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

own, independent of state pressures. The result is that UNHCR is more likely to carry out an involuntary repatriation program even when state pressures are wanting.

How can we isolate this culture and its effects in practice? In most instances in which it is associated with an instance of involuntary repatriation UNHCR can persuasively argue that states were already engaged in forcible repatriation and it was forced to choose between the awful alternatives of either sitting on the sidelines with its principles at the cost of refugee lives or getting involved and trying to protect the refugees but at the expense of its principles. But what if there were a case in which UNHCR opted to promote repatriation under less than voluntary circumstances even though states pressures were manageable? The repatriation of the Rohingyan refugees from Bangladesh to Burma in 1994 is such a case. In discussing their decision to promote repatriation, UNHCR officials refer not to immediate pressure from Bangladesh but rather to new definitions of “voluntariness” that justify repatriation to a country where the human rights situation had not changed because of their “objective” assessment that the refugees’ long-term “protection” is best served by going home rather than remaining in the camps. The repatriation culture and the discourse of “voluntariness” and “protection” legitimates the violation of refugee rights and the principle of voluntary repatriation.

This paper argues that UNHCR has developed a repatriation culture, that while it might have been stimulated by environmental factors it is now deeply institutionalized within the organization and has a life of its own, and that evidence of that organizational culture can be found in the discourse and rules governing repatriation and also in UNHCR practices. Section I considers the various explanations for the UNHCR's shift toward repatriation, beginning with the standard explanation regarding state demands and then considering UNHCR’s contribution to its destiny. Section II examines UNHCR’s repatriation culture, detailing the shift in the discourse, bureaucratic structure, and rules that has introduced a more flexible set of criteria to legitimate and promote repatriation under “less than ideal” conditions. Section III forwards the case of the Rohingyan refugees of Burma to illustrate how this repatriation culture can endanger refugee rights. I conclude by reflecting on the origins, permanence and consequence of this repatriation culture.

Perhaps more important for the changes that were to come, Third World states were becoming increasingly intolerant of refugee flows and demands. A watershed event was the decision by South East Asian governments to deny asylum to the Vietnamese boat people in 1979, forcing them either to return to Vietnam who branded them "criminals" or into the arms of pirates on the high seas. This was no isolated instance. Many Third World governments that once tolerated and sheltered refugees were increasingly unwelcoming and openly hostile. In many respects, the reasons were highly understandable. After all, refugees impose tremendous financial, environmental, and political costs, often times entangling the host country into an unwanted conflict with the refugees’ national government. By the 1980s many Third World governments were now turning their backs on refugees, often times stating that their ability to carry out their international legal obligations depended on assistance from UNHCR, wealthy states, and NGOs.² There were an increasing number of refugees whose presence was barely tolerated, if at all, by states, and states were more actively engaged in what the High Commissioner referred to as a policy of “deterrence.”³

Accordingly, Western and Third World governments decisively shifted their preferences regarding the three durable solutions - away from resettlement and third country asylum and toward repatriation. Until the late 1970s Western governments had not clamored for repatriation because most refugees that landed in their countries were from communist lands, and it was ideologically and politically unthinkable to send them back. But now that the percentage of refugees seeking asylum in the West was shifting from the Eastern Bloc to the Third World, Western governments became less interested in fulfilling their obligations. Third World governments had demonstrated remarkable tolerance for the huge settlements, virtual cities, that sprung up along their borders. But now they voiced that their hospitality had been exploited and overextended, and that their patience was wearing thin and they were going to start sending refugees home.

These environmental changes, including the growing number of refugees and the growing reluctance of states to shelter and support them, produced twin crises for the UNHCR. The first concerned the UNHCR’s financial and administrative health. The UNHCR’s budget skyrocketed because the absolute increase in the number of refugees under their care while state contributions to UNHCR’s coffers did not keep pace. Although states were partially responsible for this crisis because of their failure to provide the requisite contributions, it did not stop them from using this crisis to more closely inspect and scrutinize UNHCR’s budget and activities.⁴ The budget crisis’s climax came in 1989 when the Executive Committee of UNHCR took the unprecedented step of not authorizing the UNHCR’s budget, opting instead to cut its programs by 25% and its staff by 15%. States sent a clear signal that they were unhappy with the expense of their humanitarian obligations, leading them to reduce UNHCR’s financial autonomy and discretionary capacity (LCHR, 1991: 87-89, 135).

The second crisis concerned UNHCR’s protection and assistance mission. Western countries and UNHCR officials agreed that the “protection” system was in danger, but they disagreed over the source of that threat. Western states claimed that there were more individuals filing fraudulent asylum requests, often times claiming persecution when they were simply seeking better economic opportunities, and demanding that UNHCR reduce the abuse and alter its protection practices in ways that favored repatriation. Clearly displeased by the frequent reminders by UNHCR staff of how they were falling short of their responsibilities, Western states were now insisting that the UNHCR come down from its lofty, legal, and universalistic perch, and were attempting to draw “the agency into their strategy of deterrence and prevention, even to the extent of threatening funds if the UNHCR were to refuse" (LCHR, 1991: 130). UNHCR, in turn, believed that "the threat to protection came from governments" who were part of the problem and not part of the solution (LCHR, 1991: 41). In sharp contrast to the 1970s when UNHCR was seemingly able to confront and work with governments simultaneously, the 1980s introduced a much more adversarial relationship (LCHR, 1991: 42). States were insisting on a revised protection regime, and an objecting UNHCR was confronting the very states on whom it was dependent to sustain its activities.

