Protecting migrants, refugees in our age of conflict

Protecting migrants, refugees in our age of conflict

There are about 270 million international migrants today who cross borders in search of new vistas. Many such as "expatriates" do well. However, many, particularly those who are pushed out of their homes, are caught in a trap of dislocation, dispossession and coercion, often due to armed conflicts, discrimination and violence. The number of forced migrants now stands at about 70 million people globally -- some 30 million who cross borders as "refugees" and some 40 million forced to move in their country of origin as "internally displaced persons".

The sad plight of people on the move has been addressed through a variety of international instruments and organisations. In regard to armed conflicts, the four 1949 Geneva Conventions, linked with the Red Cross and Red Crescent Movement, advocate the need to distinguish between military and civilian targets, classifying attacks on the latter as international crimes. Thus a key international law principle forbids indiscriminate attacks. These "international humanitarian law" instruments have been enhanced by various universal human rights treaties emerging after the World War II through the impetus of the UN, such as the Child Rights Convention.

There is also the 1951 International Refugee Convention, complemented by its 1967 Protocol, offering protection to refugees, classified as persons fleeing for "well-founded fear of persecution", but few Asian countries are parties to them. The issue of refugees and other migrants was further addressed through two global policy commitments in 2018 in the form of the Global Compact on Refugees and the Global Compact on Safe, Orderly and Regular Migration. They have been expanded by the global framework to "Leave No one Behind" under the Sustainable Development Goals (SDGs, 2015-2030).

The world is not short of treaties and related instruments covering the issue of migration. Nor is it lacking in international organisations to address the risks facing migrants. They include the UN High Commissioner for Refugees and the International Organisation for Migration. The two global compacts also instituted periodic consultations to press for pledges to help persons on the move. This was witnessed at the end of 2019 with the convening of the first Global Refugee Forum which leveraged for states and other actors to help refugees, such as through access to education, birth registration and livelihood channels, particularly access to work.

Yet, it is most disconcerting that the number of people forced to move has been on the rise rather than in decline. The Asian crucible is more than telling: some 7 million refugees from Syria, some 3 million refugees from Afghanistan and over one million refugees from Myanmar. Add to those statistics the harrowing number of internally displaced persons: some 6 million in Syria, some 5 million in Afghanistan and about 150,000 in Rakhine state, Myanmar. Political will to address the risks facing such migrants remains weak or segmented in many situations. All of the them are caused (to a greater or lesser extent) by protracted conflicts lasting five or more years in fractious and fragile settings.

How then to address risks inherent in the root causes preventively? In principle, the logic is not complicated. To prevent the conditions behind forced movements, human rights must be guaranteed; peace must be ensured; democracy must be respected; and sustainable development must be promoted. Yet, the realities are often intractable: protagonists hungry for power and control seek to manipulate the lives of the millions under their umbrella to push out those seen as alien or antithetical to their regime. Often it is minorities and dissidents who constitute the crux of the exodus. As a result, both national and international players are wreaking havoc on a multitude of innocent lives.

Even though preventive measures are often weak, it is still important to underline them and to complement them with actions based on protection and remediation with effective implementation. It is important to advocate that persons who seek refuge should be afforded at least temporary refuge or asylum, and the fundamental principle of "non-refoulement" (no pushing people back into danger) must be upheld. In that transitory condition, physical safety should be ensured for all. Children, irrespective of immigration status, should have access to at least free and compulsory primary education, and preferably also secondary education and pre-school as voiced by the SDGs. Their births must be registered officially. Pending long-term solutions, access to work should be facilitated for those persons satisfying the minimum age for employment.

Remediation has become more strained partly because resettlement places in third countries (beyond the country or first refuge or temporary refuge) are now down to a trickle of much less than 100,000 people globally ever year. Thus other options have to be explored. A key solution is voluntary repatriation to the country of origin, and this depends on tackling effectively the environment which was originally the "push factor" -- human rights violations, lack of peace, democracy undermined, and unsustainable development. Other solutions have to be explored more creatively, such as international sponsorships for persons in need, local settlement, family reunion channels and orderly departure programmes, now linked with the call for more pathways to safe and regularised migration and parallel help for affected local populations.

There is evidently the need to call to account those who are involved in international crimes against migrants. There is now the possibility of recourse to the International Criminal Court for individual criminal responsibility, to the International Court of Justice for the responsibility of states linked with the Convention against Genocide, and local courts to use "universal jurisdiction" to prosecute culprits on the basis of "a crime anywhere is a crime everywhere", as seen in cases facing Myanmar currently. Where the UN Security Council fails to act to protect human rights, the UN General Assembly should have more power to act, such as to set up international criminal tribunals. The whole of the UN should "Deliver as One" rather than "Deliver as if One". And "migration should be a choice and not a necessity".

Vitit Muntarbhorn is a Professor Emeritus at the Law Faculty, Chulalongkorn University. He was formerly UN Special Rapporteur, UN Independent Expert and a member of the UN Commissions of Inquiry on Human Rights. This article is derived from his keynote speech at the recent conference on 'Migration and SDGs: Asean and Beyond: A Pathway to 2030 Agenda: Episode II', hosted by the Asian Research Centre for Migration and partners.

Vitit Muntarbhorn

Professor of law at Chulalongkorn University

Professor Vitit Muntarbhorn teaches at Chulalongkorn University, Bangkok.  He has helped the UN in a variety of  positions and is currently a member of a UN Human Rights Commission of  Inquiry.  This article is derived from his speech at the recent Conference on Asean Traversing 2015:  Challenges of  Development, Democratisation, Human Rights and Peace, organised by Mahidol University, Bangkok.

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