Last Updated: Friday, 09 December 2016, 15:34 GMT

Recklessly Risking Lives: Restrictive Interpretations of 'Agents of Persecution' in Germany and France

Publisher United States Committee for Refugees and Immigrants
Publication Date 1 January 2001
Cite as United States Committee for Refugees and Immigrants, Recklessly Risking Lives: Restrictive Interpretations of 'Agents of Persecution' in Germany and France , 1 January 2001, available at: http://www.refworld.org/docid/3c58099b10.html [accessed 10 December 2016]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Steven Edminster, U.S. Committee for Refugees Policy Analyst, proposes that the risk of persecution, rather than the identity of the persecutor, should be the primary criterion for evaluating asylum claims. He cites restrictive interpretations of nonstate agents of persecution in Germany and France to illustrate the dangers they pose to asylum seekers when they fear nongovernmental persecutors.

Who is to be considered a refugee deserving of international protection? Some might think this a relatively simple question to answer. But recently, the definition of a refugee set forth in the UN Refugee Convention has become the subject of hair-splitting interpretation. Yet the reading of a few simple words in the Convention has far-reaching implications. These words have the power to grant protection to, and create solutions for, people fleeing grievous human rights abuses. The very same words, however, may also be used to exclude them. Irresponsible, overly restrictive interpretations of the refugee definition may set in motion serious, even life-threatening, consequences for the refugee whose application has been unfairly rejected.

The controversy surrounds the interpretation of the word persecuted in the refugee definition found in Article 1A of the Convention. There, a refugee is defined as a person who,

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.1

Certain countries, most notably Germany, France, and Switzerland, interpret the word persecution to include only human rights abuses that originate with, or are encouraged or tolerated by, governments or "state like" authorities.

This interpretation excludes from consideration for asylum the victims of persecution committed by opposition groups in civil wars, as in Algeria. It also excludes persecuted individuals from countries, such as Somalia, where civil war has disintegrated governmental authority, or from countries, such as Afghanistan, where much of the international community does not recognize the de facto governmental authorities.

The UN High Commissioner for Refugees (UNHCR), the agency charged with overseeing the UN Refugee Convention's implementation, has vigorously protested such restrictive interpretations of the refugee definition.2 A majority of Western European countries pursue policies in line with UNHCR's position.3 Both Canadian and U.S. case law also recognize that nongovernmental entities are equally capable of abusing people and that people fleeing such abuse are entitled to protection.4

It is too soon to tell which way the pendulum will swing in the debate on "agents of persecution." The European Union's (EU) joint position on the harmonized application of the definition of a refugee essentially adopted the German and French restrictive approach on agents of persecution.5 Such efforts at "harmonization" often gravitate to the lowest common denominator as the only basis for consensus. However, individual EU member states continue to disagree on the issue. Even as EU member states adopted the so-called joint position, Denmark and Sweden explicitly rejected the restrictive interpretation of agents of persecution. In a statement attached to the document, they wrote that persecution by third parties "may also fall within the scope of the Convention in other cases, when the authorities prove unable to offer protection."6 Denmark, Sweden, and other member states that recognize nonstate persecution added language to the text of the joint position, allowing them to continue to follow "national judicial practice" when confronted with nonstate persecution cases.7

To date, however, implicit criticism from other EU member states, as well as protest from UNHCR and nongovernmental organizations (NGOs), has not changed Germany's position on agents of persecution. Germany continues to deny asylum to persecuted individuals from countries such as Algeria, Afghanistan, and Somalia based on a restrictive reading of the Convention refugee definition. While France has recently liberalized its adjudications of nonstate persecution asylum claims, this trend does not represent an official change in policy, but remains informal and discretionary. As a result, France continues to deny asylum to some victims of nonstate persecution.

Other countries, within the EU and outside it, have yet to formulate a clear policy on agents of persecution. It remains to be seen, for example, whether the newly democratic states of Central and Eastern Europe – still building asylum determination procedures of their own – will take their cue from Sweden's unambiguous policy to accept victims of nonstate persecution, or opt for the restrictive approach of the German, French, and Swiss.

In deciding on a policy, these countries, and indeed many members of the European Union, will have to answer two basic questions that go to the heart of the debate on agents of persecution: Are victims of abuses by opposition groups, local militia, or other private citizens fundamentally less in need, and hence less entitled to, international protection than individuals persecuted by established governments? Is the UN Refugee Convention an inappropriate instrument to address their needs?

