1 A ‘Responsibility to Protect’ refugees: an analysis of the R2P norm and protection of
Syrian refugees in Turkey, Lebanon and Jordan.
Naam Student: Rhiannon Hugo
Studentnummer: 11044144
E-mailadres: rhiannonhugo@gmail.com
Opleiding: Politicologie
Scriptiebegeleider: Said Rezaeiejan
Tweede lezer: Vivienne Mathies-Boon
Datum: 12-02-2018
2 List of used abbreviations
EU – European Union
ILO – International Labour Organization MOU – Memorandum of Understanding R2P – Responsibility to Protect
UN – United Nations
UNDP – United Nations Development Program
UNHCR – United Nations High Commissioner for Refugees UNSC – United Nations Security Council
UNSG – United Nations Secretary-General
Map of the region 1
3
Index
I. Introduction 4
II. Theoretical framework 5
II.1. Norms in International Relations 6
II.2. Human Security 8
II.3. The ‘Responsibility to Protect’ as humanitarian norm 9
II.4. The ‘responsibility to protect’ and refugee protection 11
II.5. R2P & Refugee law 13
III. Methodology 14
IV. Analysis 17
IV.1. Legal refugee protection 17
IV.2. Refugees’ needs 22
IV.3. Institutionalization of the R2P norm 25
V. Conclusion 28
VI. Bibliography 30
4 I. Introduction
Turkey, Lebanon and Jordan are the countries that host the most Syrian refugees. They are respectively hosting approximately 3,3 million, 1 million and 0,7 million refugees (UNHCR, 2017a). However, refugees are not offered protection in all of these countries. In many countries hosting Syrian refugees, the legal right to remain is very tenuous and the “risk to return to Syria is a genuine concern” (Achiume, 2015: 720). In Lebanon, new residency policies introduced in 2015 caused an estimated 70% of the Syrian refugees residing in Lebanon to lose their legal status. This restricted their movement, access to healthcare and education and their ability to work. This heightens the risks of exploitation and abuse (Human Rights Watch, 2016a).
Additionally, the Lebanese government struggles to meet refugees’ needs (ibid.). Also in Turkey refugees are not offered proper protection, as Turkey does not recognize refugees under
international as well as domestic law (Achiume, 2015: 720). Despite the absence of legislation on refugee protection in Jordan, the situation for refugees is different than in Turkey and
Lebanon, as the Jordanian government has taken effective measures to improve their livelihoods (UNHCR, 2013: 1; UNCHR, 2017d; Human Rights Watch, 2017c). Nevertheless, the EU called upon the Jordanian government in January 2017 to “ensure the sufficient protection of refugees in the country” (European Commission, 2017). Additionally, there was an increased number of refugees forced to return to Syria (ibid.). The situation for Syrian refugees in Jordan therefore might not be ideal.
Important to consider, is that these countries might not be offering enough protection to Syrian refugees due to institutional weakness. In Lebanon for instance there is an absence of official refugee camps because the state is too weak to ensure it will not fall prey to opposition factions (Thorleifsson, 2016: 1074). This research however will analyze this ‘protection gap’ from a more normative perspective, focusing on the ‘responsibility to protect’ (R2P) norm. The R2P norm is an international relations norm, which could fill this ‘gap’ of protection when it comes to refugees residing in the above-mentioned countries. R2P is often associated with humanitarian intervention, however it is also about protection (Barbour & Gorlick, 2008). It can be argued that offering protection to refugees is an important part of R2P (Barbour & Gorlick, 2008; Coen, 2015). According to the R2P norm all Syrian refugees should be offered protection (Achiume, 2015: 717). However, as is shown, Turkey, Lebanon and Jordan fail to offer full
5 protection to Syrian refugees. Additionally, all three countries have not (fully) ratified the 1951 Convention on the Status of refugees (The Law Library of Congress, 2016a; Stevens, 2013: 3; The Law Library of Congress, 2016b). It is therefore relevant to analyze how the R2P norm could help provide protection to Syrian refugees residing in these countries. The research question central to this research is:
“How can the ‘responsibility to protect’ norm play a role in providing protection to Syrian refugees in the regional host countries; Turkey, Lebanon and Jordan?”.
Insight into how R2P could offer protection to refugees is important with regards to moving R2P past the idea of being a ‘Trojan Horse’ to legitimize the interference of powerful states in the affairs of the weaker states (Bellamy, 2005: 32). Furthermore, this insight can clarify how R2P could be shaped as a norm that could actually be applied, and not be stuck in a ‘deadlock’ in the UN setting. Furthermore, this analysis can offer an understanding of the advancement of R2P as an international norm since “advancements in international norms are best indicated, not by the endorsement of general principles, but by the development of actual practices on the ground” (Adelman, 2010: 127). Additionally, an understanding of how to offer Syrian refugees better regional protection, is relevant with regards to the ‘refugee crisis’ in the EU. Not only regional countries have had to deal with refugees fleeing Syria. Over a million refugees have arrived in the EU as a result of the conflict in Syria and other troubled countries (European Commission, 2016). Thousands have died in attempts to cross the Mediterranean Sea to reach Europe. In 2016 there was a record number of deaths in the Mediterranean (ibid; UNHCR, 2016).
II. Theoretical Framework
To analyze how the R2P norm can play role when it comes to protecting Syrian refugees, it is important to first gain insight into how norms in general play a role in international relations. Also, it is important to understand what R2P as a norm entails and how this connects to refugee protection. Important to consider here is also the human security norm, upon which R2P is based (Evans, 2007: 707-709). Additionally, it is essential to set out how R2P connects to international refugee law and where R2P could fill ‘protection gaps’. This theoretical framework will
therefore focus on all the aforementioned concepts. First, the role that norms play in international relations is discussed. Second, the human security and R2P norm will be set out. Then the focus
6 shifts to the relationship between R2P and refugee protection. Subsequently, the relationship between R2P and international refugee law is discussed.
2.1 Norms in International Relations
In “The Politics Among Nations” Morgenthau (1954) sets out the principles of international relations from a realist perspective. A principle that makes up part of this set, is the principle that universal moral principles in their abstract formulation cannot be applied to the actions of states. He goes on to add that the state should not let moral principles get in the way of successful political action (idem: 8). A state for instance should not let it’s “moral disapprobation of the infringement of liberty” obstruct successful political action (ibid.). In this line of argument, the point of view could be that Western states should not try to influence countries where there is less liberty. Realism distinguishes between truth and opinion, which means that it does not identify the moral aspirations of a nation with universal moral laws. However, the principle that moral principles cannot be applied to the actions of states may be a bit short-sighted and fail to capture important mechanisms that play a role in international relations. In practice, moral principles do influence the actions of states. Ingebritsen (2002: 11; 12) for instance demonstrates that the Scandinavian States have had an important influence on the international community when it comes to norms on conflict resolution and global environmental management. Clearly moral principles underlay the Scandinavian states’ actions in this case. To better understand the impact that norms have in international relations, an alternative perspective to realism is
therefore needed.
