"Operationalising Protection" - Statement by Mrs. Erika Feller, Director, Department of International Protection, to the Fifty-sixth session of the Executive Committee of the High Commissioner's Programme (Geneva, 5 October 2005)

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Mr. Chairman, Distinguished Delegates, Ladies and Gentlemen,

My presentation will be devoted to how protection is operationalised by UNHCR, this being the main focus of the Note on International Protection, which I am to introduce to you. The Note spotlights what protection is and is not, together with the context, often hostile, in which it has to be delivered. The 2005 context for protection has been, for example, one of banditry and murder in Lukole refugee camp in Western Tanzania, as well as a major deterioration in security in West Darfur, with the most recent large-scale destruction of the IDP camp in Aru Sharow leaving over 30 dead and 10 persons seriously injured. The environment has also been one of arbitrary arrest of lawyers UNHCR has been sponsoring to take up cases such as those of women in Darfur, raped and made pregnant, then imprisoned by a local system which does not want to acknowledge this for the crime that it is. It includes, too, the cold-blooded executions of teenage boys by irregular armed groups in Colombia, in an effort to intimidate communities fleeing violence and insecurity. Part of the context, as well, are the decomposing bodies washed ashore on beaches in the Mediterranean and the Gulf of Aden, some with hands bound as the guarantee of no escape, even from drowning. Finally, let me not leave out of the context the very disturbing accounts of people being denied entry in a State where they had previously resided and blocked from entering the State where they had been born, raised and lived, because they were deemed stateless.

The Note on International Protection

Not uncharacteristically, the 2005 Note describes a picture of sharp contrasts: one of high rates of voluntary return and falling asylum numbers, but also of protracted refugee situations and waning generosity on the part of certain host States. Abuse of children, violence against women, refoulement of refugees and restriction of basic rights, such as freedom of movement, are endemic in many displacement situations. There has been marked progress in the building of asylum systems in a number of host States, while others have tightened their controls, for anti-terrorism reasons and because of an increasingly complex migratory situation. Refugees have been repeatedly mis-characterised as criminals or "possible terrorists", or as illegal migrants whose protection is a secondary issue. The problem of statelessness is now better appreciated, but its implications for the affected persons are still awaiting a more concerted international response. Situations of internal displacement are numerous, protracted and replete with serious protection concerns, even while there are some encouraging signs due to the growing spirit of collaboration among UN agencies and partners.

The Note presents all this information within the frame of the goals and objectives for international protection set by the Agenda for Protection, which was endorsed by this Committee in 2002, and subsequently welcomed by the General Assembly. The High Commissioner has reaffirmed UNHCR's commitment to the Agenda for Protection, and the Note has also to be read as a record of how this Agenda is integral to the interventions pursued by UNHCR in the field.

Operationalising Protection

The theme of "operationalising" protection has been chosen, because this is of central interest to this Committee. Operationalising protection means giving effect to UNHCR's protection mandate. States have conferred on the Office a quite specific mandate, one that allows for no choice in whether to implement it; it is obligatory, not discretionary in its character. We understand why, on occasion, the exercise by UNHCR of its protection responsibilities may be uncomfortable for some governments. This is inherent in a mandate which requires UNHCR not only to provide assistance and technical advice, but also to step in to defend the rights of refugees where these are in jeopardy, including in the face of inaction, inability, or deliberate acts of concerned State actors. UNHCR does this as a humanitarian, non-political act, as the agent of the international community. No judgement is implied going beyond that the situation of persons of concern to UNHCR demands such a protection intervention. States have formally declared – and this in the 1951 Convention – that giving asylum cannot be construed as a hostile act. It is a humanitarian necessity.

Operationalising protection is, therefore, essentially about how problems are addressed through protection delivery in the field. Protection is by no means always optimally achievable. There are numerous obstacles confronting protection delivery, many of which are external to UNHCR and often not within our power to ameliorate sufficiently, much less to remove. I referred to them in my statement to the Standing Committee in June. The fact that some States are more receptive to assistance than protection and, hence, are very inconsistent in their cooperation with protection efforts, is one such obstacle. Others include the adverse security environment for protection delivery, which regularly entails refugees having to find refuge in areas too close to unresolved or ongoing conflicts, in camps which are extremely difficult to police, and whose civilian character can become seriously compromised by combatants also taking shelter there.

