadline and expand its training of asylum officers to encourage acceptance of a broader range of evidence and engagement in proactive questioning to establish applicants' compliance with the deadline.

(cross-posted on Concurring Opinions)
(credit for photo above left)

On September 23

On this day in ...
... 1980 (30 years ago today), Dr. Alona Evans (far left) died suddenly, 63 years after her birth in Providence, Rhode Island. At the time of her death she was several months into her term as the 1st woman President of the American Society of International Law. (photo credit) Earlier, she had become the 1st woman elected to the Board of Editors of the American Journal of International Law. Evans, who'd earned her bachelor's and doctoral degrees from Duke University, served at the U.S. State Department during World War II, and then became Professor, and eventually Chair, of the Political Science Department at Wellesley College in Massachusetts. She "was an expert on international criminal law, extradition, aircraft hijacking, and refugee issues," having co-chaired a State Department-funded study on terrorism. In the 1970s, she'd led "an ad hoc ASIL committee on the professional interest and status of women in international law." In the 1950s Evans was a visiting law professor at Harvard, "prior to that institution's granting a law degree to women." Outstanding teams in the Jessup international moot court competition receive an award bearing her name.

(Prior September 23 posts are here, here, and here.)

Ending Protection for Iraqis?

On September 1, the day after President Obama declared an end to the U.S. combat mission in Iraq, a charter flight carrying approximately sixty Iraqis from Western Europe landed in Baghdad -- apparently ending at least one aspect of the protection mission through forcible repatriation. Despite strong condemnation from the UN High Commissioner for Refugees, the United Kingdom sent another planeload of failed Iraqi asylum seekers back to Baghdad the following week. This time, the Iraqis claimed that, when they refused to disembark in Baghdad, they were beaten by UK Border Agency staff and Iraqi police.

Though some of these Iraqis may have legitimate asylum claims that were denied (similar to this story from Sweden), those who do not face a well-founded fear of persecution on one of the five enumerated grounds fall into a protection gap in international refugee law. The UN Refugee Convention does not provide any legal basis under which failed asylum seekers can remain in the host country, even if they would face, as many of these Iraqis did, "serious human rights violations and continuing security incidents." While UNHCR can "strongly urge" governments to do the right thing by providing protection until safe voluntary return is possible, this request sounds in the spirit of the Refugee Convention rather than its text.
Is it time for a new international convention to protect the rights of those at risk of generalized rather than individualized harm (along the lines of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa)? Many asylum seeker-receiving nations already offer domestic forms of protection (such as the UK's humanitarian protection and the US's temporary protected status) that may apply to those seeking protection from generalized violence. But the domestic nature of these statuses leaves significant discretion in the hands of governments to determine who will receive such protection -- discretion that they may not be willing to part with easily. And in the current political climate, it's hard to imagine that states would be willing to extend international protection to migrants of any sort. In the meantime, UNHCR officials can exhort fair treatment until they're blue in the face, but governments will continue to determine when to end protection of failed asylum seekers without the additional layer of accountability that an international agreement on point might offer.

(credit for photo of Iraqi refugees)

Mixed Migration in Southern Africa

This month, UNHCR released a report assessing its response to three African mixed migration movements: those from the Horn of Africa (pictured left), the Great Lakes region (pictured below right), and Zimbabwe to South Africa. These flows are "mixed" because they include both refugees and labor migrants, groups that can be nearly indistinguishable both facially and legally. Mixed migration movements raise questions about the adequacy of protection categories created by international refugee law and the need to address the interaction between asylum systems and restrictive labor migration policies.

