Additional attempts to challenge the spirit of the Geneva Convention were made through the introduction of different interpretations of the importance attached to the source of persecution. Article 2 of the Geneva Convention did not define the nature of the persecutor, and simply stated that a, “well-founded fear of being persecuted” for reasons of race, religion, nationality, membership in a particular social group or adherence to a particular political opinion is a sufficient reason for be granted refugee status. Seen in this context the identity of the originator of a particular case of persecution is to a largely irrelevant, as the main goal was to provide protection to persons facing danger342.
The UNHCR position on strict interpretation of Geneva Convention definitions has been ambivalent. On the one hand, in the famous Handbook of Procedures and Criteria for Determining Refugee Status, it argued that, “persecution is normally related to the authorities of a country”. It may also, “emanate from sections of the population that do not respect the standards established by the laws of the country concerned. A case in point may be religious intolerance, amounting to persecution, in a country otherwise secular, but where sizeable fractions of the population do not respect the religious [practices] of their neighbors”343. On other occasions, such as on the fiftieth anniversary of the UNHCR in 2000, the UNHCR declared that the Geneva Convention, “does not say that a state must be responsible for the persecution”. The UNHCR, “has therefore consistently advanced [the position] that the Convention applies to any person who has a well-founded fear of persecution, regardless of who is responsible for the persecution”344. Moreover, the UNHCR also believed that, “this position is shared by the overwhelming majority of the states party to the Convention”345. In practice, this is usually not the case.
342 See Jean-Yves Carlier (1999) “The Geneva refugee definition and the ‘theory of the three scales’ “ in: Nicholson and Twomey (eds.), Refugee. Rights and Realities, Cambridge University Press, p. 48.
343 “Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection”. Handbook of Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, United Nations High Commissioner for Refugees, Geneva, January 1992, p. 17.
344 The State of the World's Refugees. United Nations High Commissioner for Refugees (UNHCR), Oxford University Press, 2000, p. 163.
The position of France Spain, and Germany for example, is that the state is considered the agent of persecution and thus refugee status is not granted to asylum seekers fleeing countries where the state is not guilty of the persecution but is simply unable to offer protection346. The result is that persons from Afghanistan, Somalia or Sri Lanka will not be granted refugee status, as they fled from non-state sponsored persecution347.
At the EU level, Member States also declared in the Joint Position of 4 March 1996, that persecution is generally the act of a state organ348. While this resolution is non-binding, some Member States nevertheless incorporated it into their national law. Additionally, they also developed the concept of the “internal flight” option: that even if state authorities werethe source of persecution, asylum seekers could be deprived of the right for asylum if they, “could obtain effective protection in another part of his country...”349. The Council of Ministers also considered developing a regional approach to protection in
346 Until 2000 Germany did not consider asylum seekers fleeing a state incapable of providing effective protection against third parties, such as Afghanistan, as refugees. The German Constitutional Court (Bundesverfassungsgericht), however, reviewed a judgment of the Federal Administrative Court (Bundesverwaltungsgericht) concerning the granting of political asylum to refugees coming from Afghanistan. It ruled that persons fleeing the Taliban regime have the right to obtain political asylum in Germany since the term “political persecution”, interpreted to imply that the state or quasi state was the originator of the persecution, as interpreted by the Federal Administrative Court, was too narrow. In the Constitutional Court’s view, the right of asylum could be granted since the Taliban regime, in fact, has had stable control for an extended time over large territories of the country. Hence, it could be regarded as a quasi-state actor. As a result, it was decided to suspend decisions on applications from Afghanistan from August 2000 until the Federal Administrative Court re-examined the situation in the country in accordance with the judgment of Bundesverfassungsgericht and determined who was likely to be subject to direct control of the Taliban and who was not. Asylum seekers, for example, coming from regions which were not subject to Taliban control might be deprived of the right of asylum, whereas others who were fleeing the area which was directly controlled by the Taliban could have access to refugee status. Clearly, this judgment had a considerable impact on the rate of recognition of asylum seekers from Afghanistan. “Politische Verfolgung durch staatsähnliche Herrschaftsgewalt. Bundesverfassungsgericht hebt Urteile des Bundesverwaltungsgerichts auf”. Amnesty International, asyl-info October 2000. See also Beschluss vom 10. August 2000 - 2 BvR 260/98 und 1353/98.
