Standing Committee of the
Executive Committee of the High Commissioner's Programme
36th Session
26-28 June 2006

NGO Submissions
(1 and 2 combined)

Agenda item 5 (i)
International Protection:
Note on International Protection,
including Information on Implementation
of the Agenda for Protection

Thank you, Mr. Chairman,

The Responsibility to Protect/Darfur
NGOs welcome UNHCR's recognition that protection requires a broader focus that recognises both the responsibility of states and the international community to protect.

The situation in Darfur is of extreme concern to the NGO community. Not only are there over two million persons displaced in the region, but the conflict in West Sudan has now spread to Chad forcing tens of thousands of Chadians to seek refuge across the border in Sudan. The extremely precarious humanitarian situation in the region has been exacerbated by inter-State tensions, cuts in donor funds for the aid effort, increasing insecurity, forced recruitment, and deliberate attacks on camps for the displaced.

Further to the series of decisions by the UN Security Council (UNSC) relating to Darfur and Sudan, and in particular the adoption of UNSC Resolution 1674, we call on states, in collaboration with the Governments of Sudan and Chad, to urgently consider the implications of their collective responsibility to protect. Access to sufficient humanitarian aid for this population must be provided and those threatened by "systematic, flagrant and widespread violations of international humanitarian and human rights law" (UNSC Resolution 1674, paragraph 26) must be effectively protected.

The protection of IDPs
In light of the growing numbers of internally displaced persons in need of protection, NGOs welcome recognition in the Note on International Protection that there is a need for an agreed legal framework, particularly with respect to ensuring access to those in need and encouraging recognition of state responsibility for IDP protection. We note that the Guiding Principles on Internal Displacement have proved to be an effective tool for the creation of workable frameworks and practices to enhance IDP protection. The implementation of the Principles, and their transposition into national law, must be promoted.

As a first step, NGOs welcome the draft Protocol on Protection and Assistance to IDPs, part of the larger Pact of Security, Stability and Development, a product of the UN/AU facilitated International Conference on the Great Lakes region. If ratified, the Pact will require Member States to enact national legislation as a means to domesticate the Guiding Principles within national legal systems. In addition, NGOs also laud the proposals being discussed by the African Union (AU) to agree the first ever binding treaty on IDP protection. We urge that every support is provided for the ratification and implementation of the IDP Protocol as well as support to the leadership of the AU to develop legislation that can be a model for other jurisdictions. NGOs also urge for the continued involvement and engagement of civil society organisations in the formulation of legal frameworks as they are vital actors in monitoring the implementation of international and regional agreements at the national and local levels.

Northern Uganda
Northern Uganda is a dire emergency in need of robust resources and strong UNHCR leadership. It is critical that UNHR rapidly increase its presence and ability to respond to humanitarian and protection issues, which include congested camps, gender-based violence, child abductions, and lack of freedom of movement which, if reversed, would allow IDPs to access livelihoods to support themselves. Until IDPs can return home to a secure environment, improving security in and around camps will save lives, increase humanitarian access, and prevent the LRA from perpetrating violence against women and children.

Democratic Republic of Congo (DRC)
In the Democratic Republic of Congo (DRC), there is a need to prioritise the needs of women and children who have suffered disproportionately, particularly in IDP assistance, return, and integration programmes. There is also a need to focus on the most vulnerable groups and prioritise resources addressing IDP needs, including in on-going areas of displacement. As cluster lead for protection, UNHCR needs more support to exercise a stronger role and take on additional duties for protection, return, and reintegration. There is concern about waiting for long-term development programmes to address reintegration issues, as this will delay IDPs who want to return home.

Burma
The humanitarian emergency for internally displaced in Burma continues to worsen as the Burmese army steps up attacks in eastern Burma. Some NGOs encourage UNHCR to look for opportunities at the local level to include IDPs in community development projects that they are able to initiate in their work in eastern Burma's Karen and Mon States and Tenasserim Division.

Protecting Refugees within Broader Migratory Movements
We commend UNHCR for its active participation and principled input into the High-Level Dialogue on Migration and Development, and its attempts to ensure that "persons in need of international protection receive such protection in irregular mixed population movements." We agree that "there may also be persons with international protection needs who are outside the refugee protection framework, requiring finer distinctions to be made to provide protection in ways complementary to the 1951 Convention". We are, in particular, concerned that the migration management initiatives, focusing largely on control measures, can undermine refugee protection and force a greater number of refugees to move in an irregular manner, often endangering their lives while in search of protection. While it is legitimate for states to aim for some level of predictability in the movement of persons, relevant policies and practices must ensure that forcibly displaced persons have access to asylum and are entitled to reception conditions in keeping with international human rights and refugee law.