The first two movements, encompassing migrants from Ethiopia, Somalia, Rwanda, the Democratic Republic of Congo, and Burundi, often pass through Malawi and Mozambique en route to South Africa. The migration management systems in Malawi and Mozambique, both signatories to the UN and OAU refugee conventions, are struggling to cope with the migration flows. Their response has been to accommodate most refugees in camps, an approach that is bound to fail. Many of these refugees have no interest in staying in camps; indeed, some are fleeing refugee camps in Kenya and Tanzania. They have come to Malawi and Mozambique so that they can get to South Africa, where they hope to find work, family, members and possibly transit onwards to North America or Europe. And of course, while all of the migrants arriving in Malawi and Mozambique face significant protection issues during their journeys -- including inadequate access to food, water and shelter; harassment; robbery; extortion; and exploitation -- only some of them are refugees entitled to the protection of UNHCR.
The report is critical of UNHCR and the International Organization for Migration for failing to engage with the "mixed migration issue" in Malawi and Mozambique, but it is difficult to know exactly where UNHCR should draw its boundaries. Should its mandate be extended to cover those who do not fall within the UN Refugee Convention definition? If not, which UN entity should bear responsibility for protecting non-refugee migrants -- the Office for the Coordination of Humanitarian Affairs, the Office of the High Commissioner for Human Rights, or even the UN Development Program or UN-HABITAT? More importantly, does it make sense to distinguish between refugees and other mixed migrants given the "poor governance and harsh economic circumstances" in their countries of origin? These flows are primarily composed of young men, the vast majority of whom are presumably seeking greater economic opportunity as well as greater political freedoms.
These questions are no more easily resolved in the case of Zimbabwean migration flows, which are characterized by increasingly blurred lines between labor migrants and refugees. The report suggests that most Zimbabwean migrants fall somewhere in between, in a category the authors describe as forced or 'survival' migration.
The migration management system in South Africa further contributes to the blurriness. In 2009, South Africa registered over 220,000 new asylum seekers (most from Zimbabwe). Part of the reason for these extremely high numbers is that the easiest and often only way for migrants to stay and work in South Africa is to apply for refugee status. Because the lawful immigration channels for non-refugees are inadequate to address the demand for labor migration, most migrants turn to the asylum system. Unsurprisingly, South Africa's asylum system has become overwhelmed; it suffers from severe backlogs and exceptionally poor quality decisions. (credit for map of South Africa above left).
These are problems faced by immigration systems around the world; as borders become tighter, pressure on asylum processes increases. It is folly to imagine that mixed migration flows can be stopped through higher fences. Those desperate for a better life will find a way around them. We might do better by designing programs that provide safe and legal means for labor migration, recognizing the humanity in the search for greater opportunity, whether economic, political, or both.

Kudos to Jaya

Proud to report that Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform (2009), coauthored by IntLawGrrls' own Jaya Ramji-Nogales (left), is the subject of the lead book review in the latest edition of the prestigious British journal, The Modern Law Review.
Reviewer Mike Sanderson (right), Kosovo-based Legal Consultant to the U.N. High Commissioner for Refugees, sets out a superb account of the empirical research by Jaya and her coauthors, Andrew I. Schoenholtz and Philip G. Schrag. Sanderson's evaluation of the book, on which we've posted here, is nothing short of gushing. In the fashion of movie advertisements, here're a few snippets:

... I cannot recall another occasion where an academic work has been so widely trailed, at least in my own area of refugee and asylum law. There is good reason for this. ...
...
... truly eye-popping ...
... exciting ...
... Ramji-Nogales, Schoenholtz and Schrag seem to be stones that have rubbed each other smooth. Their prose is beautifully clear throughout. ...
... it is excellent value and deserves to be widely purchased and read. ...

Agreed!

