UNHCR’s repatriation exercises usually proceeded without criticism, but increasingly there were reports that it was resorting to subtle methods and techniques that violated principle of voluntary repatriation.34 How do we explain its willingness to violate long cherished principles? There are moments when the UNHCR has no choice; the 1997 Great Lakes crisis is a prime example “Where return takes place under different kinds of pressure or duress, UNHCR may in some cases have no choice but to resort to the best available means of ensuring the safety of those concerned.”35 Yet UNHCR’s repatriation culture means that it is more likely that refugees might be repatriated under less demanding conditions and even in the presence of manageable state pressures.
The 1994-95 repatriation of the Rohingyan refugees from Bangladesh to Burma was such an instance. There are two central issues. First, this repatriation exercise was carried out at the discretion of UNHCR officials. To begin, there were no immediate financial pressures because the Rohingyan operation had a $600,000 surplus for 1995 (HRW, 1996: 19, fn. 43; confidential NGO memo). More important, while Bangladesh was pressuring UNHCR to repatriate the refugees as soon as possible, even UNHCR officials acknowledge that this pressure was not intolerable or that Bangladesh was about to forcibly repatriate the refugees. “I don’t agree,” said one UNHCR official intimately involved with the decision, “that we bent because of excessive pressure from Bangladesh.” Second, UNHCR officials applied a definition of “voluntariness” that violated the traditional principle of voluntary repatriation. Although the conditions had not changed in Burma, UNHCR officials “objectively” determined that the refugees were better served by going back as soon as possible because UNHCR now could monitor their return and reintegration. Not only had the situation at home not changed, but there is strong evidence that UNHCR manipulated information and bribed the refugees in order to get their “consent.” Moreover, UNHCR’s determination to repatriate led it to overlook and disregard evidence that might have frustrated its repatriation plans. At several moments during the planning and implementing phases, UNHCR officials bent standard procedures, ignored disconfirming evidence, and avoided troubling questions. UNHCR officials might have had good reasons for doing what they did, fearing that this was as good as it was going to get and that this was repatriation under “less than ideal circumstances” was better than coerced repatriation. But as one UNHCR official confessed, “The Rohingyan repatriation exercise pushed voluntariness to its absolute limits, possibly beyond recognition.”36
The origins of the Rohingyan and their standing as a distinct ethnic group are not fully known and are politically controversial, respectively.37 There are widely thought to be descendants of the first Muslims that occupied the northern Arakan province in the ninth century, and came to be called Rohingyan after the name of the region in Arakan that they inhabited. Since this original settlement, others Muslims have migrated to this part of Burma, most recently in the period from 1891 to 1931 when British colonial practices encouraged labor migration, and after the 1971 East Pakistan civil war. When the Japanese occupied Burma during World War Two, the Rohingyan remained loyal to the British and were promised an autonomous, Muslim, state in Northern Arakan after the war as reward for their fidelity (but this promise was never kept). The political and security situation quickly deteriorated over the next few years. Deadly, communal violence erupted in 1942, leading to the flight of thousands of refugees in India. In 1947 the Rohingyas formed an army, and soon thereafter the Rohingyan political elite approached the new president of Pakistan to integrate the northern Arakan into East Pakistan (Bangladesh). The Rohingyan leadership probably did not win any allies in Rangoon with its, first, constant claim that it was a distinct ethnic group that had resided in a fairly autonomous province, and, second, recently expressed interest in peeling off part of Burmese territory.
Life got progressively harsher for the Rohingyas following the 1962 military coup (as it did for most Burmese). According to the Rohingyan political leadership, at this point the Burmese government attempted to encourage their migration by withdrawing its recognition of the group’s status as citizens and by replacing their National Registration Certificates with Foreign Registration cards. Being denied citizenship rights severely affected the Rohingyan population’s economic, political, and social circumstances. It was more difficult than ever to join the civil service, and those in the civil service were pressured to resign. Because most schools were government-run it was more difficult to get an education. Rohingyas were denied the right to serve in the army, which severely affected their status and political power. In 1977 the government increased its repression of the Rohingyas, which directly led to the flight of over 200,000 to Bangladesh by May 1978. Bangladesh was hardly a safe haven. Because the cash-poor government had little interest in housing, feeding, and schooling these numbers, it attempted to forcibly repatriate them by using physical coercion and ceasing their food supplies. These harsh tactics led to roughly 10,000 deaths, most of whom were women and children.38 In 1988 the current military government in Burma came to power, society suffered, and the Rohingyas were once again showered with exceptional treatment. The military junta prohibited the Rohingyas from voting in the May 1990 elections. And the military government responded to the widespread rioting and societal disturbances by looking for a scapegoat and a common enemy, chose the Rohingyas for this function, which led to greater repression.