The German and French answers to these questions are "yes" on both counts. While officials from both countries advance sophisticated legal arguments to justify their positions on these issues, none of these arguments negates a simple truth: German and French policies on agents of persecution recklessly risk lives. They result in the forced repatriation of people who should be considered refugees by any standard – people with every reason to fear persecution, and worse, upon return to their home countries.

The legal and policy implications of the protection gap for victims of nonstate persecution are also stark. While Germany and France today remain in the minority in their pursuit of restrictive agents-of persecution policies, German and French policies fit neatly with other Western European trends that challenge the very right to asylum and question the continued relevance of the UN Refugee Convention on which the concept of asylum is based.

Agents of Persecution and the Evolution of Fortress Europe

In July 1998, Austria, then the holder of the EU's rotating presidency, submitted a "strategy paper on immigration and asylum policy" for adoption as common EU policy. The Austrian plan immediately incited widespread protest throughout Europe.

Civil liberties groups and the Greens in the European Parliament, among others, charged that its adoption would mean "the end of the Geneva Convention [relating to the Status of Refugees]." Surprised, but taking heed of the criticism, EU-member states backed off, rejecting the Austrian proposal in September 1998.8

Although refugee advocates had fought for this rejection, a palpable irony surrounded the process. The truth be told, most of the proposals in the Austrian plan were hardly new at all. In many respects, they amounted to an all-too-honest admission of where Western European asylum policies and practices already stand today – policies and practices driven by an overwhelmingly restrictionist agenda and an erosion of human rights concerns.

German and French interpretations of agents of persecution are part of this restrictionist trend. Beginning in the 1980s, and increasingly since the end of the Cold War, Western European governments have faced a growing influx of asylum seekers fleeing persecution by nonstate groups in the context of civil wars and other internal conflicts. In response, Germany, France, and Switzerland have found that narrowly reading the refugee definition is a useful tool for limiting the numbers of people who would otherwise be granted asylum and deterring still others from traveling to Europe to apply for asylum.

Austria's asylum proposal provides valuable insight into the other standard methods of deterrence used in Western Europe today. The thrust of the Austrian plan was to keep asylum seekers from arriving in the EU in the first place. It called for protecting refugees in "safe havens" within their own countries,9 a strategy the international community first pursued in northern Iraq after the 1991 Gulf War and again in Bosnia during its civil war. As a second line of defense against the influx of unwanted asylum seekers, the Austrian plan called for containing refugees in their regions of origin10 – similar to the safe third country concept, which stipulates that asylum seekers may be returned to countries through which they traveled where they ostensibly could have sought protection. Finally, should asylum seekers manage to surmount these barriers to entry and not be in the position to be deported either to countries of transit or origin, the Austrian plan called for granting temporary protection within the EU in lieu of asylum, similar to the formula that many Western European countries pursued for Bosnian refugees during the early and mid 1990s. Mandatory repatriation, as was required for Bosnian refugees after the signing of the Dayton Peace Agreement (in some cases precipitously), would follow as soon as circumstances in the country of origin permit.11

If the interests of the vulnerable were truly taken as paramount, these strategies might have some merit. Rarely has this been the case. Far more commonly, parochial political interests have trumped humanitarian concerns: from Bosnia's safe haven experiment ending tragically with the fall of the so-called safe areas of Srebrenica and Zepa in July 1995 and the Bosnian Serb atrocities that accompanied their fall; to cases of "chain deportations" that safe third country laws have set in motion, resulting in the return of asylum seekers to decidedly unsafe countries; to the precipitous return of asylum seekers whose temporary protection had been revoked because their repatriation was deemed "safe."

Like its contents, the rationale for the Austrian plan also has been a common theme circulating among European government officials and various fora for some time. As justification for the Austrian plan, its author, Manfred Matzka, a high-level Austrian interior ministry official, plainly stated to the Guardian newspaper:

We have to recognize that circumstances have changed since the cold-war era of 1951, when the Geneva Convention [relating to the status of refugees] was signed. Most refugees are not these days individuals who flee political persecution. They flee from civil wars like Bosnia, or from violent fundamentalism like Algeria. The Geneva Convention does not give us the proper instrument to deal with this kind of crisis and we need one.12

Matzka's comments provide insight into the logical underpinnings for restrictive German and French interpretations of agents of persecution. As Matzka implied, creating barriers to asylum, including restrictions on the refugee definition, proceeds, in part, from the assumption that the conflicts in the post-Cold War world, such as civil strife in Bosnia or Algeria, produce only victims of generalized violence, not refugees within the UN Refugee Convention's meaning.

