Voluntary repatriation is recognised as the most desirable way of handling refugee problems. But the word desirable presupposes that there has been a fundamental change in conditions in the country of origin. It is axiomatic that, if there were no tangible change, or if it was only marginal, refugees could not be expected to return. Today's world presents, however, a disturbing number of cases where the pressure to repatriate has grown even when the situation is less than optimal.
This obviously presents a policy dilemma for UNHCR, the international organisation charged with care and protection of refugees. How far has it accepted the implications of the new situation? A recent article by the organisation's Director of Protection throws some light on the problem.[1] However, in observing that '..international refugee protection.. is at a crossroads with states often sending mixed signals about what should be done', it does not go far enough. Refugees, states hosting refugees and nongovernmental bodies concerned with their care can also claim to be receiving mixed signals from UNHCR about voluntary repatriation and its implications for protective followup.
Changing circumstances have clearly called into question UNHCR's traditional guidelines regarding voluntary repatriation. They have even brought about a de facto change in its application in some operations, to the point where 'voluntary' has become a euphemism for 'no real alternative'. The implications are serious both for UNHCR's main mandate protection and for the cost of future refugee operations.
Until UNHCR places squarely before its member governments the circumstances provoking this switch in policy and the conclusions to be drawn from it, the communication problems referred to above will continue.
The issue can be simply stated. Voluntary repatriation is a cornerstone of UNHCR; it is even mentioned in the Statute of the High Commissioner's Office. The provision is unequivocal. Repatriation should only be done voluntarily, in safety, and where the refugee is fully informed, prereturn, of the conditions in his/her country of origin. The last point explicitly requires UNHCR to be satisfied that there is a marked improvement in the home country in comparison with that which provoked the exodus in the first place. Because returnees automatically lose their status as refugees on return, this socalled certification of 'new normality' by UNHCR is rightly seen as the guarantee sine qua non. If the change in circumstance is not observable and unlikely to be durable, there would be no point in the refugee returning. But this also poses a problem. Must UNHCR wait passively for conditions to change or, given today's pressures, has it a new duty to try to promote the minimal change deemed acceptable? If so, who is the ultimate judge?
The Rohingya refugees: cause célèbre
The Rohingya refugees, a vulnerable Muslim minority who fled Buddhist Myanmar for Bangladesh, have now become a mini cause célèbre. With UNHCR a seeming hostage to the current position, it also highlights an issue that has much broader implications.
The situation is as follows. Between the end of 1991 and mid 1992, some 250,000 refugees fled Myanmar's Arakan peninsula and were given shelter on neighbouring Bangladesh territory. By November 1995, only around 52,000 refugees remained but they pose a potential problem for UNHCR which has, since mid 1992, accepted responsibility for assisting and organising their repatriation. This has been a difficult task, complicated initially by unacceptable levels of coercion by the Bangladesh government and then by acceptance and status verification difficulties posed by the Myanmar authorities.
Bangladesh's official policy, understandable in a poor and densely populated country, is that all refugees should be repatriated by the end of 1995. The necessary corollary is their total and speedy acceptance by Myanmar authorities. If not forthcoming, and the two sides remain obdurate, UNHCR will find itself in an acute dilemma. Put bluntly, unless it withdraws, UNHCR may find itself either having to redefine 'voluntary' repatriation or be party to pseudoethnic cleansing.
UNHCR's possibilities of influencing the situation are somewhat limited. Neither country is a signatory to the key 1951 Convention Relating to the Status of Refugees nor its 1967 Protocol. In addition, the lapsing of the Memoranda of Understanding (MOU) that regulated UNHCR's relations with the two governments further reduced whatever legal leverage the organisation had previously. More seriously, UNHCR has since been excluded from the two governments' ongoing discussions on the refugee question.
The other dilemma, first raised with respect to the earlier repatriation of a substantial number, was whether refugees were really returning to a situation different from that which they escaped from and whether they were adequately briefed beforehand.
Important NGOs maintain that, despite the freeing from house arrest of Aung San Suu Kyi and the alleged ending of forced labour, the background conditions for the Rohingya refugees have not substantially improved. Myanmar is still ruled by the State Law and Order Restoration Council (SLORC), the military junta, and has yet to receive a clean bill of health from human rights organisations. In particular, in early 1995, the UN Special Rapporteur for Myanmar drew attention to the 1982 Citizenship Law which still has discriminatory effects on Muslim Rohingyas in the Arakan. The general impression that 'nothing much seems to have changed' was also the view of a later article in the Economist [2].