A changing environment, including an increase in refugee flows, a fiscal crisis, and growing pressures from states to repatriate refugees as quickly as possible, was placing a pincer around UNHCR. It is no coincidence, therefore, that UNHCR now begins to look fondly on repatriation. Simply put, states drove UNHCR’s shift toward repatriation (Chimni, 1998; Barutciski, 1998). There is much to this argument. First, states were responsible for UNHCR’s fiscal crisis and were forcing the agency to find cost-cutting measures, and the quickest cost-saving device was to repatriate refugees. Because refugee encampments can be modest size cities and become quasi-permanent entities, and there were more of them than ever before, an increasing percentage of UNHCR’s budget devoured by assistance activities (Pitterman, 1985: 51-54; Gordeneker, 1981: 78; Harrell-Bond, 1989: 50-51). In response, UNHCR began to consider easing its financial crisis by reducing these highly expensive and rapidly expanding assistance activities. As UNHCR’s Deputy Commissioner observed: “our experience shows it is over the long run much cheaper, as well as better, to have the refugees self-sufficient rather than dependent on relief” (cited in Stein, 1986: 279). This might very well be true, but it probably is the case that UNHCR was more interested in balancing its books because states were failing to support its activities.

Political and pragmatic considerations also stirred a growing interest in repatriation. Because fewer countries were willing to integrate and resettle the growing number of refugees, UNHCR had very little choice but to consider repatriation at the very least.⁵ To make matters worse, the reality was that states were refusing to honor asylum law and were forcibly repatriating refugees. UNHCR could sit on the sidelines with its principles, but a principle-bound UNHCR was no help to refugees who were in immediate danger.

UNHCR’s dependence on states for political support and financial assistance meant that it had to incorporate their preferences and thus had to jump on the repatriation bandwagon (Loescher, 1989: 10). According to UN Undersecretary General Farah (1983; cited from Stein, 1986):

Donors... have expressed concern over the slow progress being made towards finding permanent solutions to refugee problems. There is a feeling that unless determined efforts are made in this direction, refugee programs will become an end in themselves, rather than a means to an end.⁶

States were retreating from the obligations under the refugee regime, were embracing repatriation, and were expecting UNHCR to make their lives easier and not more difficult.

UNHCR leadership responded to these state and financial pressures by attempting to demonstrate that it could be an effective instrument of the very states that were to fill its increasingly depleted coffers. Only a thick-skinned or self-destructive organization would have been dismissive of powerful patrons and on those whom it was dependent for resources and permission to act.

But the “environment” that influenced UNHCR was comprised not only of states who held the purse strings and had the power but also of new ideas and knowledge regarding how to best help and aid refugees. UNHCR was not simply pressured by states but also was persuaded by new developments in refugee law, refugee activities, and ethical understandings. The Cold War context had substantially shaped refugee law and the assumed desirability of asylum and resettlement. This direction and assumption was reasonable given that refugees were leaving communist lands and expressing little interest in returning. But now most refugees were from and in the Third World, who largely viewed their exile as temporary, and who wanted to go home sooner rather than later. This development stimulated a greater interest by legal experts in previously unexplored features of refugee law, including issues of repatriation, nonrefoulement, cessation clauses (Hathaway, 1991; Goodwin-Gill, 1996). Moreover, the simple fact was that refugees were going home. Generally undetected because officials were not looking, refugees were “spontaneously repatriating,” returning voluntarily to their home countries without the assistance of UNHCR or other relief organizations. As such, the argument was that the UNHCR should help make as easy as possible both their journey home and reintegration (Cuny and Stein, 1989). Finally, whereas once it was believed that asylum was the most humane solution to the plight of the refugee, there was an emerging view that repatriation was the most desirable and humane alternative because it helps the individual return “home.”⁷ There were ever more statements that individuals had a moral and legal right to remain in their homeland (Frelick, 1990). The legal, institutional, and ethical climate was more oriented toward repatriation.

UNHCR officials readily concede that states were pressuring them to push repatriation measures, but they also insist that there were desirable reasons for UNHCR to revise its “exilic” bias, as coined by former UNHCR official Gervase Coles.⁸ Indeed, they argue that the “environment” of the Cold War and the circumstances of the refugees precluded them from considering repatriation, and, accordingly, when the environment and circumstances changed they rushed through the open door in order to do what refugees wanted. As one UNHCR official put it, “We were always interested in repatriation, but geopolitical factors prohibited it. So when the opportunity emerged to move toward repatriation, UNHCR jumped. And we always listened to what the refugees wanted during this period, and the difference is that now we were getting new refugees (not from the Eastern Bloc but from recently decolonized states) that wanted to repatriate.”⁹

