UNHCR Position Paper on the Treatment of Refugees and Asylum-Seekers from Kosovo

I.    INTRODUCTION

1. The present paper updates the "UNHCR Position Paper on the Treatment of Asylum-Seekers from Kosovo in Countries of Asylum: Relevant Consideration" issued by the Office of the United Nations High Commissioner for Refugees (UNHCR) on 25 August 1998, to reflect developments in Kosovo through 1November 1998. It provides information and guidance for those dealing with applications for refugee status lodged by asylum-seekers from Kosovo province of the Federal Republic of Yugoslavia. It also makes recommendations regarding the treatment of new arrivals. The paper is primarily intended for the authorities in asylum countries, particularly officials charged with establishing refugee policy and with the determination of refugee status. Its overall thrust remains to encourage asylum countries to receive Kosovar asylum-seekers, ensure that their protection needs are properly and fairly assessed through appropriate procedures, and continue to host them pending a durable removal of the causes of their flight. Notwithstanding the positive developments since 13 October 1998, when an accord was reached between President Milosevic of the Federal Republic of Yugoslavia and Ambassador Holbrooke, the United States Special Envoy, UNHCR believes it would be premature to organize repatriation in view of the fragility of the cease-fire and the continuing reports of human rights violations and security incidents.

2. To assist States, the paper provides information on the situation inside Kosovo and addresses the prospects for protection internally and in the neighbouring countries, as well as the vulnerabilities of particular groups. The situation in Kosovo remains volatile, and this paper should be read in conjunction with the latest available information on the situation there.

II. HANDLING OF KOSOVO ALBANIAN CLAIMS BY GOVERNMENTS

3. Persons fleeing Kosovo in search of protection and who make asylum claims should, like all other asylum-seekers, be afforded access to regular refugee status determination procedures, for consideration of their claims on a case-by-case basis. In considering such claims, it should be borne in mind that the displacement appeared in large measure to be driven by the threat of serious harm which is often meted out on the basis of ethnicity and imputed political opinion. In such circumstances, it may reasonably be assumed that important numbers of those displaced by the conflict could have a well-founded fear of persecution for 1951 Convention reasons.

III. GROUPS AT RISK

A. Specific Groups

4. Well before the escalation of the violence in early 1998 there was documented repression of Kosovo Albanians and documented serious human rights abuses affecting this group, on political and ethnic grounds.^[1] The escalation of the violence in the province in early 1998 into a situation of armed conflict does not negate the Convention reasons which individuals may have for fleeing the area. In fact, for some claimants, the conflict may strengthen their refugee reasons for flight. These causes are not mutually exclusive. Persons displaced by war or conflict can legitimately fear persecution. War may well be the very instrument of persecution, the method chosen by the persecutors -- whether part of the State apparatus or not -- to repress or eliminate entire groups of people because of their ethnicity or other affiliations. The current cease-fire is fragile and there are reported incidents of continuing human rights violations^[2].

5. The following groups continue to be at particular risk of persecution:

·         Able-bodied ethnic Albanian men of military age are generally regarded by the authorities as being at least supporters of the Kosovo Liberation Army (KLA), if not active fighters. This is particularly so if they hail from areas of the province which have been affected by the conflict. Such persons have been subject to questioning, detention, beatings and other ill-treatment, up to and including death;

·         The ethnic Albanian civilian population in areas of activity by the KLA are presumed by the authorities to be supporters of the KLA. Their homes and other property have been targeted for destruction resulting in displacement at the very least, and sometimes injury and even death for civilians;

·         Relatives of known or suspected KLA fighters, who have been directly targeted by Serbian security forces;

·         Former KLA fighters (who would, however, not be refugees if they fall under the exclusion clauses contained in Article 1 F of the 1951 Convention);

·         Employees of the parallel Kosovo Albanian health and medical services. Many have been harassed and, in some cases, detained under suspicion of providing supplies, medical training or medical aid to the KLA. On 24 August, three staff members of the Mother Teresa Society were killed in an attack on their relief convoy by Serbian security forces;

·         Members of community-level emergency groups organised to assist the internally displaced, who have also been targeted, on the same basis as the health workers;

·         Members of the Albanian intelligentsia (including editors, journalists, human rights activists, attorneys or politicians), who are perceived to side with the KLA or with the Albanian cause.

6. This listing does not preclude other individuals or groups from being recognised as at particular risk as well. These are merely indicative of the groups which to date have come to UNHCR's attention.