In response to this increasingly miserable existence in Burma, the Rohingyas began fleeing to Bangladesh. Before the rains of May 1991 nearly 10,000 fled Burma, the rainy season led to a downturn in numbers, but when the weather cleared in November there was a new deluge of refugees. By March 1992 there were nearly 270,000 Rohingyas in Bangladesh. Arriving refugees told horrific stories of forced labor, rape, executions, and torture. At first the Burmese government denied the estimated number of refugees and argued that these were workers looking for seasonal employment and not individuals seeking a safe haven from Burmese persecution. Later, however, the government altered its line and argued that these were “Islamic insurgents.” Most reports noted that while there had been a radicalization of Rohingyan politics, which they saw as a direct consequence of Burma’s repressive practices, most fleeing Burma were hardly radicals and simply wanted to escape harm’s way.39
The 1990s Refugee and Protection Crisis
By all accounts Bangladesh’s initial response to this refugee wave was cooperative and welcoming. Helping to establish the refugee camps and providing badly needed supplies and assistance, the financially-strapped Bangladeshi government showed tremendous compassion for the flood of refugees who were now camping along the Burmese border and toward Cox Bazaar. Although initially Dhaka was wary of outside intrusion, it eventually allowed various NGOs to provide badly needed material assistance and then in March 1992 it permitted UNHCR to contribute to the assistance effort (USCR, 1995: 5). UNHCR and a myriad of local and international NGOs were actively providing assistance to one of the largest refugee populations of the postcold war period.
The Bangladeshi government viewed the refugee crisis as a short-term problem and sought to resolve it through bilateral mechanisms, which was how it had addressed the 1978 crisis. On April 28, 1992, Bangladesh and Myanmar signed a Memorandum of Understanding (MoU) regarding the return of the refugees. This MoU had three significant limitations. First, Myanmar was obligated to accept the return of “those refugees who could establish their bona fide residency prior in Myanmar prior to their departure for Bangladesh” (Abrar, 1995: 9; USCR, 1995: 5). In other words, those who were absent residency papers or certificates of citizenship could be excluded, which could be thousands owing to Myanmar’s recent policy of stripping documents and papers from those crossing the border into Bangladesh. Second, the MoU only required Myanmar to involve UNHCR at an “appropriate time.” While UNHCR did have a formal role in making sure that those leaving Bangladesh were voluntarily doing so, it did not have a formal role in monitoring the return and reintegration of the refugees. This might have been less worrisome if there had been an improvement in the political and security situation in Burma. But it had not. This leads to the third limitation: there was a planned repatriation despite the ongoing human rights abuses in Burma. Indeed, one UNHCR cable reported that refugees were continuing to flee at the rate of 1,500 a day (USCR, 1995: 5), providing highly compelling evidence that life had hardly improved for the Rohingyas.
