JURIST Guest Columnist Donna Arzt of Syracuse University College of Law says that for all the furor over whether the Hurricane Katrina evacuees should or should not be called "refugees", that legal label doesn't apply in circumstances of natural disaster….
In the midst of the Katrina disaster, many of the victims, their supporters, and much of the rest of the country were caught up in a debate over what to call the survivors. Shortly after news media began using the term “refugees,” the Rev. Jesse Jackson, among others, protested that it was racist to call American citizens “refugees.” Rep. Diane Watson (D-Ca.) even said the label was “almost a hate crime.” The victims of Katrina, after all they had gone through, did not appreciate being compared to people fleeing from Third World countries, it was said. Ironically, when the current definition of “refugee” was originally adopted in 1951, it primarily applied to Europeans fleeing the Nazis, as a result of “events” occurring before January 1, 1951.
The national media split between those, like the Washington Post, Boston Globe, CNN, NPR, that banned use of the word “refugee” in reference to Katrina survivors, and those such as the New York Times, the LA Times and the Associated Press, who continued to label them as such. For lack of a better term, the awkward “evacuees” became the word most often used to refer to anyone who had been displaced by Katrina and its aftermath.
By now, it is more than evident that “refugee” does not technically apply to persons who remain in their own country and that the legally correct term would be the inelegant phrase, “Internally Displaced Person” or “IDP.” A refugee is someone who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
Refugees are not necessarily stateless; “refugee” is not the opposite of “citizen.” However, the term reflects a certain reality, evident in the clause immediately after the italicized words: “unable, or owing to such fear, is unwilling to avail himself of the protection of that country.” Katrina’s victims who did not receive the expected aid were, indeed, unable to avail themselves of governmental protection.
As in an international refugee crisis, private and public refugee agencies did respond to the disaster. For instance, the International Rescue Committee, a New York-based NGO, dispatched an emergency response team at the request of the Baton Rouge Area Foundation to assist local organizations with public health and emergency education needs. In early September, the United Nations High Commissioner for Refugees (UNHCR) in Geneva, Switzerland deployed two staff members — with twelve more on standby — to the U.S. to assist with relief coordination and offered its emergency stockpiles or “anything else that could be of assistance to US authorities.”
Internally displaced persons are
persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.
There is currently an estimated 25 million IDPs around the world — twice as many as international refugees. Because they are internally located, their government must consent to the assistance of an international agency such as the UNHCR or UNDP (UN Development Programme). That is more likely in the case of a natural disaster than when a military conflagration is occurring.
Hypothetically, let’s assume that many of Katrina’s evacuees had indeed crossed an international frontier — either that Texas is an independent country or that they had reached Mexico, which had taken them in. Then suppose they had sought asylum in a third country, such as Canada. Would they then be properly classified as “refugees”?
Probably not. Flight from a natural disaster is not normally considered “persecution” or “torture,” which are intentional acts caused by a human persecutor. While it would be a stretch, they could argue that the persecution was not the hurricane and flood but the government’s neglect of them after the natural disaster occurred, because of their predominantly African-American race. But the burden of proof, which is on the persons claiming refugee status, would be hard to meet, since non-black evacuees, though they may have had more resources to evacuate on their own, usually encountered the same governmental incompetence. Refugee law provides protection from intentional mistreatment, not disparate impact.
1. State parties to the 1951 Refugee Convention had the choice of covering persons fleeing either (a) "events occurring in Europe before I January 1951"; or (b) "events occurring in Europe or elsewhere before I January 1951." Convention relating to the Status of Refugees, http://www1.umn.edu/humanrts/instree/v1crs.htm 189 U.N.T.S. 150, entered into force April 22, 1954, art. 1(B)(1).
2. On Sept. 21, the Christian Science Monitor reported 6,800 Google “hits” for “Katrina evacuees” and only 5,400 hits for “Katrina victims.” Ruth Walker, Coming to Terms With Katrina’s Diaspora, THE CHRISTIAN SCIENCE MONITOR (Sept. 21, 2005) at 18.
3. See Frederic L. Kirgis, Hurricane Katrina and Internally Displaced Persons, ASIL INSIGHTS (Sept. 21, 2005).
4. Convention relating to the Status of Refugees, 189 U.N.T.S. 150, entere
d into force April 22, 1954, art. 1(A)(2) (emphasis added.)
5. Guiding Principles on Internal Displacement, U.N. Doc. E/CN.4/1998/53/Add.2 (1998), noted in Comm. Hum. Rts. res. 1998/50, para. 2.
6. Like the U.S., Canada has a dual system: the Refugee and Humanitarian Resettlement Program, for people seeking protection from outside Canada; and the In-Canada Refugee Protection Process, for persons making refugee protection claims from within Canada. Both programs apply the same definition of “refugee” established by international law.
Donna Arzt is a professor of law at Syracuse University College of Law, where she teaches international law and human rights. Her book Refugees into Citizens: Palestinians and the End of the Arab-Israeli Conflict was published by the Council on Foreign Relations in 1997.
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