On July 14

On this day in ...
... 1890 (120 years ago today), Rosa Hacohen was born in Gomel, a city in what was then Russia and is now Belarus. Following her graduation from a 2dary school in Odessa, in what is now Ukraine, she immigrated to Palestine, joining her parents who'd gone there before her. Eventually she moved to Paris to be with her husband. There Rosa Ginossar (right) studied law and worked at a law firm. In 1922 she 1st sought to take the bar examination in Palestine. She was refused repeatedly, notwithstanding global efforts on her behalf. (Emily Murphy leant Ginossar winning arguments from Canada's Persons Case (1920).) Finally, in February 1930, the Supreme Court in Palestine issued a decision permitting women to take the exam; Ginossar did so 48 hours later, and was admitted to the bar in July of the same year. "This struggle marked the first battle in her war to secure the right of women to serve alongside men in all sectors of life in Israel." Her practice included much work on behalf of refugees. She died in 1979.

(Prior July 14 posts are here and here, and here.)

On the Job! Refugee protection

(On the Job! pays occasional notice to interesting intlaw job notices)

The Office of the U.N. High Commissioner for Refugees is seeking a Protection Officer in Washington, D.C., at its Regional Office there. The 1-year post, which carries the possibility of renewal, is not subject to international rotation.
The Protection Officer will be responsible for a range of duties, such as:
► Giving advice to U.S. officials on determining refugee status;
► Coordinating with government authorities and nongovernmental organizations on assuring protection of international refugees in the United States, as well as assisting UNHCR efforts in the Caribbean;
► Monitoring U.S. legislative developments; providing legal opinions on refugee and asylum law; and
► Conducting training sessions on international refugee and human rights law.
The successful candidate will be an English-speaking U.S. citizen who has a law degree and 8 years' work experience in a field such as international refugee law or U.S. immigration law. Knowledge of French and/or Spanish is a plus.
Deadline for applications is July 30, 2010. Further details on the position and how to apply available in this post at ImmigrationProf Blog.

On July 10

On this day in ...
... 1947, at the harbor in Sète, on the Mediterranean coast in the south of France, Jewish refugees -- 1,282 women, many of them pregnant, 1,600 men, and 1,672 children -- boarded a ship bound for Palestine. (photo credit) Conditions were cramped on the 19-year-old passenger steamer President Warfield, which was only 118 meters (129 yards) long. It set sail the next day, soon renamed Exodus 1947. But as the ship neared its destination, British destroyers seized it, killing "a Jewish crew member and two passengers," according to an account by the U.S. Holocaust Memorial Museum, which continues:

Attempting to make an example of the "Exodus 1947," the British transferred the passengers onto three navy transports which returned to Europe. ... The passengers were then transferred to displaced persons camps in Germany.
Displaced persons in camps all over Europe protested vociferously and staged hunger strikes when they heard the news. Large protests erupted on both sides of the Atlantic. The ensuing public embarrassment for Britain played a significant role in the diplomatic swing of sympathy toward the Jews and the eventual recognition of a Jewish state in 1948.

(Prior July 10 posts are here, here, and here)

Practicing Cessation

The UN Convention Relating to the Status of Refugees and the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa contain identical cessation clauses -- provisions that determine when a host state can withdraw refugee protection. A recently issued report demonstrates the risks inherent in applying the cessation clauses, specifically the changed circumstances provision, in practice.
The changed circumstances provision allows for the cessation of refugee status when a refugee

can no longer, because the circumstances in connection with which [s]he was recognized as a refugee have ceased to exist, continue to refuse to avail h[er]self of the protection of the country of h[er] nationality

In principle, this seems a reasonable provision, but its application in practice can give short shrift to the determination of individual levels of risk within the country of nationality. In the words of an excellent working paper issued last month by the International Refugee Rights Initiative, the Refugee Law Project, and the Social Science Research Council,

[A]n end to hostilities has typically been used as a key indicator that repatriation can take place and that particular groups should go home. This approach, however, often fails to recognise that war and violence may profoundly reshape a polity and, in the process, create new threats to particular individuals who may continue to require protection as refugees.

