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Executive Committee of the High Commissioner's
Programme
GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION
Palais
des Nations,
Geneva, 22-24 May 2002
VOLUNTARY REPATRIATION
NGO STATEMENT
Prepared by:
Elizabeth Ferris, World Council of
Churches
Introduction
The international community traditionally refers to three durable solutions
for refugees: voluntary repatriation, local integration, and resettlement to a
third country. But in practice, most of the world's refugees have access to only
one outcome: they are "warehoused" in poor conditions, often for years, until
they can be returned to their countries of origin. This "non-solution" is a
palpable failure of host states, and the international community more broadly,
to deliver the durable solutions to which refugees are entitled.
Failure to recognise this has a high cost for the individuals concerned and
is directly linked to the increase in the number of asylum-seekers using illegal
migration channels for gaining access to protection in Western countries.
Responding to these developments, Western governments have, in recent years,
redoubled their efforts to control migration, most commonly in a protection
vacuum, at a time when the need for refugee protection continues unabated; the
result is explained as a tension between the fundamental right of persons to
seek asylum and the sovereign prerogative of States to exercise control over
their borders.
The existence of protracted refugee situations, where refugees remain in
camps or live uncertain lives in urban settings for years or stay in limbo in
Western countries, is a particular challenge to discussions of durable
solutions. Even when a true durable solution is not immediately available for
all, we believe that the international community has a responsibility to
refugees to ensure, as an interim measure and a absolute minimum, that their
time spent "waiting" is productively used. Education and skills training of
children and adults, for example, is particularly important in this regard. This
is not in the interests of refugees only. In addition, it is necessary to take
into account such developments as the changed role of women, new skills that may
have been acquired, and thus new contributions that can be made to the process
of reconstruction in the country of origin. There are cases where this has
happened. At least some of the Salvadoran refugees in Central America, Namibian
refugees in Southern Africa, and Chilean refugees in Europe were able to acquire
skills which were used to rebuild their countries when they were able to return
home voluntarily. But too often refugees are simply left "on hold" while the
conditions that caused their displacement drag on for years.
Discussion of durable solutions should be based on a rights-based approach.
Specifically, durable solutions must protect refugees. When refugees are able to
return to their countries of origin because peace and stability have been
re-established, they are able to find protection from the government of their
own country and exercise their full rights as citizens of that country. When
they are fully integrated locally or resettled in a third country, they are
protected by the host government of the country in which they live and are
offered the opportunity to participate in all aspects of the economic, social,
cultural, civil and political life of the country of durable asylum and fully
use their skills and knowledge.
That the right of a refugee to a durable solution may be extrapolated from
the Convention relating to the Status of Refugees (the Refugee Convention),
gives us pause to reflect on the obligation of the international community to
deliver. Article 1C of the Refugee Convention clearly contemplates all three
durable solutions as the basis on which international protection may cease, by
virtue of national protection having resumed.
This, coupled with the explicit articulation of a substantial set of rights,
including social and economic rights (rendered more comprehensive by the
International Covenant on Economic, Social and Cultural Rights), not least of
which is the obligation to, as far as possible, facilitate the integration and
naturalisation of refugees, leads to a strong conclusion that there is a legally
definable right to a solution. To conclude otherwise, is to endorse the terrible
and painful reality of the warehousing of refugees.
In the context of international refugee and human rights law, there is a
substantial legal framework which binds states parties to the relevant
instruments to protect refugees. In undertaking to respect, protect and fulfil
the rights of refugees and asylum seekers, States have exercised their sovereign
prerogative to do so. In that sense, they cannot therefore purport to "trade" or
"sell out" on those legal obligations, including delivery on durable solutions,
in the name of the sovereign right to control borders.
All three of the durable solutions are important in their own right and must
be considered on an equal basis. While voluntary repatriation remains the
preferred solution for most refugees, access to the other two solutions,
particularly in protracted refugee situations, should not therefore be delayed
or ruled out.
This responsibility applies to States and UNHCR or other international
organizations seized of the issues, a responsibility also relevant in the case
of refugees or asylum seekers engaging in 'secondary movement', still in search
of protection. After all, voluntary repatriation is a decision to be made by the
individual refugee. NGOs also recall that the principle of non-refoulement
applies also to asylum seekers unless or until they have been found, through the
implementation of a fair and satisfactory procedure, not to be in need of
international protection.
Currently, for example, there is a tendency to stop resettlement when
voluntary repatriation starts as a way of encouraging refugees to return home.
