by Bill Frelick
U.S. Committee for Refugees Director of Policy Bill Frelick analyzes the evacuation of Kosovar refugees from Macedonia to see whether it serves as a model for future refugee emergencies.
In the spring of 1999, Kosovar refugees were to Western leaders what U.S. prisoners of war had been to American leaders during the final years of the Vietnam war: rather than causing the war, the war had caused their existence; but, as the war progressed, resolving their fate became one of the principal aims of the war.
Never before had the return of refugees been articulated so emphatically as a primary objective of a war. Is this a precedent for the future? Western leaders breathed a collective sigh of relief in the summer of '99 when Yugoslav President Slobodan Milosevic finally did cave under the pressure of 78 days of NATO bombing, and hundreds of thousands of refugees rushed back to their homes. Many had worried that the war would drag on and that the refugees would remain in exile for months, perhaps years. Recent history has taught that the longer refugees are forced to wait outside their country, the less likely it is they will go home.
The traditional "international refugee regime" has experienced all-too-often the phenomenon of the "long-stayers" Palestinians, Afghans, Sahrawis, Eritreans who were not able to go home quickly, and who remained in exile, often warehoused in squalid camps, for generations. In light of Kosovo, one looks back on these seemingly intractable situations and wonders how the international community might have responded differently at the outset to have resolved the crisis and ended the refugees' exile before it became entrenched.
A key element in the equation is the importance the international community assigns to refugee repatriation and its willingness to alter the situation in the country of origin quickly and fundamentally so that refugees will be willing and able to go home.
The fact is that the traditional international refugee regime was not fundamentally oriented toward resolving the root causes of refugees in their countries of origin. It was based on the notion of asylum, or providing refuge first, and worrying about durable solutions later, often much later. The refugee regime, forged as it was during the Cold War, had what some have rightly called an exilic bias: the assumption that refugeehood, with some exceptions, meant permanent exile.
During the early- and mid-1990s, the international community challenged that assumption, experimenting with interventionist approaches in refugee-producing countries. These approaches emphasized not just quickly repatriating refugees but preventing their flight in the first place. While preventing or swiftly resolving the human rights abuses that cause refugees to flee is obviously the best outcome for the refugee, it became clear in the '90s that many refugee-producing situations were not readily preventable or soluble. In such cases, the international community grew impatient with the refugees themselves, calling into question its commitment to the traditional principle of asylum itself.
Kosovo appears to be a different approach: it includes the new-school component of intervention that fundamentally changes the situation in the country of origin, thus precipitating a rapid return; it also retains the traditional emphasis on providing asylum outside the country for the duration of the conflict. Does this provide a model that could be replicated in the future? To begin to answer this question requires us to examine more carefully the evolution of the refugee regime up to the Kosovo experience.
Traditional Refugee Regime Approaches
The international refugee regime has traditionally rested on a carefully wrought system of burden sharing intended to relieve pressures on countries of first asylum "which, through an accident of geography, are subjected to influxes of refugees from neighboring countries. In order to permit refugees to seek asylum from persecution outside their own country" a principle enshrined in Article 14 of the Universal Declaration of Human Rights-keeping the doors open to first-asylum countries has long been the sine qua non of international refugee protection.
Distant countries, frequently more stable politically and with greater resources than first-asylum countries, have lent support to countries of first-asylum not only through financial and material assistance, but by sharing the human burden through resettlement. Third-country resettlement has provided direct protection for refugees still endangered in countries of first asylum; it has also been used to convince first asylum countries to maintain open borders for new refugee arrivals. Finally, third country resettlement has offered a durable solution for refugees with no prospect for repatriation or local integration. It has not only given refugees a chance to start a new life, but has also helped to relieve first-asylum states of the long-term burden of integrating large refugee populations.
