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A REJOINDER

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By Guglielmo Verdirame and Jason Pobjoy

Michael Kagan’s recent post “Why Do We Still Have Refugee Camps?” provides a characteristically thoughtful overview of some of the challenges facing refugees in urban environments. Unsurprisingly we agree with the vast majority of Kagan’s arguments. In particular we agree that the 2009 Urban Policy is a welcome shift away from the refugee bias inherent in the incumbent 1997 Urban Policy. Contrary to what has been suggested, in our article “The End of Refugee Camps” we do not ask UNHCR to apologise for the legacy of the 1997 Urban Policy, although, like Kagan, we consider that it would have been more honest for the organization to acknowledge that the 1997 Urban Policy was wrong in principle, rather than just ill-suited to our times.

We also agree with Kagan that evaluating UNHCR practice in implementing its revised policy is difficult. In contrast to some of the other critiques cited in Kagan’s piece, we largely avoided these issues on the basis that we considered that, when we wrote the piece, such evaluation was premature; however, like Kagan, we emphasized the critical link between implementation and accountability.

Our issue with the 2009 Urban Policy is not its implementation (or, according to some, lack thereof), but rather aspects of the Policy itself. Although we consider that the Policy contains a number of positive features—indeed, the majority of our article is focused on outlining those features—it is clear that it also suffers from some critical flaws. Perhaps most significantly, in several respects the policy does not accord with international law.

We have been criticized for failing to take into account the behind-the-scenes negotiation and diplomacy involved in producing the 2009 Urban Policy, particularly in light of the entrenched refugee camp bias inherent in the 1997 document. Jeff Crisp is right to draw attention to the work of the Policy Development and Evaluation Unit which he headed until recently: the Syrian report to which he refers is one of a number of important studies written or commissioned by that Unit which have advanced critical thinking inside UNHCR (including on the question of encampment) and more generally contributed to the field of refugee studies. But we do not agree with the proposition that our failure to delve into the background of the 2009 Policy makes our criticism simplistic, for —as should have been clear — our criticisms are based on a face-value assessment of legality.

Our specific concerns with the 2009 Urban Policy are set out in detail in our article, which we would invite readers to look at. The primary concern is that the refugee camp bias is still evident in the revised Policy. For example, under the Policy financial assistance will only be provided to refugees in urban environments “if they have a demonstrable need to be in that location”.

A related concern is that the 2009 Urban Policy is inconsistent with the principle of freedom of movement, enshrined in Art. 26 of the Refugee Convention and Art. 12(1) of the Civil and Political Covenant. In particular, the policy’s analysis of the right to freedom of movement is infected with the idea that the exercise of this right should be assessed against whether an applicant has “good reasons” to be in an urban environment, or whether this would cause “difficulties” for state authorities. There is no place in international human rights law for the fungible notion that the exercise of a fundamental human right requires “good reasons”. Restrictions on freedom of movement are, in some cases, permissible — so why not adopt a policy that admits such restrictions by reference to existing legal criteria rather than to novel and looser standards?

To move the debate forward, we would draw attention to two important developments. The first one is the landmark decision of the High Court of Kenya upholding the human rights of out-of-camp refugees. UNHCR’s amicus curiae submission in that case advances an analysis of freedom of movement that is far closer to our position than to the 2009 Policy. The judgment of the Kenyan court also vindicates the argument, made among others by Harrell-Bond and Verdirame in Rights in Exile, that the involvement of local courts should be encouraged.

The second development concerns Jordan. As the report cited by Jeff Crisp confirms, the Jordanian government has changed policy on camps: having resisted the introduction of camps during the Iraqi refugee crisis, they are now building them for the Syrians. Today, the Za’atari refugee camp, near the Syrian border, is the world’s second largest refugee camp, behind Dadaab in Kenya. A recent report of the Brookings Institution has referred to Za’atari as “an awful place, with serious security problems”. Plans are presently underway to build another camp in Jordan capable of housing a further 130,000 Syrian refugees.

What was the impetus behind the Jordanian government’s drastic change in policy? A recent article appearing in the Time Magazine (27 July 2013) cites a senior UNHCR official who appears to suggest that the push for the shift in policy (i.e. a push for the creation of refugee camps) may have come from UNHCR itself. The senior official states that “Jordan was initially opposed to a camp” on the basis that Syrians were their “brothers and sisters” and were therefore allowed to “go directly into major cities”. In response to critics of the idea of building a refugee camp, the UNHCR official’s response was “whatever you want to say, we have to do it”. Although by no means seeking to downplay the complexities involved in dealing with the mass-influx of refugees from Syria, if the premise of this article is correct the UNHCR ought to be called upon to justify its decision to push the Jordanian government to revert to camp-based protection, rather than to support the initial, arguably more humanitarian views of the host government.

 

This contribution was dated 28/08/2013

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