The paper, A Dangerous Impasse: Rwandan Refugees in Uganda, criticizes efforts by the Governments of Rwanda and Uganda and the UN High Commissioner for Refugees to ensure that all Rwandan refugees in Uganda "voluntarily" repatriate by the end of this calendar year. In the event that some refuse to return of their own accord, the Ugandan government has stated that it will invoke the cessation clause to terminate the status of all Rwandan refugees by the end of 2010. The most recent tripartite communique from the Rwandan and Ugandan governments and UNHCR, in May of this year, stated that a mechanism would be created to address claims by Rwandans with compelling claims for continued protection in Uganda, but this process has yet to be established. This lapse is particularly concerning given that Rwandan refugees in Uganda were to be returned to Rwanda through "bilateral mechanisms" by the end of June, and that many Rwandans continue to seek asylum in Uganda.
The researchers interviewed over 100 refugees and stakeholders, and found that Rwandan refugees in Uganda had numerous reasons to fear return. First, the largely Hutu refugee population feared the gacaca courts, which they viewed as biased because they try only Hutus and because they can be easily manipulated for personal gain or revenge. Second, Hutus worried about the social imposition of collective guilt; one refugee, who was 10 years old at the time of the genocide, feared she would be blamed for the crimes of her parents. Last but certainly not least, the ongoing political repression in Rwanda led many politically active refugees to fear mistreatment upon their return.
The politics of the return of Rwandan refugees are far too complex for a short blog post (though the report takes an admirable stab at explaining them); suffice to say that the Rwandan government's motives for pushing voluntary repatriation are likely less than noble. Refugee populations are an indicator of democratic failures, and the Rwandan government controls its image rather tightly. The Ugandan government, in turn, is eager to move the refugees off its land, and seems to care little for their welfare in Rwanda. UNHCR's role is rather puzzling; perhaps the solution would be worse without its involvement, but it appears to be lending legitimacy to a rather dubious repatriation agreement. To be fair, UNHCR is short on sticks so must be generous with its carrots; one can only hope that it will be able to ensure a fair cessation process for Rwandan refugees in Uganda.

On June 27

On this day in ...
... 1950 (60 years ago today), President Harry S. Truman announced that he'd ordered U.S. troops to join South Korea in enforcing the June 25 U.N. Security Council Resolution 82, which, by a vote of 9-0 with 1 abstention, called for "an immediate cessation of hostilities" on the Korean peninsula and withdrawal of North Korean armies to the 38th parallel. Later on this same day, Council would vote 7-1 in favor of Resolution 83, which

Recommends that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore peace and security in the area.

War followed for years. Above left, a 1951 U.S. Army photo (credit) of Korean War refugees.

(Prior June 27 posts are here, here, and here.)

