Frontier Justice

by Andy Lamey

  That is still lower than Canada’s 58 percent acceptance rate. However, this figure is itself misleading, as it does not include claims that are abandoned. Every year, a few thousand people make a refugee claim in Canada, only to disappear. In Norway, by contrast, asylum-seekers are normally housed in government-run reception centres, which makes it much harder for someone who has filed a claim to drop out of sight. The fact that so many people disappear might be a good reason for Canada to set up its own system of reception centres. But for the purposes of comparing Canada’s acceptance rate with that of Norway, not including abandoned claims means that claims that are especially weak, as abandoned claims are thought to be, are included when determining the acceptance rate of one country but not the other. To correct for this, it makes more sense to use the Canadian government’s official figure, which includes abandoned claims, and which gives the acceptance rate for 2001 as 47 percent.

  Needless to say, 47 versus 33 percent does not suggest quite the dramatic imbalance as 58 versus 2 percent. But even the revised statistics do not take account of the fact that Canada’s and Norway’s asylum systems operate in different political contexts. As we’ve seen, a country’s refugee acceptance rate is influenced by its background attitude toward immigrants. Norway has not traditionally seen itself as a country of immigration. In 2001 the third-largest party in Norway’s Parliament was an anti-immigration faction, the so-called Progress Party, whose supporters told pollsters that Norway should slash its refugee intake. This cultural backdrop has an effect on Norway’s asylum system, which few observers other that Stoffman see as one worth celebrating. The Norwegian Refugee Council, for example, has spoken out against “the extremely low level of [permanent] refugee recognition in Norway and the serious loss in moral consistency that this represents.”

  The approach Stoffman endorses involves more than giving asylum-seekers a chilly Scandinavian welcome. Stoffman also believes that diverting asylum budgets overseas will ensure that political considerations do not undermine humanitarian ends, as aid will no longer be wasted on the bogus claimants he sees as clogging up Canada’s asylum system. Instead, resources will reach the real refugees in camps. This view of humanitarianism, which sees it best practised at arm’s length, is one that has also been vigorously championed by advocates of stronger border enforcement in other countries (including Australia’s Philip Ruddock). Such critics are right to suggest that the situation of refugees in camps is very different from that of refugees seeking asylum in the West. Among other contrasts, people in camps often want to return home, and doing so frequently requires a regional peace settlement. Stoffman and other critics are also correct that we could do far more to help people living in such situations, who can be trapped in camps for years or even decades. Nevertheless, his proposal fails as a serious form of humanitarianism.

  The main problem with Stoffman’s proposal is that it risks making the situation of overseas refugees even worse. This is because of the negative message it would send to governments in the developing world, who host most of the planet’s refugees. As we saw, after the U.S. Supreme Court legalized the forced return of Haitians, the governments of Thailand and Tanzania were both quick to make their refugee policies less welcoming. That restrictive entry policies in the West have a ripple effect across the globe is now a well-documented trend. In the words of Arafat Jamal, a former analyst with the United Nations High Commissioner for Refugees, “Nations that absorb the most refugees in Africa will often cite the EU or U.S. tightening their policies as a rationale for them to tighten their own policies.” If we really want to help people warehoused overseas, the last thing we should do is demonstrate that we are not serious about admitting refugees ourselves.

  The second problem with Stoffman-style proposals is that they exaggerate the differences between people who seek asylum and those who are trapped overseas. Stoffman argues that most asylum claims are fraudulent, and so the people who make them are far less deserving of aid than the legitimate refugees stranded overseas. This view overlooks the fact that that asylum-seekers like Francine Peyti are often fleeing the same conflicts that drive hundreds of thousands of people into camps in East Africa and elsewhere. The only evidence Stoffman cites for his assertion that asylum claims lodged in Western states are overwhelmingly fraudulent is the 15 percent international acceptance rate. But this figure does not include refugees granted temporary protection, a common outcome across Europe. It also overlooks the no-entry policies put in place by Western states. Stoffman has a narrow focus on Canada and never critically examines the asylum programs of the United States, Australia, Germany or other countries. Yet as we’ve seen, the asylum programs of these and other countries have devastating drawbacks from the point of view of human rights. Averaging the acceptance rates of the asylum programs that currently exist, with no notice given to how they reflect background conceptions of belonging and other factors, is not a plausible way of determining how many genuine refugees seek asylum. Francine Peyti and other genuine refugees manage to reach the West with greater frequency than Stoffman and other critics allow.

