WHEN THE SUN SETS IN SYRIA, DOES THE WORLD AWAKEN?
Roshanara Abdul Rauf
This Article highlights the indifference of the EU and its neighbouring countries with respect to the ongoing Refugee crisis as well as the human rights of the Syrian refugees, complemented with statistics provided by international organizations like UN, Amnesty International etc. It emphasises the various International legal obligations under the International Humanitarian law, stressing that the protection of the refugees from violation of their human rights is not merely an ethical/moral obligation. The underlying issues in the crisis i.e. the various problems of Human rights violation that the refugees face in every step of their journey like Border Enforcement measures, loopholes in the current law etc. are analysed in-depth to formulate a solution consisting of various steps that can be taken to mitigate the crisis. The Article also attempts to find light in the darkness by indicating the initiatives that the European Union as well as other countries have gradually started to take in 2015. The conclusion provides the progress that has been made in the refugee settlement and the decisions of the European Court that serve as a glimmer of hope. It draws special importance on the need for a Global Action to bring an end to the largest refugee crisis since World War II.
The humanitarian crisis due to the armed conflict in Syria since 2011 leading to one of the world’s biggest refugee crises of all times, is a much talked about issue all over the media. The United Nations has listed more than 9 million Syrians as refugees and internally displaced people who are forced to live in hardship. The worst aspect of this crisis is the violation of the Human rights of the refugees involved in the crisis and the disheartening indifference of most neighbouring countries especially, those in Europe in abiding by its Human Rights obligations. Though the EU governments, acting on proposals from the European Commission have pledged to take a number of laudable steps to address various aspects of refugee crisis, the focus has now shifted to discouraging people from attempting to reach EU territory, tackling smuggling networks and rapidly deporting individuals.
Many countries including America have been refusing the resettlement of the refugees over fear of a possible security threat. The backlash against assisting refugees is largely due to the fear of an attack similar to nature of the Paris Attacks of November 13, 2015. The New Jersey Governor, Chris Christie refused to take any refugees including orphans under the age of five. The Louisiana Governor directed the State Police to track the Syrian Refugees in his State. However, the US State Department has held such fear to be misguided because the process of relocating refugees to America is highly vetted by the UN’s refugee agency and by separate officials from the State Department, FBI, Department of Homeland Security and Defense Department through an 18 months to 2 year process. Moreover, by rejecting the Syrian refugees the countries are in fact promoting the crisis in Syria because they are corroborating ISIS’s argument that the West will not assist Syrian Muslims and their only salvation lies in ISIS.
According to the United Nations, 222,000 lives have been claimed by the conflict in Syria, leaving one million people injured and 12.2 million people in need of humanitarian assistance. The UNHCR estimates that in 2015, 960000 people were in need of resettlement, including 316,000 in the Middle East and 279,000 in Africa.
INTERNATIONAL LEGAL OBLIGATIONS
Irrespective of whether the States accept the refugees or not, they have a legal obligation to respect the human rights enumerated in International and Regional instruments. The following international instruments which form the foundation for universal human rights principles emphasise that the protection of refugees is not merely a moral obligation but a legal obligation:
- Universal Declaration of Human Rights
The UDHR is the first International document that laid the foundation for all fundamental freedom and human rights in international treaties. Article 14 guarantees to all, the right to seek and enjoy asylum in other countries in cases of prosecutions arising from political crimes or from acts contrary to the principles of United Nations. Syrian refugees are entitled to the protection elucidated in Article 14 because of the political and religious persecution on them by the Syrian government as well as the Islamic State. This Article is applicable to 4 million refugees who have registered with the Office of the UN High Commissioner for Refugees since 2011. 
- Convention on the Status of Refugees, 1951
The key document with respect to the definition, rights and legal obligations of refugees enumerates multiple rights for the protection of the refugees during the crisis without discrimination based on race, religion or country of origin (Article 3).
The Paris Attacks have created a backlash against refugees from Syria, who are Muslims although they are attempting to escape from the extremism that motivated the recent terrorist attacks. Such a discrimination against Muslims is violative of Article 4 which provides that legitimate refugees cannot be disregarded on the basis of religious belief.