During the Cold War, the possibility of repatriation often seemed unrealistic, even illusory. Refugee policy makers articulated three durable solutions for refugees almost by rote - voluntary repatriation, local integration, or third-country resettlement. But only the third, resettlement, seemed to afford a genuine durable solution for most of the world's refugees, who had little reason during the Cold War to hope for the fundamental changes in their home countries that would allow their safe return, and no meaningful chance of being integrated in overburdened and unwilling countries of first asylum.
Vietnam: Resettlement The resettlement model took its essential form in the mid 1970s in response to the Vietnamese exodus. Following the triumph of communist forces in 1975, the international community widely recognized that Vietnamese refugees had no prospects for return and virtually no hope of permanently remaining in neighboring Southeast Asian states. Led by the United States, distant countries struck a bargain: the first-asylum states would keep their doors open and provide at least temporary asylum. In return, the distant states would bear the lion's share of the financial costs of maintaining the refugees in first-asylum, and would share the human burden by resettling refugees outside the region. During the next 20 years, more than 1.4 million Vietnamese were admitted to the United States and more than 900,000 to other countries.
The United States and allied governments applied the resettlement model to other refugee emergencies as well. At least some among the millions of Cambodians and Laotians, Afghans and Iranians, Ethiopians and Somalis found durable solutions to their plight as the United States and its partner resettlement states admitted them from countries of first asylum.
Screening was a key component of the refugee resettlement model. Although a refugee's initial escape across a border was usually sudden, chaotic, and uncontrolled, that refugee's permanent resettlement to a distant third country was usually highly organized, selective, and prolonged. However committed third countries might have been to the principle of international burden sharing, refugee resettlement remained discretionary; resettlement governments normally exercised their right to screen out persons not meeting the refugee standard, as well as undesirables who might fear persecution if returned, including criminals, suspected persecutors of others, but others as well with faults less egregious. The United States wrote this discretion into the Refugee Act of 1980, which provided the statutory framework for the resettlement procedure. The Refugee Act reserved resettlement to refugees "of special humanitarian concern" to the United States, often based, in practice, on specific connections to the United States, such as having family ties or for having been persecuted or threatened with persecution for overtly siding with the U.S. government.
The resulting system, while undoubtedly saving far more lives than those actually resettled, was nevertheless far from perfect. Countries of first asylum could legitimately protest that resettlement states were "creaming" off the best and the brightest, leaving them with the "residuals" - the unskilled, the unhealthy, the uneducated - those most threatening or burdensome to local communities. As the years dragged on, first-asylum countries also complained that the character of refugee flows changed, and that these migrants began to appear less interested in seeking asylum than in seeking resettlement. The first-asylum states complained of a "magnet effect" that would continue to attract refugee claimants motivated by the lure of immigration to Western countries, leaving the first-asylum states to contend with expanding pools of those screened out with no place to go.
These perceptions and realities led to attempts to "fix" the existing system, as well as efforts to replace it with an entirely new approach to impending refugee crises.
The international community tried two principal fixes of the system created to respond to Vietnamese refugees. First, in an effort to deter hazardous boat departures and to exercise greater control over who might enter and leave, the international community attempted to create an alternative means for would-be refugees to exit their country through orderly, legal departures directly from their country of origin.
In 1979, Vietnam signed a memorandum of understanding with the UN High Commissioner for Refugees (UNHCR) agreeing to allow Vietnamese with close family links abroad to depart legally. The resulting Orderly Departure Program brought 387,763 Vietnamese to the United States between 1980 and 1994, as well as 136,511 to third countries. This "fix," in turn, became a model for other large U.S.-engineered refugee admission programs: One for refugees from Cuba and Haiti, which also involved deterring dangerous boat departures; another focused on Soviet (and ex Soviet) Jews and Evangelical Christians, the largest in-country refugee processing program of all, through which the United States admitted more than 400,000 people between 1988 and 1998.
