JOINT POSITION ON A COMMON DEFINITION OF THE TERM 'REFUGEE'
The Justice and Home Affairs (JHA) Council has approved a "joint position" on a common definition of the term 'refugee' in the 1951 Geneva Convention. The inter-ministerial agreement does not legally bind the member states. Nonetheless it represents a further step towards an ever more restrictive interpretation of the Geneva Convention. The move of the JHA Council has been condemned by the European Council on refugees and Exiles (ECRE) for "trying to define refugees out of existence" and the UNHCR strongly opposes the EU's attempt to limit the validity of the Geneva Convention to persecution by state authorities only.
"The joint position binds the Governments of the member states within the limits of their constitutional competencies; it does not bind either the legislative powers or the judiciary of the member states", say the introductory provisions of the text (our translation from the French version). Consequently, all following provisions aiming to define common criteria for the determination of refugee status are termed "guidelines" (French: "orientations"). Once a year, the Council shall examine to what extent the guidelines are actually implemented in the member states and, if necessary, adapt them to the evolution of asylum policies.
Non-refoulement and right to individual examination confirmed
The joint position re-affirms the validity of the principle of non-refoulement. According to this principle, a rejected asylum seeker may not be sent back to a country of origin where his life, physical integrity or freedom is at risk.
It also (theoretically) confirms the right of any asylum seeker to have his claim examined individually.
Burden of proof
According to the Geneva Convention, an asylum seeker shall be granted refugee status when he has a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". In the UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status it says: "After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. (...)[It] is hardly possible for a refugee to 'prove' every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt".
The joint position suggests a more restrictive practice: the asylum seeker must present the "necessary elements" for assessing the reality of his story. Once the reliability of the applicant's claims are "sufficiently established", detailed evidence for all facts stated by the applicant is no longer necessary and the benefit of the doubt should be granted, "unless good reasons speak against this".
The joint position notes the lack of a common definition of the term 'persecution' in the meaning of the Geneva Convention, but refrains from formally introducing one: "The guide-lines of the present document do not constitute a definition" it says in point 4 of the text; but it goes on naming a list of criteria qualifying for the term 'persecution'. The experiences endured or feared by an asylum seeker must, inter alia, be "sufficiently serious" by their nature or their repetition, or must amount to a basic breach of human rights involving threats to life, freedom or physical integrity or the "manifest impossibility" for the applicant to continue living in his home country.
The text recalls that various forms of persecution might overlap and cumulate in the story of an asylum seeker and that this must be considered in examining his application.
Persecution by state authorities only?
Point 5 of the joint position says that persecution generally emanates from an organ of the state (Les persécutions sont généralement le fait d'un organe de l'Etat). There is no basis whatsoever for such a drastic restriction in the Geneva Convention. What is more, the provision goes on to catalogue many state-sponsored uses of vio-lence termed as "legitimate", particularly "general measures" taken by public authorities for maintaining public order and state security, that may involve the use of force and restrictions of certain liberties. Such forms of repression exerted by the state shall not be considered as persecution in their own right.
As for individuals persecuted by state authorities beyond the limit of the above "legitimate" measures, they shall be eligible for asylum only if the persecution suffered is "intentional, systematic, and lasting".
Persecution by other parties than state organs shall be considered only when it is "encouraged and authorised" by the public authorities.
When state authorities simply remain inactive in the face of persecution by third parties, the joint position recommends a "specific examination of each application". The applicants concerned may be granted "appropriate forms of protection conforming with the national law [of the member state handling the application]". A 1994 draft proposal for the provision on non-state persecution was more generous. It said: "People may also be persecuted by third parties, if any asylum seeker is seriously threatened by his fellow citizens... and the government encourages, permits or deliberately tolerates such persecution...[The] person concerned may also be eligible for refugee status if the public authorities are unable to provide adequate protection".
Asylum seekers should seek "other forms of protection" first
The joint position provides for the rejection of asylum applications on the grounds that the applicant concerned could have resorted to other forms of protection. Thus, applicants are expected to seek protection and legal remedy available under the national legislation of their home country before seeking protection elsewhere (Point 6). If this rule is applied to the letter, this could result in many rejections on formal grounds. An application may also be turned down, when an asylum seeker can find protection in another part of his country and it can "reasonably be expected" that he moves there (Point 8). This assumption of "safe areas" in manifestly unsafe countries is a creation of the EU with no basis in the Geneva Convention.
