Definitions & Conceptual Issues
Last Updated: March 4, 2009
Who is displaced?
Refugees
A refugee, as defined by the Convention Relating to the Status of Refugees, is someone who has "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."1 The 1951 Convention and the 1967 Protocol are used by states to determine whether an asylum seeker qualities for refugee status.2The Convention definition requires that asylum seekers meet the so-called "nexus requirement" to be considered a refugee. The nexus requirement means that there is a direct, causal link between a persons well-founded fear and one of the five grounds: race, religion, nationality, membership in a particular group, or political opinion. It is under the nexus requirement that states can interpret their own definitions of a refugee (e.g. whether a woman who has undergone female genital cutting qualifies under one of the grounds).3 "Whilst the definition of a 'refugee' and the consequences of recognition as such are set out in the Convention, implementation of the provisions of the Convention is left to state parties through domestic legislation and domestic adjudication by administrative tribunals and appellate and superior courts."4
From a legal perspective, refugees are often categorized in the following ways:
- Statutory refugees those defined as refugees under the 1951 Convention;
- Mandate refugees refugees within the competence of UNHCR, as defined by the agencys mandate in its Statute;
- Persons of concern;
- Prima facie refugees persons identified as refugees because of the designation of an entire group, usually in cases of crisis and mass movements of people.5
The definition of refugees has evolved over time, and the types of people who are displaced have also changed since 1951. As highlighted by scholar/practitioner Kimberly Maynard, "Today, migration results not only from persecution but also from conditions such as poverty, famine, disease, massive human rights abuse, ecological disaster, civil strife, fear of retaliation, and political or religious conventionSince the reason for seeking asylum in both cases is a threat to life and freedom, there may be little distinction today between a person seeking freedom from starvation and another freedom from violence."6 A recent trend is that there is increasing difficult in distinguishing economic migrants, as well as environmental refugees, from refugees fleeing persecution. UNHCR still gives priority to those that qualify under the Convention definition, but they are gradually extending their assistance to those outside the definition, especially in the case of internally displaced persons (IDPs) and persons of concern.7
Refugee status is temporary and only applicable "until it is established that international protection is no longer necessary or justified. The 1951 Refugee Convention contains an exhaustive list of the circumstances under which refugee status may cease."8
Internally displaced persons (IDPs)
While refugees cross an international border, internally displaced persons (IDPs) are individuals who have fled their homes but remain in their national territory.9 According to refugee protection field guide, the differences between refugees and IDPs are legal and technical, and have little to do with the motivations behind the movement.10 More specifically, the term refers to, "Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border."11 According to the International Committee of the Red Cross (ICRC), this definition is the one most commonly used in the international community, but fails to provide useful applicability to operations, because it is so broad as to cover many, many people with varied needs.12 "Accordingly, several humanitarian organizations depart from this definition when seeking to identify persons failing within the scope of their activities and mandate."13 ICRC limits their assistance to persons displaced internally because of armed conflict.14
Issues of internally displaced persons are both parallel to and distinct from that of refugees. "Although technically only a border crossing separates the two situations, the international community is becoming more aware of several important differences that distinguish IDPs from other victims of conflict."15 Maynard also acknowledges that the incidence of internal displacement is rapidly increasing, and IDPs outnumber refugees by more than two to one. A primary reason for this increased internally displaced population is the growth in refusals of countries to accept refugees, which is a violation of the requirements under the Convention.16
Since IDPs remain in their national territory, the responsibility for their protection and wellbeing is held by the state, and thus, outside the domain of the international assistance and protection. However, the state may be responsible for persecuting the displaced persons or lack the capacity to protect this population. In addition, IDPs are rarely contained to camps, so aid provision and security is difficult to establish for these groups. In recognition of these issues, UNHCR and other organizations have recently expanded their scope of work to include IDPs in some circumstances.17
Returnees
"Returnees" is a term used to refer to former refugees who return to their country or area of origin, whether spontaneously or in an organized manner. The UN "Recommendations on Statistics on International Migration" defines refugees as a subset of migrants, and thus, categorizes returnees as, "Persons returning to their country of citizenship after having been international migrants (whether short-term or long-term) in another country and who are intending to stay in their own country for at least a year."18 Of course, the situation for refugees is vastly different that other migrants and specific reintegration strategies are necessary, in order to ensure that they return voluntarily in safety and dignity to at least minimum conditions of physical, legal and material safety.19The literature on reintegration usually uses the language "returnees and IDPs," which infers that only refugees are considered returnees, while IDPs are placed into a unique category.
