Blog post written by Dr David James Cantor, Director of the Refugee Law Initiative (RLI), School of Advanced Study, University of London, and senior adviser to the Americas Bureau, UNHCR. The views expressed in this article are his alone and do not necessarily reflect those of the RLI, UNHCR or any other institution. This blog post was originally written for Refugees Deeply where it was published on 4 October 2017. It is republished here with their permission.
Compared to many other regions of the world, the number of forced migrants in Latin America is low. Moreover, sometimes its refugee challenges can be seen by outsiders as marginal and parochial; its laws and institutions for refugees as settled and well-established. Below the surface, though, all is in flux as hotspots of violent criminality across the region provoke new and acute forced migration challenges. These generate profound tensions for States and humanitarian practitioners in this dynamic region but also point to new global forced migration dilemmas in the near future.
Forced migration in Latin America: crime as the new frame of reference
Under the military dictatorships of the 1960s and 70s and during the political conflicts of the 1980s and 1990s, forced migration dynamics in Latin America revolved around the axis of Cold War confrontations, which also shaped responses to the ensuing refugee movements.
Today, by contrast, it is organised criminality that is the thread connecting forced migration hotspots in many countries in this region. This reflects more general trends in society, economy and violence in Latin America. Indeed, organised crime is present in many acute forced migration contexts as a push factor, including:
- Territorial gang control and confrontations: extensive displacement and refugee flows from urban zones of El Salvador, Guatemala and Honduras; smaller-scale in Brazil and Mexico.
- Cartel disputes over routes and businesses: apparently significant displacement in Mexico and across the northern border; on a smaller-scale in some Central American countries.
- ‘New’ criminal groups in the Colombian conflict: much new displacement in Colombia (and also in Ecuador and Venezuela where they operate) and refugee flows along its borders.
- State-affiliated political colectivos that increasingly also act as organised criminal groups: emerging displacement trends in Venezuelan cities.
- Powerful and predatory criminal actors in anarchic and disordered contexts: internal and external displacement in urban zones in Haiti and, arguably, Venezuela.
- Organised crime involvement in disputes over lands, development projects, mining etc.: displacement affecting rural and indigenous communities in many Latin American countries.
Despite this diversity of forms, there are important parallels in the ways that organised crime drives forced migration in several of these contexts.[1] Even so, whereas the role of criminal groups in facilitating migration (via smuggling) and preying on migrants en route – as in Mexico – is well-documented, we are only beginning to analyse their role in forcing migration.[2] We have much left to learn and considerable research is required for us to join the dots across Latin America.
Finally, this short list equally illustrates how organised crime as a push factor for forced migration is not only a regional concern in its own right but also intersects powerfully with other ‘drivers’ of forced migration in Latin America today, e.g. conflict, development, environment etc. It is by no means the only factor driving forced migration in the region, but it may now be the main frame of reference. This is true even though the IDPs themselves lack the internal political organisation and visibility of many forced migrant constituencies during the earlier Cold War epoch.
Humanitarian response: still catching up
Forced migration challenges unleashed by the Cold War in Latin America were the impetus for most States to endorse the global refugee regime and develop their own domestic refugee laws, policies and institutions. Since then, the intra-regional and highly political character of most refugee flows – namely from Colombia – and the comparatively tiny number of other refugee movements in or to the region has aided the continued perpetuation of Cold War notions about who is a refugee.
The enduring Cold War conception of ‘deserving’ forced migrants as those fleeing political conflict or confrontations has helped to complicate initial efforts to address the new wave of forced migration linked to organised crime. Even so, despite the formalistic approach of most Latin American refugee offices, the recognition rate for refugee claims based on a fear of organised criminal violence has increased in line with the escalation in asylum-seekers fleeing gangs in Central America.
Developments in this region are thus leading the world in acknowledging that criminal violence can, in some circumstances, qualify the victims as refugees under the 1951 Refugee Convention or the Latin American expanded refugee definition in the 1984 Cartagena Declaration. UNHCR eligibility guidelines on El Salvador, Honduras and Colombia have facilitated this shift. However, there remains a need to more carefully articulate how and when flight from gang violence can be qualified legally as being on Article 1A(2) Refugee Convention grounds of (imputed) ‘political opinion’.
For the countries of origin faced with substantial levels of internal displacement, though, Cold War conceptions have proved more difficult to surmount. For instance, in El Salvador, the Spanish term for IDPs – ‘desplazados’ – has strong civil war connotations that the government and others see as irrelevant or undesirable in the current context, undermining efforts to recognise the IDP problem. Similarly, despite judicial orders to the contrary, Colombian officials have refused to register IDPs displaced by criminal groups on the perception that they do not fit within the ‘conflict’ paradigm.
Despite these challenges, important advances are beginning to take shape. Thus, particularly in Central America, UNHCR and other key actors are upscaling humanitarian activities for IDPs fleeing criminal violence. Honduras has already created an institution to develop a response to such IDPs and initial IDP scoping studies are underway elsewhere. In some countries, though, we see a new particularity of the region: the framework for potentially responding to such IDPs revolves principally around a concept of reparation for victims.[3] Whilst innovative, will this approach be effective?
