CIAO DATE: 9/00

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

Michael Barnett

University of Wisconsin

International Studies Association
41st Annual Convention
Los Angeles, CA
March 14-18, 2000

Since the early 1980s UNHCR has increasingly emphasized repatriation as its preferred durable solution. There are various rules and principles governing repatriation, but undeniably the most important are the principles of voluntary repatriation and nonrefoulement, that refugees cannot be returned against their will to a home country that in their subjective assessment has not appreciably changed for the better and therefore still resembles the situation that triggered their flight. The surge in repatriation exercises, however, has also produced a growing number of allegations that UNHCR is playing fast and loose with the principle of voluntary repatriation, indeed, a knowing party to involuntary repatriation. The conventional wisdom holds that states are responsible for this shift toward repatriation and the increasing violations of refugee rights. The end of the cold war, shifts in the geography of refugee concentrations, and increasing reluctance to resettle or give asylum to large numbers of refugees inside their borders have all made states more insistent on repatriation as the best means of dealing with refugee situations. States also are likely to find refugee rights and the principle of involuntary repatriation an inconvenient obstacle when they have decided that it is time for refugees to go home. Under such circumstances, states will "encourage" or coerce the return of refugees. Given these demands by all powerful states, UNHCR has had little choice but to shift toward repatriation and to become associated with episodes of involuntary repatriation because it represents the "least bad" of the various alternatives.

While this claim has substantial merit, it fails to recognize that UNHCR's shift toward repatriation did not occur simply because of state pressures or that its association with involuntary repatriation is not always because it has "no choice." Specifically, my argument is that because of a combination of state pressures, new opportunities, and an active debate within the agency, UNHCR developed a repatriation culture that made it more likely that repatriation would be promoted under less stringent conditions that violated the principle of voluntary repatriation. There are three key points here. First, my analysis foregrounds the very active and contentious debate within the agency over how to respond to changes in their environment. The quarrels within UNHCR indicate how it had real autonomy, discretion, and choices regarding how do deal with the pressures from states, in fact, state pressures were not the only and often not the most important factor in the choices it made. Second, over time UNHCR developed a repatriation culture, a bureaucratic structure, discourse, and formal and informal rules that made repatriation the most desirable preferred solution and nearly synonymous with "protection." Perhaps the most important feature of this repatriation culture is that what constitutes "voluntary" in voluntary repatriation began to change, for UNHCR officials began to introduce new considerations into their decision making process, including their "objective" assessment whether life at home was better than life in the camps. Because of this repatriation culture and new meaning of voluntariness, UNHCR officials were more likely to sanction a repatriation program that violated the principle of voluntary repatriation. Third, the analysis provides strong evidence of a new "repatriation culture" within the organization that has taken on a life of its 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.

 

Section I: The Repatriation Era

There is little question that since the 1970s the preferred durable solution has shifted from asylum and third country resettlement to repatriation. An increasing percentage of UNHCR's budget has been consumed by repatriation activities. There are more repatriation exercises than ever. The percentage of refugee flows that eventually lead toward a repatriation exercise has increased. The amount of time devoted by the Executive Committee of the UNHCR to repatriation issues has increased significantly over the last two decades. High Commissioners have stated boldly that the organization will marshal its energies and resources in favor of repatriation, with Ogata famously declaring the 1990s the decade of repatriation. And on and on.

How do we explain this shift? A good place to start is the "environment," and here the most important feature of the environment concerns the declining interest by states in housing refugees and their increasing desire to repatriate them. By the late 1970s Western and Third World states had grown weary of the heavy demands placed on them by the refugee regime. Western states were increasingly complaining about the ever expanding number of asylum requests (Skran, 1992: 8; Barutciski, 1998: 241-42). Moreover, the profile of the typical refugee had changed. Whereas once she was from an Eastern bloc country attempting to escape to the West, now she was from the Third World and frequently attempting to gain entry to Western states for what these states viewed as illegitimate reasons. In response, they began denying asylum to more individuals and demanding a reform in asylum and refugee law in ways that restricted access (Hathaway, 1991: 115). ₁

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 .

 

Section II: UNHCR Culture and Repatriation

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).

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 .

 

Section III: The Repatriation Culture and the Rohingyan Refugees

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

 

Background

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 28th 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) ₄₃ . 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) ₄₄ .

