ASIL 2019 Recap: The Law (and Politics) of Displacement

By Meredith Capps

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On Thursday, March 28, Jill Goldenziel of Marine Corps University moderated a discussion on legal and political challenges surrounding forced displacement, which is at an all-time high. Panelists included Itamar Mann of the University of Haifa; Daniel P. Sullivan of Refugees International; Alice Farmer, the Legal Officer for UN Office of the High Commissioner for Refugees (UNHCR)in Washington, D.C.; and Kristina Campbell, a clinical faculty member at the University of the District of Columbia.

Mann discussed some history of international law governing displaced persons, including the 1923 Treaty of Lausanne, which, in part, facilitated population exchange and redistribution between Greece and Turkey. In the human rights era following the World Wars, the forced movement of groups of persons became “the paradigm of a criminal act,”  with freedom of movement established in the Universal Declaration of Human Rights, and forced movement of populations prohibited in the Geneva Conventions. Mann identified the movement of Syrians out of Greece as a current challenge, and climate change as the impetus for movement a future issue.

Sullivan discussed the displacement of the Rohingya from Myanmar to Bangladesh, where roughly 1 million people now reside in camps. Rendered stateless in Myanmar as “illegal Bengalis,” the Rohingya are also not protected as refugees in Bangladesh (who has considered moving some to a disaster prone island in the Bay of Bengal). Despite clear evidence of criminal activity by Myanmar officials, an ICC referral may be blocked by Russia and China, and fact-finding missions and target sanctions have failed to impact change.

Farmer noted that with only 1/4 to 2/3 of displaced persons presently returning to their home state, traditional displacement solutions are no longer viable. Though some characterize migration north from Honduras, Guatemala, and El Salvador as economic migration, current patterns suggest a forced displacement, and UNHCR takes the position that many of those fleeing violence in these regions satisfy refugee criterion. The number of families migrating is particularly significant, and suggests that deterrence is ineffective. These changes in the nature of persecution test of weaknesses in international law, with adjudicators inconsistent in their approach to defining “refugee,” and burden sharing conversations amongst states fraught. While UNHCR is working to increase capacity in the Mexican asylum system and facilitate local integration, its capacity remains vastly below that of the U.S.

Campbell discussed U.S. immigration family detention centers, a new concept established during the mid-2000s. Per the Flores settlement agreement regarding detention conditions for minors, immigration authorities should preference release of minors to parents, and maintain humane, non-secure facilities. She described the few family detention centers in the U.S., and her clinic’s work assisting families in those centers, including credible fear reviews. Campbell said that the Trump administration’s June 2018 executive order did not, in fact, alter its zero tolerance policy that facilitated family separation, and it has no plan to reunite families separated as a result.

The panelists discussed several recurring, fundamental issues during the question-and-answer period. One was the idea of repatriation, with efforts to repatriate Rohingya during the 1970s cited as an effort that failed due to lack of political will, and safety concerns on the part of the group itself; when root causes remain unaddressed, repatriation is not a viable option. Domestic courts do, at times, enforce international norms to protect displaced persons, citing the East Bay Sanctuary Covenant case, but judicial enforcement can generate a backlash. Terminology used to characterize a situation can also either boost or diminishing political will. For example, when an NGO or state uses “ethnic cleansing,” rather than genocide or “crimes against humanity,” public sense of urgency may diminish. Conversely, frequent use of the term “crisis” or “surge” by advocacy groups and the media may desensitize the public.

Goldenziel also discussed the Global Compacts for Refugees and Migration, nonbinding agreements negotiated by many states, including the U.S., and adopted by the UN General Assembly, but whose status under international law is unclear. Negotiations resembled those for a treaty, with some states lodging statements similar to RUDs, and some states appear to consider it forceful despite its nonbinding status. The U.S. withdrew from the compact, citing sovereignty concerns.

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