Constructivism can offer a good alternative perspective to realism. Realism is a state centred strand of international relations theory, in which states act in their own interest and seek to gain/maintain power in an anarchical system of self-help (Stanford Encyclopedia, 2010). In neo-realism the structure of the international system is the reason why states compete among themselves. This theory is about keeping the balance-of-power in equilibrium and states seeking their own preservation and at times universal domination (Mearsheimer, 2006: 71; Waltz, 1979: 118). An important critique of (neo-)realism that Ashley (1944: 244) purports, is that there is no concept of social power behind/constitutive of a states’ interest. He makes the point that (neo-)realism is an ‘orrery of errors’ since it is “a self-enclosed, self-affirming joining of statist, utilitarian, positivist, and structuralist commitments” (idem: 228). Constructivism on the other
7 hand focuses on issues of identity and interest, which leads to new meaningful interpretations of international politics, in which social construction matters (Checkel, 1998: 325).
Constructivism is a theory of international relations that forms a critique to the material assumptions of more traditional IR theories (Checkel, 1998: 326; Fierke, 2016: 162-163). The changes that occurred after the end of the Cold War revealed the importance of historical context (Fierke, 2016: 163). Alexander Wendt’s (1992) “Anarchy Is What States Make of It”, in which he shows that not only realist assumptions matter in international relations is an example of this (ibid.). He seeks to build a bridge between the realist and constructivist traditions (Wendt, 1992: 394). There are two important aspects of constructivism. The first being that the “environment in which agents/states take action is social as well as material”. Secondly “this setting can provide agents/states with understanding of their interest (it can “constitute” them)” (Checkel, 1998: 325). This aspect of constructivism is essential when it comes to understanding why and how norms matter in international relations. Another important point of constructivism is that material structures only matter because they are given meaning through the social context in which they are interpreted (Checkel, 1998: 326). This can be explained by the fact that constructivists
emphasize mutual constitution, which means that there is a process of interaction between agents and structures (ibid.).
In constructivism norms play an important role in constituting agents by providing them with an understanding of their interests (ibid.). This is connected to the logic of appropriateness which is associated with March and Olsen (1989). The logic of appropriateness is based on the idea that actions of actors are influenced by rules and norms that constitute legitimate behavior (Dunne et al., 2016: 351). The logic of appropriateness involves “reasoning by analogy and metaphor” (Checkel, 1998: 326). The central idea is that actors attempt to fulfil obligations that are connected to a certain identity, role, institution, membership of a community, etc. (March & Olsen, 2008: 689). These norms that play a role in constituting the interests of agents can be actively built by agents through norm entrepreneurship (Finnemore & Sikkink; 1998: 896). These norms are actively built by agents who have strong notions about what behavior is desirable/appropriate. These agents act as ‘norm entrepreneurs’ by gaining support for these standards of appropriateness, and persuading states to adopt them (idem: 896; 897- 901). In this way, small states can have a substantive influence on the international community, as the
8 Scandinavian states do (Ingebritsen, 2002: 11). Norms therefore do play an important role in international relations. This is an important insight when it comes to understanding R2P as this perspective helps to understand the meaning and influence and meaning of the R2P norm and human security.
A constructivist perspective is relevant with regard to both norms as they both have been ‘entrepreneured’ in a certain sense and both have the goal of influencing states’ behavior when it comes to certain issues. The human security norm seeks to influence the way international security is thought about and seeks to shift the focus to ordinary people (Paris, 2001: 87). The R2P norm came into existence after tragedies occurred in which human rights were violated and tries to set out how and when states should intervene to protect people (UN, 2014; Ferris, 2016: 390; Bellamy & Reike, 2010: 269). The goal of these norms obviously is to influence how states act in certain instances. Therefore, this fits the constructivist notion of the logic of
appropriateness and norm entrepreneurship. Human security and R2P will be discussed more in detail in the paragraphs below.
2.2 Human Security
Understanding the foundations of human security is essential in relation to R2P as this forms the basis of the R2P norm (Evans, 2007: 707-709). The goal of human security is to encourage scholars and policy makers to think about international security in a different way than only focusing on state interests, military defense and territory (Paris, 2001: 87). Human security entails the emphasis of the welfare of ordinary people when it comes to international security (ibid.). The first important reference to human security was made in the 1994 Human
Development Report (idem: 89). In this report the argument is made that security has been too narrowly interpreted for a long time and has neglected ordinary citizens (UNDP, 1994: 22). Human security is people-centred, concerned with how people “live and breathe in society” and how they can freely exercise their choices (idem: 23). The concept stresses that people should be able to take care of themselves (idem: 24).
There is no single definition of human security. Like other fundamental concepts the definitions of human security vary (UNDP, 1994: 23; Paris, 2001: 87; 88). However, the 1994 Human Development Report sought to make this concept more explicit (UNDP, 1994: 23). It sets out two main aspects of human security. Primarily, it means “safety from chronic threats as
9 hunger, disease and repression” (ibid.). The second aspect focuses on “protection from sudden and hurtful disruption in the patterns of daily life” (ibid.). Additionally, the report seeks to clarify which factors form a threat to human security. The list, the report states, is long, but threats to human security must be considered under these main categories: economic security, health security, food security, personal security, environmental security, community security and
political security (idem: 24-25). Personal security, the security from violence, is perhaps the most vital aspect of human security (idem: 30). Threats to personal security take several forms and include: threats from the state, threats from other states, threats from other groups, threats from individuals (ibid.). Political security is another important component of human security. This concept implies that the society people live in must honor their basic human rights (idem: 32). Human security is relevant with regards to the research question since R2P focuses on human security (Evans, 2007: 707-709). In R2P, protecting people against violence, takes a central place which will be discussed in the paragraph below.
2.3 The ‘Responsibility to Protect’ as humanitarian norm
R2P is a norm on humanitarian intervention that is based on the idea that the international community2 is responsible for coming into action when a state fails to do so (Bellamy & Reike, 2010: 269). R2P came into existence after a debate in the international community on how to react to human rights violations. The emergence of R2P is part of a “universal longing to prevent atrocities and to protect those affected by them (Ferris, 2016: 390). The tragedies in the Balkans and Rwanda in the 1990’s led the international community to examine how to react effectively when human rights are systematically violated (UN, 2014). The question at the heart of this debate was whether state sovereignty is unconditional or whether the international community can intervene for the sake of humanitarian ends (ibid.). In 2001 the Canadian government set up the Commission on Intervention and State Sovereignty (ICISS) as a response to the then
Secretary-General Kofi Annan’s question of when the international community should intervene with regards to humanitarian purposes (ibid.; ICISS, 2001: VII). In 1999 and 2000 SG Kofi
2The international community is considered to be the countries of the world considered
10 Annan made compelling pleas “to find out once and for all a new consensus on how to approach these issues” (ICISS, 2001: VII).
The 2001 report of the ICISS on the ‘The Responsibility to Protect’ introduces the concept of ‘sovereignty as responsibility’ as an answer to this question. This concept draws on the idea that in granting membership of a state to the UN, the signatory state becomes a
“responsible member of the community of nations” (ICISS, 2001: 13). This means that by signing the UN Charter the signatory state accepts the responsibilities of membership that are implicated in this signing (ibid.). This leads to a re-characterization of state sovereignty.
‘Sovereignty as control’ is converted to ‘sovereignty as responsibility’, which applies to internal as well as external duties (ibid.). Looking at sovereignty from this perspective has three
implications: 1) state authorities are responsible for protecting the safety and lives of citizens, 2) national authorities are internally responsible to their citizens and externally to the international community as function of their UN membership, 3) the agents of a state can be held responsible for their actions, this includes their acts of commission and omission (ibid).
