The Right to Belong to a Political Community at the Example of the Legal Situation of Refu-gees in Lebanon

Introduction

‘I lost my seven year old and went to the police to help me look for her. They arrested me for six days because I had no proof of legal stay and did not look for my daughter – she is still missing.’

Ali, 35 years old, Syrian refugee in Lebanon[1]

Ali’s experience evokes very simple questions: Was the police not obliged to look for his daughter? Did Ali not have the right to effective legal protection and due process? In fact, Ali’s experience is only a symptom of a sensitive protection gap in international human rights law: Refugees frequently ‘fall through the cracks’[2] of legal protection systems.

In Lebanon, refugees are referred to as so-called ‘displaced persons’ (Arabic: نازحين , naziheen). This notion, coined by the Allies at the end of the Second World War, was originally meant to refer to those 10.8 million people living in Europe,[3] who had been deported or otherwise impelled to leave their home country during the war.[4] The therewith associated legal status was supposed to facilitate access to essential supply, not, however, a permanent domicile at the place of exile.[5] It allowed to distinguish the displaced from citizens, who are protected by their home states, and from stateless, who are without any governmental protection and therefore admittedly need to rely on asylum guarantees of third states. Before this background, Hannah Arendt diagnosed, that despite food and accommodation, the displaced persons de facto were outlaws: Their former home state had excluded them from society during the war, the exile state refused to assume any responsibility for them. Very illustratively, Hannah Arendt described, that

“[t]he calamity of the rightless is not that they are deprived of life, liberty, and the pursuit of happiness, or of equality of the law and freedom of opinion – formulas which were designed to solve problems within given communities – but that they no longer belong to any community whatsoever. Their plight is not that they are not equal before the law, but that no law exists for them. Not that they are oppressed but that nobody wants even to oppress them.”[6]

Hannah Arendt concluded that an individual’s rights did not emanate from the mere personhood, the history or nature of the human being, but that basic rights rather depended on the affiliation to a political community that agrees to guarantee certain rights to every one of its members.[7]

In 1951, the year when Hannah Arendt’s quote was published in Origins of Totalitarianism, the term ‘refugee’ was introduced in the Geneva Refugee Convention in order to shelter those persecuted for reasons of race, religion, nationality and membership of a particular social group or political opinion. This ‘refugee’-status was meant to provide protection of the basic rights of the persecuted and simultaneously outlined the legal obligations of the contracting states towards them.

Today, nearly 70 years later, with about six times more people forcibly displaced[8] than in the time after the Second World War, the scope of refugee protection must be re-assessed. For this purpose, this paper examines the legal situation of refugees in Lebanon, the country that hosts the highest number of refugees per capita in the world.[9] The paper begins with an outline of the legal status of refugees in Lebanon (I.). It then examines the enforcement of the refugees’ basic rights in the country (II.). In a third part will be shown that the factual lawlessness of refugees in Lebanon can to a large extent be explained by the legal characterization of the refugees as ‘displaced’ or ‘illegal’ (III.). The paper concludes that Hannah Arendt’s arguments are still valid today and that it is the international community that is responsible to take joint measures for an effective refugee protection (IV.).

The findings rely on semi-structured interviews with lawyers, researchers and activists working in the field as well as desk research. In order to be able to determine the vulnerability of the basic rights of refugees in Lebanon, the research focused on criminal law cases involving refugees as victims of violence committed by a private actor. These cases are to distinguish from cases of torture and arbitrary detention as acts of violence committed by the state which touch the research only indirectly.

I. (Il)legal status of ‘displaced’ in Lebanon

Lebanon traditionally perceives itself as a country of transit rather than as an asylum country, and has therefore not introduced a comprehensive asylum law.[10] While most countries have adopted the 1951 refugee convention and its 1967 protocol, Lebanon has refrained from signing, which leaves the refugees in the country under the displaced-status until today.[11]

To buffer the missing obligations of the refugee convention, the UNHCR and the Lebanese government agreed on a Memorandum of Understanding in 2003, enabling the UNHCR to issue temporary residence permits to asylum seekers.[12] These rules have always been futile for the Palestinians in Lebanon, as they are excluded from the UNHCR mandate.[13] Since May 2015, they are equally useless to Syrian refugees. Arguing, that the memorandum had not been tailored for the high number of refugees arriving in Lebanon due to the Syrian war,[14] the Lebanese government requested the UNHCR to suspend all new registrations, regardless of the date of arrival, and refrain from residency renewals.[15]