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) ₄₅ . 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). 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) ₄₆ . 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.

The Desire to Return. UNHCR explained that repatriation was justified because the Rohingyas wanted to go home ₄₇ . A central factor driving this conclusion was the previously discussed camp surveys. To explain repatriation's newly found popularity among the refugees, officials referred to a delayed bandwagon effect, claiming that the refugees were now more knowledgeable about the improved situation in Arakan, and asserting that they had finally soured on life in the camps. Yet the surveys provided, at best, contradictory conclusions regarding the preferences of the refugees. Not only did UNHCR refuse to do a follow-up survey, but it ceased to aggressively seek out the refugees or inform them of their right to stay, and reduced the number of one-on-one, confidential, interviews.

The refusal to entertain potentially disconfirming evidence is exemplified by the following story. UNHCR's report of a dramatic increase in the percentage of refugees who wanted to return to Myanmar sounded odd to several local NGOs. Fearful that this repatriation was involuntary and that the refugees had not been properly informed of their rights and the conditions in Burma, these NGOs suggested to UNHCR that it replicate its survey. UNHCR refused. After intensive discussion over how to proceed, in February 1995 MSF/Holland conducted its own survey in the camps. The results raised serious questions regarding the claim that the refugees were voluntarily repatriating. The vast majority said that UNHCR had not informed them that they had the right to say no to repatriation, a key feature of any definition of voluntariness. And only 9% of the refugees who said that they wanted to return indicated their decision was based on their expectation that the situation in Burma was safe ₄₈ . The summary conclusion was that the refugees wanted to return home but only after the situation had improved, and while they did not think that the situation had improved they agreed to return home now because they did not believe that they could stay in the camps. MSF/H released its findings and joined with other NGOs in writing to UNHCR to protest its activities. UNHCR dismissed the validity of the survey and depicted the protests as unwarranted and unprofessional, though it did say that it would renew its efforts to ensure that refugees understood that they could refuse to be repatriated (confidential NGO memo; interviews with personnel from NGOs) ₄₉ .

As UNHCR officials concede, its determination to promote repatriation was based not only on the refugees' preference but more fundamentally on UNHCR's assessment of whether life was better in Burma relative to life in the camps. As previously noted, they used a definition of voluntariness privileged their "objective" assessment over the refugees' desire to return or assessment of the situation at home. This represented an important departure from the factors that typically are used to determine whether repatriation is warranted, and whose voice is supposed to count. Moreover, the refugees could not remain permanently in exile and therefore would have to return at some time in the near future, and they were better off returning while UNHCR was present in Burma. This point is subtly but importantly made in UNHCR's 1995 State of the World's Refugees, where it referred to the Rohingyas when discussing these less ideal conditions: "While the situation in Rakhine State may not be an easy one, the refugees appear to have recognized that it is better to go home now and to benefit from UNHCR's presence and program, rather than to remain in the refugee camps which offer them no future." ₅₀

The shift away from absolute standards regarding the desire by refugees to repatriate given their assessment of the situation in the home country toward a comparative evaluation by agency officials regarding whether refugees would be more secure at home or in the camps had the direct implication of privileging the agency's knowledge claims over those offered by refugees. Refugees, in this view, would have a difficult time objectively assessing the situation, that is, taking into account, first, the short and long-term prospects of the situation at home relative to the situation in the camps, and, second, for how long UNHCR officials would be present and able to maintain some necessary safety features. This case was not unique. UNHCR's employment of "objective" criteria to determine whether it was safe to return and not the refugees' "subjective" perception of the situation has been observed as an emergent feature of other operations (Chimni, 1999). UNHCR might well be correct that refugees should go home now because life only will get more difficult if they remained in the camps. But the issue at hand is whose voice counts and what calculations are used to determine the efficacy of repatriation, and the measures deployed by UNHCR officials.