347 European Parliament (2000), op.cit., p. 12. Most applications for asylum came from Yugoslavia, Romania, Turkey, Iraq, Sri Lanka, Iran, Somalia and Afghanistan. Anita Böcker and Tetty Havinga, Asylum Migration to the European Union: Patterns of Origin and Destination, European Commission, 1998. See Anja Edelhäuser, Stefan Rappenglück & Marc Schürmeyer (1999), Fluchtburg Europa- Asylpolitik in einem Zusammenwachsenden Europa Forschungsgruppe, Jugend und Europa, Centrum für angewandte Politikforschung (CAP), Munich, p. 180.
348 Joint Position 96/1967JHV of 4 March 1996, defined by the Council on the basis of Article K.3 of the Treaty on European Union on the harmonized application of the definition of the term “refugee” in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugees.
349 See Resolution on manifestly unfounded applications for asylum, 30 November 1992. According to British law, for example, refugee status could be withheld when there are inner-state alternatives /innerstaatliche Alternativen.
appropriate cases involving cooperation with non Member States and the possibility of identifying safe areas within these regions. In practice, as Frelick argued, it was difficult to assure the safety of refugees. In 1996, for example, “when Iraqi forces entered the safe heaven for Kurds in Northern Iraq, Turkey closed its doors and refugees were left without either a safe haven or a country of first asylum. While the United States evacuated 6500 people the rest were left to face their fate”350.
Asylum seekers fleeing war or civil war are usually not considered refugees, though state authorities might be at the origin of their, “.. well founded-fear of being persecuted”. A prime example in this respect was the case of refugees fleeing Yugoslavia. The Council Resolution of 25 September1995 referred to persons coming from the former Yugoslavia as “displaced persons”351. They enjoyed temporary protection but not refugee status352. Moreover, the admission to and conditions of residence of displaced persons in EU territory have to gain the unanimous consent of all EU Member States. The concept of, “temporary protection” as Plender noted, was developed to prevent overburdening the asylum granting bureaucracy by the mass influx of refugees from Yugoslavia, and the UNHCR and the International Committee of the Red Cross were encouraged to adopt it353.
It is evident that the distinction between state and non-state actors as well as the idea of an intra-state alternative for asylum effectively excluded most asylum seekers entering EU territory in the last decade from receiving refugee status. The overwhelming majority of refugees fleeing their home countries due to civil war, ethnic conflict, or a well founded fear of persecution emanating from non-state agents were unable to meet the
350 See Bill Frelick, “Recent European Union Initiatives to Stem the Flow of Asylum Seekers and Migrants”, October 9, 1998, International Migration Policy Program, Carnegie Endowment for International Peace, 23.09.2002.
351 See Council Resolution of 25 September 1995 on Burden Sharing with regard to the admission and residence of displaced persons on a temporary basis.
352 As Lavenex notes, refugees from Yugoslavia are the prototype of de facto refugees. They were not covered by the Geneva Convention definition but were rather regarded as persons who were to be admitted on humanitarian grounds. They were usually received under the condition of temporary protection. Sandra Lavenex (1999), Safe Third Countries. Extending the EU Asylum and Immigration Policies to Central and Eastern Europe, Budapest, Central European University Press, p. 57.
353 See Richard Plender (1991), “Asylum Policy: Deficits of Intergovernmental Cooperation”, op.cit., p. 161.
strict criteria for asylum laid down by EU Member States Thus, of 3.7 million applications for asylum submitted to EU Member States between 1990-1999, the average acceptance rate was a relatively low 10%. With the exception of France where the rate of recognition stood at 27%, the number was much lower in other EU member States. In Britain, for example, only 6.4% of all applicants were recognized as refugees under the Geneva Convention, while in Belgium and in Sweden the percentages were 7.2% and 3.6%, respectively354. Despite the fact that the rejection rate has dramatically increased over the years the vast majority of asylum seekers remain in their host countries355. According to the 2002 Report of the Federal Government's Commissioner for Foreigners' Affairs their number amounted to 1.1 million. This figure includes persons recognized under the Geneva Convention, persons granted Humanitarian Status and those granted temporary protection356.