  There is a flip side to the similarity between asylum-seekers and camp occupants. Just as asylum-seekers include many deserving refugees, administering aid to refugees overseas involves its own political challenges. This point has been vividly brought home by Fiona Terry, who in 1994 was working in Tanzania as the head of the French section of Médecins Sans Frontières (MSF), the well-known humanitarian organization. In the wake of the Rwandan genocide, hundreds of thousands of ethnic Hutis and Tutsis poured into refugee camps in Tanzania and Zaire. As Rwandans filled up tent cities such as Camp Benaco, a massive lakeside encampment in Tanzania, they brought the killing campaign with them. With dawning horror, Terry and her colleagues realized that the same camps they were working in had become mass murder zones.

  “The genocide against the Tutsi and those who were seen as supporting them had continued in the camps, and bodies were frequently dragged from the lake,” Terry has written. “In the MSF hospital we strongly suspected that Tutsi children were given minimal care, or left to die, when we were not around to supervise.” As Terry and her colleagues conducted daily battles against disease and malnutrition, they pushed away doubts about the consequences of administering aid to people carrying out a genocide. “[But] they would reappear around the table at night, after a couple of beers, and divide the team.” Eventually Terry’s section of MSF withdrew from the camps, a controversial decision that has been widely debated ever since.

  MSF’s experience in Tanzania highlights a problem that has occurred in other crisis zones. Because refugee camps are often close to the conflicts that created them, they can be tempting locations for combatants to operate from. Camps in Mexico, Thailand and different parts of Africa have been drawn into regional wars. Moreover, the issue of “refugee warriors,” as camp-based combatants are known, is an extreme illustration of a broader phenomenon—namely, that overseas aid efforts come with their own political challenges. According to Terry and other humanitarians, this means that administering to the needs of people in refugee camps requires more than airlifting in medicine and food, as urgent as that goal is. We also need to make careful judgment about the way the aid is administered, to ensure that it does not advance goals diametrically opposed to humanitarianism.

  The existence of refugee warriors and similar political challenges illustrates the false nature of Stoffman’s division between fraudulent asylum claimants who reach the West and easily identifiable refugees in tent cities in the developing world. The truth is that in both contexts humanitarianism needs to be informed by careful judgment to make sure that genuine refugees are the ones who benefit from our efforts. In refugee hearing rooms in industrialized countries, the challenge is to separate refugees from economic migrants. In the camps, it is to avoid creating refugee warriors, among other pitfalls. Advocates of low immigration are therefore wrong to suggest that redirecting a dollar away from a domestic asylum pr
ogram to overseas camps will mark a clear gain in humanitarian efficiency.

  Finally, Stoffman never explains why an increase in overseas humanitarian aid has to come at the expense of helping people seeking asylum. The amount of money Western states spend on asylum claims is typically less than 1 percent of total spending. The much larger sums we lavish on ourselves is surely a more promising source of new dollars. To take but one example, Western states are often criticized for their huge agricultural subsidies, which price farmers in the developing world out of the international market. Redirecting some of that money abroad would seem an especially effective form of international aid. It is an artificially limited form of humanitarianism that suggests we can only help refugees abroad at the expense of helping those who manage to make it to our shores.

