The Decline of Humanity: How Refugee Crises Expose the Failure of International Law

Title: The Decline of Humanity: How Refugee Crises Expose the Failure of International Law Author: S A H Waliullah* Affiliation: LL.B (Hons.), LL.M. Candidate (Islamic University, Bangladesh) and Pupil Lawyer, Dhaka Judge Court, Bangladesh Email: [email protected].bd * [S A H Waliullah is a pupil lawyer at the Dhaka Judge Court, Bangladesh. He holds an LL.B (Hons.) from Islamic University, Bangladesh (Kushtia-7003), and is currently pursuing an LL.M. from the same institution. Waliullah is the former President and currently serves as an Advisor of the Law Awareness and Enlightenment Society, IU. His research interests include constitutionalism, judicial independence, access to justice, International Law and international humanitarian law. He has authored over 50 analytical and feature articles in leading national newspapers in Bangladesh.] Abstract: With global refugee crises continuing, an inconsistency in international legal order remains—one that claims refugee and humanitarian laws to be universal and contradictory for failing to protect the most vulnerable. This article illustrates how the refugee crises expose the recession of humanity within international relations, in particular the lack of accountability to international humanitarian and refugee laws. This is demonstrated in the cases of Syria, the Rohingya, Gaza and Ukraine to show how eroding state accountability, selective and politically motivated enforcement, and the decline of altruism humanitarianism results in the recession of humanity. 1. Introduction The forced displacement phenomenon is a global phenomenon, which the twenty-first century has witnessed unprecedented escalation within. The latest estimates of the United Nations High Commissioner for Refugees (UNHCR) counted over 120 million people to be forcibly displaced by mid-2024— the largest figure in history.[1] The crises of Syria, the Rohingya, Gaza, and Ukraine underscore the plethora of gaps in the international legal order for the displaced. The response remains splintered in spite of the robust legal frameworks in place, specifically the 1951 Refugee Convention and the 1967 Protocol which expanded its reach. Even with strong frameworks including the 1951 Refugee Convention and the 1967 Protocol, the worldwide response remains inconsistent and fragmented. Refugee crises represent, in part, a humanitarian tragedy and, as the most devastating form of the weakening of the moral and legal order of international law, a tragedy of humanity. The international refugee regime has become a tool of political expediency instead of a mechanism of global justice because of selective enforcement, geopolitical games, and systemic indifference. 2. The Basis of Refugee Protection in International Law The 1951 Convention Relating to the Status of Refugees remains the center of global refugee protection, stating that anyone who, "owing to a well-founded fear of being persecuted," is unable or unwilling to return to their country of origin is a refugee.[2] Though it received a boost through the 1967 Protocol, to which it was complementary, the Framework attempted to broaden protection universally without any geographic or temporal limitations. However, The Convention originated on a predominantly Eurocentric basis, and was primarily written to address post–World War II refugees in Europe. Hathaway notes that the regime "never completed the task of decolonization," which intentionally excluded large parts of the Global South from succeeding to protect those who had fled persecution.[3] The principle of non-refoulement has remained contradictory, and much to its dismay, is a continuing challenge to enforce a peremptory norm of international law, while it remains one of the prima facie (first credibility of evidence) violations of protection worldwide.[4] 3. Structural Weaknesses and Enforcement Deficits The international legal system’s shortcomings in responding to refugee situations are not simply a function of normative insufficiencies, but also structural design. Refugees are dependent on state consent rather than legally enforceable obligations. As Goodwin-Gill and McAdam reference, the Refugee Convention lacks a compliance monitoring system and enforcement mechanism in favor of “voluntary compliance and moral persuasion.”[5] Similar to its limited abilities under international law in establishing the UNHCR, the UNHCR is dependent upon donor states and the political influence of those states in fulfilling its system established under the 1951 Refugee Convention.[6] Further, when the primary violators of law are personified by more powerful states, accountability is compromised. Examples established by the European Union's efforts to externalize migration control and create regional containment risks policies in Africa and Asia show how often legal commitments are subordinated to political conveniences.[7] 4. Case Study I: The Rohingya Crisis The Rohingya genocide in Myanmar is the clearest example of the international legal system's complete breakdown in preventing and rectifying mass displacement. Since 2017, more than one million Rohingyas have fled persecution, mostly to Bangladesh.[8] Despite clear indications of genocidal acts committed against the Rohingya by the UN Independent Fact-Finding Mission,[9] the UN Security Council's failure to authorize any meaningful action is due to greatpower politics and its veto power. [10] Bangladesh, not a party to the Refugee Convention, is hosting the refugees under temporary arrangements without legal safeguards.