Drawing upon the 2001 ICISS support was gathered at for R2P at the 2005 World Summit and commitment to this was reaffirmed with UN resolution 1674 (Bellamy & Reike, 2010: 267). In the 2005 World Summit outcome document the responsibility of individual states to protect their populations and the international community’s responsibility to intervene if needed is specifically named (UN, 2005). R2P is best understood as a commitment of political nature to act on shared moral beliefs that to a large extent are already embedded in international law, as there is nothing in the World Summit outcome document that creates new law (Bellamy & Reike, 2010: 273). However, it does contain the commitment to the dual responsibility of sovereignty discussed above (ibid.).
R2P consists out of three pillars. The first being the protection of state responsibility. This implies the internal responsibility of a state to protect its population against the four R2P crimes. These consist of ethnic cleansing, war crimes, genocide and crimes against humanity (Bellamy & Reike, 2010: 269) The second pillar encompasses the obligation of the international community to assist states in upholding this responsibility (ibid.; UN, 2015). Pillar three entails the international community’s responsibility to come into action when a state fails to uphold this responsibility (Bellamy & Reike, 2010: 269; UN, 2015). The international community should
11 come into action first through diplomatic means, but when these fail, coercive means can be used (Bellamy & Reike, 2010: 269). However, these can only be used under certain circumstances. The ICISS identifies two thresholds for intervention in their 2001 report. These are large-scale ethnic cleansing and large-scale loss of life (ICISS, 2001: XII; Weiss, 2006: 743). Additionally, four precautionary principles apply that need to be met. These are: 1) right intention, 2) last resort, 3) proportional means and 4) reasonable prospects (ICISS, 2001: XII; Weiss, 2006: 743). Also, all action undertaken must be in accordance with the UN charter and preferably the UN security council takes the final decision on intervention (Bellamy & Reike, 2010: 269; ICISS, 2001: XII).
Important to note is that intervention under R2P has been contested. When weapons of mass destruction were failed to be found after the US’ unilateral intervention in Iraq in 2001, the only valid legitimation left was protecting human lives (MacFarlane et al., 2004: 948). President Bush therefore tried to frame R2P in a way that it could be used as a justification after the fact for the intervention in Iraq (ibid.). However, this intervention did not meet the conditions needed to justify coercive action under pillar III of R2P (ibid.). The consequence of the US intervention in Iraq is that the international community is less comfortable with the idea of R2P (Weiss, 2006: 748). R2P has also been seen as a ‘Trojan Horse’ to legitimize interference of powerful states in the affairs of the weaker states (Bellamy, 2005: 32). The debate however also concerns the fact whether intervention under R2P “can achieve its explicit humanitarian objective” (Kuperman, 2013: 107). When NATO intervened in Libya this “gravely exacerbated humanitarian suffering” (idem: 134). Furthermore, according to Paris (2014: 593) the coercive instruments of R2P are likely to backfire. However, the R2P norm is about more than intervention (idem: 591). Protecting refugees is also an important component of R2P, which will be elaborated on in the following paragraph.
2.4 The ‘responsibility to protect’ and refugee protection
Several authors (Barbour & Gorlick, 2008; Coen, 2015) argue that refugee protection is an important aspect of R2P. Despite this fact, it is mostly associated with intervention (Barbour & Gorlick, 2008). There is however a clear connection between R2P and refugee protection to be made. According to Ferris (2016: 391) there is a connection between international refugee law and R2P as both have responded to similar dynamics such as: the desire to protect people from
12 atrocities and to promote international peace. Despite emerging at different times and in a different context. Additionally, displacement of large movements of people, serve as an early warning sign for the four R2P crimes (idem: 394). Often the arrival of large numbers of refugees has been the trigger for international concern (ibid.). Although there is a connection between R2P and refugee protection, refugees are only referred to in connection to the need to engage in conflict to avoid refugee outflows in 2001 ICISS report (ICISS, 2001: 5; 70.
R2P recognizes an obligation of the international community to ensure international protection (Barbour & Gorlick, 2008: 17). According to Achiume (2015: 693) the international community in principle bears a responsibility to protect refugees that are fleeing R2P crimes. This responsibility exists regardless of whether refugees are in or outside their country and is not dependent on their nationality (ibid.). Whether the international community bears a responsibility to protect refugees is a function of their vulnerability to R2P crimes (idem: 693). Therefore, the responsibility to protect refugees persists as long as they remain vulnerable to R2P crimes and only ceases to exist when this vulnerability comes to an end (idem: 719). R2P therefore only offers a basis to protect the subset of the global refugee population that is fleeing R2P crimes (idem: 716-717). An important assumption of this research is that, offering refugees protection who are fleeing R2P crimes should be a universally valid norm. With regard to protecting Syrian refugees the assumption is, that all Syrian refugees are fleeing R2P crimes and therefore need to be offered protection by the international community (idem: 717).
Offering refugees protection could be an essential part of the R2P norm. According to Barbour and Gorlick (2008: 1; 13; 17) “[t]here may be no easier way for the international community to meet its responsibility to protect than by providing asylum and other international protection on adequate terms”. Additionally, facilitating asylum is an import form of protection since it can mitigate the consequences of mass atrocities and prevent victimization (Coen, 2015: 1052). Bellamy (2015) states that the provision of safe passage and protection are one of the most straightforward and effective measures to fulfil the responsibility to protect Syrians fleeing Assad’s barrel bombs and Islamic State’s beheadings. Protecting Syrian refugees is “nothing short of requirement of R2P” according to Bellamy (ibid.). He goes further to say that states cannot on the one hand proclaim their support for R2P and on the other hand prevent granting them asylum (ibid.).
13 Important to note however is that the way R2P norm is currently formulated and
perceived might not highlight the ‘refugee protection component’. Several authors have argued that there is a lot work to be done when it comes to developing R2P as a norm to offer refugees protection. Harris Rimmer (2009: 2) for instance states that for R2P to fully become an ally of refugee advocacy serious conceptual work must be done to ensure that the “human rights foundations of the doctrine shine through”. Coen (2015: 1054) makes a similar point and states that for R2P to move forward as a norm in human protection, the international community must emphasize R2P as a mechanism to protect refugees. It should specifically “work to uphold
non-refoulement, the grant of asylum and the grant of temporary protection” (ibid.). This is important
regarding the analysis, because the fact that work has to be done when it comes to the R2P norm in order to offer refugees protection, has to be taken into account when assessing how R2P can play a role in protecting refugees in Turkey, Lebanon and Jordan.
2.5 R2P & Refugee law
To assess how R2P can offer refugees protection, it is important to understand the relationship between refugee law and R2P. To understand this relationship, it is important to first look at the foundations of international refugee law. The 1951 Convention Relating to the Status of
Refugees is the foundation of international refugee law (UNHCR, 2001: 6; 8). Throughout the years, states have shown a commitment to protecting refugees by acceding to this convention (idem: 6). The convention sets out “the rights and responsibilities of refugees and the obligations of the States that are parties to it” (ibid.). Furthermore, it gives a definition of the term ‘refugee’ and sets out the minimum standards for the treatment of persons who qualify for refugee status (idem: 8). According to the convention, a refugee is someone who is “unable or unwilling to return to their country of origin, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion”
(UNHCR, 1951: 3; 14). Another condition for someone to qualify as a refugee is that the person has to be outside his country of origin (idem: 14).
