RWANDA’S GENOCIDE REFUGEES

March 5th, 2012 by Leonard Birdsong


Brooks Gentry, one of Professor Birdsong’s Refugee and Asylum students graduated from Barry Law in December of 2011.  Mr. Gentry had travelled to Rwanda in the past and wrote a very interesting paper on Rwanda’s genocide refugees.  He has given me permission to publish it here on my blog.  Read and learn.

RWANDA’S GENOCIDE REFUGEES

AND INVOCATION OF

THE 1951 REFUGEE CONVENTION’S

SECTION C’S CESSATION CLAUSE

 Brooks N. Gentry[1]

I.          INTRODUCTION

             Rwanda is a small, beautiful country in Central/East Africa, surrounded by the very large Democratic Republic of Congo (DRC) to the west, Tanzania to the east, similarly small Burundi on the southeast and popular Uganda to the northeast.[2]  Sporting the stunning lake views and beautiful beaches of Lake Kivu, along with the worlds best Gorilla Trekking in Volcans National Park, Rwanda is a world traveler’s destination.[3]  As spectacular as its scenery, Rwanda, however, also has a dark side.

            According to the United States Central Intelligence Agency, Rwanda was almost independent from Belgium when, in 1959, the then King, a Tutsi, was overthrown by the majority ethnic group, the Hutus.[4]  For years thousands of Tutsi were killed and driven into nearby countries, particularly those named above.[5]  A generation later, in the 1980’s, the children of these Rwanda exiles formed a rebel group known as the Rwandan Patriotic Front (RPF).[6]  The RPF, the Tutsi children of parents who had been driven out of their homeland Rwanda, began a civil war in Rwanda in 1990 between the Hutus and the Tutsi’s resulting in hundreds of thousands of deaths.[7]  Finally, in 1994 a state orchestrated mass genocide occurred in which Rwandan citizens killed one another, often family members and neighbors killing those they had known their entire lives.[8]  Later in 1994 the RPF took control of the Hutu militias and the genocide ceased, while as many as two million Hutu refugees fled Rwanda, many afraid of Tutsi retribution upon Hutus who remained home.[9] 

            Of these almost two million refugees, most have returned home.[10]  However, some have not.  For those who have not left their current host country, many reasons keep them there; fear of persecution upon returning to Rwanda among them.[11]  Until recently, returning home and facing these fears was not as threatening as it now is for the over 100,000 refugees originating from Rwanda and still living in a host country.  However, this month, in December 2011, the exercise of one small portion of one large law may change these refugees’ futures beyond their control.

Rwandan refugees have been afforded protections since 1994 under The 1951 Refugee Convention (Convention).[12]  The Convention is the key legal document that provides refugees with their identity, their rights, and the obligations nations must maintain for them.[13]  Subsequent to the 1951 Convention, the 1967 Protocol (Protocol) removed time and geography limitations, allowing the Convention to reach even further to protect refugees.[14]  It is within the Convention, and by way of the Protocol, that one clause finally being called to act may put Rwandan refugees directly in the face of harm, again.

The currently troubling clause is known as Article 1C(1)-(6).[15]  Sections (1)-(6) are factors by which, should a refugee find themselves within the circumstances of any one of the factors, the “Convention (and its protections) shall cease to apply to any person falling under the terms of Section A…”[16]  Because Rwanda is purported to be experiencing recent political and economic stability, the circumstances in connection with which the refugees have been recognized have ceased to exist.[17]  It is therefore suggested that because one of the six factors is satisfied, the Cessation Clause, as Article 1C is known, should be invoked, and the Rwandan refugees currently residing in neighboring countries should be forced to return home.[18] 

While some suggest this one of the six factors is satisfied, there are others who feel the circumstances in connection with which the refugees’ status and protections have been recognized have not ceased to exist.  In addition, there are also those who suggest the determination criteria, particularly the question of whether or not one of the six factors is satisfied, should itself be changed.  Because of the uncertainty surrounding the circumstances and criteria involved, I suggest the invocation of the Cessation Clause be suspended until new determination criteria are adopted and/or until a deeper analysis of the circumstances is more thoroughly exhausted.     

II.         RWANDA AND GENOCIDE HISTORICAL SYNOPSIS

            A.        Rwanda, its people, their history.

            Centuries ago Rwandans were ruled by Tutsi kings in a centralized monarchy.[19]  Tutsi was the main clan, but other clans, including Hutu, lived peacefully together.[20]  In 1899, Rwanda became a German colony and over the next several decades the Tutsi and Hutus began battling over power.[21]  The Belgians gained control of Rwanda in WWI and the power of the Tutsi, despite their then being the minority, increased over the Hutu majority.[22]  By 1959 the two clans were embroiled in a massive clash, resulting in devastating civil unrest and the exile of as many as two million Hutu.[23]  In 1962, after Belgium and the UN National Assembly realized the ancient nature and extent of the ethnic divide within Rwanda, Rwanda was granted independence.[24]

            Unfortunately, upon gaining independence, the first government structure that was set up continued to discriminate against the Hutu.[25]  Tutsi from outside Rwanda attempted to invade Rwanda as well but were repelled, which lead to Hutus retaliating against Tutsi living in Rwanda.[26]  By 1973, a bloodless coup took place, ousting Rwanda’s second president and replacing him with a man who ultimately dismantled the Rwandan government, turning it into a single party power.[27]  Eventually, to counter this single party political structure and its statelessness, genocide ideology, and repeated massacres, the Rwanda Alliance for National Unity (RANU) was created in 1979 by Rwandan refugees in exile.[28]  In 1987 RANU became the Rwandese Patriotic Front (RPF).[29]  The RPF was set on overthrowing the single party power, the result culminating into civil war; and by 1990 both entities were fully engaged against each other. 