We remain deeply concerned with the increased detention of migrants and asylum-seekers in many countries in the world. Hidden from the general public, governments around the world are using detention to restrict and deter migration and refugee flows. Many people are being detained - sometimes for indefinite periods - in prisons or prison-like circumstances, often without access to information about asylum procedures or access to legal advice, and often in abhorrent conditions.

Burmese Refugees in India
In India, we are concerned over the long wait - up to one year - for Burmese asylum-seekers in Delhi before the Refugee Status Determination process is concluded, during which time they are dependent on other refugees. UNHCR should increase staffing and resources to reduce the length of the RSD process. In Delhi, and sometimes in Mizoram State of north-eastern India, there is little sympathy or understanding of Burmese refugees. Refugees face protection problems such as evictions and physical and verbal harassment. In order to address these problems, UNHCR should partner with Indian NGOs to run programmes on community sensitisation.

The erosion of asylum
NGOs share the concern of UNHCR that industrialised countries are receiving an ever smaller number of asylum applications: such reduction is not commensurate with the fall in the numbers of persons in need of international protection, but appears to be the result of the imposition of exclusionary procedures and standards. These measures prevent access to territory in contradiction to the spirit, and often the letter, of international law and shift the responsibility to protect without reference to equity or capacity. At the same time, industrialised states are putting their weight behind the promotion of capacity-building for countries in 'regions of origin' in order to "obviate the need for onward movements" (paragraph 28 of the Note). Sufficient resources are not being provided. A comprehensive examination of what respective responsibilities might entail is also not being undertaken. We see the effects of blocking access to asylum in Europe on an almost daily basis. Thousands of refugees and asylum-seekers have died trying to cross the Mediterranean Sea to seek asylum. Double standards and policies which reinforce burden-shifting and xenophobia must be challenged.

In response to diplomatic tension between Australia and Indonesia over the grant of asylum to 42 West Papuan refugees earlier in the year, an explicitly deterrent Bill has been introduced to the Australian Parliament. The Bill effectively closes Australia's sea borders and excises Australia from the international protection map for all asylum-seekers arriving in Australia by boat. They are barred from applying for protection in Australia in flagrant disregard for the prohibition on border closure and the principle of non-rejection at the frontier. Asylum seekers are clearly being penalised according to their mode of arrival.

NGOs have previously criticised Australia's 'Pacific Solution' as refoulement in disguise. Although some concessions have been proposed, this legislation still bears many of the same features: extra-territorial processing; lack of judicial review; arbitrary detention (softened slightly at the edges); and no guarantees of access to timely durable solutions, to name a few.

The proposal accords refugees asylum on its territory only as a last resort - and pursuant to a non-compellable and non-reviewable ministerial power, whereas Australia carries the primary obligation of protection. This is a blatant misuse of the durable solution of resettlement and manipulation of the principles of international burden and responsibility sharing.

Mr. Chairman, the essence of this proposal is unprecedented and deserves unequivocal international condemnation. As such, we ask: What will the EXCOM do in light of such proposals that are blatantly undermining the right to seek asylum? Given that EXCOM members are to have "a demonstrated interest in, and devotion to, the solution of the refugee problem," (General Assembly Resolution A/RES/1166) it would seem appropriate for this body to try to put an end to practices that are contrary to this interest.

The use of "security" as a justification for both the denial of protection and the restriction of rights, particularly in the context of the 'war on terror' is of deep concern to NGOs. We recognise that strict application of the exclusion clause is necessary to ensure that those who have violated the rights of others do not shelter under the refugee umbrella. We are deeply alarmed, however, by the increasing misuse of exclusion. In some jurisdictions, protection is being denied, by statute, to the victims of human rights abusers on the basis that they have been forced, under extreme duress, to serve and "assist" their persecutors (providing food, sexual and other services, etc.). Such perverse interpretation of the exclusion mechanism is a disturbing development and makes a mockery of a system that was designed to protect the vulnerable.

