Do Human Rights Transcend Citizenship? Lessons from the Buduburam Refugee Camp

Abstract

This article describes the practices of the United Nations High Commissioner for Refugees (UNHCR) relating to the protection of refugees’ rights to physical security and access to justice as observed by the author in the Buduburam refugee camp in Ghana (2005–2007). It argues that UNHCR worked to ‘privatize’ these rights. The article suggests that the failure of UNHCR to administer criminal law in the camp is a breach of its obligations under the International Covenant on Civil and Political Rights. Furthermore, since no political authority assumes the duty to protect refugees’ rights to physical security and access to justice, according to standard conceptions of ‘human right’, refugees have no human rights to physical security and access to justice. The article concludes that ‘human rights’ are not universal and that those who are excluded from the human rights framework are the same persons who were excluded from the citizenship rights framework.

Keywords

Access to justice Buduburam human rights international organizations privatization refugees security UNHCR

Introduction

Nowadays, the claim that humans have certain rights simply in virtue of being human seems no more than a platitude. But is this apparent platitude borne out in reality? This essay attempts to answer this question by analyzing empirical findings from a research project carried out by the author in the Buduburam refugee camp in Ghana between 2005 and 2007 (henceforth, The Research Project). Liberian refugees have been arriving in Ghana since May 1990, shortly after Charles Taylor invaded Liberia (Ellis, 2001). By August 1990, the Ghanaian government established a reception centre for these refugees in Buduburam, 24 km west of Ghana’s capital Accra (Dick, 2002: 3). By the end of September 1990, there were 7000 Liberians in Buduburam. The government, poorly equipped to handle the refugee influx, appealed to the international community for aid and the United Nations High Commissioner for Refugees (UNHCR) became involved (Dick, 2002: 2). Buduburam’s population has grown precipitously. During the time of The Research Project, about 45,000 refugees resided in Buduburam (UNHCR, 2006).

The Research Project examined how human rights are actualized and worked out on the ground by a major international organization. In particular, it examined UNHCR’s practices relating to the protection of human rights – specifically, the right to physical security and the right of access to justice, which are paradigmatic exemplars of human rights even on the most conservative construal of ‘human rights’. A key finding of the project is that UNHCR’s practices essentially blocked refugees’ access to justice and that UNHCR worked to transfer the responsibility for the protection of refugees’ physical security onto the refugees themselves. This process is described here as ‘privatization of human rights’. I use the concept ‘privatization of human rights’ to describe a situation whereby the authorities reject their role as providers of human rights while propelling their constituents to assume personal/private responsibility for the actualization of these rights.¹

According to a common conception of human rights, these rights, qua human rights, must be ‘referenced against authoritative political bodies, typically nation-states or organizations of nation-states’ (Waters, 1996: 594). Therefore if, as I argue below, there is no authoritative political body responsible for the protection of refugees’ physical security, then in effect refugees are deprived of the human right to physical security. Likewise, if there is no authoritative political body responsible for the protection of refugees’ right to access justice, then in effect refugees are deprived of the human right of access to justice. Furthermore, since human rights claims are universal – that is, ‘they are made not on behalf of any particular social grouping but for all instances of humanity in general’ (Waters, 1996: 594) – then the fact, as I argue, that refugees lack the rights to physical security and access to justice reveals that there are no human rights to physical security and access to justice.

From Citizenship-Based Rights to Human Rights

The Universal Declaration of Human Rights (UDHR) in 1948 is thought to have solved practical and theoretical problems for the prevailing conception and implementation of rights it replaced. Prior to UDHR, citizenship was the only basis for having rights, and states were exclusively responsible for the protection of the rights of citizens. The central problem UDHR was meant to resolve was that since the state is the very source, and sole protector of rights, citizens who are discriminated against or persecuted by their own state have no recourse. UDHR identified the source of rights in humanity rather than membership in a state, and it placed the responsibility to protect rights in the hands of the international community. Thus, for example, the rights of refugees are not supposed to be contingent on the policies and practices of their home states.²

The view that UDHR represents progress with respect to the problems mentioned above is expressed succinctly by Turner (1993: 498),

‘human rights’ appears to be more universal [than citizenship-based right] (because they are articulated by many nations through the United Nations (UN) charters), more contemporary (because they are not tied to the nation-state) and more progressive (because they are not related to the management of people by the state).

One reason for which the human rights framework is thought to be more contemporary is its claimed ability to contend with ‘the world refugee problem’, which ‘cannot be easily approached within the framework of (nation-state) citizenship concepts’ (Turner, 1993: 498). A similar sentiment regarding the progressive nature of the shift to human rights is expressed by Waters (1996: 596), ‘one of the advantages of a regime of human rights over one of citizenship rights is that it includes denizens as well as citizens’.

During the past decade, however, sociologists of human rights have argued that the universalistic and egalitarian aspects of human rights have been overstated (Hynes et al., 2011). These sociologists claimed that the human rights discourse is exclusionary in two ways: it excludes non-Western cultures and it excludes people of a lower socio-economic status. The first form of exclusion has been attributed to the Western origins of the international discourse of human rights; its Western origins imbued this discourse with Western ideas and values (Nader, 2007; Rajagopal, 2003). Much of the focus of contemporary research is on the second form of exclusion: exclusion that results from social and political marginality (e.g. women, homosexuals and citizens of countries in the developing world). Woodiwiss’s work is a prime example. The protection of economic, social and cultural rights (ESCR), according to Woodiwiss, is mistakenly thought to be more expensive than the protection of political rights. Moreover, the International Covenant on Economic, Social and Cultural Rights obliges State Parties to deploy only ‘the maximum available resources’ to protect these rights. That is, ESCR are given low priority – their protection is contingent on the availability of resources. Consequently, there is no judicial remedy for violations of ESCR of persons in the developing world. In Woodiwiss’s terminology, these rights are not ‘justiciable’. Accordingly, ‘the only way in which … the “unprotected” will gain full access to their rights is when the societies in which they live reach western levels of development’ (Woodiwiss, 2003: 151).