The terrain is quite often inhospitable, remote and ecologically unable to sustain a population influx. Major logistical difficulties result, impeding proper access to the refugees and the longer-term viability of their stay. There is also the inability or the disinclination of many host States to offer asylum and protection on adequate terms, so that stay is precarious, and the incentive is strong for the refugees to seek solutions elsewhere. The solutions themselves, because they depend so much on the evolution of the situation in home countries, and additionally on the will and cooperation of all concerned States, are hostage to events the Office cannot determine.

The Note on International Protection draws attention to examples of the more innovative efforts of field offices to deliver protection. The first point of contact with refugees and asylum-seekers, be it on the high seas, at borders or in reception centres, was a particular focus for field efforts. Conditions in camps, including food insecurity, health concerns like HIV-AIDS, and physical security and gender violence, were prominent among the field priorities. The Note reports progress in the area of registration and documentation, partnership activities with refugee communities and civil society groups, and interesting initiatives to use media, educational materials, the Internet and theatre techniques as tools for better protection. Protection networks, security packages and SGBV-focused initiatives were all represented in the measures taken. A more strategic approach to durable solutions, notably the resettlement solution, built around groups and comprehensive action planning, was an important direction for field programmes. Protection "writ large" was the guiding principle, meaning also that the assistance-to-development continuum and peace education, confidence-building, mediation and transitional justice issues featured in programme implementation and inter-agency cooperation.

Let me now turn to the more internal hurdles to operationalising protection. These stem, variously, from staffing and resources constraints, structural imbalances and personnel dilemmas.

I believe that action in six key areas is warranted, for protection to be considered internally "operationalised" and "mainstreamed", in the sense that we understand these words. First, as the High Commissioner noted, there is a need to improve synergies between "operations" and "protection" managers. This has to involve some restructuring of the field support functions provided by Headquarters, as per suggestions already tabled. The restructuring has to be accompanied by review and bringing together the various initiatives in place to give strategic direction and stronger support to the work of UNHCR offices (notably the Agenda for Protection, the Global Strategic Objectives framework and the various Standards and Indicators, as well as the findings of the Age and Gender Mainstreaming Pilot). In this regard, how UNHCR will be participating in an invigorated UN collaborative response to IDPs has to be part of this review process. There is a need, too, to ensure that programme planners conceptualise their activities from the perspective of protection impact. Site planning, the mapping of water points and food distribution are but three examples of activities with direct protection implications, especially for women and girls. The proposed new Division of Protection Services will draw expertise on age and gender mainstreaming into the Headquarters protection structure, ensuring greater cohesion between protection and community services functions. Management and operations-related training programmes also require a second look to ensure that they are more explicitly framed with protection in mind.

Secondly, protection delivery has to be located more consequently within an overarching strategic country framework. We are working currently on improving and extending the reach of the Protection Management Workshops and ensuring that the Annual Protection Reports become an integral part of the country operations planning process, thereby establishing a more direct link between protection accountability and resource allocation. Resolute use of the programme of activities outlined in the Agenda for Protection, maximizing the potential of the Convention Plus initiative, and putting into practice methodologies for analysing protracted refugee situations, using the Framework for Durable Solutions, will be pursued.

Common directions for protection efforts as between States, UNHCR and its partners, based on an agreed understanding of what constitutes effective protection, should be aimed at. However, the challenge here should not be underestimated. Differences over this issue, among others, plagued the work of the Convention Plus Core Group on Irregular Secondary Movements.

The third element of mainstreaming is capacitating staff to deliver protection up to expectations and managers to "manage" the protection function in all its aspects. UNHCR's protection culture must be rooted in the meaningful participation of refugees and others of concern in identifying their protection needs, as well as initiatives to address them. We will also need to further develop our protection training programmes, and tailor them to different levels of need and knowledge requirements. Providing re-training opportunities for non-protection staff could help to widen the pool of protection officers and diversify their skills profiles. We are also looking at what are the appropriate links to be made between demonstrated knowledge and protection skills, promotions, placements and managerial appointments, including of Representatives. The current approach to protection training is being revamped to develop and deliver a wider range of protection workshops and courses (such as on Exclusion and Cancellation of Status) to complement the more comprehensive Protection Learning Programmes. We will also be working with OCHA, ICRC and NGO partners, such as NRC, on training specific to IDP situations.

Minimizing the scope for abuse of protection tools is a fourth element of internally operationalising sound protection. Some initiatives here already underway, or in the planning, relate to managing abuse and fraud in refugee status determination and resettlement processes. We are also looking again at the procedures for exclusion in the refugee status determination process, as well as ensuring broad dissemination and adherence to the so-called Urban Trilogy guidelines prepared by the Emergency and Security Service – complemented with specific training on these guidelines, which are, respectively:

• Safety guidelines for handling individual cases in an urban context;
• Safety guidelines for handling threats, intimidation and verbal abuse from refugees; and
• Guidelines for handling protests, demonstrations and other group incidents from refugees.