Persons of concern
UNHCR uses the term "persons of concern" to describe refugees under the 1951 Convention regional instruments, or so-called "Convention refugees," returnees, stateless persons and, under certain circumstances, internally displaced persons and persons threatened with displacement.20 According to Pirkko Kourula, persons of concern "fall within the competence of UNCHR according to international law, namely international or regional refugee instruments, UNHCRs Statute and subsequent General Assembly resolutions as well as specific authorizations by the Secretary-General."21 Clearly, this definition is much broader than the Convention definition of a refugee, and thus, requires a wider spectrum of support and an expanded UNHCR mandate.Remainees
While remainees are not displaced, they face many of the same challenges as refugees and internally displaced persons (IDPs), as well as psycho-social issues as direct witnesses of the conflict. However, remainees do not always qualify for international assistance and security, even when the state is failing to fulfill its obligations of protection. There are some exceptions, as was the case in Afghanistan when the Office of the United Nations High Commissioner for Refugees (UNHCR) provided some remainees with shelter and land reclamation assistance, along with returnees and IDPs. Selection for assistance was based on ownership of land, a current landless status and level of vulnerability.22 Remainees may often include very vulnerable groups, such as the elderly, who are unable to flee.23 Go to Land, property and resources and Trauma and Psycho-social Well-beingBased on their unique experiences, the perspectives of displaced persons and remainees about the post-conflict situation may also differ significantly, which has significant implications for economic recovery and reconciliation. In a study of returnees and remainees in Croatia, Marina Skrabalo found, "The greatest divergence was present in the nature of war trauma and approach to the other group. While returnees were filled with frustration and anger towards the remainees, primarily Serbs, the remainees were mostly affected by the sense of fear of accusation and isolation."24 Interestingly, the two groups had similar memories of the pre-war environment and similar assessments of the post-conflict challenges facing their communities, including economic, social and educational opportunities. The unique characteristics of refugees, IDPs and remainees makes the reintegration process all the more complex. Go to Activities: Social cohesion and Challenge: Mitigating tensions
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Processes of return
Reintegration engaging communities
The Office of the United Nations High Commissioner for Refugees (UNHCR) provides the most commonly used definition of reintegration: "A process which involves the progressive establishment of conditions which enable returnees and their communities to exercise their social, economic, civil, political and cultural rights, and on that basis to enjoy peaceful, productive and dignified lives."25 With a similar long-term objective, the World Bank Post-Conflict Fund defines community reintegration as activities at the community level designed to "promote the successful social and economic reintegration of refugees, IDPs and other vulnerable groups, thereby laying the foundation for longer term social and economic development."26At a more local level, focus groups in post-conflict Angola defined reintegration in terms of institutional and individual aspects. "Institutional-related definitions such as 'regaining one's livelihood' or 'freedom of travel' [were] mentioned alongside responses focused on individual relationships, such as 'uniting with family members' or 'language.'" Interestingly, the focus group participants gave greater credence to the institutional aspects, which tended to focus on basic survival needs.27
It is important to note that these definitions do not assume that displaced persons return to their "normal" communities, as the social and economic fabrics of the communities are changed by conflict. Peoples lives will have been changed, some displaced persons will not return, and the economic environment and peoples ability to earn a livelihood will likely have been significantly destroyed.28 Return and reintegration then, involves more than a simple reversal of displacement. As experience illustrates, this is a "dynamic process involving individuals, households and communities that have changed as a result of their experience of being displaced. Children may have been born and raised in exile, for example. Women are likely to have taken on new roles as head of families and breadwinners."29 Go to Livelihoods
