Sharing the responsibility for refugees: A new global compact

An aerial view of the Za'atri refugee camp, Jordan, Wikimedia Commons

An aerial view of the Za’atri refugee camp, Jordan, Wikimedia Commons

Amnesty International, Sharing the responsibility for refugees: A new global compact, 9 May 2016, Index number: IOR 40/3906/2016

Wealthy states and the international community as a whole have failed to equitably share responsibility for managing the ongoing global refugee crisis. In his report In Safety and Dignity: Addressing Large Movements of Refugees and Migrants, published today, UN Secretary-General Ban Ki-moon has proposed a “Global Compact on responsibility-sharing” to create a more predictable and equitable way of responding to large movements of refugees.

This briefing urges states to use key upcoming international meetings to move from short-term stop-gap measures to long-term, proactive and globally coordinated solutions.

At the UN General Assembly High-Level Plenary on addressing large movements of refugees and migrants in September 2016, states should adopt a new Global Compact on predictable and equitable refugee responsibility-sharing, based on international human rights and refugee law. The Global Compact should include:

  • A permanent distribution system of resettlement places, based on objective criteria;
  • In cases of large movements of refugees, an additional distribution system to admit refugees through expedited safe and legal routes (“legal pathways” for admission) based on objective criteria;
  • Guaranteed full, flexible and predictable funding for refugee protection and meaningful financial support to countries hosting large numbers of refugees, over and above existing development assistance programmes;
  • Strengthened refugee status determination systems and increased use of prima facie recognition of refugee status;
  • Respect, protection and fulfilment of the rights of refugees in their country of asylum, including the enjoyment of an adequate standard of living, access to education, healthcare and other services, and economic self-reliance.
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No Basic Rights for Palestinians in Hebron

In March 2016, the Israeli army renewed an order designating Al-Shuhada Street and parts of the archaeological site of Tel Rumeida in Hebron city a closed military zone; this order will be in place until at least mid-April. This was done to protect Israeli settlers, who are illegally living in the area, from possible assaults by Palestinians, or so the Israeli army told the media.

The military order was initially established at the end of October 2015, following a new wave of confrontations between Palestinians and Israeli forces and settlers, which began in mid-September 2015 in East Jerusalem and spread to Hebron in early October.

Under the military order, all entry is prohibited to Shuhada Street and Tel Rumeida, with exceptions for Israeli settlers and Palestinian residents. Notably, the latter must prove their residency and undergo rigorous security inspections every time they pass through a checkpoint. Palestinian men are routinely asked by armed soldiers to remove their belts and shoes, lift their shirts and trousers legs, and remove their jackets. The bags of both men and women are regularly examined.

Describing the military order’s impact on Palestinians, one resident of Tel Rumeida told me, “I don’t feel safe. I don’t understand why they do this to us. We have been controlled even in the past, but now I feel that I am not treated as a human.” “Closing the area is preventing me from having international friends in my house. In the military zone you do not see an emergency ambulance, you become asocial, so you don’t think about visitors or birthday parties,” the man added.

 

Picture 1: “White line” checkpoint between Shuhada Street and the road to the Ibrahimi Mosque [Photo: EAPPI/Sabrina Tucci]

“White line” checkpoint between Shuhada Street and the road to the Ibrahimi Mosque (credit: EAPPI/Sabrina Tucci).

Proving Residency

Before the military order, Palestinians were still prohibited from driving on any part of Shuhada Street and Tel Rumeida, were routinely subjected to strict security checks, and often had to enter their homes through back entrances or from rooftops, because settlers or Israeli soldiers had blocked their main entrances. Nevertheless, anyone could enter the area, and the situation was relatively easier.

Now, international visitors and Palestinians residing in other areas are routinely turned away. Residents of Shuhada Street and Tel Rumeida must register at checkpoints or with the Israeli Civil Administration for a number proving their residency. Those Palestinians who forget their residency number, or whose names are erroneously left off the registry list through no fault of their own, are denied access and forced to enter their homes through fields and alleyways.

Whatever the reason, it is both demeaning and outright dangerous to force Palestinians to access their homes this way. “Once I was turned back because the soldiers said I was not registered. They did not let me in but I tried again after a while and succeeded. This is very humiliating,” a resident of Shuhada Street told me. Others have had to endure hostile encounters with Israeli military personnel, including being shouted at or held for questioning.

Some Palestinian residents have chosen not to register with the new identification system, as a means of protesting the requirement.

Picture 3: Palestinians and Internationals protesting against the military zone in Shuhada Street and Tel Rumeida [Photo: EAPPI/Sabrina Tucci]

Palestinians and Internationals protesting against the military zone in Shuhada Street and Tel Rumeida (credit: EAPPI/Sabrina Tucci).