[11] The impasse—a situation of overcrowded camps, minimal prospects for work, and continuous insecurity, demonstrates both the failure of international order to provide legal protections and a moral failing.[12] 5. Case Study II: The Syrian Refugee Crisis After about a decade of civil war in Syria, it is estimated over 14 million people have been displaced, including nearly seven million refugees.[13] Although this crisis has been enormous by any measure, responses internationally have been more a reflection of strategic interests rather than humanitarian obligation. Countries with wealth have prioritized deterrence and border management to resettlement, only accepting less than 10 per cent of Syrian refugees, for example.[14] The EU–Turkey Agreement (2016) was an agreement to share the burden of containing refugees. This agreement almost legalized the exclusion of refugees as a result of “cooperation.”[15] The agreement was heavily criticized as it violated principles of non-refoulement and procedural fairness and is a perfect example of how law can be used to evade responsibility.[16] 6. Case Study III: The Crisis of Gaza Refugees The Gaza Strip exemplifies one of the longest and politically complicated refugee situations in contemporary history. More than 1.7 million Palestinians living in Gaza are registered refugees with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) - the descendants of individuals that were displaced in 1948 and in 1967.[17] The latest escalation of violence, which began in 2023-2024, features ongoing bombardments and continued blockages, resulting is multiple reports by the UN declaring Gaza uninhabitable.[18] Unlike other refugee populations, Palestinians find themselves in a unique state of legal limbo. The occupying Palestinians are explicitly excluded from the protection framework of the 1951 Refugee Convention under applications of Article 1D, which includes an exemption of responsibility to UNRWA instead of the UNHCR.[19] Although these provisions were intended as temporary and transitional measures, it has continued for more than 70 years and effectively normalized statelessness.[20] The blockade and military actions of Israel, coupled with the international community’s inaction to provide humanitarian access, have led to a crisis that tests international legality itself. The provisional measures from the International Court of Justice in 2024 to prevent acts of genocide in Gaza, have largely gone unheeded. [21] As Gable states, “Israel’s impunity has transformed the Palestinian refugee crisis into a test of the international order’s moral legitimacy.”[22] Global silence in the wake of indiscriminate attacks and forced displacement represents an acceleration of the collapse of the Responsibility to Protect (R2P) doctrine and humanitarian accountability.[23] To make matters worse, neighboring countries such as Egypt and Lebanon have limited their borders, citing security concerns, leaving displaced civilians trapped in a beleaguered enclave.[24] Hence, the situation in Gaza exemplifies the intersection between the impotence of law and the decline of humanity: a legal system paralyzed by politics while refusing to protect the foundational principles upon which law is based. 7. Case Study IV: The Ukrainian Refugee Exception The example of the Ukrainian refugee crisis that emerged from Russia’s invasion of Ukraine in 2022 is a clear illustration of the selective universality of international law. Within weeks of invasion, the European Union came together in declaring the EU Temporary Protection Directive to apply to Ukrainians, which afforded them immediate rights of residence, rights to work, rights to welfare, etc.[25] The action of providing temporary protection to Ukrainians is significant, especially when considering the plight of non-European refugees who are governed by punitive asylum policies, enduring detention experiences, and being subjected to pushbacks. Chimni has previously noted that the refugee regime exists and operates within a hierarchical global order, in which the provision of, and access to, protection is fundamentally contingent upon an individual’s geopolitical identity.[26] The vastly different treatment and outcomes for Ukrainian refugees compared to refugees from Gaza and Syria exemplifies that this is not a problem of law, but is rather an issue of moral universality. 8. The Politics and Erosion of Normative Authority Humanitarian norms are being increasingly subordinated to realpolitik. Refugees are not understood to have rights, but instead as mere tools of state policy. The weaponization of migration, seen in Belarus’s manipulation of migrant flows into the EU,[27] and using aid to Gaza for leverage,[28] is an example of how forced migration has become a geopolitical instrument. The Responsibility to Protect (R2P), which ten years prior was seen as a moral advance, has become a shell of its original conception, manipulated for rhetorical purposes and without enforcement. According to Evans, it has become a doctrine that has been reduced to convenient rhetoric beyond implementation.[29] Thus, international law ceased to represent a universal moral order, what Goodrich describes objective-based legal systems reflect power asymmetries, creating an abrogated order around potential cold-war era terms. 