As of March 2017, key figures from the United Nations Office for the Coordination of Humanitarian Affairs estimates that more than 5 million refugees have fled Syria, with 6.3 million internally displaced and a total of over 13 million in need of urgent humanitarian assistance. Turkey has accepted a large number of the refugees, hosting over 2.8 million refugees, comparably with Europe where less than 900,000 applicants since 2011 have applied for asylum, data retrieved from 37 European countries that provide UNHCR with monthly figures. Additionally, countries such as Lebanon has taken in over 1 million and over 650,000 have fled to Jordan, two countries that have not signed the United Nations Convention Relating to the Status of Refugees adopted in 1951 and further still, the 1967 Protocol Relating to the Status of Refugees that extended the former boundaries that were initially limited to Europe so as to enable universal coverage. Article 1 of the 1951 Convention nevertheless transformed the international status and human rights of refugees by providing a single definition:
“As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Like many instruments that developed at the time, the convention strengthened principles particularly relating to the fundamental rights of refugees such as non-discrimination and particularly non-refoulement, the latter where asylum seekers are forced to return back to a country where they there may be a strong likelihood of experiencing persecution in a number of various ways. It also reinforced the universality of international human rights law without exception to State provisions as well as prejudice toward race, religion or country of origin.
Nevertheless, there have been a number of concerns relating to the effectiveness of the Refugee Convention and its Protocol in managing the influx of refugees and demonstrated by the huge number of asylum seekers displaced from the Syrian War. Some of these failures have enabled discussions on reforming the instruments to deal with the crises of asylum seekers to suit the current economic and social conditions and to satisfactorily manage a system fraught with problems. One of these includes the convention’ failure to ameliorate new global changes to social, demographic and national environments that render it ineffective to adequately deal with the logistical, financial and humanitarian aspects of the influx of refugees. While taking a rights-based approach, both the refugee convention and the protocol fail to address the complexities of man-made catastrophes and the unique regional differences that causally play a role in these catastrophes. As such, it has been argued that a holistic approach is required to enable better considerations of regional and cultural attitudes that enhance a decisive clarity of the causes in order to measure, prevent and manage man-made disasters. It is clear, for instance, the dynamics of ISIS in the Middle East, the ramifications of the gulf-war, oil and water politics and the post-colonial economic hardships that have enabled destabilising political regimes demonstrate the necessity for a holistic approach specific to the Middle East.
In order to compare the possible effectiveness of a holistic approach to the concerns raised by the recent influx of Syrian refugees, development of a number of additional instruments that attempt to define the legal confusion on the status of a refugee in other regions have been adopted. In 1999, the Tampere Council – a special European Council meeting held in Tampere – attempted to improve changes to immigration as well as consolidate foreign and security policies through the opportunities that the Treaty of Amsterdam afforded. The Treaty of Amsterdam altered the former Treaty of Maastricht [where the development of supranational institutions such as the European Court of Justice was initiated] and includes a number of protocols and declarations that empowered the European Union to develop legislation that would effectively coordinate policies and procedures more effectively, along with strategies that would strengthen intergovernmental cooperation subject to protecting its own interests. Since then, there has been an ongoing development to improve legislative frameworks that recognise, for instance, the importance of the financial output during an influx of those seeking asylum and thus established the European Refugee Fund [ERF] that administers financial support to member countries to manage and resettle refugees and displaced persons.
Syrian children who have fled into Jordan and Lebanon are being illegally exploited and due to their status are forced into labour rather than schools; despite countries like Jordan being a signatory to the International Convention on the Rights of the Child.
Representatives that drafted the 1951 Convention also desired signatories to exceed the demands set out in the convention, thus it was not long after that the European Union developed The Qualification Directive. This followed the Temporary Protection Directive that was developed due to the poor management vis-à-vis violence in the former Yugoslavia that resulted in large numbers of displaced persons in the region and thus, under exceptional circumstances such as war, became a process to provide temporary protection. It sought to exemplify minimum standards for refugees, stateless persons or third-country nationals that required international protection and develop a common policy on asylum by advancing the Common European Asylum System Agency (EASO), as well as facilitate better cooperation between member states by improving protection and “affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution.” The Common European Asylum System guaranteed standards of protection where asylum seekers are treated fairly and with dignity. The Qualification Directive established a criterion that would qualify the minimum standards that confirms the status of a refugee and thus regulating the process that determines the granting of international protection. An act of persecution must be sufficiently serious that would violate human rights including act of physical, sexual and psychological or any disproportionate legal prosecution that would result in discriminatory prosecution.