            B. The 1990’s: What happened, why, and what came next.

Politically the country began to divide and new political parties emerged, including opposition.[30]  Outside countries attempted to mediate the situation and ensuing power struggles, but to no avail.  Peace agreements and cease fires were sought and obtained, but failed.  Eventually, the dictator was killed in a mysterious plane crash, leaving the country confused and in turmoil.[31]  Raging violence spread quickly, with both Hutu and Tutsi being killed in huge numbers, and the RPF soon gaining political control.[32]  The RPF focused heavily on Tutsi and raided the countryside, killing as many as half a million people in a matter of just weeks.[33]  The RPF leader, a Hutu, declared himself the new leader of Rwanda on July 17, 1994.[34]  Nearby countries, in a desperate attempt to moderate the bloodshed, accepted him. 

Immediately work began to address the millions of refugees who fled Rwanda during this time.  By March of 1995 it was determined that about 2.5 million refugees then lived in Burundi, Uganda, and Zaire (now the DRC), and they were very reluctant to return home.[35]  Not only were many  afraid to return back to Rwanda, but because both Hutu and Tutsi refugees just fought one another, they found themselves fearing each other in their new host country too.

In 2000, new elections resulted in the current President Paul Kigame claiming power.  Under his tenure, Rwanda has, indeed, experienced major political, economic, and social progress.  Peace and stability are evident to those who travel to Rwanda, although locals are not completely certain.  However, to the international community, Rwanda appears to be well on its way to a positive transformation. 

The capital city, Kigali, is clean and very orderly.[36]  New Gender Laws aim to protect women’s rights.[37]  Rwanda’s legislative processes have become engaged and 58 new laws have recently been passed by Parliament, all aimed at economic success.[38]  In addition, in 2010 the government established the Ministry of Disaster Management and Refugee Affairs (MIDIMAR), in hopes of providing much needed attention to the issues related to today’s Rwandan refugees.[39]  While these changes may appear compelling, they do not tell the entire story nor fully capture some sentiments expressed by Rwanda’s current refugees. 

 

III.       THE 1951 REFUGEE CONVENTION AND SECTION C

            The Office of the United Nations High Commissioner for Refugees was created in December of 1950 by the United Nations General Assembly.  The UNHCR’s mission is to protect and provide support for refugees worldwide.  Its foremost purpose is to safeguard refugee rights and well-being, including the right to seek refuge and asylum in another state, “with the option to return home voluntarily, integrate locally, or to resettle in a third country.”  Stateless people are also helped by the UNHCR.  After WWI, many people sought refuge in other countries.  Governments responded by creating travel documents.  By WWII, millions were displaced and governments began setting guidelines and rules to follow concerning refugee treatment and the protection of their human rights.  In July of 1951, a diplomatic conference in Geneva resulted in a collection of laws known as the 1951 Convention.[40] 

            Originally the Convention only applied to refugees who fled their home country before January 1951, and within Europe.  In 1967, the Convention’s only amendment took place, removing these time and location restrictions.  The result of the 1967 Protocol, as the amendment is known, is that the protections afforded to refugees by the Convention now apply worldwide.  The Convention itself is not original in thought either.  In fact, it stems from the 1948 Universal Declaration of Human Rights, particularly Article 14 which provided the right of people “to seek and enjoy in other countries asylum from persecution.”  In less than 20 years since 1948, refugees worldwide had gained universal protection.[41]

            The Convention defines factors that must be met for a person to qualify for refugee status and thus refugee protection.  A refugee is defined by the Convention as someone who “is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.[42]  The Convention is guided by principles such as non-discrimination, non-penalization, and non-refoulement.  Refugees should not be discriminated against, or penalized for their status, or returned home regardless of fears of threats to his or her life or freedom.  In addition, refugees should be treated according to specific standards, such as availability to documents and courts, and the right to work.  The Convention also has exceptions, such as not protecting those seeking asylum for reasons such as war crimes.  Other basic principles of the Convention include facilitation of travels, unity of the family, welfare services, international cooperation, and continued advancement of the improved refugee treatment provided by the Convention.[43]

            Section C of the Convention defines when protections no longer apply.  This section is collectively known as the Cessation Clause.  First, protection ceases if a refugee voluntarily re-avails himself to protection from his home country.[44]  Or, secondly, if having previously lost his nationality, he voluntarily reacquires it.  Third, if a refugee gets a new nationality, and she enjoys protections from this new country, Convention refugee protections cease. 

