4 May 2015 – in response to the horrific al-Shabab attack that killed 148 students at Garissa University in Kenya on 2 April 2015, the Kenyan government announced that it had requested the United Nations High Commissioner for Refugees (UNHCR) to close the sprawling Dadaab refugee camp by July 2015. Should the UNHCR fail to do so, the Kenyan government has vowed to empty the camp itself and to forcibly relocate Dadaab’s 350,000 Somali refugees back to Somalia. If the government were to follow through with this threat and involuntarily repatriate Somali refugees, it would place thousands of lives in danger and would violate international law.
Dadaab refugee camp is the largest refugee camp in the world. It was established in 1991 in northeast Kenya to house Somalis fleeing conflict and chaos in the wake of the collapse of Siad Barre’s regime. Although the camp was originally intended to accommodate 90,000 people, its population peaked at some 500,000 registered refugees (with many thousands more unregistered refugees) after famine and continued conflict drove thousands more Somalis to seek refuge at Dadaab over the years. Consequently, the camp is extremely overcrowded, its resources are overstretched and its infrastructure is wholly inadequate.
With the rise of al-Shabab in Somalia in recent years, instability has increased on the Somali-Kenyan border. Al-Shabab has continued to wage war against Somalia’s UN-backed government and has launched numerous attacks in Kenya, apparently in retaliation for Kenya having sent troops into Somalia to fight al-Shabab.
The insecurity in the region has constrained non-governmental operations in Dadaab and surrounding areas, and has reduced the provision of basic services to refugees. Sexual violence, targeted killings, and police abuse and inaction have become endemic in Dadaab and have fueled growing resentment among refugees toward the Kenyan government. In fact, conditions in Dadaab are so dire that in 2011 the European Court of Human Rights found that it constitutes cruel and inhuman treatment and is therefore in breach of Article 3 of the European Convention on Human Rights. Since the court’s finding, thousands more Somali refugees have arrived in Dadaab, further straining the camp’s already inadequate resources. These deteriorating conditions have reportedly also allowed al-Shabab to infiltrate the camp, potentially using it as a platform to extend their operations into Kenya.
The Kenyan government has described Dadaab as a breeding ground for Islamist militants, and it is becoming increasingly clear that some elements within Dadaab may have indeed become a threat to Kenya’s national security. The government is now faced with the apparently divergent objectives of protecting Kenyan citizens while continuing to protect refugees in the country. This complex situation raises a number of important international law issues concerning, particularly, the Kenyan government’s legal obligations towards Somali refugees in Kenya.
Firstly, it must be noted that states are under no legal obligation to receive refugees, and Kenya has shown significant generosity in its willingness to host so many refugees for such an extended period of time. In addition to Somali refugees, Kenya has housed, and continues to house, many tens of thousands of refugees from other neighbouring countries, notably South Sudan and Ethiopia.
In receiving refugees, however, a state takes on numerous legal obligations towards them, which are outlined in the Convention and Protocol Relating to the Status of Refugees. In Dadaab’s context, several of these obligations have become particularly poignant, including basic minimum standards relating to freedom of movement and wage-earning employment. With the Kenyan government’s expressed desire to repatriate Somali refugees, the fundamental prohibition against refoulement (expulsion or forced return of refugees to their home countries) in the Convention and under international law has also come to the fore.
Many criticisms have been levelled against the Kenyan government in recent years for its treatment of refugees, particularly Somali refugees at Dadaab. In fact, restricting refugees to camps is in direct contravention of Article 26 of the Convention, which provision obliges Kenya to allow refugees to move freely within the country (subject only to any regulations applicable to aliens generally in the same circumstances). In contrast, refugees in Kenya are encamped and are required to obtain movement passes to allow them to leave camps and travel elsewhere in Kenya for medical treatment or work purposes. These movement passes are frequently suspended by Kenyan officials at Dadaab, thereby preventing refugees from being able to seek medical treatment or to reach their places of employment outside the camp. This standard of treatment is glaringly inferior to that extended by the Kenyan government to other foreign nationals legally living in Kenya.
It is also problematic that Kenya has located Dadaab (and other refugee camps) so close to the country’s borders. In fact, locating camps in conflict zones or too close to a country’s border is viewed as a sign of insufficient government will to protect refugees, since such camps are vulnerable to attack or influence from rebel groups in nearby countries. Dadaab’s close proximity to Somalia makes it an easy target by al-Shabab for its resources, such as food and medical supplies, and also for forced conscription.
By restricting refugees’ movements, the Kenyan government is also infringing refugees’ right to engage in wage-earning employment (Article 27 of the Convention). It also prevents refugees from freely accessing Kenyan courts of law, in contravention of Article 16 of the Convention. In an apparent effort to prevent Dadaab from becoming a permanent settlement, the Kenyan government has also prohibited refugees from building proper houses, requiring instead that they live perpetually in tents or in homes constructed out of mud, corrugated iron, plastic, and thorn bushes. Officials at Dadaab have reportedly stopped refugees from renewing their shelters, leaving them to use the same disintegrating tents for longer than the six months that they are intended to last. Such substandard housing offers inadequate protection from the harsh elements of the desert in Kenya’s northeast region.