The works of sociologists and anthropologists from the last decade capture various ways in which international human rights are construed in terms that are, at best, suitable for the United States and the West. The main challenge to these construals of rights is what Woodiwiss (2005: 121) terms ‘the new universalism: a broader conception of personhood, so that protection is equally available irrespective of race, gender and sexuality’. The New Universalism is a normative framework. However, it also sets a research programme, according to which sociologists should approach human rights ‘with a view to understanding how they have worked for some and might yet to be made to work for all’ (Woodiwiss, 2005: 15).

Like sociologists, anthropologists turned their attention in recent years to ‘the social processes of human rights implementation and resistance’ (Merry, 2005: 39) as a way of circumventing the traditional universalism–relativism debate, which seems to have reached a stalemate. Instead of asking whether human rights are a good idea, anthropologists now ask what difference they make – for example, the impact of human rights on social inequality (Goodale, 2006, 2007).

This article aims to advance the current research in the sociology and anthropology of human rights in two ways. First, Woodiwiss focused on exclusionary mechanisms with respect to ESCR. This article examines mechanisms that deprive people of political rights. Second, and more importantly, Woodiwiss and others have focused on mechanisms that deprive citizens of human rights. This article examines mechanisms that deprive such rights from refugees. Its starting point is the recognition that human rights are not given to humans by God or Nature. Like citizenship-based rights, they are institutionalized in structural arrangements and political organizations. This essay shows that for refugees, ‘human rights’ are very different from the human rights stipulated by UDHR and from human rights had by other members of the world system. Thus, this article calls into question the view that in practice, UDHR has egalitarian consequences. According to Waters (1996: 598), ‘human rights have the particular advantage that in order to succeed no person can be excluded’. Since refugees are, as I argue below, excluded, then if Waters is right, this article shows that human rights have failed.

Research Design

At the end of 2009, there were 43.3 million forcibly displaced persons worldwide – the highest number since the mid-90s (UNHCR, 2011). More than 26 million of them have been receiving protection or assistance from the UNHCR, which holds the mandate to safeguard refugees’ rights since December 1950. It has been rightly argued that:

[t]hough scholars tend to focus primarily on refugee determinations as they play out in industrialized nations’ domestic courts, millions of refugees never make it there. Instead, most remain in the developing world, living in refugee camps. Their problems involve camps, not courts. (Cuéllar, 2006: 609)

Noting that the UNHCR’s activities in camps are this international organization’s most significant interface with its constituents, and thus the best indication for its practice of human rights, this article studies the UNHCR’s implementation of its mandate in the locality of Buduburam refugee camp.

With the exception of UNHCR-sponsored research (e.g. Da Costa, 2006) and UNHCR policy documents, there is practically no literature on administration of law in refugee camps.³ Wilde (1998: 108) coined the term ‘development camp’ to describe ‘UNHCR-run refugee camps which are located in the developing world’ and are populated by ‘complex communities of refugees who have no immediate prospects of being assimilated, resettled, or repatriated’ (Wilde, 1998: 108). Development camps are contrasted with ‘emergency situation camps’, which are short-term responses to specific crises. Development camps start off as emergency situation camps but over time they turn into ‘sophisticated polities, with marketplaces, schools, hospitals, mosques, churches, running water, and decision making fora’ (Wilde, 1998: 108). The Buduburam camp does not have running water, but it is nonetheless a fairly typical development camp. Most refugees in the world live in development camps (Cuéllar, 2006; Wilde, 1998). Thus, these camps are an ideal place to study UNHCR’s model of governance of human rights and administration of law in refugee camps – they allow us to examine UNHCR’s regular practices from the bottom-up, focusing not on UNHCR headquarters as others have done, but on the ways in which UNHCR’s practices on the ground shape the rights of refugees.

While my work could be interpreted as criticism towards the Ghana branch of UNHCR, such critique is not the intended focus of this project for two, interrelated reasons. First, I consider the UNHCR’s practice in Buduburam a local manifestation of what was aptly termed ‘the grand compromise of refugee protection’ (Cuéllar, 2006). Hathaway writes, ‘[t]he evidence suggests that the greatest risk of physical abuse arises once refugees actually reach the camps where they are in principle to be protected’ (Hathaway, 2005: 441). This weakness, or failing, of the refugee protection system has been explained as the product of the UNHCR’s amorphous legal mandate, the practical concerns with which the organization has to contend, and, perhaps to a larger extent, of ‘bureaucratic dynamics, political pressures, and legal interpretations shaping the discretionary choices of UNHCR and its nongovernmental organization partners’ (Cuéllar, 2006: 586).

The UNHCR’s policy in Buduburam is a product and a manifestation of this complex constellation. Thus, to the extent that criticism is implied, it is not towards the agency’s personnel in Accra but rather towards the refugee protection system. Based on his research about the UNHCR’s headquarters, Cuéllar argues that ‘during most of UNHCR’s history, the refugee advocates working there and their partners in other organizations have repeatedly neglected, denied responsibility for, or downplayed their role in mitigating refugees’ security in camps’ (Cuéllar, 2006: 602). This point is particularly important because if the situation in Buduburam epitomizes the refugee protection system, findings from the camp are possibly a typical portrayal of the way the refugee protection system looks like on the ground.