According to article 2 of the convention, every refugee has duties to their host country. Meaning that he/she has to conform to its laws and regulations (idem: 16; 17). The treaty additionally sets out the obligations that states have with regard to how refugees should be treated. Two important aspects of these obligations are the principle of non-discrimination and
14 freedom of religion. The principle of non-discrimination implies that states have to provide the provisions of the treaty without discrimination on the basis of race, religion or country of origin (idem: 17). Second, states have to treat refugees at least as favorable as their nationals when it comes to freedom of religion (ibid.). Another important component of refugee status and asylum is the principle of non-refoulement (UNHCR, 1977). This principle implies that states cannot return refugees to a country “where a person has reason to fear persecution” (UNHCR, 1977). In the 1951 Convention “[t]he principle of non-refoulement is so fundamental that no reservations or derogations may be made to it” (UN, 1951).
The definition of ‘refugee’ set out in the 1951 convention, has been expanded to include people fleeing conflict, which include the R2P crimes (Ferris, 2016: 393). This means that it is more broadly applicable than R2P (ibid.). Nevertheless, there is a connection between R2P and refugee law. As mentioned earlier, both responded to similar dynamics. There is however another connection: R2P is in line with international refugee law. According to the 2005 Secretary-General report on “implementing the responsibility to protect” R2P builds on, and needs to be in compliance with “existing State obligations under international human rights, humanitarian, criminal and refugee law” (UN, 2005). Therefore R2P, in theory has to be in line with the 1951 refugee convention.
However, the countries in this comparative case study (Turkey, Lebanon and Jordan) are not (fully) parties to this convention. Lebanon and Jordan are both not a party to the 1951
refugee convention (The Law Library of Congress, 2016a; Stevens, 2013: 3; UNHCR, 2001: 11). Additionally, both countries lack domestic legislation addressing the status of refugees (The Law Library of Congress, 2016a; Stevens, 2013: 3). Turkey in turn imposed a limitation when
ratifying the convention (The Law Library of Congress, 2016b). III. Methodology
To analyze how the ‘responsibility to protect’ can play a role in providing protection to Syrian refugees in Turkey, Lebanon and Jordan this research will focus on all three countries and thus is a comparative case study. These cases have been chosen to analyze since these are the countries hosting the most Syrian refugees and additionally all three countries fail to protect refugees sufficiently. Neither through international or domestic law. The analysis of how the R2P norm can play a role in protecting refugees in Turkey, Lebanon and Jordan consists out of three
15 components: 1) an analysis of the legal protection that refugees are being offered and of the ‘gaps’ in legal protection, 2) an analysis what refugees’ needs are in these countries and how the R2P norm could help accommodate them, 3) an analysis of how well the R2P norm is
institutionalized and how the international community can play a role in establishing this norm. To assess the legal protection that refugees are being offered in Turkey, Lebanon and Jordan, it is essential to analyze how much protection refugees are being offered. In order to establish how much protection at the domestic level Syrian refugees are being offered, it is necessary to look at laws and policies of the concerning governments that relate to refugees. These need to be taken into consideration to establish what the situation ‘in theory’ should be in regard to protection. This allows an analysis of which ‘legal’ gaps there are in the concerning countries which in turn means that an assessment can be made of how/where the R2P norm could fill the ‘protection gap’. As an indicator for offering refugees protection the non-refoulement principle will be used. If refugees remain vulnerable to refoulement they are not being offered sufficient protection. This because according to the R2P norm refugees have to be offered protection as long as they are vulnerable to R2P crimes (Achiume, 2015). If they are vulnerable to refoulement they are therefore not being offered sufficient protection.
Relevant documents to establish how much protection refugees are being offered are laws, protocols, policies and other legal instruments related to offering refugees protection. In the case of Turkey it is important to look at the “geographical limitation” that has been applied to the 1951 UN refugee convention, the law on settlement, the law on foreigners and international protection and the temporary protection regulation (The Law Library of Congress, 2016b). In the case of Lebanon the relevant documents are constitutional provisions, the law regulating the entry and stay of foreigners and the “memorandum of understanding” (MOU) between Lebanon and the UNHCR (The Law Library of Congress, 2016a). Documents that are relevant to assess how much protection refugees are offered in Jordan are: constitutional provisions, the law concerning residency and foreign affairs and the MOU between UNHCR and Jordan (The Law Library of Congress, 2016c). Due to the language barrier secondary sources may be consulted.
Furthermore, it is essential to assess which needs refugees residing in the three countries have. Again, here Human Rights Watch and UNNHCR reports offer a good source for analysis. The important aspect here is that factors beyond the ‘legal side’ should be considered. The
16 UNHCR (2000) report on “Minimum standards and essential needs in a protracted refugee situation” offers a good perspective to assess of what nature these needs might be. The report argues that essential needs should be considered rather than minimum standards (idem: 3). Minimum standards refer to the sectors on which human life is dependent such as: security, shelter, water, food, health and sanitation (idem: 3). “Essential needs are those elements required to lead a safe and dignified live” (ibid.). Essential needs go beyond minimum standards as they are time and context dependent (ibid.). The report states that at the start of an emergency, refugees’ needs might be congruent with minimum standards but that overtime essential needs will grow to enable their human functions and capabilities (idem: 3).
This connects to the R2P norm as this norm is based on human security which considers that people should be able to freely exercise their choices and emphasizes protection from disruption from daily life (Evans, 2007: 707-709; UNDP, 1994: 23; 24). Therefore, the point can be made that to effectively protect refugees, their needs that are needed to freely exercise their choices and have a normal pattern of daily life have to be met. When assessing refugees’ needs it is therefore important to look beyond the minimum standards and analyze whether the essential needs are being met. In this analysis the focus will be on essential needs, specifically on
education and employment as these are named in the report as essential needs (idem: 21; 23). Here the focus is on how the norm could be extended to accommodate refugees’ needs and how the norm could play a role in offering better standards of life.
The first two components focus on the ‘local’ level, meaning that an analysis is made of how the R2P norm can play a role in protecting Syrian refugees at the domestic level in Turkey, Lebanon and Jordan. In contrast, the last component of this analysis focuses on the international community since it is essential to get an understanding of how well the R2P norm is
institutionalized. To be able to do this, it is important to get an understanding of the R2P norm in general in the UN setting and to assess how well the norm is institutionalized at the UN-level. When a norm is institutionalized it has been established in an organization or culture (Oxford Dictionary, 2018). Therefore, an important indicator of institutionalization is whether a norm is embedded in an organization (Checkel, 1999: 92). In other words, whether it has become part of ‘the logic of appropriateness’ of an organization.
17 So, if the R2P norm is institutionalized at the UN-level and in individual states, it would mean that they act in accordance with this norm. To analyze this the discourse surrounding the R2P norm in the UN-setting has to be analyzed. Important to look at is whether R2P is
referenced in resolutions since this would indicate that the resolution was informed by the R2P norm. Regarding the analysis how the R2P norm can play a role in refugee protection in Turkey, Lebanon and Jordan it is important to get insight into whether the norm is institutionalized in other countries. Here the emphasis is on norm entrepreneurship, which is important to assess since the international community can play a role in establishing this norm in Turkey, Lebanon and Jordan.
IV. Analysis
4.1 Legal refugee protection
Turkey
Turkey was one of the original signatories of the 1951 UN Convention relating to the Status of refugees. However as mentioned before,Turkey singed this convention with a geographical limitation (Kirsisci, 1996: 293). This geographical limitation to the convention means that in Turkey the convention only applies to refugees fleeing events in Europe. Therefore, only Europeans can apply for asylum in Turkey (ibid.; The Law Library of Congress, 2016b). Thus, Syrian refugees are not offered any protection in Turkey under the 1951 refugee convention. They are therefore dependent on domestic law relating to the status of refugees.
