The Big Think
The World Needs a New Refugee Convention
For 30 years, right-wing parties and nativist leaders have whittled away refugees’ rights. In the wake of a global pandemic, seeking asylum will be nearly impossible unless the international community revises and modernizes its approach to people fleeing war.
With its square white tents perfectly aligned against the yellow sands of the Sahara, Adam’s home could be a model refugee camp. Except it’s not. The government of Niger and the United Nations refugee agency, or UNHCR, call the camp a “humanitarian site.” Real refugees, for the government, are those who come from the war-torn zones of neighboring Mali and Nigeria and who are housed temporarily until there is a lull in fighting, at which point they are expected to return to the other side of the border.
The Sudanese at the humanitarian site are different, caught between journeys. They fled the conflict in their homeland of Darfur and headed north, crossing various borders to reach Libya—which proved to be as dangerous as the country they had left behind. Then they went south to Niger, this time fleeing detention centers, slave markets, and arrest by European Union-backed Libyan coast guard units.
Before he came to Niger, on his first journey, Adam had even managed to reach Europe. He got to Italy but was arrested at the French border and deported to Sudan. Since then, he has gone by the nickname “Italy.” He isn’t happy waiting at the humanitarian site, but the UNHCR staff told him that if he didn’t like it there, Niger could send him back to Libya. In 2019, there were painfully few resettlement flights from the humanitarian site to Europe, but they did exist, and they gave Adam hope. He dreams of returning to the country that gave him his name. Or anywhere in Europe, really. The present offers no possibilities.
Getting to Europe is now almost impossible. The drip feed of resettlement was turned off in early 2020 as the virus reconfigured our world. In September, he texted us: “There is no future for me.”
Since the beginning of the pandemic, drawbridges have gone up across the world, limiting the movement of business travelers, vacationers, and asylum-seekers. But while airlines eagerly anticipate tourism returning to normal, many of the limitations on asylum enacted during the current crisis are likely to be become permanent. This year, more than 90 countries have stopped processing asylum claims. In Bosnia and Herzegovina, thousands of migrants, fleeing wars at home and looking for a route to Northern Europe, were interned in camps, while in Malaysia and Thailand, boats containing Rohingya refugees were turned away. In the Mediterranean, the virus has proved a potent weapon for politicians seeking ways to justify Europe’s blockade of irregular movement from the south.
The far-right’s political rhetoric blames refugees for carrying COVID-19. At the beginning of March, Hungary’s nationalist prime minister, Viktor Orban, stated that he is “fighting a two-front war: One front is called migration, and the other one belongs to the coronavirus.” The right has conflated the two issues, building on a centuries-long history of scapegoating strangers as diseased. Asylum-seekers are actually no more likely than anyone else to carry the virus, and its initial spread followed the pathways of international air travel rather than irregular migration. But the pandemic is a useful excuse, according to Susan Fratzke of the Migration Policy Institute, “for countries to put in place anti-asylum policies they would have pursued anyway.”
The measures taken in the last six months are not exceptional policies pursued in a time of crisis but a crisis put to good use to complete a project already 30 years in the making: an almost total blockade against refugee movement and the end of asylum as a practical possibility.
The right of asylum has always been ambiguously positioned between law and geopolitics. When the U.N. Refugee Convention was first adopted in 1951, it applied only to Europeans trying to find their place in a new jigsaw of nations following World War II. All the focus of postwar discussion was on “non-refoulement,” the principle that means asylum-seekers cannot be sent back to the countries from which they fled if they would continue to be persecuted there. The enshrining of non-refoulement was a reaction to the original sin to which the convention was a response: that many countries refused entry to Jewish refugees during the war. That refugees can’t legally be sent back to dangerous places, however, doesn’t mean that they are guaranteed a place to go—a limitation in the convention that is brutally exposed by stories like Adam’s.
Not that Adam was much thought about when the convention was signed. It would take until 1967 for a protocol to be signed that generalized the right of asylum outside of Europe to anyone with a reasonable fear of persecution on the basis of their political opinions or membership of a persecuted group. Even after the signing of the protocol, the right to asylum remained fragile. While in theory, signatory countries have to take in asylum-seekers, no one country has a duty to do so, and in reality, asylum policies are always sculpted by the demands of national immigration politics.