- Convention against Torture
Article 3 of the Convention against Torture which prohibits acts of torture and inhuman treatment provides that no State Party can expel a person to a State where he would be subjected to torture. The violent attacks and infliction of torture on the civilians of Syria is known to all. Thus, by virtue of Article 3, they cannot be returned to Syria.
THE PLIGHT OF THE UNHEARD VOICES
“The response to the refugee crisis in Europe has been piecemeal and incoherent at a time when the need for clear-sighted leadership and radical reform of Europe’s collapsing asylum system has never been greater”, says Director of Amnesty International, Europe, John Dalhuisen. An in-depth analysis of the problems faced by the migrants, proves his words right.
The migrants, face various obstacles in every step of their journey to reach a safe destination. Most migrants cross the Mediterranean which is considered, the world’s deadliest migration routine which pose the risk of drowning. They travel in a locked deck in unseaworthy boats with scarce amount of food and water accompanied with the threat of death lurking in every moment of their journey. As of November 10, 2015, the International organization of migration has reported more than 3455 deaths at sea during the attempt to reach EU.
The migrants also face threats from smugglers and traffickers in the migration route. They are held hostage in gruelling conditions for ransom from relatives, forced to labour in dangerous conditions, and detained in unsanitary smuggler run “safe houses” in Libya before departure to the Europe.
BORDER ENFORCEMENT MEASURES
Various border enforcement measures have been set up by the EU as well as the neighbouring countries of its member-nations to restrict entrance of asylum seekers, for example, fences such as those around Spain’s enclaves in North Africa (Ceuta and Melilla), at the Hungary-Serbia border, the Bulgarian-Turkey border, and the Greece-Turkey border. These fences leave the migrants with no choice but to use more dangerous migration routes such as swimming rivers. Throughout 2015, asylum seekers and migrants found themselves in chaotic and inhospitable scenes at EU borders in Italy, Greece, Croatia, Slovenia, Austria and Germany. The United Nations Secretary – General, Ban Ki-Moon warned the Balkan states that border restrictions based on refugee’s or migrant’s nationality infringe human rights and urged all states in the region to ensure that their policies on screening asylum seekers are in line with international refugee and human rights law, highlighting the urgent need for co-ordinated border management. Thus, it can be concluded that while States have authority to protect their borders and to detain migrants and to remove non-nationals, they are required to do it in compliance with obligations under International Human Rights law.
The definition of family by the UNHCR is narrow, excluding under age siblings, common law spouses and extended family relatives who have de facto become part of the family unit. This is one of the biggest obstacle that comes in the way of a refugee who seeks for reunification with his family.
Another hurdle is that a migrant cannot file a petition for family reunification unless he is recognised as a refugee. This delay causes great discomfort to the refugee and his family members, resulting in embarking on unsafe journeys through illegal sources and routes.
WHERE WILL THE CHILDREN PLAY?
Of the 12.2 million people in need of humanitarian assistance in Syria, 5.6 million are children. Many of them have lost family members, their homes and miss out on the essential requisites that a child needs for healthy development and growth – quality education, interaction with other children, safe homes etc. Half of the estimated 3.9 million Syrian refugees are children. The crisis is brutally unjust to the Syrian children, stealing their childhood away from them and violating their basic human rights. Children, being the most vulnerable population in any society the world has a moral and ethical obligation to protect them.
Children are more susceptible to malnutrition and diseases due to poor sanitation. The children labour in dangerous circumstances for a meagre sum of money to support their families. The unfamiliar dangerous conditions make the children more vulnerable to sexual abuse and exploitation. Due to the fear of molestation, Syrian parents opt to marry their girl children at the tender age of 13. Between 2 million and 3 million Syrian children are not attending school, reversing 10 years of progress in education for Syrian children.
