In 1939, the U.S. government refused to let the German ocean liner St. Louis dock in Miami, claiming there might be Nazi spies among the 900 Jewish refugees on board.
The threat was enormously exaggerated by both the government and the media. Refugee advocates lost control of the narrative, and Jewish refugees, rather than Nazi sympathizers, were branded as the threat. Many of the St. Louis refugees went on to die in the Holocaust.
After the war, a committee of the new United Nations met in upstate New York to establish an international system of laws to protect refugees. No more would refugees be subject to the whims of individual governments bowing to political pressure and organized bigotry. Instead, the rule of law would prevent hysteria from overriding justice. Thus was born the 1951 Refugee Convention.
The tragedy of refugee history is that moral clarity in hindsight is often juxtaposed with dehumanization and bigotry in the present. The world has a penchant for victim blaming and shaming, particularly when it comes to refugees, and this is now threatening to destroy the refugee protection system.
Unlike during the Communist era, when refugees were seen mostly as individual “dissidents” and “defectors,” today’s refugees are presented as an undistinguished mass of dangerous Muslims. Public discourse and government policy on Muslim refugees has become plagued by the idea that they may be double agents for the very conflicts they are trying to escape.
The temptation to conflate refugees fleeing terrorism with terrorism itself has proven difficult for the media and governments to resist. This has led to the revival of the argument that refugees as a group pose a danger to host states. As a result of this tautology, governments are now invoking “national security” as grounds to turn back entire nationalities of refugees.
Exception Becomes the Rule
The drafters of the 1951 Refugee Convention struggled with the habit of governments to object to anything and everything on security grounds and included a “national security” exception to Article 33 on non-refoulement, the prohibition against returning refugees to places where they might be at risk, partly to encourage governments to sign on.
A state may exclude or expel a refugee where “there are reasonable grounds for regarding [the refugee] as a danger to the security of the country in which he is.” UNHCR, which attempts to guide interpretation of the Convention, says that the exception should be applied very narrowly, in individual cases and after a hearing.
Nevertheless, because there is no established definition for ”national security,” nor is there a binding procedural standard for determining when it applies, the existence of the national security exception gives states wiggle room to restrict asylum access with potentially devastating consequences. It sits like a Trojan Horse within both the 1951 Refugee Convention and U.S. law.
This year will see landmark court decisions on government attempts to expand the “national security” exception in the U.S. and Kenya.
In February 2017, the Kenyan High Court struck down the government’s plan to close Dadaab camp, home to around 250,000 mostly Somali refugees. The court employed strong, unequivocal language: “The application of Article 33(2) requires an individualized determination by the country in which the refugee is that he or she comes within one of the two categories provided for under Article 33(2) of the 1951 Convention. Thus, this rules out group or generalized application or collective condemnation.” The Kenyan government is now planning an appeal.
Around the same time, federal courts in the United States temporarily blocked President Donald Trump’s executive order banning immigration to the U.S. from seven majority-Muslim countries, including Somalia, and suspending the resettlement program. The matter may proceed to the U.S. Supreme Court.
Losing the War
The fact that the U.S. and Kenyan governments are now seeking to restrict or deport groups of Muslim refugees en masse seems to have taken the advocacy community by surprise. While the international refugee advocacy community slept, the narrative of “Islamic terrorism” took over the conversation.
We simply failed to engage in a meaningful way with the terrorism debate, seeing it as outside our purview and ceding the argument. Having lost the war of ideas, we are now facing very real changes to refugee law.
The current toxic political crisis means refugee advocates must face some tough questions they usually try to avoid. In particular, why do governments and the media vilify Muslim refugees? How can this trend be reversed? These are difficult questions because they hinge less on facts and laws, things refugee lawyers love, and more on narratives and feelings, things we tend to avoid. Refugee advocates have all the facts on their side, yet this seems to make little difference to the feelings of voters.
It’s easy to blame “the media” for this state of affairs, but the refugee advocacy community must also look to itself and ask why we have so wholly lost control of the narrative. Most crucially, we must learn to speak frankly about how racism and religious hatred drive the narrative on terrorism.
A collateral victim could be the refugee system itself. Like turning back a boatload of people in mortal danger from the Nazis because there might be a single Nazi hidden on board, current refugee policy elevates blaming the victim to a new level, eliminates any and all due process, and circumvents the purpose of the Convention, which was to provide asylum to individuals fleeing persecution from the very sort of terrorism and lawlessness governments now invoke.
If Kenya and the U.S. succeed in barring Somali and other Muslim refugees, other countries will likely follow suit, causing the collapse of non-refoulement. The outcome of these two court cases could destroy the entire protection system.
But it may not be too late to change the narrative. Trump’s election has brought forth many painful but necessary discussions among refugee advocates and the larger “progressive” community about, for example, the idea of “open borders,” the definition of “terrorism,” the usefulness of the United Nations and the European Union and the purpose of international law. Hopefully, this conversation is going somewhere, and fast.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Refugees Deeply.
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