Vital Interests: Jared, thanks very much for joining us today on the Vital Interests forum. You work as an advocate for human rights - defending people that are held in detention around the world because of their support for human rights or opposition to oppressive regimes. Recently you published The UN Working Group on Arbitrary Detention: Commentary and Guide to Practice so we welcome your insights on the crisis of 82.4 million people who are forcibly displaced persons according to the United Nation High Commissioner on Refugees (UNHCR).

Millions of these people are economic migrants seeking a better life, refugees escaping conflict, or people seeking asylum from persecution. Some are able to find temporary shelter and employment in accommodating situations but a vast number find themselves confined to designated camps and detention centers in countries around the world.

To put this in context, can you describe for us the role the UN plays in the setting up, administration and in the funding of these camps?

Jared Genser: Thank you for having me, John, good to be with you and I'd be remiss if I didn't note that you were the editor of my book on The UN Working Group on Arbitrary Detention - thank you for doing a brilliant job with that.

Your introduction is absolutely on point in terms of the millions of people being detained in so-called refugee or asylum center situations. It's important to emphasize that arbitrary detention can happen in a wide array of ways - one very high-profile context is if a person who is a refugee or asylum seeker is being detained, pending an evaluation or determination of their application either for refugee status or for asylum.

Contrary to what I think most people might generally understand is that many of these are not camps that are run by the United Nations and operated in accordance with international human rights law, standards and norms. In many instances these are camps that are run by governments, or even in the case of Syria, non-state actors, who establish camps for displaced people and then run them really, as they see fit. What you see, especially in the context of Syria, is people who are being detained in closed areas that they cannot leave, and subjected to deplorable and horrific conditions, including situations where people are subjected to extrajudicial killing, torture, discrimination on the basis of their race or ethnic nationality and where basic humanitarian standards are not even met in terms of having daily access to edible food and potable water.

I think that these are incredibly difficult and challenging situations because of the numbers of people in these kinds of camps and one really has to look at them on a case-by-case basis. But, the UN system, and the international community, has developed a very clear and unequivocal body of law,  emanating both from the Refugee Convention, but also from soft law standards of the UN High Commissioner for Refugees Office, as well as through General Assembly declarations and other norms that have been put together. So I think that I might start there as a starting point.

VI: Let's go into the classifications of camps that are in fact or have become detention centers. Some of these camps are long-standing, having been set decades ago. For example, thousands of Palestinians live in “refugee camps” that actually have become de facto villages in Lebanon, in the West Bank, and in Jordan. Also in Africa, there are a number of very long-standing camps occupied by people who have fled conflict in the Central African Republic, Somalia, or South Sudan. Can you explain how this came about and what future there is for people caught in these kinds of detention realities?

Jared Genser: These kinds of situations, undoubtedly, constitute arbitrary detention as a matter of international law. What is so shocking to me is the open endedness of the detention. I'm best-known for my work for political prisoners around the world and you look at the cases of high-profile political prisoners who have, for example, spoken out against the government and been given a prison sentence for criticizing an authoritarian leader of a country and they're then given some term in prison, which they will then have to serve, and as a lawyer, I've worked to try to get these people out of jail much earlier than the sentence might provide.

But in cases like that, there's at least technically a fixed term of detention and I think that what should be most stunning to people is that in the cases of long-term detention facilities for refugees and asylum seekers, you're talking about people that can be detained for decades, children who grow up in these camps literally and have no prospect of ever getting out, and this constitutes a wide array of abuses of both binding international and soft law standards, and yet there really isn't the political will on the part of the international community to bring these long-term detention situations to a resolution and those detained languish for many, many years, and or even, as you noted, decades.