The fifth element of operationalising protection is ensuring that resources available are adequate to the tasks. To perform effectively, it is clear we need to have the right people in place, at the right time, with the necessary competencies equal to the task. There is no such thing as a prototype UNHCR job. Different combinations of skills sets and experiences are required. We have had occasions in the past to exchange views with this Committee on the dilemmas here. Protection means presence, which in turn means adequate staff on the ground and a proper budget to support their activities. There are possibilities here that go beyond simply creating new posts. These could include, for example, revisiting UNV arrangements to explore how more reliably to retain accumulated expertise; using more national staff for protection-related activities and enabling the recruitment of staff with a protection profile at middle levels of management, including through more proactive "head-hunting" in the field. As you are aware, we created deployment schemes several years ago to augment field capacity, which I venture to say have served UNHCR very well. Some of you feel, however, that they serve us too well in that they have become an indispensable adjunct to regular programs in a number of locations, not an "extra" to meet unforeseen, short-term needs. Hence we have been reviewing how to create an "in-house" protection deployment capacity going beyond existing emergency deployment schemes, to complement the Surge and RSD deployment projects. Partnering more strategically with NGOs in the doing of protection, based on memoranda of understandings, or similar agreements defining the basic parameters of collaboration, is a further possibility currently being considered.

The sixth and last element of operationalising protection involves realizing greater access to durable solutions, including through increased use of resettlement. There will be consolidation of solutions-support functions in the Division of Protection Services. Mainstreaming of the Convention Plus initiative – so as to achieve it as of 1 January 2006 – is under way. The resettlement function is to be upgraded through the creation of the new Resettlement Service, from the beginning of next year. We would like to extend the concept of the Resettlement Hubs to other regions and pursue new resettlement countries in other parts of the world. We shall continue to foster greater acceptance of group identification and resettlement, while also expanding cooperation with NGOs in the resettlement process. Since 2003, when the group resettlement methodology was launched, UNHCR has resettled 25,000 refugees through this innovative approach, mainly out of West and East Africa.

Protection Priorities

Mr. Chairman, I have focused to this point on operationalising protection. Let me turn briefly to what I believe is a related aspect of interest to some of you: the issue of priorities. There is a sense, we know, that "legal" protection is sometimes accorded too high a priority. It is correct that UNHCR does place weight on the rule of law, as a basic safeguard against discretion, or pragmatism, as the sole guiding principles. But legal protection is a tool, no more and no less, to achieve better protection across the board, including very particularly physical safety. Registration is not an end in itself, but a methodology to confer some recognised legal personality on individuals who have lost this through flight to a foreign land; it is also a way to help identify needs and special vulnerabilities around which protection responses can be planned. A national asylum system brings greater consistency and reliability to the response to a refugee influx. Laws are by no means the only answer, but they do provide authority to interventions on behalf of refugee rights. Indeed, depending on the system, they may create enforceable rights. Laws, not discretionary policies, are enforceable, or at least invokable, against those who do not respect the rights. If law-based protection were to lose its priority in the scheme of things, this would undermine the importance of the rights at issue.

As a final word on the issue of law, it has to be employed in an enlightened manner. The principles exist for specific protection purposes and have to be applied with these purposes kept squarely in sight. Otherwise, the danger is that the principles ossify. We must not be preoccupied with form, rather than substance. It is UNHCR's responsibility to employ the legal framework in the service of better protection, not the reverse.

ExCom Conclusions Process

One way we do this is to foster standards and a better humanitarian practice through the Conclusions on International Protection that this Committee adopts. The conclusions have been an important protection tool and an authoritative source of guidance for States and UNHCR. They are one means we have to build more consistent and protection-based approaches and they underpin our advocacy on a wide range of matters. They have helped us to operationalise protection in many field situations. I wonder if this tradition is starting to break down. It is hard to conclude otherwise when one hears that some delegations now measure the acceptability of the Conclusions not against how much of a difference they will make to protection, but rather by how weak the language is. Thought-provoking indeed was one comment reported to me as coming from a participant at this year's negotiation sessions, and I quote, "The text is now so weak, we can support it". Hours are lost on debating preambular words such as "noting" versus "stressing" versus "emphasising", or what are the best qualifiers, such as "where applicable" versus "as appropriate". There has to be a less blinkered, more collaborative approach to their drafting, which brings in the views of a truly representative group of States. Over-politicisation of the conclusions process will only be to the detriment of the protection value of the Conclusions. We certainly see value in strengthened NGO participation in the process and look forward to continuing discussion on their participation in future.