Increasingly worried that this short-term situation was becoming a long-term problem and might become a drain on its meager resources, beginning in Fall 1992 Bangladesh began to forcibly repatriate many thousands of refugees and to deny UNHCR access to the camps (Abrar, 1995: 10, 11; USCR, 1995: 5).40 On September 22 the first repatriation exercise took place - but without UNHCR involvement. UNHCR (1995: 12) wrote that this repatriation was “accompanied by considerable pressure (coercion) from the Bangladeshi authorities, who insisted that they could not give the refugees long-term asylum” and pointed to the protests and violence in the camps as evidence of this coercion (quoted from Abrar, 1995: 12).41 In response to the UNHCR’s very public protests, Bangladesh and UNHCR signed an agreement on October 8, which allowed UNHCR to verify the voluntary nature of the repatriation exercise. UNHCR monitored the October 12 and 31 repatriation exercises, which it certified as “voluntary.” Bangladesh, however, returned to its old ways and denied the agency a monitoring role in several subsequent rounds, rekindling fears that the refugees were being coercively repatriated; specifically, reportedly the refugees were being herded into cattle trucks and then dumped over the border. Because it was denied the right to supervise nearly 84% of those being repatriated, on December 22, 1992 UNHCR withdrew from the repatriation program and the refugee camps to protest and denounce the suspected refoulement (USCR, 1995: 5). Not cowered, the Bangladeshi government forcibly repatriated another 11,000 more individuals. After a sustained shower of criticism from UNHCR, NGOs, and the U.S. Department of State, in January 1993 Dhaka announced that it would cease its repatriation program and resume a joint program with UNHCR (Abrar, 1995: 12; USCR, 1995: 6). The protests had successfully caused the Bangladeshi government to alter its repatriation policy.
Over the next several months UNHCR attempted to negotiate new agreements with Bangladesh and Burma in order to restore the principle of voluntary repatriation and to establish a monitoring role for UNHCR on both sides of the border.42 Negotiations were proceeding slowly until a high-profile and much-publicized trip by High Commissioner Ogata to Dhaka on May 12, 1993 resulted in a new MoU. UNHCR and Bangladesh each believed that it had gained some important concessions. UNHCR was pleased to gain unhindered access to the camps, the right to interview independently the refugees in order to determine the voluntary character of their decision to return, and to have Bangladesh (re)commit to the principle of voluntary repatriation. Bangladesh was delighted that UNHCR agreed to implement “promotional activities to motivate the refugees to return home once international presence for observing reasonable conditions for the returnee is established in Myanmar and in line with the Agreement of 28 April 1992" between Bangladesh and Myanmar. And by tying this new agreement to the previous MoU between Myanmar and Burma, an MoU that only required that the local situation be “safe” before repatriation could proceed, Bangladesh believed that UNHCR was now on record as condoning a repatriation program under less demanding conditions (Abrar, 1995: 13; USCR, 1995: 6). With this agreement in hand, UNHCR turned its attention to Burma. On November 5, 1993 UNHCR and Myanmar concluded an MoU, which permitted the refugees to return to their places of origin and allowed UNHCR access to all returnees in order to monitor their reintegration and verify that the government issued them new identity papers.
Although these bilateral agreements and the new roles for UNHCR on both sides of the border signaled positive developments, these MoUs contained several disturbing features that hinted that a definition of “voluntariness” that bent the principle of voluntary repatriation might be introduced. To begin, while UNHCR was given the right to determine whether the refugees had voluntarily agreed to return, there were good reasons to believe that this was easier said than done, particularly in light of recent history. Second, these MoUs failed to state explicitly that the refugees only should or could repatriate after the security situation had substantially improved (USCR, 1995: 6; Petrasek, 1999: 6; MSF/H 1997: 21). Several NGOs criticized these glaring omissions, seeing in them a fatal hole in the agreement and a possible harbinger of a new, more relaxed UNHCR policy toward repatriation. Indeed, there was little evidence that situation in Burma had improved or was about to improve. UNHCR might have inferred the fate of those who were about to repatriate by inquiring into the status of the roughly 50,000 refugees that were forcibly returned to Myanmar the previous year (Abrar, 1995: 14; HRW, 1996: 17), but UNHCR and other NGOs were denied access to them. On this point local NGOs were quite distressed by UNHCR’s behavior; while it had little detailed knowledge of the current conditions in Burma, it nevertheless was making rather authoritative statements pertaining to an improved situation, including the cessation of forced labor (which was not exactly true) (Abrar, 1995: 14; confidential NGO memo).th Finally, while its MoU with Myanmar permitted UNHCR to monitor the return and reintegration of the Rohingyas, no detailed plan for this critical feature had yet emerged. The MoUs, in short, proved worrisome to many onlookers because they waved at the central components of voluntary repatriation but failed to provide the necessary details.