It is important, I think, as we'll do in this conversation, to understand in more detail why these detention facilities violate international law because that should be a driving factor for the international community to find solutions for these kinds of situations. Although we are currently living in an era of COVID, and with dramatically limited resources globally, what is happening in any one of these kinds of camps, are countless thousands, even up to millions of people, who are arbitrarily detained, and in essence, are being punished because they either fled situations where they were being persecuted or they've applied for safe harbor because they've gotten to a third country and are claiming asylum and don't want to be sent home. Yet while the whole point of the refugee/asylum system globally is about providing protection to people who face a well-founded fear of persecution on the basis of a wide array of protected grounds, these people find themselves in an endless limbo from which there seems no solution. 

Being a refugee or having an asylum status is intended to be a temporary situation, where for some period of time you need to be outside of your country of origin, in order to be protected from this kind of persecution and ultimately, the long-term trajectory should be that you're able after that period of danger has passed to return back to your country of origin. Tragically, that simply hasn't happened in these situations.

VI:  Isn't one of the obstacles in many of these situations the articulated human right of the right to return, to be able to go back to your homeland, to go back to where you came from and reclaim property that often had been in your family for generations? These claims can be quite controversial and rarely granted.

Jared Genser: Yes - the right to return is problematic and controversial because when you're talking about long-term detention facilities where the situation in your country has evolved enormously, accommodating the right to return claims is difficult. You mentioned the Palestinian camps.  In many of these camps there are people who were born in the camps, whose parents or grandparents were the ones who fled in 1948, with the war that broke out after the UN recognized the creation of two states and Israel accepted that offer and Palestinians did not. You're talking about multi-generational detentions and no easy solution because Israel-Palestine can't seem to find a way to resolve the many-decades-long disputes between them and the right of return is part of the whole negotiation process that has to be undertaken in order to obtain a final settlement of all outstanding issues and a permanent peace.

In the interim period, of course, there's nowhere for these people to go. I think that’s a dramatic challenge for the international community looking at those kinds of camps in particular. But at the same time, while people should have a right to return to their country of origin, at a bare minimum, they should be offered a means to be able to get out of these long-term detention facilities. The international community should also offer temporary places for people to go in the meantime.

If you're talking about long-term negotiations between Israel/Palestine, there's no reason why people have to remain sequestered in these kinds of detention camps for decades, simply because a peace agreement can't be reached. Any of the countries in the region or the international community could undoubtedly accept the transfer of these populations to situations where they could be free, where they can return to having a life, to having a job, to having kids in schools, etc, so this is one of the major ways in which the international community has failed people in these kinds of long-term detention facilities.

VI: Let's look at another situation in an area of the world that you've done a lot of work in, which is Burma/Myanmar, where ethnic cleansing caused a large number of Rohingya, a minority population, to flee for their lives across the border into Bangladesh. A refugee/detention camp was set in a remote and desolate place called Cox's Bazar and now nearly 800,000 Rohingya are stuck in Bangladesh.

The international community initially expressed concern, but I don't think people now turn their attention to the circumstances of the stranded Rohingya. With Bangladesh showing no inclination to absorb these people or any prospect of going back to Myanmar or elsewhere, does this situation have the potential of becoming another long-term detention center?

Jared Genser: Yes, this is really a terrible development. I think for the Rohingya in Burma/Myanmar, they had no choice but to flee because of the advances of the Tatmadaw, the Burmese military and the various acts of genocide committed against them. The Burmese government simply denaturalized their entire Rohingya population in 1982 with a new citizenship law, leaving them without any rights or protections under the Burmese political system, although they should have been afforded protections under the international system and Burma has an obligation to adhere to those obligations under international law. As bad as the situation is for the Rohingya that are in Cox's Bazar, life is far worse for Rohingya in IDP camps inside Rakhine State. Both situations are ultimately deplorable and incredibly challenging.

And you're absolutely right, there's no signs that Bangladesh intends to allow these people to integrate into the local population. At the same time a new and brutal military junta is in charge in Burma and it's going to be some time before democracy is restored there, let alone a government that would even consider allowing the Rohingya to return. So it does appear that the Rohingya will remain in this detention status for the foreseeable future.