Matzka correctly points out that the character of refugee flows has changed since the end of the Cold War. Replacing those who fled across the Iron Curtain to escape oppressive Communist governments have been the victims of bloody ethnic, nationalist, and sectarian conflicts that often pit neighbor against neighbor, rather than state against state, or East against West. But is it logical to deduce from these changes that "persecution" within the UN Refugee Convention's meaning has all but disappeared along with the Cold War as Matzka and others would have us believe?

Agents of Persecution and International Refugee Law

The fact of having fled from civil war is not incompatible with a well founded fear of persecution in the sense of the 1951 [Refugee] Convention. Too often, the existence of civil conflict is perceived by decision-makers as giving rise to situations of general insecurity that somehow exclude the possibility of persecution.13

Guy Goodwin-Gill
The Refugee in International Law

While Goodwin-Gill's lament accurately characterizes Western European attitudes toward many asylum seekers fleeing civil strife, it most aptly describes German and French treatment of Algerians fleeing abuses committed by Algerian radical "Islamic" groups. Algeria has experienced its share of random violence during the past six years. But to label Algeria's current blood-letting solely as generalized violence, in which all citizens are at equal risk of purely random attacks, is to grossly mischaracterize, and overlook the complexity of, a conflict that has produced its share of persecuted victims.

Consider the case of "Leila", a young professional woman of Algerian nationality, who began receiving threatening letters from Algerian "Islamic" extremists in 1995. The letters ordered her to dress in clothes more modest than her normal Western-style attire, cover her head, and wear a veil. They also demanded that Leila, a public health worker, stop advocating for contraception to prevent the spread of AIDS. If she did not submit to these demands, the letters said that her throat would be slit. Leila's persecutors soon moved beyond threats, blowing up her car while she worked in her office nearby. Two men attacked her on the street several weeks later, leaving her battered and bruised with yet another note containing a death threat.

Similar to many refugees who fled the oppressive regimes of the Soviet bloc during the days of the Cold War, Leila had been individually persecuted and had compelling reasons to fear for her life. Yet unlike those fleeing communist authoritarianism before her, Leila's request for protection was brushed aside. The German refugee office denied her request for asylum, claiming that the UN Refugee Convention only protects victims of persecution committed by states. Governments must, at a minimum, be indirectly accountable for the human rights abuses of nonstate agents to rise to the level of persecution (through complicity or toleration of abuses committed by third parties), according to the German point of view. Judging that the Algerian government has "used all means at its disposal" to fight the militant opposition, German officials contend that the Algerian authorities cannot be held responsible for the abuses that Leila and others like her have suffered. That Leila had endured persecution, and that the Algerian government could not effectively protect her was irrelevant.

Apart from the evident gulf between such legal requirements and real human need, a gap also exists between the German and French positions on agents of persecution and international refugee law. Although the UN Refugee Convention does not specifically address the question of agents of persecution, UNHCR, the agency charged with supervising the Convention's application, has consistently taken the position that persecution perpetrated by nonstate entities may fall within the Convention's meaning. In its Handbook on Procedures and Criteria for Determining Refugee Status (along with UNHCR's Executive Committee Conclusions, the Handbook is generally accepted as providing the main international guidelines for interpreting the UN Refugee Convention), UNHCR states that:

Persecution is normally related to action by authorities of a country.

It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned ... Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities or if the authorities refuse, or prove unable to offer effective protection.14 [Emphasis added.]

In a September 1995 report, An Overview of Protection Issues in Western Europe, UNHCR elaborated on its position, finding that a close reading of the Convention refugee definition itself supports the inclusion of persecution committed by nonstate actors. An individual with a well founded fear of persecution will be considered a refugee within the UN Refugee Convention's meaning, UNHCR points out, if he or she is "unable or, owing to such fear, is unwilling to avail himself of the protection" of his country of origin. [Emphasis added.]

According to UNHCR, the wording of the Convention refugee definition itself – expressing the notion that certain individuals may be unable to avail themselves of the protection of their countries of origin – accounts for the real possibility that certain governments may not be able to protect their citizens from persecution by private parties. "Thus the essential element for the extension of international protection," UNHCR concludes, "is the absence of national protection against persecution ... "15

UNHCR also affirmed that the "object and purpose" of the UN Refugee Convention supports the inclusion of nonstate persecution in its mandate. According to the Vienna Convention on the Law of Treaties, "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose."16

The ordinary meaning of the term "persecution," UNHCR states, is that "it embraces all persecutory acts irrespective of whether or not the complicity of the state is involved."17 UNHCR adds that "the object and purpose of the 1951 [Refugee] Convention is to ensure that individuals who have a well-founded fear of persecution on the grounds enumerated in the Convention be granted international protection as a substitute for the, lacking, national protection [sic]."18 Based on this logic, UNHCR concludes that refusing to consider victims of nonstate persecution for refugee status clearly contravenes the object and purpose of the UN Refugee Convention.