Many Syrian children have grown up knowing only war. The children who are to be considered as Syria’s hope for better future has suffered mental and physical torture to such a level that Syria’s future is blotched with various disabilities. The crisis violates a myriad of rights of the children enumerated in the Convention of the Rights of Child, not limited to but including protection from arbitrary or unlawful interference with his or her privacy and family, protection from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child, Right to health, adequate standard of living, Right to Education, Right to Rest and leisure, Freedom from Economic exploitation, protection from sexual exploitation, protection from torture and degrading treatment and protection from armed conflicts. Art. 22 of the Convention states that a child seeking refugee status is also guaranteed to receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other International human rights or humanitarian instruments.
THE LOOPHOLES IN THE LAW
Schengen is an agreement signed in 1985 in the Schengen town in Luxembourg to abolish border controls among the European nations. This means that people in any Schengen country can travel free to any other without showing passport or visa. Due to this system, a migrant can easily pass between most countries in the EU without showing their passport or giving a background check by any government official.
Although the Schengen agreement initially had only five countries, it was later incorporated into the European Union’s 1997 Amsterdam Treaty with provisions to opt out for some nations. Currently, 22 out of the 28 European Union nations and Iceland, Liechtenstein, Norway and Switzerland are a part of the Schengen Area. Britain and Ireland have opted out.
This agreement is based on the mutual trust of the member nations. However, the recent flood of refugees and migrants have caused the member states to respond by temporarily re-imposing internal border controls. Chancellor Angela Merkel of Germany has warned that Schengen would fall apart if steps are not taken to manage the refugee crisis.
The member nations of the European Union signed the Dublin Convention in the Irish capital in 1990. It has gone through significant amendments to address various problems. The current version is called Dublin III. This regulation applies throughout the European Union and Iceland, Liechtenstein, Norway and Switzerland.
This European Union Law determines which member nation is responsible for processing requests of asylum seekers from outside the union. According to this regulation, the country where the asylum seekers first enter the union has a duty to register the asylum application and take fingerprints. If an asylum seeker, moves on to other countries after registration, he can be sent back to the former country through Dublin transfer.
The measure, which was designed to discourage refugees from roaming Europe before choosing where to settle, poses a formidable challenge for asylum seekers, who often desire to live in one of the prosperous nations of Northern Europe. Thus, the migrants are forced to find ways to traverse the countries in between without being noticed by the authorities or take unbelievable measures like burn their finger-tips in order to make the prints temporarily indecipherable. Moreover, this regulation also poses a threat to countries like Greece and Hungary, the first destination of most migrants from the Middle East, creating an unfair burden on these countries and failing to manage, in an effective and reasonable way, the onward movement of asylum seekers which is the stated purpose of the regulation.
The European Union has had a moratorium on Dublin transfers back to Greece Since 2011. Arguments and discussion regarding the modification of the regulation and redistribution of the migration burden more evenly across Europe have been taking place but, countries in the Eastern Europe have been resisting proposals for mandatory quotas.
The Panacea to the Legal Quandary:
The general agenda behind the steps taken to solve the influx of refugees is to do away with the inequitable distribution of asylum seekers among EU’s member states and introduce a fairer and just solution based on the country’s population, GDP, unemployment rates and the number of resettled refugees between 2010 to 2014. Emphasis must be laid on increasing resettlement places, humanitarian admissions, humanitarian visas and family reunification. The aim is to reduce the number of refugees undertaking dangerous journeys, reduce the pressures on the border countries of EU, ensure the refugees enjoy access to their human rights upon arrival to the borders and decrease the opportunities for smugglers to profit. The following steps may be taken by the EU for a proper settlement of the refugee issue:
Increase Safe and Legal Channels into EU
Efforts must be taken to increase safe and legal channels into the EU to reduce demand for smuggling and dangerous journeys, specifically through increased refugee resettlement, expanded family reunification, access to safe crossing options and effective search and rescue operations.