But this penalizes those refugees for whom resettlement is the most appropriate
- or the only - solution. And, there can be little doubt that removal of the
real possibility of other durable solutions takes the voluntary nature out of
repatriation.
NGOs believe that there is a need for a comprehensive strategy that
determines the most appropriate solutions for refugees, when addressing
protracted refugee situations. Such a strategy could involve a mixture of
increased resettlement opportunities, opening up possibilities for local
integration and repatriation, greater financial support for UNHCR, all in the
context of a renewed spirit of international responsibility sharing.
Voluntary Repatriation
While returning home is the dream of most of the world's refugees, there are
some serious problems with the way it is carried out in practice.
Most fundamentally, there are often problems with the "voluntariness" of
repatriation. In looking at past and present "voluntary repatriation" schemes,
we note that the degree of voluntariness has varied tremendously - from truly
free, well-informed decisions made by refugees to situations of return where
only an absence of physical force compels their return. In fact, host government
fatigue, coupled with inadequate international assistance and the strategic
geo-political interests of key donors, has become the driving force behind
repatriation.
The legal guarantees for repatriation to be voluntary are firmly laid down in
the fundamental principle of non-refoulement, which is the cornerstone of
refugee law. NGOs continue to be witness of serious violations of this principle
as repatriation movements take place in which refugees have been forced to
return home. We are concerned that in describing the legal context of voluntary
repatriation in the background document UNHCR has failed to note that
repatriation movements that are less than voluntary amount to, or, in fact, are
violating the customary principle of non-refoulement.
We are also concerned about the 4th category of return (which thankfully is
not called voluntary repatriation) mentioned in the UNHCR background paper on
voluntary repatriation (EC/GC/02/5) as "return organised by UNHCR, or with which
the organization cooperates, when the life or physical integrity of refugees in
the country of asylum is threatened to the point that return is the safer
option." We recall, for example, in late 2000, following attacks on Sierra
Leonean refugees in Guinea, some refugees began to return home, saying "We're
afraid to go back, but we are not safe here. It is better to die at home than in
a refugee camp." Repatriation in these conditions makes a mockery of the term
"voluntary repatriation."
We must recognize that return in these circumstances represents the failure
of the international refugee system to provide protection and assistance to
refugees. To describe it as anything other than a form of refoulement is
window-dressing.
We welcome UNHCR's efforts to define a threshold for its involvement in
repatriation movements in these situations. However, we wish to stress that
these situations can pose real dilemmas for a humanitarian agency such as UNHCR,
since its involvement can unwittingly confer a degree of legitimacy on the
operation. Therefore, we recommend that in efforts to strengthen supervision of
the Refugee Convention, which are part of the debate surrounding the Agenda for
Protection, consideration is given to monitoring and evaluating UNHCR's
application of the minimum conditions in return operations that are less than
voluntary.
Voluntary repatriation means that individuals have a choice. For return to be
voluntary, the following conditions should be met:
- The rights, including social, economic and cultural rights, of refugees,
particularly as they relate to material conditions in the host country, are
not reduced or otherwise changed in order to encourage returns by making it
difficult for people to remain in the host country. Such measures would amount
to 'constructive' refoulement and would be in violation of customary
international law;
- The decision to return should be free and informed and should be based on
full and objective information about the human rights conditions in the
country of origin. In this respect, it is essential that in every return
operation a neutral and impartial information capacity be created, which is
free from political bias and perceived by the refugees as objective.
- Dissemination of information should not be led, controlled or indeed
influenced by collateral political or other objectives on the part of
governments or international organisations to achieve voluntary repatriation
(as opposed to making it available).
We agree with UNHCR's emphasis on the importance of "go and see" visits,
which should be carried out in conditions of security and should be without
prejudice to the refugees' continued right to remain in their country of asylum.
The protection needs of women and children must also be assured when
disseminating information. The question of whether repatriation is voluntary
implies that the adult women have a say on whether to return or not. In any
repatriation operation, particular care should be given to ensuring the
continued protection of those who are unable or unwilling to return.
Inadequate protection and assistance in camps cannot provide the rationale
for repatriation. In this respect, we note UNHCR's continuing financial
difficulties in protecting and assisting refugees under its charge. There are
also many cases where host governments deliberately make conditions in the camps
intolerable in order to encourage refugees to return. In this respect, they may
be modeling the practices of Western governments who implement deterrence
policies to discourage people from either seeking asylum in their countries or
from continuing to pursue their claim to protection in their countries. We
reiterate that such measures may constitute 'constructive' refoulement.