VI: Another situation which has caught the attention of the international community is the treatment of the Uighurs in China’s Xinjiang region where large internment camps, “re-education” camps, have been set up to contain a Muslim population. Once sufficiently “retrained,” the detainees are released but their lives are still restricted by intense surveillance by the Chinese state.  Is this  a category of arbitrary detention that the UN should be speaking out more vocally against?

Jared Genser: I don't like to compare the suffering of different people because the suffering of any person is deplorable and every human being deserves to be treated with basic human dignity. I would say that what's happening in the Uighurs camps is especially terrible, because in the camp situations we were just discussing they're definitely long-term. In all these contexts, people are being arbitrarily detained in violation of international laws: there's no question that they're all illegally held by the countries or non-state actors that are holding them.

But in the case of the Uighurs what is happening is an attempt to ethnically cleanse the population, and to 're-educate' them and this is ultimately a long-term effort to destroy the population. It amounts to, in my view, genocide as defined by international law. I think that what's happening to the Uighurs is especially heinous in terms of the willful and egregious human rights abuses that are being imposed upon people living in these facilities.

In many of the other facilities we're talking about so far, there are terrible violations of human rights in terms of access to food and water, the right to be free from bad things happening to you in a wide array of respects, access to healthcare, access to education, etc. These are the secondary effects of long-term detentions with limited resources, rather than willful acts by the actor, the state, to detain people to seek to impose horrific conditions of life on these groups intentionally.

I think what's happening with the Uighurs is especially urgent, but for any person who's detained as a refugee or asylum seeker for an extended period of time, their captivity is unequivocally a flagrant violation of obligations under international law.

VI: Let's discuss the detention camps in Syria and Iraq, because there we also have another context where people are being detained in internment facilities. Two of the largest camps are Al-Hol and Roj in northeastern Syria. They contain over 70,000 people; 80% are women and estimates are 28,000 are children. Many were swept off the battlefield in the fight against ISIS conducted by the United States in conjunction with the Kurdish Syrian forces. A number of the people being held are characterized as ISIS fighters or sympathizers which is the principle rationale for their detainment. It is estimated that those with ISIS connections are from over 50 different countries. Because of their alleged connection to terrorists, countries are refusing to allow their nationals repatriation. How can this implacable situation be resolved?

Jared Genser: These are absolutely terrible situations. I think that the part that I find the most stunning about this is described in a report issued earlier this year by a group of more than 20 UN rights experts led by Fionnuala Ni Aolain, the Special Rapporteur on the promotion and protection of human rights while countering terrorism. She has taken a lead role in speaking out about what's happening in the Al-Hol and Roj camps in northeastern Syria. It was identified through this work that the Al-Hol and Roj camps are run by non-state actors, by militias, and that there are more than 60,000 people in these camps and they come from 57 different countries around the world. There should be no reason why those governments shouldn't be acting expeditiously to coordinate with these militia groups and to allow these people to be repatriated to their countries of origin.

Instead, there are people within the camps, to quote from the report, who are being exposed to "violence, exploitation, abuse, and deprivation conditions and treatment that may well amount to torture and other inhuman and cruel and degrading treatment or punishment under international law with no effective remedy at their disposal. An unknown number have already died because of their conditions of detention.”

Again, this is a very, very urgent situation. Not only because of the numbers involved but due to the very large percentage of women and children, and also because there is a potential way out. If these were all people that had fled a neighboring country and were afraid of being sent back there, there's no third country that could potentially take them in, and therefore they're stuck in this situation. For example, the Palestinians that we were talking about in the Palestinian refugee camps, there's nowhere else for them to go.

However, in this particular case, there are places where many of these people could go. Yet governments around the world have not stepped up to try to identify their own nationals and to take them back.

The reality is that when it comes to the point that you were also making - an important point - the fact is that these are people swept off the battlefield that may or may not be connected to terrorism. This is something that can be assessed as a part of either a refoulement process back to their countries of origin, or if they're afraid to go back to their countries of origin, they should have a right to claim asylum and to have that claim processed and to have the evidence and information about them heard. You obviously don't have a right to asylum or refugee status under the Refugee Convention if you have been engaged in acts of violence or terrorism.