If the entire refugee protection system is in need of reform, it seems, as Wilde observed over a decade ago, ‘inappropriate to examine the exercise of UNHCR governance’ in refugee camps (Wilde, 1998: 111). Nonetheless, given that such a reform is not on the horizon and that UNHCR refugee camps in developing countries are de facto, the quintessential feature of the refugee protection system it would also ‘be irresponsible to ignore the legal issues raised by [refugee camps’] existence, in lieu of a revolution in refugee law’ (Wilde, 1998: 111).

The second reason for which this article is not intended as criticism of the Ghana branch of UNHCR is that such critique would assume the existence of a gap between ‘law in the books’ and ‘law in action’, thereby adopting a centralist approach to international law, according to which international law is produced only in official fora. This article, however, treats human rights as a transnational discourse, that is, as ‘institutional, historical, political, and social formations through which knowledge (and power) is constituted in practice’ (Goodale, 2007: 8, cf. p. 4). According to this organic theory of human rights, their meaning is embedded in their practice. ‘Practice’ in my analysis is described as ‘a re-conceptualization of human rights based on the understandings and political processes of the social actors involved’ (Speed, 2007: 166). In other words, anthropological research on human rights acknowledges that because human rights norms are worked out on the ground, they are imbued with social context, which alters their meaning. In a similar vein, I am interested in the way the UNHCR’s practice of human rights produces their meaning (Goodale, 2007).

Methodology

Preliminary research took place in the winter of 2005. The main body of fieldwork was conducted between 2005 and 2007. In the summer of 2005, the author volunteered with the Ghanaian non-governmental organization (NGO) ‘Women Initiative for Self Empowerment’ (WISE). At the time, WISE was one of UNHCR’s implementing partners in the camp. The author observed Peace Education Workshops (PEWs) carried out in the camp by WISE on behalf of UNHCR (UNHCR produced the manuals used to structure these workshops) and wrote reports on the efficacy of these workshops for WISE. In 2006 and 2007, the author visited Buduburam three times (summer of 2006, winter of 2007, and summer of 2007), conducting independent field research while building on relations of trust that were forged in previous visits.

The methodology used was ethnographic in nature. The research focused on the camp’s four agents of dispute processing: UNHCR, the Ghanaian police station in the camp, the Neighbourhood Watch Team (NWT) and the Arbitration and Discipline Committee (ADC). The data for the study were collected through (1) interviews with community leaders about the manner in which they resolve disputes brought before them; (2) approximately 1200 h of direct and participant observations in the camp (including participation in training sessions, information meetings held for refugees and coordination meetings among the camp’s governing authorities), UNHCR’s headquarters in Accra, Buduburam’s police station, NWT and ADC; (3) roughly 200 h of structured, semi-structured and open-ended interviews with UNHCR personnel (particularly protection officers), psychologists and social workers who work with survivors of domestic violence in the camp as well as camp doctors who treat these survivors, members of local NGOs and representatives of the Ghanaian government both in the camp and in relevant government offices and (4) analysis of camp-related projects, files, records and documents.

Findings: UNHCR’s Privatizing Techniques

While UNHCR’s official policy is that refugees’ human rights – such as the right to physical security and the right of access to justice – ought to be protected, the actual practices of UNHCR tell a different story. UNHCR wards off responsibilities for the protection of physical security and access to justice of refugees from UNHCR and the state of Ghana and instead places these responsibilities solely in the hands of the camp’s denizens. Legal systems designate agents such as court clerks, prosecutors and the police to ‘patrol the boundaries of the law’ and to serve as gatekeepers between legal systems and the everyday (Yngvesson, 1993). The mission of these agents is to categorize complaints as either ‘private’ or ‘public’ and to keep the former away from the courts and other state-run legal institutions. In Buduburam, UNHCR worked to train refugees to take on the role of these agents and to systematically categorize all their complaints as private. The author identified six interrelated strategies used by UNHCR for keeping refugees away from public sorters such as the police and the lower courts. The strategies identified are as follows: first, UNHCR invited refugees – especially community leaders – to participate in Peace Education Programmes (PEPs). Graduates of these programmes earned a diploma and became ‘Peace Officers’ in the camp. To graduate successfully, participants were required to attend a series of workshops during which they were trained to discourage camp dwellers from approaching the official authorities (e.g. the police) when such rights were violated (Sagy, 2008). Second, UNHCR actively discouraged refugees from reporting violations of human rights by stressing the potential harmful effects of such reports on refugees’ prospects of resettlement in developed countries (Sagy, 2009). The remaining four strategies will be the focus of this essay and will be discussed in turn: educating refugees to grant human rights to one another, establishment of a NWT, disregard towards violations of human rights by refugee-run camp institutions (i.e., NWT and ADC) and substitution of education for protection.

It is noteworthy that the findings presented here are not that refugees avoid using public fora for handling crime and disputes. To the contrary, refugees in Buduburam generally attempt to seek redress from public authorities such as the local police and Ghanaian courts. Thus, the aim of this essay is not to explain the tendency of Buduburam’s residents to seek justice through private ordering, as such tendency was not identified. The findings that appear below depict UNHCR’s efforts to steer the refugees towards ‘private’ handling of crime and disputes by institutions that were not created by refugees but are manned by them.

Educating Refugees to Grant Human Rights to One Another

Since 1997, UNHCR has been operating PEPs in refugee camps in Africa (UNHCR, 2008). In the framework of PEP, UNHCR conducts PEWs in schools and on the community level. The latter are called Peace Education Community Workshops (PECWs). The programme was initiated and originally operated in Africa. Later on, it was extended to camps in Pakistan, Sri Lanka and Kosovo (Baxter and Ikobwa, 2005: 28–29). WISE carried out five PEP workshops in Buduburam, using the UNHCR format and instructors’ manual.

