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Venezuela: fleeing generalised violence, grounds for refugee recognition
20 October 2011

In Venezuela, there are approximately 200,000 persons in need of international protection- Apure state, Venezuela (Minerva Vitti/JRS)
If the refugee definition in the Cartagena Declaration were incorporated in Venezuelan law, the lives and integrity of many Colombians would be protected.
Caracas, 20 October 2011– Ninety-five percent of asylum seekers in Venezuela are Colombian women. The reason: the countries share a 2,219km-land border touching seven Venezuelan and four Colombian states all of which face the problem of illegally armed groups.

Ana* and José are part of these statistics, as well as the long list of asylum seekers whose applications have been refused on the grounds that they fled situations of generalised violence and were not individually persecuted. This situation is caused by the failure of the Venezuelan state to correctly interpret the 1951 UN refugee convention and incorporate the 1984 Cartagena Declaration, with its more comprehensive refugee definition.

When peace talks were taking place between former president, Andrés Pastrana, and the guerrilla group, Revolutionary Armed Forces of Colombia (FARC) in 1998-2002, the district Ana and José came from was declared a demilitarised buffer zone. Once the talks failed, armed confrontation broke out. Aeroplanes and helicopters flew overhead. Bombs were dropped and shots fired without warning. One of the bombs fell on Ana's neighbour's house, blowing off a part of his leg.

"We said no, no, no! At any moment they could kill your kids. We had a business in the village from which we got by, and a small plot of land with bananas and cassava. But if you went there you were considered a guerrilla, because it was guerrilla territory and you were supposedly in contact with them. This frightened us", Ana recalls.

José, Ana's partner, remembers that when the military operations started in 2005 the army quickly began to think of the inhabitants as FARC members because they also lived in the demilitarised zone with the armed group.

The army began arresting large groups of up to 20 people at a time- neighbours, ordinary people- and bringing them to Bogotá. The army had lists of suspects, and every day there were more arrests. If the villagers tried to flee to nearby areas controlled by paramilitary groups, they ran the risk of being assassinated because they came from a 'FARC village'.

In their situation, having three children- two of whom were adolescents- was a reason for concern. Ana and José frequently heard the guerrillas were recruiting the sons of so-and-so.

To make matters worse the army general lived near their house.  He represented a time bomb which could explode at any moment. The army constantly asked them what side we were on, and what they were doing.

"All of this was going on around you. Every little thing adds up, they all add up", said José.

Until one day when they contacted another family and fled to Venezuela.

Negative responses

 Ana and José were lost when they arrived. While the customs were similar they also noticed marked differences.  Some friends found them jobs for a few months and they soon realised they could regularise their immigration statuses by applying for asylum to the national council for refugees (CNR). Unfortunately, their applications were refused.

"They said there wasn't sufficient proof because there was conflict throughout Colombia: generalised violence. It is one thing that violence in the country is all over the place, but it is another if there is so much danger … bombs, bullets, child recruitment, paramilitaries, government persecution…" said José.

This type of decision by the CNR generates fear. While this agency has improved its decision-making capacity, since the end of 2010 it has rejected a large number of asylum applications, usually alleging generalised violence.

For instance, of the 18 decisions made by the CNR in El Nula and Guasdualito, Apure State in May of this year, only two asylum seekers were recognised as refugees. In 2010, 842 asylum applications were refused.

In the letters of refusal the CNR describes the circumstances referred to by applicants as amounting to generalised violence, which is not included in the refugee definition in article five of the asylum act (LORRAA).

This restrictive definition applied in Venezuela explains the low level of refugee recognition accorded to persons in need of protection. According to figures produced by the UN refugee agency (UNHCR), there are 15,490 asylum seekers in the country; yet according to the CNR only 2,790 (130 cases in 2010) have been recognised as refugees.

If applicants fail to mention they were threatened, it would be understandable if their cases were rejected. Unfortunately in Venezuela, it is not enough that their lives are at risk.

"The country is at war. But if you are not being brought to prison, you're not frightened; if your children are not being recruited by the guerrilla, you're not frightened. If only one of these things happens it's not so bad, but four or five together is much worse", explained José.

Recent changes to the internal regulation on asylum procedures, promulgated on 28 January 2011, have added the concept of "manifestly unfounded" applications. This may be enforced if applicants have not demonstrated to have fled their countries of origin for a reason enumerated in the refugee act, or if their allegations are apparently false. In the latter case the commission is empowered to conduct an interview, produce its report and refuse the applicant.

As generalised violence is not cited in the refugee definition in the LORRAA, applications of this nature may be refused regardless of the circumstances presented and without an in-depth assessment of the merits of the application.

This demonstrates two lacunas. The first is related to how the refugee definition, contained in the 1951 UN convention, is interpreted in Venezuela. According to refugee lawyer and former JRS Latin America advocacy officer, Bárbara Nava, an accurate application of the Geneva convention would involve an evaluation of the "motives or facts which influenced the flight decision" of each applicant. Even though a person may not face individual or direct persecution, there may be a threat to his or her life and security.

The threshold of persecution could be interpreted by applying article 33 of the 1951 UN refugee convention, which prohibits the expulsion of someone "where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion". In this case, Ms Nava continued, the opinions of an individual do not have to be his/her own, they could be imputed. 

There are many other circumstances, Ms Nava continued, where flight for reasons other than individual persecution could justifiably result in the granting of international protection. These include the existence of landmines, the assassination of persons of similar views, mass killings, threats to entire populations etc. It is clear that according to the UN refugee convention, many applicants, refused on the grounds of fleeing generalised violence, could have been recognised.

Moreover, if the refugee definition in the Cartagena Declaration – which includes persons who flee to safeguard their security, physical integrity and lives due to generalised violence, massive violations of human rights or others circumstances that could seriously disturb public order – were incorporated in Venezuelan law, the lives and integrity of many Colombians would be protected.

Living in fear

Despite living in Venezuela, they are aware of the deaths and disappearances going on at home in Colombia.

"Yeah, they believe we got afraid and came here after hearing a few gunshots… it's one thing to talk about it and another to have personally experienced such horrible things", said Ana.

Upon receiving a negative response to their asylum applications, José and Ana submitted an appeal for which they are still awaiting an outcome.

Given the short deadlines for appeal submissions (15 days), this procedure represents serious challenge for overstretched refugee organisations. If refused on appeal, applicants are left vulnerable to detention or deportation with no guarantee of safe return.

*The names in this article have been changed for reasons of security

Minerva Vitti
Communications and Advocacy
JRS Latin America and the Caribbean

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