But when the orderly departure program did not stop the flow of Vietnamese boat people, the international community sought another fix. In 1989, under the prodding of the Asian "first-asylum" states (Hong Kong, Thailand, Malaysia, Indonesia, and the Philippines), the United States and UNHCR agreed to a Comprehensive Plan of Action (CPA) to end the Vietnamese refugee dilemma.
The key components of the CPA were the screening of boat people to determine whether they met the internationally accepted definition of "refugee"; the resettlement of genuine refugees in third countries; and the safe repatriation of nonrefugees to Vietnam. The CPA included reassurances that countries in the region would continue to offer temporary asylum until durable solutions could be found. In what perhaps was an unprecedented development, the country of origin was directly involved in the international effort to resolve the problem. Vietnam agreed both to allow the expansion of orderly procedures for exiting the country and to allow UNHCR access to monitor the treatment of returnees. Vietnam pledged not to prosecute returnees nor to take punitive or discriminatory measures against them.
The CPA proceeded slowly and not without difficulty and controversy. Although it initially envisioned that all returns of screened-out boat people would be voluntary, involuntary returns of the screened out gradually became accepted by the key players, including UNHCR and the United States. Finally, the CPA succeeded in its aim as a deterrent to new massive boat departures. From 64,000 Vietnamese boat departures in 1989, the number fell to 32,000 in 1990, 22,000 in 1991, and fewer than 50 in 1992.
By this time, however, the international community was devising radically new approaches to control refugee flows. The two new models were: 1) safe havens inside the country of origin; and 2) temporary protection regimes in countries of asylum.
Although, as noted above, the traditional refugee regime upheld the principle that people have a right to seek and enjoy asylum from persecution outside their country, the international community never agreed to bind itself to that principle. The 1951 Refugee Convention only mandates that no refugee should be forcibly returned to a place where his or her life or freedom would be endangered. It does not include a positive requirement to provide asylum, although this appears to be a corollary of fulfilling the nonrefoulement (involuntary return) injunction.
Northern Iraq 1991: Safe Haven In the aftermath of the Persian Gulf War, the anti Iraq alliance devised a way to avoid refoulement and yet not provide asylum outside the would-be refugees' country of origin.
As an exodus of Iraqi Kurds massed on the Turkish border, the United States, Great Britain, and France declared a "safe haven zone" in northern Iraq. Unlike the Vietnamese refugee experience, in which the United States had cajoled and coerced Thailand, Malaysia, and other neighbors of Vietnam to provide temporary asylum, this time, the United States agreed to help Turkey to keep the refugees out and to deny them asylum.
Pushing refugees back at their border normally constitutes refoulement. Here, however, the Western Alliance declared that it was providing a protective shield inside Iraq, thus avoiding returning refugees to persecution, even while returning them, or compelling them to stay, within the territory of the persecuting state.
Stopping refugee flows at the point of origin, while providing humanitarian benefits, nevertheless politicized the international response to refugees as never before. As the United States experienced first hand during the 1980 Mariel Boat exodus, refugee flows can serve to relieve internal political pressures on refugee-producing countries while destabilizing refugee-hosting ones.
A decade later, with the Cold War behind it, the international community was no longer willing to accept this dynamic. Focus shifted away from providing asylum outside the country of origin: the international community committed itself to protecting first-asylum states and to keep the pressure on refugee-producing states. The outstanding question was that of the safety of the refugees themselves: Would they become pawns in a test of wills between their home government and its adversaries? Focus on preventing flows and keeping would-be refugees in the country of origin shifted the international community's focus away from the relatively straightforward humanitarian task of caring for refugees after they have fled their country and seeking durable solutions on their behalf; instead, it moved toward creating short-term protection in pockets within the country of origin while seeking fundamental changes that would enable the displaced to go home.