There are exceptions to refugee and asylum protections, but again, those should be able to be adjudicated in an appropriate forum. Of course, in this situation, like many of the others you described around the world, there is no due process of law. There's no venue, no court to appear before to tell your story and be released from detention. You're left stuck in these intolerable situations with no rights whatsoever.

VI: In some of the camps that were set up after ISIS was driven out of Mosul and other locations in Iraq, some trials took place. These were half hour trials with summary judgments and with defendants immediately taken out and executed. This is not the due process we hope to see for those detainees accused of ISIS or other terrorist connections.

Jared Genser:  This is exactly the kind of thing that one obviously has to avoid. Again, it's not like the international community hasn't been dealing with this for decades. It obviously has. The correct processes are quite clear and articulated in many international treaties. For example, the International Covenant on Civil and Political Rights, which has been signed and ratified by more than 170 countries, states there is an inalienable right to be free from arbitrary detention and Article 12 addresses the right to free movement.

There are two general sets of soft law guidelines - the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment and the Standard Minimum Rules for the Treatment of Prisoners. They govern the way that in general people who are detained by states or non-state actors anywhere in the world should be treated.

In addition, the UN High Commissioner for Refugees Office has published - and then updated over many years - a set of guidelines that is very instructive and on-point here, relating to detention guidelines applicable to the detention of asylum seekers and an alternative to detention.

It's unequivocally clear that in these kinds of situations, all 10 of those guidelines are being violated. The question is what the international community is going to do with any sense of urgency to ensure that the people being detained in camps like Al-Hol and Roj are provided these rights under international law?

VI: Does the fact that people in these camps are labeled as possible terrorists give the countries from which they are from an excuse to opt out of their human rights responsibilities?

Jared Genser: Not as a matter of international law. I think perhaps from a political calculation perspective, this is what a lot of these countries have done despite having been issued letters by the UN urging that they reclaim their nationals and repatriate them. Obviously we all know about the global right to the presumption of innocence, right? Just because someone is alleged to have been picked up from the battlefield, and alleged to be potentially tied to terrorism or alleged to be a battlefield combatant does not give a government the right to treat them as if they are presumed guilty.

On the contrary, you need to be presumed innocent. If what is being alleged is accurate, well, then the way to prove it is to give them the opportunity to challenge their detention in a court of law, to make sure they have a right to access to counsel and then to require the state to present evidence that they are involved in terrorism or are an unlawful combatant of some kind, and to give them in a public hearing before an independent and impartial tribunal the ability to hear the evidence against them and to challenge it. And to force the state to prove beyond reasonable doubt that they're guilty of their charges.

As a general matter, we all think that our own countries, if we were to get in trouble anywhere in the world, should at least do a bare minimum in order to protect us and there may be international law-specific protections that citizens of various countries have to at least get some minimal assistance from their governments if they find themselves in harm's way.

Again, my best sense of it is exactly what you just described, which is that states are hesitating because there is simply the allegation that these people may have been involved in violence and terrorism and, therefore, they are unwilling to make any effort to even consider facilitating their return home. To me, that's a horrific and illegal abdication of their responsibilities as a state, which in the first instance, should be responsible for protecting their own citizens and nationals.

VI: Let’s discuss the group that is actually managing these Syrian camps - the so-called autonomous administration of Northern and Eastern Syria. This is basically a Kurdish militia - so a non-state entity. Who has legitimized these camps - the UN? Does the UN provide financial and logistical support?

Jared Genser: The management of these camps is not entirely clear. Undoubtedly, there are UN agencies that are providing certain services in these camps. I know that, for example, in addition, the government of Germany is funding some projects in these camps involving education and healthcare. It's really a hodgepodge collection of resources that are being put together. These militias don't have extraordinary resources on their own, and so they're really relying on the largesse of the international community.

