Elections in the Netherlands: what the outcome of the Dutch Elections says about the universality of human rights

Demonstration for the rights of refugees in Lausanne, France on 15 September 2015  (cc-by-nc-nd)
Demonstration for the rights of refugees in France on 15 September 2015  (cc-by-nc-nd)

Demonstration for the rights of refugees in France on 15 September 2015 (cc-by-nc-nd)

 

By Arja Oomkens -

 

“Will you consider the rights of children when you vote this week?”

- “Sure! Who are you going to vote for?”

“I don’t have a residence permit, so I’m not allowed to vote.

- “Really, how come? Your Dutch is perfect!”

 

Last week, Anood (22) campaigned for children’s rights before the final debate on the Dutch parliamentary elections in The Hague. Her goal was to encourage young adults to go and vote, and for them to consider their impact on the protection of human rights. She described to passersby her daily reality of feeling Dutch while living in fear of being sent back to Iraq – a country that she has no connection with, because she grew up in the Netherlands. She hoped to engage youngsters to think about the significance of their vote: “Especially during elections, citizens cannot avert their eyes. Every vote makes a difference.”

 

In 2008, Anood fled with her family from Iraq to the Netherlands. Nine years later, she has a high school degree and studies biology in The Netherlands, speaks fluent Dutch, and has built up a large network of friends. And yet, every day Anood wakes up with the possibility of being sent back to Iraq. How is it possible that she still has no residence permit?

 

In 2012, the newly elected members of parliament were posed similar questions. This resulted in arrangements being made for a so-called Child Pardon Act. The aim of this act was to grant residency to children who had resided in the Netherlands for at least five years. For the first months of 2013, this policy worked reasonably effectively. But after May 2013, the criteria became so strict that hitherto 95% of children’s applications have been rejected.

 

The main reason for rejection is the fact that the legal status of children depends on the actions (or inactions) of their parents or guardians. For example, children who apply for the Child Pardon Act are rejected if their parents do not “cooperate” with the authorities by leaving the Netherlands. When parents are awaiting appeal in their own asylum-procedure, they are expected to leave the Netherlands during this period, and take their children with them. For this reason, the Child Pardon Act did not offer a solution to Anood, and more than thousand other children. These children are punished based on the unreasonable criteria their parents have to fulfill.

 

The Child Pardon Act is an illustrative example of the overly strict and inadequate immigration law and policy in the Netherlands. Being too restrictive, it unfairly excludes children who have resided in the Netherlands for over five years, leaving them with no clear future perspective.

 

It also illustrates how political (and public) support for the rights of refugees, and in effect human rights, has eroded over the past few years in the Netherlands. The outcome of last week’s elections confirms this. Despite Anood’s plea, the results show that the majority of Dutch citizens did not vote for the universality of human rights. For various reasons, many Dutch citizens see their own rights eroding and are inclined to vote for right wing parties that promise their protection. While Prime Minister Mark Rutte made some highly controversial statements during his election campaign, his political party still became the largest in parliament. In his most widespread election-statement, a letter to “all Dutch citizens,” Rutte stated: people “who come to our country […] misuse our freedom and spoil everything” must either “behave normally, or go away.”

 

This normalization of the use of discriminatory language is a cause for concern. By alluding to immigrants in his election-statement, Prime Minister Rutte generalizes all immigrants as belonging to the same group, blaming them for all sorts of disturbances in Dutch society. First of all, from a legal perspective, this is problematic since the protection of human dignity and non-discrimination are considered universal and fundamental in European and international law, whereas Rutte implies that such rights are rather relative. Second, the normalization of such discriminatory language has great implications on a societal level, as it constructs and reinforces a social hierarchy between people, and groups of people, and furthers polarization. In the run up to the elections, Dutch-Moroccan producer Abdelkarim El-Fassi pointed out how he experiences this polarization on a personal level. While he grew up in the Netherlands and has always been open-minded, the current political debate makes him want to withdraw into the Dutch-Moroccan community.