Northern Iraq 1996: Evacuation In the case of Iraq, that didn't happen. Saddam Hussein stayed in place, and, over time, the international community's commitment dissipated. Foreign troops departed, and soon Baghdad began testing the strength of the protective umbrella. By 1996, infighting among the Kurds, largely precipitated by their sense that the safe haven could not be maintained indefinitely, allowed Iraqi government forces to penetrate the zone and kidnap and kill scores of people in Erbil, the northern capital. The international community responded with token gestures, signalling its unwillingness to intervene forcefully again on behalf of the Kurds to stop Saddam Hussein's forces from compromising security in the enclave.
As in 1991, Turkey refused to open its borders to Iraqi Kurdish refugees. But there was no longer an alternative for their safety inside Iraq. The international community had painted itself (or, more accurately, the Kurds) into a corner. They now had no safe place to flee and no safe place to stay.
Faced with a potential disaster for thousands of Kurds who had worked closely with the U.S. government in the safe zone, the United States persuaded Turkey to allow about 7,000 Iraqis (including hundreds of non-Kurds who had been engaged in U.S. supported political opposition activities) to transit Turkey and then proceed immediately to the U.S. Pacific territory of Guam.
This "evacuation" marked a radical departure in U.S. refugee policy. In the past, whether in Thailand or Pakistan, the United States would bargain with its ally to keep its borders open to the refugees and would help pay for the cost of camps or other assistance. After attending to initial emergency needs, the laborious process of screening candidates for resettlement would begin. The United States had the luxury of screening in the camps, a process that often went on for years. In the post-CPA era, it was also understood that persons not screened for resettlement had few other options but eventually to go home.
The expedited evacuation process conducted under emergency conditions left little opportunity for thorough, individual screening of the Iraqi evacuees. Once the evacuees were flown to Guam, the U.S. authorities had few options for handling undesirables whom they judged to be a danger to the United States. They couldn't be returned to Turkey; the United States had long since abandoned the idea (if it had ever entertained it) of asking Turkey to provide first asylum for Iraqi Kurds. Nor could they be returned to Iraq, where their lives would be in danger. In fact, the U.S. authorities detained about two dozen of the evacuees suspected of being Iraqi-government agents, placing them in controversial removal proceedings, which begged the question: if found removable, to what place would they be removed?
The safe haven innovation created to avoid providing asylum outside the country of origin "rather than to support first asylum through third-country resettlement and other burden sharing" left the United States without good options once the safe haven collapsed. The U.S. government's evacuation of some thousands of people who worked directly for it or for U.S.-based humanitarian organizations was the least it could do under the circumstances. Operation Provide Comfort was not a promise of safety to the 7,000 locals involved in the U.S. humanitarian operation, but rather to more than one hundred times that number; it was a promise of protection to all the civilians of the region, to the hundreds of thousands who had clamored at the Turkish border in 1991. After 1996, it was unclear how the United States and allied governments would react if the Iraqi Kurds were forced, once again, to the brink and found their escape to neighboring countries completely blocked? Did the 1991 precedent absolve Turkey of any responsibility? Did the duty of first-asylum countries at least to provide temporary refuge die on the Turkish border with the quiet acquiescence of the international community?
Haiti: Interdiction and Off-shore Safe Havens
The Haitian refugee crisis from 1992 to 1994 directly confronted the United States with defining the responsibilities of a first-asylum country-in this case, itself. Rather than open its own doors to a mass refugee influx, as it had so often called upon poor third-world countries to do when confronted with much larger numbers and far fewer resources, the United States contrived various means to shirk its responsibility. Most egregiously, for a time, it interdicted and summarily returned Haitians with no screening. Although this, on its face, was refoulement (the return of a refugee to a place where his life or freedom would be threatened, a violation of Article 33 of the Refugee Convention and Protocol), the U.S. Supreme Court gave this practice its blessing.
In Sale v. Haitian Centers Council, the Court rendered a convoluted opinion holding that the Convention and Protocol are not self-executing and that U.S. law, which implements the prohibition of refoulement, only applies within U.S. territory. The Court thereby invited the U.S. government to frustrate the purposes of the Convention, to which it had bound itself, by going outside U.S. territory, where it could interdict refugees and return them arbitrarily to persecution.