And yet, with what appears to be a small number of refugees from Syria seeking asylum in Europe comparably to other States, none of these instruments have been put to use, on the contrary, it appears that there may either be a hesitation as the limited timeframe for providing asylum for a maximum of up to two years to Syrian refugees is not realistic in relation to the ongoing length of the war, or there is a hidden exclusivity to these instruments limited to the possibility of use in the event of a European catastrophe. UN High Commissioner for Refugees determined that the needs of the refugees require hefty financial support and pledged nine billion at the conference in London. While financial support would enable countries experiencing an influx of refugees to manage the economic strain, it is clear that the ERF may still struggle to manage, whereby OCHA estimates that a total of $3.4billion dollars is required to fund a humanitarian response plan for the life-saving assistance to 13 million Syrians in need of urgent humanitarian support, funding that has only reached 11.3% of this required target.
Other failures also include no guarantee that unaccompanied children will have access to legal representation, along with the absence of provisions that deal with Internally Displaced Persons (IDP), knowing that within in Syria there are 6.3million IDP’s that require urgent assistance. That is, the Convention does not “apply to those refugees who have a status equivalent to nationals in their country of asylum.” It has been argued that the Convention should be reformulated to address these issues however the potential problem to removing and establishing a new convention is that it would still fail to address continuous regional changes that may impact on the development of even more disputes. For instance, the United Nations Committee on the Rights of the Child stated that States “shall not return to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child,” and while they clarified the responsibilities of States to ensure how the assessment of this risk should be conducted, this risk is nevertheless open to interpretation. For instance, Suresh v Canada questioned procedural fairness whereby even if a refugee is at risk being tortured, they can be deported to their homeland if they conversely a serious risk to Canadian security. Procedural fairness without the inclusion of assessing unaccompanied minors or other vulnerable groups including women who are pregnant or survivors of serious trauma that have developed serious mental health issues may lead to prejudicial outcomes.
Other global and regional instruments enacted to ensure adequate support for asylum seekers are effectively taking place can act as a catalyst to developing changes to the Middle East. In Africa, for instance, where a number of political and social instabilities have resulted in an influx of refugees, established the Organisation of African Unity and the Convention Governing the Specific Aspects of Refugee Problems in Africa that attempted to ameliorate a stronger understanding of the legal or political aspects to refugee protection but specific to Africa. Together with the Cartagena Declaration on Refugees in Latin-American, the protection of refugees within the instruments were extended to include a more demographically and culturally appropriate – thus holistic – approach to regional affairs that the Convention and its Protocol were unable to adequately compliment, thus enabling better responses to mass displacement. For instance, while the convention and the protocol are rights-based instruments, OAU Convention seeks to address humanitarian responses to mass influx of refugees by enabling its member States to legislate domestically in order to address and protect all those seeking asylum. It additionally clarified the differences between groups of refugees as a result of a disaster with individual refugees seeking protection.
The United Nations estimates Lebanon is housing 1.14 million Syrian refugees and not being party to the Refugee Convention and Protocol, Lebanese domestic laws that purport any person without legal documentation within its boundaries are considered illegal have left Syrian refugees without legal status. In fact, while Lebanon is constitutionally bound by customary law and other human rights obligations being a signatory to a number of human rights conventions, not becoming party to the 1951 Convention or its following Protocol has left only a Memorandum of Understanding (MOU) with the UNHCR as the only instrument to assist refugees coming from Syria. UNHCR has noted that even with the MOU protection remains notoriously difficult. Domestic legislation in Lebanon governing refugees is extremely limited whereby Law of 1962 regulating the Entry and Stay of Foreigners in Lebanon and their Exit from the Country fails to provide legal protection and other important human rights services for Syrian refugees. Unlike OAU Convention that treats individual and group assessments based on contingent situations such as fleeing war or other man made violence, the provisions of the 1962 law treat individual cases. “Any foreigners who is subject of pursuit or has been convicted for a political crime by a non-Lebanese authority or whose life or freedom is threatened because of political considerations may ask for political asylum.” As such, Syrian refugees in Lebanon are without any legal protection and according to Article 32 of the 1962 Law, can be fined and even imprisoned as illegal entrants. While the MOU signed between Lebanon and UNCHR enables the latter to ensure temporary residence permits are provided as a solution – albeit temporary – to the problem with Syrian refugees, the limited time (of a maximum of nine months) may not be estimative of the realistic timeframes necessary to support them pending the continued violence in Syria. Clarification of renewing residency permits remains ambiguous and any rights including seeking employment are extremely limited, if not non-existent and leaving refugees in an incredibly vulnerable position. This was further delayed when the Lebanese government requested that UNHCR suspend registrations of Syrian refugees in 2015.