One of these domestic laws is the law on settlement. Settlement Law 2510 was issued on the 14th of June 1934 (Ülker, 2008: 3). The significance of this law is that it acknowledges the influence of nationalist ideology on policies of the state (ibid.). From 1934 till 2006 this law regulated the official settlement of foreigners (Law Library of Congress, 2016b). This law restricted the right of immigration and asylum to persons of Turkish culture and descent (ibid). Nationalist discourse of the time influenced the way this law was phrased, which is evidenced by the use of terms such as ‘Turkish race’, ‘Turkish culture’ and ‘descent’ in the final draft (Ülker, 2008: 5). Turkish culture is associated with having Turkish as one’s mother tongue (ibid.). In 2006 a new law on settlement was adopted. This law reaffirmed the emphasis on background (Law Library of Congress, 2016b). Formal settlement which can lead to Turkish citizenship is
18 still reserved for people of Turkish descent (ibid). Syrian refugees are therefore not offered protection by the settlement law.
Another relevant law is the Law on Foreigners and International Protection which was adopted in 2013 (Law Library of Congress, 2016b). This law seeks to regulate procedures and principles with regard to foreigners’ entry, stay and exit in Turkey (Turkish Ministry of Interior, 2014, art.1). Additionally, it sets out the scope of the protection to be provided to foreigners that are seeking protection (ibid.). This law was prepared in 2005 after Turkey was expected to bring legislation regarding migration in line with EU standards during the accession talks with the EU (Soykan, 2012: 2). This law is significant as it marks the end of the period in which secondary legislation regulated asylum (idem: 2). The Law on Foreigners and International Protection was welcomed by the UN as it “incorporates key elements of international humanitarian and human rights law” (UN, 2013).
This law in theory offers protection to individuals who are not able to return to their countries because they might face the death penalty, torture, punishment, inhumane treatment or where there is an ongoing armed conflict (Soykan, 2012: 5; Turkish Ministry of Interior, 2014, art. 63). This can be interpreted as prohibiting refoulement (Soykan, 2012: 6). In this sense the argument could be made that this law offers Syrian refugees sufficient legal protection. Even though, this law means an advancement for individuals seeking protection there are still a few legal shortcomings (ibid.). Remarkably, this law preserves the geographical limitation even though lifting this limitation was required to reach EU standards (idem: 2;5). However, this law does extend protection to groups that do not fall under the 1951 Refugee Convention. It can be argued though that this protection might not be sufficient as it lacks a naturalization/integration option. This means that non-European refugees must leave Turkey in the long term, which renders them vulnerable to smugglers (idem: 9). This can indicate that this law does not offer Syrian refugees proper protection.
Another important policy with regard to Syrian refugees is the Temporary Protection Regulation. This regulation was issued on the 22nd of October 2014 (Law Library of Congress, 2016b). This regulation grants protection to foreigners who were forced to leave their country and are unable to return. Another requirement is that they arrived at the Turkish border in masses and that their requests cannot be assessed individually (Turkish National Authorities, 2014).
19 Refugees from Syria who fled to Turkey due to events in Syria temporarily, and ask for
protection under normal circumstances, are granted temporary protection by the Turkish Government (UNHCR, 2017). Under normal circumstances they will not be sent back to Syria (ibid.). The Temporary Protection regulation therefore protects Syrian refugees from refoulement to some extent. But as discussed before there is no option for long term integration (Soykan, 2012: 3). Syrian refugees, rather may be eligible to be resettled in third countries (ibid.). Overall the conclusion can be drawn that Turkey offers limited protection to Syrian refugees. The geographical limitation to the 1951 Convention relating to the Status of Refugees and the Settlement Law does not protect Syrian refugees from refoulement. The law on Foreigners and International Protection in contrast in theory offers protection against refoulement however this law lacks an integration which means that non-Europeans have to leave Turkey in the long-term. As does the Temporary Protection Regulation. The R2P norm could therefore fill an important protection gap in Turkey. It would offer Syrian refugees protection as long as they are vulnerable to R2P crimes. Also, the R2P norm could offer a good alternative to lifting the geographical limitation on the 1951 Convention. ‘Institutionalizing’ the R2P norm in Turkey would mean that Syrian refugees would be protected from refoulement without having to lift the geographical limitation. This might be a more feasible option as Turkey has not decided to lift the limitation in the past, even when this was set as a requirement by the EU (Soykan, 2012: 2; 5).
Lebanon
According to the Lebanese constitution Lebanon is a founding member of the UN and is
committed to its charter and the Declaration of Human Rights (Government of Lebanon, 1995). The argument could be made that this requires the Lebanese government to enact comprehensive legislation regarding refugees (The Law Library of Congress, 2016a). However, Lebanon does not have any legislation of this kind (ibid.). Neither has Lebanon signed the 1951 Convention Relating to the Status of Refugees or the 1967 Protocol (ibid.). The domestic legislation that regulates refugees in Lebanon is the “Law Regulating the Entry and Stay of Foreigners in Lebanon and their exit from the Country” (ibid.). According to this law any foreigner who has been convicted or is pursued for a political crime, by an authority that is not Lebanese, or whose freedom is threatened because of political considerations may ask for political asylum
20 not granted asylum, it is not permissible to deport this refugee to a state where his/her
life/freedom is threatened (idem: art. 31). In this sense, this law offers a form of protection against refoulement, however, it does not fully set out protection for refugees as it does not include a definition of a refugee (UNHCR, 2004: 2).
Because of this absence of national refugee law, UNHCR signed a Memorandum of Understanding (MOU) with the Government of Lebanon in September 2003 (UNHCR, 2004: 1). This MOU offers “unprecedented legal assurances to refugees and clearly spells out the
respective obligations of UNHCR and its government counterparts” (idem: 1). The MOU foresees in issuing temporary residence permits to asylum seekers. This residence permit is usually valid for three months. In this period UNHCR reviews the asylum claim. If the claim is recognized, the permit can be extended for a further 6 to 9 months (ibid.). In this period UNHCR will find a long-term solution for the refugee (ibid.). An important reason why the MOU was signed was the acknowledgement on the part of UNHCR that Lebanon’s accession to the 1951 Convention and 1967 Protocol was not an immediate option due to constraints faced by the Lebanese Government (UNHCR, 2004: 2).
Syrian refugees are offered not offered proper protection in Lebanon. Lebanon is not a party to the 1951 Convention relating to the Status of Refugees and its protocol. The “Law Regulating the Entry and Stay of Foreigners in Lebanon” offers a form of non-refoulement but does not clearly set the terms for protection. The MOU offers unprecedented protection, as it offers temporary residence. However, it is only temporary. Therefore, they do not offer full protection to Syrian refugees. The R2P norm can therefore offer more protection than the temporary residence permits as this would offer them protection as long they are vulnerable to R2P crimes. Which could be longer than the three to nine months the temporary residence permits offer. Another point that is important to consider is, that it could be easier to apply the R2P norm than to accede the 1951 UN refugee convention.