In the 1950s and ’60s, there were relatively few asylum cases in Europe and the Anglophone world, simply because workers were needed, immigration rules relatively lax, and it was easier to migrate than to go through complicated asylum procedures. Those who did apply could be held up as political victories: the victims of communist systems in Hungary and Poland whose failure was evident in their flight.
As the oil crisis unfolded in the 1970s, bringing soaring unemployment to Europe, the demand for immigrant workers slackened, immigration restrictions hardened, and immigrants became useful punching bags for politicians looking for scapegoats for the global economic downturn. The seeds of popular discontent took root after the guest workers who had come to Europe in the 1950s and ’60s stayed, becoming the target of political anger. The firming up of immigration policies was accompanied by a rise in the number of people applying for asylum, as those fleeing conflicts in Vietnam, Cambodia, and the wars of Central America tried to get to safety.
From the beginning, the institution of asylum was bound up with the political economy of nation-states. With the crises of the 1970s came the institutionalization of a new way of keeping asylum-seekers out: the refugee camp.
There is a divided world system for dealing with refugees, as the French anthropologist Didier Fassin has argued. In vanishingly few countries, there is the possibility of asylum; in the rest of the world, there is the refugee camp. In the last 30 years, even those countries that do offer asylum, such as those within the EU, have erected camps within their borders. With asylum comes the promise of permanent residency, eventual citizenship, and a new life. However, countries don’t allow asylum-seekers to apply at their embassies, meaning that an application requires difficult irregular journeys in order to make a claim.
Over the last 30 years, such a journey has become increasingly difficult, and most refugees now live in camps in countries like Kenya, Lebanon, and Pakistan, next to the war zones from which they have fled. At the end of 2019, there were 79.5 million forcibly displaced people worldwide, and 85 percent of them were hosted in the developing world.
While it is very difficult to get asylum, it is easy to get into a refugee camp. Building a good life there, however, is nearly impossible. Residency in such camps is predicated on the idea, enshrined at the heart of UNHCR, that refugees will either be resettled or will return home. This means that most refugees are not allowed to work, do not get citizenship in their host country, and are provided only minimal services designed to maintain life—but not build a good one. Camps are supposed to be temporary, but with resettlement increasingly difficult and wars never-ending, many never leave. The consequence? In places like the Darfuri refugee camps in Chad, hundreds of thousands of people have grown up without citizenship, dependent on handouts, and waiting for futures that will never arrive.
From the perspective of UNHCR, such camps save lives. In historical perspective, however, such camps are devices to manage uprooted populations. Effectively, camps function as cages, as the American sociologist David Scott FitzGerald names them, designed to keep people from coming to wealthy countries and applying for asylum.
Since the 1990s, Europe, the United States, and Australia have tried to prevent asylum-seekers from making applications inside their territories, despite legally remaining signatories to the 1951 convention and the 1967 protocol. The measures they have taken include the tightening of the global visa regime and limitations on travel, as well as the externalization of border controls far from the actual frontiers of the nation-states in question. Since the 1980s, the U.S. Coast Guard has increasingly intercepted asylum-seekers at sea and forcibly repatriated them without legal hearings, while Australia offshores its asylum-seekers in Papua New Guinea and Nauru much as companies move factories overseas—it saves money, and horrors are easier to bear if they don’t take place in the homeland.
In Europe, the last 30 years have seen the continent’s borders moving steadily south, even as North Africans find it increasingly hard to cross the Mediterranean. In recent years, African and European officials have called Niger, Libya, and Sudan “Europe’s new southern border.” This new frontier wall is constituted by an expanding set of drones and border fences, sometimes guarded by militia forces subcontracted by Europe that can intercept migrants in places where human rights abuses are less visible. While Australia has built buffers in other countries and constructed a system of offshore processing for asylum, Europe has focused on blocking asylum-seekers south of the Mediterranean. Amid all its other disagreements, on the necessity of this new frontier, as the writer Thomas Meaney noted last year, Europe is singing from the same hymn sheet.