Pushing Back Against Italy's "Push-Back" Policy

Last month, the United Nations High Commissioner for Refugees submitted a third-party written intervention to the European Court of Human Rights in the case of Hirsi and Others v. Italy. The case was filed last May by a group of Eritrean and Somali asylum seekers, including children and pregnant women. who attempted to reach Italy by boat from Libya. When they were thirty-five miles south of Lampedusa (pictured below left), the Italian Coast Guard and Navy interdicted these vessels and returned their passengers to the Libyan authorities in Tripoli. Italian officials made no attempt to identify, let alone interview these asylum seekers. Most remain in temporary detention centers while some are in Libyan prisons. The Italian Interior Minister confirmed that this interdiction and return was conducted pursuant to a bilateral treaty concluded with Libya aimed at reducing irregular migration.
The case raises several important legal issues to which the UNHCR brief responds, namely the practice of interdiction or "push-back" on the high seas, the reception conditions and asylum process in Libya, and the scope of the principle of non-refoulement on the high seas. On the first point, to justify its interdiction practices, it was interesting to see that rather than citing sovereignty concerns, the Italian government cited international law, namely its treaty with Libya and the Protocol Against the Smuggling of Migrants by Land, Sea, and Air (supplementing the United Nations Convention against Transnational Organized Crime). The UNHCR contends that neither of these treaties overrides the Italian government's duty of non-refoulement. To highlight the importance of applying this principle in the case of interdiction near Lampedusa, UNHCR noted that in 2008, 75% of sea arrivals applied for asylum and 50% of those received protection.
The return to Libya is also seriously problematic under international law. Libya has not joined either the UN Refugee Convention or its Protocol, and it has no domestic asylum legislation or processes. As a result, asylum seekers who are caught in "push-back" operations are considered illegal migrants and subject to detention. The poor conditions in Libyan detention centers range from sanitation problems to sexual assault. Even worse, the Libyan government has reportedly concluded an agreement with the Eritrean government for the return of Eritrean nationals -- a guarantee of non-refoulement violations.
All this of course raises the much larger question of the applicability of the non-refoulement principle on the high seas. While there is no right to asylum under international law, UNHCR notes that non-refoulement applies in any territory under a the jurisdiction of a State Party to the ICCPR and to any person within the actual control of a State Party to the ICCPR or UNCAT, irrespective of her physical location. As a result, de jure and de facto jurisdiction exist on board a boat of an intercepting state, requiring that the principle of non-refoulement be respected on such a vessel.
The Hirsi case raises enormously important questions that need thoughtful and creative solutions. Italy appears to be trying to create a legal black hole, an arena in which legal constraints can be ignored; the dangers of such an approach have been amply demonstrated in recent years. Yet the difficulties of addressing mass influxes of undocumented migrants are serious, and include not only severe administrative burdens and costs but potential risks to national security -- not to mention the risks to the migrants of attempting such journeys in less-than-seaworthy vessels. Though the "Fortress Europe" approach of building higher fences has created significant problems, the ECtHR may struggle to dismantle these policies effectively. The case poses a serious challenge to the court's ability to protect human rights while ensuring that its decision is respected and enforced by member states.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

We as a nation should be humbled that the Haitian people, a people who rose above slavery, a people of great resilience and survival, wish to become part of our community. They want only the basics: education, food and shelter. In return they offer their cultural riches – their resilience, their art, their music, their beloved food and their beautiful laughter. The United States government should grant humanitarian parole to the Haitians in need ....

-- My colleague Holly Cooper (above left), Lecturer in the Immigration Law Clinic at the University of California, Davis, School of Law (Martin Luther King, Jr. Hall), in an op-ed in London's Guardian, entitled "How the US can help Haiti: Thousands of Haitians lost everything in the earthquake. The US should open its borders and start granting humanitarian parole." Holly's essay deftly invokes the Greek myth of Persephone in recounting her experiences earlier this month in Haiti, where she was part of "a human rights delegation intent on finding individuals for whom we could request humanitarian parole into the US."

Expulsion repulsion

Causing concern in France these days are cases in which the government's kicked out of the country women who've cried for help.
Among them is Najlae Lhimer (left (credit)), a 19-year-old student who resided in the north-central département of Loiret. As reported in Le Monde, she'd fled her home in Morocco in 2005 in order to escape from forced marriage -- only to end up living with a brother who "mistreated her regularly."
A few weeks ago Lhimer filed an official complaint alleging that she was the victim of domestic violence. Police responded quickly. But not as she'd hoped. Within days, she was sent back to Morocco.
Hers is not a unique case. It's reported that 4 battered women in Loiret have been threatened with expulsion or actually expelled. As a result, legislator Danielle Bousquet (below right (credit)) has urged

'a moratorium on the expulsions of foreign women who are the victims of violence.'

Protests have been ongoing, and more are planned for this weekend in the runup to International Women's Day, which as we've posted, is this Monday, March 8.

Haiti: Human Rights and Human Security

"Earthquake! We see the earth shake! But the soul of the Haitian people, It will never break!"