Jordan
As mentioned earlier, Jordan is not a Party to the 1951 Convention relating to the status of Refugees or the 1967 Protocol (UNHCR, 2013:1). Additionally, Jordan does not have any national legislation relating to the protection of refugees (ibid.). Although article 21(1) of the Jordanian constitution does offer the option of political asylum. It states that “political refugees
21 shall not be extradited”. Jordan however, has not enacted legislation that regulates the status of refugees (Government of Jordan, 2011; The Law Library of Congress, 2016c). This article in theory recognizes the principle of non-refoulement (UNHCR, 2013: 7).
A relevant domestic law when it comes to refugee protection is “The Law on the Residence of Foreigners”. It is applicable to refugees and asylum-seekers in the absence of specific legislation (idem:1; The Law Library of Congress, 2016c). This law is applicable to all foreigners in Jordan and does not make a distinction between refugees and non-refugees (The Law Library of Congress, 2016c). It refers to refugees in some articles but does not define them as a separate category (ibid.). Article 10 of this law names refugees in reference to the regulation concerning the granting of travel documents, despite there not being any regulation about the conditions under which refugees can be admitted to Jordan (Jordanian National Authorities, 1973; ibid.). Jordan therefore clearly lacks legislation setting out the terms for refugee protection.
In the absence of legislation regarding refugee protection, just like in Lebanon a MOU was signed between UNHCR and the Government of Jordan in 1998 (UNHCR, 2013: 1). This MOU sets out the parameters for cooperation between the Government of Jordan and UNHCR and focuses on “the major principles of international protection” (ibid.). Most importantly, it gives a definition of refugees and sets out the principle of non-refoulement (ibid.). According to the MOU, asylum-seekers can stay in Jordan while their refugee status is determined. After recognition they can stay in Jordan for a further six months, during which a durable solution must be found (ibid.). Although the principle of non-refoulement is set out in the MOU and article 21(1) of the constitution, Syrians have been deported in 2013 on the grounds of national security (idem: 7). Additionally, there have been instances of denial of access to Jordan for undocumented refugees fleeing Syria (ibid.).
Syrian refugees lack a lot of protection in Jordan. Jordan is not a party to the 1951 Convention and has no national legislation regulating refugee protection. The Law on the Residence of Foreigners does not give a definition of refugees. The MOU could provide protection against
refoulement to some extent, while the refugee status is determined. However, there have also
been cases where Syrian refugees have been deported. Accession to the 1951 Convention Relating to the Status of Refugees could fill this gap. This is a recommendation UNHCR makes in their 2013 periodic review of Jordan, as it would mean an “establishment of a national legal
22 framework” which could “provide refugees with international protection” (UNHCR, 2013: 5) However, the R2P norm could be a better option as it does not require accession.
4.2 Refugees’ needs
In the section an analysis is made of the essential needs that Syrian refugees in Turkey, Lebanon and Jordan have. This analysis will not focus on minimum standards, as the fact that minimum standards need to be met is a central assumption of essential needs. Essential needs namely go beyond minimum standards (UNHCR, 2000: 3). However, this does not alter the fact that
minimum standards might not be met in the host countries. In Lebanon for instance the ‘no camp policy’, which refuses the establishment of official refugee camps for Syrian refugees might mean that minimum are not being met (Sanyal, 2017: 117). Undoubtedly this also affects the Syrian refugees. This analysis however focuses on essential needs. The focus is on education and employment as these are important essential needs (UNDP, 1994: 21; 23). In March 2016 1,4 million Syrian refugee children in host countries were out of school and in need of educational assistance (Unicef, 2016: iii). Restrictions when it comes to legal status and work permits exacerbate poverty and make it impossible for families to afford school fees (Human Rights Watch, 2017b). Around 2,3 million Syrian children are out of school in the host countries
(Unicef, 2017: i). When it comes to Syrian refugees and employment in host countries, according to the ILO (2015: 4) there are concerns about access to work, job opportunities, working
conditions and wage levels, for the refugees as well as the domestic population. In the paragraphs below the situation regarding education and employment for Syrian refugees in Turkey, Lebanon and Jordan is discussed.
Turkey
Although Syrians are offered temporary protection in Turkey, they face many obstacles in regard to registration, employment, health care and education (Human Rights Watch, 2016b). Challenges for Syrian refugees in Turkey are: vulnerability to exploitation, housing and
education (ibid.). There has been some acknowledgement in policies that Syrian refugees are likely to stay in Turkey permanently. However, these progressive integration policies need to be implemented in a more holistic way, more coordination between different public institutions is needed (ibid.). Furthermore, Syrian refugees lack access to formal employment and education (ibid.). A decree implemented in January 2016 allowing some Syrians to apply for work permits
23 has had little effect, as very few permits have been issued in practice (Human Rights Watch, 2017; Human Rights Watch, 2016b).
When it comes to education, hundreds of thousands Syrian children are not able to attend school and high rates of child labor persist (Human Rights Watch, 2016b). According to the Unicef (2017: 14) 42% of the registered school aged Syrian refugees in Turkey were out of school in December 2016. The enrolment of Syrian refugees in middle and secondary education is still low despite scaling up the provisions of education (idem: 15). The biggest challenges when it comes to education for Syrian refugees in Turkey are the socio-economic conditions of Syrian families: insufficient knowledge of the Turkish language, and the unavailability of catch up programs (ibid.). The Unicef report suggests that the resilience of the Turkish education system could be built up by expanding opportunities for Syrian refugee children to learn Turkish (ibid.).
Lebanon
New residency policies that were introduced in 2015 in Lebanon had a big impact on Syrian refugees. Because of these residency policies 70% of Syrian refugees lost their legal status (Human Rights Watch, 2016a; Human Rights Watch, 2016d). This restricts their access to education, employment, and health care (Human Rights Watch, 2016a). Furthermore, it leaves them vulnerable to abuse, such as sexual abuse and labor abuse, since they have no legal status they do not have the ability to ask the authorities for protection (ibid.). Employers exploit the fact that they cannot complain to the authorities and often underpay them (Human Rights Watch, 2016d). Some Syrian women have also said that employers have tried to exploit this fact by trying to sexually exploit them (ibid.). Another factor to take into account is that Syrian refugees now compete with the Lebanese local population for jobs (Thorleiffson, 2016: 1077). Refugees accept lower wages than the Lebanese and this competition aggravates communal tensions (idem: 1077; 1080).
The new residency policies have also affected children. Children are having to work in order to sustain their families, as they are less likely to be checked at checkpoints and can move more freely than adults (ibid.). This keeps them from getting an education. Similar to Turkey, also in Lebanon lots of Syrian children do not have access to education. During the school year of 2015-2016 approximately 2500,000 Syrian children were not in school (Human Rights Watch,
24 2016a). According to Unicef (2017: 16) 34% of the school aged Syrian children were out of school. This was due to child labor, parents’ inability to pay for transport and lack of language support. Another contributing factor is arbitrary enrolment requirements set by school directors (Human Rights Watch, 2016a). For instance, some school directors did not allow Syrian children without a valid residency permit to enrol, although this is not officially required (Human Rights Watch, 2016d). These factors combined meant that only 5% of Syrian children aged between 15 and18 were in school (Human Rights Watch, 2016a).