Similarly, if a refugee voluntarily reestablished herself back home after leaving or staying away due to fear of persecution, refugee protections no longer apply.  Fifth, Convention protection ceases when “she can no longer, because the circumstances in connection with which she has been recognized as a refugee have ceased to exist, continue to refuse to avail herself of the protection of the country of her nationality; Provided that this paragraph shall not apply to a refugee falling under Section A(I) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of his country of nationality.” 

Lastly, and most important to Rwandans currently living in another country, “being a person who has no nationality is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence; Provided that this paragraph shall not apply to a refugee falling under Section A(I) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.” 

            These Cessation Clauses can be put into two categories, those that become activated based on actions of the refugee him/herself, and then another category for numbers five and six since their activation is based on a change in the circumstances that originally extended refugee status and protection.  It is this second category and the fact that its invocation is based on a change in circumstances provided by someone other than the refugee, usually government, that requires enhanced scrutiny.  By their very nature, changing circumstances require keen, in depth, and perhaps most importantly, objective and fully transparent analysis.        

            Other Articles of the Convention provide an array of other protections, to both refugee and host country alike.  Article 12 provides the host country the right to govern the refugee according to the host country’s own law.[45]  As well, certain rights, such as marriage, should be honored by the host country like it would be in the country of origin, provided the host country itself already recognizes such a marriage by its own laws.  Article 17 provides refugees with a wage-earning employment opportunity, while Articles 20, 21, and 22 provide product rationing, favorable housing treatment, and elementary public education, respectively.[46]  These are integration policies aimed to help refugees overcome the challenges they face so they may hopefully start a new life for themselves. 

Article 33 provides refugees one of their most cherished protections, the non-refoulement clause.  “No contracting state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”[47]  If going home threatens your life or freedom due to one of the five reasons above, you shouldn’t be forced to go back.  This is a highly subjective determination, based on whether or not circumstances back home have actually changed.  Unfortunately, this determination of circumstances if often conducted objectively; without giving due consideration to the subjective views of those involved.  It is this disconnect between circumstance determinations that is putting Rwanda’s refugees at great risk, and why I feel the invocation of the Cessation Clause should be suspended.  

IV.       INVOKING SECTION C’S CESSATION CLAUSES

            A. Why invocation was proposed for Rwanda.

            Article 1(C)(5) & (6) are known as the “Ceased Circumstances” clauses.  These cessation clauses are rarely used, and entail a host of difficulties in their application.  Among these difficulties are 1) assessment of the ‘fundamental, durable, and effective’ change in the home state; 2) fair processes for making this assessment; 3) provisions regarding the exceptions to these clauses; and 4)  the feasibility of involuntary return after previously being protected by the refugee’s host country.[48]  Regardless of these difficulties, Rwanda is moving forward with invoking these clauses.  The question then becomes, why?             

            According to the UNHCR, Rwanda has experienced relatively stable politics in recent years, due particularly to Pres. Kagame’s successful economic, social, and political measures.  As mentioned above, Gender protection laws, MIDIMAR, and other legal tools have been implemented by the government in its effort to further stability and peace.  In addition, the Rwandan government is working towards specifically enhancing the circumstances under which repatriation of Rwandan refugees may occur.  Asylum countries, especially Burundi, Uganda, and the DRC are working hand in hand with the UNHCR and Rwanda to expedite this process.  Among these efforts are the promotion of tolerance and acceptance of refugees, fair access to improved determination processes is continually carried out, security from violence and exploitation is increased, basic needs and services are being improved, and finally, durable solutions are being proposed such as informational campaigns, reintegration assistance, monitoring activities, and the promotion of resettlement.[49] 

            There are other reasons for Rwanda’s desire to invoke the Cessation Clauses as well.  Kigali, the capital of Rwanda and the seat of its government, is claiming that conditions within the country have changed so substantially since the 1990’s and the 1994 Genocide that its refugees no longer need to fear returning home.[50]  However, Rwanda’s motivation may be running deeper since security issues between itself and Burundi, the DRC, and Ugandan have been brewing for years in response to resentment of these host countries towards the Rwandan refugees.[51]  These countries have claimed that supporting the refugees places an undue burden on their own governments and that Rwanda needs to take back these burdens. 

In addition, refugees outside Rwanda fear that if returned involuntarily, some may face unwarranted prosecution and/or persecution based on their suspected involvement with the 1990’s wars and Genocide, even though the refugee may have had no criminal involvement at all.  The Rwandan government has had a long standing desire to locate and prosecute all those involved in the Genocide, and by invoking the Cessation Clause, those refugees who escaped such prosecution may be forced to return, and in doing so, lose the protections they have been afforded by their host country.  While repatriation to some may seem attractive, to others, it may be a death sentence, even though on the surface it appears they would be returning to a now stable homeland.        