Adam “Italy” lived in the village of Ab Duel in Darfur until 2004, when it was attacked by Sudanese government militia forces. He became one of the 3 million Darfuris displaced into camps surrounded by the very militias that razed Adam’s village and stole his family’s cattle. The militias prevented camp residents from leaving to farm or find work, so Adam decided to go to Libya to look for employment.
Life in Libya wasn’t easy. Adam moved between temporary jobs, working in restaurants and for construction firms, being beaten and harassed, and eking out a hard-scrabble existence at the edge of Libya’s civil war. After a year, he decided to leave for Europe. In 2016—the peak year for sea crossings to Italy, with 181,000 arrivals—he boarded one of four dinghies, each filled with 140 migrants. He made it to Sicily and traveled to Rome, intent on heading to France, but he was arrested just before the border in Ventimiglia and driven to the Sudanese Embassy, where he was interrogated and deported to Sudan. On arrival, he was extended the common welcome that Sudanese intelligence customarily affords returnees and was brutally interrogated.
Adam’s deportation was enabled by a deal that Italy—like several other European countries—struck with Sudan that allowed Sudanese intelligence agents to come to Europe and interview asylum-seekers in order to facilitate deportations. This deal was struck with the very Sudanese regime that Adam fled, effectively ensuring his refoulement. Following Adam’s deportation, a group of Sudanese nationals won an appeal at the European Court of Human Rights against their deportation under the same scheme. Amid this and other legal challenges, Europe continues to rely on the externalization of its borders as its principal means of evading legal scrutiny.
In 2016, the EU signed a 6 billion euro ($6.6 billion) deal for Turkey to keep Syrian refugees on its soil—including those returned from Greece. In effect, Turkey became a cage, much like the refugee camps farther south. In the same year, Niger—a major recipient of EU aid, with one billion euros (about $1.18 billion) earmarked for 2017-2020—enforced a new law that allowed its forces to arrest migrants as early as Agadez—the last sizable town at the edge of the Sahara, still 700 miles from the Libyan border. This, according to EU officials, is a model arrangement.
The borders of Europe are moving south, and with this expansion, the border guards are also changing. In 2009, then-Italian Prime Minister Silvio Berlusconi made an agreement with Libya’s leader at the time, Muammar al-Qaddafi, that enabled Italian coast guard units to swiftly deport immigrants to Libya. In the intervening years, there has been regime change in Libya, but Italy’s priorities have remained unchanged.
A weak Government of National Accord (GNA) was established in Libya in March 2016, though it barely had control of parts of Tripoli. The fictional sovereignty of the GNA didn’t stop the EU, led by Italy, from training the Libyan coast guard. Many of those coast guard units had, until recently, been militias involved in migrant smuggling. Adam had left Libya from a terkina (corner—a name used for the places that migrants gather before boarding boats) in Sabratha, thanks to a smuggler connected to Ahmad al-Dabbashi, otherwise known as Al-Ammo, “the uncle,” who had risen from being a wheelbarrow porter to the most famous migrant smuggler in Libya. He was shortly to diversify his business and become a coast guardsman as well.
After his interrogation, Adam returned to Darfur, to the same internally displaced persons camp in which he had grown up. It was still guarded by the same militias that were still killing his people. “We haven’t seen you for a long time,” they said. “Where have you been?” Adam resolved to leave again. He was fed up with being hunted and chased.
When Adam returned to Libya in 2017, the situation had changed. Al-Ammo was no longer a famous smuggler in command of a militia but the head of an anti-migrant force recognized by the GNA. His terkina—a former Italian tuna factory—was now an official detention center for migrants. Rumors of a 5 million euro ($5.9 million) grant from the Italians, though, proved blood in the water, and the sharks circled. Rival smugglers attacked Al-Ammo and expelled him from Sabratha, as 10,000 migrants fled once again, this time from what became known as the Sabratha war, only to be arrested by Al-Ammo’s rivals and caged in deportation centers along the coast.
No matter which commander is in charge, the militia forces have proved themselves to be adept jailors. In 2018, at the EU’s behest, Libya’s so-called search and rescue zone was recognized, allowing the coast guard to expand its area of operations away from the coast. The results were impressive. The number of arrivals in Italy decreased from 181,000 in 2016 to just 23,000 in 2018.