 

To create space for understanding individual situations, such as the situation of Anood and her family, steps must be taken to condemn the normalization of discriminatory language. One option is via legal avenues, such as the Dutch court that found far-right leader Geert Wilders guilty of inciting discrimination against Dutch Moroccans – although this arguably worked out to his advantage. Therefore, most importantly, discriminatory language must be condemned by public opinion. A first step in this direction is to engage in personal contact. In doing so, individuals and groups move closer to each other, and towards a more cohesive society – as a recent study by Dutch news website De Correspondent aptly illustrates. Through an open and active attitude of Dutch residents, and by having voices like Anoods be heard – as well as the many other diverse voices of people in similar situations in the Netherlands – it becomes easier to sympathize with one another.

 

“Citizens cannot avert their eyes,” Anood said during the election campaign. When open communication and condemnation of discriminatory language becomes the norm, there is no need to fear for the devaluation of human rights as universal values. As the conversation between Anood and a man on the street in The Hague shows, there is a great discrepancy between the urgency of the plight of refugee and immigrant children in The Netherlands and a general understanding of their situation. Because of the open conversation Anood initiated there in The Hague, this man can put a face and voice together with a clear example of the inadequacies of Dutch immigration policy. But not all people in situations like Anood’s are fluent in Dutch or have a platform to tell their stories. Hopefully, her example can serve as an opportunity to open up the debate; to move beyond the current rhetoric, and inform people of the restrictive immigration policies enforced throughout the country on people like Anood, who have as much right to be here as any other Dutch person.

 

 

 

 

 

 

The Netherlands and “Criminal Refugees” from Afghanistan: political misconceptions

Edo Dijkgraaf - Raad van State (CC-BY)

 

Edo Dijkgraaf - Raad van State (CC-BY)

Edo Dijkgraaf – Raad van State (CC-BY)

 

By Arja Oomkens

 

On 23 September 2016, the Dutch Section of the International Commission of Jurists (NJCM), a commission that focuses on the protection of human rights in the Netherlands, announced that they had filed a lawsuit against the Dutch state for a wrongful act committed with respect to an Afghan person with a valid asylum residence permit.

 

The Afghan asylum-seeker in question fled for fear of persecution by the Taliban during the late 90’s and received asylum in the Netherlands. Eighteen years later, when the Dutch State found out that he had worked for the secret services of the Afghan communist regime (1978-1992), his residence permit was withdrawn without any individual investigation.

 

This was possible because of Dutch immigration policy on Afghanistan (set up in 2000): it stipulates that everyone who has worked for the Afghan secret services between 1978 and 1992 has per definition committed serious human rights abuses and is therefore not entitled to an asylum residence permit. These persons are excluded from the protection guaranteed under the Refugee Convention because they meet the criteria for article 1F of this Convention. Therefore, they are referred to by the Dutch state as so-called “1F-ers,” or in the terms of the media: “criminal asylum-seekers.”

 

The Dutch state is one of the few[1] EU member states that requires alleged “1F-ers” to prove that they were not involved in any human rights abuses. In this specific situation, the Afghan person denied any involvement in 1F classified human rights abuses, since he had only worked within the administrative division of the secret services. Nevertheless, because he did not have any documents to prove his point, the Dutch state applied the 1F principle to withdraw his residence permit.

 

It is important to note in this regard that it is unlikely that any other decision could have been made in a similar situation. Gaibar Hasami, a board-member of the Dutch 1F Foundation, points out that a lot of people that worked for the Afghan secret services did not know that human rights abuses were being committed in the name of their employer. This had to do with the fact that the majority of 80.000 people worked for the “above-ground” secret services, while a minority worked for the “underground” secret services – only the latter committed human rights abuses. However, it is impossible to prove this since the secret services have done everything within their power to hide any evidence that points to human rights abuses. With no evidence available to prove their guilt or innocence, “1F-ers” are excluded from protection based on the premise that there are serious reasons for considering their involvement in human rights abuses two decades ago.

 

Consequently, the Afghan “1F-er” in question appeared before the Council of State, the highest authority in the Netherlands with respect to immigration affairs, to appeal the withdrawal of his residence permit. As with all other appeals with regard to Dutch 1F immigration policy on Afghanistan, the Council of State upheld the decision to withdraw his residence permit.