To support their claim that the refugees wanted to go home, UNHCR officials note that 200,000 refugees did return absent physical duress. That is, no one put a gun to their heads and forced them over the border ₅₁ . Their behavior, in this view, reveals their preferences. But even some UNHCR protection officers doubt the claim that refugees voluntarily express a free choice to return. Instead, they suggest that the refugees decision was probably influenced by UNHCR's manipulation of information and bribery. UNHCR officials were claiming that life had improved in Burma and that UNHCR now had a presence in Burma and the ability to protect the refugees. But, as we will see below, these were exaggerated claims at best, and if these claims did influence the refugees' decision then their decision was based on misleading information. Moreover, the refugees were offered various kinds of incentives to return, including the standard assistance packages and a highly uncharacteristic offer of $20. When asked to speculate why so many refugees who once refused to go back to Burma now "suddenly" changed their minds, one protection officer said that it was because UNHCR "oversold" its presence and the human rights situation in Burma and offered each family $20 to return, which is more money than they had ever seen in their lives ₅₂ .

Burma Is Better Than It Was. UNHCR claimed that repatriation could proceed because Burma was "safe" and had improved from the conditions that triggered the refugee flight. This observation ran counter to the claims of NGOs and even other UN agencies. NGOs continued to write scathing reports of the government's treatment of its population and the Rohingyan people, and the UN's rapporteur on human rights had been issuing damning statements concerning the military regime's repressive character and human rights violations. In fact, at the outset of the repatriation process UNHCR failed to certify that conditions had improved for the Rohingyas (Abrar, 1995: 19), a startling omission that it later corrected by saying that the situation was likely to get better because of UNHCR's presence in Burma.

UNHCR's determination that the Rohingyas could and should now return was based on the following factors. First, life was improving for the Rohingyas in Burma. Most importantly, even though Myanmar did not recognize the Rohingyas as citizens, it was restoring some rights to them and UNHCR hoped that this unfortunate situation might be resolved in the near future (Abrar, 1995: 17-18). Still, UNHCR did not consider this a human rights issue or a legitimate grounds for fear of persecution (Petrasek, 1999: 8). Second, UNHCR claimed that the Burmese government had fully complied with the MoU and responded positively to all of the agency's queries. For instance, UNHCR asked the government to respond to the allegations that it was engaging in forced sterilization, forced labor, and forced education for Muslim women in military-run schools, and accepted the denial by the government and thereafter proclaimed the information as "mere rumors" (HRW, 1996: 15, 19-21). Third, it could provide protection through its presence; that is, rather than bringing people to safety UNHCR hoped to bring safety to people (Landgren, 1998: 427).

Finally, UNHCR officials claimed that while life was hard for the Rohingyas, it was no harder for them than for any other Burmese citizen or population group (HRW, 1996: 15; interviews with UNHCR officials, Geneva, January 2000). Simply put, because the Rohingyas were treated as horridly as other Burmese, they could not claim to be a persecuted people according to the 1951 convention definition (HRW, 1996: 15; USCR, 1995: 12-13). UNHCR had a point. It is a matter of debate whether these people were, in fact, a persecuted minority under the 1951 definition. But it was very odd point for UNHCR to be making. After all, UNHCR had long argued against a narrow interpretation of "persecution" and in favor of a more flexible definition. Now it found itself arguing the case in favor of the narrow definition it had historically opposed (MSF/H 1997: 11).

The claim that life had improved in the Burma was challenged not only by NGOs but more importantly by Rohingyas who were continuing to flee to Burma, often times including those who had recently repatriated. How to explain the migration? UNHCR officials elevated economic circumstances and traditional migratory patterns, noting that historically this area has seen economically-induced migratory patterns, particularly prominent during the dry season, and many Rohingyas were attracted to the economic safeguards provided by the refugee camps (Petrasek, 1999; confidential NGO memo; interviews with UNHCR officials). Although reluctant to classify these asylum seekers as "economic migrants," they argued that because they left due to economic circumstances they should not be classified as "refugees" and should be denied access to the camps and other rights granted to refugees (USCR, 1996: 3, 7; Amnesty International, March 5, 1999; Petrasek, 1999: 1; MSF/H 1997: 5-6); UNHCR officials were especially fearful that giving refugee status might only encourage more flight. . While NGOs officials and local populations concede that economic factors played a role in their decision to flee, they explicitly linked their deteriorating economic conditions to their standing as a persecuted minority and to human rights violations (USCR, 1996: 7; MSF/H, 1997: 10; HRW/RI, 1997: 9). UNHCR officials apparently were not persuaded.