            B. Are these reasons for cessation clause invocation valid?

            According to some scholars, the simple fact that some Rwandans are, to this day, still fleeing the country demonstrates that Rwanda has not yet achieved the stability it’s claiming to possess.[52]  Rwanda does not have a long existing track record of democratic elections, amnesty declarations, oppressive law repeals, fair and open trials, and the dismantling of former security services that promoted genocide ideology.[53]  In addition, while Rwandan purports to have put in place services to help those who repatriate, issues such as return of land and property rights and sufficient means for providing oneself a livelihood remain problematic.[54] 

            In speaking directly with the refugees themselves it has also become clear that some still have a well founded fear of involuntary repatriation.  Some claim that invoking the cessation clauses amounts to deportation from their host country, a place where they have, over the course of years, finally settled into.  Yet, despite this new found feeling of personal security and safety, being forced to return to Rwanda would be unsettling and would generate the same insecurity they fled from almost 20 years ago. 

            Rwanda’s Pres. Kigame also has his own explanation for why invoking the Cessation Clause is valid.  According to Pres. Kigame, invocation would address the following four issues:  1) the status of conditions under which refugee protections existed has totally changed and the protection no longer fits the situation; 2) perpetuating refugee protections actually supports the refugee industry and those who profit from it; 3) some people are hiding behind their refugee status and should be forced to return home to answer to justice for their prior wrong doings during the wars; and 4) some refugees are not fleeing for typical reasons such as fear of persecution but are turning other reasons such as poor economics into excuses by which they avail themselves to refugee protections even when they don’t truly fit the criteria.[55] 

            Of course, it does depend on who is being asked if invocation is valid.  The host countries also have their own reasons for supporting repatriation.  These reasons include but are not limited to the financial and economic burden refugees place on their countries, the social unsettling that occurs with the influx of non-nationals into their countries, and the security issues these refugees present to their host countries as some of them partake in criminal activity, often in an attempt to bolster rebellion against their home country.  Even the UNHCR itself has suggested that these reasons be considered when determining whether or not to invoke the Cessation Clauses and it appears these considerations carry significant weight in the process.     

            C. Expected results (good and/or bad?) of invocation?

            If the Cessation Clauses are invoked now, both good and bad may come of it.  “We are pleased that the UNHCR recognizes that peace and stability have returned to Rwanda so that refugees have nothing to fear.  People returning home will find a country transformed from the Rwanda they left many years ago, we will welcome them and encourage them to play a role in our countries development.”[56]  According to the Rwandan government, the expected results of invocation will be good.  Transparency of the justice system has been ensured to refugees still living in host countries.  Successful reintegration and reconciliation, along with return of refugee property are touted as major incentives provided by MIDIMAR mentioned above.  Each returning refugee is afforded three months food rations along with household utensils, and free transportation to their home districts. Free medical is also said to be provided.  According to the Rwandan government, MIDIMAR will work hard to do what it can to ensure support refugees’ return to their home communities. 

            All this sounds promising, but perhaps it’s not.  What is lost in this set of ideals is that the refugees are not only returning to their government.  They are returning to the very communities and neighbors from where and whom they fled for their lives just a generation ago.  During the genocide, friends were killing friends, neighbors slaughtered neighbors, and even family members murdered one another.  Returning to these communities and integrating again are not easy tasks, particularly when one has to not only reestablish relationships with those who may very well have tried to kill them, the refugee also has to reestablish a livelihood, which is in direct competition with those who are still living in Rwanda.  Thus, not only is fear of persecution for leaving or being involved in the Genocide a real problem for refugees, competition for resources amongst themselves may prove to be their biggest obstacle upon returning home.

            There is also the issue of what happens to refugees who chose to remain in their host country upon invocation of the Cessation Clauses.  With invocation comes the loss of refugee status, and with the loss of this status comes the loss of its protections.  What options then do non-refugees have if they remain in their host country?  Much of this will be based on the documentation the refugee possesses, if any.  If the refugee has documentation proving prior citizenship as Rwandan, the person may be able to remain in their host country as a Rwandan citizen who would then be afforded protections as such.  If, however, the refugee is unable to document his Rwandan citizenship, it becomes his/her burden as a non-refugee to follow the host countries immigration procedures, which can be cumbersome or even insurmountable.  Until these matters can be thoroughly addressed, invocation of the Cessation Clause should be suspended.      

V.        PROPOSED ALTERNATIVES

            The Cessation Clauses should only be invoked under extreme care and caution.  According to UNHCR guidelines, only when the following criteria are met should invocation occur:  1) a fundamental and profound change in country conditions such that refugees no longer have a well founded fear of persecution, 2) the change is demonstrably enduring and not merely transitory, and 3) the change enables refugees to enjoy the protection of the government.[57]  While fundamental and profound changes arguably have occurred within Rwanda over the last several years, it is numbers two and three above that have yet to fully solidify certainty of success.

  The 1994 genocide occurred not even twenty years ago.  There is no set timeline for what amounts to enduring and not merely transitory.  However, considering it took a few years for things to settle down after 1994, the demonstrable change recently touted by the Rwandan government is truly only a few years in the making.  Thus, my first proposed alternative is to wait longer before invoking the Cessation Clauses, perhaps another 5-10 years, or more. 