9. Humanitarianism and the Challenge of Solidarity Humanitarianism has become bureaucratic and non-political, with logistics taking precedence over justice. As Arendt cautioned, refugees become "rig htless beings" — divested of citizenship, dignity, and recognition.[30] The situation in Gaza and the loss of UNRWA's funding in 2024 are entrenched in this destructive dilemma of moral fatigue; humanitarian aid regulated by political allegiance rather than legal obligation.[31] Betts and Collier proclaim that refugee policy has now transitioned from rights-based protection to containment, turning an aspect of human suffering into a management issue.[32] This transition indicates not simply a bureaucratic failure, but also a more profound erosion of human solidarity in the face of suffering. 10. Reimagining International Law: Working Towards Restoring Humanity in International Law The restoration of humanity in international law calls for a fundamental reconfiguration of its moral and institutional foundations. There are three interrelated deficits by way of reform: accountability, equity, and representation. i. Accountability: A UN-based rights tribunal on behalf of refugees can provide binding adjudication of systemic violations of refugee rights.[33] ii. Equity: Regional frameworks beyond the Western paradigm like the Kampala Convention can lead to shared responsibility for all displaced persons.[34] iii. Representation: The recognition of the voice of refugees, including refugees from the Palestinian territories and from Myanmar, into predetermined policy processes begins the task of humanizing governance and displacing centralized authority.[35] International law can only begin to emerge from its instrumentalist decline when the dignity of all persons are embraced. Defending the rights of refugees is not an act of charity, but a measure of the moral coherence of civilization. 11. Conclusion The crises in Syria, the Rohingya, Gaza, and Ukraine reveal a worrisome trend: the selective sympathy of international law is indicative of a world order characterized by inequality. The legal framework that was designed to protect human dignity, now participates in its demise. The suffering of Gazan civilians, the displacement of the Rohingya, and the forced departure of millions from Syria and Ukraine, offer compelling evidence of a world where law without humanity is law without legitimacy. Restoring humanity in international law goes beyond reform; it requires restoring intellectual courage. Unless the global community addresses its selective ethics, the refugee, will remain the most powerful representative of the decline of humanity. Bibliography: 1. UNHCR, Global Trends: Forced Displacement in 2024 (UNHCR 2024). 2. Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137. 3. James C Hathaway, The Rights of Refugees under International Law (Cambridge University Press 2005). 4. Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (4th edn, Oxford University Press 2021). 5. ibid 71. 6. Alexander Betts, Survival Migration: Failed Governance and the Crisis of Displacement (Cornell University Press 2013). 7. European Commission, EU-Turkey Statement, 18 March 2016 (Brussels 2016). 8. Human Rights Council, Report of the Independent International Fact-Finding Mission on Myanmar (A/HRC/39/64, 2018). 9. ibid para 72. 10. International Criminal Court, Situation in Bangladesh/Myanmar (ICC-01/19). 11. UNHCR, Rohingya Emergency Response Update (Geneva 2023). 12. Amnesty International, Let Us Speak for Our Rights: Human Rights Violations against Rohingya Refugees in Bangladesh (London 2022). 13. UNHCR, Syria Emergency: Ten Years On (2023). 14. Oxfam International, Fair Share Analysis 2022: Global Refugee Resettlement (Oxford 2022). 15. Elspeth Guild and Cathryn Costello, European Refugee Law and Policy (Brill 2017). 16. Human Rights Watch, EU/Turkey Deal Fails Refugees (2017). 17. UNRWA, Palestine Refugees in Gaza: 2024 Situation Report (Geneva 2024). 18. United Nations, Report on the Humanitarian Situation in Gaza (A/79/412, 2024). 19. Refugee Convention (n 2) art 1D. 20. Susan Akram, ‘Palestinian Refugees and International Law: The Persistent Protection Gap’ (2023) 35 Int’l J Refugee L 201. 21. International Court of Justice, South Africa v Israel: Application of the Genocide Convention (Provisional Measures, 2024). 22. E Gable, ‘The Unseen Consequences of Israel’s Impunity: How the Palestinian Refugee Crisis Fuels Global Displacement’ (2024) Boston University Pardee Atlas. 23. Gareth Evans, The Responsibility to Protect (Brookings 2008). 24. Human Rights Watch, No Way Out: Egypt’s Closed Borders and the Gaza Crisis (2024). 25. European Commission, Temporary Protection Directive Factsheet (2022). 26. B S Chimni, International Refugee Law: A Reader (Sage 2000). 27. Council of the EU, Statement on Belarus Migration Crisis (2021). 28. Amnesty International, Israel/Occupied Territories: Starvation as a Method of Warfare in Gaza (2024). 29. Evans (n 23) 201. 30. Hannah Arendt, The Origins of Totalitarianism (Harcourt 1951). 31. UNRWA, Funding and Mandate Crisis Brief (2024). 32. Alexander Betts and Paul Collier, Refuge: Transforming a Broken Refugee System (Penguin 2018). 33. Volker Turk, ‘Refugee Protection and Accountability in International Law’ (2022) 34 Int’l J Refugee L 401. 34. African Union, Kampala Convention on IDPs (2009). 35. Catherine Briddick, ‘Participation and Refugee Protection: Beyond Tokenism’ (2021) 33 Refugee Survey Quarterly 89.