--Wyclef Jean
The Fundamentals
First things first. Like all IntLawGrrls and people around the world, I express my deepest condolences to the hundreds of thousands who lost loved ones in the Haiti earthquake of 12 January 2010. Our true feelings are beyond written expression.
We—the transnational or global “community”—must continue to support the Haitian people in their struggle for survival against the natural and man-made challenges arrayed against them.
In the first moments and days of crisis and catastrophe, no one (should have) needed legal provisions or principles to understand certain aspects of "the right thing to do." And, from Port-au-Prince, we saw that the vast majority did not. Neighbors and family members used their bare hands, blowtorches, hammers, and whatever tools they could find to answer the cries of those trapped under rubble. Survivors shared what little food or water could be salvaged from destroyed kitchens. Instant caregivers stabilizing broken bones with wood and cardboard and string, then ran through the streets carrying survivors toward emergency help. Pick-up truck and cab drivers became ambulance and hearse drivers.
Husbands and mothers waited for their wives and children, hearing faint voices in reality or only in their hearts and would not give up for days past what seemed to be the limits of survivability. And miracles happened. A 5-year old boy, then a 15-year old girl, did not give up even though trapped under tons of debris.
Self-help, Social Media, and "Old" Media Too
Anxious relatives and friends in New York, Miami, Boston, and other Haitian-American enclaves tried downed phone lines, then flooded Twitter and Facebook with information and requests for information about loved ones. Radio Haiti stayed on the air, relaying information throughout the country and to radio stations in the U.S. People shared information through Skype, and when cellphone networks went back up, even transferred text messages from underneath the rubble to rescue crews.
A Transnational Community
Rescue teams, physicians, nurses, and health workers from Jamaica, Cuba, France, Israel, the United States, Venezuela, Poland, and elsewhere threw their gear into bags and hopped on planes.
Adoption agencies worked with governments to speed through adoptions for children and already vetted prospective parents. Once a few banks and cash transfer agencies opened, remittances from the Haitian diaspora flowed like water into the country—even though the thousands waiting in long lines to receive them often could not gain access. Pre-earthquake estimates put remittances to Haiti from emigrants at 1.5 billion U.S. dollars annually.
Lawyers and law students held training sessions to assist Haitians in the United States obtain “temporary protected status” (TPS). Members of the Congressional Black Caucus and other legislators worked to pass bills aimed at increasing aid or supporting the cancellation of Haiti's foreign debt.
And the U.S. President and First Lady, keenly aware of the ongoing failures surrounding Hurricane Katrina (see posts here), sent strong statements of support, aid appropriations, (controversial) military support, and set up a bipartisan fund for private donations.
Even the news media sometimes dropped their cameras, or used them to direct rescue workers or aid agencies to areas where they were needed. Of course, they were needed everywhere….
Hollywood and New York entertainers used their talent to hold telethons like "Hope for Haiti Now" that kept attention focused, spirits uplifted, and the material support flowing.
In amazing acts of faith, resilience, and defiance, the people, who had nothing but their spirit, sang and marched through ruined streets…
The Impact of History
Nevertheless, human history is also full of the worst expressions of cruelty, self-interest, and ignorance as well. The legacy of such horrors and abuse have left their mark on Haiti as well. Haiti, a former French colony, was initially a place for French planters and colonial elites to grow rich on the backs of African slave laborers. Those kidnapped to the island were often, and quite deliberately, worked to death. The trade in sugar, rum (see IntLawGrrl Marjorie Florestal’s series on “the story of rum” here), and African peoples made the country a focus of international policy and conflict from the beginning.
Astonishingly, only days after the earthquake, a few misguided and uninformed U.S. opinion pieces speculated that the country’s contemporary poverty and lack of disaster response infrastructure should be laid squarely at the feet of “culture” or even religious tradition.
Thankfully, historians, legal and human rights advocates, and Haitian-Americans of all walks of life continue to correct the record. Among other things, the Haitian revolution of 1791-1803, led by Toussaint L’Ouverture (left, image credit here; prior post) resulted in the first successful African-led rebellion against slavery and colonialism in the West. The reverberations of Haiti's independence in 1804 were, and are, enormous: the Louisiana Purchase that opened westward expansion of the United States; a demand that Haiti pay bankrupting war "reparations" to France for lost "property" that included the former slaves themselves; support for African-American and Latin American liberation struggles; U.S. occupation of the country in pursuit of commercial and strategic interests; the encouragement of racial and class divides based on color and language; foreign covert support for ruthless dictators like “Papa Doc” and “Baby Doc” Duvalier and their tontons macoutes; discriminatory migration policies toward Haitian “boat people”; and international aid and economic policies that further undermined economic and human development.
Selected Resources
There are many historical, political, cultural, and legal accounts of Haiti's complex legacy. A few recent opinion-pieces and books follow:
►Sir Hilary Beckles, “The Hate and the Quake—Rebuilding Haiti” The Nation (Barbados)
►Guy-Uriel Charles, “Stop Calling Quake Victims 'Looters'”
►Mark Danner, "To Heal Haiti, Look to History, Not Nature"
►Edwidge Danticat, The Dew-Breaker
►Edwidge Danticat, Brother, I'm Dying
►Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor
►Tracy Kidder, Mountains Beyond Mountains: Healing the World: the Quest of Dr. Paul Farmer