 

From the perspective of the Afghan “1F-er” and the NJCM this decision violates European Union law because no individual investigation was conducted, and because no reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) in Luxembourg was made. Based on EU law, the withdrawal of residency under such circumstances would mean a wrongful act was committed by the Dutch State. Therefore, the implicated Afghan person and the NJCM now ask the District Court in The Hague to confirm this verdict.

 

Evidently, such a verdict will be in the interest of all alleged Afghan “1F-ers.” Because the situation in Afghanistan is still dangerous for them, many Afghan “1F-ers” – who have lived in the Netherlands for up to 20 years – cannot be expelled by the Dutch State. Their situation nevertheless remains insecure: when the security situation in Afghanistan changes they may be expelled at any time. Is this reasonable when they have built up their family life in the Netherlands? Even though there has never been any investigation into the specific circumstances of their situation?

 

One thing must not be forgotten: Afghan “1F-ers” who have lived in the Netherlands for almost two decades initially applied for asylum because they feared persecution in Afghanistan. In the abovementioned case, the Afghan asylum-seeker entered the Netherlands because of his fear of persecution by the Taliban. The Dutch state considered his story credible and therefore granted him asylum. This means it was considered credible that the Afghan asylum-seeker had been victimized and would be victimized again by the Taliban if sent back. Therefore, Dutch 1F immigration policy on Afghanistan does not protect victims of human rights abuses as it can wrongly exclude asylum-seekers in need of protection.

 

Article 1F is part of a convention drawn up to protect those in need of protection, yet in practice, its application in the Netherlands leads to blatant injustices. Based on political misconceptions of responsibility (both of the state and of the person), it fails to protect those it was designed to. Under 1F, victims are turned into perpetrators, their most fundamental rights upended, and ultimately, their safety and wellbeing compromised. For now, “1F-ers” like the Afghan person in this article have no option but to wait, hoping that the outcome of the lawsuit against the Dutch state can change their situation.

 

[1] Next to the Netherlands, only the Czech Republic consistently reverses the burden of proof with regard to a 1F situation, see this website for more info.

 

Housing for Refugees in the Netherlands: austere and just?

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11452557904_4ee05bfaa6_o

Container homes – Inhabitat (CC BY-NC-ND)

 

By Arja Oomkens -

 

Last November, the Dutch government decided that housing for refugees with a temporary residence permit must be “austere and just”. In effect, this meant the development of austerity measures to regularize housing for these refugees in empty governmental buildings (e.g. former offices), in one of the (to be built) 14,000 small-scale homes (e.g. containers), or in homes where at least four households are able to live together (e.g. student rooms). In addition to these measures, the government plans to change the 2014 Housing Act – in specific the part that prioritizes refugees for social housing. This topic has been part of a heated public debate over the past few months, since the prioritization of refugees has made many low-income Dutch citizens feel disadvantaged for being on a never-ending waiting list for social housing. In this sense, the (planned) austerity measures seem a step in the right direction, as they both address pressure on the social housing market as well as relieve increased tension towards refugees.

 

But how crucial and just are these measures really?

 

These measures cannot be deemed crucial simply by referring to the pressure of 24,000 refugees in need of housing. Especially since there is another important reason for pressure on the social housing sector: namely the decision of the government in 2013 to liberalize one million social housing facilities. In other words, of the 2,7 million houses available in the Netherlands, one million are to be sold – 2014 already saw the sale of about 7000 social houses. As a consequence, the liberalization of social housing facilities makes access to social housing more difficult for everyone, not just low-income Dutch citizens. It is therefore not rationally justifiable to develop office and container homes for refugees and present it as the sole solution to an already pressurized social housing market.

 

Furthermore, it is discriminatory to differentiate between refugees and low-income Dutch citizens by requiring refugees to live in austere, second-rate, housing facilities. In this regard, the UN Refugee Convention and European Union Law do not protect refugees’ interests sufficiently. Article 21 of the 1951 UN Refugee Convention indicates that state parties “shall accord to refugees lawfully staying in their territory treatment as favorable as possible” and the 2004 EU-Qualification Directive requires that refugees must “have access to accommodation under equivalent conditions as other third country nationals legally resident in their territories.” Both of these definitions are problematic as they leave room for differentiation between Dutch citizens and refugees with a temporary residence permit. This differentiation, in the form of austerity measures for refugees, is contrary to the obligations of the Netherlands under the International Convention of the Elimination of All Forms of Discrimination (ICERD). Under this Convention, racial discrimination occurs when a person or group is treated differently because of their national origin. According to article 5 of the Convention, states must guarantee the right of everyone to equality before the law in the enjoyment of the freedom of residence. It is therefore questionable whether it is possible to require refugees to live in offices, or containers.