The PECW [sic] manual (hereinafter cited as Manual), designed to train and be used by workshops’ facilitators, was produced by the UNHCR’s Regional Service Centre in Nairobi, Kenya, in 2000. In the acknowledgements to its third edition, the then Regional Peace Education Coordinator writes:

[t]his course has been designed in response to the requests of the refugees of Dadaab and Kakuma, (Kenya) who, while helping me design a Peace Education course for school children in the camps, asked for an adult version for themselves. (UNHCR, 2000: 2)

The Manual constructs a 12-session course (intended as a 36-h programme), designed to be administered by adults [refugees] for adults [refugees]. Containing 106 pages, it is divided into 9 units.⁴ Unit nine is dedicated to the issue of human rights. Perry identifies two parts to the idea of human rights. The first part is that each and every human being is sacred and ‘inviolable’ (Perry, 1998: 5). The second part of the idea, which emanates from the first, is that ‘certain things ought not to be done to any human being and certain other things ought to be done for every human being’ (Perry, 1998: 5). The Manual’s structured introduction of the idea of human rights resonates Perry’s formulation. The first part of the Manual lays the foundation belief in the sacredness of the individual. Accordingly, the bulk of the Manual is dedicated to an effort to transform the refugees’ identities from collective-oriented selves to individualists (Sagy, 2008: 360). After the foundation has been laid, unit nine of the Manual introduces the second part of the idea of human rights.

Unit nine opens with a request from the participants to name human rights they are familiar with. The Manual suggests a list that includes the right to life, food, water, shelter, health, education, ‘belonging to a community and a society’, ‘being loved’, and the right to worship. Following is the privatization of these rights. The instructors are advised to tell the refugees that:

[h]uman rights are not given from above but each one of us has to allow them to another. The State (the country) does take responsibility for some Rights that properly belong to the community but the spirit of Human Rights is that we as individuals grant them to each other [emphasis added]. (UNHCR, 2000: 70)

To understand the significance of UNHCR’s privatization of refugees’ rights through PEP, it is useful to examine UN practices towards other disenfranchised and disempowered populations. Since 2005, the UN has been developing a human rights-based approach to development. According to the Office of the United Nations High Commissioner for Human Rights, ‘[a] human rights-based approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights’ (UN, 2006: 22). This approach aims to empower persons, ‘especially the most marginalized – to participate in policy formulation and hold accountable those who have a duty to act’ (UN, 2005: 22). One essential feature of the human rights-based approach, which UN agencies agree upon, is that it ‘identifies rights-holders and their entitlements and corresponding duty-bearers and their obligations, and works towards strengthening the capacities of rights-holders to make their claims and of duty-bearers to meet their obligations’ (UN, 2005: 22; emphasis added). Refugees, unlike other disempowered populations, are encouraged to take responsibility for human rights by not claiming them from the government and solving problems on their own, whereas other disempowered populations are encouraged to demand rights from governments.

Establishment of the NWT

One component of the camp’s security package is Buduburam’s NWT. NWT is a refugee-run quasi-police force with no official authority. Its aim is to minimize ‘the reoccurrence of crimes like burglary, rape, [and] armed robbery’ (‘NWT Statute’).⁵ In interviews conducted by the author, UNHCR personnel claimed authorship of the initiative to establish NWT (Interview, UNHCR headquarters, Accra, May 2007, July 2007). The NWT Statute has the unmistakable fingerprint of the UNHCR on it. The introduction to the statute declares:

While acknowledging the ultimate responsibility of the host government to provide security in our camp, we hereby resolved to organize ourselves as a non-governmental, non-political, and non-profit [sic] organization … [aimed] to voluntarily assist the host government to look after the security in our camp and of our community.

Buduburam residents tend to consider the UNHCR as responsible for their security,⁶ and its absence from the statute’s introduction, along with its scant mention in the statute, is an indication of the UNHCR’s participation in the drafting. Security is a sensitive endeavour. Over the years, the UNHCR has been working to construct its mandate in non-politically contested terms. This policy probably makes UNHCR more attractive to donor states on which the organization depends. Security issues are more controversial. Thus, while a UNHCR report from 2006 states that UNHCR created NWT to improve the protection of refugees (UNHCR, 2006: 11), it is important for UNHCR to keep security within the sovereign sphere of the host state, as is apparent in NWT’s statute.

NWT is supposed to assist the police in its categorizing function – for example, to refer criminal cases to the police and to handle minor cases on its own. However, empirical findings show that NWT’s chief role is to prevent refugees from contacting the police in all types of cases. Thus, for example, one UNHCR protection officer said that ‘sometimes [NWT] might stop the complaint [from reaching the police]. I don’t know – I suspect it might happen because I hear [from refugees that this happens] but I don’t have evidence’. Later in the interview, the same officer said:

My impression is that the community has the power to prevent people from going to the police. NWT is [a] part of it. The most difficult issue is where [NWT] won’t see a problem: a wife is being raped and they don’t think it’s a cause for complaint. (Interview, UNHCR headquarters, Accra, July 2007)

That NWT typically prevents refugees from contacting the police is evidenced by the reactions of refugees to a case observed by the author, where a refugee was allowed to contact the police directly. A woman came to NWT’s booth to enquire about the status of a theft complaint she filed with NWT a week earlier. Harris, an NWT officer who manned the NWT booth that day, told the woman that her money has not been recovered. In response, the woman said that she wants to file a complaint with the police. Harris agreed and the woman left. Several of the author’s informers in the camp explained that the author’s presence must have influenced the way Harris responded. According to these informers, NWT officers normally use whatever means necessary – including physical force – to prevent camp’s residents from approaching the police.

Disregard Towards Violations of Human Rights by Refugee-Run Camp Institutions

UNHCR cannot guarantee that human rights are not violated. However, UNHCR can monitor violations of human rights in order to prevent such violations from reoccurring. In practice, UNHCR was aware of but chose to disregard violations of human rights by refugee-run camp institutions (e.g. NWT and ADC). In so doing, UNHCR infused such violations with its official power.

