UNHCR Position Paper on Asylum-Seekers from the Federal Republic of Yugoslavia

Introduction

1.         Asylum seekers from the Federal Republic of Yugoslavia continue to be one of the larger groups of asylum seekers in western Europe. Most of these asylum seekers are ethnic Albanians from the Kosovo region in Serbia. To a much lesser extent they also comprise Moslems from the Sandzak area straddling Serbia and Montenegro, as well as members of other minority populations in the Federal Republic of Yugoslavia.

2.         Following the Dayton peace agreement for Bosnia and Herzegovina, the UN Security Council has suspended the sanctions against the Federal Republic of Yugoslavia, and many States have re-established diplomatic relations with that country. In this context, efforts are under way by some countries to ensure the readmission by the Federal Republic of Yugoslavia of asylum seekers from that country, whose claims have been rejected.

3.         This paper aims to provide some general guidelines in respect of refugee status determination of asylum seekers from the Federal Republic of Yugoslavia. It is not exhaustive, and therefore, is not intended as a formula for determining each individual case. Cases should continue to be considered on their own merits, applying the relevant criteria.

Recent developments

4.         The situation in Kosovo remains extremely tense and characterised by human rights abuses. Figures available from local sources indicate a continued increase in violent house searches, raids and arbitrary arrests in Kosovo in 1995, as compared to 1994. Events in the first half of 1996, including bomb attacks on refugee centres, the killings of one ethnic Albanian and five Serbian persons, and bomb attacks on two police stations, have contributed to a heightening of tensions. There are no official contacts between the Serbian Government and the Kosovo Albanian political leadership, who maintain diametrically opposed positions with the latter continuing to state their aim of independence. The ethnic Albanian community has established a parallel society with its own education, health and social welfare system, heavily dependent on financial support from abroad. The situation in the Sandzak region appears to be less tense than in Kosovo with a moderate wing of the main political party in opposition, SDA, being registered by the Ministry of Justice of Serbia on 2 October 1995.

Deserters and Draft evaders

5.         Many asylum seekers from the Federal Republic of Yugoslavia base their claim for refugee status on the fact that they have either deserted from the Yugoslav People's Army (the armed forces of the Socialist Federal Republic of Yugoslavia before its break-up in 1991-1992), or have avoided being drafted into that army or into the armed forces of the Federal Republic of Yugoslavia (Serbia and Montenegro).

6.         UNHCR's position on conscientious objection, desertion and draft evasion is described in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status in paragraphs 167-174. Situations in which deserters and draft evaders can be refugees include the following:

•           where a person can show that he would suffer disproportionately severe punishment for a military offence owing to one or more of the reasons stated in the Convention.

•           where participation in military action would have been contrary to a person's genuine political, religious or moral convictions;

•           where the type of military action with which the person concerned does not wish to be associated was contrary to basic rules of human conduct.

7.         UNHCR's position until recently has been that persons who, by means of desertion or draft evasion in the period mid-1991 to mid-1992 avoided having to participate in the wars in the region and thereby being a possible accomplice to violations of international humanitarian law, deserved international protection. Following the adoption of an amnesty law by the Parliament of the Federal Republic of Yugoslavia on 18 June 1996 which provides for an amnesty for acts of desertion and draft evasion (Articles 214 and 217 of the Federal Criminal Code) committed prior to 14 December 1995 by persons other than professional officers, UNHCR is of the opinion that persons covered by this amnesty law should no longer be in need of international protection as a consequence of their desertion or draft evasion. UNHCR intends to monitor closely the effective implementation of this important law and urges Governments to do the same.

8.         Since mid-1992, draft evasion continues to be prevalent, especially among ethnic Albanians and Moslems from the Sandzak area. Such claims should be assessed against the criteria outlined above. UNHCR has no indication that in the Federal Republic of Yugoslavia draft evaders are currently being excessively punished on account of their religious belief or ethnic origin, but wishes to emphasise that only few such persons have returned to the country over the last years who would fall within this category.

Ethnic Albanians from Kosovo and Muslims from the Sandzak area

9.         Police repression in Kosovo and Sandzak has an arbitrary character and can in principle affect any ethnic Albanian or Muslim in these areas. UNHCR recommends that in examining claims of a well-founded fear of persecution, particular attention be given to persons who may have come to the attention of the authorities due to their involvement in the parallel social, health, and/or education sectors in Kosovo, or due to their involvement in activities for the LDK or other political parties in Kosovo and the Sandzak. Ethnic Albanians, dismissed from the public services, may easily be the subject of further discrimination and/or harassment and former police officers and army officers of Albanian ethnic origin have over the past years been increasingly targeted by the Serbian authorities because of the potential threat these persons are alleged to represent in case of an escalation of the situation. In 1995 alone, 143 former policemen of ethnic Albanian origin were sentenced to imprisonment on charges of having endangered the territorial integrity of the State. Many of the accused stated that they were ill-treated in detention. In this respect, UNHCR would like to draw attention to the report of the UN Commission on Human Rights Special Rapporteur on Torture of January 1995, in which he concludes that "In the absence of any reply from the Government and in the light of the consistency of the allegations received, the Special Rapporteur is disposed to consider the thrust of the allegations as reflecting an extensive practice of torture and similar ill-treatment, especially in Kosovo."[1]

Internal Flight Alternative

10.        UNHCR considers that no internal flight alternative is available in the Federal Republic of Yugoslavia to Kosovo Albanians and Moslems from the Sandzak at present. UNHCR's position on the application of the "internal flight alternative" is outlined in paragraph 91 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, which reads as follows:

"The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so."

11.        The underlying assumption justifying the application of "internal flight alternative" is that the State authorities are willing to protect the rights of the individual concerned but are being prevented from or otherwise unable to assure such protection in certain areas of the country. Therefore, the notion should not, in principle, be applied in situations where the person is fleeing persecution from State authorities, even if the same authorities may refrain from persecution in other parts of the country[2] In the view of UNHCR, such is the case in the Federal Republic of Yugoslavia as regards ethnic Albanians fleeing from Kosovo and Muslims fleeing from the Sandzak region.

Returns of Rejected Cases

12.        While the Instruction of the Serbian Ministry of Transport and Communications of 16 November 1994 remains in force, thereby effectively prohibiting the return by air of rejected asylum seekers, UNHCR has learned that several western European Governments have entered into discussions with the Government of the Federal Republic of Yugoslavia on the issue of return.

13.       UNHCR wishes to caution Governments that a large-scale return of rejected asylum seekers to Kosovo may result in a further deterioration of the situation. Any additional strain on the fragile alternative or parallel society through such returns could easily have a significant negative impact on both the political and social situation, leading to an escalation of the situation. UNHCR therefore urges Governments in their discussions with the Yugoslav authorities to obtain assurances that the return of rejected asylum seekers can take place in safety and dignity with appropriate safeguards. Monitoring mechanisms, possibly through an OSCE observer mission to the area, would seem highly desirable.

Geneva, 16 August 1996

[1] 1      E/CN.4/1995/34, para. 921.

[2] 2      An overview of protection issues in Western Europe: Legislative trends and positions taken by UNHCR; European Series vol.1, no.3, Sept. 95, p.31-32.