We note that the question of self-reliance is dealt with in the paper on
local integration, but feel that it should also be included in the discussion of
voluntary repatriation. The more skills refugees are able to acquire in the
country of asylum and the more they are able to use their existing skills and
qualifications (in short, the more they are assisted with integration) - the
more likely they are to consider return, when the circumstances permit.
Conversely, exclusion from the labor market and vocational training will
undermine voluntary return.
This is why, in the search for durable solutions, it is important not only to
see each durable solution on an equal footing with the others, but also to
recognise that one durable solution may in fact lead to another. It is
noteworthy, for example, that refugees who have been locally integrated or
resettled are better placed to, and indeed do, take decisions to return to
reconstruct shattered societies post-conflict. Indeed, the availability of other
durable solutions places them in a stronger position to take a decision to
repatriate voluntarily. In this regard, the analysis of the inter-relationship
between durable solutions would benefit from openly and transparently gathered
statistical data on the return migration of refugees who have enjoyed one of the
exilic durable solutions.
For example, even after years of conflict and exile, Vietnamese, Cambodians,
East Timorese, and now Afghans, have taken the decision to return and contribute
to the reconstruction of their societies. Given the precarious nature of the
post-conflict reconstruction phase in these countries, it is important that
refugees can return to their countries of origin, secure in the knowledge that
they will not forego current status in their countries of asylum should they
need to re-avail themselves of it. In this respect, we are interested that the
proposal for "go and work" visits, as suggested in the UNHCR background paper on
voluntary repatriation, appears to represent a measure of recognition of this.
We question whether repatriation can be voluntary when refugees have no
access to the other durable solutions - when their only choice is between
staying in camps and returning home. The conditions in which people are living
affect the voluntariness of any decision to return.
For voluntary repatriation to be promoted as a viable option for refugees,
real, meaningful, and sustained change in the countries of origin is required.
This inevitably leads to an analysis including the impact around peace-building
initiatives, economic assistance and even moral questions about forgiveness and
reconciliation. Importantly, there also needs to be sufficient evidence of
re-establishment of rule of law, ensuring that perpetrators of serious human
rights abuses do not enjoy impunity, that basic economic, social, and cultural
rights, including restitution of property, are enjoyed without discrimination
and that there is a commitment to, and evidence of, reconstruction of housing
and infrastructure. While voluntary repatriation may be facilitated in
circumstances less objectively conducive to return, it cannot be promoted unless
such conditions pertain. Even where an evaluation of conditions concludes that
the promotion of voluntary return is viable, the decision to return continues to
reside with the individual refugee.
While we agree with the principle that 'creating the most conducive actual
conditions for return' remains fundamentally a political process, going well
beyond the role and capacity of UNHCR, and involving actors with different and
not necessarily converging interests, this should not detract from the
obligation of UNHCR to engage in protection and assistance activities, including
monitoring and reporting on protection problems in the country of return. In
this respect, in cases where UNHCR cannot fulfil its monitoring role on its own
because of its limited capacity, UNHCR must engage with its partners working on
the ground to ensure that monitoring is carried out so that protection problems
can be quickly addressed.
By the same token, the role of UNHCR should not detract from the
responsibilities of the very governments that are represented in this Executive
Committee to create a climate where refugees can return home of their own free
will, in safety and with dignity, and will full respect for their human rights.
We would note, further, that in order to avoid new cycles of displacement,
safety, dignity, and full respect for human rights must also, individually and
together, be sustainable.
We were encouraged by the UNHCR voluntary repatriation paper's emphasis on
factors which are important to returning refugees, namely amnesty laws,
provisions for maintaining nationality, registration and documentation, housing
and property. For repatriation to be implemented justly and humanely, special
arrangements for vulnerable groups, such as children, need to be made in the
country of origin.
The reality is often that refugees are returning to a country that has been
devastated by conflict and with communities that are still divided. The refugees
might face physical insecurity (such as landmines), material insecurity (such as
lack of access to basic necessities, land and property and/or education), and
legal insecurity (such as lack of documentation). In addition, they can face a
combination of these insecurities which may lead to exploitation and abuse (such
as sexual exploitation or violence, or military recruitment).
Children are particularly affected, so there is a need for a wide range of
protection and assistance initiatives for children, including projects in the
areas of food, shelter, physical and psychological well-being, education (both
formal and informal), reconciliation, as well as projects addressing law and
justice. These initiatives must be community-based, targeting returnee
communities as primary actors in their own re-integration. In addition,
governments have the responsibility to coordinate between governments, UN
organisations, NGOs, and other actors, such as financial institutions, in order
to coordinate activities undertaken for, or on behalf of, children.
