Fleeing Human Rights

Human rights are for everybody everywhere! We know it, yet we tend to forget. Perhaps we even want to forget sometimes. We know that tourists are protected by our criminal laws. We know that tourists are protected against discrimination, we know that they have freedom of religion. But this does not occupy us a lot. When we think about human rights we tend to think about the rights of citizens and residents.

Regarding refugees we know that just like tourists they are protected by our criminal laws, are protected against discrimination, have freedom of religion. And we believe that the state ensures that they, in fact, enjoy such rights. But this does not occupy us a lot. We know that there is a Refugee Convention, and that occupies us, because it commits us not to send refugees back in harm’s way. So we believe that our best compliance is achieved by making sure that the refugees never reach our shores. The tragedies in the Mediterranean have demonstrated what a cruel logic that is. The fences raised between EU countries show up how we are not only lacking in solidarity with the refugees, but in intra-European solidarity. All these ‘protective’ steps run entirely counter to the spirit of the Refugee convention, of course. The point of sanctuary is not to make sure that sanctuary cannot be reached!

Refugees raise human rights questions that we do not have with tourists. We have minimal health care obligations vis-à-vis tourists but we have massive obligations towards refugees. We are not obliged to educate the children of tourists, but we are obliged to educate refugee children – the Covenant on Economic, Social and Cultural Rights speaks of how primary education shall be compulsory. Because refugees and asylum seekers are with us for much longer than tourists our obligations to provide proper health care and education kick in early and are always there. That does not seem to occupy us much, at least not before asylum is granted. Yet, in the vulnerable stage when refugees are on the move or in camps awaiting the decision on asylum, physical and psychological health care needs are great and children not attending school become restless and disaffected as time passes. Human rights are being violated.

NGOs, of course, do a lot where governments fail. But the real issue is that our populations do not understand that governments are failing. Our populations believe that the only issue is how many refugees we can absorb in our countries. Providing decent conditions during flight through our countries is a human rights obligation as much as providing asylum when conditions are met. So where are the police units specialized in the whole spectrum of crime associated with fleeing, not only with catching the traffickers; where are the governmental health units making sure that proper health care is provided on the run; where are the pass-through schools that can cater for the educational needs of children on the move? A little exists, but far too little, and governments should not be allowed to hide behind the good efforts of NGOs. Putting human beings in the possession of their human rights is perhaps not an exclusive governmental task, but it is certainly a central governmental task. It is shameful that in our rich countries we do not take these human rights seriously!

To change things more civil society pressure is required, and this starts with the refugees themselves. It is obviously hard to start to think about organizing pressure groups when you still have the roar of cannons in your ears and have to make a new life, but refugees have a right of association and it would be pleasing to see that refugees that have made it would engage more in advocacy on behalf of those still on the move! It would also be pleasing to see that refugees would take advantage of their access to our courts to make claims not only for asylum, but for decent living conditions in camps and for humanitarian assistance while their brethren make their way from terror to sanctuary! For this lawyers are needed and perhaps there is a need for ‘Lawyers Overcoming Borders’. Fact is that it is exceedingly hard to retain one’s human rights while moving from jurisdiction to jurisdiction. It would be nice to think that there would be human rights lawyers out there in the field proactively making sure that rights are not trampled underfoot just because tragedy has forced a human being to make the long way from home to refuge through countries with hostile, unsympathetic citizens and authorities more interested in avoidance than assistance. Rule of law, for all its rigors, is civilisation’s avant-garde against bestiality. Rule of law is there also for the refugees!

Peter Wismer, International Lawyer