To illustrate concerns about where the Conclusions are going, I would like to draw attention to the fact that even pre-existing ExCom language, in this case on the challenges posed by the asylum/migration nexus, was deemed inappropriate for this year's General Conclusion on International Protection. UNHCR clearly has no mandate with respect to migrants generally, nor a role to play in most migration-related settings. However, one of the outcomes of the Global Consultations on International Protection was recognition of the link between refugee protection and migration management in the context of mixed migration movements. ExCom has already adopted a number of Conclusions directed at better management of the asylum/migration nexus, for example Conclusions on Protection Safeguards in Interception Measures and on the Return of Those Found not to be in Need of International Protection. It is worrying that the relevance of the asylum/migration link to the work of this Committee seems now to be put into question.

Durable Solutions – Integration

The 2005 conclusions should also count among them a text on the solution of local integration. This gives me the opportunity to say a few words about the issue of integration more broadly, including but going beyond the local integration solution. Integration, somewhere, brings the refugee experience to a decent end. It may be integration in a new home country – of resettlement or of first asylum – or it may be reintegration into countries and communities of origin. Each of these forms of integration is somewhat different, one from another, but they share common characteristics as well, and each requires investment and commitment.

It has been hoped that this year's Conclusion on Local Integration would be a positive step towards "rehabilitation" of this durable solution, bringing it further out of the state of disuse into which it has rather fallen. UNHCR's experience over the years has shown that local integration as a durable solution, and self reliance, as a means of preparing refugees for all durable solutions, have been successfully used, regardless of obligations here, as pragmatic responses to long-standing refugee situations. This is especially the case for residual groups of refugees remaining following voluntary repatriation, as well as for those who have de facto integrated socially and economically, and for those unable or unwilling to repatriate for a range of reasons, including the traumatic experiences which triggered flight. Recognition from this Committee of this experience would give the necessary backing to UNHCR efforts, in full cooperation with States, to realise this solution where it is clearly the most appropriate solution and supported by the host State.

Mr. Chairman, integration is also a key element for the success of refugee resettlement. UNHCR welcomes the renewed focus of States on how better to integrate resettled refugees. This being said, integration is not an issue that should become a defining consideration at the stage when asylum or resettlement is first being considered. We have been concerned over recent months about the resurgence of integration potential as the criterion that determines whether asylum is granted, or resettlement is pursued. We do accept the need to re-position refugees more strategically in the migration programmes of States. There may, for example, be the possibility of additional avenues – and I stress the word additional – for third country resettlement for refugees because of their profiles. We are looking at this. However, the danger is that the criteria for resettlement, which is intended to serve importantly, but not exclusively, a protection function, could become too heavily focused on integration. The protection channel which resettlement offers must not be narrowed.

Resettlement can be a particularly useful responsibility-sharing mechanism, as a motivator to maintain asylum or gradually improve asylum conditions for the many, or where there are groups of refugees whose presence in a country of asylum is not well tolerated for security or other reasons particular to that country. In addition to places offered by the traditional resettlement countries, we welcome the ad hoc offers we have received from a number of States such as the Czech Republic, Germany and Switzerland. Needless to say, we hope that these will turn into a sustained effort to resettle refugees and to join the club of resettlement countries.

With sustained financial support from the Australian, the UK and the US Governments, UNHCR has continued to make strides in improving its own resettlement-related processes and, hence, its performance, while developing partnerships with NGOs in the doing of resettlement, in anticipation of the launch of a Resettlement Service on 1 January 2006. We deeply appreciate increased support from Norway to boost the capacity of the new Resettlement Service. The Department of International Protection has been focusing on ways to improve UNHCR's internal process for the identification of refugees in need of resettlement, to ensure that refugees, both in camps and urban environments, can have better access to the resettlement solution. An important workshop held in Washington in March this year with NGOs from Australia, Canada, Denmark and the US explored ways UNHCR might strengthen the role of NGOs in the resettlement process, beginning from the identification of refugees in need of resettlement until the moment of acceptance for resettlement. We plan a similar consultation with European NGOs next year. Two dedicated workshops, one held last month in Delhi and the next in Nairobi later this year, are looking into gaps and challenges in existing mechanisms to identify refugees for resettlement. One additional workshop, to be held in Washington D.C. later this month, will target deployees from Africa, Europe and North America under the UNHCR-ICMC resettlement deployment scheme. To improve resettlement planning, four strategic planning meetings will be held in Asia, Africa and the Middle East before the end of the year to evaluate resettlement programmes in 2005 and plan for resettlement in 2006.