The European Union has, as of now, increased the budget of ‘Frontex”, its external border agency, operating in the Mediterranean. It has also introduced ‘Operation Triton’ with the aim to patrol and perform search and rescue in the Central Mediterranean and the International waters adjacent to Libyan Territorial waters. “Operation Poseidon” is a rescue operation in the Aegean Sea between Turkey and Greece whose budget was increased by the European Commission which all EU governments should implement by deploying financial, material and human resources.
The European Union must also take steps to facilitate journeys by ensuring the safety of the migrants via medical and psychological care, issuance of humanitarian visa etc. so that they do not have to resort to illegal smugglers and traffickers to reach their destination. “Operation Sophia”, the EU naval operation in the Mediterranean targeting smugglers carry out surveillance and intelligence gathering. In October 2015, they commenced a military operation to board, search, seize and divert migrant boats in international waters.
This mandates a requisite of ensuring that such a diversion does not expose the migrants to human right abuses, especially by getting trapped in Libya where they are subjected to violence. Thus, what is important is that while carrying on actions for anti- smuggling activities, measures for protection of refugees at sea must also be carried on simultaneously so that the interdiction and diversion policy does not result in causing the smugglers to take even more risks. A major aspect to be taken care of is the non refoulement principle that the EU law strictly abides by, which requires that the refugees are not forcibly sent back to a country where they would be persecuted. For this, the migrants in the intercepted vessels can be taken to safe ports in EU.
Temporary Protection Programme
A temporary protection programme could also be introduced to tackle this crisis. Temporary Protection programme was originally formulated by the UNHCR during the Yugoslavia conflict in 2001. It was subsequently adopted as an EU wide policy by passing the 2001 Temporary Protection Directive, currently active only in Turkey. Sadly, this directive has never been activated. This programme offers mass influx of refugees more benefits that that is generally provided to refugees. People granted temporary protection under the Directive would be granted permission to work, access to healthcare, education for minors, and could receive assistance with accommodation and social services if needed. They would also be reunited with eligible family members. The group designation could be withdrawn when the circumstances in Syria permitted displaced persons to return home safely or on the European Council’s decision.This would provide an easier medium for the host countries to assist a humanitarian crisis of this level without actually having to assimilate the refugees after the end of the crisis.
Improve Screening Process
The provision of safe legal channels to the EU, reducing the possible threat to the human rights of the migrants need not amount to an open door policy. To ensure the safety of the EU countries, there can be a screening process whereby the protection needs of the refugees can be assessed, and asylum may be granted based on their needs and human rights imperatives after a fair procedure. This would ensue that the human rights obligations of the EU countries does not risk their security.
For the purpose of family reunification, the authorities can consider expedition of the asylum procedure for asylum seekers who intend for family reunification by asking for an expedited review. The European Commission also encourages member states to apply their discretion to family reunification. The European Commission has called on the member states to use their discretion in the most humanitarian way to allow family reunification for extended family members if they are dependent on the refugee, after taking into account legal, financial, emotional or material support. This would reunite families as well as reduce the number of people risking lives to reach Europe.
Humanitarian visa is another medium which would aid migrants in reaching EU without threat to their life by approaching smugglers. Although the EU Visa code grants humanitarian visas that has no burdensome and time consuming requisites attached to ordinary visas, this scheme is not an EU wide scheme. Being ambiguous, it also lacks common guidelines and procedures. The crisis requires the introduction of a scheme for limited term visas which could be issued in embassies and consulates to individuals seeking for asylum. As of now, only 16 EU member states have a humanitarian visa scheme which they sparingly use.
A European Parliament study has provided various guidelines and recommendations for the introduction of visas valid in the entire Schengen Area with an independent uniform formal procedure as well as a mechanism for monitoring the issuance of the visas. With this view, the European Parliament is currently examining possible reforms to the EU visa code based on the European Commission proposal of 2014.
