Foundations and Violations of the Rights of Refugees

According to article 1 of the Refugee convention: “the term refugee shall apply to any person who as a result of events occurring before January 1951 and owing to well funded 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 a  fear is unwilling to avail himself to 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” (Hathaway, 2005, pp.96-97). Refugee rights are matters of international law to the extent that they derive from one of the accepted trio of the international law sources: treaties, customs or general principles of law (Hathaway, 2005, p. 15).

There is the 1951 Convention relating to the status of refugees and its 1967 protocol including freedom from forcible return (art. 33), access to courts of law (art. 16), education (art. 22), public relief and assistance (art. 23), social security (art. 24), freedom of movement (arts. 23 and 31) and identity papers (art. 27). Regarding employment, Refugees are to receive the most favorable treatment accorded to nationals of a foreign country, restrictive measures imposed on aliens for the protection of the national labor market shall not be applied to the refugee who has completed three years’ residence in the host country (Ferris, 2008, p. 87).

Article 44 of the Geneva Convention states that “the detaining power shall not treat as enemy aliens exclusively on the basis of their own nationality, of an enemy state, refugees who do not,  in fact,  enjoy the protection of any government” and article 73 of the related protocol states that “persons who, before the beginning of the hostilities, were considered as stateless persons or Refugees shall be protected persons in all circumstances and without any adverse distinction” (Ferris, 2008, pp. 87-88).

Most fundamentally, people flee their homes, communities and nations because of various forms of human rights violations and existential threats. In line with the training manual of the Office of High Commissioner for Human Rights (OHCHR) the people who reach a refugee camp are already persons who have suffered a series of human rights violations (Ferris, 2008, p. 85). Such violations can cut across economic, social, cultural civil and political rights. Ironically those people whose rights have been grossly violated end up suffering further and even worse violations in refugee camps. This is especially true given the pathetic life conditions in the refugee camps which are often located in the remote peripheral areas of the hosting countries; areas often devoid of the necessary and basic human needs and social amenities. The Dadaab refugee camp hosting the Somalia refugees in Kenya is a case in point. The camp is located in the northeastern part of the country, a place that even the Kenyan government has officially recognized as marginalized. The life of refugees in the hot environment of Dadaab, harsh weather conditions and the lack of desirable facilities for enhancement of conducive existence surmount in the untold sufferings of refugees.  These harsh conditions are partly the reason for hostility, crime, prostitution and other social evils by refuges. They may include the drive to join terrorist groups.

Refugees especially women have suffered a lot of violation of fundamental rights especially through sexual assault in their struggle to obtain asylum. So many countries in the world have made turf rules and others have even sought to block refugees from accessing this fundamental right to seek and attain asylum. European countries have been at the spotlight on their violation of this right to seek asylum, for instance, “at the regional level the meeting of European Union immigration ministers in London in 1992, preoccupied with control rather than asylum rights, endorsed a number of restrictive immigration and asylum measures ranging from expanded visa requirements to the expeditious handling of the manifestly unfounded asylum claims” (Loescher & Milner, 2008, p. 46).

Under the principle of non-refoulement of the 1951 refugee convention, “no refugee should be returned to any country where he or she is likely to face persecution, other ill treatment or torture” (Goodwin-Gill & McAdam, 2007, pp. 202-284). This principle requires all states therefore to grant asylum to all genuine seekers without any restriction or discrimination. The problem is the lack of commitment of states in the implementation of this principle. States will always hide behind the national security challenges especially with the modern time threats from terrorism to violate this right to asylum seekers.

In as far as refugees have got very impressive guards against the violation of their basic rights, it is unfortunate that they are often subjected to gross violations of their rights to alarming levels. The experience on the ground can make anybody to come into realization that, “Refugees often face significant restrictions on a wide range of rights” (Loescher & Milner, 2008, p. 20). An increasing number of host states respond to refugee situations by pursuing policies of containing refugees in isolated and often insecure camps, typically in border regions for instance the already cited case of Dadaab refugee camp in the northeastern part of Kenya. Many governments are now putting restrictions on refugees seeking to move out of the camps and even more turf ones on those who are seeking for education and employment to earn a livelihood forcing many refugees to depend almost entirely on relief aid by humanitarian agencies.  “The prolonged encampment of refugee populations has led to violation of a number of rights contained in the 1951 Convention including the right to movement and the right to seek wage-earning employment” (Loescher & Milner, 2008, p. 30). Even the professional qualifications of refugees are often not recognized by the host countries.

Education, health, care and other national and local social services are limited in refugee setups. All these violate the human rights because human rights are applicable to all human beings and are based on human dignity. This kind of treatment and lack of the very basic human needs counts against both the letter and the spirit of the international human rights law.

Refugees do not only possess the inalienable rights proper to any human being, departing from the dignity of a person but also they have rights pertaining to their special status and since 1951 the international organizations especially the humanitarian ones have been keen in putting in place mechanisms aimed at ensuring respect of those rights. The UN through its humanitarian arm, United Nations High Commission for Refugees (UNHCR) has been especially charged with the responsibility over refugees and it has over the years endeavored to ensure not only the humanitarian assistance to refugees but also championing for their rights. However, this has not been without its share of challenges. Among the most disturbing ones are the violations of the rights of refugees in which the most vulnerable groups are greatly affected.