Unhcr and Involuntary Repatriation: Environmental Developments, the Repatriation Culture, and the Rohingya Refugees



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Both fundamentalists and pragmatists, it must be noted, contended that theirs was the ethical position. Fundamentalists argued that only UNHCR had the institutional power to represent and protect the rights and needs of the refugees, that if UNHCR began to compromise that role then refugees would be endangered, that if UNHCR caved into state pressure then the organization would lose its moral bearing, and that each small compromise was contributing to a situation where UNHCR would no longer have any principles to fall back on. Pragmatists argued that: UNHCR had little choice but to recognize the constraints imposed upon them by states; if UNHCR disregarded these constraints in favor of abstract principles and past policies permitted by more forgiving circumstances, then it might not be able to help refugees in the short and long run; if states were determined to forcibly repatriate refugees, then UNHCR had a moral obligation to ensure that such repatriation did as little harm as possible, even if doing so meant soiling the agency’s name by involving itself in forced repatriation; and that fundamentalists failed to appreciate that these refugee camps were no sanctuary and could be less safe than the circumstances that triggered their flight.14

Steadily and ultimately UNHCR became more favorably disposed toward repatriation, that return will and should happen under less than ideal circumstances, and that UNHCR must and should actively promote repatriation as soon as possible (Zieck, 1997: 438-39; Takahashi, 1997: 594, 602; Gilbert, 1998: 379-80).15 UNHCR developed a repatriation culture. By suggesting the emergence of a repatriation culture, I am arguing that there has been a shift in the organizational discourse, bureaucratic structure, and the formal and informal rules that make repatriation more desirable, proper, and legitimate under more permissive conditions.

Discourse and Conceptual Change. There was a decided change in the discourse surrounding repatriation, detectable in how repatriation was understood and resituated alongside other evaluative and action-oriented categories and concepts, a discursive shift that was both actively produced and a reflection of other environmental and organizational developments. Prior to the 1980s repatriation was one of the “permanent solutions,” but afterwards it was the durable solution.

Until the 1970s, both the solution of voluntary repatriation and its counterpart of resettlement (not infrequently defined as resettlement and integration, which is a shorthand for settlement in a third country, respectively the country of refuge) were mentioned without specific preference attached to either one of them. From 1971 onwards, `voluntary repatriation’ is isolated from the alternative solution in phrases like `recognizing the importance of voluntary repatriation as a permanent solution to the refugee problem.’ The preference for the solution of voluntary repatriation acquires an absolute character in 1983: `emphasizing that voluntary repatriation is the most desirable and durable solution to problems of refugees and displaced persons of concern to the High Commissioner,’ which it has since retained. (Zieck, 1997: 81-82).
Repatriation is no longer one among equals but is the preferred solution.

A revised concept of “protection” also favored repatriation.16 While UNHCR’s protection function is sacrosanct, protection can have many different meanings. Originally protection had a legal meaning, and increasingly included material assistance. But protection slowly and decisively came to be attached to the three permanent solutions as well. There were, in fact, two important shifts regarding the relationship between permanent solution and protection that made repatriation more desirable and likely. One involved the very shift from “permanent solutions” to “durable solutions” at the end of the 1970s. “Permanent solutions” is mentioned in the statute, “durable solutions” is not. But since the 1980s the concept of durable solutions has been in circulation, while permanent solutions has virtually disappeared. This change was introduced deliberately to make repatriation more likely. In the context of South East Asian countries failing to admit the Vietnamese boat people, High Commissioner Paul Hartling

endorsed a new concept of a `durable solution’ which amounted effectively to a devaluation of the post-war notion of solution in relation to external settlement, i.e. naturalization, in favor of a new concept falling short of naturalization but including economic self-sufficiency, in the evident hope that this devaluation of the concept of solution - principally, it must be said, at the expense of the refugee - would induce the first receiving countries, with the additional encouragement of international aid, to keep the refugees within their territories. Whether a durable solution amounted to a solution of the problem of the refugee, or was a solution to another problem, was a question which was not examined at the time; indeed the concept of durable solution seems to have been scarcely evaluated at all from a legal protection perspective, as if were a purely economic concept.17
What is significant, Coles notes, is Hartling intends the shift from “permanent” to “durable” as a way to signal potential host countries that repatriation and not resettlement is the solution. Stated more starkly, durable solutions becomes tantamount to repatriation, and references to durable solutions are intended to channel energies toward repatriation. This is a far cry from the days when permanent solutions were tantamount to resettlement and asylum. High Commissioner Hocke followed Hartling’s lead by deliberately altering the administrative meaning of "protection" so that it became more consistent with repatriation (LCHR, 1991: 56-57; Harrell-Bond, 1989: 55-56).