 

Next to this legal issue, it is also important to explore the social impact of the austerity measures. Will they be effective in the long term?

 

In the short term, by depressurizing the social housing market and placing refugees in office or container homes, the increasing tension amongst low-income Dutch citizens towards refugees may be diffused. But from an overcrowded asylum-seekers’ center to an abandoned office building, refugees are required to live on the outskirts of Dutch society, making the integration process more difficult. Needless to say, this is detrimental to their livelihoods and wellbeing. Only after five years are refugees with a temporary residence permit eligible for permanent residency, but only if they can indicate that they are sufficiently integrated and pass all Dutch language exams. It is more likely that refugees who are isolated in office or container homes will be denied permanent residency. Accordingly, the austerity measures are problematic as they assume that conflicts in those countries where people are fleeing from will cease soon, yet all indications point to the contrary. Therefore, while the Dutch government on the one hand stresses the importance of integration, the austerity measures in place on the other hand do not reconcile with this important objective.

 

By July 2016, the government hopes to have amended the law that prioritizes refugees for social housing. This article attempts to show the illegitimacy of such measures and what this means for the integration of refugees in the long term. In short, pressure on the social housing market cannot solely be ‘blamed’ on the influx of refugees to the Netherlands; differentiating between refugees and low-income Dutch citizens is contrary to the obligations of the Netherlands under the ICERD; and placing refugees in offices and container homes is detrimental to the integration process. Refugees do not have a family network to resort to or depend on: their families have often been torn apart by war and persecution in their home countries. For the same reason, refugees will not be able to repatriate soon. Therefore, it is of the utmost importance that the Dutch government, along with its citizens, starts to think about the implications and long-term effects of its austerity measures. Because sustainable peace in countries such as Syria, Afghanistan, or Eritrea, is not feasible, and worldwide displacement has never been recorded higher than today, an open attitude towards the integration of refugees is imperative.

 

 

 

Ending Statelessness: the long road ahead

UN Photo/CC BY-NC-NC

UN Photo/CC BY-NC-NC

 

By Arja Oomkens -

 

Exactly one year ago, UNHCR launched a global campaign aimed at ending statelessness, a phenomenon that is often described as a “devastating legal limbo”. But what is statelessness exactly, and why is it so important to combat its consequences? The UNHCR report that came out yesterday explains the debilitating impact of statelessness on children. Today, I will use this report as a starting point to provide a bird’s eye view of the issues surrounding statelessness. How is it possible that this phenomenon excludes millions of people worldwide from a dignified and humane life?

 

The story of Rashid forms an illustrative example. Rashid, 27, was born in Maungdaw, Myanmar. He is a Rohingya, a Muslim minority that has faced decades of segregation. Since the 1970s, the Rohingya have been deprived of their citizenship, restricted in their movements, and have suffered en masse persecution. Rashid fled to Bangladesh with his mother, after his father, who was a Muslim rights activist, was killed and his sister was arrested. Because of a legitimate fear of persecution, and because he was explicitly deprived of his citizenship in Myanmar, Rashid could not go back to his home country when his temporary legal stay in Bangladesh expired. Therefore, he moved to the Netherlands to seek protection. He applied for asylum twice, but both of his requests were rejected.

 

As a result, Rashid is stuck in the Netherlands. On the one hand he is an illegal resident, while on the other hand, he cannot be expelled because neither Bangladesh nor Myanmar will accept him. Without a state to take responsibility for him, he lacks access to health care, education, employment opportunities, property rights and the ability to freely move around across borders. It is also impossible to get married, open a bank account or get a driving license. Unlike many others, Rashid cannot take these rights for granted.

