Comments of the Medical Foundation for the Care of Victims of Torture on the paper Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination
prepared by James Hathaway and Michelle Foster for the 2nd track meeting of the UNHCR Global Consultations

San Remo, September 2001.

Introduction

The Medical Foundation for the Care of Victims of Torture is a UK-based human rights organisation that receives more than 5,000 referrals of survivors of torture and organised violence annually from approximately 90 countries. Almost all of these survivors of torture or atrocity are asylum seekers. Our staff of clinicians offers medical and other therapeutic help to them, as well as social and practical assistance. Our studies on torture in particular countries as well as our clinical examinations and documentation of individual cases are invoked in the assessment of asylum applications in Britain. The Medical Foundation has good working relationships with UNHCR. Medical Foundation staff have contributed to UNHCR events and training.

We also have partnership projects with organisations in other countries working with survivors of torture and organised violence. The countries include Kosovo, Macedonia, Somaliland, Guatemala and Palestine. Some of those with whom we work in those countries are returned refugees; many have been, or remain, internally displaced persons.

The Medical Foundation participated in the first meeting under the Third Track of the Global Consultations, providing written comments on the discussion papers and attending as part of the NGO delegation in Geneva. We have also provided written comments for the third track meetings in June and the July Expert Roundtable in Cambridge.

Comments

The Medical Foundation has read this detailed and scholarly paper with interest. The analysis of the Internal Protection Alternative into accessibility, antidote, no risk of being persecuted or of indirect refoulement and the presence of affirmative protection is a helpful one and provides a valuable framework for discussions at the 2nd track meeting. We limit ourselves herein to brief comments on the return of survivors of torture, drawing on the analysis in the discussion paper.

In its analysis of Step 3 (No new risk of being persecuted, or of refoulement to the region of origin) The discussion paper identifies the need for “a broad rather than a narrow focus on the applicant’s predicament, focused on the particular concerns and circumstances of the applicant” (page 39). It goes on to amplify this with a reference to “a focus on their specific physical, psychological and social circumstances” (page 40).

In its analysis of Step Four: minimum affirmative state protection available, the discussion paper points out that “ `protection` is not simply the absence of persecution” (page 42). It supports this analysis by reference to the Preamble to the Refugee Convention (page 42). It goes on define protection by reference to “the Refugee Convention’s endogenous definition of `protection` in Articles 2-33” (page 44).

We consider that the reference to the physical, psychological and social circumstances of the applicant, and the concept of the “thin skull” rule (page 41; in the UK known as the “eggshell skull” rule) are relevant not only to Step 3 and the question of whether the applicant will be driven to return to the region of origin, but also to Step 4 and the question of the protection available. This is implicit in the discussion of Step 4, not least because the principle of non-discrimination requiring parity of treatment with nationals must be construed as parity of treatment with nationals sharing the same characteristics (minority, gender, disability for example), but is not made explicit. However, it is arguable that this implicit recognition of the importance of focusing on the circumstances of the applicant remains insufficient, especially in the context of considering the use of the IPA in the case of survivors of torture.

The analysis of Step 4 describes the Preamble to the Refugee Convention as a “context-specific touchstone” (page 42). Another “context-specific touchstone” is provided in Article 1 of the Refugee Convention, specifically in the second paragraph of Article 1(C)(5). This risks being overlooked because Step 4 proceeds on the assumption that the “Refugee Convention’s endogenous definition of `protection` can be extracted by consideration of Articles 2-33 only.

Article 1(C)(5) deals with return when the circumstances in which a person has been recognised as a refugee have ceased to exist. The second paragraph states:

“Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of former habitual residence.”

This is glossed in paragragh 136 of UNHCR’s Handbook on procedures and criteria for determining refugee status (Reedited Geneva January 1992) as follows:

“136. The second paragraph of this clause [1(C)(5)] contains an exception to the cessation provision contained in the first paragraph. It deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. The reference to Article 1A(1) indicates that the exception applies to “statutory refugees”. At the time when the 1951 Convention was elaborated, these formed the majority of refugees. The exception, however, refelects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees. It is frequently recognised that a person who – or whose family – has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of régime, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee.” If these considerations apply at a time when the situation in the country of habitual residence have changed to the extent that it is possible to invoke the cessation clauses, then how much more relevance they have at a time when the threat of persecution is still live in one part of the country.

Although paragraph 136 of the Handbook makes reference to a “general humanitarian principle” the issues it raises cannot be said to be the general humanitarian gloss of which the authors of this paper are chary. They are derived from the “context-specific touchstone” (see page 42) of Article 1(C)(5) of the Refugee Convention. Moreover Article 1(C)(5) sets out a nexus with previous persecution, referring as it does to “compelling reasons arising out of previous persecution”.

We hope that these issues can form part of the discussion.

29 August 2001. For further information please contact Alison Harvey, Advocacy Officer, Medical Foundation for the Care of Victims of Torture, Star House 104 to 108 Grafton Road London NW5 4 BD alison@torturecare.org.uk, direct line and facsimile 0207 813 4535