Although the U.S. Supreme Court essentially gave the Clinton Administration carte blanche to abuse refugees extraterritorially, the Administration appeared uncomfortable with such arbitrary power. After several false starts, it found a "safe haven" outside both Haiti and the United States-the U.S. naval base at Guantánamo Bay, Cuba. Interestingly, Guantánamo bore one particular similarity to northern Iraq: ultimate sovereignty rested with an enemy state, in this case, Cuba, but actual control was in the hands of the United States.
However, unlike at Guam, the site of the later Iraqi evacuation, the U.S. Immigration and Nationality Act (INA) does not apply at Guantánamo. Refugees could be held there indefinitely without screening, without due-process rights. The Iraqis who were taken to Guam had the good fortune to have been taken to a place where they had the right to seek asylum and to contest their removal. They had not been admitted to the United States under the provision of the INA governing refugee resettlement, section 207, which would have accorded them refugee rights and benefits automatically upon arrival; instead, they were required first to undergo an asylum interview, according to INA section 208, which governs the asylum procedures for persons who arrive in the United States on their own. The Kurdish evacuation was ironic in that the evacuees were brought to U.S. territory on U.S. military transport in a planned and organized manner. Yet, legally, they were treated as spontaneous arrivals.
Nevertheless, this gave the Kurds a distinct advantage compared with their Haitian counterparts: the Kurds had the promise of permanent protection if granted asylum; at best, the Haitians at Guantánamo could hope for temporary protection, in harsh conditions.
While the United States had no expectation that the Iraqis would repatriate, it assumed that the Haitians would return to Haiti from the very beginning of using Guantánamo as a refugee camp. One can only speculate the extent to which the refugee tail wagged the foreign policy dog. In any event, the United States and its partners intervened in Haiti, sending in international troops and restoring President Bertrand Aristide to power. Six months after Guantánamo was established as a temporary safe haven camp, it was essentially shut down. The U.S. authorities declared a fundamental change in Haiti that meant the refugees could safely return. Those who refused to return voluntarily were forced back.
Africa: Erosion of Traditional Principles of Welcome Other countries with less developed legal traditions, and less capacity to care for refugees than the United States, were quick to pick up on the Sale precedent. This had a particularly dramatic impact in Africa. Prior to Sale, Africa had shown a consistent, continent-wide history of openness and generosity toward refugees. The Organization of African Unity (OAU) charter included a more expansive refugee definition than that of the West. In 1996, however, the world watched in dismay as one West African country after another turned away the aptly named Bulk Challenge, a freighter brimming with Liberian refugees. The U.S. precedent presented an opportunity for Côte d'Ivoire, Togo, Ghana, and Sierra Leone to retreat from asylum principles that heretofore had been honored on the African continent. Prior to 1994, the principle of first asylum was widely respected in Africa; since then, adherence to the principle has been an open question.
When the crisis erupted in the Great Lakes region in 1994, the safe haven concept was formally broached for the first time in Africa, thanks to the French. Operation Turquoise, a "safe humanitarian zone" created by the French in southwest Rwanda for fleeing Hutus in 1994, showed the extent to which humanitarian rhetoric could be bent to political purposes. Operation Turquoise was a unilateral French initiative, endorsed by the UN Security Council, to create a safe haven in a corner of southwest Rwanda. Although the region had been the scene of Hutu acts of genocide directed against the Tutsi minority, France's intent, it appeared, was to provide protection and support to members of the deposed government, the pro-French architects of the genocide.