The image below exposes the horror of what happened to almost 75 Syrian women who fled the war and were tortured and forced into sexual slavery within ‘Chez Maurice’ in the Lebanese town of Jounieh. Notwithstanding the horrible men involved in this disgusting trafficking incident, it also shows the failure of the government to protect asylum seekers and why it is so important.
While Lebanon has recently enacted changes to domestic legislation amid continued discussions relating to the status of refugees, in particular waiving fees for Syrian refugees fleeing the war [a charge of US$200 that was introduced in 2015], this unfortunately excludes a large number who were unable to register with UNHCR, almost half a million. The impact of these failures in Lebanon can have devastating effects to the rights and protection of Syrian refugees since by having no legal status and being at risk of imprisonment, movements become restricted and in order to survive many refugees are becoming victims to exploitation. According to the final report on Syrian refugees in Lebanon by Freedom Fund, incidence of slavery and human trafficking is growing including child labour and marriage, sexual exploitation and forced labour that clearly exemplifies why ratification of the 1951 Convention and its 1967 Protocol is necessary. In addition, children from families without residency permits in Lebanon are unable to obtain a formal education as well as access to healthcare for families including pregnant women whose children are at risk of statelessness. It is also clear that existing regulatory frameworks are modified along with domestic legislation protecting Syrian refugees from harm including exploitation and trafficking is afforded. Although Lebanon is constitutionally bound by the customary law principle of non-refoulement, recent talks between Lebanon and the Syrian opposition to return those seeking asylum – whereby Hezbollah stated that they have been mediating the possible return of refugees from the Arsal border to the Qalamoun region in Syria – that begs the question of whether non- refoulement procedures are adequately adhered.
According to Amnesty International, while Jordan is hosting over 650,000 refugees, in mid-2016 it closed its borders that stranded over 75,000 Syrian refugees between the Syrian-Jordanian borders in the horrific al-Rukban and Hadalat refugee camps within desert conditions. This is not a problem with Jordan alone, whereby Human Rights Watch has also reported shootings against Syrian refugees attempting to enter the country at Turkish borders. Whilst citing security concerns amid threats from ISIS, the strain that Jordan has experienced economically due to the lack of international aid has pressured the government to regulate occupation that only Jordanian citizens are allowed to work in, forcing asylum seekers toward illegal working conditions. Jordan also signed an MOU with UNHCR that enabled recognition of refugee status for a duration of up to six to twelve months but consideration of the massive influx of Syrian refugees was not adequately deliberated as domestic law similarly observe a case-by-case basis. In addition to this, each of the individuals fleeing are required to have documentation, something that clearly may not always be possible considering the situation. Constitutionally, Jordan must adhere to international customary law on non-refoulment, where extradition of political refugees is prohibited.
With the surmounting difficulties along the borders of Lebanon and Jordan, the clarity and necessity of including internally displaced persons within the international framework becomes clear as millions of Syrian refugees are unable to flee. The United Nations– along with reaffirming – has called upon States such as Jordan and Lebanon to become party to the Convention. Regarding the problem of stranded refugees along the Jordanian-Syrian border, comparatively the OAU Convention explicitly reaffirms that in the even where a member state may find it difficult to continue granting asylum it will appeal to other Member States of the OAU to assist in supporting them. As such, the development of a similar regional instrument amongst Middle Eastern States that touch on relevant concerns specific to the demographics and culture would be an important step forward to strengthen a cohesive process for Syrian refugees to adequately manage man-made disasters as well as improve processes for countries such as Jordan and Lebanon to better protect asylum seekers. It will also ensure that compliance to the States’ ratification of the relevant instruments along with a complementarity between the regional and international refugee protection frameworks are adequately observed. Other improvements and regulations would be the consistent pressure to ensure Lebanon and Jordan ratify the 1951 Status of Refugees Convention and its 1967 Protocol, as well as honing down on better domestic legislation that will ensure legal protections are provided to refugees and asylum seekers. With stronger mutual cooperation in the Middle East, the distribution of services to victims of mad-made disasters specific to regional affairs may protect women and children from becoming victims of exploitation.