Various experts on international refugee law and reputable nongovernmental refugee organizations agree with UNHCR's position. "[T]he issue of State responsibility for persecution, relevant though it may be in other circumstances, is not part of the refugee definition," Goodwin-Gill observes.19 Similarly, James Hathaway states that beyond persecution acts "carried out by entities with which the state is formally or implicitly linked, persecution may also consist of either the failure or inability of a government effectively to protect the basic human rights of its populace."20

Several countries, including Austria, Belgium, Denmark, Finland, Greece, Ireland, the Netherlands, Portugal, Spain, Sweden, and the United Kingdom, subscribe to UNHCR's approach. Perhaps in the clearest stand on the issue, Sweden revised its Aliens Act in 1996 (in force since January 1, 1997), explicitly stating that the refugee definition "applies irrespective of whether persecution is at the hands of the authorities ... "21 Similarly, in recognizing the nonstate persecution asylum claim of an Algerian asylum seeker, the United Kingdom's Immigration Appeal Tribunal remarked that the real question is not whether the State authorities are doing the best they can in all the circumstances, but whether viewed objectively the domestic protection offered by or available from the State to the appellant is or is not reasonably likely to prevent persecution.22

In the 1993 case, Attorney-General of Canada v. Ward, the Canadian Supreme Court ruled that state complicity is not a requirement for refugee recognition within the UN Refugee Convention's meaning.23 In McMullen v. INS (1981), the U.S. Board of Immigration Appeals also noted that "persecution within the meaning of [Section] 243(h) [essentially a restatement of the UN Refugee Convention's Article 33 bar on refoulement] includes persecution by nongovernmental groups ... where it is shown that the government of the proposed country of deportation is unwilling or unable to control that group."24 In a 1998 decision, the U.S. Court of Appeals for the Ninth Circuit in Korablinda v. INS used similar reasoning in granting asylum to a Ukrainian woman, whom members of an ultra-nationalist group in Kiev had repeatedly beaten and harassed because she was Jewish.25

The German Protection Gap

Despite the compelling protection needs of many, Germany denies asylum to the overwhelming majority of victims of nonstate persecution. The German Refugee Office maintains that states must, at a minimum, be indirectly accountable for the human rights abuses of nonstate agents to rise to the level of persecution within the UN Refugee Convention's meaning.26 According to the German position, the state may be held accountable for the human rights violations of third parties only if it sanctions, or tolerates, these acts. Thus, the Refugee Office's approach effectively excludes asylum seekers persecuted by third parties in civil wars and other internal disturbances where the state is willing, but nevertheless unable, to provide effective protection, as is the case in Algeria today.

Germany's denial of asylum to persecuted individuals from countries where effective governance has ceased to exist – as in Somalia, Sierra Leone, Angola (in the past also Liberia, Bosnia, Congo/Zaire) – is even more clear cut. German logic holds that persecution within the UN Refugee Convention's meaning ceases to exist when the government disappears. Persecution also vanishes in countries such as Afghanistan, where Germany does not recognize the de facto authorities as functioning like a government or a state-like authority. The Federal Administrative Court, Germany's highest administrative court, has often upheld the Refugee Office's restrictive approach.27

Refugee recognition rates for certain nationalities shed light on the considerable impact of Germany's restrictive approach. Of the 1,417 Algerians whose cases were decided in 1997, the German Federal Office for the Recognition of Foreign Refugees (hereafter "Refugee Office") recognized only 49 applicants as refugees, or 3.6 percent of the caseload. The Refugee Office's recognition rate for Algerians fell to 1.1 percent in 1998 (of the 2,312 applicants whose cases were decided, only 27 were recognized as refugees). Germany's denial of asylum to Algerian asylum seekers contrasts sharply with the more generous approach of other countries. Approval rates for Algerians nations, in the United States, the United Kingdom, and Canada stood at 92 percent, 90 percent, and 74 percent, respectively in 1998.28

Afghans have fared almost as poorly as Algerians in the German asylum procedure recently. On November 4, 1997, the German Federal Administrative Court ruled that Afghanistan's Taliban militia neither constitutes a government nor a state-like authority that is capable of perpetrating persecution within the meaning of the UN Refugee Convention. The landmark decision reversed numerous lower court decisions that recognized the Taliban as a de facto government. After the Federal Administrative Court ruling, German refugee recognition rates for Afghans plummeted, from 19.3 percent in 1997 to just 4 percent in 1998. Moreover, almost all of the Afghan applicants that Germany granted asylum in 1998 were the spouses and minor children of Afghans granted asylum in previous years, not new cases of Afghans claiming persecution at the hands of the Taliban.