UNHCR officials were aware of these shortcomings. But they defend their conduct and these agreements on the following grounds. To begin, no agreement is without shortcomings because the host country wants to see the refugees leave as quickly as possible and the home country typically objects to obtrusive monitoring measures that it views as violating its sovereignty. Therefore, while this agreement might have more problems than most, all agreements have their deficiencies. Ultimately, UNHCR officials hoped that they could use the foothold provided by these agreements to correct their shortcomings. Moreover, the agreements successfully recommitted Bangladesh to the principle of voluntary repatriation and Burma to the principle of safe and dignified return - and allocated to UNHCR important monitoring roles. If UNHCR pushed too hard during these negotiations for the ideal agreement it risked the danger that Bangladesh and Burma might carry out the repatriation without UNHCR’s presence - a far worse fate that previously happened in Burma and elsewhere. Furthermore, with a monitoring role and these agreements in hand, UNHCR had a mechanism to ensure that the governments did what they said they would do and a lever to hold these states accountable if they did not. Third, repatriation rarely has the luxury of occurring under “ideal” circumstances, and refugees are frequently willing to return to situations that are less than ideal because their lives in the camps are often times just if not more insecure. Fourth, Burmese authorities did not recognize the Rohingyas as legitimate citizens (a chief reason they could claim persecution), and UNHCR officials worried that the longer the Rohingyas resided in Bangladesh the less likely it was that Burma would take them back; in short, UNHCR officials determined that the refugees had to return to establish “residency.” Fifth, the refugees’ long-term protection was best guaranteed by getting them home rather than having them linger in insecure camps. Although the evidence concerning refugee desire to return at that moment is shaky, in UNHCR’s view while this might not be an ideal time it was likely to be the best time because of its presence in Burma. In general, when explaining their repatriation policy UNHCR officials referred not to Bangladeshi pressures but rather to rules that legitimated and sanctioned repatriation under conditions that suspended traditional refugee rights.
The ink was barely dry on both MoUs when Bangladesh began pressuring UNHCR to prepare a major repatriation exercise. Formally unveiled on December 19, 1993, the plan was designed to repatriate a total of 190,000 refugees at the rate of 18,000 a month (or 1500 a day) (Abrar, 1995: 13; HRW, 1996: 17). Yet at the very outset of the planning exercise there were distressing signs that the refugees might not voluntarily return to a situation that they perceived resembled that which triggered their flight. To begin, there were fresh refugees coming into Bangladesh, including some who had recently repatriated, so called “double-backers.” Moreover, the refugees remained fearful that they would not have their citizenship rights restored and would be denied freedom of movement; they remained unsatisfied by the vague guarantees given by the military regime and continued to receive reports that life had not improved since their flight. In order to alleviate their fears, in January and February 1994 senior UNHCR staff visited Burma and returned to tell NGOs and the refugees that the situation had significantly improved and that it was now safe to go home (confidential NGO memo). The Bangladeshi government, sometimes in concert with UNHCR , conveyed a similar theme (HRW, 1996: 17). Despite these efforts the refugees were not budging from the camps, much to the annoyance of Bangladesh and the increasing embarrassment of UNHCR (HRW, 1996: 17; confidential NGO memo).
Then in late April several bombings in Burma led the government to either prohibit UNHCR from entering into key towns or to insist that UNHCR be accompanied by the military on its rounds. This development severely compromised UNHCR’s ability to monitor areas of return, a key feature of the repatriation agreement. The refugees were more reluctant than ever to return, fearing that both the government might accuse them of being involved in the bombings, and UNHCR would not be able to monitor credibly their return and reintegration (HRW, 1996: 18-19). Despite these many setbacks and emerging concerns, the first repatriation exercise took place on April 30, 1994. Predictably given the circumstances, the number of volunteers was far below what either Bangladesh or UNHCR had wanted. And then mother nature dealt another blow to the repatriation exercise when on May 2, 1994 a massive cyclone swept through the area and destroyed the camps, departure facilities, and reception points. All repatriation efforts were virtually suspended, and did not proceed apace until July. Once again, though, there was no rush for repatriation. Even though Bangladesh attempted to encourage their repatriation by hindering the repair of the refugee camps, there was no exodus to the Burmese border.