The ADC – another one of the camp’s ‘private’ institution – is a mediation forum manned by refugees, which handles civil cases. When ADC discovered that a case involving refugees has reached a Ghanaian police station or a Ghanaian court, the chairman of ADC appealed to the relevant authority to withdraw the case for private handling.⁷ ADC submitted monthly reports to the Camp Manager and UNHCR. These reports enumerated the cases ADC withdrew from Ghanaian police stations and Ghanaian courts. For example, according to ADC’s yearly report for the year 2006, 77 cases involving refugees were withdrawn that year.⁸ The following representative case was withdrawn from Awutu court and appears in the May 2006 report:

On the 25th of May 2006, a case was withdrawn from the Awutu court involving plaintiff [x] VS. [y] relating to raping of [the plaintiff’s] child. Both parties were cited. From the presentation of both parties, the committee conducted a cross examination. From the cross examination conducted, defendant was brought down guilty and was mendated [sic] to pay back the amount used for the treatment of the child by the family and continue the treatment of the child as of the day of the investigation which was excepted by him and copy of the rulling [sic] was sent to the shift commander/KASOA.

ADC, like NWT, blocked refugees’ access to justice. Since UNHCR received reports from ADC, UNHCR cannot claim not to have known about these violations. Nevertheless, UNHCR did not take any measures to prevent these violations or to prevent similar violation from reoccurring.

Moreover, UNHCR systematically overlooked instances in which ADC transgressed its mandate. For example, ADC has taken upon itself the power to issue divorce decrees, a prerogative of states or a state-sanctioned institutions only. This issue was addressed in a coordination meeting – a meeting between UNHCR and its implementing partners in the camp in which matters concerning camp governance are discussed – held on 15 May 2007:

Some members at the meeting pointed out that there have been occasions where A[D]C handled ‘divorce’ and separation of couples without any consideration for the children of the couple … The [Social Welfare Office] explained that the children of the union suffer as a result, as their best interest is never considered. [The social worker] also asked the A[D]C chair[man] to explain the basis for issuing the divorce decrees, which should be the preserve of the law courts. (Meeting minutes, on file with the author)

The response of the chairman of ADC was this:

Since 2005 the A[D]C had been issuing these separation letters to couples who were ‘loving’ and the relationship gone sour … it was a way to curb domestic violence as sometimes one party to the relationship could keep harassing the other until it resulted in violence. He however admitted that consideration had not been given to children and had no idea that men were using ‘separation’ letters as a means to avoid their responsibilities. (Meeting minutes, on file with the author)

UNHCR’s response to the discovery that ADC issued divorce decrees was extremely casual. ADC’s chairman ‘was advised to liaise with [the camp’s social worker] on any case that had children involved. He was further asked to give UNHCR and WISE a copy of the separation letter for our [i.e., UNHCR’s] study and advice’ (Meeting minutes, on file with the author). The office of UNHCR’s protection officers and that of ADC are located in the same building. Nevertheless, during the month between the May coordination meeting and the subsequent coordination meeting, ADC did not provide a sample ‘separation letter’ to UNHCR and was not pressed to do so.

In the subsequent meeting (June 2007), Jemma, a Ghanaian UNHCR protection officer, introduced the plan for the meeting. ADC’s practice of issuing divorce decrees was scheduled to be discussed. However, the chairman of ADC left the room when Jemma finished reading the agenda. Jemma said, ‘We never saw a copy of the divorce documents used by ADC’. The chairman of the Liberian Refugees Welfare Council answered, ‘The ADC chairman is not here’. Although ADC’s chairman returned to the room a few minutes later, he was not asked to explain ADC’s practices or to produce a copy of the divorce documents. The next coordination meeting was scheduled for 2 months later. During this period, UNHCR left untouched the ‘separation procedure’ – a procedure that compromised the well-being and physical security of children in Buduburam.

Similarly, UNHCR chose to disregard reports of corruption by NWT, which hindered refugees’ access to justice. For example, A WISE counsellor told the author that refugees complained that ‘when they go to the NWT you need to pay them [NWT] before they go and arrest, even if the police give them a note [an arrest slip] they still ask for money’. Rather than having UNHCR investigate these complaints, the counsellor’s response was to transfer the responsibility for the protection of their right to access justice back to the refugees: he advised refugees to ‘stand up and say “we are not paying! This is supposed to be free. UNHCR told us that [it] is free. So why do we pay?”’ (Interview, WISE headquarters, Accra, 2007).

UNHCR’s policy on the ground was to avoid monitoring the practices of NWT and ADC even when these practices resulted in violations of human rights. In so doing, UNHCR created a space of non-intervention, signalling to both ‘private’ institutions and refugees that NWT and ADC have a free hand to block refugees’ access to justice. UNHCR’s refusal to monitor such violations is epitomized in one UNHCR protection officer’s admission that it is difficult to monitor NWT because NWT has many volunteers. According to her, NWT was ‘mainly monitored by the Camp Manager and the police’. Placing responsibility for monitoring violations of human right on the camp’s meagre police force – totalling seven personnel for a population of 45,000 refugees – is tantamount to forgoing any monitoring of such violations. UNHCR’s disregard towards these violations of human rights ties UNHCR’s official power with the unofficial power of these ‘private’ institutions. The integration of these forms of power produces a ‘double reality’ of domination, whereby the visible unofficial power of the ‘private’ institutions is backed by the invisible, but official, power of UNHCR (Bourdieu, 1977).