The motivations of the Rwandan and host countries’ governments appear holistic in design, but upon further investigation it seems their motivations may be more self-serving.  Rwanda is seeking to bolster its recent international acclaim as being political stable along with being a highly attractive tourist destination, while at the same time the DRC and Uganda are struggling with internal turmoil and security issues.  Burundi has its own refugees in Rwanda, who Rwanda threatened to label as illegal immigrants in 1995, creating friction between the two countries that still exists today.[58]  It is evident that each country has significant self-serving motivations for invoking the Cessation Clauses, and it is my suggestion that each and every motivation be transparently discussed prior to invocation in an effort to root out detrimental forces that may be driving each countries desires. 

            In addition, each refugee has his/her own personal reasons for fleeing Rwanda.  Because the Cessation Clauses do not take into account the personal experiences of each individual refugee, many will be lumped into repatriation regardless of his or her own personal fears.  While there is a court system within Rwanda set up to handle these situations, the “Gacaca” as it is called, is known to be more of a public forum for condemnation, not a fair and impartial system.[59]  Corruption, arbitrary arrests, unlawful detentions, and false allegations are among the criticisms for the Gacaca by human rights organizations such as Amnesty International.[60]  In fact, instead of promoting reconciliation within Rwanda, the Gacaca is thought to have only furthered suspicion, fear, and distrust among community members, creating an even further divide between Hutu and Tutsi neighbors.[61]  Until the legal system in Rwanda merits trusted international recognition as being fair, just, and impartial, refugees’ fears of being misunderstood and mistreated by the Rwandan justice system may be both perfectly warranted and a valid reason for suspending Cessation Clause invocation. 

As just mentioned, refugees returning home not only live with uncertainty as to how they will be received by their neighbors and communities, and not only will they be coping with basic survival requirements of food, water, and shelter, they will also be forced to cope with a legal and justice system that has yet to earn international recognition as being fair and just.  It is my suggestion that, to account for these legal concerns, a separate legal body, overseen by the United Nations, be designed and implemented within Rwanda, to be staffed by internationally independent counsel such that each refugee’s personal concerns and experiences may be heard and afforded merit before that refugee is forced to return home.[62]  This is a large proposal, but I feel the 1994 genocide was a most remarkable and recent tragedy worthy of such attention. 

            As well, the supporting rations proposed as substantial enough to provide a refugee a solid beginning back home are, indeed, not enough.  The three months of food rations and home utensils do not provide sufficient time for a refugee to assimilate back into his/her community, and that is assuming the refugee returns back to the same community he/she fled originally.  For that matter, returning refugees may wish to live in a completely new community in fear that returning back to their prior neighborhood may put them in harm’s way more so than going somewhere new.  Three months is simply not enough time for someone who has endured such dramatic strife in one’s life to begin anew.  If Rwanda’s motivation is to genuinely provide enjoyment of the refugee’s return home, then I suggest the ration period be extended to at least one full year so the refugee has ample time to successfully assimilate back into Rwandan life.  The fear of starvation is paralyzing to one’s ability to succeed and without government support during this very difficult transitional phase, the likelihood of success is not being fully promoted. 

Also, other programs such as reintegration discussed above should be expanded to include technical training and education or other vocational outlets that are known to provide actual employment upon completion.  As Rwanda’s societal conditions continue to improve, so do employment opportunities, but only for those who have lived within the country during the improvement period who are thus able to capitalize in real time on said improvements.  For those refugees who have been outside their home country during this improvement period there will probably be a substantial ‘catching up’ phase they must go through, and without accelerated education and training programs, this catching up will be unlikely. 

Finally, I acknowledge and support the informational campaign mentioned above by which Rwanda is promoting positive change.  However, old feelings die hard.  It is my thought that, if Rwanda genuinely wants to successfully assimilate its refugees, a massive ideological shift needs to occur, both within the government and certainly with its society.  The stigma that naturally is placed upon refugees returning home must be overwhelming, and must be overcome. 

To counter this pervasive social force, the government and its people would be well served by implementing nation-wide social awareness projects that not only inform, but also reward those who pleasantly welcome refugees into their neighborhoods, communities, and employment.  By providing incentives to those who sincerely welcome and help refugees assimilate and reintegrate into Rwandan life, society may make progress in overcoming not only the stigma its refugees endure, but also the dark history the entire country is trying so desperately to move beyond.

VI.       CONCLUSION

            This month, December 2011, Article 1C of the 1951 Convention may be invoked, removing Rwandan refugee protection for thousands of those who have not yet returned home and are still living in host countries.  The reasons why Rwanda and others are considering the invocation acceptable at this time are not in sync with the fears and concerns of the refugees the invocation ultimately and actually affects.  Until such time as the refugees’ concerns are in sync with Rwanda’s and others reasons, the invocation of the Cessation Clause should be suspended.

