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out that he had worked for the secret services of the Afghan communist regime (1978-1992), his residence permit was withdrawn without any individual investigation.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.

 

Victims and reparations at the ICC

midden logo icc

Logo of the International Criminal Court

 

By Amani Chibashimba (guest writer) -

The International Criminal Court (ICC) was created by the Rome Statute of 1998 in a way to conclude the efforts that have been made to fight international criminality since the end of the Second World War. Its creation is considered to be a success as it derived from a diplomatic agreement between States, which differs from its predecessors, the International Criminal Tribunals (for the ex-Yugoslavia and Rwanda), which were ‘imposed’ by the United Nations. The ICC has jurisdiction over the gravest breach of international law, namely the crimes of genocide, crimes against humanity and war crimes. Since it was established by an agreement between states, it does not have a police force and counts on the cooperation of member states to arrest the accused.

In its efforts to fight international criminality, the ICC has brought many new notions that are very likely to influence the development of international criminal justice and international law. The most interesting innovation though, would be the reparation for victims. This notion is framed in the Rome Statute in a very distinct way, as individuals are going to be obliged to provide reparations to victims, following their sentencing, as provided by article 75(2):

The Court may make an order directly against a convicted person specifying appropriate reparation to, or in respect of, victims, including restitution, compensation and rehabilitation

The challenges of the enforcement of the notion of reparation will be the purpose of this article. In international law, the notion of reparation is not new, but the individuation of the reparation will be quite an innovation. International law recognizes mainly the notion of reparation by states. This has been implemented in several cases, where states were to provide reparation following a judgment in which the states misdeed was proven by law. At the ICC only individuals are judged, therefore the ICC reparation will be imposed following the conviction of an accused individual. Reparation is thus linked to individual criminal liability. The first two convictions at the ICC in the cases of Lubanga (December 2014) and Katanga (May 2014) – both related to the situation in Congo – gave the ICC the opportunity to implement Article 75 for the first time.

On the 7th August 2012 Trial Chamber I of the ICC issued a decision in the case against Thomas Lubanga for the first time on the principles that would be applied to reparations for victims. Here, two challenges were already deplorable: Mr. Lubanga was declared bankrupt and individual reparation for his victims was impossible to conceive. Lubanga was convicted for conscripting and enlisting children under the age of 15 in armed groups and using them to participate actively in hostilities. He was accused to have done this in the district of Ituri, meaning we have countless potential victims from whom to draw those eligible for reparation. Since it was not possible to award individual reparation, it was decided that collective reparation should be awarded by creating activities that would be beneficial for the victims. On 3rd March 2015, the Appeal Chamber issued its final decision on this matter and decided that the Trust Fund for Victims (TFV) should present a draft for collective reparation in this case.

The Courts TFV has been involved in collective assistance projects related to child soldiers in the DRC. When the final decision will be issued, it will be most definitely drawn from those existing projects. Also for this case, since Lubanga is not financially able to provide reparation for its countless victims, the Court has decided that the TFV should be the one presenting a plan for reparation. However, we should be aware that neither the Rome Statute, nor the Rules of Procedure and Evidence (RPE), nor the TFV Regulation mention that the TFV should be a substitute body tasked to provide reparation for a convicted person declared bankrupt by the Court. Nevertheless, TFV regulation 42 states that the resources of the Trust Fund shall be for the benefit of the victims of crimes within the jurisdiction of the Court…”, this is why it was admissible for the Court to order the TFV to act as a substitute body and repair the victims of Mr. Lubanga.

On 27th August 2014, the Courts Trial Chamber II issued an order to the Registry to report on applications for reparation for the case against Germain Katanga, the second case. Unlike Lubanga, Katanga was convicted for crimes committed in a specific village (Bogoro) on a specific day (24th February 2003). Awarding reparation for this case will be dependent on those two elements. In 2003, some 364 victims were recognized to participate in the trial for the Katanga case. These are supposed to be people who have suffered acts for which Katanga was accused, meaning they have suffered from the attack which happened in the village of Bogoro in the morning of the 24th February 2003.

It is important to remember that Mr. Katanga was convicted for much less acts than he was charged. His charges included: willful killing, murder, directing an attack against a civilian population as such, destruction of property, pillage, using children under the age of 15 to participate actively in hostilities, sexual slavery, and rape. However, in his conviction, only four charges were retained: as an accessory for murder (as a crime against humanity and as a war crime), attack against a civilian population as such, destruction of enemys property, and pillaging. This means that not all the victims who participated in the proceedings as witnesses for the crimes he was charged with, will be included in the reparation process. This applies, for example, to women who were raped or enslaved following the attack of Bogoro village.

Looking at these two cases and thinking of what the reparation scheme is going to be, one can see already some challenging aspects which will come out in time of actually awarding reparations or implementing those decisions. We should keep in mind the nature of the crimes and their impact on the victims as well as the essence and meaning of the intended reparation. Despite the fact that the victims in both cases are entitled to reparation, it will be hard to apply the same rules in both situations, as the circumstances in both cases are fundamentally different. However, the reparations will depend on the same three key elements: conviction; definition of beneficiary, and applicability of the principles provided for by the Rome Statute and RPE.