Jordan
In Jordan the situation for Syrian refugees is different than in Turkey and Lebanon. In 2016 Jordan became the first Arab country to ease the provision of work permits (UNCHR, 2017d). It became easier for Syrian refugees to apply for work permits since the fees have been waived and the administrative requirements were loosened (ibid.). Syrians can now easily apply for work permits “in sectors approved for foreign workers, such as agriculture, construction, textiles and food” (ibid.). Additionally, in February 2017 “the Jordan Compact” was announced. The compact aims “to improve the livelihoods of Syrian refugees by granting them new legal work opportunities” (Human Rights Watch, 2017c). This is an improvement as before having refugee status in Jordan did not include the right to work (ILO, 2015: 6). A study 2015 of the
International Labor Organization (ILO) found that only 10% of the employed Syrian refugees had formal work permits. Furthermore, the study sheds light on the fact that most Syrian
refugees at that time were working in the informal economy (ILO, 2015: 6). They were generally paid less and had worse contracts compared to Jordanians working in the same sector (idem: 6-7). In theory “the Jordan Compact” could make the situation regarding employment for refugees better, as it aims to grant them legal work opportunities (Human Rights Watch, 2017c).
Regarding education Jordan’s Education Ministry took important steps to such as relaxing documentation requirements and doubling the number of schools to address obstacles for Syrian children to obtain education (ibid.). In 2016 80,000 Syrian refugee children were not in school. However, space was created in schools for 50,000 more children. Furthermore, a catch-up program was established (ibid.). In comparison to Turkey and Lebanon, the number of Syrian children out of school is a lot lower in Jordan. In Jordan this figure is namely only 15% (Unicef, 2017: 16). According to Human Rights Watch (2016d) “Syrian refugee children in
25 Jordan face a bleak educational present, and an uncertain future”. However, the measures taken by the Jordanian Education Ministry aims to get more children into school (ibid.).
In Turkey and Lebanon, the situation for Syrian refugees regarding education and employment could be better. It is difficult for Syrian refugees to access employment and education in Turkey. Very few work permits have been issued and 42% of the registered Syrian children are out of school due to many factors. In Lebanon 34% of the school aged Syrian children is out of school. The new residency policies, which caused 70% of Syrian refugees to lose their legal status, have restricted the access of Syrian refugees to education and employment. It is safe to say that for a big part of the Syrian refugee population the essential needs education and employment are not being met which renders them vulnerable to all kinds of abuses. The argument can therefore be made that to fully offer Syrian refugees protection, the R2P norm should be extended to safe guard education and employment. In Jordan this however is less needed than in Turkey and Lebanon as Syrian refugees already have good access to education and employment. This has been achieved through policy measures, which could become part of the R2P norm.
4.3 Institutionalization of the R2P norm
This analysis first focuses on the institutionalization of the R2P norm at the UN-level. An
important starting point for this is the 2005 UN World Summit as all governments “committed to upholding their responsibility to protect” in the World Summit outcome document (Adams, 2015: 10). In theory therefore, all states should act in accordance with the R2P norm. Despite this fact UN agencies, regional organizations and individual states have struggled to uphold their responsibility to protect when it comes to the Syrian people (Adams, 2015: 3). Adams (2015: 5) even goes further and argues that the failure of the Security Council regarding the violence in Syria, means that the permanent members of the Security Council bear a special burden of responsibility. The fact that the Security Council as well as individual states have not upheld their ‘responsibility to protect’ Syrian people suggests that the R2P is not institutionalized. This is analyzed more in detail in the paragraphs below.
First, it is important to look at whether UN resolutions have been informed by R2P. After the 2005 World Summit and the commitment to the R2P norm, 68 UN Security Council
resolutions have referenced R2P (Global Centre for the Responsibility to Protect, 2018). The primary responsibility of the government of a state to protect its citizens is often recalled in the
26 resolutions (Global Centre for the Responsibility to Protect, 2018). The first time the Security Council referenced R2P in regard to coercive military measures was in 2011 in resolution 1970 and 1973 concerning Libya (Adams, 2015: 10; UNSC, 2011). With Resolution 1973 the UNSC authorized the use of force in Libya (Mohamed, 2012: 224; UNSC, 2011). It states that it authorizes Member States “to take all measures necessary” to “protect civilians and civilian populated areas under threat of attack” (UNSC, 2011). This led to the belief that R2P had triumphed. Former UN SG Ban Ki Moon stated that “it should be clear to all that the
Responsibility to Protect has arrived” at a roundtable on R2P (UN SG, 2011). However, whether Libya was triumph of R2P is debatable (Mohamed, 2012: 226; Morris, 2013). Nevertheless, after referencing R2P in this context, it was referenced in many other resolutions. Concerning
thematic resolutions as well as resolutions condemning the threat of mass atrocities (Adams, 2015: 11). The fact that the R2P norm has been referenced in UN resolutions suggests that the norm does or did have some influence at the UN-level and to some extent might be
institutionalized.
R2P has also been referenced in resolutions concerning the conflict Syria (Global Centre for the Responsibility to Protect, 2018). The first resolution (2139) referencing R2P regarding the Syrian conflict was adopted in 2014 (UNSC, 2014a). This resolution demands that “all parties take appropriate steps to protect civilians” (ibid.). Additionally, it stresses that the primary responsibility to protect lies with the Syrian government (ibid.). This primary responsibility was reiterated in following resolutions: 2165, 2254, 2258 and 2332 (UNSC, 2014b; UNSC, 2015a; UNSC, 2015b; UNSC, 2016). Even though R2P has been referenced in these resolutions R2P has not been applied to the conflict in Syria in the same way as was the case in Libya. It has not been used to legitimize coercive measures. This can be explained by the fact that the Libyan case served as a backdrop for the debates on how to respond to the situation in Syria (Morris, 2013: 1274).
According to Morris the linking of the Libyan case, which was justified by referencing R2P, to the Syrian case has been “employed to justify inaction” (idem: 1277). The inability of UNSC to act in Syria has been portrayed as resulting from “the alleged misuse of R2P in Libya” (Adams, 2015: 20). However, according to Adams this is due to a fracture, linked to a strategic clash, between the P3 (United States, United Kingdom and France) and the P2 (China and
27 Russia) in the Security Council (ibid.). China and Russia both have a direct interest in Syria. Especially, the Russian strategic interests have been very prominent in the UNSC debate (Morris, 2013: 1275). Russia and China therefore have vetoed many resolutions regarding the situation in Syria. Russia had notably blocked eight resolutions (McKirdy, 2017). This shows that the R2P norm is not completely institutionalized as Russia and China have not upheld the R2P norm. They have obstructed offering the Syrian people protection in the UN-setting and have put their interests first. As a consequence, the R2P norm cannot be upheld by the UN. This shows the potential importance of a proposed code of conduct, which states that permanent members of the UNSC should refrain from using their veto in matters concerning mass crimes (Adams, 2015: 20). This is referred to as the ‘responsibility not to veto’ (ibid.).
The fact that R2P has not been institutionalized fits in well with a point that Adams makes. He points out that the failure to end the atrocities in Syria is “not a failure of R2P, but of the imperfect actors and institutions charged with its implementation (idem: 3). This is relevant with regard to refugee protection as this indicates that the R2P norm might have to be
institutionalized more. However, an important aspect is that offering refugees protection possibly is a less problematic issue than intervention under R2P. Morris (2013: 1266) argues that strategic interests are inevitably linked to decisions concerning coercive military intervention and
therefore these decisions “should be made outside of the R2P framework”. The best way to preserve R2P is though excision of the coercive elements (ibid.). The R2P norm could therefore become more institutionalized if it focuses on other elements. Refugee protection could be one of those. But even then, the R2P norm, with a focus on refugee protection, would still need to be institutionalized more as actors now are not acting in accordance with this norm. The EU for instance is not offering Syrian refugees enough protection as they remain vulnerable to R2P crimes as they might be sent back to Turkey, as a consequence of the EU-Turkey deal (European Council, 2016). Furthermore, the EU fails to offer safe passage as there are limited legal
pathways to Europe. Refugees therefore must embark on dangerous journeys (UNHCR, 2017e: 1). Offering refugees proper protection would mean offering them safe passage (Bellamy, 2015).