A City Under Siege

Before October, only some of the nineteen checkpoints between the Old City and the Ibrahimi Mosque were staffed. Following confrontations between Palestinians and the Israeli army and settlers, more of these checkpoints have become operational.

At the end of December 2015, the Israeli military installed a new inspection machine at checkpoint 56, which forces Palestinian residents to go through two turnstiles and a room where they are searched and questioned. The machine also makes security checks lengthier.

Checkpoint 56 is in a key location in Hebron. It controls access to Shuhada Street, which leads to Ibrahimi Mosque, and separates the Israeli controlled side of Hebron (known as “H2”), from the Palestinian Authority controlled part of the city (known as “H1”).

Picture 2: New inspection machine at checkpoint 56 controlling access to Shuhada Street [Photo: EAPPI/Sabrina Tucci]

New inspection machine at checkpoint 56 controlling access to Shuhada Street (credit: EAPPI/Sabrina Tucci).

For Palestinians, restrictions on movement in Shuhada Street are not new. The street was once one of the main commercial hubs in Hebron’s Old City. Access to the thoroughfare was restricted for the first time in 1994, after an American Jew, Baruch Goldstein, killed twenty-nine Palestinians and injured more than 100 additional worshippers at the Ibrahimi Mosque. In response, Israeli authorities banned Palestinian vehicles from accessing Shuhada Street, supposedly to prevent possible Palestinian retaliation. Israeli authorities also began limiting Palestinian access to the commercial district, which forced many shops to close down.

The 1997 Hebron Protocol, which divided the city into H1 and H2, reopened Shuhada Street to traffic, but not to commerce. During the Second Intifada, access to the area was completely closed off to Palestinians, leading to the permanent closure of Palestinian shops. Since the end of the Second Intifada, restrictions on Palestinian movement into and out of the area have only increased.

Resistance to Israeli Measures

According to Human Rights Watch and B’Tselem, during this latest round of violence, Israeli forces throughout the West Bank, Hebron included, have systematically engaged in the unlawful killing of Palestinians, who they view as a threat, regardless of whether the threat is real.

To protest this continuing oppression of the Palestinian community, the Hebron-based Palestinian human rights organization Youth Against Settlements (YAS) launched its seventh annual Open Shuhada Street Campaign on February 20. The campaign encourages people worldwide to pressure the Israeli government to open Shuhada Street and Tel Rumeida to everyone. As part of the campaign, from February 20-28, YAS hosted various events in Hebron, including press conferences, photo exhibitions, film screenings, and memorials. The week’s events culminated on Friday February 26 with a demonstration demanding the opening of Shuhada Street.

The Hebron Defense Committee, a non-violent movement working to resist the presence of Israeli settlements and closure practices in the Hebron area, also organized a sit in at the north entrance to Shuhada Street earlier in February, to protest the closures. As part of these efforts, the organization launched the Dismantle the Ghetto, take the settlers out of Hebron campaign on February 20, which called for the removal of all illegal Israeli settlements from Hebron and an immediate end to the ‘closed military zone’ order in Tel Rumeida and Shuhada Street.

Picture 4: Banner calling for an end to the closed military zone [Photo: EAPPI/Sabrina Tucci]

A banner calling for an end to the closed military zone (credit: EAPPI/Sabrina Tucci).

A Pathway to Settlements

The restrictions imposed on Palestinian residents of Shuhada Street and Tel Rumeida have had devastating ramifications on their lives, careers, and health. According to the Ramallah-based human rights organization Al Haq, Israel’s closure of businesses, as well as main commercial and residential streets, has created harsh and restrictive living conditions for Palestinians living in H2. For these Palestinians, going to school, work, or even the hospital is an extremely arduous process.

Palestinians attempting to enter Shuhada Street held outside checkpoint 59 [Photo: EAPPI/Sabrina Tucci]

Palestinians attempting to enter Shuhada Street held outside checkpoint 59 (credit:  EAPPI/Sabrina Tucci).

With Palestinian ambulances prohibited from accessing the area, those in need of medical care must travel on foot from H2 to the Palestinian side of the city. This can be a fatal journey for some. In October 2015, Hashem Azzeh, a well-known non-violent Palestinian activist and resident of Tel Rumeida, died of a heart attack because he could not receive urgent medical care in H2.

As confirmed by the United Nations Office for the Coordination of Humanitarian Affairs, movement restrictions, along with on-gong settler violence, reduced income, and restricted access to services and resources, has led to a reduction in the area’s Palestinian population. “This is a way to complete the settlement project and push people out and take over more houses. They want people to leave voluntarily. If this continues, they will succeed,” a man from Shuhada Street explained to me. “People cannot even renovate their houses so eventually they will feel [that] ‘Ok, Khalas’, this is enough. They will leave, if not today, maybe tomorrow,” he said.

