On February 9, 2017, the Nairobi High Court invoked the principle of non-refoulement (principle against returning refugees) to halt the Kenyan Government’s proposed closure of the Dadaab refugee camp, one of the largest in the world. The decision was rightly hailed as a victory by human rights organizations, but also underscores problems with the international refugee system.
Planned Closure of Dadaab
Dadaab houses an astounding number of refugees, varying between 330,000 to over 500,000 persons at any one time. The camp was set up in 1991 to temporarily house Somali refugees, fleeing civil war but instead became a permanent fixture in the region, taking on a far greater number of persons than expected.
The government of Kenya made headlines last year when it announced its intention to shut down the Department of Refugee Affairs and to close Dadaab. Many have argued that this decision simply tracked the anti-refugee sentiment that had been percolating across the Western hemisphere. However, with Kenyan elections slated for later this year, the explanation may simply be that the measure was intended to be a political move. President Kenyatta is running for reelection and has tried to frame the administration’s decision as a security precaution, citing a series of recent terrorist attacks by Somali-militant groups on Kenyan soil.
On February 9, the Nairobi High Court (which has the jurisdiction to review administrative decisions) put a stop to the government’s plan to close Dadaab.
The Kenyan National Commission on Human Rights (the “KNCHR”) brought a legal challenge to the government’s planned closure of Dadaab. The KNCHR’s case focused on the effect that this action would have on Kenya’s international obligations: closing the camp would have resulted in the return of refugees to Somalia in plain contradiction of the non-refoulement principle.
Non-refoulement is a fundamental tenet of international refugee law and is contained as an obligation in various treaties organizing the United Nations. While the principle has been expressed in different formulations, the Kenyan court cited the Convention Relating to the Status of Refugees:
“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
While many nations submit to the principle of non-refoulement; the contours of the obligation are not well-defined. There are two exceptions, in cases where it is necessary to: (1) protect the community of the country or (2) safeguard national security. Anti-terrorism policies could fall within one of these exceptions to the principle of non-refoulement to the detriment of refugee protection. Many States, including Kenya, are under pressure to respond to the threat of terrorism, and there is “potential for states to rely heavily on these exceptions” when enacting anti-terror policies. However, it has the perverse effect of penalizing the most generous countries by preventing expulsion at a later date, even when such expulsion may be justified.
The government of Kenya issued a press release in which the government pledged to appeal the ruling while promising to respect the “rule of law.” The government indicated that its primary responsibility was to ensure security for the Kenyan people, and argued that Dadaab had long lost its humanitarian nature—becoming instead the launch pad for various terrorist attacks by Al-Shabaab, the militant terrorist wing of the Somali Council of Islamic Courts that controls much of Somalia.
Due to Kenya’s geographic proximity to Somalia, Kenya has long been disproportionately responsible for housing refugees of the civil war that has ravaged its neighbor for decades. International human rights organizations have recognized Kenya as a leader in supporting refugees, even when this is at the expense of its own national development, and have called for increased international aid to assist Kenya in housing and supporting its refugee population.
Kenya’s obligations in applying the principle of non-refoulement as enforced by the High Court weakens Kenya’s negotiating position. The principle of non-refoulement restrains Kenya from forcibly removing refugees and returning them to their country of origin. In order for Kenya to reduce the refugee population, it must rely on voluntary repatriation or the willingness of other countries to accept refugees.
But because of the aforementioned anti-refugee sentiment, it is politically unpopular for other nations to accept significant numbers of refugees even when the country maintains a commitment to providing aid to refugees. For instance, the U.S. offered to receive a mere 11,000 Somali refugees in 2016, but there are over 400,000 Somali refugees currently in Kenya alone. Thus, this creates a tendency to revert to a “not in my backyard” (“NIMBY”) approach to dealing with refugees: western nations provide international aid but take very few refugees.
But international funding only does so much. It fails to offset the security complications and other geopolitical factors involved when housing so many refugees. International aid is fickle and makes Kenya dependent upon the generosity of the international community.
By threatening to close Dadaab and forcibly return many of the refugees housed within it to Somalia, the Kenyan government put a challenge to the international community. The international community could either take more refugees and bear the associated costs or they would bear partial responsibility for the human rights tragedy of the forced return of refugees to Somalia. There is no reason why Kenya – a nation much smaller and with a substantially fewer economic resources – should be forced to bear this burden.
But the international response – to merely praise the Court’s rebuke of Kenya’s plan – has been regretful. This event provides an opportunity for increased dialogue and the possibility of developing an international solution to deal with Dadaab. The international community should recoil against its tendency to embrace a NIMBY-approach and do more to help alleviate the burden that the Somali refugee crisis has placed on Kenya. For example, additional efforts to resettle refugees in other countries would be a great start. However, at the very least, Dadaab should not continue on indefinitely, but finally revert back to a temporary refugee camp, as it was originally designed.
Jason Barnes is a second-year student at Columbia Law School and a staff editor for the Columbia Journal of Transnational Law.