German Refugee Office and court decisions on Algerian asylum cases aptly demonstrate the wide gap between the German legal stance on agents of persecution and genuine human need. German officials have denied asylum to women whom radical "Islamic" groups have physically attacked and individually threatened with abduction and murder; members of Algeria's government and security forces who have also been attacked and received death threats; and others recruited by both the militant Islamists and the government and threatened by both for declining.

That the Algerian government often cannot protect victims of nonstate persecution effectively is not seriously considered in most German asylum determinations of Algerian applicants. In some cases, German Refugee Office adjudicators and asylum judges gloss over the issue, asserting that the Algerian government is generally able to protect its citizens but providing no evidence to substantiate this assertion. Some asylum adjudicators add that no state can protect its citizens all of the time. Others invoke the concept of "internal flight alternative," recognizing that while the asylum applicant may not be safe from "Islamic" groups in one part of Algeria, he or she could – and thus should – have relocated to another "safe" part of the country.

These justifications for denying asylum to Algerians targeted by "Islamic" groups are all the more remarkable because the German Refugee Office has acknowledged that certain groups are particularly at risk of attacks by "Islamic" militants and that there is no internal flight alternative for at-risk groups. In a June 1998 report, the German Refugee Office states that "certain groups of persons, for example, police, government workers, judges, trade union officials, as well as journalists, artists, and intellectuals actively advocating a secular state, are particularly at risk of becoming the victims of attacks [by 'Islamic' extremists]." [unofficial translation]29 The report also recognizes that women leading Western lifestyles and women pursuing certain careers – teachers and journalists, for example – are also particularly at risk.30

France's Mixed Treatment of Non-State Persecution Claims

French treatment of nonstate victims of persecution has marginally improved in recent years. This is reflected in the asylum approval rates for nationalities whose asylum claims typically involve nonstate persecution. In 1997, France approved the asylum applications of Afghan nationals at a rate of 72.4 percent. Approval rates for Bosnians and Somalis stood at 44.4 percent and 42.6 percent, respectively. The refugee recognition rate for Algerian asylum applicants, however, remained at a modest 4.2 percent in 1998.

France's current official position on agents of persecution dates back to the case of Esshak Dankha (May 27, 1983), in which France's High Administrative Court (Conseil d'Etat) recognized only persecution that originates with, or is encouraged, or tolerated, by the state authorities.31 Similar to Germany, the French position on agents of persecution until recently has meant that France denied asylum to individuals persecuted by opposition groups, such as militant "Islamic" groups in Algeria, irrespective of how serious their protection problems may have been.

Unlike Germany, however, France has adopted a relatively liberal approach to what constitutes a de facto authority capable of perpetrating persecution. For example, France has recognized acts carried out by militia in Bosnia as persecution under the UN Refugee Convention, finding that such persecution derives from the de facto authorities who have replaced the legal authorities no longer able to control all the territory within their jurisdiction. France has also recognized the existence of de facto authorities in Southern Lebanon, Liberia, and Afghanistan.32 However, France continued to deny asylum to applicants from countries where it determines that no de facto authorities exist, such as Somalia (with the exception of Somaliland).

The Conseil d'Etat confirmed its approach on the question of agents of persecution originally set forth in the Dankha decision twice in 1996. In the case of Abid (January 31, 1996), the Conseil d'Etat decided that "even if [the threats of an armed group] could have been established," the applicant still would not qualify for refugee status under the terms of the UN Refugee Convention.33 In Medjebeur (June 19, 1996), the Conseil d'Etat upheld the decision of the Refugee Appeals Board (Commission des Recours des Refugies, CRR), which had denied refugee status to an Algerian national because the Algerian government "had not voluntarily tolerated" the abuses committed by an Algerian armed opposition group.34

While France's protection gap is not as wide as in Germany, cases such as Medjebeur show that some individuals with compelling protection problems still fall through the cracks. France's agents-of-persecution policy has been pernicious for Algerians and other victims of nonstate persecution whose governments are unable to protect them. But here too the situation is improving.