Graffiti on door in Tel Rumedia [Photo: EAPPI/Sabrina Tucci]

Graffiti on door in Tel Rumedia (credit: EAPPI/Sabrina Tucci).

No Basic Rights for Residents

Israel’s restrictions on Palestinians in Shuhada Street and Tel Rumeida violate various principles of international law. These include the right to freedom without discrimination (Article 2 of the Universal Declaration of Human Rights), the right to freedom of movement (Article 12 of the International Covenant on Civil and Political Rights) and the right to an adequate standard of living and the continuous improvement of their living conditions (Article 11 of the International Covenant on Economic, Social and Cultural Rights). The restrictions, based on the false premise that all Palestinians are inherently dangerous, also violate the prohibition against collective punishment (Article 33 of theFourth Geneva Convention).

Israel’s practices in Shuhada Street and Tel Rumeida represent some of its most appalling human rights violations. As many human rights organizations have been asking and as Palestinians themselves are demanding, it is imperative that Israeli authorities fulfill their responsibilities under international law and lift the closed military zone, without further delay.

This article was originally published on Muftah.

The human rights of migrants as limitations to states’ control over entry and stay in their territory

(C) Valerio Rinaldi for Amnesty International

(C) Valerio Rinaldi for Amnesty International

This post was published on 21 May 2015 on EJIL Talk!, blog of the European Journal of International Law

As Juan Amaya-Castro points out, (domestic) migration legislation is about selecting among potential or prospective migrants, i.e. creating two categories of migrants: ‘documented’ or ‘regular’ migrants, whose migration status complies with established requirements, and ‘undocumented’ or ‘irregular’ migrants, whose migration status does not so comply. Where does this leave international law and, as Juan Amaya-Castro calls it, its humanist-egalitarian tradition? This post will argue that Amaya-Castro underestimates the strict and strong limitations on the sovereignty of states established by international human rights law, international refugee law and international labour law. In particular, states’ discretion in the adoption and enforcement of migration policies is limited by their obligation to respect, protect and promote the human rights of all individuals within their territory and subject to their jurisdiction (UN Human Rights Committee, General Comment No. 15, para. 5). This post discusses some of the far-reaching consequences of this principle, focusing on three types of limitations on state sovereignty with respect to migration: limitations on the prerogative to control entry; limitations on the prerogative to establish conditions for entry and stay; and limitations on the treatment of irregular migrants.

Limitations on the prerogative to control entry

The obligation not to reject refugees and asylum-seekers at the frontier may be an exception to state sovereignty conceptually, but it is far from exceptional in practice, especially in certain European contexts. Of the 19,234 people “intercepted” along EU borders by the joint border control operation Mos Maiorum between 13-26 October 2014, 11,046 people (57%) claimed asylum (Mos Maiorum final report, p. 25). More than a quarter of those “intercepted” were Syrians, followed by Afghans, Eritreans, Somalis, Iraqis – individuals whose need for international protection can easily be argued (ibid., p10). Nikolaos Sitaropoulos expertly discussed the limitations imposed on states’ sovereign prerogative to control entry and stay by the Council of Europe human rights framework, in particular its obligation of non-discrimination. Outside that framework, the guidance provided by the UN Committee on the Elimination of Racial Discrimination (CERD) is also worth mentioning. In 1998 the Committee criticised Switzerland’s so-called three-circle-model migration policy, which classified foreigners on the basis of their national origin, as ‘stigmatizing and discriminatory’ (UN Doc. CERD/C/304/Add.44, para. 6). Four years later, the Committee expressed concern at the possible discriminatory effect of Canadian migration policies (in particular, a high ‘right of landing fee’) on persons coming from poorer countries (UN Doc. A/57/18, para. 336). On these grounds, this post argues that the general principle of non-discrimination is a limitation to states’ discretion in the adoption and enforcement of all migration policies, including their prerogative to control entry.