Involving refugees, IDPs and local communities in the reintegration process in a holistic manner represents a shift in operational thinking away from narrowly focused, short-term activities targeted only at returnees' and IDPs' immediate needs.30 This "integration" oriented thinking is driving changes in way the international community conceives of reintegration. As the United States Agency for International Development (USAID) highlights: "In efforts to promote the reintegration process, no distinction should be made between returning refugees and IDPs. The needs of receiving communities must be taken fully into account. Neither should reintegration activities differentiate between 'assisted' and 'spontaneous' returnees. Assistance should be provided wherever possible on a community-wide basis, while recognizing the importance of providing support to individuals, households and groups of people with special needs."31 Illuminating further rationale for an integrated approach: "Reintegration is complex. As combatants return, refugees and internally displaced persons (IDPs) also return. At the same time, those who remained in communities often suffered enormously during the conflict, sometimes at the hands of the same reintegrating ex-combatants. Communities therefore have few resources available to help returning populations groups."32 UNHCR-led comprehensive plans of actions seek to address the sociopolitical and economic contexts of each situation to ensure that the identified solutions are appropriately tailored to each environment.33 Go to Spontaneous versus organized return
It is also important to highlight that reintegration is frequently discussed only in terms of former combatants, but the scope of this paper is limited to community reintegration of displaced persons, with the recognition that all reintegration efforts should be coordinated with a view towards all relevant actors. Community reintegration infers that all local actors are considered in the process, including refugees, internally displaced persons (IDPs), former combatants and people that remained in the community.34
Repatriation
Repatriation, according to the Office of the United Nations High Commissioner for Refugees (UNHCR), the UN body with official responsibility for promoting and facilitating the repatriation of refugees within the international community, describes repatriation as the free and voluntary return to ones country of origin in safety and dignity35 Repatriation is, at least in theory, undertaken only when peace and reconciliation are deemed durable and based upon "free and informed choices" by displaced persons.36 James Milner identifies two key aspects to successful repatriation programs. First, repatriation should only occur when the "overwhelming majority" of the refugee population expresses a desire to repatriate to their country of origin. Second, repatriation is only a durable solution when connected with reintegration upon return and when the fear of persecution is no longer applicable.37In the 1990s, "the meaning of voluntary in voluntary repatriation...changed. Voluntary repatriation originally demanded that the refugee consent to return to a country that in her view no longer represented a threat to her safety. But UNHCR officials began introducing new concepts like 'voluntariness' that meant that refugee consent was no longer necessary and that the home situation need only have appreciably improved or held out the promise of improving...This development also meant that the refugees assessment was no longer critical to determining whether and when to initiate repatriation. Moreover, the situation at home need not have improved to the point that it no longer represented a threat to the refugees safety; it need only be better than life in exile."38 There are passionate debates in the literature about whether or not this new evolution in "voluntariness" constitutes a violation of the non-refoulement principle.
Refugee protection
The Convention Relating to the Status of Refugees forms the legal framework for refugee protection and international refugee law. Regionally, three instruments have important implications for refugee protection: "the Bangkok Principles, adopted in 1966 by what was then known as the Asian-African Legal Consultative Committee (AALCC), the Organisation of African Unity (OAU)) Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted in 1969, and the 1984 Cartagena Declaration."39 The primary responsibility for protecting citizens lies with state governments. However, "when governments are unwilling or unable to protect their citizens, individuals may suffer such serious violations of their rights that they are forced to leave their homes, and often even their families, to seek safety in another country."40 When a state is no longer able or willing to protect members of its population, the international community may step into fulfill protection obligations. However, a lack of protection forms part of the definition of a refugee in the Convention, whereby a person "is unable, or owing to such fear, is unwilling to avail himself of the protection of that country."41 "International humanitarian law provides that victims of armed conflict, whether displaced or not, should be respected, protected against the effects of war, and provided with impartial assistance."42Rights crucial to refugee protection
Most of the rights crucial to refugee protection are also the fundamental rights stated in the 1948 Universal Declaration of Human Rights:
- Right to life, liberty and security of person;
- Right to seek and enjoy asylum;
- Freedom from torture, or cruel, inhuman or degrading treatment or punishment;
- Freedom from slavery or servitude;
- Recognition as a person before the law;
- Freedom of thought, conscience, and religion;
- Freedom from arbitrary arrest and detention;
- Freedom from arbitrary interference in privacy, home and family;
- Freedom of opinion and expression;
- Right to be educated;
- Right to participate in the cultural life of a community.