B. Draft Evaders and Deserters

7. While it is well-acknowledged that draft evasion or desertion generally is not of itself necessarily grounds for refugee status, draft evaders and deserters from the Yugoslav Army (VJ) may indeed be able to demonstrate a well-founded fear of persecution because of their refusal to perform military service. The basis of such recognition in these particular circumstances would most likely be valid reasons of conscience, either i) because participation in the military is contrary to genuine political, religious or moral convictions, and there is no alternative service available, or ii) because of an unwillingness to be associated with military action which has been condemned by the international community as contrary to the basic rules of human conduct.^[3] Important considerations in such analyses might include the reasons for the refusal, the genuineness of the claimant's convictions, and the penalty to be suffered (both legal and extra-judicial). With respect to the second ground, given the evidence of the way the conflict has been conducted (see the background information and reports by human rights organisations), and the reaction of the international community, serious consideration would need to be given to a refusal based on unwillingness to participate in action contrary to the basic rules of human conduct.

C. Other potential groups at risk

8. While the purpose of this paper is to provide assistance with claims by Kosovo Albanians, it must be acknowledged that members of other communities may also be singled out for persecution, sometimes at the hands of non-State agents. The KLA, for its part, is accused of abduction, hostage-taking and even murder of persons of Serb and Roma origin, as well as ethnic Albanians, suspected of sympathising with the Serbian authorities in areas under their control. There have been and continue to be abductions and disappearances both from the Serb and Albanian communities, as well as from the Roma community and other national groups considered to sympathise with the Serbian authorities. There are also recent reports of Serb civilians being forced from their homes as security forces withdraw and KLA moves in. Other groups that could be at risk are ethnic Albanians, Romas and others considered "loyal" to Government authorities.

IV. RETURN OF REJECTED CASES

9. On 9 March 1998, UNHCR urged European Governments to stop sending rejected asylum-seekers from Kosovo back to the Federal Republic of Yugoslavia on humanitarian grounds, until the situation in the province had stabilised. In late April, UNHCR reiterated its request, stating that in "the present explosive climate, UNHCR (was) convinced that the return of rejected asylum-seekers from European States entails security risks for those being returned and could well expose them to treatment proscribed in international human rights instruments." The Office therefore recommended a temporary ban on deportation, until there was "clear and marked progress towards dialogue and tensions have subsided."

10. Since the time of its renewed appeal and until the accord of 13 October 1998, the situation in Kosovo had markedly worsened. In his 3 October 1998 report to the Security Council, the United Nations Secretary-General noted that,

"There are concerns that the disproportionate use of force and actions of the security forces are designed to terrorize and subjugate the population, a collective punishment to teach them that the price of supporting the KLA is too high and will be even higher in the future. The Serbian security forces have demanded the surrender of weapons and have been reported to use terror and violence against civilians to force people to flee their homes or the places where they had sought refuge."^[4]

11.Until such time as there is evidence of conditions conducive to return in safety, UNHCR is compelled to reiterate its appeal to States to ban temporarily the deportation of rejected asylum-seekers on humanitarian grounds. This request is motivated by the fragility of the present cease-fire, slow progress on a political settlement and the security risks for deportees which the situation entails and the further risk that returns could further destabilise the situation.

V. HUMANITARIAN STATUS

12. Given the fragility and unpredictability of developments on the ground, persons fleeing Kosovo who are not judged, against a strict interpretation, to meet the refugee criteria of the 1951 Convention may, nevertheless, have genuine protection concerns as victims of conflict and violence. For this reason, they ought not be returned to the area at this time. In the interest of avoiding undue social and economic hardship, the Office requests States who do not already do so as a matter of course to consider providing some form of humanitarian residence status in such cases for as long as necessary to ensure their protection.

VI. SAFETY WITHIN THE FEDERAL REPUBLIC OF YUGOSLAVIA

13. This is essentially a practical, factual question, relating to the effectiveness and reasonableness of a move to another location in order to find safety within the country. The circumstances of the specific case being considered will be of paramount importance.

14. With respect to claims that may not involve a fear of the State authorities, but a fear, for instance, of the KLA or its sympathisers, it must be remembered that the analysis of the reasonableness of such a move relates also to the circumstances in the proposed site of relocation. With respect to Serbia, for claims not involving State agents, an analysis of the reasonableness of moving to those locations would have to take into account not only the circumstances of the individuals concerned, but also all the circumstances found there. These would include factors such as limited reception facilities and absorption capacity, considerations of ethnic make-up and balance, concerns about political stability and the attitude of the local population.