Limitations on the prerogative to establish conditions for entry and stay

While the limitations imposed by international law on a state’s prerogative to control entry into its territory are relatively well-established, at least on paper, visa regimes are often perceived to be an area where state sovereignty has little boundaries. Once the state has complied with its international obligations in selecting who is allowed into the country, it seemingly enjoys a broad freedom in determining how long they can stay and under which conditions (the generally recognised exception being, again, refugees and those protected by the obligation against refoulement). In fact, the rules of international labour law protecting workers from labour exploitation, forced labour and servitude, and the international legal rules against trafficking in human beings, profoundly impact the prerogative of states to establish conditions for entry and stay in the form of visa regimes. As the requirements of some visa regimes may ultimately be in breach of a state’s international obligations to protect individuals from labour exploitation, forced labour, servitude and trafficking, such obligations limit its sovereignty in establishing visa conditions. In 2014, Amnesty International published an analysis of selected visa regimes in five countries of destination (China/Hong Kong, Italy, Qatar, South Korea and the United Kingdom), showing that some visa requirements, such as the inability to change employer and the employer’s control over the worker’s migration status, increase migrant workers’ risk of suffering labour exploitation and other abuses at the hand of private actors such as recruitment agencies and employers. Recently, the link between visa requirements stopping migrant workers from changing employers and vulnerability to labour exploitation has been at the centre of the debate on a new Modern Slavery Bill in the United Kingdom. NGOs have argued that the current system of overseas domestic workers visas “tied” to the employer (whereby the migrant worker is not allowed to change employer) is open to abuse, as the workers can only leave an exploitative labour relationship at the price of losing their visa. Amnesty International’s research also shows that the promise of regular documents is often used by abusive employers to induce irregular migrant workers to accept exploitative labour conditions. In countries where the administrative procedure to obtain or renew residence and work permits has to be initiated by, or requires the cooperation of, the employer, the employer’s effective power to determine their migration status can easily become a tool to intimidate or threaten workers, undermining further the irregular migrant workers’ limited ability to negotiate better wages and working conditions (Amnesty International, Abusive labour migration policies, 2014, p. 7-10).

Limitations on the treatment of irregular migrants: “firewalls”

The current European debate on irregular migration tends to focus on the limitations on state sovereignty during law-enforcement, i.e. on the procedures of arrest, detention and deportation. In fact, the international obligation to respect, protect and promote the human rights of migrants may require states not only to modify the procedures of their law-enforcement operations, but also to limit law-enforcement operations tout court. In his 2013 report to the United Nations General Assembly, the Special Rapporteur on the human rights of migrants, François Crépeau, called on states to allow migrants to access the public services needed for the enjoyment of their rights without fear of being arrested, detained and deported. In order to do so, states should implement “firewalls” between public services and migration enforcement, whereby public services (healthcare, education, housing, labour inspection, local police) would be instructed not to request migration status information unless essential; and migration enforcement would not have access to the information collected by public services relating to migration status (para. 82). The call for “firewalls” between the public officials charged with protecting and enforcing the human rights of irregular migrants (teachers, doctors, labour inspectors, etc.) and those charged with enforcing migration laws recognises and addresses a problem familiar to human rights advocates: irregular migrants are generally so concerned about coming to the attention of the authorities that they are reluctant to access public services, even when they would be entitled to do so to enjoy their human rights. While, in its first formulation, the “firewall” argument was built on ethical and policy grounds (Carens 2008 at pp. 167-168), this post argues that it also has strong grounds under the legal principle that the human rights of migrants limit the sovereign prerogative of states to control migration. Here again, the debate is far from being academic. The domestic legislation of several European states imposes on public officials a duty to report irregular migrants to migration-enforcement authorities, either expressly (such as in the Irish Immigration Act 2003, s. 8) or via the interplay of legislation criminalising irregular migration and a general requirement of any public officer to report all suspected criminal acts to law-enforcement authorities. Yet, many European states also impose direct or indirect reporting bans on public bodies and officials providing basic services, which either prohibit them or allow them not to report irregular migrants to the police. Although a complete review of state practice in this field is beyond the scope of this post, a few examples may illustrate the point. In Italy, irregular migrants are allowed free access to “urgent or essential” health services and “preventive care” services, including maternal health care, children health care, vaccinations and the care of infectious diseases and epidemics (Legislative Decree No. 286/1998, art. 35.3). To allow meaningful implementation of this right, Italian legislation expressly guarantees that access to health services by irregular migrants will not be reported to the authorities (ibid, art. 35.5). Germany’s migration legislation imposes upon all public administration bodies a general duty to report irregular migrants to the authorities in charge of migration enforcement (AufenthG, s. 87). In 2011, an explicit exception to this provision was introduced for schools and other educational and care establishments for young people (ibid.). In the same way as reporting bans on healthcare and education personnel are a simple measure to “firewall” irregular migrants’ rights to health and education, reporting bans on labour inspectors are a simple measure to “firewall” irregular migrants’ rights at work. Such bans are in fact required under the ILO Labour Inspection Convention, 1947 (No. 81). According to the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR), tasking labour inspectors with immigration control functions is incompatible with international obligations because it diverts resources from their primary duty “to protect workers and not to enforce immigration law” (General Survey on Labour Inspection, 2006, p25).

Conclusion

This post has attempted to provide a summary overview of the limitations imposed by international human rights law, international refugee law and international labour law on states’ sovereign prerogative to control entry and stay in its territory. The broad scope of these limitations strengthens the comparatively weaker position of the individual migrant vis-à-vis the state. By imposing a range of direct restrictions on law-enforcement operations, states are effectively hampered in their pursuit of the goal of migration control.