With the heightened press coverage of the massacres in Algeria in 1997 and early 1998, France has modestly liberalized its interpretation of agents of persecution for such refugees. Certain French asylum officers and judges have begun to approve some victims of nonstate persecution on the grounds that the authorities tolerated the persecution ("tolerance voluntaire") or because they determined that the victim's request for protection of the Algerian government would have been in vain ("vanité de protection").

Although the concept of tolerance voluntaire does not break with the jurisprudence of the Conseil d'Etat, French asylum officers and judges have begun to apply the concept more frequently to the Algerian situation (note that in the above-mentioned Medjebeur case, the Conseil d'Etat found that the Algerian state had not voluntarily tolerated the persecution of the applicant by nonstate agents). Increasingly since the beginning of 1997, the CRR has ruled that the Algerian authorities had tolerated persecution by radical "Islamic" groups in cases where the victim had sought the authorities' protection, but the authorities had refused to intervene. One observer of CRR case adjudications noted that some asylum judges have gone to great lengths to stretch the notion of tolerance voluntaire to grant asylum to Algerians persecuted by nonstate agents, even in cases where state toleration of the persecution was not in evidence.

Similarly, the CRR has granted asylum to a growing number of Algerian victims of nonstate persecution in cases where the Algerian authorities were, on some level, aware of the victim's predicament – even though the victim had not lodged a formal complaint with the authorities – but had "deliberately abstained" from providing protection.

While tolerance voluntaire clearly fits within the framework of Conseil d'Etat jurisprudence, the concept of vanité de protection, despite the denials of French officials, appears to break with it. In several recent Algerian asylum cases where the applicant had not requested the Algerian government's protection from third party persecution, the CRR has nevertheless granted asylum, arguing that such efforts would have been in vain, or would have exposed the applicants to increased danger. The notion that it would have been in vain for an applicant to request the protection of his or her government appears to accept the reality that the Algerian government is, at least in certain cases, unable to offer effective protection to its citizens, despite its alleged willingness to do so. CRR approved some 30 to 40 Algerian cases involving nonstate persecution under the rubric of vanité de protection during the first six months of 1998.

However, this positive trend does not represent a stated change in policy, but remains informal and discretionary. Some French asylum officers and judges continue to deny Algerian victims of nonstate persecution. Nor have other nationalities equally benefitted from this more liberal interpretation of agents of persecution.

Some observers say it is no accident that the French government keeps its more liberal approach toward Algerian asylum applicants informal and unpublicized. While media coverage of events in Algeria has motivated French officials to grant protection to more Algerians, the fear that this approach, if transformed into official public policy, would attract a large influx of Algerian asylum seekers worries French officials, said one observer. Others contend that political considerations, such as the increasing popularity of Jean Marrie Le Pen's anti-foreigner National Front (particularly in southern France), also explain the French government's ambivalence about asylum for Algerians. Mathieu Oudin, a representative of France Terre d'Asile, which provides legal advice to asylum seekers, that if the French government has changed its policies to better protect vulnerable Algerians, "it should be proud and do it officially."

Deportations of Algerians Continue from Germany and France

Despite repeated UNHCR and NGO appeals, both Germany and France continue to forcibly repatriate Algerians denied asylum based on restrictive interpretations of agents of persecution.

Germany has issued expulsion orders to an estimated 6,000 to 7,000 rejected Algerian asylum seekers. When it denied temporary protection on a group basis to Algerians in February 1998, the German government nevertheless agreed to review the cases of Algerian applicants slated for deportation individually, in accordance with a German Foreign Office recommendation. Without any change in methodology for evaluating such cases, however, the review resulted in the suspension of only a handful of deportations. Moreover, Uli Sextro, of Diakonisches Werk, pointed out that two German states (Rheinland-Pfalz and Saarland) actually stepped up their deportation efforts in April 1998, rounding up about 120 rejected Algerian asylum seekers and busing them to the Algerian embassy in Bonn to process their paperwork for readmission to Algeria. These actions came just two months after the Muslim holy month of Ramadan, during which "Islamic" groups massacred 2,000 people.

In rejecting an Algerian asylum applicant's case in October 1998, the High Administrative Court for the German Land of Rheinland-Pfalz ruled that Algerians may be forcibly repatriated,35 despite Algeria's high death toll and unsafe conditions. Germany forcibly repatriated 504 Algerians in 1997 and an additional 93 during the first three months of 1998.36

A steady stream of 10 to 20 Algerians are deported each week from Marseille, France. In a July 29, 1998, interview with this author, Hervé Gwyer, a CIMADE representative working at the Arenc detention center for foreigners, said that the French authorities deported 813 Algerians from Marseille in 1997. Gwyer estimated that about 30 percent of the Algerians returned from France have protection problems upon return, the danger overwhelmingly emanating from "Islamic" groups.

