61 recognized need of the human soul148‘.While this quotation may apply to integration, it is assumed that a sense of belonging seems to be more real and natural in repatriation as compared, relatively, to integration. Ignatieff also argues that, ‗belonging…is first and foremost protection from violence149‘. The Co-ordinator of the Mozambique Repatriation Operation observed, ‗…people have this strong, compelling urge to go home. The yearning to return is not reduced by the time they spend away150‘.
It is clear therefore that while Oroub El-Abed‘s idea of integrating refugees into the host state is worthwhile, it works on the assumption that all refugees embrace integration to the host state which may not be the case. This was revealed by Rwandan and Burundian refugees in Tanzania, where some rejected the offer151. Because of the concept of ―home‖
and belonging, therefore, repatriation may be easily embraced by many refugees if prevailing circumstances in home countries allow for such repatriation.
62 relevance to UNHCR's respective statutory functions. There are two key principles. The first of these is the principle of non-refoulement. Article 33prohibits a state from expelling or returning (‗refouler‘) a refugee in any manner whatsoever to the frontiers of territories where he or she would be exposed to persecution.152 The second principle is the well- founded fear of persecution. Such fear, as defined in Article 1, is central to the refugee definition of the Convention. The fact that repatriation must be voluntary implies that the subjective fear should have ceased. Refugee status can cease, however, once meaningful national protection is re-established.153
The principle of non-refoulement was meant to ensure that the refugee who is fleeing for fear of persecution is not exposed to such danger by being refused entry to a country of asylum or being forcefully repatriated. Unless the conditions that necessitated the forced migration change, the refugee should remain a person of concern to UNHCR, the refugee protection agency.
Although non-refoulementis a key principle of the 1951 UN Convention, many historical examples in Africa seem to suggest otherwise.
Contrary to a common conception, r e f o u l e m e n t in Africa is very
152 See Article 33 of the 1951 Convention Relating to the Status of Refugees
153Article I paragraph 4 of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. The 1969 OAU Convention Governing the specific Aspects of Refugee Problems in Africa attempted to domesticate the global 1951 UN Convention to align it to the African realities. Also see The 1951 Convention Relating to the Status of Refugees.
63 common: hundreds of refugees fleeing conflict in Sierra Leone were sent back by Guinea in 1999; Namibian authorities implemented a dusk-to-dawn curfew, with soldiers under orders to shoot violators all along a 450 km bank of the Kavango River in 2001. This last example prevented Angolan refugees escaping violence in Cuban Province from seeking asylum because government and UNITA patrols could be avoided safely only at night154.
Elsewhere in the mid-1990‘s, both Tanzania and Zaire at times closed their borders to masses attempting to flee the conflict in Rwanda.155 To thwart the entry of refugees, states may sometimes erect direct barriers that serve as border closures. This was the case in South Africa during the apartheid era when the government of Pretoria erected a 3,000 volt electrified razor wire fence to prevent the entry of Mozambican refugees.156Refugees who succeed in crossing a state border to asylum may still face ejection by officials, which can be a matter of formal policy and may be truly massive in scope. In July 1999, without court review, Zambia ordered the deportation of all nationals, including refugees, of the
154 These examples are cited in J. C. H a t h a w a y, The Rights of Refugees under International Law, Cambridge 2005, 280.
155 See: Border closure triggers debate, Guardian, July 19, 1995. Besides, as some 50,000 refugees attempted to flee ethnic clashes either in Rwanda or in Burundi, the Government of Arusha officially closed its border with Burundi on March 31, 1995. At that time the Tanzanian Prime Minister told Parliament that: ‗[t]he gravity of the situation, especially for those coming from Burundi and Rwanda, has made it inevitable for Tanzania to take appropriate security measures by closing her border with Burundi and Rwanda.‘ Cited in H a t h a w a y, op. cit. note 29, 281. About Zaire, on August 19, 1994, Deputy Prime Minister Malumba M b a n g u l a declared that no more refugees would be allowed to cross from Rwanda into Zaire. Before this announcement, some 120 refugees per minute had been crossing into Zaire at the frontier post in Bukavu.