Once UNHCR is committed to a repatriation program and the claim that life is preferable in Burma, then disconfirming evidence is to be shunned. Again, UNHCR appears to have gone out of its way to avoid asking the tough questions that might have undermined its desired policy outcome. Rather than conduct systematic or individual interviews with those who approached field officers, UNHCR made blanket designations. And when UNHCR did interview new arrivees, it claimed that the purpose was to gather information and not to determine status (Petrasek, 1999: 10; MSF/Holland, 1997: 8). "Moreover, the information UNHCR provides on `protection issues' in Burma does not include any reference to the fact that hundreds, perhaps thousands, of Rohingyan would-be asylum-seekers have been stopped by Burmese border guards as they attempted to flee Burma - a fact that Bangladeshi border security officials on the other side of the border freely admit" (Petrasek (1999: 11). As MSF/Holland (1997: 5) succinctly puts it: "To acknowledge their legitimate rights as asylum-seekers would call into question the whole logic of the repatriation program."

By late 1995 the rumors seemed so credible that the UNHCR office in Cox Bazaar temporarily suspended its repatriation promotion activities. Confronted by consistent evidence that the human rights situation had taken a turn for the worse in Arakan and that refugees did not want to return to a situation that they believed might place them in danger, the Cox Bazaar office unilaterally halted its repatriation activities. This decision brought it into conflict with the Geneva and the UNHCR-Rangoon office (HRW, 1996: 15, 19-21; confidential NGO memos). Geneva claimed that Cox Bazaar officials had been premature in their rush to judgement and should continue the exercise, while the Rangoon office contended that the change in the situation was temporary and a consequence of a new, less tolerant, military commander and that UNHCR still had access to the region (interview with UNHCR protection officer, Geneva, January 28, 2000). This incident exposed not only the differences of opinion within UNHCR pertaining to the conditions under which voluntary repatriation might occur, but also the determination of Geneva to proceed with the repatriation program.

A central issue is that UNHCR elevated its own first-hand accounts of the situation in Burma to justify and authenticate its assessment of the human rights situation in Burma ₅₃ . As already discussed, UNHCR had increasingly played a role in monitoring the human rights situation in those countries in which it had a repatriation exercise. The mere presence of UNHCR, in short, put it in a "very powerful position" to judge whether the information regarding abuses was accurate or not (HRW, 1996: 15). There were two disturbing features associated with this new role, however. The first concerned its ability to judge the situation given its limited knowledge. When in June 1994 it was asserting that the human rights situation had improved, UNHCR did not have unhindered or easy access to Arakan. It had few staff in the field, a difficult time monitoring all of the remote villages and towns, and when it rounded it was nearly always accompanied by SLORC. In addition, UNHCR offered its appraisal of the situation in Arakan without a more comprehensive assessment of the situation in Burma (Petrasek, 1999: 8; MSF/H, 1997: 21; confidential NGO memos). The result was that UNHCR potentially held a distorted picture of the human rights situation, a distortion that made the Burmese regime seem less brutal than it was because it based its evaluation on the limited observations of its field officers. Although its declarations that the Rohingyas could return to Burma in safety and with dignity were based on suspect information, UNHCR's voice carried tremendous authority and weight.

Second, UNHCR might not be an objective evaluator but rather have a vested interest in "seeing" an improving Burma. Recognize that UNHCR was highly committed to repatriating the refugees as soon as possible, but that possibility was dependent on an improvement in Burma's human rights situation. UNHCR, therefore, had a potential conflict of interest, leading some observers to suggest that UNHCR's repatriation imperative colored its assessment of the human rights situation in Burma (Petrasek, 1999). Specifically, an agency that advocates repatriation under less favorable circumstances might not be the best judge of the human rights situation. Moreover, while UNHCR's role permitted it to challenge Burma's treatment of the Rohingyas, it arguably shied away from exploiting that position because of the fear that an assertive campaign might jeopardize its ability to stay in Burma and undermine its own claim that a safe and dignified return was possible. "In Burma, UNHCR has monitored through the lens of repatriation, which has a distinctly rosy hue, `seeing' those factors that are positive to continuing the repatriation and playing down or ignoring (at least in public) those factors which call into doubt the repatriation exercise" (Petrasek, 1999: 12; also see MSF/H, 1997: 23.