Because of this lack of domestic refugee legislation, the legal status of refugees in Lebanon is equivalent to the status of a general foreigner, regulated essentially by the 1962 Law of Entry and Stay. This neglects the fact that refugees cannot stay in their home country and are different than general foreigners, like tourists or expert workers, urgently reliant on a place on earth to stay. Although the 1962 law provides the right to apply for asylum for persons claiming to be persecuted on political grounds, it is of no practical use for the refugees as asylum on this basis has only been documented once so far.[16]

In the beginning of 2015, Lebanon issued a ‘Policy Paper on Syrian Refugees Displacement’ that contains as an explicit goal to reduce the number of Syrian refugees in the country.[17] This paper does offer possibilities to acquire a residency permit, but the requirements are so onerous and expensive, that many of the Syrians are not able to renew their permits or to get a permit in the first place.[18]

Overall, the Lebanese refugee policy de facto results in about 70-80 per cent of the Syrian ‘displaced’ and about 90 per cent of the Palestinian ‘displaced’ from Syria living illegally in Lebanon at present.[19] The use of the notion ‘displaced’ may therefore be understood as a quasi-synonym for persons living under illegal status in Lebanon.

II. Non enforcement of basic rights in favour of displaced

The displaced status in Lebanon does not just involve the illegal status of a person, it also brings along a wide denial of basic human rights. This is the essence of replies given by lawyers and activists of policy NGOs and by representatives of service providers of legal aid working in this field in Lebanon.[20] When asked, if, since the outbreak of the Syrian war in 2011, his or her organisation had assisted a refugee, who had been subject to violence, to claim his or her rights in a formal justice proceeding, none of them gave a positive answer.

This practical experience corresponds with the findings of a study conducted by Karim El Mufti for the Centre International des Sciences de l’Homme that examined criminal type lawsuits[21] involving Syrian nationals living in Lebanon in three court districts.[22] For the period between June 2011 and April 2014, the study identified 807 relevant lawsuits. In all of the cases the Syrian national was defendant, in addition to five lawsuits where both, plaintiff and defendant, were Syrians. There was not a single lawsuit, however, involving a Syrian national suing a Lebanese citizen for punitive damages.[23] Assuming that there actually are crimes committed by Lebanese against Syrians, as all the interviewees indicated, this suggests that Syrian refugees in Lebanon do not pursue their basic rights through the Lebanese formal justice mechanisms.[24] Human rights conventions that oblige the nation states to grant effective remedy to everybody against fundamental rights’ violations, and that Lebanon is a party to, seem to be ineffective in this constellation.^[25] Insofar, one may speak of a state of factual lawlessness of the displaced in Lebanon.

III. Why no cases?

In order to assess whether it is the displaced status that affects the effective enforcement of rights, the interviewees were asked for the reasons for the lack of cases. The answers were multifaceted, but they coincided in one main explanation: Syrian refugees are de facto excluded from the Lebanese political community through their illegal status, which at the same time prevents them from seeking justice through formal proceedings. Particularly, next to reasons directly connected to the illegal status (1.), the interviewees based the lack of cases on general justice deficits in Lebanon (2.).

1. Lack of cases as a direct consequence of the illegal status

a. ‘Displaced’ refrain from claiming their rights 

Even though human rights law is de jure blind towards the legal status of its ward, de facto the lack of legal status constitutes a major obstacle to access to justice and thereby indirectly affects the enforcement of basic rights. All of the interviewees stated that refugees who have been subject to violence did not approach the police or courts in order to claim their rights because they feared arrest and deportation.[26] “To the displaced, the mere risk of a prison sentence or deportation decision seems disproportionate to everything they may optimistically get out of a judicial proceeding”, said Ghida Frangieh from Legal Agenda.[27]