Kate Jastram and Marilyn Achiron, Refugee Protection: A Guide to International Refugee Law (Geneva: Inter-Parliamentary union and The Office of the United Nations High Commissioner for Refugees), 8, www.ipu.org/PDF/publications/refugee_en.pdf.
Non-refoulement
According to the International Refugee Rights Initiative, "The right to non-refoulement, the right not to be returned to a country where one might face persecution, is the cornerstone of the international regime of refugee protection if the right to non-refoulement is violated and a refugee is expelled from the country of asylum, any discussion of other rights is rendered moot."43 The right of non-refoulement is now considered to be a part of customary international law, and thus, is binding for all countries, including non-signatories of the 1951 UN Convention Relating to the Status of Refugees and other treaties, such as the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1984 Cartagena Declaration on Refugees in Latin America44 The non-refoulement principle is intended to protect refugees that have a reasonable fear that their life or freedom is threatened on the basis of their race, religion, nationality, membership in a particular social group or political opinion, in addition to situations of potential torture or human rights violations.45
A seminar report by The Redress Trust and The Immigration Law Practitioners' Association asserts that "the principle has been progressively under attack in recent years" through two factors. First, increased concerns about terrorism and national security, particularly in Western states, have led to broader understandings of the principle. For example, five European countries have argued in courts that, "the right to individual to be free from torture may be balanced against the national security interests of the State."46 Second, states have decried the shear numbers of asylum seekers as overwhelming financially and socially.47
1. United Nations, "Convention Relating to the Status of Refugees," General Assembly Resolution 429) (Geneva: United Nations, July 28, 1951).
2. The Office of the United Nations High Commissioner for Refugee, Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/IP/4/Eng/REV.1 (Geneva: UNHCR, updated January 1992), 1.
3. Michael Foster, "Causation in Context: Interpreting the Nexus Clause in the Refugee Convention," Michigan Journal of International Law, Volume 23, Winter 2002: 266.
4. Ibid., 267.
5. Pirkko Kourula, Broadening the Edges: Refugee Definition and International Protection Revisited (Leiden:Martinhus Nijhoff Publishers, 1997), 44.
6. Kimberly Maynard, Healing Communities in Conflict (New York: Columbia University Press, 1999), 60.
7. Ibid., 61.
8. The Office of the United Nations High Commissioner for Refugees, "Chapter 2: Persons of Concern to UNHCR," in UNHCR and International Protection: A Protection Induction Programme (Geneva: UNHCR, June 2006), 25.
9. IRIN, "The Long Journey Home: An IRIN Web Special on the Challenge of Refugee Return and Reintegration," February 2005, 8.
10. The Office of the United Nations High Commissioner for Refugees, Protecting Refugees: A Field Guide for NGOs (Geneva: UNHCR), 16.
11. United Nations, "Guiding Principles on Internal Displacement," E/CN.4/1998/52/Add.2 (New York: United Nations, February 11, 1998).
12. International Committee of the Red Cross, "Internally Displaced Persons: The Mandate and the Role of the International Committee of the Red Cross," International Review of the Red Cross, Number 838 (June 30, 2000): 491,.