Concerning the conviction in the case of Katanga, it is likely that there will be a lot of frustration as many victims will be excluded from the reparation process because the crimes for which they were victimized were not part of the conviction. It will be challenging to explain to a woman who was raped on the 24th February 2003 during the attack of Bogoro, that she is not a suitable’ victim for this case because the prosecutor did not prove his case beyond reasonable doubt. Does this mean they are not victims? How to recognize their victimhood? This is likely to influence the very essence of reparation and the perception of justice the Court has been striving for. Concerning the definition of victimwho will benefit from reparation, this will be very narrow. In the case of Katanga, only those inhabitants of Bogoro (or strangers who happened to be present there on the morning of the 24th February 2003) who suffered an injury (physical, moral or material) due to the misdeed of Mr. Katanga, shall be considered. However, proving that you were in the village that day will prove to be challenging, especially because everybody fled, some for good, some to return only after many years.

The case against Lubanga opens another practical question: who are victims? Lubanga was convicted for conscripting children in the whole district of Ituri, in which large number of people live. In addition, he committed this crime more than a decade ago, which makes it less likely for the victims to come forward now. Overall, it will be challenging to apply the principles, as laid down in the Statute and the RPE, to actual cases. With regard to, for example, the indigence of the defendants, adjustments must be made. The main reason why those rules have to be laid down is, to my opinion, to make sure that they lay down the path for the development of more adequate and inclusive principles. They should then be flexible.

The final decisions on the reparation for both cases are still pending. It will be interesting to see if there will be similarities between the two very different cases when it comes to applying those principles of reparation. We have already witnessed some of the shortcomings, namely the insolvency of the defendant, the enormous amount of destruction to be repaired, or the huge number of concerned victims. The challenge will be for the ICC to provide for a reparation scheme which will reinforce its legitimacy. Adding to its already controversial review, another failure in the form of ill-placed or unsatisfactory reparations will only serve to decrease its consideration and question its legitimacy.

The Age of Apology: What Brandt’s Genuflection Can Tell About the Potential of Our Apologies

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Willy Brandt’s Kniefall. © ullstein bild/ Sven Simon

By Renate Vink (guest writer) – 

 

We are all sometimes waiting for a ‘sorry’. In our world of conflicts, historical wounds and complexities, it seems hard to overcome the legacies of conflict from our past. How to break these spirals of revenge, anger, and shame over past injustices? Authentic, spontaneous, well-prepared or not; in our current so-called age of apology it appears that apologies or reparations are increasingly becoming the norm for addressing historical injustices. Although political apologies are nothing new, their use in Western politics seems to have increased over the last few decades. Northern Ireland, Australia, Canada; throughout all levels of politics – be it in local, national or international politics – we can find the use of apologies or reparations to address the black pages in history in order to move on.

However the potential for these apologies, what value can they really hold in the tough environment of (the aftermath of) conflict? Can states, as an entity, actually practice forgiveness? Although the direct effect of an apology is very hard to measure, symbolically it can be a very powerful tool. But could it indeed provide a way to ‘solve’ the past – and prepare for reconciliation to take place? Or should we look at it with cynicism and dismiss its potential? As only time can teach us, we can learn a lot from one of the earliest examples of a public apology in our age, as shown by the German Chancellor Willy Brandt in Warsaw, 1970. As Brandt spontaneously fell to his knees in front of the Holocaust memorial, his Warschauer Kniefall marked the beginning of the current ‘wave of apologies’ sweeping over (international) politics.

 

Der Kanzler hat gekniet

On his knees, Chancellor Willy Brandt showed the world in 1970 what forgiveness and facing the past could look like. The almost Christ-like image of Brandt on his knees in front of a memorial for the Jewish Uprising in 1943 was never planned and Brandt himself left only few words on his motivation. ‘Unter der Last der jungsten Geschichte tat ich, was Menschen tun, wenn die Worte versagen. So gedachte ich Millionen Ermordete.’ (Under the weight of recent history, I did what people do when words fall short. This is how I remembered the millions of victims.)

Brandt had come to Warsaw as part of his Ostpolitik, which aimed at normalizing relations with Poland and signing the Treaty of Warsaw – and as a first official German visit since the war. When Brandt suddenly knelt down and in silence asked forgiveness for the wrongs of his nation – he set the tone for a Germany ‘which required that Nazism be remembered rather than forgotten’, according to historian Tony Judt. In other words, one of the first German steps towards facing its past.

It was the raw and uncomfortable version of what would later become a highly popular and much praised symbol of German Vergangenheitsbewältigung and provided an image of how Germany collectively faced its past. Der Spiegel reports after the event; ‘Dann bekent er sich zu einer Schuld, an der er selber nicht zu tragen hat, und bittet um eine Vergebung, derer er selber nicht bedarf. Dann kniet er da fuer Deutschland.’ (Then he commits himself to a debt, which he himself is not carrying, and asks for forgiveness, which he himself does not need. Then he kneels down for Germany.)