While the displaced Hutus in the humanitarian zone of southwestern Rwanda could be fed and sheltered, and did, indeed, avoid much of the misery their compatriots endured in the Zairian refugee camps in Goma, they were not safe. Armed, extremist Hutu militia members operated openly in the zone, continuing to kill Tutsis living there and intimidating those Hutus living in camps who wanted to go home. Citing security concerns, and insisting that it was safe for displaced civilians to return, the new Rwandan authorities demanded that the camps in the southwest be closed, including Kibeho, the largest camp, which held up to 120,000 people.
In April 1995, after France had turned over the operation to UNAMIR, the Rwandan Patriotic Army (RPA) moved to force the displaced out of Kibeho. Machete wielding Hutu extremists in the camp provoked a violent confrontation with undisciplined RPA troops who, in full view of UN peacekeepers and international humanitarian relief organizations, committed a massacre, killing at least hundreds, and probably thousands.
In 1999, the principle of asylum was on much shakier ground throughout the African continent. Kenya periodically closed its borders to Somali refugees, and toyed with the idea - or at least the rhetoric -of establishing a safe haven on the Somali side of its border. Guinea also repeatedly closed its border with Sierra Leone in 1999, and forcibly returned young Sierra Leonean men, among whom were persons who might have had legitimate claims to asylum.
Western Europe: Temporary Protection and Safe Havens The Western Europeans' reaction to the influx of Bosnians was not unlike that of the United States toward the Haitians. Porous land borders ruled out high seas interdictions and warehousing refugees on island compounds. However, the Western Europeans were equally intent on preventing Bosnians access to asylum procedures and due process rights, and fashioned a "temporary protection" regime predicated on the return of the Bosnians to their homeland. Hand in hand with the temporary protection regime came a visa regime restricting Bosnians' access to most West European territories, and, in due time, the UN Security Council declared "safe areas" inside Bosnia, supposedly obviating the need to escape.
The safe area rhetoric never became a reality, and the safe areas, at least in retrospect, looked decidedly unsafe and, to most, like an excuse for the international community not to intervene to stop the ethnic cleansing and not to provide asylum in their own territories for its continuing victims.
Today, although some European states, particularly in Scandinavia, have allowed Bosnians who are unwilling to return to remain as permanent residents, others, particularly the German-speaking states, continue to insist that the Bosnians must return.
Kosovo: Hybrid of Traditional and New Approaches
Many of these dynamics were at work during the Kosovo refugee crisis of 1998 and 1999. The international response demonstrates different lessons learned from the experiences of the past several years. The different interpretations of "humanitarian evacuation," and perhaps the future relevance of this concept, are closely tied to the way host countries view their prior experiences with refugees. Fundamentally, resettlement versus evacuation depends on whether a government views the hosting of a refugee as a permanent commitment or as a temporary expedient. This directly affects the seriousness or the willingness of the affected host countries to intervene inside the refugee-producing state to fundamentally alter conditions so that refugees will be able to return safely.
At first glance, the Kosovo experience might seem a return to traditional principles and practices. The international community exerted pressure on Macedonia to keep its borders open. It backed that pressure by offering to share Macedonia's burden, both financial and human, as evidenced by a humanitarian evacuation program (HEP) that brought more than 90,000 refugees out of Macedonia and transferred them to third countries, sometimes at great distances from the region.
But, at best, it was a hybrid. Generally, host countries did not offer the refugees resettlement with the option to remain permanently (a notable exception being the United States), but only temporary evacuation. (U.S. officials initially planned to revive Guantánamo or Guam as temporary holding centers for the Kosovar evacuees, but on further consideration decided to admit them to the mainland as refugees with full benefits, including the right to remain permanently. Because of the expedited processing, they were brought first to the Ft. Dix military base in New Jersey to complete the process, but were quickly moved to local communities. Unlike previous resettlement programs, the U.S. offered to waive the Kosovars' travel loans and pay for their return to Kosovo if they later chose to repatriate.)
Although the Kosovar evacuees' brief stays did not last long enough for an analysis of the rights and benefits they enjoyed in the countries of tempor