 

 

 

 

 

 

VII.      DEFINITIONS

            All definitions below are derived from the textbook Forced Migration Law and Policy, by Martin, Aleinkoff, Motomura, and Fullerton, Thomson/West, 2007, St. Paul, MN.  ISBN-13: 978-0-314-14610-6.  Please see page number at each definition’s end for reference.  These definitions are not meant to be exhaustive but do provide quick summarization of each term.     

 

  1. Asylum – if a person from another country is inadmissible or deportable, he/she can still be allowed to remain in the host country if he/she has a well founded fear of persecution, based on several factors; please see “j.” below (Non-refoulement).  P. 74 
  2. Cessation – based on Art. 1(C) of the 1951 Convention, if certain instances occur, the treaty becomes no longer in effect and the treaty shall cease to apply to those refugees involved in those instances (instances equals circumstances).  Those instances are: 1) he/she has voluntarily re-availed him/her to his home country’s protection; 2) he/she who previously lost home nationality has reacquired it; 3) he/she who has acquired a new nationality and enjoys its protections; 4) he/she has voluntarily reestablished in the country of persecution; 5) he/she can no longer refuse to avail herself to the home country because the circumstances (instances) in connection with the recognition of his/her refugee status have ceased to still exist; and 6) he/she, though stateless, can go home because circumstances in connection with the recognition of his/her refugee status have ceased to exist.  P. 443
  3. Deportation – the returning of a refugee from the host country back to his/her home country.  In the US, based on the 1952 Immigration and Nationality Act (INA), the Attorney General has discretion to withhold deportation if the person would be subject to physical persecution back home.  P. 72
  4. Displaced – displaced means moved; there are several types of displacement.  1) Conflict-induced displacement is when persons are forced to flee due to conflicts like war, violence, and persecution; or on grounds of nationality, race, religion, political opinion or social group; 2) Development-induced displacement is when persons are compelled to move due to policy or project implementation to supposedly enhance development, such as when slums are torn down for new building projects; 3) Disaster-induced displacement is when persons must move due to natural disasters, environmental change, and human-made disasters.  P. 6
  5. Durable solutions – although case-specific, and politically, diplomatically, and financially influenced, a legal framework has been put in place by the 1951 Convention to provide long term/durable solutions, using a mix of approaches.  According to the United Nations High Commission on Refugees (UNHCR), such durable solutions are 1) voluntary repatriation (moving back home on your own), local integration into the first host country (settling into your new host country), or resettlement into a second host country (being moved from your first host country to yet a third country where you are expected to resettle).  P. 658 
  6. Nationality – frequently used to refer to those who have the same citizenship as their persecutors, but who belong to a different linguistic or political community within their country.  P. 231
  7. Non-refoulement – based on Art. 33 of the 1951 Convention, if a country’s returning of a refugee to his/her native state would put the refugee at risk of persecution, the refugee should not be forced to return home.  “Refouler” equals “return”.  “No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a political social group or political opinion.”  P. 70   
  8. Persecution – required by both the 1951 Convention and the INA for legal protection to apply to the person seeking protection, yet neither law clearly defines what persecution is.  The Ninth Circuit suggests it is “the infliction of suffering or harm upon those who differ, in race, religion, or political opinion, in a way regarded as offensive.”  However, this same court also stated that persecution does not come to be by discrimination alone, distinguishing persecution from discrimination.  J. Posner in Osaghae v. INS, 942 F.2d 1160, 1163 (7th Cir. 1991) stated “persecution means, in immigration law, punishment for political, religious, or other reasons that our country (the US) does not recognize as legitimate.  To date, defining the term “persecution” remains a matter of art on the part of the one asserting it as part of his/her claims.  P. 97 
  9. Refugee (and Non) – Art. 1 of the 1951 Convention defines a refugee as a person residing outside his/her home country who is unable or unwilling to return home because of a well-founded fear of persecution on account of race, religion, nationality, membership in a political social group or political opinion.  Having refugee status is often better than not because the status provides legal clarity and protections.  P. 9   
  10. Reintegration – as a refugee returns home, challenges are present that must be overcome before being able to prosper.  These challenges are often economical, legal, socio-economic, and political in nature, issues that are not within the means and resources the refugee has to work with.  Gaining access to land he/she used to own, finding employment, locating food and clean water are uphill challenges.  Fortunately, programs are in place in most countries worldwide to assist in reintegration of those returning.  In addition, the majority of host countries provide integration assistance to the refugees they are hosting, and integration and reintegration are thus seen as a durable solution.  P. 662  
  11. Resettlement – made available to only a small portion of forced migrants, this durable solution entails a move to a distant yet stable and prosperous nation after a period spent first in another host country or his/her home country.  Nations can be selective in who they allow to settle within their borders and usually conduct detailed screening interviews before a forced migrant is included in the program.  P. 23
  12. Repatriation – sometimes amid protest, this durable solution is the returning of a refugee to his/her home country so the person will resume with his citizenship.  Today this is the preferred durable solution, so long at repatriation is voluntary and sustainable.  However, sometimes repatriation is not voluntary, as in the case of the invocation of the Cessation Clauses of the 1951 Convention, and this forced repatriation may put some at risk of persecution, the very reason they left their home country in the first place.  P. 659  

 

 

 



[1] Brooks Gentry is a third year law school student in Orlando, FL at Barry University School of Law.  He received his B.S. (Dean’s List) from Florida State University and graduates with his J.D. from Barry University on Dec. 15, 2011 (Honor’s Certificate in Environmental Law, Justice, and Jurisprudence).  Upon graduation Brooks will apply to Stetson University College of Law’s Elder Law L.L.M. program in anticipation of fall 2012 admission.