The refugees’ apprehension is not unjustified: By vesting the ‘displaced’ with the illegal status, the Lebanese government makes them liable to prosecution based on Art. 32 of the 1962 Law that provides a fine or prison sentence for lack of residency and also facilitates a deportation order. George Ghali from ALEF – Act for Human Rights described the procedure in the following way: “The problem is that the legal status is checked before investigation is initiated or a complaint is filed. If the person doesn’t have a residency the whole process is terminated and the respective person may be arrested for lack of residency and eventually there is complete impunity of the crime he or she is trying to follow up on.”[28] Accordingly, the above-mentioned study by Karim El Mufti finds that proceedings dealing only with illegal entry or stay constitute almost one fourth of the proceedings Syrians are facing in Lebanese courts. Around 90 per cent of these proceedings end in a conviction decision, and again one third of the convictions contain a prison sentence.[29] Moreover, 16,1 % of the decisions also include a deportation verdict – despite the obligation of non-refoulement to the ongoing war atrocities in Syria.[30] Although arrest is only being carried out short-term due to insufficient prison-capacities[31] and although deportations back to Syria are generally not being executed at the moment,[32] the mere threat of enforcement of these sentences is sufficiently deterrent to keep refugees from seeking justice through formal proceedings.

This finding is reinforced by the fact, that refugees staying illegally in Lebanon actually do seek justice through the formal channels after they had already been in contact with the law enforcement agencies. This happens for example, when a refugee had already been indicted or convicted for a misdemeanour or felony and subsequently was tortured or arbitrarily detained in prison. In these cases of torture or arbitrary detention, refugees are more inclined to claim their rights, as their identity has already been revealed to the authorities.[33] Correspondingly, there is a fairly large number of torture and arbitrary detention cases that have been tried in front of the Lebanese courts,[34] unlike criminal type lawsuits that imply a first contact with the Lebanese authorities, that do not exist.

b. Prosecution may deny investigation

While it can be stated, that the illegal status prevents the refugee to take action, its effects on the initiation of criminal investigation by the police and prosecution remain unclear. Karim El Mufti considers that prosecution would take action indiscriminately, George Ghali assumes that prosecution may deny investigation if the harmed person had no legal status.[35] The latter has also been observed by Human Rights Watch as well as by the Norwegian Refugee Council and is illustrated by the above cited account of Ali.[36] However, as prosecution does not give written grounds for the abatement of action, the dimension of unjustified closings cannot precisely be established.

2. Other explanations for the lack of cases

a. Strong societies, weak states[37]

Regardless of the legal or illegal status, there are third reasons leading to the lack of cases. One observation is that in Syria as well as in Lebanon, people are used to settle their disputes via informal mechanisms along social patterns instead of seeking justice through formal procedures.[38] In both states clientelism, corruption and distrust deter the society from referring to the formal justice system.[39] In Lebanon, the state is often paralysed or incapable of reacting promptly due to its sectarianism. The Syrian dictatorship on the other hand enforces its interests with a hard hand and is known for arbitrary interferences, making the civil society anxious to avoid getting in touch with the regime’s institutions. The consequences on the society are the same in both countries: People prefer to resort to friends, employers, municipality personnel, or elders who will arbitrate between the conflicting parties according to their subjective logic, ‘common sense’ or the personal interpretation of the Sharia, while the formal law plays no more than a minor role.[40]

As coping strategies of the Syrians in Lebanon do not differ significantly from those of the Lebanese, deficient access to formal justice can on these grounds not directly be connected to the displaced status.[41] Syrian refugees in Lebanon continue to cope conflicts according to the strategies, that they are used to and that the Lebanese social habits also allow.[42] Nevertheless, dealing with conflicts along informal mechanisms in Lebanon goes to the expense of the Syrians: While the Lebanese have their family, community and friends, the Syrian refugee in Lebanon is unrooted.[43] “If it is not the fear of arrest and deportation, it is the fear of retribution by powers of the Lebanese society that the displaced persons in Lebanon feel”, says Karim El Mufti. The consequence is that Syrians might not even have access to informal justice.

b. Lack of legal knowledge

Commonly, the interviewees referred to the lack of legal knowledge leading to the lack of cases, as refugees are not familiar with the Lebanese legal norms and procedures.[44] Furthermore, there is also a knowledge deficit on the judges’ side, as judges are not used to applying international law. This has detrimental effects for the protection of the refugees’ basic rights as for effective refugee protection, judges must rely on international rules due to the poor protection by domestic refugee law.[45]