In Colombia, since 2011, most attention to IDPs has been subsumed under the government’s new reparations framework. This is innovative in that it initiated individual and collective reparations whilst the conflict was still ongoing and, crucially, covers external as well as internal displacement alongside a range of other acts for which reparation is due. Predictably, the vast majority of registered victims are IDPs. However, the question is whether this framing of IDPs as ‘victims of conflict’ is flexible enough to deal with the new challenges of displacement in Colombia.
Similarly, in Mexico, the government has located such attention as exists for IDPs fleeing criminal violence under a wider framework for the reparation of victims. Some important differences exist as compared to the approach in Colombia. Whilst reparations are due to victims of crime, such that IDPs fleeing criminal violence are – in principle – not excluded, the penal law origins of the Mexican framework suggest that it does not offer a humanitarian response. The question here, then, is whether one is needed, i.e. what scale or impact of displacement requires a humanitarian crisis response?
Latin America and the world: a forced migration future in flux
As recognition of the challenges posed by the new wave of forced migration generated by organised crime in Latin America increases, it is appropriate to outline a number of considerations that may have conceptual, legal and operational relevance for institutions and agencies engaged in this work.
1. The challenges posed are not necessarily across the countries of origin and, as such, different responses may be indicated in respect of different situations. To take but one obvious example: the scale and/or impact of forced migration. In some countries this may represent an IDP crisis with the need for a humanitarian response whereas in others more subtle measures will be sufficient. Where is the tipping point? How is this to be identified? What measures are appropriate in each scenario? Do you need an ‘IDP’-based response or can other approaches (reparations etc.) be built upon?
2. Although the impact of organised criminality in some countries may be akin to an armed conflict, there are differences as well similarities between these situations and conflicts in terms of the operating context for humanitarian organisations working with IDPs. Careful analysis is required. What can be borrowed from assistance and protection practices developed in conflict zones and applied to these situations? What must be learned afresh? How do you relate to the government? Can interlocution with organised criminal actors take place and, if so, how?
3. The response to forced migration generated by organised criminality in Latin America should avoid an overly legalistic and formalist approach. The over-complicated nature of the Colombian IDP framework has done no favours for its rapid and effective implementation, even in a relatively well-resourced upper-middle income nation such as Colombia. Responses to IDP challenges in the region should resist over-legalism and staid formalism and concentrate on developing more pragmatic and flexible measures in order to facilitate their implementation in practice.
4. The role of development initiatives for IDPs should not be underestimated. Indeed, the prevalence of some forms of organised criminality is itself linked to lack of development at a local/provincial level. Moreover, the particular features of organised criminal control by gangs, for example, suggest that IDP responses based on individual self-identification as an IDP are likely to bring acute risks. Targeting known host communities for development interventions may offer more scope for not only solutions but also protection and assistance. They may additionally help to promote local and national government interest in the IDP issue.
5. In relation to international protection, the existing legal frameworks are adequate for protecting persons fleeing acute criminal violence. No new framework is required. At the same time, the mind-set of governments, or at least those officials working on refugee protection, needs to change gear and recognise that forced migration dynamics in Latin America have changed dramatically. Less legal formalism based on outdated Cold War assumptions, and greater flexibility in applying the law that exists, are necessary and sufficient to ensure that refugee law marches in line with current realities.
Finally, Latin America’s steps towards addressing forced migration caused by organised crime have truly global implications. Although this region may be particularly affected, there are other ‘peace-time’ countries in the world where organised crime generates such dynamics. Even more pertinent is the fact that many contemporary armed conflicts have bred under their auspice serious dynamics of organised criminal violence and control. Through the lens of Latin America, we gain insight into an important near future trend in the dynamics of forced migration at a global level.
Footnotes:
[1] See the analysis in D.J. Cantor, ‘More Deadly than Armed Conflict? Gangs, Criminal Violence and Displacement in Central America’ (2016) Agenda Internacional, http://revistas.pucp.edu.pe/index.php/agendainternacional/article/view/15277/15742; and D.J. Cantor, ‘The New Wave: Forced Displacement Caused by Organised Crime in Central America and Mexico’ (2014) 33(3) Refugee Survey Quarterly 34, https://academic.oup.com/rsq/article/33/3/34/2797909/The-New-Wave-Forced-Displacement-Caused-by.
[2] See the PhD being completed by Vickie Knox (RLI) for a morphogenetic analysis of how the three aspects intersect.
[3] For a legal analysis, see N. Rodríguez Serna and J.F. Durieux, ‘The Displaced as Victims of Organised Crime: Mexico and Colombia Compared’ in D.J. Cantor and N. Rodríguez Serna (eds.), The New Refugees: Crime and Forced Displacement in Latin America (ILAS, 2016).
Acknowledgements:
Photograph: © Alamy
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