Capacity to Monitor Return. The agency claimed that the situation improved, and most critical, that it could monitor the safe return and reintegration of the refugees. Indeed, for UNHCR officials its mere presence in Burma meant that while the situation might not have already improved it now had the leverage to make like better for the Rohingyas in the near future. A UNHCR cable concluded that it had a "meaningful presence enabling [it] to undertake a reasonable pro-active and re-active monitoring function of the well being of the returnees and the progress in the implementation of the movement and reintegration phases." But UNHCR's capacity to monitor that return is dubious. UNHCR faced significant manpower, geographical, and logistical constraints that made it nearly impossible to play this role effectively (USCR, 1995: 1-2, 14-15) ₅₄ . At the outset of the repatriation exercise there was only one, very fresh, protection officer in the region. Soon there were a few others but hardly enough to cover the entire area. Moreover, Arakan is a highly inaccessible region that has few paved roads, making it difficult to get around. And whenever UNHCR officials did interview returnees they were almost always accompanied by SLORC officials and forced to work closely with the Burmese Immigration and Manpower Department (IMPD). Accordingly, UNHCR could hardly expect that the returnees would give a candid assessment of their life after return (Petrasek, 1999: 8; MSF/H, 1997: 21; HRW, 1996: 21-22; interview with UNHCR official, Geneva, January 2000).

UNHCR was caught in a bind. It was committed to a repatriation exercise that depended on monitoring the return of the refugees - a difficult task under the circumstances. But if UNHCR was to openly question its ability to monitor the refugees' return, then the entire repatriation exercise might be jeopardized ₅₅ . "UNHCR was in effect forced to choose between either sticking to principles and pulling out of any involvement in the repatriation...or accepting that a UNHCR presence must be conditioned on a pragmatic approach, the logic of which was that some presence was better than none at all." (Petrasek, 1999: 5) ₅₆ .

UNHCR's repatriation culture generated a definition of voluntariness, and shaped its assessment of the human rights situation in Burma and its capacity to assess what happened to those who returned, that made repatriation desirable and proper under less demanding conditions and in ways that violated the principle of voluntary repatriation. While this development might be a bow to "reality," it has the additional implication that UNHCR is more likely to violate refugee rights even when it is has choices and is facing tolerable pressure from states. UNHCR introduced a definition of voluntariness that was no longer as dependent on the subjective assessment of refugees concerning the conditions at home, glossed over the human rights situation in Arakan as it introduced new standards and measures concerning what constituted a "safe return" and the need to repatriate even though conditions were not "ideal," and was overconfident in its ability to monitor the return and reintegration of the refugees. UNHCR officials were now using different standards to evaluate the correctness of a repatriation program. This did not sit well with many others in the agency, who were quite upset that repatriation under these conditions did violence to the sacrosanct notion of informed consent. As one high-ranking UNHCR official observed, "The definition of voluntariness has been stretched to the point that it violated refugee rights and informed consent.... That is a statement of fact." ₅₇

 

Conclusion

UNHCR has organized itself to facilitate repatriation. There is little doubt that states wanted this outcome. But there also is strong evidence that UNHCR was not simply cowered by states but also was persuaded by new ideas, knowledge, and understandings regarding how to best help and protect refugees. Determined to overcome its "exilic" bias, help an increasing number of refugees who wanted to go home and were "spontaneously repatriating," and "protect" refugees by getting them home to less than ideal conditions, UNHCR began to develop new terminology, concepts, and standards that would make this possible. As evidenced by its healthy and thoroughgoing debate over how far it could venture toward repatriation without violating refugee rights, UNHCR was no mere plaything in the hands of states but rather had the capacity for reasoned reflection and exhibited some relative autonomy.

But soon there developed a repatriation culture that left refugees at greater risk. I am not arguing that this culture necessarily and always will run roughshod over refugee rights in all or most cases. Instead, a repatriation culture means that UNHCR is oriented around concepts, symbols, and discourse that elevates the desirability of repatriation, coats it in ethical luster, and makes it more likely that repatriation will occur under more permissive conditions. Evidence of this repatriation culture is the mere fact that UNHCR can claim that repatriation is in and of itself a "success," and that repatriation is presumed to be the best way to protect refugees even though there have been few studies that have evaluated what has happened to those who have repatriated ₅₈ . In any event, because this culture orients UNHCR toward repatriation, creates more permissive conditions for any single exercise, and gives voluntary repatriation an ethical and proper quality, it is more likely that a repatriation exercise will violate longstanding refugee rights. This did not develop instantaneously but rather over time and as a consequence of minor deviations that became institutionalized and accepted.