 

Statelessness, as famously described by Hannah Arendt (2004), means the loss of the “right to have rights”. As the example of Rashid illustrates, stateless people lack the social and economic access necessary to fulfill their most basic human needs. Worse still, in the words of António Guterres, the United Nations High Commissioner for Refugees, “statelessness makes people feel like their very existence is a crime”. Without citizenship rights, and no state to protect them, they are forced into a life of invisibility.

 

One can become stateless for a myriad of reasons. First of all, people may become stateless with the dissolution and separation of states. For example, the dissolution of the USSR in 1991 left large numbers of people stateless. Of these people, over 370,000 people still lack a nationality in Estonia and Latvia. Another reason for becoming stateless is because of conflicts of nationality laws between certain countries, which may cause statelessness at birth or later in life. This happens when, for example, two states claim that the other is responsible for the bestowment of a nationality. In addition, people are forced into statelessness as a direct result of discrimination (e.g. against women or other specific ethnic groups). The 1,2 million stateless Rohingya in Myanmar are a case in point of ethnic discrimination and the categorical denial of citizenship.

 

The relatively unknown concept of statelessness affects at least 10 million people worldwide – a number that excludes many people who might hold formal citizenship but are prevented from enjoying citizenship rights. Unfortunately, this number is expanding continuously; UNHCR estimates that one stateless baby is born every ten minutes. In addition, the conflict in Syria further exacerbates the problem. The mass displacement of four million refugees into neighboring countries places children at great risk of statelessness. For Syrians abroad, the possibility to register newborns is limited. Because most Syrians flee from the persecution by their own government, it is implausible that they will register a newborn in a Syrian embassy. Within the borders of Syria, discriminatory nationality laws ensure that Syrian children can only acquire nationality through their fathers. Since the conflict has left 25 per cent of Syrian households fatherless, this gender discrimination causes registration at birth to be an unattainable goal for many.

 

The global campaign launched by UNHCR last year aims to intensify efforts to end statelessness within ten years. The campaign was launched in light of the 60th anniversary of the 1954 UN Convention Relating to the Status of Stateless Persons, which, alongside the 1961 Convention on the Reduction of Statelessness, is to provide the international legal basis to end statelessness. With the campaign, UNHCR calls on nations to take on 10 actions to end statelessness.

 

During its first year, the campaign focused on ending childhood statelessness. The UNHCR report that came out today urges all states to allow children to gain the nationality of the country in which they are born if they would otherwise be stateless; to reform laws that prevent mothers from passing their nationality to their children on an equal basis as fathers; eliminate laws and practices that deny children nationality because of their ethnicity, race or religion; and ensure universal birth registration to prevent statelessness. Because issues surrounding statelessness are often felt first during childhood, the report thereby aims to address the core of the problem.

 

There are three reasons why states are expected to cooperate. First, the two Statelessness Conventions require governments that have ratified to provide a minimum set of human rights (1954), and to reduce statelessness (1961). Second, international law recognizes the right of every child to a nationality; this is set out in Article 7 of the almost universally ratified United Nations Convention on the Rights of the Child. Third, state cooperation is expected not only to be in the child’s best interests, but also in the interest of the state since the right to education, health, and work will contribute to the integration and social cohesion of any society.

 

With regard to those who have become stateless as a result of the Syrian conflict, the Jordanian government has already set a good example. To ensure that every child begins life with a birth certificate – which serves as proof of identity and a direct link to Syria – the Jordanian government established a personal status court and civil status department within the Zaatari refugee camp. In light of these developments, 3,597 Syrian children born in this camp have been registered over the past two years.

 

The UNHCR campaign has received a great deal of international attention, and has even culminated in thorough cooperation with civil society initiatives – see for example the recent report by the European Network on Statelessness. Hopefully, these efforts will have a positive impact on the millions of stateless people worldwide. For Rashid, and many others like him, there has only been the promise of the establishment of a statelessness determination procedure in the Netherlands. Because the Dutch government is a state party to the two Statelessness conventions, the recognition of Rashid as a stateless person means that he is entitled to a secure legal status and enjoyment of the rights afforded under these conventions, such as the right to education, employment, and housing. Furthermore, the recognition of Rashid as a stateless person would mean that he has the right to an identity document under article 27 of the 1954 Convention. This is of great importance, because carrying identification is mandatory at all times in the Netherlands (since 2004). At this moment, stateless persons are often unable to meet this requirement, and, without being able to identify themselves, they risk arbitrary detention. Therefore, to ensure that he is not left invisible – without equal rights and any sense of human dignity – it is imperative that the Netherlands will follow up on its promise to develop the long-awaited procedure to determine statelessness, including a procedure to provide ID documents for stateless persons.