[2] Burundi, Uganda, and the DRC will be discussed below in greater detail due to the impacts each of these countries sustained during and after the 1994 Genocide.

[3] My interest in Rwanda began after a much unexpected trip around the country in July of 2008.  My mother, Betty B. Gentry, was a missionary to Uganda since 1983, spending as much as 3-4 months each year in the countryside, moving from village to village seeking out widows and orphans afflicted with AIDS, then bringing them healthcare and funding for the children’s educations.  Some children were being cared for by grandmothers since both husband and wife/father and mother had passed.  However, the grandmother was often too old to work, yet was trying to provide what she could for her grandchildren.  Providing these amazing grandmothers relief and their grandchildren a chance at an education was Mom’s most passionate purpose in life. 

 

When Mom finally decided to retire in 2008, after 25 amazing years, I was fortunate to make a bittersweet trip with her to Uganda for Mom’s farewell journey to Africa.  Over the course of an eye opening month our travels led us to Kigali, Rwanda, where I met another student from Canada.  Courtesy of a friend of his, my new friend Matt and I and a young woman from Brooklyn spent a week living in a Rwandan home replete with bullet holes in the walls and ceiling from past Rwandan conflicts.  During that week Matt and I visited numerous genocide memorials where I learned Rwanda’s rich, sometimes desperate history and I saw firsthand the tombs filled with the horrible results of civil unrest. 

 

Suffice it to say, my perspective on life, let alone on clean running water, has never been same.  In contrast to the sadness I experienced at the memorials, we were fortunate to partake in a full day of Gorilla Trekking through the Volcans National Forest where I got so close to a 400 pound silverback gorilla that, if I hadn’t been told not to by the army ranger with the machine gun behind me, I could have reached my hand out and rubbed the back of the gorilla when he nearly stepped on my foot as he made his way up the mountain side on the same narrow path.     

[4] Available at https://www.cia.gov/library/publications/the-world-factbook/geos/rw.html (then follow Introduction hyperlink) (last visited Dec. 5, 2011).   The online Factbook is updated weekly. ISSN 1553-8133

[5]Id.   

[6] Id.

[7] Id.

[8] Id.

[9] Id.  

[10] Available at http://www.unhcr.org/pages/49e45c576.html (last visited Dec. 5, 2011).  United Nations High Commissioner for Refugees (UNHCR), “2011 UNHCR country operations profile-Rwanda”, “Working Environment”, “The Context”, please also see “Total Population of Concern” on page right under “Statistical Snapshot”. 

[11] Available at http://rwandinfo.com/eng/uganda-starves-rwandan-refugees-to-force-them-return-rwanda/ (last visited Dec. 5, 2011).  This is just one example of online media portraying concerns of fear by those who may be forced to return to Rwanda.  There are multiple sources concluding fear of persecution as a major concern for those to be affected by the Invocation of the Cessation Clause. 

[12] The 1951 Convention Relating to the Status of Refugees.   Available at  http://www.unhcr.org/3b66c2aa10.html (last visited Dec. 5, 2011).  The 1951 Convention is the black letter law defining the term Refugees, the protections Refugees are afforded by the law, and other significant Refugee concerns.   Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.  (The 1951 Convention was followed in 1967 with The Protocol which amended certain provisions of the original law.    Protocol Relating to the Status of Refugees, Jan. 31, 1967, 666 U.N.T.S. 267. )     

[13] Id.

[14] Id

[15] Id. at 17.

[16] Id

[17] UNHCR, Supra note 10. 

[18] Id.  A large effort has been made to obtain actual, current Rwandan law.  However, even legal database searches such as within LexisNexis are unable to provide any original Rwandan law.  Treaties are available.  Therefore, these and other well known sources such as the UNHCR and its document database and online publications are being used to capture the most current, accurate, and reliable information possible.  As well, some of the information above and below is from the government of Rwanda itself and its statements, not from its laws.     

[19]  Available at http://www.gov.rw/History-and-Geography (last visited Dec. 5, 2011).  Must be viewed using Windows Internet Explorer.   This information is provided directly by the Rwandan government on its official government web site.  

[20]  Id.

[21]  Id.

[22]  Available at http://www.state.gov/r/pa/ei/bgn/2861.htm (last visited Dec. 5, 2011).  United States Department of State.  Nov. 30, 2011.  Please see “History”. 

[23]  Id.

[24]  Id.