Substituting Education and Counselling for Protection

UNHCR officials responded to claims for protection of physical security by offering refugees education and counselling, thereby placing the responsibility for protecting physical security with refugees rather than UNHCR. Consider, for example, the following exchange that took place during a Sexual and Gender-Based Violence (SGBV) coordination meeting. In SGBV coordination meetings, UNHCR and its implementing partners orchestrate preventive and reactive measures to address SGBV in the camp. The meeting in question took place in the Camp Manager’s conference room, which is located just across from the police station. During the session, attention was diverted to a commotion outside. A crowd surrounded the police station. Mr Sando, the chairman of the Liberian Refugees Welfare Council (LRWC), explained that four girls ‘made a small boy go down on them’. The girls were taken to the police and a crowd gathered to observe how the police managed this unusual situation.⁹ The following conversation ensued in the Camp Manager’s conference room:

Jemma (UNHCR):

If I was here I would never report to the police if I was raped because everyone immediately learn about it.

Armstrong (NWT):

In cases of defilement, what to do when people don’t want to go to WISE or the police?

Jemma (UNHCR):

Report the incident to WISE. Explain to them that going to WISE doesn’t mean anything will happen to [them]. […] Inform them [that] WISE and Social Welfare are there to talk to [them] if [they] have a problem with their parents. These cases quickly become cases of teen pregnancy. We need to spread awareness to reproductive health.

Sando (Chairman, LRWC):

As long as the parents can’t support their children you cannot prevent teen pregnancy. There’s no way to control these children.

Jemma (UNHCR):

It brings me back to the earlier contention that children should be taught about sex.

Sando (Chairman, LRWC):

The girls were not doing condom business. They were asking the boy to use his mouth on them.

Jemma (UNHCR):

What you say is true but even if poverty accounts for 60% [of cases of sexual abuse in the camp] there’s room for parenting. Some women when they have money they go buy jeans or they support young boys [instead of taking care of their children].

John (WISE):

We need to involve the community in awareness creation. WISE is here to help only women. If parents and zonal heads would be sensitized to intervene, things will not happen as often.

Jemma (UNHCR) to John:

Work closely with the LRWC to do training. I will do my best to help. I’ll find money to buy Fanta [soft drink] to you all. [Laughs]

Several elements of this conversation are noteworthy. First, it is clear to Jemma, a UNHCR protection officer, that going to the police is not the appropriate response to rape. When the representative of NWT asked what the appropriate response would be, Jemma quickly reframed the issue as an issue of parental neglect and teen pregnancy and recommended directing such victims to WISE and to the social welfare office for sexual education. When the chairman of LRWC suggested that poverty is the source of sexual abuse in the camp, Jemma insisted on placing responsibility on parents and contended that the best response is to educate children about sex. WISE representative seems to agree that responsibility rests with parents and zonal heads – with refugees rather than with the authorities. In other words, no authoritative political body is responsible for the protection of the physical security of refugees in the camp.

‘It is striking’, Malkki (1995: 8) observes, ‘how often the abundant literature claiming refugees as its object of study locates “the problem” not […] in the political oppression or violence that produces massive territorial displacements of people, but within the bodies and minds of people classified as refugees’. This is, indeed, the case in Buduburam, where UNHCR – the agency entrusted with protection of refugees – located the problem in the camp’s inhabitants. The solution UNHCR offered is to make a change in the refugees rather than in the protection they are offered.

One might worry that the data presented above do not necessarily represent the official position of UNHCR. However, UNHCR’s activities in Buduburam are consistent with the organization’s policy, and therefore, these activities cannot be dismissed as mere problems of implementation. Nor can UNHCR’s practices in Buduburam be attributed to the specific dynamics between UNHCR and the State of Ghana. Consider, for example, the PEP and the establishment of NWT. As noted above, UNHCR operates PEPs in refugee camps in Africa and elsewhere. It has been shown that these programs are means by which UNHCR ‘deflect[s] responsibility for keeping order in camps to the refugees who inhabit them’ (Sagy, 2008: 361). Similarly, UNHCR establishes NWTs in camps worldwide. NWTs are a part of UNHCR’s policy for handling security in refugee camps rather than a local specific response to the situation in Buduburam (UNHCR, 2006). In fact, a pilot of assigning Humanitarian Security Officers (HSO) was tried by the UNHCR in some countries. In addition to their responsibility to assess security threats to the camp, the HSO’s were to ‘encourage refugee population to assume some responsibility for maintaining acceptable standards of order and justice in camps in a manner that conforms to the principles of community policing’ (UNHCR, 2001: 95). Moreover, there is no discrepancy between UNHCR’s policy as it is manifested in the organization’s publications and policy initiatives and between the statements made by its protection officers in Buduburam. Hence, it is safe to assume that privatization strategies identified in this essay are not the consequences of a failure to implement UNHCR’s official policies, but rather that they epitomize these policies. Finally, UNHCR is a powerful political entity; it has been continuously expanding and redefining its mandate (Cuéllar, 2006; Loescher, 2001).¹⁰ Therefore, it is implausible to attribute UNHCR’s policies and the ways in which they are implemented to restrictions placed upon UNHCR by Ghana or even by its own mandate.¹¹

In Search of a Duty Bearer: Doctrinal Analysis

The central claim advanced so far is that refugees do not have the human rights of physical security and access to justice. This section seeks to explain why this is so. As a first step, we must understand the global political forces that shaped the formation of the international refugee protection system. In the aftermath of World War II, the international community had a benevolent urge to affirm and regulate the rights of refugees. In order to obtain widespread international support for this initiative, the 1951 Convention Relating to the Status of Refugees (CRSR) attempted to balance this benevolent urge with the reluctance of states to assume onerous responsibilities. As a result, CRSR did not explicitly affirm refugees’ right to physical security, and it did not identify any specific political authority as the bearer of the duty to protect this right and, indeed, the duty to maintain the rule of law in refugee camps. The fact that these responsibilities were left unassigned made it easy for states to sign CRSR as they did not take themselves to be assuming demanding responsibilities in signing this document. In other words, leaving these responsibilities unassigned was a political compromise – a compromise that is now called ‘the grand compromise of refugee protection’ (Cuéllar, 2006).