 

Overall, the situation of Rashid in the Netherlands illustrates how pressing the need is to address the plight of stateless people worldwide. Not only the Netherlands, but all state parties to the 1954 and 1961 Convention must follow up on their obligations under these conventions. If states would do so, UNHCR’s global campaign to end statelessness within ten years may suddenly become a feasible goal.

 

 

 

 

 

Event Review – ‘Rooms of Humanity’

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De Balie

 

By Laurien Vastenhout & Arja Oomkens

On September 19th we visited ‘Rooms of Humanity’, an interactive and experimental exhibition which theatre directors Ilil Landboss and Giselle Vegter made especially for this evening. The promise to address the complexities of mass violence and genocide ensured a full, sold-out theatre. From experts in the field to the interested layman, this evening provided a platform to discuss one prominent question: ‘How is it possible, despite historical awareness, that genocide keeps on occurring?’ In other words, can we understand present-day violence and radicalization against civilians in, for example, Syria, Myanmar, Nigeria, and Sudan?

‘Rooms of Humanity’ responded exactly to the urge of the audience to reflect on this pressing question. The documentary-theatrical installation ‘Sieben Räume Unbegreifen’ was part of the first ‘experience’ of this three-hour evening program. Instead of walking into a room with neatly lined-up chairs facing a podium, we walked into an empty space where everyone was standing around an immense square grid. The grid consisted out of many smaller squares, which would later be walked on by the audience. The rules of the game we were about to play seemed easy: questions would be posed and each of the participants had to either make a step in the grid or remain in place.

What appeared to be an easy game turned into a thought-provoking social experiment. First of all, this had to do with the questions posed. Questions along the lines of ‘do you feel part of a minority group?’, ‘do you consider yourself privileged?’, and ‘would you sacrifice your life for something?’ made all of us reflect on our own ideas, our ability to answer that question at that exact moment, look around at the others, and eventually take a step, or not. In this sense, the game was a good way to thoroughly think some essential questions through. It also exposed some unmistakable group behavior. When all of us were moving around on the square grid, it became extremely difficult not to conform to the behavior of the other participants; sometimes you couldn’t even move from one square grid to the other because the people that surrounded you decided not to move. Standing cramped, you were then unable to decide for yourself when your next step would be. Other conforming group behavior during the game was that almost no one took steps towards the outlines of the square grid; everyone tended to take steps towards the middle of the square. For some, this may have been because they wanted to show active participation in the game, for others, because they wanted to walk towards friends, or maybe even for other reasons. In this sense, everyone seemed to conform to the choices of the others. It would have been interesting if one of the participants had chosen not to conform, but rather looked for a ‘confrontation’ by stepping into an already occupied square or stepping to the outlines. A confrontation like this may have led to some form of discussion which would have added to the usefulness of the game.

In that sense, it was a pity that there was no analysis or explanation afterwards. The ‘game’ raised many questions but failed to answer any of these. It would have been useful to go through some of the central questions again afterwards and to publicly share thoughts on the answers to these questions. Another possibility would have been to discuss our group’s behavior after the game. For a genocide scholar, the game turned out to be a clear reminder of the fact that processes that lead to mass violence and genocide are highly complex. It also reminded us that, order to understand these processes, we must think beyond the good versus evil dichotomy, and study relations of power, peer pressure, and group conformity. A discussion on how the game reverberated these aspects of the violent process would have made for a thought provoking beginning of the evening.

Fortunately, the two hours that followed did provide the possibility to discuss all these complexities with experts on the topic. Walking around from one expert panel on propaganda to another on genocide education, all of the participants experienced what it is like to engage in such complex issues. In an effort to understand the process of radicalization, the participants learned that, while emotional engagement might be the trigger to study this subject, one needs detachment in order to do so.