I think that this is another one of the challenges - especially in camps that are run by non-state actors  - because, in essence, without receiving voluntary handouts of resources and humanitarian assistance, the people in these kinds of camps are simply not getting sufficient food, water, healthcare, education or other kinds of basic services that they should be provided as a matter of international law, and so I think that this is undoubtedly a major challenge.

VI: There are allegations that many of the women in the Al-Hol and Roj camps received subsistence money from ISIS to buy their allegiance. Basically, ISIS is using these camps for recruitment and training. The thousands of children in the camps are particularly vulnerable to being radicalized. Isn’t this another imperative to rectify the way these camps are managed?

Jared Genser: Undoubtedly when we talk about terrible conditions in these camps, many aspects spin out of control. It has been documented that ISIS has provided financial support as well as demanded allegiance to the strict and draconian religious standards that ISIS demands. And so this is, again, another form of persecution that people living in Al-Hol and Roj have been subjected to. Because there isn't open access to these camps or easy ways to monitor what is happening, a lot of what is going on comes from second or third-hand information and people who are escapees of these camps talking about what has gone on in there as well.

One of the other big problems of these kinds of mass detention facilities is that the organizations that run them or the governments that are supporting them tend to not want any transparency or accountability for what's happening inside them. So I think that this is obviously something that is very, very worrying as well.

VI: In terms of arbitrary detention, how does the UN consider what is happening along the southern border of the United States? 

Jared Genser: Well, if you have to apply international law consistently across situations, so undoubtedly mass detentions without access to challenge that detention in a court of law is illegal as a matter of international law. A person has come to the United States and claimed that they have the right to be protected by seeking asylum. If they have been detained by the United States, then the detention period should not obviously be indefinite.

One of the things that UNHCR has spoken about is the fact that there are many different alternatives in these kinds of mass detention situations where you can obviously have lesser forms of detention in terms of limiting movement or monitoring movement or requiring regular reporting of people who have been released pending evaluation of their claims for asylum, etc.

One of the specific guidelines the UNHCR has is Guideline 6 which says that detention is arbitrary and maximum limits on detention should be established in law. And then Guideline 7 says decisions to detain or extend detention must be subjected to minimum procedural safeguards, so it's not that you can't detain a person who is seeking asylum, but they have to be detained for a very limited period of time and alternatives to detention such as monitoring and reporting should be considered.

Now, obviously, states have different appetites for how they're prepared to do that and many states simply ignore this requirement. But it's very clear under not only UNHCR guidelines, but under the International Covenant of Civil and Political Rights, that a person has a right to be free from arbitrary detention. They have a right to be presented to a court of law to challenge the lawfulness of their detention. They have a right to have access to counsel. In order to be able to do that, they have a right to a public trial, they have a right to an independent and impartial tribunal when adjudicating the rights that they may have.

The border detention system of the United States is being challenged by the sheer enormity of the number of migrants coming to the southern border. Just through the first half of 2021, more than a million people have been detained trying to illegally enter the United States. Those numbers are gigantic, and so the key question is -  how do you make a fair and particularized determination of any of these claims when you're talking about a million people?

These are genuine challenges, gigantic challenges, that we have to face, but again, there needs to be a presumption against the detention of refugees and asylum seekers unless there's specific reasons that they should be detained. In light of the enormous stress on the system that what is happening on the southern border is causing, undoubtedly more resources need to be put into increasing the numbers of people that are in a position to be able to provide proper legal assistance, and into increasing support for the processing of claims as rapidly as possible according to the international law standards for due process.

Even though the numbers are enormous, there's no emergency provision that allows you to abrogate the application of international human rights laws simply because it's challenging bureaucratically to process the claims in a timely manner. Your obligations remain the same whether it is a million people that are being detained or not. President Biden has said that human rights are central to his foreign policy. Well, that obviously also has to apply at home.

I think that there is an urgent need for President Biden and for the Congress to provide the resources that are necessary to ensure that anyone detained at the border is done in full compliance with international law, as well as provided the conditions that meet global standards for the detention of any person that would need to be applied.