►Randall Robinson, An Unbroken Agony: Haiti, from Revolution to the Kidnapping of a President
Guiding Principles
Positive initial reactions to disaster are often motivated by the best of what humanity has to offer. We’ve seen authentic miracles and authentic heroes and heroines go into and come out of the devastation. Their acts of courage and survival are beyond the confines of the law and legality. They rest firmly in morality and the resilience of the human spirit.
But even good intentions can be counter-productive or even harmful if states, humanitarian agencies, and ordinary people abandon the lessons of law and policy entirely. Transnational law helps to provide a much-needed framework for risk-reduction, preparedness, and responses that respect, protect, and fulfill human rights.
Here are a few key points from the “soft law” instruments (that draw on “hard” international treaties and customary norms) such as the “Hyogo Declaration on Disaster Reduction” (prior IntLawGrrls post) and the Guiding Principles on Internal Displacement.
State Responsibility. Although massive mobilization among charitable individuals and humanitarian organizations is essential and to be encouraged at a moment of crisis, the primary responsibility for reducing risk, preparing for disasters, and responding to them, rests with states. Where, as in the case of Haiti, there was significant logistical breakdown of the central government because of the disaster itself, the international community, in the form of the United Nations, must support legitimate governmental capacity in a coordinated way.
Why? NGOs, preferably those that are local or that have built long-term relationships with people on the ground often can move more quickly and determine key areas of need. They also have obligations to respect and protect human rights under the Guiding Principles. But it is governments that have the large-scale and sustainable capacity to provide earthmoving equipment, helicopters, planes, ships, and trucks, and to set up fully-equipped medical triage and treatment areas.
Obviously, individual small states, especially ones with already limited infrastructure, cannot do this alone where the needs of millions are involved. That is why, prior to disaster, all governments should be pressured to comply with their obligations under international human rights and humanitarian law and to assist others in doing so. When called upon by a government in need or by an international body such as the UN, governments around the world should be ready to respond quickly, efficiently, and without inappropriate strings attached.
Preparedness and Risk-reduction
Some lessons have been learned from the South Asian Tsunami, Hurricane Katrina, and other environmental disasters. Although certain disasters cannot be prevented, many can be prepared for. Building codes can be established and enforced, levees can be built to appropriate strength, tsunami warning systems can be established. Trade and agricultural policies that force rural to urban migration and urban overcrowding can be changed. Emergency supplies can be decentralized (a lesson of the tsunami) so that they can be better and more widely distributed even when roads are impassable. Evacuation plans should be in place. Governments and the international community need not wait for the heart-rending photos and videos to appear before taking action.
Coordination
Media and eyewitness reports in Haiti indicate that coordination has been haphazard and slow. Among other things, the UN peacekeeping mission to Haiti lost many of its most experienced people on the ground when a key office building collapsed. The initial outpouring of compassion is crucial, but so is coordination and planning. First responders, aid agencies, community leaders, the news media, local police, and the military must set up triage stations throughout the affected areas, assess the most urgent needs, and drop cross-organization barriers to the exchange of information.
“Vulnerable” Groups