A second, and more important, dimension of this conceptual shift in protection was the growing view that the best way to protect refugees was to get them home (Zieck, 1997: 82).18 With resettlement and asylum increasingly elusive as permanent solutions, refugees could hardly be securely protected in camps where they were unwanted by host governments, targets for bandits and thieves, and increasingly exposed to physical harm. Protection, then, meant finding a way to get the refugees back to their home country as quickly as possible, even if that occurred under less the ideal circumstances.19 It is important to note that this debate began before the winding down of the Cold War, that is, before many of the situations concerning return to “post-conflict” settings became particularly pressing. In any event, to make repatriation possible under less than ideal conditions, UNHCR developed new concepts like “safe return,” which replaced the legal notion of voluntary repatriation, a concept that does not equal the rigorous standards imposed by the latter term (UNHCR, 1991: 125; also see Goodwin-Gill, 1996: 275; Chimni, 1999).20 Alterations in the meaning of protection and solution have made possible new orienting concepts that have combined to make repatriation a more desirable activity at a lower threshold.

The newly formed conceptual marriage between repatriation as a durable solution and repatriation as a form of protection also encouraged greater interest in “preventing” refugee flows, getting at their “root causes,” and encouraging “State responsibility.”21 Although these concepts were attending to different facets of refugee flows and solutions, they shared an interest in reducing the causes of refugee flows and making sure that those refugees that were repatriated stayed at home. This necessitated that UNHCR become involved in the home country.22 According to UNHCR, it would now supplement “activities related to traditional forms of protection...with increased activities within countries of origin. These have a dual purpose: to ensure the durability of the solution of voluntary repatriation through respect for fundamental human rights and the restoration of national protection for returnees; and to seek to prevent arising conditions which could leave people no choice but to flee.”23

The desire to ensure that refugees that were safely returning led UNHCR to slowly but surely become more involved in the life circumstances of the returnees and the general political condition of the refugee-producing country. As one UNHCR official put, “We used to give them seeds and supplies and a handshake at the border, but now we are increasingly involved in the economic, political, and human rights situation of the home country.”24 At the outset UNHCR became involved in small development projects to improve the short and long term economic circumstances of returnees. Soon thereafter it became more deeply involved in the human rights situation in the refugee-producing country. There was the practical need by the country of origin to reintegrate successfully exile populations, and to have an international agency play that role. UNHCR proved palatable to these governments because it typically asked for “safety and dignity” and not a marked improvement of “human rights.” This diplomatic finesse was exactly what sovereign-sensitive states needed. Beginning in the 1990s, however, UNHCR became much more vocal about its human rights role, sometimes even presenting itself as a “human rights organization,” even as it continued to tout a “safety and dignity” that was much less offensive to home states. In recent years UNHCR’s involvement has expanded to the point that it openly wonders whether it has now become a “humanitarian trustee” in those areas of refugee return.

Although UNHCR’s willingness and ability to become involved in the conditions that produce refugee flows can be seen as a positive development from the standpoint that it might very well mitigate the hazards that cause peoples to flee, it contains its own dangers. One is that preventive measures might violate international law by prohibiting refugees from fleeing (Frelick, 1993; Weiss and Pasic, 1996). Such a possibility was readily acknowledged by the High Commissioner, who observed that: “In-country protection, e.g. through the establishment of internationally guaranteed safe zones, however, needs to be weighed against the rights of individuals to leave their own country, to seek and enjoy asylum or return on a voluntary basis, and not be compelled to remain in a territory where life, liberty, or physical integrity is threatened.”25 While this might be a legitimate fear, the High Commissioner reassured that “the object of prevention is not to obstruct escape from danger or from an intolerable situation, but to make flight unnecessary by removing or alleviating the conditions that force people to flee.”26 Still, the danger lingers.

Another worry is the possibility of “premature” repatriation. As we will see, UNHCR began introducing new terminology and categories of return that clearly differentiated repatriation under “ideal” conditions from repatriation under “less than ideal” conditions. Conditions in the home country did not have to improve substantially but only appreciably so that there could be a “safe” return. This new vocabulary and discourse gave UNHCR officials the conceptual tools to consider repatriation under less demanding standards.

A central development here was the reconsideration of “voluntariness,” that is, exactly what was meant by voluntary in voluntary repatriation. In situations where UNHCR was considering the repatriation of small groups or individuals it could relatively easily determine the voluntary character of a decision to return. But in situations of mass flight, UNHCR faced the practical difficulty and administrative nightmare of assessing voluntariness in rather large populations. Moreover, UNHCR officials observe that “voluntariness” assumes a degree of “free will” that might be absent or abbreviated at best. Under these and other circumstances, UNHCR has a difficult time ascertaining the voluntary character of a decision to repatriate and waiting to satisfy some abstract and idealized principle might mean that repatriation is never possible.