Conclusions

The risk of persecution, rather than the identity of the persecutor, should be the primary criterion in evaluating nonstate persecution asylum claims. In a March 1995 note on agents of persecution, UNHCR said, "The essential issue in establishing the basis and justification for the extension of international protection is the fact of an absence of national protection against persecution."

Events in Algeria, Afghanistan, and Somalia clearly demonstrate that nonstate entities, such as militant "Islamic" opposition groups, often possess the unhindered ability and willingness to persecute based on race, religion, nationality, social group, and political opinion. "Persecution that does not involve State complicity is still, nonetheless, persecution," UNHCR added in its March 1995 note.

Despite UNHCR's praiseworthy policy positions on agents of persecution, UNHCR has failed to match its rhetoric with deeds. Because advocacy efforts to date have failed to produce a change in German (and to a lesser degree French) policy, the U.S. Committee for Refugees (USCR) proposed to UNHCR in a September 3, 1998 letter that it grant mandate refugee status and refer for third-country resettlement Algerian refugees whom Germany and France have unjustly denied asylum on the basis of their restrictive interpretations of agents of persecution. While UNHCR's office in Germany intervened to protect a limited number of nonstate persecution victims on an ad hoc basis in 1998, UNHCR's headquarters in Geneva rejected USCR's proposals as unworkable, arguing that "protection is primarily the responsibility of States, and our role is to encourage its proper fulfillment by States, not to substitute for them." UNHCR also said it lacked the resources to implement USCR's proposals and correctly noted that UNHCR would have to consider the plight not just of Algerians, but other victims of nonstate persecution.

UNHCR's excuses for inaction stand in sharp contrast to its strong public statements asserting a genuine need to protect Algerian and other nonstate persecution victims. In September 1997, UNHCR itself noted that "a significant number of those currently fleeing Algeria are in genuine need of international protection."37 While UNHCR argues over who is responsible for the welfare of these refugees, Germany and France continue to repatriate them. UNHCR cannot give up its own responsibility to protect refugees simply because states have abdicated their own. UNHCR is often a refugee's last line of defense against refoulement. It is therefore incumbent on UNHCR to pursue creative solutions to refugee problems, even when such solutions pose political, resource, and logistical problems of their own.

The United States and other resettlement countries should also work to resettle Algerian and nonstate persecution victims of other nationalities from Germany, France, and Switzerland.

UNHCR is obliged to designate bona fide refugees as "mandate refugees" Germany, France, or other states reject them based on a misreading of the Refugee Convention definition. UNHCR should refer such countries for third-country resettlement in the United States, Canada, and other resettlement countries. The U.S. government could also ease the burden on UNHCR's resources by creating a "Priority Two" refugee processing category for victims of nonstate persecution whose claims have been rejected because their well-founded fear of persecution was at the hands of nonstate actors.

State Department refugee officials have shown reluctance to resettle Algerian refugees and certain other nationalities from Western Europe because it might weaken incentives for Western European governments to take responsibility for granting these groups asylum. This argument is weak. First, the policy clearly is not working with respect to Algerians. Germany in particular is not protecting Algerian victims of nonstate persecution and does not appear inclined to change its policy. In a November 14, 1998, interview with the German newspaper Tagesspiegel, incoming Interior Minister Otto Schilly ruled out the possibility of a change in Germany's policy on agents of persecution, remarking that immigration would be out of control were Germany to recognize nonstate persecution.38 Denying Algerian refugees other solutions, such as resettlement, holds them hostage to what essentially is a failed policy.

Undoubtedly, Germany has been saddled with far greater refugee numbers than its European neighbors. Europe's and the international community's failure to devise sensible ways to share the burden of hosting refugees equitably is, in part, responsible for inducing Germany and others to pursue restrictive refugee policies. In this context, resettlement of Algerian and other victims of nonstate persecution from Germany would help promote equitable burden sharing. This, in turn, might encourage Germany to comply with international refugee protection standards.

The premise that resettling Algerians from Germany would necessarily reduce the German government's incentives to take responsibility for granting asylum to them or other needy refugee groups is also questionable. Resettling Algerian refugees persecuted by nonstate agents – coupled with public and official criticism of countries that do not offer such protection – might actually help to leverage or shame countries such as Germany into a proper response.