Nonetheless, the rights to physical security and access to justice are important elements in the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights. Refugees’ right of access to justice is expressed clearly in Article 16 of CRSR. Refugees’ right to physical security can be gleaned from ‘a criss-cross of rules which have some bearing on the subject’ (Hathaway, 2005: 449) even though it is not explicitly stated in the CRSR.¹² In fact, everyone agrees that refugees ought to have a right to physical security. But since no one is officially assigned the duty to protect this right – or, indeed, the duty to maintain the rule of law in refugee camps – there is no agreement on who bears this duty.

Some claim that this duty lies with the host government. For example, UN Security Council Resolution 1208 (1998) on ‘The Situation in Africa: Refugee Camps’ affirms ‘the primary responsibility of States hosting refugees to ensure the security and civilian and humanitarian character of refugee camps and settlements in accordance with international refugee, human rights and humanitarian law’ (UN, 1998). Others place responsibility for the protection of refugees with UNHCR.¹³ This approach can be divided further based on the degree of responsibility placed on UNHCR.

Since ‘[o]ften countries which bear the brunt of first asylum are themselves economically and socially strained’ (Helton, 2003: 23), the view that UNHCR should assume a supportive role in protecting the physical security of refugees is widely accepted. For example, a Regional Meeting on Refugee Issues in the Great Lakes in Uganda in 1998 (summoned jointly by UNHCR and the Organization of African Unity) acknowledged that ‘host States might require extra resources to establish and maintain the rule of law in refugee populated areas’ (UNHCR, 2001: 94). Security Council resolution S/RES/1208 from the same year similarly affirmed the supportive role of UNHCR:

[r]ecognizes the primary responsibility of the UNHCR, with the assistance of other relevant international bodies and organizations, to support African States in their actions directed towards the full respect and implementation of the provisions of international law relating to the status and treatment of refugees.

According to the second approach, UNHCR ought to shoulder most of the responsibility for the protection of refugees’ physical safety rather than simply assume a supportive role. Cuéllar (2006), for example, contends that this view not only normatively justified but it also offers the best interpretation of international law. According to him, ‘[n]early any plausible reading of UNHCR statute with the myriad General Assembly resolutions that further fill in the scope of UNHCR’s mandate, implies that the agency should concern itself with the physical well-being of refugees’ (2006: 26). Under this view, UNHCR has both the legal mandate to take the lead in addressing security concerns in refugee camps and the ability to do so. This view is reinforced by the fact that permanent refugee camps like Buduburam ‘are invariably located in states, but under the control of UNHCR’ (Wilde, 1998: 110).

Most of the incidents discussed in this article involve violent conduct of private persons. Normally, we would characterize these as crimes, rather than human rights violations. Nonetheless, such violence violates the refugees’ rights to life and security of person.¹⁴ Under Article 2 to the International Covenant on Civil and Political Rights (ICCPR), States party to the covenant undertake ‘to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as […] national […] origin’. The Human Rights committee further elaborated that ‘the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons’.¹⁵

While acts or omissions of non-state actors are themselves generally not attributable to States, the State may be considered responsible for failure to exercise due diligence to prevent, investigate, punish and provide remedies for such actions or omissions that took place within its territory, specifically when it comes to injury of foreign nationals (Brownlie, 1983: 161; Hessbruegge, 2004; Massey v. United Mexican States, 1927; Youmans v. R United Mexican States, 1926). The Human Rights Committee reinforced that general obligation with regard to the rights enumerated in the ICCPR, such as the right to life and security of person. According to the committee,

The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. (Human Rights Committee, 2004)

The UNHCR is not a State. Thus, it is not party to the ICCPR and is not directly bound by it. Nonetheless, the UNHCR is part of the UN’s international legal personality (Wilde 1998: 115). Moreover, the International Court of Justice opined that ‘International organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law’ (ICJ REP. 73, 1980).¹⁶

While it seems that UNHCR has, according to most views, to accept at least some responsibility for the protection of refugees’ physical safety, it has been slow and hesitant to do so. For example, UNHCR’s Executive Committee decision from 14 January 1999 continued to assign responsibility for camp security in general, and maintenance of law and order in particular, to host governments and the international community as a whole (despite S/RES/1208). Even as the organization began to recognize the need to extend responsibility beyond the host state, it stressed that its own role was secondary. For example, in an attempt to ‘share the burden’, UNHCR has been using security packages – clusters of security measures applied to specific refugee camps – in countries that lack resources or willingness to handle camp security. These packages are intended to reduce crime in general and SGBV in particular (UNHCR, 2006: 3). While highlighting the importance of a clear division of labour between national police, paramilitary forces and refugee security guards, UNHCR obscured its own terms of involvement in security packages. Crucially, UNHCR left unassigned the responsibility for monitoring and supervising security in camps.

The findings from Buduburam similarly show that UNHCR is reluctant to assume the difficult and costly responsibility for protecting the physical security of refugees. Since the State of Ghana is unwilling (and at present unable) to protect refugees’ right to physical security and since refugees lack the political power to refuse to accept this burden, deflecting this responsibility onto the refugees themselves represents the path of least resistance.

To summarize this section, both the relevant literature and, perhaps more significantly, international organs find that the UNHCR carries at least some of the responsibility for protecting refugees’ safety while they are in camps (Cuéllar, 2006; Helton, 1990; UN, 1998; Wilde, 1998). Thus, it seems reasonable to argue that in camps, where it functions as a relevant authority, the UNHCR is obligated to exercise due diligence in preventing injury to refugees by non-State actors. In the same vein, the UNHCR’s refusal or failure to protect refugees’ right to life and security of person, epitomized in the privatization of law and order in Buduburam, can be framed as a violation of the organization’s duty to ensure those rights, as defined by the ICCPR. The result is that refugees are systematically deprived of the human rights to physical security and access to justice.