But there exists the opposite danger: because voluntariness might be difficult to assess, UNHCR might be tempted to determine whether the “objective” conditions permit repatriation under “safe” conditions. Consider the following observation by one UNHCR official:

As a lawyer I can tell you that we can be creative with definitions, but while we believe in free will we understand that this is not ever really the case. So, how do we really determine voluntariness? There are so many ways to judge voluntariness. The key, however, is providing the refugees with information and the information that there has been an improvement of the objective conditions back home. We must have an objective threshold to measure safety.”27
There exists a slippery slope where the practical recognition that voluntariness is difficult to determine meets the point where UNHCR officials privilege their assessment of the “objective” conditions in order to determine whether repatriation is warranted. The concept of voluntariness, therefore, potentially violates the principle of voluntary repatriation to the extent that the decision to promote repatriation is no longer dependent on the subjective desire by refugees to return to a place that in their view no longer represents a threat to their safety.

In general, UNHCR officials increasingly favored and promoted repatriation, and the concept of repatriation was resituated alongside other orienting concepts such as “protection” and “solution.” Once the meaning of these concepts were altered, they had a catalytic property, creating the possibility of new categories such as safe return, increasing an interest in the causes of refugee flows, widening UNHCR’s permissible peripheral vision in order to ensure that all avenues were cleared for repatriation, and giving new meaning to central concepts such as voluntariness. Such conceptual and discursive remodeling meant that repatriation became normatively desirable and legitimate, and the durable solution was increasingly identified as repatriation, the best way to assist and protect refugees.

Bureaucratic Changes. As plainly stated by UNHCR’s “Note on International Protection,” these conceptual shifts required a bureaucratic restructuring “in recognition of their inter-relationship between protection and solutions and refugee law and action.”28 But this was not a mere technical issue. Because the received wisdom at UNHCR was that the best form of protection was solution, and that durable solutions had to include repatriation, at an early point Hocke attempted to create a more homogenous mindset among the various divisions and increase the organizational disposition in favor of repatriation and cooperation with governments (LCHR, 1991: 56). The problem for Hocke, however, was that UNHCR’s organizational culture, personified by legal officers in the protection division, were bureaucratically powerful forces that instinctually understood that this emphasis on repatriation would come at the expense of refugee rights and law. In order to harmonize protection and repatriation, to change the bureaucratic culture, and to limit the influence of the protection officers, Hocke restructured the organizational chart. Specifically, Hocke disbanded the Protection Division, christened a new Division called "Refugee Law and Doctrine," and assigned to each regional bureau a protection officer that was to keep Refugee Law and Doctrine informed of any incidents in the region.

Both opponents and supporters of these changes recognized that they were designed to alter the UNHCR’s definition of "protection" from a willingness to intervene to protect refugee rights and to challenge governments when necessary, to a greater emphasis on repatriation and willingness to work with and recognize the interests of governments (LCHR, 1991: 56-59). Although additional bureaucratic reshuffling over the following years restored some power to the protection officers, UNHCR’s bureaucratic structure now significantly favored a more flexible and less legalistic and orthodox interpretation of refugee law (LCHR, 1991: 109-110; interview with Michel Moussalli, Geneva, January 25, 2000).

Rules and Decision Criteria. These discursive and bureaucratic shifts corresponded to and were shaping the formal and informal rules concerning repatriation. UNHCR’s previous position was that four preconditions had to be satisfied before it became involved in a repatriation exercise: a fundamental change of circumstances in the home country; a voluntary decision by the refugees to return; a tripartite agreement between the UNHCR, the host country, and the home country; and a return marked by dignity and safety. As was always the case, equally well-intentioned people will disagree over whether these preconditions have been satisfied in any particular instance and thus whether a repatriation exercise can safely and rightly proceed.

But there were three important changes in the role these preconditions played in repatriation exercises as they related to a growing climate in favor of repatriation as soon as possible. First, there was considerable debate over whether all four of these preconditions had to be satisfied unambiguously and unequivocally, or whether these preconditions were, in fact, benchmarks that served as useful checks and guidelines. This became ever more pressing in the context where states were unwilling to give asylum to thousands of refugees but rather were insisting that they return to home countries that were“rebuilding.” There was a growing view that while UNHCR might be willing to meet the letter of these conditions, member states were not, and given this reality UNHCR must be prepared to act under less than ideal conditions.