For offering protection to Syrian refugees in Turkey, Lebanon and Jordan the fact that this norm has not been institutionalized in general, means that this has to happen before it can be meaningful. In order for Turkey, Lebanon and Jordan to offer protection to refugees under R2P it
28 has to become part of their ‘logic of appropriateness’. For this to happen, the norm might have to be institutionalized in a more general sense in the UN setting. Also, there should be more
emphasis placed on protection refugees fleeing R2P crimes. This is in line with the points Harris Rimmer (2009: 2) and Coen (2015: 1054) make that there must be more emphasis on R2P as a refugee protection mechanism. Countries that are strong supporters of R2P could play an essential role in establishing this norm and shifting the focus to protecting refugees.
Additionally, UN agencies could play an essential role in emphasizing the protection of refugees under R2P. Together they could act as norm-entrepreneurs. For the norm to be meaningful in regard to refugee protection in Turkey, Lebanon and Jordan, these countries have to
institutionalize the norm. This could become part of their ‘logic of appropriateness’ through norm-entrepreneurship.
V. Conclusion
This paper started with the fact that Syrian refugees are not being offered sufficient protection in the host countries Turkey, Lebanon and Jordan. For instance, in Lebanon new residency policies caused lots of refugees to lose their legal status and the government struggles to meet refugees’ needs (Human Rights Watch, 2016a). In Jordan and Turkey Syrian refugees are not offered proper protection, as they are not recognized under domestic and international law (UNHCR, 2013: 1; Achiume, 2015: 720). The goal of this comparative case study was to analyze how the R2P norm can play a role in providing protection to Syrian refugees in Turkey, Lebanon and Jordan. R2P namely could namely be a good contribution to refugee protection, as it contends that the international community bears a responsibility to offer refugees fleeing R2P crimes protection (Barbour & Gorlick, 2008: 17; Achiume, 2015: 693). Since all Syrian refugees are fleeing R2P crimes, the international community in theory has to offer them protection (Achiume, 2015: 717). The analysis focused on: 1) the (gaps in) legal protection, 2) Syrian refugees’ needs and how the R2P norm could accommodate them, 3) an analysis of the institutionalization of the R2P norm.
The analysis shows that the R2P norm can play a role in providing protection to Syrian refugees in Turkey, Lebanon and Jordan in several ways. First, it could fill gaps in legal
protection in all three countries. In Turkey the norm would fill a legal protection gap caused by the geographical limitation imposed on the 1951 UN refugee convention which domestic
29 legislation fails to properly bridge. Turkey therefore only offers limited protection to Syrian refugees. The R2P norm, under which all Syrian refugees would be protected could protect Syrian refugees from refoulement. Also in Lebanon, Syrian refugees are not being offered proper protection. There are no clearly set out terms for non-refoulement and refugees can only be offered temporary protection (for three to nine months) under the terms of the MOU. The R2P norm therefore can also fill the legal protection gap in Lebanon, as this would offer Syrian refugees protection as long as they are vulnerable to R2P crimes. Which could be longer than three to nine months. In Jordan the R2P norm could also offer Syrian refugees more protection since Jordan is not a party to the 1951 refugee convention and has no domestic legislation concerning refugee protection. In all three countries the R2P norm could play a role in providing protection for Syrian refugees by filling current ‘legal protection gaps. Important to consider is also that applying the R2P norm might be easier than acceding the 1951 UN Refugee
Convention, to which Lebanon and Jordan are not a party, as it does not require accession. In Turkey’s case it might be easier to apply the R2P norm than to lift the geographical limitation.
The analysis of the needs that Syrian refugees’ have shown that the R2P norm could play a role in providing essential needs, if the norm is extended. The analysis focused on employment and education as these are important essential needs. In Turkey and Lebanon, a big part of the Syrian refugee population does not have access to education and employment. In Turkey only very work permits have been issued and 42% of Syrian refugee children are out of school. In Lebanon 70% of the Syrian refugees lost their legal status and now have less access to education and work. In Turkey and Lebanon, the essential needs education and employment are not being met. In Jordan however, the situation for Syrian refugees is a lot better as they have more access to education and employment thanks to policy measures. Jordan has made it easier for refugees to get work permits and has committed to improving the livelihoods of refugees’ through the “the Jordan Compact”. The argument can be made that to fully offer refugees protection the R2P norm should be extended to include providing essential needs. This would connect well to the underpinnings of R2P, which are based on human security. Human security stresses that people should be able to take care of themselves and freely make their own choices (UNDP, 1994: 23;24). Providing essential needs for refugees would therefore fit in well with this conception. If the norm is extended the R2P norm could play a role in providing protection for Syrian refugees by providing essential needs.
30 Lastly, it is important to consider that before the R2P can play a role in providing
refugees in Turkey, Lebanon and Jordan protection, the norm first must be institutionalized. The R2P norm has not been able to be institutionalized properly at the UN-level as resolutions connected to R2P can be vetoed by the permanent members of UNSC. China and Russia have done is this in relation to resolutions concerning Syria. For the R2P norm to be able to play a role in providing refugees protection therefore, it has to be institutionalized more. Additionally, there should be more emphasis on the ‘refugee protection component’ of R2P. Countries that are strong supporters of R2P and UN agencies could act as norm-entrepreneurs, and try to
institutionalize the R2P norm with an emphasis on R2P as refugee protection mechanism. For the R2P norm to play a role in providing protection to Syrian refugees in Turkey, Lebanon and Jordan these countries also have to institutionalize this norm. If this is done the norm can play an important role in providing legal protection to Syrian refugees in Turkey, Lebanon and Jordan. Furthermore, if the R2P norm is extended to include essential needs, it can play an important role in providing employment and education to Syrian refugees. Critiques of the R2P norm include that it is based on ideas of the west and must be decolonized (Mahdavi, 2015). This paper
however shows that the R2P norm can also be very beneficial to non-western people, in this case Syrian refugees. This could offer a basis for the R2P norm to be accepted more in non-western countries.
A few shortcomings of this research must be kept in mind. Firstly, a central assumption of this research is that offering refugees protection who are fleeing R2P crimes should be a universally valid norm. This is a shortcoming, as this conceptually only offers protection to Syrian refugees as long as they are vulnerable to R2P crimes. However, some Syrian refugees might not be able to return to Syria even if they are not vulnerable to R2P crimes anymore. One could argue that they still need to be offered protection in that case. Nevertheless, this research offers insight into a very different aspect of R2P than intervention and reflects on how the norm could be adapted and could be applied to offer protection. Another shortcoming is that in the analysis of refugees’ needs only two indicators (education and employment) were considered. This was done due to lack of time and space. Undoubtedly, the analysis would have been more complete if other essential needs would have been taken into account. This would also have allowed a more in-depth analysis of how the R2P norm could be extended. The same goes for considering minimum standards. In future research this could be a meaningful addition. A last
