Refugees, ter­ror­ists or scape­goats?

Nairobi Law Monthly - - Review - LANJI OUKO

Be­cause of per­sis­tent at­tacks glob­ally, ter­ror­ism has be­come syn­ony­mous "refugees". Kenya has been the scene of var­i­ous at­tacks at­trib­uted to ter­ror­ism since 1980, when the Pales­tinian Lib­er­a­tion Or­ga­ni­za­tion at­tacked the Nor­folk Ho­tel in Nairobi. 18 years later, in 1998, the Al Qaeda claimed re­spon­si­bil­ity for the bomb­ing of the US em­bassy. Af­ter that, the at­tacks be­came more reg­u­lar and bolder, with the West­gate at­tack in 2013, the Mpeke­toni Mas­sacre in 2014, and the Man­dera Bus and Garissa Univer­sity Col­lege at­tacks in 2015, all by the So­mali-based Al Shabaab.

Last month, the Is­lamic State ( IS) wrecked havoc in Paris, leav­ing at least 130 dead, and many more wounded. Like those in Kenya, many were quick to at­tribute the Paris at­tacks to refugees seek­ing asy­lum from the cri­sis in Syria.

Do refugees re­ally pose a ter­ror­ism threat as some have claimed?

The sug­ges­tion to close down the Dadaab Refugee Camp for har­bour­ing ter­ror­ists as ad­vanced by govern­ment has been termed as ir­ra­tional and in­hu­mane be­cause it can­not be ver­i­fied that the refugees are the ter­ror­ists. On the other hand, it could be ar­gued that it is quite easy for groups such as Is­lamic State and Al Shabaab to con­vince the refugees to join their cause, par­tic­u­larly be­cause of the political frus­tra­tions that en­sure a huge chunk do not gain asy­lum sta­tus to in­te­grate into their host so­ci­eties.

Dadaab, lo­cated near the bor­der with So­ma­lia, is the largest refugee camp in Africa. Deputy Pres­i­dent Wil­liam Ruto, af­ter the Garissa Univer­sity Col­lege mas­sacre, gave the global refugee agency, UN­HCR, three months to close down the camp and (force­fully) repa­tri­ate its oc­cu­pants to So­ma­lia, or else “we will do it our­selves.”

Syr­i­ans and Iraqis have been flee­ing civ- il un­rest in their coun­tries, but the refugee cri­sis grabbed the at­ten­tion of the world last month when they im­posed them­selves in the Euro­pean na­tions due to the in­ten­sity of the cri­sis – many risked death in treach­er­ous jour­neys across the sea.

The de­bate on refugees is cen­tred on ter­ror­ism, glob­ally. By open­ing our doors to th­ese refugees, it does, in way, pro­vide av­enues for rad­i­cals to en­ter for­eign bor­ders where they soon launch their vi­o­lent at­tacks. But does ex­pelling them from our bor­ders prof­fer the so­lu­tion?

There is no deny­ing that refugee camps of­ten pro­vide fer­tile ground for the emer­gence of ter­ror­ist groups. Dur­ing the Pales­tinian Refugee Cri­sis of 1948, among the mil­i­tant groups that emerged in­cluded Fatah, Ha­mas and the Pop­u­lar Front for the Lib­er­a­tion of Pales­tine. Ad­di­tion­ally the Afghan refugee com­mu­nity in Pak­istan is re­spon­si­ble for the Tal­iban and sub­se­quently Al Shabaab. So speak­ing, there are le­git­i­mate se­cu­rity con­cerns.

Non-re­foul­ment

Quite un­der­stand­ably, na­tions and their cit­i­zens are con­cerned. How­ever, both sides of the coin must be eval­u­ated. What hap­pens to the in­no­cent refugees sent back to So­ma­lia from Kenya, for ex­am­ple? And how can the govern­ment deal with the ter­ror­ists paus­ing as refugees?

The prin­ci­ple of non-re­foul­ment ought to of­fer some point­ers in this de­bate. The prin­ci­ple is part of cus­tom­ary in­ter­na­tional law and is bind­ing on all states, whether or not they are party to the Geneva Con­ven­tion. A core prin­ci­ple of In­ter­na­tional Refugee Law pro­hibits states from re­turn­ing refugees in any man­ner what­so­ever to coun­tries or ter­ri­to­ries in which their lives or free­dom may be threat­ened.

The prin­ci­ple ba­si­cally bars Wil­liam Ruto from send­ing, ex­pelling, re­turn­ing or oth­er­wise trans­fer­ring (re­foul­ment) a refugee to a “ter­ri­tory where life or free­dom would be threat­ened on ac­count of race, re­li­gion, na­tion­al­ity, mem­ber­ship of a par­tic­u­lar so­cial group”, as pro­vided for in Ar­ti­cle 33(1) of the 1951 UN Con­ven­tion on the Sta­tus of Refugees.

Like any other prin­ci­ple, it is not an un­qual­i­fied prin­ci­ple, and it has a num­ber of ex­cep­tions. First, a refugee who may pose se­cu­rity threat to the host coun­try may be de­nied the ben­e­fits of the prin­ci­ple – in this case, the refugees ac­cused of be­ing ter­ror­ists. Se­cond, the prin­ci­ple does not ap­ply to a per­son who, hav­ing been con­victed by a fi­nal judg­ment of a par­tic­u­larly se­ri­ous crime, con­sti­tutes a dan­ger to the com­mu­nity of that coun­try. Lastly, the ben­e­fit of the con­ven­tion is to be de­nied to any per­son sus­pected of com­mit­ting a crime against peace, a war crime, or a crime against hu­man­ity, a se­ri­ous non­po­lit­i­cal crime out­side the coun­try of refuge, or acts con­trary to the pur­poses and prin­ci­ple of the United Na­tions [Ar­ti­cles 33 (2) and 1 (F) of the 1951 Con­ven­tion].

Be­fore govern­ment takes the dras­tic ac­tion of clos­ing down the camp – as Thai­land did dur­ing the forcible repa­tri­a­tion of 45,000 Cam­bo­dian refugees at Prasat Preah Vi­hear in 1979 (a clas­sic ex­am­ple of re­foul­ment). The refugees were forced at gun­point across the bor­der into a mine­field and Thai sol­diers shot those who re­fused to move – it is im­por­tant that it proves and demon­strates that those refugees have put the na­tion's se­cu­rity at risk.

“The ac­tual se­cu­rity risks now are low, but the po­ten­tial ones are con­sid­er­able if the refugee cri­sis is han­dled poorly. Polic­ing, ser­vice pro­vi­sion, and lo­cal gov­er­nance need to be catered for; by in­te­grat­ing the refugees into lo­cal com­mu­ni­ties, the risk of them be­com­ing rad­i­calised re­duces,” of­fers a Red Cross of­fi­cial.^

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