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Refugee Legal Aid in Humanitarian Operations

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This post first appeared on Maja Janmyr’s blog, and is re-posted here. You may access the original post by clicking this link. Nora Milch Johnsen is a research assistant at the Norwegian Centre for Human Rights, where she works on the REF-ARAB, BEYOND and ASILE research projects led by Maja Janmyr.

A building with curtains in Beirut, Lebanon. Photo: Alev Takil via Unsplash

How do humanitarian organisations provide legal aid to refugees in countries that do not have any refugee-specific legislation and where rule of law is largely absent? I spent most of 2020 examining this question closer in my MA thesis focusing on the legal aid program of one international humanitarian organisation in Lebanon. More specifically, I sought to understand how Lebanon’s legal and policy framework on refugees influenced this organisation’s legal aid operations, and which strategies were used to promote and to improve refugee protection in this context. As I will argue in this blog post, the endemic lack of rule of law in Lebanon has discouraged the organisation I studied from outrightly challenging the restrictive refugee policies of the Lebanese government.

Refugee legal aid in the context of a humanitarian operation

The humanitarian response to influx of Syrian refugees to Lebanon has been among the largest humanitarian operations globally. The legal aid program I studied is operated by one of the leading humanitarian NGOs in Lebanon and specifically targets refugees and others affected by the Syrian crisis. The program offers information sessions, legal counselling and representation on different predefined legal topics and is also involved in legal research and advocacy.

Legal aid is provided in a context of increasingly restrictive policies with regards to refugees, and a justice system suffering from endemic lack of rule of law. Despite the fact that refugees make up a quarter of its population, Lebanon is not a party to the 1951 Convention Relating to the Status of Refugees, and the country does not have any formal legislation affording any special status to refugees. Ten years into the Syrian crisis, the situation for refugees in Lebanon is becoming ever more precarious. As a result of tightened regulations, it is estimated that only 22 per cent of refugees in Lebanon have legal residency status. Without a valid residency visa, Syrian refugees are considered illegally present in the country and can face criminal sanctions that might lead to arrest, detention, deportation orders or deportation. To avoid interactions with the authorities, refugees are restricting their movement, limiting their access to basic services such as education and health care.

This situation is further aggravated by the fact that Lebanon’s sectarian power sharing system – largely based on elite-bargaining and clientelist networks – uneasily interacts with institutionalized responses to refugee protection and principles of rule of law. The presence of refugees is largely governed through elite-bargained decisions, some of which are kept confidential. Political interference with the judiciary is also not uncommon, and judgements challenging the political interests of the Government are not necessarily enforced. As such, the lack of rule of law affects not only the nature of Lebanon’s refugee response, but also the prospect of challenging it through the use of legal mechanisms.

Manoeuvring Lebanon’s refugee policies and justice system

In my thesis, I argue that the lack of rule of law that is endemic to the Lebanese justice system has discouraged the humanitarian legal aid program from outrightly challenging the restrictive refugee policies of the Lebanese government. Rather than engaging in strategic litigation, I argue, the legal aid program pragmatically explores the possibilities for protection within the existing bounds of Lebanon’s legal and policy framework.

A main finding in my work is that the legal aid program I studied is hesitant to engage in strategies that directly challenge the Government’s restrictive refugee policies either in court or through advocacy. As they often owe their positions to political leaders, judges are generally unwilling to challenge the Government’s policy by accepting pro-refugee argumentation. In the few successful cases, the judgements have not necessarily been enforced. Political interference with the justice system seems thus to discourage the use of strategic litigation.

In addition, by exposing individual refugees to the authorities, the legal aid program often considers that directly challenging political interests comes with a risk of harm for the individual concerned. Informed by a rights-based approach to humanitarian assistance, the legal aid program is committed to the ‘do no harm principle’. In this case, this principle seems to prevent the use of more confrontational strategies altogether. The humanitarian organisation’s dependency on the cooperation of the Lebanese government in order to fulfil its functions also makes it vulnerable to any backlash that could be triggered by directly challenging the Governments’ refugee policies.

In this context then, the focus of the legal aid program is less on strategic litigation and more on administrative procedures. As refugees are not afforded any special status under Lebanese law, the legal aid provided by this organisation is focused on assisting refugees in navigating their options within the fragmented and often inconsistently applied legal and policy framework. The activities related to legal residency thus focus on the administrative procedures available to renew or regularize residency at the General Directorate of General Security (GSO), either based on a UNHCR registration certificate or a ‘pledge of responsibility’ by a Lebanese national. For example, even seemingly straightforward administrative procedures for legal residency and civil registration require legal representation due to burdensome document requirements and the Government’s inconsistent application of these. And as I specifically discuss in my thesis, the legal aid program seeks to improve refugees’ access to civil documentation by engaging with the relatively independent institutions of the religious courts and the elected neighbourhood leaders, the Mukhtars.

Possibilities for protection and potential for harm

Providing legal aid within a legal and policy framework that is inherently hostile to refugees is not a straightforward task. In my thesis, I discuss the ways in which the legal aid program’s politically pragmatic approach, in its quest for practical solutions, in some cases may result in increased protection in some respects, but heightened protection risks in other.

In 2015, on the request of the Lebanese government, UNHCR suspended its registration activities and no longer provides ‘new’ refugees with a UNHCR certificate. This means that currently, the only way to secure legal residency for those unable to obtain this certificate is to find a Lebanese national willing to ‘pledge responsibility’ for their stay.

Residency based on a ‘pledge of responsibility’ is not identical to the regions’ infamous kafala system but it mirrors the same exploitative dynamic, as the migrant’s residency is tied to the contractual relationship with the employer sponsoring the residency. In response to reports of migrant workers suffering horrific abuse under the kafala system, numerous rights groups have called for the dismantling of this system altogether, although not specifically with regards to the ‘pledge of responsibility’ available for Syrian refugees.

Because it is currently the only option of legal residency for a large number of Syrian refugees, the legal aid program’s assistance in obtaining residency based on a ‘pledge of responsibility’ is indeed a pragmatic solution. This approach nevertheless raises questions about the role of humanitarian organisations in assisting refugees to enter into a contractual relationship which, on the one hand, may protect them from the severe consequences of illegal stay, but, on the other, might expose them to exploitation in the hands of potentially ill-meaning sponsors. Choosing between the devil and the deep blue sea, as the saying goes, is often a fundamentally difficult question – both legally and morally.

My study of the legal aid operations of this one humanitarian organisation in Lebanon sheds light on the dilemmas humanitarian legal aid providers are confronted with when they operate in contexts similar to that of Lebanon, where rule of law is largely absent, and where the legal framework does not provide for the protection of refugees. More than anything else, however, my study raises more difficult questions than it answers: In the pursuit of refugee protection, to what extent can – and should – humanitarian organisations engage in principled and sometimes outrightly confrontational strategies that nonetheless may backlash?  And to what extent should these strategies rather be pragmatic? In Lebanon, the legal aid program I studied balances these dilemmas by manoeuvring the protection possibilities within the existing bounds of the legal and policy framework, while at the same time steering clear of direct confrontations with the Lebanese government.