There was scant evidence that most refugees wanted to return to a situation that they perceived resembled that which triggered their flight. To better gauge their preferences and the reasons underlying them, UNHCR surveyed some of the refugee camps. Because Bangladesh controlled who UNHCR could canvas, the first surveys were based on an unrepresentative sample of those refugees that were in the transit camps; that is, those who were about to return. Not surprisingly, these surveys revealed that most of those about to return to Myanmar wanted to do so. Beginning in July 1994, however, Bangladesh gave UNHCR permission to survey nontransit camps. These surveys revealed a completely different picture: the refugees were not interested in repatriating under the current conditions. In one camp only 27% of the refugees said that they wanted to return (Abrar, 1995: 15; HRW, 1996: 17, 18).43
This repatriation exercise seemed to be hobbled and stalled, but then was lifted by two UNHCR-guided events. First, UNHCR conducted a second round of interviews in the same camp several days later and discovered that nearly 97% of all refugees wanted to return (HRW, 1996: 18). The exact cause of this rapid turnaround was unknown. UNHCR officials attributed this increase to a delayed bandwagon effect. NGOs, however, suspected coercion. Between the first and second surveys several refugees were beaten by Bangladeshi officials for “anti-repatriation” activities (HRW, 1996: 18).44 There was a meeting the day after the beating between camp and UNHCR officials, and refugees widely believed that the camp official responsible for the beating was not even reprimanded. From this episode refugees concluded that they would not be protected in the camps and that UNHCR, who was supposed to be their protector of last resort, was no guardian angel (various NGO reports).
Then UNHCR shifted its policy from simply providing information for repatriation toward actively promoting it (Abrar, 1995: 15; HRW, 1996: 19). When queried at the time, UNHCR officials explained that this new policy of promotion was warranted because of three important and necessary developments: the Rohingyas now wanted to go home; the situation in Arakan had improved to the point that UNHCR believed that the refugees could return with safety and dignity; and UNHCR had established a presence in Arakan and therefore could monitor the refugees’ return and reintegration, a factor that UNHCR viewed as stimulating the Rohingyan interest in returning at that time (USCR, 1995: 9- 15; confidential NGO memos). Because these three factors made the situation “conducive” to return, UNHCR began promoting repatriation through various means (USCR, 1995: 6). To reduce the bureaucratic obstacles in favor of an expedited repatriation campaign, UNHCR took several steps: it no longer sought out refugee preferences but instead gave them the right to seek out UNHCR if they did not want to return; it forfeited the hard fought for right to interview refugees on an individual basis in favor of mass interviews that could scarcely ascertain refugee preferences; and, it warned the refugees that if they returned to Bangladesh after being repatriated they might be arrested for illegal departure by the Burmese officials (HRW, 1996: 19; USCR, 1995: 8-9).45 After months of warm-up, UNHCR’s repatriation drive was in full swing.
UNHCR’s decision to accelerate its repatriation exercise at this moment and for these reasons struck many observers on the scene as bewildering because, in their view, these claims had little foundation in fact and were sanctioning an involuntary repatriation program. How do we explain this policy shift? Bangladesh was not explicitly or implicitly threatening to forcibly repatriate the refugees (Abrar, 1995: 17-18; interviews with UNHCR officials, Geneva, January 2000). Still, UNHCR was keenly aware that Bangladesh wanted the refugees out and feared a return to the 1992 situation when UNHCR had no presence on either side of the border and Bangladesh forcibly evicted the refugees, leading to hundreds if not thousands of deaths. From UNHCR’s view, it could stand on the sidelines with its principles in tact, but perhaps at the expense of refugee lives. In short, UNHCR concluded that if Bangladesh was determined to repatriate the refugees, then UNHCR should be on the ground to minimize the possible harm to refugees (USCR, 1995: 21). But it is important to note that the situation had not reached the level where it was left without choice, as UNHCR officials readily concede. Instead, UNHCR officials argued that repatriation was justifiable and necessary at this moment not only because of the previously stated reasons but also because the refugees wanted to return, the situation had improved in Burma, and UNHCR could monitor their return and reintegration. But these claims are highly disputable.