I sometimes resist using the term of art “vulnerable groups” in humanitarian contexts because it seems to reinforce the popular perception that all survivors of disaster or displacement are helpless. The heroism of many Haitian survivors should demonstrate that that is not the case.
Yet, indeed, certain groups tend to be the most targeted or neglected in the days and weeks following a disaster.
Children: Thousands of children lost parents in the disaster. Speaking of culture and community, many are, or will be, cared for by surviving relatives or neighbors. But the Haiti disaster was so extensive that thousands of children may be left without adult care or supervision because so many adults have been killed or severely injured. Providing clean water, emergency medical care, food, and shelter to children must be at the top of the agenda.
As difficult as it is even to write, there are reports of actual or attempted child trafficking of unaccompanied or orphaned children. Needless to say, trafficking in persons is an international crime. It may also be so unthinkable to some that they forget or underestimate the risk. Both legal and practical strategies must be in place to prevent and stop human trafficking, reuniting children with their own relatives or placing them with responsible and loving adoptive parents after careful vetting. These, too, are "guiding principles."
The Elderly. Haitians who have lived to their 80s or 90s are, by definition, tough and resilient. They are also the bearers of culture, history, survival strategies, and family love. These mothers and fathers of the nation will need continuing medical care and emotional support. They will also be among those with the long memories and wisdom necessary to advise on transformative rebuilding.
Women. We've all seen the pictures in Haiti and elsewhere. After a disaster, as food aid and water trucks come in, the strongest young men push forward, leaving many women and children without. We've also seen that some are trying to provide for the women and children in their own families, but humanitarian workers know that distribution of aid to women is a partticular problem. There are reports that women-only aid distributions may finally be starting in Haiti, following the well-known truism that women tend to share the aid they receive within extended families and communities.
People with Disabilities. Unfortunately, the earthquake’s aftermath will increase significantly the number of people living with disabilities in Port-au-Prince and elsewhere in Haiti. Like others, they will need immediate medical care and other basic needs. But in a country where certain basic adaptive needs and jobs of all kinds are in short supply, they may experience social isolation, stigma, employment discrimination, and official neglect. Instead of warehousing the disabled in institutions, emphasis should be placed on rehabilitation, popular education about the capabilities of those with physical or intellectual disabilities, and even the creation of small businesses aimed at local adaptive needs.
Don’t Forget
By now, all readers are aware of the many organizations working toward a better life and human rights for the Haitian people. See posts by IntLawGrrls Diane Marie Amann; Jaya Ramji-Nogales, Naomi Norberg, Marjorie Florestal, and by me here.
Even if we are not in the region, we can pressure our own governments to enact or support just policies toward the country and its people. There will be other catastrophes, unfortunately, but don’t forget the joys and pain of Haiti.
In addition to Partners in Health, Oxfam America, TransAfrica Forum, and other groups previously mentioned in earlier posts, here are a few additional humanitarian and advocacy resources:

► CharityNavigator (to obtain information about charitable organizations)
► Hope for Haiti Now (telethon-based effort)

► Latin American and Caribbean Community Center (Atlanta, Georgia, U.S.-based advocacy organization)
► ReliefWeb (“serving the information needs of the humanitarian community”)

► Save the Children (child-focused humanitarian aid)
►UN Office for the Coordination of Humanitarian Assistance

►UNICEF (UN body focused on children and child development)
►World Food Programme