  Stoffman’s attempt to fly under a humanitarian flag is not convincing. What about the idea of conducting refugee screenings at the border? It would seem a separate proposal, independent of his discussion of refugee camps. Again, Stoffman is putting forward a proposal that many other observers have called for, and again, his argument has problems. Yet unlike his argument for redirecting aid abroad, Stoffman’s discussion of border enforcement does contain a kernel of truth. He correctly highlights a genuine cost of Canada’s refugee system, a cost that I must admit the Singh-plus model also bears.

  Critics who support border screenings often make it sound as though fraudulent claimants can be identified by their nationality. Take claimants from Costa Rica, for example. It is true that the overwhelming majority of them are not refugees. That is why 98 percent of them were rejected in the two years leading up to Canada’s visa change. But 98 is not the same as 100. Countries like Costa Rica can on rare occasions fail to protect their own citizens, which is why countries other than Canada sometimes determine Costa Rican refugee claims to be genuine. In 2002, for example, twenty-three such claims were recognized in the United States. The risk of border screening is that it can cause the small number of genuine refugees from unlikely source countries to be turned away amid all the false claimants. Admittedly, there is a financial cost to allowing people in this situation access to a refugee system. But the cost at issue is a manageable one, and not worth the moral loss of a compromised commitment to human rights.

  Nevertheless, it must be admitted that the approach I have defended has a political cost of its own. An open system can be accessed by almost anyone. When divisive or controversial individuals are permitted to make refugee claims, the system itself will become embroiled in controversy. A notorious example of this occurred in 2003, when a refugee claim was filed in Canada by Ernst Zundel. Zundel was a Holocaust denier who had long been familiar to Canadians. During his four decades living in Canada he published pamphlets such as The Hitler We Loved and Why and Did Six Million Really Die? which resulted in a number of high-profile trials. Zundel’s legal battles eventually drove him to the United States, but in 2003 he was found guilty of immigration violations there and returned to Canada. Although he had lived in Canada for many years, Zundel had never been allowed to take out Canadian citizenship. This meant that at the time of his return he was eligible to be deported to Germany, where he was wanted on hate crime charges. To avoid this outcome, he filed a refugee claim.

  For many observers, the thought of a Holocaust denier being allowed access to the refugee system was too much to bear. “If Ernst Zundel is a refugee, Daffy Duck is Albert Einstein,” wrote columnist Rex Murphy. “If we in any degree take this ‘claim’ of his seriously … then the last thread of credibility that attaches to our real refugee system is snapped forever.” The editorial board of the Toronto Star took a similar view: “Every time he has a hearing, he gains a platform for his bottomless well of hatred. Every public appearance is an excuse for his smirking, misguided followers to gather.” The basic concept of a refugee is often illustrated by reference to Jews fleeing Nazi Germany. For many people sympathetic to human rights, there was something obscene in the thought of an apologist for Nazism being granted the due process of refugee law. The Canadian government soon adopted the same view. It declared Zundel a security threat and employed a rare legal measure that allowed suspected terrorists to be pulled from the refugee queue. Zundel was imprisoned and eventually sent to Germany.

  The Zundel case forces us to ask where the final boundary of an open refugee system should lie. Refugee law has always made an exception for violent individuals such as war criminals or terrorists. But Zundel’s case was clearly different. Murphy and other observers said they did not believe that Zundel, who had always been non-violent, was really a terrorist (and the process used to declare him one was later struck down by the Supreme Court). It was his hateful ideology, they argued, that should have disqualified him from a hearing. Thus, whether or not Zundel was actually a threat to public security, he represents a type of individual many people would rather see turned away than granted a refugee hearing, because of his repellent political views.

  To argue against border screenings is to support an arrangement that would allow Ernst Zundel and other offensive individuals to receive an oral hearing. As the Toronto Star pointed out, the resulting media coverage could generate publicity for some nefarious causes. Any honest defender of an open refugee system must therefore admit that there is a cost to not having screenings at the border. Non-violent individuals who are demonstrably not refugees cannot be turned away, no matter how manifestly fraudulent their claims.