15. For Montenegro, which is already hosting an estimated displaced Kosovo population of some 40,000, in addition to some 30,000 refugees from Bosnia and Herzegovina, and whose total population is 644,000, reception facilities and absorption capacity are already overstretched. Problems of finding shelter and providing food for the displaced have been raised by Montenegrin authorities to the international community, highlighting the lack of residual capacity to absorb further displaced persons. The Secretary-General has noted that the growing number of internally displaced persons and refugees in the region "in turn causes further instability," and has described "the move in certain quarters away from a willingness to search for compromise on a basis of multi-ethnic communities" as "a particularly dangerous element" in the Kosovo situation.^[5] Montenegro has its own population of 40,000 ethnic Albanians, and the numbers of displaced now hosted nearly double that. Hosting even greater numbers could upset the balance and lead to political instability in Montenegro, further destabilising the region.

16. Montenegro has traditionally maintained an open-door policy towards refugees, generously hosting thousands from the region. On 11 September, however, the Government of Montenegro decided to close its provincial boundary with Kosovo to new arrivals, given the crossing of some 3,000 new IDPs that day, reportedly accompanied by KLA fighters, with news that thousands more were poised to follow. The new arrivals were moved by the authorities to the Albanian border and crossed into Shkodra and its environs. During a mission to the region later that month, the High Commissioner urged President Djukanovic to reverse this decision. The President assured the High Commissioner, and later announced publicly, that Montenegro would apply its decision flexibly, with due consideration to individual situations.

VII. RETURN OF ASYLUM-SEEKERS TO ALBANIA

17. Current experience is that ethnic Albanian asylum-seekers from Kosovo will not be refouled to Kosovo or elsewhere in the Federal Republic of Yugoslavia by the Albanian authorities. Indeed, UNHCR is convinced that the authorities in Albania are using their very best efforts to welcome and protect those who have entered the country. However, for a number of reasons set out in the following paragraphs, asylum-seekers who initially left Kosovo to Albania should not be returned to Albania for the purposes of determination of their claims or in the belief that they can find effective protection there.

18. Albania is one of the poorest nations in Europe. In 1997 the country was convulsed by an upheaval which saw the collapse of the government and the reign of chaos, evidenced by, among other activities, the destruction of significant elements of its infrastructure, the looting of military arms depots and the desertion of the bulk of its military. At present the country is re-emerging from this catastrophe and attempting to rebuild its infrastructure, physically, economically and socially. The conflict in neighbouring Kosovo, however, is preoccupying authorities to a significant degree. The capacity of the authorities to provide shelter, food, jobs and security to the native Albanian population, let alone to the population of newly arriving Kosovo Albanians, is therefore extremely limited, as was demonstrated by events in Tirana and elsewhere in the country in September 1998, and is acknowledged to be so by the authorities themselves.

19. The situation in the northern districts of Albania, where the majority of Kosovo Albanians entered and where some remain, is notoriously insecure and increasingly militarised. The north is known to be used openly by the KLA for training and other activities. Furthermore, banditry and the widespread presence of arms contribute to insecurity. In such an environment, basic human rights cannot, despite the best efforts of the Albanian government, be adequately protected for citizens or others, including the Kosovo Albanians and the humanitarian aid workers attempting to protect and assist them. UNHCR and other international organisations had to relocate their offices to safer locations and to limit their presence in the north owing to security concerns. In the north, the situation is particularly precarious for certain groups, such as the elderly and women and children without an accompanying male family member, who are vulnerable to physical and sexual exploitation and abuse. For men of military age, there is a risk of coercion and forced recruitment into the KLA. Even in other regions of Albania where UNHCR has previously relocated refugees in the north, the lack of adequate physical infrastructure to absorb this population, and the lack of sufficient numbers of trained police, military and other governmental authorities means that the capacity to provide protection and assistance to the refugee population in the country is seriously compromised.

20. Finally, it cannot be said, despite the efforts of the authorities, that the refugee and human rights legal infrastructure is adequate. Albania is party to both the 1951 Convention relating to the Status of Refugees and the 1950 European Convention on Human Rights and Fundamental Freedoms. Nevertheless the 1951 Convention has not been implemented by the passing of legislation or by administrative or other practice or procedure. The Migration Law does contain several articles related to refugees, but it is far from a comprehensive determination system. A newly drafted asylum law exists, but it has not been passed by the Parliament and no concrete plans for its implementation exist. There is therefore no procedure for refugee status determination and no legal status currently can be provided by law to refugees from Kosovo. In fact their presence is tolerated in Albania, they are without any precise status, and their situation is therefore precarious. In the presently volatile and insecure circumstances of the country this lack of legal status takes on even greater significance.