13. Ibid.
14. Ibid.
15. Maynard, Healing Communities in Conflict, 62.
16. Ibid., 62.
17. Ibid., 62.
18. United Nations Department of Economic and Social Affairs, "Recommendations on Statistics on International Migration," Statistical Papers Series M, Number 58, Revision 1 (New York: United Nations, 1998).
19. The Office of the United Nations High Commissioner for Refugees, An Introduction to International Protection: Protecting Persons of Concern to UNHCR: Self-study Module 1, (Geneva: UNHCR, August 1, 2005), 13.
20. Ibid., 159.
21. Pirkko Kourula, Broadening the Edges, 44.
22. Government of the Islamic Republic of Afghanistan, National Program for Landless Returnees, AFG/MoRR/1384/NP1 (Kabul: The Islamic Republic of Afghanistan Ministry of Refugees and Repatriation, July 2005), 3.
23. The Office of the United Nations High Commissioner for Refugees, Protecting Refugees: A Field Guide for NGOs (Geneva: UNHCR), 102.
24. Marina Skrabalo, "Documenting the Impact of Community Peacebuilding Practices in the Post-Yugoslav Region as a Basis for Policy Framework Development" (July 2003).
25. The Office of the United Nations High Commissioner for Refugee, Policy Framework and Implementation Strategy: UNHCRs Role in Support of the Return and Reintegration of Displaced Populations (New York: UNHCR, February 18, 2008), 4.
26. The World Bank Post-Conflict Fund, "Workshop on Closing the Gap on Community Reintegration Activities: Learning from Inter-agency Collaboration," (Geneva: The World Bank, June 23-24, 2003), 1.
27. Alexandra Kaun, "When the Displaced Return: Challenges to 'Reintegration' in Angola," Research paper number 152 (Washington, D.C.: United State Citizenship and Immigration Services, Office of Refugee and Asylum, January 2008).
28. United Nations Development Programme, "Post-Conflict Economic Recovery: Enabling Local Ingenuity" (New York: UNDP, 2008), xvii.
29. The Office of the United Nations High Commissioner for Refugee, Policy Framework and Implementation Strategy, 3,
30. United States Agency for International Development, "Community-Focused Reintegration" (Washington, D.C.: USAID), 6.
31. USAID, Community-Focused Reintegration. United States Agency for International Development, 9.
32. Ibid., 8.
33. IRIN, "The Long Journey Home: An IRIN Web Special on the Challenge of Refugee Return and Reintegration," 5.
34. USAID, Community-Focused Reintegration. United States Agency for International Development, 8.
35. Ibid., 1.2.
36. Ibid., 1.3.
37. James Milner, "Sharing the Security Burden: Towards the Convergence of Refugee Protection and State Security," RSC Working Paper Number 4 (Oxford: University of Oxford, Refugee Studies Centre, May 2000), 23.
38. Michael Barnett, "The Best of Times, the Worse of Times: The Evolution of Humanitarianism and the UNHCR" (paper presented at annual meeting for the International Studies Association, Montreal: March 17-21, 2004), 33.
39. International Organization for Migration, "Refugee Protection," IOM.
40. Kate
41. United Nations, Convention Relating to the Status of Refugees.
42. Jastram and Achiron, Refugee Protection, 18.
43. Olivia Bueno, "Perspectives on Refoulement in Africa," (International Refugee Rights Initiative: paper originally presented at the Canadian Council for Refugees Conference, Toronto: June 17, 2006), 1.
44. Bueno, "Perspectives on Refoulement in Africa," 1 and UNHCR, Chapter 2: Persons of Concern to UNHCR, 22.
45. Sir Elihu Lauterpacht and Daniel Bethelehem, "The Scope and Content of the Principle of Non-refoulement: Opinion," Refugee Protection in International Law, eds. Erika Feller, Volker Turk, and Frances Nicholson (Cambridge: Cambridge University Press, 2003), 89.
46. The Redress Trust and The Immigration Law Practitioners' Association, "Non-refoulement Under Threat" (proceedings of a seminar, London: REDRESS and ILPA, May 16, 2006), 2-3.
47. Ibid., 3.