  This is a real cost of the system I am defending. The case for an open system, however, does not depend on its having no costs. It depends on its having fewer costs than any realistic alternative. When it comes to the rights of citizens, we grant even obviously guilty people the right to a fair trial, on the grounds that it is better that the guilty walk free than an innocent person be imprisoned. Extended to human rights, the same logic should cause us to recognize that it is better that the most fraudulent and offensive claimant be granted a full hearing rather than risk turning even one real refugee away. This is confirmed by examining the experience of the United States, where border screenings were introduced in the mid-1990s, and where they have been shown to come with significant moral costs of their own.

  The first cost is symbolized by a well-known case involving a woman named Fauziya Kassindja. Kassindja grew up in the African nation of Togo, where her father protected her from the local custom of female genital mutilation. But when Kassindja was sixteen, her father died, and she was forced to marry a man who demanded that her clitoris be removed. She fled first to Germany and then the United States, where one of her cousins lived. After Kassindja made a refugee claim at Newark Airport in New Jersey, she went through a long ordeal in detention, during which she was beaten and tear-gassed, and her refugee claim was rejected. But Kassindja was able to appeal the decision, and by the time she did so a law professor named Karen Musalo became involved with her case. At Kassindja’s appeal hearing, Musalo set a precedent by arguing that Kassindja represented a new type of refugee. For the first time, female genital mutilation, a cultural practice rather than a government policy, was recognized as a form of persecution.

  Kassindja arrived in the United States in 1994, two years before border screenings were introduced. Human rights advocates have since pointed out that had she been subject to an airport interview upon her arrival, the correct legal decision would have been to put her on the next flight back to Togo. In the words of Philip Schrag, a law professor at Georgetown University, “An interviewer at the airport would certainly have deported Kassindja to be mutilated in Togo, because even if he believed her, the Board of Immigration Appeals had not yet declared that the threat of genital mutilation was a valid ground for asylum.” Border screenings are based on the false assumption that there will never be another asylum-seeker who sets a precedent and requires a receiving country to re-examine its refugee laws.

  A second problem with border screenings is highlighted by the case of Libardo Yepes. Yepes was a cattle farmer in Col
ombia, which has long been the site of an armed conflict in which insurgent groups fund themselves through extortion. He was terrorized on his farm for two years by left-wing guerrillas who made him pay them US$250 a month. After members of a right-wing paramilitary squad discovered Yepes was paying the leftists, they intervened—by trying to assassinate him. Caught between two rival factions, in November of 2000 Yepes flew to Florida. Upon his arrival at Miami International Airport he tried to make a refugee claim, only to be interviewed and deported within twenty-four hours.

  Yepes, however, was both lucky and determined. Lucky, because he managed to avoid being killed upon his return to Colombia. Determined, because he soon fled again. This time he made a three-month journey through Central America to the Texas border, where he floated across the Rio Grande on an inner tube. After Yepes was picked up by border agents he again lodged an asylum claim. Rather than a quick interview at the airport, this time he was allowed to make his case in an unhurried asylum hearing. And this time he was found to be a refugee.

  Yepes’s case should cause us to recognize the higher likelihood of mistakes being made when refugee cases are heard at the border. This is hardly surprising, given that claimants subject to turnaround decisions upon arrival do not have time to speak to a lawyer, obtain documents from their home country or take similar steps.

  Not having border screenings reduces the risk of committing a supreme injustice against the next Fauziya Kassindja or Libardo Yepes. Although there are also moral costs to not having screenings, they are borne primarily by the receiving state rather than the refugee, and do not involve a matter of life and death. This moral cost-benefit analysis should be enough to rule out border screenings, regardless of whatever financial benefits they might bring. Yet it is worth pointing out that the amount of resources border screenings would actually save is itself a matter of some debate.