The trouble with impunity: War crimes and a humanitarian agency

A Rohingya Muslim child kisses his mother after they fled Myanmar for Bangladesh in September 2017. Thousands of Rohingya Muslims have fled their country for places like Malaysia and Thailand, where a UN agency assesses their refugee claims. But can the UNHCR unwittingly cause countries to neglect investigating war crimes? (AP Photo/Bernat Armangue)

The trouble with impunity: War crimes and a humanitarian agency

Imagine that your country is at war; you fight and believe that what you are doing is the right thing to do. But then one day you need to flee, because either opposition or government forces have decided that you are no longer needed and should be silenced or eliminated.

You flee and seek asylum in host states. Then their authorities tell you that “you were in the army, might have committed war crimes, so we need to investigate what you did in the army.”

At the end of this process, they have serious suspicions that you had committed war crimes back in your country. What happens to you next?

This scenario frequently occurs when states conduct what’s known as refugee status determination procedures to decide who is a refugee. Here is the challenge: There are well-founded suspicions that you committed a crime as you fought for your country, but can you be tried for that crime?

This is often not a viable option considering that you’re a foreigner and suspected of a crime committed far away. Gathering evidence would be a daunting task for host states. If a criminal trial is not an option, this puts the problem of what’s known as impunity front and centre.

What is impunity?

According to the United Nations, impunity occurs when states fail to meet their obligations to investigate human rights violations and do not take the appropriate steps to ensure suspects are prosecuted, tried and punished.

In short, impunity arises when states neglect to bring suspects of human rights violations to justice.

We often view states as being primarily responsible for preventing impunity. But could a humanitarian agency, like the United Nations High Commissioner for Refugees (UNHCR), be causing impunity because it’s doing its job? Could it cause states to fail to investigate human rights violations? Let’s examine:

The 1951 Refugee Convention is an international legal document that defines who is a refugee. Normally, states have the main responsibility to determine the status of asylum seekers, but the UNHCR intervenes only if “states are unable or unwilling” to do so.

In 2013, the UNHCR was responsible for assessing and dismissing refugee claims in more than 50 countries, including in Thailand and Malaysia, which receive the most asylum-seekers in Southeast Asia.

Sudanese refugees are seen at this centre in Uganda. UNHCR

As a part of the procedure to assess refugee claims, the UNHCR is entitled to exclude asylum-seekers from international protection if they are suspected of committing war crimes, crimes against humanity and serious non-political crimes, including torture, in a process called exclusion assessment.

Here’s the problem: The UNHCR may have excellent access to information concerning criminal acts through contact with suspects, victims or witnesses, particularly during the exclusion assessment. Some of these acts, including war crimes and torture, require countries where the UNHCR assesses refugee claims to launch criminal investigations into suspects.

However, the UNHCR also maintains a high degree of confidentiality concerning information provided by refugees. Now, if the UNHCR does not share information about possible criminal acts, how would states investigate human rights violations?

There is no transparency from the UNHCR. We simply do not know how many people were excluded from protection because of serious criminality. How grave were their suspected crimes? What does UNHCR do with the information that it gathers?

Some European countries, including the Netherlands, the United Kingdom and Denmark, maintain the information flow between their immigration departments and their respective justice departments to prosecute those denied refugee status because of serious criminality.

Transparency needed

Although I don’t support such a practice, why does the UNHCR fail to provide very basic information such as numbers? It also refuses to answer questions on the matter.

Today there are more than 17 million refugees in the world under the UNHCR’s protection. There are almost 70 countries, including Lebanon, Jordan, Malaysia and Egypt, in which the UNHCR decides who is going to be excluded from protection on the basis of serious criminality.

The UNHCR’s figures on refugees at a glance. UNHCR

The UNHCR therefore assesses the refugee claims of a great number of people. Considering these large numbers, we need to discuss the UNHCR’s role in impunity when it fails to share the information concerning suspected criminal acts.

Having said that, putting all responsibility on the UNHCR creates too large a burden for a humanitarian agency to carry.

In a world where more than 65 million people are displaced and nearly 23 million people are refugees, the UNCHR’s humanitarian efforts are invaluable and necessary. The organization is carefully working to help refugees at large on a very small budget and with scant resources.

But the UNHCR is a part of the United Nations family. If the UN cannot achieve unity and commitment to stop impunity among its agencies, how can it possibly convince member states to do the same thing?

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