The role of the UNHCR
141.
The work of the UNHCR is based on the 1951 UN Refugee Convention.
According to the Convention, States are expected to cooperate with UNHCR
in ensuring that the rights of refugees are respected and protected. The
protections of the UNHCR apply only to refugees and asylum seekers and not
to other migrants. After the agreement between Egypt and Sudan for free
movement of people, the UNHCR stopped issuing refugee cards to Sudanese
citizens in Egypt, as they were able to enter and live in Egypt freely.
142.
The Complainants and Respondent State are in agreement that the UNHCR is
at the crux of the events which led up to the unfortunate events of the night of
29 to 30 December 2005. In the first place, it is the failure to resolve the
disagreement resulting from the series of demands by the refugees and rejected
asylum seekers to the UNHCR which resulted in the three-month sit-in protest.
Secondly, it was the UNHCR which had on three different occasions requested
the Respondent State to protect it from the protestors, including, according to
the Respondent State, requesting for forceful intervention. In addition, the
UNHCR was also not able or willing to provide guarantees about the location
to which the protestors would be taken, thus making the protestors weary of
being removed. The international status of the UNHCR means that the
Respondent State cannot be held responsible for any potential violations
committed by the UNHCR. In addition, the UNHCR is not itself bound by the
provisions of the African Charter. However, the role of the UNHCR may be
taken into account when assessing the conduct of both the Respondent State
and the Complainants as mitigating circumstances.
Refugees, migrants and asylum seekers
143.
In the current case the Complainants allege that the group of protestors
consisted of “asylum seekers, card carrying refugees and undocumented
persons whose status in Egypt was yet to be determined”. On the other hand
the Respondent State avers that the protestors included persons who do not
meet the refugee criteria as well as illegal migrants. The group of protestors
will thus be taken to have consisted of (1) refugees proper, (2) asylum seekers
who had been registered as such, and (3) asylum seekers who are yet to register
or who had been denied asylum, and who were thus in the country as irregular
migrants. The statuses of these groups under international human rights law
36