What occurred in the UNHCR and the case of the Rohingyan refugees is reminiscent of what Diana Vaughan (1996) called the "normalization of deviance." In her impressive study of the Challenger disaster, she chronicles how exceptions to rules (deviance) over time become routinized and normal parts of procedures. Organizations establish rules to provide a predictable response to environmental stimuli in ways that safeguard against decisions that might lead to accidents and faulty decisions. At times, however, organizations make small, calculated deviations from established rules because of new environmental or institutional developments, explicitly calculating that bending the rules in this instance does not create excessive risk of policy failure. Over time, these exceptions can become the rule - they become normal, not exceptions at all: they can become institutionalized to the point where deviance is "normalized." The result of this process is that what at time t1 might be weighed seriously and debated as a potentially unacceptable risk or dangerous procedure comes to be treated as normal at time tn. Indeed, because of staff turnover, those making decisions at a later point in time might be unaware that the now-routine behavior was ever viewed as risky or dangerous. Although the organization might make countless decisions that do not lead to disaster, the safety procedures that were once in place no longer are and therefore leave the organization (and those it assists) at greater risk.

This argument applies reasonably well to the case of UNHCR repatriation Before 1980 the UNHCR viewed repatriation as only one of three durable solutions to refugee crises, and discussions of repatriation emphasized that the principles of safety and voluntariness must be safeguarded at all costs. UNHCR, however, has incrementally and steadily lowered the barriers to repatriation over the years, leading to a situation where initial deviations from organizational norms accumulated over time and led to a normalization of deviance. The result was a lowering of the barriers to repatriation and an increase in its frequency. Although most repatriation exercises continue to safeguard refugee rights, the cushion once provided by UNHCR rules have now been flattened and left refugees more vulnerable than ever. As a consequence, the probability that any single repatriation exercise might violate refugee rights has increased, although in the main UNHCR maintains its traditional protection function.

This repatriation culture contains not only categories that shape how UNHCR officials "see" the world, it also contains a discourse that makes ethical and legitimate the occasional violation of refugee rights if sone for the "greater good." The repatriation culture generates a view that repatriation can proceed even if it departs from traditional refugee rights. Indeed, voluntary repatriation is now an obstacle to "protection." The moral benchmark is no longer whether the totality of rights available to refugees are defended and honored but rather whether one course of action is more likely to provide better protection to refugees - according to UNHCR's assessment. Because camp life is almost always unstable and insecure and contains no hope for the future, repatriation is almost by definition a more desirable outcome assuming that the situation at home has marginally and steadily improved. While getting refugees home might be the best way to protect them, it also is the case that this interpretation of the protection mandate might very well undermine refugee rights.

This discourse of repatriation, therefore, generates power inequalities between UNHCR and refugees. The central question is: whose voice matters? UNHCR's discourse of voluntary repatriation combined with its growing authority to assess the human rights and political situation in the refugee-producing country means that it arrogates for itself a privileged position to judge whether the conditions warrant a repatriation exercise. In short, the knowledge claims of UNHCR overshadow the knowledge claims of the refugees. Although UNHCR has attempted to democratize its decision making process by providing linkages between refugees and the agency, such linkages might not have a decisive influence if they are embedded with an organizational culture that privileges the views and understandings of UNHCR officials. Although this culture will not necessarily trammel refugee rights and leave then in harm's way, the possibility is ever present.

 

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Warner, Daniel. 1994. "Voluntary Repatriation and the Meaning of Return to Home: A Critique of Liberal Mathematics," Journal or Refugee Studies, 7, 2/3, 160-74.

Weiss, Tom and Amir Pasic. 1996. "Reinventing UNHCR: Enterprising Humanitarians in the Former Yugoslavia, 1991-95," Global Governance, 3, Spring, 41-58.

Working Group on International Refugee Policy. 1999. "Report of the International Conference on the Protection Mandate of UNHCR," Journal of Refugee Studies, 12, 2, 202-17.