To improve the integrity of resettlement processing and build in checks and balances to counter fraud, we developed a Resettlement Anti-Fraud Plan of Action in 2004 and now have a dedicated staff member to coordinate its implementation. Our Regional Resettlement Hubs in Accra and Nairobi have been overseeing and providing support for resettlement processing in Africa aimed at improving its overall quality. A Headquarters-based Resettlement Management Group, which meets on a monthly basis, has provided a valuable interface with the Regional Bureaux on resettlement issues. We have also been working closely with the Americas Bureau and countries in Latin America, to develop the "Solidarity Resettlement" component of the Mexico Plan of Action, which involves increasing the number of countries engaged in resettlement on the continent and strengthening the capacity of others already doing so. In an interesting "lateral" twinning initiative, Argentine officials visited Brazil to view how the authorities do resettlement and promote the integration of resettled refugees.

Refugee Status Determination and UNHCR's Mandate

Pursuant to the Agenda for Protection, the Department of International Protection has also been striving to improve the quality and consistency of UNHCR's refugee status determination activities under its mandate, introducing greater quality control. RefWorld is a key tool here. A new edition has just been released, also including a new DVD version, which will make it more portable and user-friendly, especially in view of the enhanced search functionality.

Refugee status determination is one method used by UNHCR to operationalise protection. It is a mandate-based responsibility, which we currently exercise in over 80 countries. In addition, there are some 102 countries that have RSD procedures and, in most of them, UNHCR has at least an advisory or consultative role.

UNHCR's competence to provide international protection to refugees and to determine eligibility for protection under its mandate exists independently of States' obligations to provide international protection under the 1951 Convention and its 1967 Protocol. The mandate of the office is contained in a statute which has no geographic boundaries; it applies in any state, signatory or non-signatory. Clearly it is very difficult for UNHCR to carry out its statutory duties unless refugees are identified as such. Determination of refugee status can be a critical first step in meeting the protection needs of those requiring international protection and identifying those who should, on the contrary, be excluded from status. UNHCR normally does not do RSD in signatory States, but it certainly can. As the Statute makes protection a mandatory function for the Office, in can undertake RSD on its own initiative, as may be required for protection reasons. When UNHCR determines a person to be a refugee, it declares to all States that the person is a refugee. This has the effect of engaging the responsibility of UNHCR, and indeed the international community to protect the persons concerned.

Statelessness

UNHCR's mandate for stateless persons is also quite clear. It is based on specific requests from the General Assembly, and has been confirmed on a number of occasions by this Executive Committee. Broadly stated, UNHCR is expected to contribute to the reduction of statelessness and to the amelioration of the situation of stateless people. Despite the growing problem of statelessness and UNHCR's reinforced efforts here, we regret that only 57 States are party to the 1954 Convention relating to the Status of Stateless Persons. Senegal's recent accession, which brought to 30 the number of States Parties to the 1961 Convention on the Reduction of Statelessness, is welcomed. When compared to the number of parties to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol – now numbering 146 to one or both instruments, following the recent accession of Afghanistan – it is clear that wider accession remains an important aspiration. Later this month, UNHCR will launch a handbook for parliamentarians on citizenship and statelessness issues, in partnership with the Inter-Parliamentary Union. The publication aims to raise awareness about the problem of statelessness and will be used as a tool to address protracted statelessness situations and encourage States to find ways to end them.

Conclusion

In conclusion, Mr. Chairman, I have focused on the theme of operationalising protection in an effort to shed further light on how we do it and how we are planning to improve over the coming period. There is no mysticism in the notion. It is a very practical effort, which rests, in the first instance on identification of gaps and needs, capacity building and project delivery. It is also a participatory, bottom-up process, as there can be no effective protection without listening, responding to and engaging with the beneficiaries, in close partnership with States, NGO and IGO partners. It is also a rights-based process that most effectively proceeds within a framework of clearly articulated rights and responsibilities, in full respect for the rule of law. Finally, operationalising protection depends fundamentally on consensus-building amongst the primary actors, States, about the problems and how to do what needs to be done. UNHCR is, in this regard, a catalyst and facilitator. It is not though a substitute for State action.