Introduction

Preservation of the civilian and humanitarian character of refugee camps and settlements is a vital prerequisite, not only for providing refugee protection and enhancing security of host states, but also for safeguarding the institution of asylum itself. NGOs recall, however, that separation of armed elements is only one of a range of measures which can be taken to preserve the civilian character of asylum. Ensuring the physical security and rights of asylum seekers, refugees, humanitarian workers, others in need of international protection and host state nationals in the context of mass influx, is a multi facetted project.

Separation

NGOs welcome the recognition that States and the international community have an obligation to ensure that a distinction is made between refugees, armed elements and others not deserving of protection under international refugee instruments (para. 6 and 8). Physical separation is one way to maintain such a distinction. But as recognized in the UNHCR paper, effecting ‘separation’ raises complex questions regarding (a) the applicable legal framework and (b) how to operationalize that framework in difficult situations on the ground.

Separation is not a single legal concept; it connotes a set of acts and processes and outcomes which have as their object the identification, removal and maintenance of selected individuals apart from the general population of refugees. The legal implications of such activities depend on a variety of factors, including the voluntariness of the separation, the procedure undertaken to identify and separate, and the nature of the confining regime subsequently imposed. The legal basis for the separation of armed elements in a particular conflict, for example, will depend on legal categorization of that conflict.

UNHCR paper (EC/GC/01/5) concentrates on the separation of ‘armed elements’. But various forms of ‘separation’/confinement measures have also been proposed in relation to a range of other groups eg., refugees who are perceived as presenting a security threat, refugee political activists or ‘intimidators’1 those awaiting screening for exclusion from protection etc. NGOs urge that the object and scope of any such proposals require the most careful scrutiny. There is a danger that ‘separation’ can be used over broadly to unlawfully restrict enjoyment of refugee and human rights.

Applying the a complex weave of refugee law, humanitarian law, human rights law (particularly derogation and limitation clauses) and the laws of war, may permit a strictly circumscribed ‘separation’ of some individuals, but only in very particular circumstances. NGOs urge that there is a need for elaboration of

• the legal basis for lawful ‘separation’ activities
• the folder of rights attaching to the various categories of separated persons
• the procedural safeguards attaching to a separation exercise
• the actors responsible for carrying out and monitoring such activities, and
• the conditions for termination of separation (tied to the particular purpose determined for the activity)

In urging caution with respect to separation activities in general, NGOs point out that they can often lead to the tainting or stigmatizing those separated, placing individuals at a greater risk of target. Separation may also reinforce military command structures, complicate repatriation efforts, and be accompanied by an extensive restriction of basic rights.

NGOs urge therefore that preventative measures which impede the militarization of refugee populations are strongly considered. The placing of camps at a safe distance from the border, a core principle of refugee protection, is probably the most crucial element of such a program and one underlined by many of the delegations speaking today. Early intervention at the border, carefully administered demobilization programs, effective policing of refugee settlements, protection of the economic and social rights of refugees (particularly through the provision of educative and social activities for young men) and measures to deal with gender based violence are all additional efforts which can contribute to obviating the requirement to separate. On a macro level, international attention to combating the trafficking and illegal sale of arms is also vital.

• NGOs recommend the formation of a working group of States, UN and ICRC officials, experts and NGO representatives charged with articulating the legal parameters, and setting out practical guidelines, for the conduct of separation activities in situations of mass influx. The practical issues examined might include description of indicators for the triggering of various categories of separation activities, and the identification of training and other operational needs for the actors involved. Such a study could begin with a comparative overview and analysis of situations where activities amounting to ‘separation’ have taken place.

Separation of Armed Elements

Screening and Identification Procedure
NGOs agree that there is a need for clarification of the legal criteria which apply in identifying and separating armed elements.2. When characterizing ‘armed element’, for example, it is important that the terms ‘subversive activities’ and ‘military activities’ are not treated synonymously. In addition, in practice, as recognized in the UNHCR paper, there may be great difficulty in identifying just who is an ‘armed element’ or ‘fighter’. Further, when dealing which individuals claiming to have demobilized, demilitarized or to have deserted prior to entry, it is often hard “to establish that they have genuinely and permanently laid down their arms” (para. 18).

How a rights respecting screening procedure should be conducted also requires urgent elaboration. As a starting point we suggest that identification of armed elements should occur at the earliest possible moment, ideally through intervention at the border. It is crucial, however, that such activities do not interfere with the operation of the principle of non-refoulement. UNHCR must have the capacity to deploy a parallel protection presence in situations where screening of armed elements is being undertaken. The current situation on the Tajik border is to the fore of our minds today.

We recognize that post initial screening there may be a need for reconsideration of an individual’s civilian status if it emerges that there is an intention to assume military attributes. An ongoing monitoring of the situation is therefore required, bearing in mind that clandestine military activity is likely to be contrary to domestic law. NGOs suggest that the need for ongoing monitoring is particularly addressed in guidelines which are drawn up for refugee camp security (CIVPOL or other).

The availability of accurate and timely information is essential for an effective separation operation. We welcome the proposal to develop greater capacity for analysis and information gathering within DPKO and DPA as suggested by the Brahimi report. NGOs stand ready to consider how to maximize the appropriate use of the enormous amount of information generated by our field presence.

Effecting the Separation
As was acknowledged at the Pretoria symposium, the question of who should be physically involved in separating armed combatants merits urgent examination. Separation activities may require use of force, which UNHCR is not authorized to use. In certain environments police elements may be sufficient (particularly with respect to controlling weapons and movements in-camp); in others traditional disarmament, demobilization and reintegration activities need to be carried out by host state military or international peacekeepers. Some commentators have suggested that the “only truly effective way to secure camps is by means of a force trained in issues of refugee protection and human (refugee rights) with the mandate and capability to use armed force”3.