Before the Kenyan government’s recent announcement of its intention to close Dadaab and repatriate Somali refugees, it had made several attempts to force Somali refugees to leave Kenya, some of which were tantamount to refoulement. Over time, the Kenyan government appears to have purposefully created conditions so hostile to the safety and wellbeing of refugees that it was hoped that refugees would flee Kenya and either return to their countries of origin or seek asylum elsewhere. While these measures were to apply broadly to all refugees in Kenya, it is widely believed that they were aimed primarily at coercing Somali refugees to leave the country.
In December 2012, the Kenyan government announced a directive to cease registration of and service provision to asylum seekers and refugees in cities, and to force refugees living in cities to relocate to refugee camps. Somali refugees were to report to Dadaab, while refugees from other countries were to report to Kakuma camp in Turkana in western Kenya. Refugees living in cities, particularly Somali refugees, suffered serious abuse from Kenyan security forces in the wake of the directive announcement, including harassment, extortion, invasive house-to-house searches, beatings, arrests, and even rape. Refugees’ identity documents (issued either by the UNHCR or the Kenyan government) were confiscated or destroyed by the security forces, stripping refugees of vital legal protections.
Confidential government communications leaked to the media at that time revealed that the government intended to forcibly round up 18,000 refugees and to hold them temporarily in Thika Municipal Stadium before transporting them to refugee camps. While this plan was never in fact implemented, it ignited substantial fear within refugee communities. Consequently, many refugees fled Kenya to escape persecution by its security forces and to avoid being encamped at Dadaab. Others remained in Kenyan cities but effectively went into hiding. Refugee children were no longer able to safely attend school. A number of Somali refugees complied with the directive and reported to Dadaab, where they faced an indefinite stay in perilous conditions.
Kenya has also repeatedly delayed authorising new refugee camps (Dadaab now consists of five separate camps), resulting in refugees enduring prolonged periods of hardship living in unauthorised camps without access to any basic services. Additionally, the Kenyan government has stopped registering newly arrived Somali refugees in recent years, thereby depriving new arrivals of protection and access to basic services in Dadaab, including housing and food rations. Consequently, they are forced to live in cramped conditions and to share food rations with other refugees, which has led to increased hunger and malnutrition and worsening health conditions in the camp. Unregistered refugees in Dadaab are considered to be in Kenya illegally and are vulnerable to arrest and detention, as well as to abuse and extortion, by security forces.
Coercing Somali refugees to leave Kenya by so endangering their lives and wellbeing, both in Dadaab and in Kenyan cities, is a blatant violation by the Kenyan government of the basic principles of refugee protection.
The government first called for the closure of Dadaab after al-Shabab’s September 2013 attack at Westgate Mall in Nairobi. The government’s intention to empty Dadaab has since hardened further. However, to close Dadaab and to push Somali refugees involuntarily into Somalia, where their lives and freedom would be threatened, would constitute refoulement, which is specifically prohibited by Article 33 of the Convention. The principle of non-refoulement is also considered to be part of customary international law, being so fundamental to the rights of refugees that no derogations from or reservations to it may be made.
Such a move would also have extreme humanitarian consequences, especially if it were to be attempted within the unreasonably tight July 2015 timeframe. The majority of Somali refugees at Dadaab are women and children, many of whom were born in the camp and have never even left its perimeter. Somalia is a dangerous and insecure country that they are completely unfamiliar with, and if they were to be forcibly relocated there, they risk human right abuses, such as rape, murder, and extortion. Indeed, al-Shabab has frequently targeted civilians in Somalia in the past, administering public executions and beatings, and targeting children for recruitment and forced marriages.
That said, it is clear that the current situation at Dadaab cannot be allowed to persist. On the one hand, conditions in the camp urgently need to be improved, and on the other hand, elements sympathetic to al-Shabab need to be effectively purged from the camp, for the safety of both Kenyans and Somali refugees. Further, for non-governmental organisations to operate freely in Dadaab, the security situation in the area must first be significantly reinforced. Currently, UNHCR and aid workers cannot move safely in the camp at night as a result of Dadaab’s lawless state and the possibility of directed crime against aid workers, including kidnapping and bombings, which restrictions have hampered aid operations. In urging the Kenyan authorities to reconsider the closure of Dadaab, the UNHCR has stated its willingness to work closely with the Kenyan government to strengthen law enforcement at Dadaab and support efforts to protect refugees and Kenyans alike against possible intrusion by al-Shabab.
It is also apparent that Somali refugees cannot continue to live at Dadaab indefinitely. In this regard, the UNHCR is also prepared to expand a pilot scheme started in December 2014 to voluntarily repatriate Somali refugees to Luuq, Baidoa and Kismayo, three relatively safe areas in Somalia. It would be far more preferable for the government to work with the UNHCR to support efforts to voluntary repatriate Somali refugees, rather than forcibly remove them. Broader endeavours from the UN and the international community are also needed to eliminate al-Shabab and other inter-clan violence in Somalia in order to make the country more stable and safe for returning refugees.
In the short term, the Kenyan government needs to focus on effectively rooting out al-Shabab from Dadaab and elsewhere, rather than scapegoating Somali refugees en masse when they need to show the Kenyan public that they are working to prevent future attacks. Identifying, arresting and prosecuting potentially hundreds of al-Shabab members and sympathisers will be an incredibly difficult task for the government, one far more challenging than simply emptying Dadaab, and assistance from the UNHCR and the international community will be crucial.
However, such an approach is the only reasonable and lawful way for the government to protect Kenya’s national security while also abiding by its international law obligations to protect Somali refugees. Additionally, it will avoid an escalation in Somali resentment towards the Kenyan government, which would surely kindle further violent attacks.