'Protection' could easily qualify as one of the most widely manipulated terms regarding refugees.
While there is general agreement that the minimalistic traditional concept of recognition and a travel document is largely outdated, at least in theory if not always in practice, the agreement ends here.
One of the major shortcomings of protection is the lack of linkage to human rights. It seems that the regime for protecting refugees has developed in isolation from the human rights regime. Indeed, perfectly commonsensical statements such as 'refugees are human beings with human rights' have come to verge on heresy.
The implications of this disjunction can be seen clearly in many of the contemporary practices of refugee protection. It has enabled governments to resort to restrictive interpretations of the 1951 Convention without reference to the wider body of human rights. Indeed, it is this understanding of protection that allows for large scale detention, whether in the form of camps or detention centres, deprivation of means of livelihood through the denial of welfare and the right to work, and policies of nonadmission, to mention but a few contemporary trends. Such practices would clearly be impermissible under a human rights regime that takes account not only of civil and political rights but also of economic, social and cultural ones.
It is this dehumanization that allows for terms such as 'temporary protection' to remain in the current debate. After all, it is not conceivable to talk about temporary human rights. Protection, viewed as a right, would be granted as long as it is needed. Viewed as an act of charity, however, it has become attached to specific time periods rather than need. The lower standard of rights usually granted to temporarily protected persons is another result. The resulting uncertainty and insecurity would amount, if not legally then morally, to inhuman and degrading treatment.
Closely connected to this concept of protection is the nature of solutions. It is conventional wisdom, repeated as a mantra, that 'voluntary repatriation is the most preferable durable solution'. As a descriptive statement, this is highly plausible. After all, who would dispute a rational decision by an autonomous individual to return to her country? The problem, however, is that such a statement is not descriptive but rather prescriptive. It becomes a basis for policies that require validation through tangible results to be presented in annual reports and funding documents. Voluntariness becomes a negotiable term, with ranges of meaning that fall short only of a gun to the head.
This view of protection gives legitimacy to terms like 'compassion fatigue'. (In a rights oriented regime, would 'obligation fatigue' have found its way into the public discourse?) 'Compassion fatigue', coupled with xenophobia, further erodes the concept of protection. In such a political atmosphere, the emphasis shifts to containment rather than protection. 'Incountry protection' or the meaningless 'right to remain' become the terms of reference. Root causes become the focus of the debate (and the money). The fact that protection was initially conceived as a surrogate, yet necessary, measure to deal with the immediate ramifications of a breakdown of legal order, and the fact that it complements rather than excludes parallel, but separate, action to resolve root causes is forgotten. By a distortion, the two terms become mutually exclusive. The latter cannot be achieved at the same time as the former. To resolve root causes, people lacking protection are forced to exercise their right (read duty) to 'remain' or 'return'. Asylum, even when it is the only effective means of protection, becomes a nonoption.
At a time when the political expedience of granting protection is diminishing, a reconceptualisation of protection is necessary. If this exercise is to be effective, the link to human rights is a must. The need for protection arises in response to human rights violations, and the solution could only be the provision of human rights to those who seek them. What is in question here is a right, not an act of charity. Charity, beside being demeaning to the recipient, is easily open to manipulation. As a right, protection entails responsibilities common to all states. These responsibilities should be clear: provision of full protection and human rights to all who need it. In this regime, there is no room for differentiated responsibilities. 'Containment for money', where rich states pay (whether called aid or burden sharing) less affluent ones to keep the refugee away is not only morally objectionable but also unsustainable.
Human rights organisations should play an active role in this process of reconceptualisation. The traditional exclusion of refugees from the mandates of such organisations has contributed to the conceptual separation of refugee protection from human rights. While recent initiatives by human rights organisations such as Amnesty International and Human Rights Watch are encouraging, more extensive efforts are still needed within the human rights community to achieve effective results.
Ghaith Al'Omari was a lecturer in the Law Department at Yarmouk University, Jordan; he was an RSP Visiting Study Fellow 1995/6 and is currently studying for a DPhil in sociolegal studies.
October 1996