NGOs acknowledge that the security of refugee populations is primarily a matter for host States. But State action must be augmented where required by international community action, either through technical and capacity building cooperation or via direct intervention. In this context we encourage the ongoing dialogue between UNHCR and DPKO with view to operationalizing the ‘ladder of options’ and defining the mandate of Humanitarian Security Officers and/or other multidisciplinary teams who might be available at an early point in a crisis to “advise the UNHCR team leader and concerned national and local officials of appropriate actions required to improve security”4. This may include, where necessary, a trigger mechanism for Security Council examination of a situation as provided for in Security Council Res. 1296. The jurisdiction and boundaries of operational role of such actors, however, require careful scrutiny.

We welcome also the ongoing discussion process with international military and police elements being facilitated by the Government of Canada on the issue, inter alia, of how separation of armed elements might be effected in practice. We urge that follow up work on the Brahimi Report takes full account of the fact that actors in peacekeeping operations work side by side with humanitarian organizations.

Finally, NGOs caution that the renewed emphasis on developing systematic and strategic responses to human security challenges should not prevent immediate action being taken to safeguard refugee rights in current crises, using the mechanisms currently at the international community’s disposal. The situation in Guinea is of particular concern.

The Applicable Separation Regime
The treatment to which separated armed elements are entitled has been identified by UNHCR as amounting to provision of “basic necessities of life, and …[protection]… from forcible return to their own country under international humanitarian law” (para.15). NGOs wish to emphasize that separated ‘armed elements’ are entitled to a folder of rights extrapolated from human rights law, the law of armed conflict and humanitarian law which might benefit from clearer articulation. Other individuals who may be subject to alternative forms of ‘separation’ or restriction of movement rights will also retain human rights entitlements depending on their status and the object of the separation. Where refugees are not the subject of the separation process, the role of the Office of the High Commissioner for Human Rights in monitoring the protection of those elements who do not come under the purview of the ICRC, might be considered.

NGOs recognize the particular need for (a) drawing up guidelines clarifying the definition of what is understood by ‘armed elements’ (b) the development of indicators to aid in that assessment and (c) setting out the operational elements of a screening procedure, including identification of responsible actors.

NGOs are integral to the development of security strategies. We recommend the creation of a mechanism for structured involvement of NGOs in the development of international responses to human security challenges, including discussions around operationalizing ‘the ladder of options’, follow up to the Brahimi report and debate on the role of the military in humanitarian operations.

NGOs call for the facilitation of a forum for discussion of the parameters of the NGO role in refugee security. Developments in international criminal law may need to be taken into account in this regard. One proposal which has been made with respect to enhancing information analysis as part of security assessments has been the development of a standardized, centralized NGO incident reporting system. This needs further reflection.

Child Soldiers and Family Members

NGOs agree that “child soldiers require special protection and assistance measures” (para.15). Treatment of former child soldiers should be governed by the framework of the UN Convention on the Rights of the Child and regional children’s rights instruments, and should draw on the work of UNICEF, in particular the UNICEF Staff Working Paper ‘Children in Armed Conflict’, May 1999. Child soldiers should be separated from, and never interned with, or detained alongside, armed elements. They should benefit from a specialized regime of rehabilitative care and education. The best interests of the child are rarely, if ever served, by subjecting a child to an exclusion screening procedure.

Finally, as has been recognized by UNHCR and at the Pretoria symposium, the question of how to best protect and assist refugee family members of separated persons requires special consideration.

• Child soldiers should be separated from, and never interned with, or detained alongside armed elements. They should benefit from a specialized regime of rehabilitative care and education. The best interests of the child are rarely, if ever served, by subjecting a child to an exclusion screening procedure.

Militarization of the Humanitarian Mission

NGOs would urge that in discussion of the maintenance of the civilian character of asylum it is recognized that the involvement of the military, even international or regional forces, in humanitarian operations can create difficulties for the mission, and jeopardize the civilian nature of a refugee settlement. UNHCR’s own evaluation of the Kosovo effort has acknowledged this danger. The role of the host state military must be strictly circumscribed, primarily with respect to securing external borders and perhaps camp approaches. We urge that NGOs be involved in discussions on drawing up Guidelines for Working with the Military.

The Relationship between Separation and Exclusion

It is important that the nature and purpose of exclusion is not confused with that of separation. Exclusion denotes both a legal concept and a procedure whereby individuals who otherwise meet the criteria for refugee status are excluded from protection because there are serious reasons for considering that they may have committed an egregious crime. The exclusion enquiry, for example, is focused on past action rather than on an assessment of future security risk. At the same time we recognize that identification of excludable elements in a refugee population can constitute, in certain circumstances, a trigger for an approach by the Secretary General to the Security Council under the terms of SC Res. 1296.

NGOs agree that “the absence of procedures to deal with exclusion in the context of mass influx situations poses a major operational challenge in refugee protection” (paragraph 18). Whereas individuals may be recognized as refugees on a group basis, due to the serious implications of a decision to exclude, exclusion must be done on a strictly individualized level. NGO’s recognize that conducting an exclusion screening procedure can be a time consuming and resource rich enterprise. The implications of exclusion are so stark however, that this is unavoidable. Making an effective link between exclusion and holding human rights violators accountable is one, however, which will contribute to overall stability. In addition to excludees, separated armed elements may also be subjected to accountability measures.

• NGOs support the call for the development of operational guidelines on applying the exclusion clauses in situations of mass influx. We look forward to the outcome of the Track 2 expert consultations on exclusion and note in particular that thorough examination of the post exclusion framework is vital to the workability of such a procedure.