While the knowledge deficit on the judges’ side affects Syrians harder than the Lebanese as the latter may refer to the conventional national law that judges are used to work with, the lack of legal knowledge on the refugee’s side may concern a Lebanese citizen equally. But as knowledge will be more limited the shorter the stay in the country, Syrians are also in this point generally much more affected than Lebanese.

c. Financial obstacles

Disadvantageous for refugees is also the financial dimension of a formal proceeding, as access to justice costs money. At least the court fee, but also a lawyer has to be paid. Financial aid is, although de jure provided by international treaties and the Lebanese procedural law, only rarely granted to refugees in practice.[46] At the first glance, this seems to be a socio-economic problem rather than a disadvantage particular of refugees, but in fact, it is again indirectly connected to the refugee status: Part of the Lebanese disincentive policy towards the immigration of Syrians is the narrow access to the Lebanese labour market. Notwithstanding the fact that illegally staying refugees cannot work at all, also those Syrian refugees who are registered with the UNHCR are prohibited to work.[47] Syrian nationals with legal status granted by the government must pay unreasonable amounts of money just to maintain the legal status in the first place.[48] In addition, they may work only when complying with the Lebanese sponsorship system, which restricts work to the low-wage-sectors construction, cleaning, and agriculture and therefore does not allow to save any money, which could be used for a judicial proceeding.[49]

IV. Conclusion

The experiences and comments of experts described above suggest that the case of Ali is not a singular occurrence but rather a symptom of the systemic problems hindering the enforcement of basic rights in favour of refugees in Lebanon. The reasons for this phenomenon are complex, different factors interact. Nevertheless, the illegal status that concerns the vast majority of the ‘displaced’ in Lebanon is most crucial, as revealing themselves to the authorities is highly intimidating. Thereby, the illegal status affects the enforcement of all basic rights. Beyond that, the general deficiencies of the Lebanese justice system worsen the situation for refugees. Although deterring not just the refugees but also Lebanese citizens from seeking justice through formal procedures, their effects hit the refugees especially hard. Before this background, human rights in Lebanon appear to be de facto citizen rights. By being marked with an illegal status, refugees are excluded from life in society. They can neither rely on social bonds when seeking protection or justice, nor do they have the knowledge or money to appeal to the formal judicial system.

When Hannah Arendt analysed this same fate of the displaced persons in the aftermath of the Second World War, she stated that there could only be one primary human right: the right to belong to a political community. Hannah Arendt did not outline in great detail how this right could be realized. But when the enforcement of all basic rights depended on the will of a political community in form of a nation state, she stated, the right to belong to a political community had to transcend all these basic rights and could therefore only be guaranteed by the community of states.[50]

The states’ acknowledgement of the refugee status set forth in the 1951 convention and its 1967 protocol was a first step in this direction. However, by attaching great importance to the principle of state sovereignty, and not recognizing the immediate need of joint activities, the 1951 convention only obliges the contracting states and allows them to adopt measures at their discretion. Furthermore, it only protects those fleeing on persecution grounds. Consequently, the factual scope of protection falls short in many ways as shows the case of Lebanon. Lebanon’s reluctant handling of refugees may be due to the experience of the many Palestinians who have been dwelling in the country since 1948. However, it is not just the country itself that does not show great effort to ameliorate the situation of the refugees on the ground. It is also the international community that does not offer sufficient support to the country.

In a time, where millions of people are fleeing humanitarian or climate catastrophes threatening their lives just as much as home state persecution, the international community is responsible to revisit its refugee protection system. This new refugee law will have to involve the international community as a whole and provide a responsible refugee policy based on solidarity. It will have to acknowledge, firstly, the existence also of humanitarian or climate refugees, and secondly, that individual national legislation will not enforce the refugees’ basic rights in a satisfying way. The international community must rather be able to react to migration flows in a joint and coordinated manner. The existing international human rights treaties already set the basis for this. Within this framework, the international community must establish concrete procedural regulations according to which it will act as a unity, like the allocation of competences, rules of distribution and a common final decision-making body. Refugee policy is an international matter und it must be finally dealt as such also by the law.

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