With respect to the voluntary repatriation of children, other principles,
notably the child's best interests, the right to family unity, parental
responsibility for raising children and the participation of the child, also
apply. For separated children, additional principles such as continuity of care
and the child's ethnic, religious, cultural and linguistic background should
also be considered.
In post-conflict situations where external military forces are present as
peacekeepers, we stress that military engagement in humanitarian assistance
should be limited to fostering security for the returnees and civilian
population. However, where military assistance in considered necessary for the
ensuring the safe delivery of humanitarian assistance, this does not lend itself
to the conclusion that conditions are conducive to sustainable return in safety
and dignity. Ordinarily, civilian actors alone should be responsible for
humanitarian assistance.
Reconciliation is a long-term and often painful process in which local
communities themselves must take the lead in promoting healing and forgiveness.
We appreciate UNHCR's recognition that humanitarian agencies can play a role in
supporting such efforts, by inter alia promoting equity between displaced
persons and local residents, fair and impartial distribution of resources, and
creation of structures that promote confidence-building among local groups.
We are also concerned about the impact of repatriation on the country of
origin. In cases where the conditions that led to the displacement continue, or
have not substantially changed, such as in Afghanistan, Burundi, and Burma, the
repatriation of refugees, which bears all the hallmarks of refoulement
(including 'constructive' refoulement), can further exacerbate conditions in the
country of origin. Even in the case of spontaneous returns, this can have a
detrimental impact on conditions in the country of origin. In turn, this will
impact on protection capacities in the country of origin, not least of which
will be the question of the sustainability of return. Therefore, all such
returns should be carefully coordinated and undertaken with due regard to
applicable international standards.
Rapid repatriation of refugees, which must in any event be voluntary, is
often coupled with the return of internally displaced persons to their
communities of origin. These large-scale movements of people are a potential
de-stabilizing force in situations that are usually politically, economically,
and socially very fragile. The impact of the returnees, on both the country of
origin and on the host country, needs careful consideration and often requires
planning and coordination among the different actors involved in return.
Independent and impartial monitoring in areas of return is essential - not only
to reassure returnees but also to be able to address emerging problems early,
before they develop into large-scale crises. Similarly, it is important to build
local capacities in countries of origin by supporting the development of local
NGOs and civil society that can monitor the human rights situation of returnees.
While there is a tendency to think about refugee movements as emergency
situations and responses accordingly, protracted refugee situations are a
continuing reality, and demand the engagement of governments, UN agencies, and
NGOs, as early as possible, in exploring the scope of all durable solutions in
any given situation. Such a response would particularly benefit from early
registration procedures, which would enable the identification of vulnerable
members of any given refugee population which would inform the identification of
durable solutions.
Principles:
- The Refugee Convention does not provide for a hierarchy of durable
solutions.
- There is an inter-relationship and inter-dependence between the three
durable solutions.
- Statistical data on return migration of refugees who have enjoyed one of
the exilic durable solutions, should assist in evaluating the benefits of a
holistic and non-hierarchical approach to durable solutions.
- For repatriation to remain voluntary, this must be respected by States
(both hosts and donors), UNHCR and other relevant inter-governmental and
non-governmental organisations.
- Return that is not voluntary will constitute refoulement.
- Rights, including the economic, social and cultural rights, of refugees
should not be reduced or otherwise changed to encourage, coerce, or otherwise
lead to non-voluntary return.
- The decision to return should be free and informed and should be based on
full and objective information about human rights conditions in the country of
origin.
- Dissemination of information should not be led, controlled or indeed
influenced by collateral political or other objectives on the part of
governments or international organisations which might result in return that
is less than voluntary.
- In the interests of reconstruction, locally integrated and resettled
refugees should be able to return on "go and work" visits, secure in the
knowledge that they will not forego current status in their countries of
asylum should they need or wish to re-avail themselves of it.
- The sustainability of return necessarily contemplates continued respect
for the security, dignity, and human rights of returnees.
- Monitoring and reporting of return conditions, including the human rights
situation, is an essential element in ensuring the sustainability of return.
- Emphasis should be placed on the need for governments to address
discrimination against women with respect to land, property, and adequate
housing and ensure women's equal access to land - individual and collective -
through the adoption of gender sensitive property laws, and equal access to
women and men in the planning and management of land issues, especially in
returnee areas.
- Where the protracted nature of a refugee situation continues unresolved,
States and UNHCR have the responsibility to ensure that refugees have access
to continued productive life, including education and skills training.
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