[25]  Gov.rw, supra note 19. 

[26]  State, supra note 22.

[27] Id.

[28] CIA, supra note 4, then follow Introduction hyperlink. 

[29] Id.

[30] Id.

[31] State, supra note 22, then see “History”.

[32] Id.

[33] Id.

[34] Gov.rw, supra note 19. 

[35] CIA, supra note 4, then follow Introduction hyperlink.  See also http://www.state.gov/r/pa/ei/bgn/2861.htm (last visited Dec. 5, 2011), then under “History”, eleventh paragraph. 

[36] As mentioned in the prior paragraph, peace and stability are evident to those who travel to Rwanda.  This was my personal experience in 2008.  The country was very clean, very orderly.  Neighboring countries such as Uganda were not clean or orderly.  However, Rwanda felts controlled, almost too orderly.  This was my personal experience in 2008 and perhaps would not be everyone’s, particularly today. 

[37] Available at http://www.gov.rw/Social-Development (last visited Dec. 5, 2011).  Must be viewed using Windows Internet Explorer.   This information is provided directly by the Rwandan government on its official government web site.

[38] UNHCR, supra note 10. 

[39] Id

[40] Available at http://www.unhcr.org/pages/49c3646c2.html (last visited Dec. 5, 2011)All information above in this paragraph may be found on this “About Us” page of the United Nations High Commission for Refugees web site. 

[41] Available at http://www.unhcr.org/3b66c2aa10.html (last visited Dec. 5, 2011).  All information above in this paragraph is located in “Introductory Note by the Office of the UNHCR”.  Geneva, Dec. 2010. 

[42] Id. at 14.  See Article 1 A (2). 

[43] Id. at 3.  See “Introductory Note by the Office of the UNHCR”. 

[44] Id. at 15, 16.  All information in the next 3 paragraphs is obtained from Section C on pages 15 and 16. 

[45]  Available at http://www.unhcr.org/3b66c2aa10.html (last visited Dec. 5, 2011), page 20.  See supra note 42.  Geneva, Dec. 2010. 

[46] Id. at 22 and 24. 

[47] Id. at 30. 

[48] Available at http://www.unhcr.org/refworld/docid/47fdfaf1d.html (last visited Dec. 5, 2011).  See “IV. THE CEASED CIRCUMSTANCES CESSATION CLAUSE”.  

[49] UNHCR, supra note 10. 

[50] Available at  http://southafrica.embassy.gov.rw/content/view/90/104/ (last visited Dec. 5, 2011).  “Press Release:  No Rwandan Refugees after 2011.”  Ministry of Disaster Preparedness and Refugee Affairs.  Government of Rwanda.  Feb. 24, 2011. 

[51] Supra note 10, then follow Transnational Issues hyperlink.

[52] In particular, Dr. Barbara Harrell-Bond of the Refugees Study Center at Oxford University is a leading figure in the field of refugee studies.  Available at http://allafrica.com/stories/201109040098.html (last visited Dec. 5, 2011).  “Rwandan Refugees in Uganda ‘Want to Stay On’”.  Gaaki Kigambo.  Sept. 3, 2011.    

[53] Id

[54] Id. 

[55] Id.  Thus, it may be inferred Pres. Kagame is in favor of and is highly supportive of Cessation Clause invocation. 

[56] South Africa.Embassy, supra note 51.  This paragraph’s information is obtained by direct quote of the Minister of Disaster Preparedness and Refugee Affairs (MIDIMAR), General Marcel Gatsinzi, who also welcomes Cessation Clause Invocation. 

[57]Available at http://www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=3e637a202&query=cessation%20guidelines (last visited Dec. 5, 2011).  “GUIDELINES ON INTERNATIONAL PROTECTION: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (The “Ceased Circumstances” Clauses)”. The “Guidelines” provide clear articulation and definition of such terms as “fundamental”, “profound”, and “transitory”.

[58] Available at http://www.refugee-rights.org/Newsletters/GreatLakes/V2N2RwandaBurundiDeportationUproar.htm (last visited Dec. 5, 2011).  This paragraph’s information obtained from the International Refugee Rights Initiative’s newsletter on the Gacaca, published in 2005.  Refugee Rights News, Vol. 2, Issue 2, July 2005.  Issues with Rwanda’s Gacaca appear below.  This newsletter sheds light on recent but historical issues of the Gacaca.  Reports today describe a judicial system of higher integrity, but conflicting reports to this effect, including personal accounts, still exist as well.  (See also “Rwanda’s Gacaca Courts: Implications for International Criminal Law and Transnational Justice”.  Available at http://www.asil.org/pdfs/insights/insight110623.pdf (last visited Dec. 5, 2011).  Shannon E. Powers.  Insights.  American Society of International Law.  Volume 15, Issue 17, June 23, 2011.)       

[59] Id.  The Gacaca is not a tribunal of only professional lawyers and judges.  Instead, it is comprised of community members (laypersons) as well.    

[60] Id.

[61] Id

[62] This suggestion is meant to account for the in-country court system only, not international.

 

 

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