This raises a critical issue. Far from being the passive sponge portrayed by many who narrate UNHCR’s shift toward repatriation, UNHCR was an active interpreter of this new environment, interpretations that sometimes coincided with the views of powerful states and sometimes did not. UNHCR had some autonomy due to its status as the guardian of refugee law and the delegated spokesperson for refugees, it was not a mere instrument in the hands of states but rather had the capacity for reasoned reflection and discretion, demonstrated the ability to recognize when state claims had merit and when they violated refugee rights, and even the ability to reimagine its core mission and how to best further it.¹⁰

UNHCR’s relative autonomy was clearly evident in its debate about repatriation. The central concern was how to balance this impulse for repatriation with refugee rights. The Executive Committee (EXCOM) of the UNHCR spent considerable time addressing this issue. Beginning in the late 1970s and continuing until today, EXCOM espoused an increasingly positive view of repatriation, encouraged UNHCR to no longer wait for opportunities but rather to create the conditions that made repatriation possible, and claimed that refugee rights had to be balanced against the rights of states and peacebuilding initiatives.¹¹ As if any more encouragement was needed, the 1997 meeting declared that “any increased incidence of voluntary repatriation is a positive development” (emphasis added), for refugee repatriation is a symbol of reconciliation and thus can be an important factor in favor of peacebuilding.¹² Although these discussions tried to balance the desire for repatriation with the principle of nonrefoulement, the balance was consistently nudged in favor of a more relaxed set of conditions that placed on equal plane the opportunities and risks and thus encourage repatriation under less exacting standards (Goodwin-Gill, 1989: 263-65; Harrell-Bond, 1989: 44-45; LCHR, 1991: 61).¹³

The debate within UNHCR followed a similar path and wrestled with how to reconcile its newfound preference for repatriation with its longstanding protection and assistance mission, and how to ensure that repatriation did not undermine the principles of voluntary repatriation and nonrefoulement (LCHR, 1991: 3). As an organization established to care for and administer refugees, UNHCR is to protect and assist refugees and thus represents, at a very real level, their agent. As an organization established by states to assist refugees, UNHCR was expected to express their views, even if that might occasionally mean departing from orthodox interpretations of refugee law and UNHCR’s traditional protection mission. As an organization interested in maintaining its long-term viability against pressures from states encouraging repatriation and a budget crisis that jeopardized its financial health, there were good reasons to see repatriation as a necessary evil if not as a possible opportunity born under less than ideal conditions. This debate about how to reconcile these conflicting imperatives began in earnest in the 1980s, but became more pressing during the 1990s when UNHCR had to consider refugee repatriation to “post-conflict” situations that were far from the “ideal conditions” usually demanded.

There were important and nuanced differences of opinion over how to balance the pressure to repatriate with the principle of voluntary repatriation, but in coarse terms these divisions were comprised of "fundamentalist" and "pragmatist" camps. Fundamentalists maintained a more “legalistic” approach that suggested a human rights orientation toward refugee rights, and decried moderating moves toward repatriation as coming at the expense of the UNHCR’s unique role as the agent of the refugees and compromising its independence vis-a-vis governments. Fundamentalists were likely to reside in the legal and protection divisions, and typically were protection officers scattered in other parts of the organization; they had powerful figures representing them, including the head of the Protection Division, Michel Moussalli. Arguing from legal principles and in defense of the organization’s traditional mission and operations, fundamentalists feared that small deviations from the established norm and the letter and spirit of the law might become institutionalized and potentially jeopardize refugee rights and safety.

Pragmatists argued the case for allying with governments, held a more expedient, political and pragmatic view of refugee law if only because they feared that ignoring systemic trends and pressures might compromise UNHCR’s overall effectiveness, and believed that the organizational and doctrinal shift in favor of repatriation righted a defect in the system that tended to privilege protection officers who were legally oriented and lacked detailed knowledge of the region over those who had area expertise (LCHR, 1991: 18, 117-119; Coles, 1989: 399). Pragmatists were more likely to sit in high commissioner and regional offices. The High Commissioners consistently advocated a more flexible interpretation of refugee law and a more pragmatic response to the organizational and systemic pressures. In 1985 High Commissioner Hocke observed that repatriation was now desirable because, first, the various regional conflicts directly caused or exacerbated by the Cold War were now winding down, and, second, there was no alternative (LCHR, 1991: 62). That same year UNHCR held a Special Round Table on Voluntary Repatriation that concluded with warning signals regarding repatriation that were, according to some observers, bathed by a green light in favor of giving UNHCR the go-ahead to promote repatriation where possible (Coles, 1985; also see Zieck, 1997: 85). Hocke’s two successors, Thorvald Stoltenberg and Sadata Ogata, continued to emphasize repatriation. In his statement to EXCOM on October 1, 1990, Stoltenberg announced: "My first ambition is that UNHCR should be prepared to seize all the possibilities for voluntary repatriation, which is the best solution for refugees, the most productive use of resources, and a concrete contribution to peace and stability" (cited from LCHR, 1991: 138). In her 1991 address to the Executive Committee, Sadata Ogata stated that repatriation would be a prime objective of the organization under her watch, and later dubbed the 1990s the “decade of repatriation” (Rogers, 1992: 1129).