VIII. RETURN OF ASYLUM-SEEKERS TO BOSNIA AND HERZEGOVINA

21. Bosnia and Herzegovina (BiH) is a country emerging from conflict and struggling to find the capacity to absorb the returns of those former residents who were displaced by the conflict of the early 1990s and who wish to return. Though there is a draft asylum law currently being processed, it has not been implemented and no procedure exists for determining refugee status. UNHCR has been cooperating closely with the authorities of BiH in the reception of arriving Kosovo Albanian asylum-seekers. As at 1 November, the country had received some 10,000. In early October, the authorities issued an "Instruction on the Temporary Admission of Federal Republic of Yugoslavia (FRY) refugees from the Territories of Kosovo and Metohija," which provides that the refugees will be admitted on a temporary basis and will be protected from refoulement, envisages the registration of new arrivals and sets out their entitlements. Regulations to implement the above instruction were issued in early November. Despite these positive developments, UNHCR does not believe that the absorption capacity is sufficient for the purposes of returning asylum-seekers from Kosovo to BiH from other potential asylum States. It is also apparent that it will take some time for the Instruction on Temporary Admission to be implemented fully.

22. UNHCR acknowledges that there is some limited ability in BiH to ensure human rights protection to refugees and asylum-seekers, but notes that the country has been asked by the international community to devote its resources first and foremost to implementing the provisions of Annex 7 of the Dayton Peace Agreement, relating to the return of refugees and displaced persons. To expect the authorities to divert their attention from that goal in order to host even minimal numbers of asylum-seekers returned from other asylum states would risk setting back significantly progress on returns, which is a goal not only of the BiH authorities, but also of the international community as a whole, and one which is of particular importance to Western European states who host the majority of those who are expected to return to BiH.

IX. SUMMARY OF UNHCR'S POSITION

23. On the basis of the foregoing analysis, UNHCR considers that the security situation throughout Kosovo, while improved, remains exceedingly fragile and that the prospect for sustainable return in safety and dignity remains uncertain. Ethnically based repression continues to be a dominant feature of the situation, as indeed it was prior to the escalation of violence which led to the displacement of recent months. The September upheaval in Albania has served to illustrate the instability and insecurity there, and the situation in other neighbouring countries remains precarious. In such circumstances, UNHCR remains of the view that asylum-seekers who have reached other countries should have their refugee status assessed through established asylum procedures. Those who are found not to meet the prevailing refugee definition may nevertheless have protection needs militating against return at this time. UNHCR continues to call for a response from the asylum States which respects their responsibilities towards refugees and asylum-seekers and which is principled, humanitarian and sensitive to their protection needs.

24. Until such time as there is evidence of conditions conducive to return in safety, UNHCR is compelled to reiterate its appeal to States to ban temporarily the deportation of rejected asylum-seekers on humanitarian grounds. As soon as conditions warrant, the Office will review its position, and will in any case keep States informed of developments affecting refugees and asylum-seekers from Kosovo.

* Subsequently released for publication.

^[1] See e.g. Periodic report on the situation of human rights in the territory of the former Yugoslavia submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, E/CN.4/1994/3, 5 May 1993; Sixth Periodic report on the situation of human rights in the territory of the former Yugoslavia, submitted by Mr. Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, E/CN.4/1994/110, 21 February 1994; Situation of human rights in the territory of the former Yugoslavia. Special report on the media, E/CN.4/1995/54, 13 December 1994; Situation of human rights in the territory of the former Yugoslavia. Report submitted by Ms. Elisabeth Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to Commission resolution 1995/89, E/CN.4/1996/63, 14 March 1996; Situation of human rights in the territory of the former Yugoslavia, Special report on minorities, E/CN.4/1997/8, 25 October 1996; Situation of human rights in the territory of the former Yugoslavia. Periodic report submitted by Ms. Elisabeth Rehn, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 45 of Commission resolution 1996/71, E/CN.4/1997/56, 29 January 1997; Situation of human rights in the t erritory of the former Yugoslavia: Two trials of Kosovo Albanians charged with offences against the State in the Federal Republic of Yugoslavia in 1997. Report submitted by the Special Rapporteur, Ms. Elisabeth Rehn, E/CN.4/1998/9, 10 September 1997; Situation of human rights in the territory of the former Yugoslavia: Report on the situation of human rights in the Federal Republic of Yugoslavia submitted by Ms. Elisabeth Rehn, Special Rapporteur, E/CN.4/1998/15, 31 October 1997. See also Background paper on refugees and asylum-seekers from Kosovo, UNHCR, Centre for Documentation and Research, February 1996.

^[2] "Serbian police issue Kosovo warning after two policemen killed," Agence France Presse, 9 November 1998; "Clashes between Kosovo rebels and Serb forces slows refugee returns," Agence France Presse, 8 November 1998; "Kosovo guerrillas said to attack coal miners," Reuters, 4 November 1998.

^[3] See paras. 167-174 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status.

^[4] S/1998/912, para. 7. No new report had been issued at the time of writing.

^[5] Ibid., para. 16.