Nevertheless, UNHCR has gone ahead. While acknowledging that the Myanmar situation is not optimal, UNHCR believes that the permission granted it by SLORC to maintain a physical monitoring presence in the Arakan is a guarantee of good faith. The logic of this view has caused UNHCR actively to promote the en masse return of refugees under its auspices. As an additional inducement, though the organisation is not concerned with long term development per se, it is seeking funding for projects to attempt to 'anchor', economically, the returnees. But the question remains: what happens once repatriation is over, when UNHCR pulls out and can no longer be seen as a conduit for further largesse?
The point about adequate prior briefing remains contentious. A survey in the camps by Medécins Sans Frontières/Holland raised legitimate concerns regarding the level of information and its presentation to a largely illiterate group. It also indicated that a considerable majority did not wish to go back at that time: findings later substantiated by the US Committee for Refugees. Subsequent attempts at clarification suggest a temporary blip in communications between UNHCR and NGOs, its main implementing partners.
Rohingya refugees still in Bangladesh raise important issues for the future which can be posed as a series of questions.
Dilemma for UNHCR: who decides and who protects?
How can UNHCR hope to influence governments in a refugee operation when it has no legal instrument to which to hold them? When one government insists that refugees have to return (there being no third country for resettlement), despite the firm principle of nonrefoulement (ie no forcible return), and the government of the country of origin drags its feet, what should UNHCR do? Accept that it, rather than the refugees, should decide the moment of their return? What about the refugees who, at the end of the day, refuse to return for justifiable reasons? Does UNHCR have, in both cases, an alternative to accepting de facto redefinition of 'voluntary' repatriation? When the host government insists that refugees must go, and when the numbers are such that traditional individual interviewing to assess voluntariness is logistically difficult, is it acceptable that UNHCR should devise more accelerated procedures?
Problems also arise with respect to protection, UNHCR's traditional responsibility. Protection was previously seen as a task within the host country. When refugees are encouraged to return, through being given the impression that there is no other alternative despite no real change of circumstance in the country of origin, what does this do to the protection issue? As already noted, refugees lose their refugee status on return, which means that they fall under their country's jurisdiction. In such cases, can UNHCR still claim to have a protection role? How effective can it be? As the previously agreed MOU with the SLORC permitting UNHCR's presence in a monitoring role with free access to the returnees has lapsed, can UNHCR still claim a legal mandate in Myanmar? Can it really guarantee effectiveness, in such circumstances?
Clearly, it cannot. Ensuring adequate protection ln the country of origin, where a returnee becomes subject once again to its laws and legal institutions, is surely more a question for the UN Centre for Human Rights, in which case UNHCR should be bound, at least morally, to see that such supervision is set in place before relinquishing its protective role.
When there is a standoff, as with the Rohingya issue, what should UNHCR do? Consider offering a 'cash sweetener' to the host government to resettle those refugees who cannot/will not return? Or offer an incentive project package to persuade the government of the origin country to remove obstacles to full repatriation? What if the authorities' attitude is akin to playing poker with UNHCR? Not an unreasonable hypothesis. In practice, a stalemate poses little problem for the governments concerned as UNHCR's presence guarantees continuing funding for refugee care and maintenance projects: money that has been an important cash input into areas, on both sides, of extreme poverty.
The combined amount since the beginning of the operation together with the donor appeal for Myanmar already totals US$100 million [3] a considerable sum compared to UNHCR's Cambodian appeal of US$121 million for a much larger number of returnees. When there is such an impasse and neither government has any real incentive to change the status quo, should UNHCR await donor fatigue or itself set a financial time limit?
Judge and jury
The UN High Commissioner for Refugees recently posed a key question: "How do we seize the political impulse for solutions while retaining the humanitarian imperative for protection?" However, the refugee situation in Bangladesh (Rohingya), Nepal (Bhutanese), Mexico (Guatemalan) and especially Zaire (Rwandan), conclusively prove the extent to which UNHCR is constrained by the government of the country in which it is operating. UNHCR is renowned for its flexibility in being able to adapt to difficult situations in a state of flux. But what happens when, in responding to 'political impulse for solutions', it finds itself obliged to adopt a policy of expediency that calls into question longestablished international principles? When, by having to develop new criteria, it finds itself both judge and jury?
Without more clarity and guidance at member government level, UNHCR may continue to find itself burdened with incompatible responsibilities and thus a convenient scapegoat to all those who ignore the new constraints it faces and adopt a 'holierthanthou' attitude.
1. 'UN's Refugee Protection Agency Is at a Crossroads', by Dennis McNamara, International Herald Tribune, 24 October 1995.
2. Economist, 410 November 1995, page 69.
3. Compiled from data provided from UNHCR Branch Office, Dhaka, Bangladesh, plus two UNHCR Myanmar appeals, 1994/596/97.
October 1996