Deserters and other persons avoiding military service
The joint position does not recognise conscientious objection, draft dodging or desertion as a sufficient ground for asylum in itself. However, it states that asylum must be granted when the very conditions under which an applicant is called to serve in the armed forces of his home country amount to persecution according to the Geneva Convention.
Asylum may be granted, whenever by doing his military service a person would have been forced to participate in crimes against peace, war crimes, crimes against humanity, serious non-political crimes, and acts contrary to the purposes and principles of the United Nations.
It does not clearly follow from the provision whether it also applies to deserters from civil wars or not. It is characteristic of the joint position that it leaves asylum on the above grounds to the discretion of the receiving state. This is a big step back as compared with an earlier version of the provision that said: "Deliberate refusal to perform military service or desertion will in any event be deemed acceptable and will constitute grounds for fear of persecution if it can plausibly be shown that they represent a conscious refusal to participate in military action of a kind which is condemned by the international community because of its inhumane nature or in accordance with generally applicable norms under international law. In such cases the asylum seeker's political convictions, for which he is being persecuted by the authorities are in line with what is expected of him by the international community".
Withdrawal of refugee status
No attempt is made to further specify the criteria established by the Geneva Convention (Article 1C) for the withdrawal of the refugee status. The joint position only says that the member states will do their best to harmonise their policies in this field.
Harsh criticism from the UNHCR
Commenting on the adoption of the joint position by the JHA-Council on 23-24 November, Christiane Berthiaume, a spokeswoman for the UNHCR said in Geneva that "principles of asylum are undermined and that many refugees might find themselves without sufficient protection". "The new interpretation creates an abnormal situation where people persecuted by their government in an internal conflict can be granted asylum, but not people who are just as innocent but being persecuted by the opposition", Ms Berthiaume said, and she emphasised that the Geneva Convention makes no distinction as to where persecution originates from. "We called on the EU not to take this restrictive decision. Even if it is non-binding it will affect asylum policy, particularly with the xenophobic winds blowing through Europe. The decision also threatens to have a negative effect on countries of asylum in the rest of the world, the spokeswoman noted. According to the UNHCR, the EU-decision was taken in order to match with "a more restrictive policy run by a minority of EU-countries - France, Germany, Italy and Sweden".
Reacting to the UNHCR's criticism a Swedish senior official said that his country has added a declaration to the joint position which states that the Geneva Convention shall apply also when a state is incapable of protecting persecutees.
Sources: Projet de position commune définie par le Conseil sur l'application harmonisée de la définition du terme 'réfugié' au sens de l'article 1er der la Convention de Genève, 11786/95; Corrigendum COREPER, COR 1 Limite, ASIM 317, 21.11.95; Addendum COREPER ADD 1 Limité, ASIM 317, 22.11.95; Guidelines for the application of the criteria for determining refugee status..., Presidency proposals, 6675/94. UNHCR-Handbook for determining refugee status, Geneva, January 1992; Svenska Dagbladet, 25.11.95, Reuter, 23.11.95.Comment
As usual with inter-ministerial agreements, the wording of the joint position is evasive on many items and open to interpretation. Moreover, the authors of the text have shown little imagination. Most of the provisions of the joint position appear to be clumsy and somewhat more restrictive re-wordings of principles defined far more skilfully in the UNHCR's handbook for determining refugee status.
The joint position is not legally binding. It is therefore difficult to predict in how far this text as a such will affect the member states' asylum practice.
For the time being, we can only note that, except maybe for the provisions on war resisters, the joint position does not show any new approach in determining refugee status that would imply a more generous interpretation of the Geneva Convention. Instead, restrictive practices that have been or are being gradually introduced by all EU-member states are further formalised. Any asylum law practitioner knows what this means in reality: Algerian victims of Islamic fundamentalist violence (non-state sponsored persecution) are even less likely to be granted asylum than before; Kurdish victims of persecution will be sent back in allegedly "safe areas" of their manifestly unsafe home country, Turkey; civilian Tamil victims of the Srilankan government's military operations against the "Tamil Tigers" will be denied asylum on the grounds that measures of a government to maintain state security by the use of force are legitimate; and deserters from the war in former Yugoslavia "may" be eligible for asylum if the states until now have used all possible means to get rid of them as fast as possible should suddenly deign to consider their claims.
It is of little comfort, that the joint position as such will probably not strongly affect European asylum policies. As a matter of fact, instruments such as restrictive visa policies and "safe third country" regulations have already effectively undermined the right of asylum to such an extent that scholarly definitions of the terms "refugee" and "persecution" have little importance for the people concerned.
N.B.