Prevention, Protection and Solutions in relation to Displaced Persons: Three Dichotomies

By GS Gilbert

Given that there are approximately 65 million forcibly displaced individuals of concern to the UN Refugee Agency (UNHCR), respect for international refugee law, international human rights law, the international law of armed conflict, international criminal law and the rule of law generally has never been greater if the need for flight is to be prevented or at least lessened. As for protection and solutions, though, they are often considered to be separate elements of UNHCR’s response to displaced persons and stateless persons, yet that is a false dichotomy. Traditionally, protection consists of documentation, registration, non-refoulement and status determination; solutions used to be three durable solutions of voluntary repatriation/ return, resettlement/ relocation, and local integration. However, when the modal average time spent as a displaced person is twenty years, the concepts of protection and solutions have to be reconfigured so that they are recognised as coterminous, that solutions begin at the point of protection and that ongoing solutions promote protection. To explain, the documentation and registration of new arrivals and of stateless persons is often seen as the start of international protection and, to be sure, it is, but they are also the gateway to solutions. They provide access to the ongoing solutions of employment, education, health care and legal services, all rights provided for in the Convention Relating to the Status of Refugees, 1951, and its 1967 Protocol, they empower the displaced and stateless person and make them readier to enter durable and sustainable solutions such as voluntary repatriation/ return, resettlement/ relocation or local integration. “Warehousing” refugees and internally displaced persons (IDPs) in camps miles away from all other population centres leaves them at risk, particularly women and children of sexual and gender based violence (SGBV), and denies them chances to promote their own solutions. Where refugees and IDPs are integrated with the local population, the UN agencies can provide an integrated and comprehensive response that benefits the displaced and the local population as well as the government, central and regional.

The reference to a comprehensive UN response, leads to a second false dichotomy: the humanitarian/development distinction within the United Nations. UNHCR is seen as a humanitarian actor dealing with emergencies, which, of course, it does. The United Nations Development Programme (UNDP), on the other hand, is clearly a development actor. However, when UNHCR has the international mandate to protect refugees, asylum seekers, stateless persons and conflict driven IDPs, and the modal average time displaced is, as stated, twenty years, then the idea that it is just a ‘humanitarian’ actor is called into question. What is clear in terms of protection and solutions is that development actors, co-ordinated by the High Commissioner for Refugees, building on Paragraph 10 of UNHCR’s 1950 Statute, need to be involved from the outset of any crisis working with the states in their development planning so that displaced persons and stateless people are included in the UN Development and Assistance Frameworks and the UN Democracy Fund applications. There are moves in that direction. There are transitional solutions initiatives (TSIs) in various countries around the world, Colombia and East Sudan, for instance, that bring together UNHCR, UNDP, the World Bank and other UN agencies so that refugees and IDPs are included in the rule of law initiatives, ranging from mobile courts to education and biometric registration. Why should some of the least developed countries on the planet have to rely on emergency funding from donor countries when faced with mass influxes when development planning could include refugees. And the link with protection is obvious: a child in a school that is built where the refugees or IDPs are now located will not be at risk of trafficking, of being recruited for criminal activities or of simply being attacked on the street – building schools is what UNDP plans for, but it provides direct protection to displaced children. Some have bemoaned the lack of a reference to migrants and refugees in the Sustainable Development Goals of 2015, but the argument can also be made that states have thereby accepted that all IDPs, refugees and stateless persons have to be included in the 2030 planning by default … “no-one left behind”.

Finally, however, one true dichotomy: New York – Geneva. UNHCR sits in the latter alongside other UN actors with a more individual focus, such as the Office of the Hugh Commissioner for Human Rights (OHCHR), and that other major humanitarian actor on the world stage, the ICRC. New York, on the other hand, is more focused on governments – the General Assembly, the Security Council, the Department of Peace Keeping Operations (DPKO). The Secretary-General and the High Commissioner liaise under Paragraph 17 of the Statute, but the voice of the displaced is not core to the thinking of UN actors, it is not at the forefront of their minds, although the position is improving. The role of the Deputy Secretary-General on emergencies is very important, but that mandate is too broad for displaced persons to figure prominently enough; again, the Office for the Coordination of Humanitarian Affairs (OCHA) is too wide ranging in its brief and lacks capacity. New York and Geneva are not just 3500 miles apart, they inhabit different worlds. The High Commissioner for Refugees may be part of the UN Senior Management Group, but a daily physical presence in the shape of a Special Adviser, who ensures that the Secretary-General always has displaced persons front and centre, and who is constantly working with the High Commissioner, which preserves the humanitarian, non-political, independent character of that office whilst ensuring that UNHCR’s centrality to solutions is never overlooked, is a position whose time has come. Indeed, given that there are somewhere close to another 17 million people displaced through climatic events or natural disasters who are not within the remit of UNHCR, the Secretary-General’s office is the perfect repository for responding to and co-ordinating all forms of human displacement: that ought to be part of the role of the Special Adviser, possibly even extending to overseeing the rights of migrant workers, too … but that is the subject of another blog.

Prevention, protection and solutions all depend on the UN delivering as one, the humanitarian and the development actors, and for New York to remember that it did, after all, begin in Geneva.

Much of the thinking for this blog piece flows from a research consultancy for UNHCR carried out with Anna Magdalena Rüsch, Mag.Jur., LLM IHRHL, in 2014-15 on rule of law and its engagement in relation to solutions. The confidential co-authored report is with UNHCR.

Disclaimer: The views expressed herein are the author(s) alone.