Food security
NGOs remain concerned that food cuts have a significant impact on displaced populations including health and protection problems, such as being forced into exploitative employment, including prostitution, selling of non-food items, children dropping out of school or joining armed groups, and an increase in domestic violence. Food cuts can also force refugees to become "irregular secondary movers" in search of livelihood opportunities, often without official sanction. They also force people to repatriate prematurely in what can be misinterpreted as voluntary repatriation. UNHCR and WFP need improved coordination and a concerted effort between them and NGOs to advocate for long-term changes that would enable refugees to become more self-reliant and for donors to target development assistance towards refugee-hosting countries that grant refugees their rights.

NGOs welcome the actions of some States like Thailand when they open up for possible income generating activities for refugees, especially given the increased challenges in finding the necessary resources for the camps. The Thai government has recently approved new rules that will increase income generation activities in the camps and requested NGOs to increase vocational training initiatives. We call on the Thai government to allow refugees to participate in the economy outside of the camps, as well.

Solutions - return
NGOs welcome the fact that more refugees are considering return after long periods of exile and due to the end of major conflicts. We note that UNHCR facilitated return agreements with States are now addressing a broader range of critical rights issues. We are concerned, however, that the desire to encourage return is contributing to unrealistic targets, especially in the light of resources not forthcoming for such repatriation exercises. In the wake of a number of high profile return operations many returnees have again left for countries of asylum or are facing displacement and insecurity within the borders of their own countries. Return should be sustainable, safe, absolutely voluntary, and promoted with due caution.

South Sudan
There continues to be concern regarding support for returnees to South Sudan. Some NGOs are concerned that UNHCR, due to financial pressure, has encouraged Sudanese refugees to return prematurely. Combined with the instability in South Sudan, it is unlikely that UNHCR will meet its target for returns in 2006. What are UNHCR's plans for 2007 and how will UNHCR allocate resources for working within South Sudan and in the refugee hosting countries?

We welcome the emphasis on "the possibility for returnees to settle claims to property, including considerations for equal ownership, inheritance and other pertinent rights of women and children" in some of the more recent tripartite agreements, but remain concerned that there is still a long way to go for the implementation of such rights. The lack of protection of women's rights is still one of the main concerns for a great number of women considering returning to South Sudan. We agree that traditional methods of mediation can be an important tool for resolving differences in property claims, but caution that such traditional methods might prove detrimental to the rights of women and children.

NGOs welcome collaboration with States "to identify comprehensive approaches for specific caseloads, taking into account complementary use of all three durable solutions" and we are likewise concerned with the lack of progress, despite great efforts, in certain situations, such as the Bhutanese refugees in Nepal, the Burmese refugees in Bangladesh, and the Burmese Chin in Malaysia and India.

Refugee Women and refugee children
Despite concerted efforts to combat sexual and gender-based violence (SGBV), there are still very high levels of violence against displaced women and children throughout the displacement cycle. Much progress has been made in systems to identify and support survivors, but these systems are highly vulnerable to the budget cuts UNHCR is forced to undergo at present.

We welcome the draft conclusion on Women and Girls at Risk, the draft Guidelines on the Protection of Refugee Women, as well as the draft Best Interest Determination (BID) guidelines. We particularly appreciate UNHCR's recognition in the draft conclusion that traditional systems of justice may often violate refugee women's rights by prosecuting them for offences that are not crimes under national or international law. One example is the detention of refugee women in Kakuma camp in Kenya for adultery. We call upon UNHCR to monitor and report on these phenomena and to ensure that traditional justice systems do not have the power to detain refugees nor exercise jurisdiction, de facto or otherwise, over serious criminal matters. The advent of mobile courts, such as those in Kenya, is a positive development. Refugees, however, need - but lack - legal advice and representation in these courts.

We also welcome the age, gender, and diversity mainstreaming (AGDM) efforts undertaken by the UNHCR. The participatory assessments will help us identify the root causes of the protection problems that women and children are facing, and hopefully also give us ideas for more innovative protection responses, including from the refugees themselves. In this context, we would like to know: What is UNHCR doing with regards to the serious protection risks - sexual exploitation, extortion, and corruption - identified in the Rohingya camps in Bangladesh during the age, gender, and diversity mainstreaming process undertaken in November last year? There is a risk that if UNHCR were to take any steps to withdraw before a durable solution is agreed to by all parties, the refugees will be put at risk of refoulement.

NGOs remain concerned with the findings of some AGDM exercises indicating that there are still many unaccompanied children not registered or known to UNHCR, not least in the urban areas. We share UNHCR's concern about asylum-seeking children being detained in many countries in the world. We are also worried that some States are detaining unaccompanied or separated children in the absence of proper care arrangements for such children. We call upon States to prevent the detention of refugee children.

Thank you.