Although Brandt’s gesture today is literally set in stone, the response to his ‘silent apology’ has not always been positive. Apart from a few voices saying otherwise – the majority of Germans in 1970 found the Warschauer Kniefall exaggerated. Phrases such as ‘Wir liefern uns den Kommunisten aus’ (We are handing ourselves over to the communists) and listing Brandt as a ‘Verraeter’ (traitor) were no exception in the German press after December 10th, 1970. This is, however, not completely surprising, since Brandt’s Ostpolitik was heavily criticized in his homeland. In general, relatively little attention has been given to the Kniefall in the German press around 1970 – as it happened in the shadow of the signing of the Treaty of Warsaw, which was controversial enough in Germany at the time in light of the fate of millions of German Heimatvertriebenen.

‘Er kniete auch fuer uns’, headlines Die Zeit in December 2010, when the 40th anniversary of the Warschauer Kniefall is celebrated in the German press. A few decades after the event the critical tone is completely gone and hardly a single negative comment is written on Brandt’s Kniefall. Headlines such as ‘Eine Kniefall macht Geschichte’ (the gesture that made history) and ‘Willy Brandt’s Kniefall ist zur Ikone geworden’ (the gesture that became an icon) underline this dramatic change and stress the sense of uniqueness that comes with the image of the gesture nowadays. ‘Die Kraft der Demut’ is another title illustrating the change in the media from the Kniefall being a humiliating gesture on enemy ground into a symbol that stands for power and courage, an icon within 20th century German political history even speaking of a collective nation on its knees. One could say it is the childlike simplicity of the image, the complex history it was able to summarize in one picture and the room for interpretation it left that added to the popularity of the image in the media over the years.

The radical change in meaning and interpretation of the Warschauer Kniefall over 40 years can be explained by a combination of two factors. Firstly, the German unification and the end of the Cold War allowed for a different way of looking at historical events without the context and influence of uneasy East-West relations. Secondly, new developments of facing the role and place of the Holocaust as part of German history had taken place over the years, leading from a place of collective ignorance and amnesia towards acceptance and memorialization, almost at mass scale - read more about post-war ignorance of the Nazi atrocities in this article by Laurien Vastenhout and Marieke Zoodsma. A renewed and more glorified interpretation of the Kniefall as the result.

Certainly these developments help us understand the process of image iconization, and how it allowed for the German public to reconsider its initial interpretation of their leader on his knees. However, perhaps most relevant within today’s age of apology is to look at the growing popularity of the Kniefall through the lens of politics of redress – a form of politics focused on making amends as a way of dealing with our dark past. This is often practiced through public apologies and showing remorse for the past, but also through making financial or material reparations.

Examples of recent apologies in international politics include British prime-minister Cameron officially apologizing for the role of the British army on Bloody Sunday in Londonderry, Northern Ireland. As with Brandt’s Kniefall, we see a political leader apologizing for the injustice caused by his nation in the past, even though he was not personally involved in the wrongdoings. Another example is the Canadian official apology towards survivors and descendants of the residential schools, which lasted over a long period from 1840-1990s. A similar public apology was issued in Australia in 2008, when prime minister Rudd apologized for the history of the ‘stolen generations’ in a well prepared speech and event in front of the entire nation. Furthermore, the mere fact that we live in an age of apology is marked by the very existence of the ‘truth and reconciliation commission’ in South Africa, which dealt with the wrongdoings from the Apartheid regime.

The fact that there is such an increase in issued apologies within Western politics since the 1990s and that they are valued nowadays as a sign of respectability can be explained by the slow shift from Realpolitik, a form of ‘hard’ diplomacy based on given factors and circumstances rather than ideological or ethical reasoning, towards a more emotional and ethical kind of politics over the last few decades. It reflects an increasing willingness to meet certain criteria of moral respectability within politics. However, despite the commonality of public apologies, and the fact that they are sometimes even in demand – how seriously should we treat them? Are they merely an act of self-reflection, or indeed a valid potential for reconciliation? Surely, it is difficult to generalize on the effect of apologies – and it would be too early to draw conclusions on the effect and outcomes of today’s reparations. Nevertheless, what the Warschauer Kniefall teaches is that we cannot simply dismiss the value and potential of such gestures or apologies by merely looking at our current (political) circumstances. Even though heavily criticized in 1970, the meaning of the Kniefall changed as history was reinterpreted over the years – and thus we can only start to understand the value and true impact of apologies and other forms of reparations by looking back.

Therefore, time will tell if our apologies today have the potential to heal old wounds and if we can indeed overcome the ugly parts of our history through our public outings of remorse today. But as long as the Kniefall is able to tell the story of how a small, quiet and humbling gesture has the ability to grow into a meaningful symbol of forgiveness, able to re-direct the course of history, it will most likely continue to inspire other leaders and their nations to show remorse for the past – in the future.

Housing for Refugees in the Netherlands: austere and just?

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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.