See: Le départ des soldatsfrançais du Rwanda. Le Zaire fermesesfrontières aux réfugiés, Le Monde, August 22, 1994: ‗La frontièreestferméedans le sens Rwanda-Zaire, et resteouvertedansl‘autresensafin de permettre aux réfugiés de regagnerleur pays.‘
156 C. N e t t l e t o n , Across the Fence of Fire, 78 Refugees (1990), 27-28.
64 Democratic Republic of the Congo because Zambia‘s national budget could not cover their assistance.157
Intolerance of refugees among the host communities in the state of asylum may lead to non-state agents being used by state agents to either force the refugees to repatriate or to be denied entry at the frontier. Sometimes, non-state agents carry out ejection with the complicity or tolerance of national authorities, as in Kenya in the mid 1990s.158Sierra Leonean and Liberian refugees fled Guinea-Conakry in 2000 during a wave of xenophobic violence that was unleashed after the president of Guinea-Conakry encouraged citizens to form militia groups for the purpose of forcing refugees to be repatriated.159
As Kenya and other countries hosting refugees continue to call for the repatriation of refugees, the principle on non-refoulement seems to be under threat. This is because, legally, asylum states can revoke international protection by activating a cessation clause.
Article 1C (5) and (6) of the 1951 Refugee Convention allows states to cease to offer refugee status when a change in circumstances takes place in the country of origin that
157 Cited in H a t h a w a y , op. cit. note 29, 284. However, to highlight the importance of refugees for the Zambian economy, see news: Zambia: repatriation leads to decline in food production: ‗The repatriation of Angolan refugees is creating food shortages in and around the Zambian camps they have lived in for decades‘, 201 Jesuit Refugee Service Dispatches (28 September 2006).33
158 F. D e l M u n d o , The Future of Asylum in Africa, 96 Refugees (1994), 7: ‗There is resentment, for example, in Kenya, at the security problems the presence of Somali refugees has brought. Last year, Kenyan security forces pushed back over 1,000 refugees from a border camp, something unheard before in Africa.‘
159 D. F a r a h , For Refugees, Hazardous Haven in Guinea, Washington Post 24 (6 November 2000).
65 ends the fear of persecution causing flight.160State cessation of refugee status is termed
‗mandated repatriation‘ although it is not well developed in international practice.161The UNHCR has set forth recommended criteria states can use for evaluating whether a fundamental change has occurred.162However, the UNHCR‘s interpretation of the 1951 Refugee Convention obligations, while authoritative, is not binding on states.163As demonstrated above, the legal requirements states must satisfy to mandate repatriation under the 1951 Refugee Convention are not clear, and confusion exists at the intersection of voluntary and mandated repatriation. Since it is upon host states to determine whether to activate cessation clause or otherwise, the process is subject to abuse by host state depending on their interests.
As demonstrated in the literature above, the principle of non-refoulement, is maintained primarily in theory rather than in practice. While non-refoulement is a well-articulated principle in the 1951 UN Convention and other national and regional instruments regarding refugees, its implementation seems to largely depend on the goodwill of
160 1951 Refugee Convention, supra note 5, art. 1C (5)–(6).
161 See Susan Kneebone and Maria O‘Sullivan, Article 1 C 1951 Convention, in The 1951 Convention Relating To The Status Of Refugees And Its 1967 Protocol: A Commentary 513 (Andreas Zimmermann ed., 2011) (noting that ‗there is relatively little older jurisprudence on Art. 1 C, para. 5,‘ and much of the jurisprudence in existence concerns non-recognized refugees).
162 See UNHCR, Guidelines on International Protection: Cessation of Refugee Status under Article 1c(5)And (6)Of The 1951 Convention Relating To The Status Of Refugees, 10–12, U.N. Doc. Hcr/Gip/03/03 (Feb. 10, 2003) [Hereinafter Guidelines On International Protection].
163 See J. Hathaway, The Right of States to Repatriate Former Refugees, 20 OHIO ST. J.ON DISP. RESOL.
175, 204–06 (2005). While all states have the sovereign authority to allow any person they wish to remain on their territory and while it will often be humane and right to extend such generosity, this is not a matter fairly understood to be required by either the text or purposes of the refugee law.
66 individual states that host refugees and the prevailing circumstances and contexts in these states.