Officially, the EU condemns the arbitrary detention of migrants in Libya, which is still not a signatory to the 1951 convention. In reality, of the approximately 500 million euros ($590 million) the EU has given to the GNA since 2016, some proportion has gone to the coast guard. It’s the numbers that matter. In 2018, one high-level EU official told us that “our goal is for the numbers of migrants arriving in Europe to decrease. Our policies are successful. We don’t care about the consequences in Libya or Niger.”
The pandemic has proved the final nail in the coffin for what was once a cornerstone of the liberal international order. In Hungary, Orban’s government has used the virus to intensify anti-migrant rhetoric and justify closing the country’s borders. In March, the Trump administration issued a blanket ban on asylum claims, resulting in more than 20,000 people being deported who would have otherwise sought asylum. While that order was struck down by a federal judge on June 30, the administration issued a new order a week later, barring asylum claims from those countries that have serious outbreaks of COVID-19, amid a raft of other measures.
In Europe, populist politicians have used the pandemic to stoke fears of migrants. Sicily’s regional president, Nello Musumeci, attempted to close all the migrant centers on the island at the end of August—before he was blocked in court—and blamed immigrants for spreading the virus. Musumeci’s rhetoric echoes that of the former interior minister, Matteo Salvini, who is attempting to restart his stalled political career by calling for a halt to all migrant boats landing in Italian waters. Port after port has been turning away migrant boats during the last few months, with front-line states like Malta announcing blanket bans on NGO vessels carrying migrants disembarking on their shores.
This leaves people like Adam trapped. When he returned to Libya, he fell into the same cycle, stuck in abusive jobs that refused to pay him. He resolved to leave, for Niger. In Agadez, he was pushed into the humanitarian site a few miles away from town. There he waits, unwilling to return to the government militias waiting for him in Sudan and unable to get to Europe.
The emphasis on non-refoulement in the legal architecture of refugee law has created a situation in which—thankfully—some people are not returned to war, but neither are they able to make new lives. Instead, they are caged in camps and detention centers and effectively left stateless.
In Libya and Niger, UNHCR has effectively become a proxy for the EU, its second-largest donor. It’s not entirely UNHCR’s fault. Even before the pandemic, of the 50,000 registered refugees and asylum-seekers in Libya, UNHCR was only able to resettle 2,000 people per year, mainly to Europe, due to governments’ reluctance to accept refugees. In such a mismatch between demand and supply, UNHCR has focused on keeping refugees warehoused.
The 1951 convention is no longer fit for purpose. In 1949, a group of intellectuals, including Albert Einstein—himself a refugee—and Bertrand Russell wrote a public letter to U.N. Secretary-General Trygve Lie suggesting a more cosmopolitan way of dealing with refugees. “History made them citizens of the world, and they should be treated as such.” The refugee problem was rather an opportunity, the letter held, to “let the ideal of world-citizenship subsist not exclusively in theories and programs, but also in courageous experimenting and in a genuine respect for the human person.”
The International Refugee Organization (IRO)—the precursor to UNHCR—reacted with hostility to the suggestion of a world passport for the displaced: Refugees were a problem, there were no international rights, and repatriation or resettlement was the only way for refugees to find their place in a world of nation-states. The result, 70 years later, is a growing population of stateless people across the world—the very situation that the IRO and UNHCR were designed to prevent.
Discussions around a Global Compact on Refugees in 2018 might have enabled a real discussion of how to reform the practice of asylum in the 21st century. Instead, there was little change to the current legal framework, and even those changes were spurned by the United States and Hungary. On a map of nation-states painted with an increasingly thick brush, there is no room for asylum, and for those like Adam, the future may be a country he shall never visit.
In December 2019, several hundred Darfuri refugees walked out of the humanitarian site and organized a protest in front of the UNHCR office in Agadez. After three weeks, Niger’s security forces pushed them back to the camp and arrested more than 300 of them, including Adam, who spent two months in prison.
In July 2020, the refugees resumed their protests, this time in the humanitarian site itself. One of their WhatsApp messages this month reads: “7 September, the 50th consecutive day of our peaceful protest to ask our rights to decent life, and the UNHCR didn’t visit the camp. They left us in the desert.”