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Endnotes

1) Executive Committee of the High Commissioner's Programme, "Note on International Protection." 9 August 1984, p. 7. Many of the subsequent Notes on International Protection reminded states that the concept of "refugee" had expanded considerably from the "classic" concept (note that reference is not made to "statutory") to include all peoples that flee violence and harm. Back

2) "Note on International Protection," 27 August 1990, p. 6. Back

3) Executive Committee of the High Commissioner's Programme, "Note on International Protection." 31 August 1983, p. 3. Back

4) See Morris (1990: 46-52) for an insider's account of the financial and management crisis. Back

5) Indeed, UNHCR's interest in keeping its powerful patrons happy, according to some observers, led it to be silent or complicit regarding their violations of international law (Hathaway, 1991: 115; Harrell-Bond, 1989: 45). Back

6) According to UNHCR's Erika Feller (1990: 342), governments sometimes tie their willingness to hear UNHCR's protection de marche to the UNHCR's willingness to make funds available for refugee assistance. Back

7) See Warner (1994) on the discourse of "home." Back

8) Interviews with UNHCR officials, Washington D.C. and Geneva. Back

9) Interview with UNHCR official, Geneva, January 24, 2000. Back

10) While Chimni (1998) notes that UNHCR has relative autonomy because of its role as protector of refugee law and refugees, he quickly negates that observation as he writes that UNHCR serves the interests of the powerful states. Back

11) Executive Committee of the UNHCR, Conclusion 18 (XXXI, 1980). Back

12) UN doc. A/AC.96/887 9, September 1997 Back

13) On the conditions for repatriation, see UNHCR, Durable Solutions, Executive Committee, 37th session, A/AC.96/663, July. Back

14) Interviews with HCR officials, Geneva, January 2000. Back

15) Stein and Cuny, 1993; cited in Chimni, 1993: 448. Back

16) For other discussions on the changing meaning of "protection," see Kennedy (1986), Anonymous (1997), Kourula (1998), and "Working Group on International Refugee Policy (1999). Back

17) Coles, 1989: 165, and 192-93. Back

18) See Morris (1997) for an insider's view of "protection dilemmas." Back

19) See, in particular, "Note on International Protection," 15 July 1986. Back

20) Interviews with UNHCR officials. Also see Barbero (1993). Back

21) On prevention, see Chimni (1993: 444) and Frelick (1993). On root causes, see Coles (1989: 203) and Executive Committee of the High Commissioner's Programme, "Note on International Protection." 31 August 1983, p. 2. On "State responsibility" see "Note on International Protection." 27, August 1990, p. 8. Back

22) Executive Committee of the High Commissioner's Programme. "Annual Theme: The Pursuit and Implementation of Durable Solutions," 30 August 1996, p. 2. A/AC.96/872. Back

23) "UNHCR's Protection Role in Countries of Origin," 18 March 1996, EC/46/SC/CRP.17, p. 1. Back

24) Interview with UNHCR official, January 28, 2000. Back

25) "Note on International Protection." 9, September 1991, p. 10. Back

26) "Note on International Protection," 31 August 1993, p. 10. Back

27) Interview with Irene Khan, UNHCR, Geneva, January 26, 2000. Back

28) UNHCR "Note on International Protection," 15 July 1986, p. 3. Back

29) "Beyond Humanitarianism: The Need for Political Will to Resolve Today's Refugee Problem." Inaugural Joyce Pearce Memorial Lecture, Refugee Studies Programme, QEH, Oxford, 29 October 1986. Cited in Harrell-Bond, 1989. A remarkable statement, Harrell-Bond (1989) notes, for UNHCR is suggesting that the weakest members of society knowingly return to the very conditions that precipitated their flight and to countries that have no welfare systems Back

30) UN doc. A/AC.96/799 (1992), paras. 38, 39. Back

31) UN doc. A/AC.96/887 9, September 1997. Back

32) "Once the solution of voluntary repatriation is presented as the humane solution, it generates undue pressure to pursue it even when it is relatively inappropriate; an idealized image of the ultimate solution legitimizes a degree of coercion since it is perceived as a solution which the refugees should themselves desire most" (Chimni, 1991: 453). Back

33) UN doc. A/AC.96/815 (1993). Cited in Zieck, 1997:89. Back

34) See Stein (1986), Zieck (1997: 434), Cuny and Stein (1989: 306) Goodwin-Gill (1989: 274); Crisp (1984), Ruiz (1987), and Human Rights Watch (1997: 5-12). Back

35) Executive Committee of the High Commissioner's Programme, "Annual Theme: Repatriation Challenges,"9 September 1997, A/AC.96/887, p. 2. Back