Endnotes

1 1951 Convention Relating to the Status of Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, p. 58.

2 UNHCR Regional Bureau for Europe, An Overview of Protection Issues in Western Europe: Legislative Trends and Positions Taken By UNHCR (European Series, Vol. 1, No. 3) pp. 27-30.

3 Persecution by Third Parties, (Centre for Migration Law, University of Nijmegen, May 1998). Persecution by Third Parties provides an excellent comparative report on several European Union countries' and Canada's positions on "agents of persecution." Note Relative a la Notion d'Auteurs de Persecution, UNHCR Branch Office for France (October 22, 1997) p. 2.

4 For an analysis of Canadian case law on "agents of persecution," see: Persecution by Third Parties, pp. 40-45. For an analysis of U.S. case law on the issue, see: Thomas Alexander Aleinikoff, David A. Martin, Hiroshi Motomura, Immigration: Process and Policy (West Publishing Co., St. Paul, Minn., 1995) p. 846.

5 Joint Position Defined by the Council on the Basis of Article K.3 of the Treaty on European Union on the Harmonized Application of the Definition of the Term "Refugee" in Article 1 of the Geneva Convention of 28 July 1951 Relating to the Status of Refugees (EU Joint Position, doc 11786/95).

6 Ibid, (Annex II).

7 Ibid, (Article 5.2 of the Joint Position).

8 "Strategy Paper on Immigration and Asylum of the Austrian Presidency Provokes Waves of Protest," Migration News Sheet, (No. 187/98, October 1998) p. 1.

9 Martin Walker, "EU proposals for refugees will 'wipe out asylum rights,'" The Guardian (September 4, 1998).

10 Ibid.

11 Ibid.

12 Ibid.

13 Guy S. Goodwin-Gill, The Refugee In International Law, (Clarendon Press, Oxford, 1996) p. 75.

14 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, (UNHCR Geneva, 1979, Reedited January 1992) p. 17.

15 An Overview of Protection Issues in Western Europe: Legislative Trends and Positions Taken By UNHCR, p. 28.

16 Barry E. Carter and Phillip R. Trimble, International Law: Selected Documents and New Developments, (Little, Brown and Company, 1994) p. 62. Article 31 (1) of the Vienna Convention on the Law of Treaties. Concluded at Vienna on May 23, 1969. Entered into force on January 27, 1990.

17 An Overview of Protection Issues in Western Europe: Legislative Trends and Positions Taken By UNHCR, p. 29.

18 Ibid, p. 29.

19 Guy S. Goodwin-Gill, p. 73.

20 James C. Hathaway, The Law of Refugee Status, (Butterworths Canada Ltd., 1991) p. 127.

21 Persecution by Third Parties, p. 19.

22 Ibid, p. 20.

23 Ibid, p. 20.

24 Aleinikoff, Martin, Motomura, p. 846.

25 Korablinda v. INS, No. 97-70361, 1998 WL 736477 (9th Cir. October 23, 1998).

26 The argumentation that German Refugee Office officials use to justify the denial of Algerians claiming persecution by nonstate agents is typically boiler plate text. For example, one representative case reads as follows: "The applicant's application for asylum is denied. Political persecution normally emanates from the state, or at least is an act for which the state bears responsibility." [unofficial translation]

27 Persecution by Third Parties, pp. 51-56.

28 Global asylum application and refugee status determination statistics, 1998 (UNHCR, Geneva, June 9, 1999).

29 German Federal Office for the Recognition of Foreign Refugees, Algerien: Aktuelle Menschenrechtslage und Rueckkehrgefaerdung (Nuernberg, June 1998) p. 19.

30 Ibid, p. 13.

31 Conseil d'Etat, Decision N. 42.074, May 27, 1983.

32 Persecution by Third Parties, p. 30.

33 European Council on Refugees and Exiles (ECRE), "Half Yearly ECRE Report: France," Minutes and Conference Papers from the ECRE Biannual General Meeting (Lausanne, October 5th and 6th, 1996).

34 Ibid.

35 "Abschiebung nach Algerien zulaessig," Frankfurter Allgemeine Zeitung (Frankfurt, October 20, 1998).

36 German Federal Office for the Recognition of Foreign Refugees, Algerien: Aktuelle Situation und Rechtsprechungsuebersicht (Nuernberg, June 1998) p. 41.

37 UNHCR press release, UNHCR Warns Against Deportation of Algerian Asylum Seekers (Washington, D.C., September 18, 1997).

38 Migration News Sheet (December 1998) p. 3.

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