Hotspots for Asylum Seekers and Migrants
The European Commission has developed a new “hotspot’ approach as part of the immediate action to assist frontline member states in tackling the sudden influx of migrants. The “hotspots’ aim to provide a platform for the European Asylum Support Office, Frontex and Europol to intervene in frontline member states during crisis owing to migratory pressure. The EASO is to help in the processing of asylum seekers, Frontex is to help in coordinating return of irregular migrants and Europol and Eurojust is to carry on investigations to dismantle the smuggling and trafficking networks. A “Hotspot” is characterized by specific and disproportionate migratory pressure, consisting of mixed migratory flows, which are largely linked to the smuggling of migrants, and where the Member State concerned might request support and assistance to better cope with the migratory pressure.
The hotspots, theoretically designed to ensure streamline the process of refugee influx, can help in the management of the situation only if the migrants’ rights are fully respected.
Access to Fair and Efficient asylum procedure
Under the EU Charter of Fundamental Rights, the member states are obligated to grant a right to seek asylum. This is also given practical effect in various other EU laws and regulations which has been violated in various instances like fences around Spain’s enclaves in North Africa, at the Hungary-Serbia border, Bulgaria – Turkey border, Greece – Turkey border.
The following measures, as formulated by Human Rights Watch and Amnesty International can be taken to ensure a fair asylum procedure:
- Ensure access to a fair and efficient asylum procedure, as required by EU law;
- Guarantee adequate reception conditions, with special attention to groups with particular needs such as unaccompanied children, people with disabilities, women, the elderly, and the ill. This is also a requisite under the EU law.
- Ensure that the new asylum “hotspots” respect asylum seekers’ and migrants’ rights, including the right to an effective remedy; humane returns; and limitations on the resort to and length of detention;
- Ensure that any measures to streamline asylum applications to prevent or address backlogs and delays do not undermine due process rights;
- Ensure proper screening and referrals to services for asylum seekers facing protection risks, including gender-based violence and trafficking;
- Strict enforcement of EU asylum laws by the European Commission through more frequent infringement proceedings and litigation before the EU Court of Justice;
- Increased support from the European Asylum Support Office and the European Refugee Fund to underperforming member states;
- Replacement of the Dublin Regulation with a more equitable and permanent mechanism for determining the member state responsible for examining any particular application for international protection. Determinations should be based on rational criteria that take into consideration the capacity of member states and, to the extent possible, the wishes of the applicant.
- Refrain from maintaining a list of “Safe Countries of Origin” which fundamentally removes the element of fairness from one’s right to a fair and efficient asylum procedure and amounts to discrimination, violating various human right conventions including Article 3 of Convention relating to the Status of refugees which prohibits discrimination based on race, religion or country of origin. It prevents asylum seekers from obtaining refugee status and also results in refoulement.
Upliftment of Refugee Children and Their Rights
With Children forming half of the refugee population, it is necessary that steps are taken for their protection from all forms of discrimination, violence and exploitation. It is commendable that over 150 International organizations UN agencies and civil society partners are collaborating to strengthen the protection of refugee children. The UNHCR has taken laudable steps like investment in National Child Protection Systems, Strengthening Partnerships between itself and governments, supporting children, families and communities to better protect refugee children, enable access to education to every refugee child, give every refugee child a legal identity, prevent children from being separated from their family as well as promote unaccompanied and separated children and protect children from child marriage, child labour, trafficking and exploitation.
However, care must be taken that all refugee children entitled to protection have the opportunity to avail these facilities without any discrimination. There must be equal access to quality education and health care. Awareness must also be spread about the violent attacks on the children which would facilitate the privileged to aid the underprivileged. The procedures must be strengthened and the agencies must invest in research and data of affected children.
Increase Humanitarian Assistance
The UNHCR and the World Food Programme were not prepared for a refugee crisis of this scale. As a result, many refugee camps are crowded and undersupplied, subjecting people to cold, hunger and disease. Through the collaboration of various government agencies, NGOs and International organizations, efforts must be made into provide the basic needs or amenities like food, shelter, health and educational assistance to the refugees. It is high time that the developed countries stop ignoring the crisis and fund these organizations to meet the basic human rights of the refugees. Antonio Guterres, the UN High Commissioner for refugees, has warned that the global humanitarian community is “financially broke”.