36) Geneva, January 27, 2000. Back

37) This background draws from many sources, though largely from HRW (1996). Back

38) See Reid (1994). Back

39) There were five mass exoduses between 1942 and the contemporary period. Back

40) Bangladesh has forcibly repatriated refugees on several occasions, using a variety of tactics including coercion, cutting rations, and imprisonment. Human Rights Watch Report, 1996: 14. Back

41) For the general maltreatment at the hands of camp officials, see Asia Watch, 1993. Back

42) Neither Bangladesh nor Burma are signatories of the refugee convention or protocal, which meant that UNHCR probably had a more difficult time using normative arguments than would otherwise be the case. Back

43) For discussion of forced labor and UNHCR's blindspots in Burma, see Australian Council for Overseas Aid, 1996. Back

44) This figure was consistent with a similar survey conducted in April. Dhaka officials were hardly overjoyed by the news, and on April 25 told UNHCR that it would not be renewing the MOU that was due to expire on May 12, but would be extending the agreement for an additional month. There was growing pressure on UNHCR. USCR 1995: 6. Back

45) Refugees International filed a series of reports that those returning to Burma were sending back messages to refugees not to return, that they had not been contacted by UNHCR officials inside Myanmar, and that repression continues. They also report coercion. "Some families who dared to say "no" at the UNHCR interview in the transit camp were sent back to their original camp where, under the eyes of UNHCR staff, they were deprived of food and water and forced to stand on one leg and beaten until they fell repeatedly." Refugees now mistrust UNHCR, fearing that they are little better than the local governments. Yvette Pierpaoli, Refugees International, June 6, 1994. Back

46) In an internal and confidential review of the Arakan situation, UNHCR concluded that "monitoring would be delicate as complaisance could compromise our credibility with zealous orthodoxy, could spoil UNHCR's chances of remaining involved in Arakan." Cited from HRW, 1996: 21. Back

47) However, one UNHCR official interviewed estimated that about 50% of all those repatriated were forced. USCR, 1995: 6. Back

48) Also see the supporting evidence by USCR, 1995. Back

49) See MSF/Holland, May 1, 1995, and March 15, 1995 Referring to this survey, one field officer doubted that the refugees adequately understood what was being asked of them (though the same could be said about UNHCR's original survey). Back

50) Cited in HRW, 1996: 16. UNHCR responded to a USCR site visit report that was critical of the agency's repatriation activities in the following way: "In the absence of a better alternative....[UNHCR] decided to become actively involved in the repatriation in order to ensure its voluntary character in the country of asylum and...that the repatriates can safely return to their respective villages. Whilst not denying that this voluntary repatriation program, unique in its many facets, remains a challenge to UNHCR, our presence has made a difference on a number of issues....and a general improvement of the living conditions in the area." Cited from USCR 1996: 10; my italics. Also see HRW, 1996: 16. Back

51) However, the repatriation exercises in 1992-3 and 1996 did occur under physical duress. Back

52) Interview with UNHCR protection officer, January 28, 2000, Geneva. Back

53) Here it is important to note that before becoming the High Commissioner, Ogata was the Human Right Commissions' special rapporteur on Burma, and thus was more willing to view herself as the expert and believe that she had a special relationship with the Burmese authorities. This might also help to explain the rumored clash between Ogata and the International Labor Organization because in the latter's view forced labor was a human rights violation and in her view it was a "cultural tradition." Back

54) Petrasek (1999: 6) identifies a slightly larger number of UNHCR in Burma, roughly 40 local staff, the majority of whom are in Arakan. Back

55) This relates to whether UNHCR is becoming involved in a strategy of "containment." See Mertus (1998: 340), Barutciski (1996), and Shacknove (1993). Back

56) This pragmatic approach, argues Petrasek (1999), can be defended on one of two grounds. The first is that there is evidence that this policy does improve the situation for the Rohingyan. According to Petrasek, however, there is no evidence. The second is that this position did not compromise what UNHCR consistently noted was its primary mission: to safeguard refugee rights, to preserve their right to flee persecution, and to defend the principle of nonrefoulement. Back

57) Geneva, January 28, 2000. Back

58) This interesting observation is made by Chimni (1998: 364), Bascom (1994), and Rogge (1994). Back