Second, UNHCR officials began to judge “safe return” in relationship to what existed in the camps. Initially repatriation could not proceed until the situation at home had substantially changed. But over time there was a growing willingness to entertain less exacting standards, to consider: not only an improvement in the situation but also the readiness of the government to accept the refugees and answer to any questions concerning their treatment.; how camp life looked in relationship to the situation at home; and whether an impatient host government might soon decide that it was time to forcibly repatriate the refugees. Ultimately, UNHCR had to make a determination regarding where refugees were most likely to be “protected.”

Third, there was a growing view that additional factors had to be included in the repatriation calculus. Refugee safety had to be safeguarded, but some idealized view of refugee safety does not necessarily and always outweigh states rights and security interests or broader peacebuilding and regional conflict resolution goals. High Commissioner Hocke (1986), for instance, hypothesized that voluntary repatriation of the "most vulnerable groups such as the elderly, the handicapped, the unaccompanied minors, etc. [might] demonstrate in political terms that despite the continuation of the conflict, the two states are willing as it were to insulate the problem."29 The 1992 UNHCR “Note on International Protection” baldly wrote:

Criteria for promotion and organization of large scale repatriation must balance the protection needs of the refugees against the political imperative towards resolving refugee problems...the realization of a solution in a growing number of refugee situations today is most likely where the solution is made an integral part of a `package’ which strikes a humane balance between the interests of affected States and the legal rights, as well as humanitarian needs, of the individuals concerned.30
In a similar vein, UNHCR has suggested that repatriation is an important mechanism for rebuilding confidence in the country of origins and for successful peace building (UNHCR, 1995: 107). All this suggests that UNHCR officials are now sympathetic to the view that refugee rights cannot be assumed to trump all other concerns. Although this argument has some merit, recognize that refugee law had been turned on its head. Rather than repatriating refugees after there is political stability, repatriation is now understood as (or hoped to be) a potential cause of political stability.

Further evidence of a change in the rules regarding repatriation come from the “Notes on International Protection” and the Handbook on Voluntary Repatriation. On the surface these documents suggest little change in UNHCR’s formal view on repatriation, as a consistent theme stresses that the UNHCR is to safeguard refugee rights and safety first and foremost. But surface impressions can be misleading, for these documents contain more flexible decision making rules that have introduced important ambiguities regarding the concept of voluntary repatriation, which are themselves reflective of a conflict between the increasing desirability of repatriation and the safeguards against nonrefoulement. Importantly, the Handbook on Voluntary Repatriation actually contains several competing definitions of voluntariness, which has introduced a level of ambiguity into the definition that facilitates a lower threshold (Zieck, 1997; Chimni, 1993).

The Handbook, moreover, provides a logical gap on the relationship between voluntary repatriation and protection that produce the view that repatriation can occur under less than ideal circumstances. On the one hand, it notes that in determining the advisability and legitimacy of a repatriation exercise the voluntary character of repatriation, that is, the subjective willingness of refugees to return home, is more important than the “objective” situation that will confront the returning refugee. In this line of reasoning, the decision to voluntarily return vitiates the clause in the principle of voluntary repatriation concerning the conditions of the return. If so, this is a new wrinkle in refugee law, which states in categorical terms that refugees should not return to unsafe conditions. Repatriation-happy officials might be tempted to manipulate, hide, or distort the information presented to the refugees in order to encourage a “voluntary” decision to repatriate; the decision to repatriate under such circumstances is far from “voluntary.” On the other hand, the Handbook’s notion of voluntariness suggests that if the “objective” conditions have improved at home in relationship to life in exile then voluntary repatriation can be proper. All roads lead to repatriation.

The UNHCR’s organizational culture - its concepts, bureaucratic structure, and rules - was now tilted and structured in favor of repatriation. Repatriation was now the desired “durable solution.” From the mid-1980s to the mid-1990s the UNHCR devoted a "far greater proportion of its budget to repatriation operations and returnee assistance."31 Orienting concepts and categories such as “solution” and “protection” had altered appreciably and in ways that made repatriation more desirable and likely. The desire for repatriation had various spillover effects, including a growing interest in the conditions in the refugee-producing country and how UNHCR could develop the conditions to make repatriation more likely. The conditions under which repatriation was allowed to proceed was steadily relaxed; whereas once repatriation took into account only refugee interests and safety, increasingly their rights and needs were balanced against other more “global” and “regional” issues such as state rights and peacebuilding.32 Refugees might not always be capable of assessing objectively where they would be best protected, and UNHCR might be forced into that guardian role. UNHCR also was encouraged to no longer wait for opportunities, but rather to create them.33

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