Effective Remedy to the Victims
In order to avoid ill-treatment and torture inflicted on the refugees, an effective redressal system must be initiated which would ensure prompt, independent and thorough investigations into the human rights violation. The European Commission, the “guardian of the Treaties” must initiate a quick and effective system for any kind of Human Rights Infringement against refugees.
LIGHT AT THE END OF THE TUNNEL
In May 2015, the EU governments as well as Iceland, Liechtenstein, Norway and Switzerland pledged to take in 22,500 refugees through UNHCR-coordinated programs. Germany and UK has also pledged to take in refugees. The liberal government of Canada has pledged to take 25,000 refugees from the refugee camps in Jordan, Turkey and Lebanon by the end of February 2016. The United States of America has also adopted a plan to resettle 10,000 refugees nearly to every State in the country. The resettlement plan is based on a number of factors, most important being family reunification. Other factors include easy access to appropriate medical care for any other health condition, language abilities and available job prospects.
Another beacon of hope, is the recent decisions of the European Court of Human Rights. In L.M. and Others v. Russia, it was held that the deportation of three refugees (one stateless Palestinian and two Syrian) who had petitioned for refugee status in Russia to Syria violates the European Convention of Human Rights. The court referred to the UN reports which described the situation in Syria as a humanitarian crisis and held that Russia violated Article 2 (Right to life) and Article 3 (Prohibition of torture and of inhuman or degrading treatment). Russia was also held responsible for violating Article 5 (right to liberty and security) as they had kept the applicants in detention centres before their deportation and Article 34 ( right of individual petition) as they had failed to give the applicants an opportunity to meet their attorneys.
Khlaifa and Others v Italy is another decision where three Tunisian nationals were intercepted by the Italian coastguard and transferred to the Contrada Imbriacola reception centre for registration, which was overcrowded with unacceptable sanitation, inadequate space to sleep and no contact with the outside world due to constant police surveillance and faced severe obstacles and torture. The Court held that they were deprived of their liberty guaranteed under Art 5(1) of EHCR as there was no legal basis in domestic law for their detention. Italy was also held responsible for violation of Article 3 which guarantees human dignity as the detention at the Contrada Imbriacola reception centre violated Article 3.
It must be noted that, countries hosting the refugees currently, have been stretching their resources to the maximum. Lebanon and Egypt’s unemployment rates are in the double digits. Jordan is the fourth most water-stressed country in the world, insufficient to provide potable water for its own members. The political scenario in countries like Egypt is highly volatile. Turkey, has already spent $2.5 Billion for the aid of refugees, which exceeds the entire EU’s contribution to the crisis. According to Andrew Gardner, Amnesty International’s Researcher on Turkey, “Turkey is clearly struggling to meet even the most basic needs of hundreds of thousands… leaving the refugees to lead a life of destitution.” Jordan, although not a signatory to the Convention on the Status of Refugees, has offered refugees free access to public schools and health care with nominal charges. However, the refugee insurgent has taken a toll on the infrastructure of Jordan. This interprets that these countries, by themselves cannot continue aiding the refugees. It is not only shocking but also disheartening that just 2.6% of the Syrian refugee population have been offered resettlement places globally since the start of the Syria crisis and the Middle-Eastern countries have accepted zero refugees. The abandonment of the refugees by the International community and the indifference of the world’s wealthiest nations in offering financial support and resettlement is a shame to the Humanitarian Law. Thus, considering the ever-growing population of refugees, the need of the hour is for the world to come together and act as a United Front aiding the refugees through a global Comprehensive Plan of Action – a response with compassion, solidarity and shared responsibility.
To conclude, I quote Canadian Prime – minister’s optimistic message, “‘Right now there’s a 10-year-old girl in a Syrian camp somewhere and she can aspire that in 30 years or 20 years she might be sitting around the cabinet table helping run an extraordinary country like Canada,” hoping that more countries take responsibility to end this frightening crisis which is an embarrassment to the ideals of International Humanitarian Law.
 Roshanara Abdul Rauf, 4th Year Law Student, National University of Advanced Legal Studies, Kochi
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