VI: Basically, what you're talking about in terms of processing the large number of people in detention around the world with no prospect of ending their plight is really a problem of data analytics. There appears to be an urgent need for the creation of a global database where critical information about displaced people can be captured and then accessed by government agencies, international organizations, and aid groups that could provide verification of a person’s status and expedite resolution of their refugee and asylum claims.

We have gigantic social media companies that keep track of the details on billions of people around the world, couldn't their capabilities and tools be somehow applied to assisting in this global crisis?

Jared Genser: Yes. Undoubtedly, there needs to be an expansion of existing tools and some development of new tools to deal with our current crisis. We have the largest numbers of refugees and IDPs in the world today, second only to the end of World War Two. But this challenge, especially in light of all the other global financial challenges we're facing due to COVID, has led people to not prioritize investing resources to generate solutions.

Ultimately, I think that you need the G20, especially, as a starting point with more resources, to be willing to invest the resources that are necessary to ensure that people in these kinds of irregular and extended detention situations are resolved as rapidly as possible.

It's really a question of prioritization. It's a question of resource allocation, and it's a question of tools, as you're suggesting, that need to be deployed in order to do this properly. Of course, people who are picked up, let's say, in Syria off the battlefield, allegedly, may or may not have identification on them. They may say that they are nationals of a particular country and they may or may not be nationals of that country. The bottom line is that, again, with respect to the Al-Hol and Roj camps, in light of the fact that these are being run by allies of the United States, and the international community, there undoubtedly is a very simple way with political will and pressure to ensure access to those camps, to ensure fingerprinting, and to identify people.

Diplomatic pressure can be exerted on states that have nationals in these camps to look at the individual cases one at a time and to evaluate whether in fact they're actual citizens of the countries they identify with and then create paths to take them back. If the government of any particular country believes that their citizens may have been involved in violence or terrorism, then there should be a way for them to receive any information on how they were detained from the non-state actors that are running these camps and to be able to deal with that as they see fit.

At the end of the day, these unlawful detentions could be resolved sooner rather than later if the 57 states who have nationals there were to step forward and say, "We're willing to receive the information related to our nationals, to investigate it and then to ultimately either give them passports so they can leave or otherwise deny that they are in fact citizens of our country."

To me, this is a situation that is more capable of being resolved more quickly than, for example, the long-standing detentions of the Uighurs in China, which is an internal set of challenges and the Uighurs have nowhere to go other than to remain in China. 

VI: Jared, thanks very much for this conversation. Hopefully the G20 countries can get together and provide the necessary resources and resolve that this human crisis calls for. The Biden administration and other progressive governments have articulated their commitment to universal human rights norms. So perhaps the plight of detained persons can be on the agenda of the Summit for Democracy being convened this coming December.

Jared Genser: My pleasure. That would be a perfect forum for the status of all migrants, refugees, and asylum seekers to be meaningfully discussed and an action plan developed and agreed to.

Jared Genser is Managing Director of Perseus Strategies, Special Advisor on the Responsibility to Protect to the Organization of American States, Adjunct Professor of Law at Georgetown University Law Center, and general counsel to the NeuroRights Foundation. Referred to by the New York Times as “The Extractor” for his work freeing political prisoners and for having founded Freedom Now, he is also co-Executive Producer of a dramatic TV series based on his life being developed with actor and producer Orlando Bloom by Amazon Studios for Prime Video. Genser was previously a partner in the government affairs practice of DLA Piper LLP and a management consultant with McKinsey & Company. His prior pro bono clients have included former Czech Republic President Václav Havel and Nobel Peace Prize Laureates Desmond Tutu, Liu Xiaobo, and Elie Wiesel. His most recent book is The UN Working Group on Arbitrary Detention: Commentary and Guide to Practice (Cambridge University Press). He is currently working with former UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein on a new co-edited volume for Oxford University Press entitled Handbook on the UN Human Rights System. He holds a B.S. from Cornell University, an M.P.P. from Harvard University’s John F. Kennedy School of Government, and a J.D. cum laude from the University of Michigan Law School.