Conclusions

Hohfeld writes that ‘even those who use the word and the conception “right” in the broadest possible way are accustomed to thinking of “duty” as [its] invariable correlative’ (Hohfeld, 1913: 31). According to the High Commissioner for Human Rights, a crucial element in implementing human rights is to identify the relevant duty bearer and to demand of this duty bearer to meet its obligation to protect those rights. As we have seen UNHCR encourages refugees not to claim their rights. UNHCR’s practice of relegating responsibilities for protection of refugees to refugees themselves constructs refugees’ ‘right to physical security’ as a liberty rather than a right. And since human right claims are supposed to be universal, the fact that refugees lack the rights to physical security and access to justice reveals that there are no human rights to physical security and access to justice.

The predecessor of current human rights law is the law of State responsibility for injuries to foreign nationals (Carter and Weiner, 2011: 754; Steiner and Alston, 2000: 82). Claims arising from this law grew out of a dispute between a government (Y) and a citizen of another nation (X), whereby Y allegedly violated international law in its conduct towards X’s citizen. Since international law was considered a regulator of relationships between nation states, not of States and their own nationals,¹⁷ the injury of a foreign national was considered an injury to his nation state, which had the privilege of extending its ‘diplomatic protection’ to its citizen (Carter and Weiner, 2011: 754). Thus, one had to hold ‘effective citizenship’ to receive protection. I use the term ‘effective citizenship’ to indicate a situation whereby one is the citizen of a country that is willing and able to engage in a dispute on his behalf when his rights are violated by another nation state.

The traditional framework of what we now call ‘human rights’ was significantly altered after World War II. One lesson from the war was that human rights violations can be carried out by States against their nationals. Thus, human rights were to regulate States’ conduct towards their citizens as well. Another, related, lesson was that rights should belong to individuals rather than States (Sohn, 1982: 14–18). The individualization of human rights was particularly pertinent to refugees. CRSR asserts that refugees’ lack of effective citizenship should not deprive them of protection altogether. States declared that even when no State, which is willing to engage in a dispute on behalf of refugees by way of extending its diplomatic protection, can identify with refugees on recognized grounds of affinity or nationality, States would respect the rights of refugees as much as they do their own nationals’. While the convention was originally developed to address the specific problem of statelessness, mainly in Europe, in 1967, it was expanded to all or almost all political refugees.

The privatization of human rights by the UNHCR re-links protection to effective citizenship, thereby restoring the model of extended diplomatic protection.¹⁸ As my findings show, refugees are educated to engage in self-governance of their human rights and are discouraged by the UNHCR from directing protection claims to the camp’s authorities (the State of Ghana and the UNHCR itself). The UNHCR’s practice thus reflects and affirms Arendt’s observation that for refugees, ‘the loss of government protection, […] [does] not imply just the loss of legal status in their own, but in all countries’ (Arendt, 1951: 174). This article traced the dynamic elements of this process in the locality of Buduburam. The UNHCR’s practice of human rights transforms the rights of refugees by rolling them back to the pre-World War era, when refugees’ lack of effective citizenship translated into lack of protection of their human rights altogether.

The shift from citizenship-based rights to human rights promised rights to human beings regardless of their citizenship status. This article explored the difference human rights make on the ground, particularly as carriers of change in relation to global equality. The privatization of refugees’ human rights by UNHCR relegates refugees to the status of persons with limited global citizenship: one is at liberty to respect their ‘rights’, but no political authority assumes the duty to protect them. In other words, they do not have human rights.

The findings presented above have two main implications for sociological theory of human rights. First, contrary to the received view, ‘human rights’ are not universal. Second, those who are excluded from the human rights framework are the same persons who were excluded from the citizenship rights framework – that is, those who are outside the nation state-soil-law grid. Thus, despite the promise of the human right project to extend rights to humanity as a whole, one has to be a citizen of a state, which is willing and able to protect her rights in order to have human rights. Refugees, therefore, find themselves ‘out of legality altogether’ (Arendt, 1968: 174). This means that pace Turner and others, human rights are not more contemporary than citizenship rights. Human rights do not transcend citizenship.

Footnotes

Acknowledgements

For their useful comments on previous drafts, I wish to thank the participants of Oxford’s Refugee Studies Centre’s colloquium, Eyal Benvenisty, George Bisharat, Byron Bland, Tomer Broude, Josh Cohen, Yoav Dotan, Jean-Francois Durieux, Barbara Fried, Lawrence Friedman, Dana Gur, Jason Hart, Daniel McCarthy, Liisa Malkki, Ronen Shamir, and, particularly, Yuval Shany. I am also grateful for helpful comments from the Editor and two anonymous referees. Allen S. Weiner generously provided invaluable support throughout The Research Project as well as important critique and comments on various drafts of this work.

Author’s Note

Human subject research protocol # 9684 is approved by Institutional Review Board, Stanford University, Stanford, California, USA.

Funding

The present article was supported by the E. David Fischman Scholarship, O’Bie Shultz Fellowships in International Studies Dissertation Research – Dissertation Completion Grant, O’Bie Shultz Fellowships in International Studies Dissertation Research – Travel Grant, Stanford Center on Conflict and Negotiation, Stanford Law School Dissertation Research Funding, Class of 2002 Fellowship in Conflict Resolution (2005, 2006), the Yonatan Shapira postdoctoral fellowship at Tel Aviv University’s Department of Sociology and Anthropology, the Israeli Council for Higher Education, The Lady Davis foundation and the Sacher Institute.

Notes

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