Standing Committee of the Executive Committee
of the High Commissioner's Programme (30th Meeting)
29 June - 1 July 2004

NGO Statement on
Legal Safety Issues in the Context of Voluntary Repatriation
Agenda Item 4 (iv)

Mr. Chairman,

This statement has been drafted in consultation with a wide range of NGOs and is delivered on behalf of NGOs.

Respect for human rights lies at the heart of sustainable return. The NGO community welcomes the inclusion of human rights standards in this year's Standing Committee paper on Legal Safety Issues in the Context of Voluntary Repatriation. The paper not only reiterates the right to return and the corresponding obligation of States to readmit their own nationals, but also recognizes that international human rights standards ". . . provide the yardstick against which to measure the restoration of national protection in the country of origin."¹

However, there are a number of serious gaps in the paper which we would urge UNHCR and its Executive Committee to address when elaborating this year's Conclusion on this topic.

Internally Displaced Persons

First, the scope of the Conclusion should include returning internally displaced persons.

The number of internally displaced persons has increased dramatically in the past 20 years.² UNHCR³ and its Executive Committee have recognized that a lasting solution for refugees cannot be found without resolving the issue of internal displacement.⁴ As in the case of refugees, issues of voluntariness and physical, legal and material safety, shape solutions for the internally displaced.⁵ Moreover, international human rights law⁶ forms the framework in relation to the return of both internally displaced persons and refugees, and both categories should be included in the Conclusion.

Voluntariness

Second, the Conclusion should reaffirm the principle of voluntariness of return.

While the Standing Committee paper notes that the decision to return should be based on a "free and informed choice,"⁷ NGOs are concerned that in addition to direct refoulement, the voluntariness of refugees' decisions are being compromised in a number of ways. These include: threats to refugees' safety; denial of access to fundamental economic, social and cultural rights (such as dramatic reduction of assistance); and lack of alternative durable solutions. Discussions on voluntary repatriation should not be linked to discussions of forced removal.⁸ A voluntary decision must also be an informed one, based on complete, accurate, objective and up-to-date information about the country of origin.

We are also concerned that the line between UNHCR's role in facilitating and in promoting voluntary repatriation is, in some cases, becoming increasingly blurred.⁹

Physical, Material and Legal Safety

Third, standards relevant not only to legal safety, but also physical and material safety should be elaborated in the Conclusion.

While breaking down "safety" into three components may be conceptually helpful, these three aspects of safety are interdependent¹⁰ and the fulfillment of all three integral to a sustainable return. Moreover, these concepts are based on international human rights principles, which are indivisible in nature.

Human Rights Principles

Fourth, the Conclusion should articulate the international human rights principles which provide the standards by which to measure safety in the context of return.¹¹ Particular emphasis must be placed on non-discrimination, the equal rights of women and men, and the best interests of the child, which are relevant to physical, legal and material safety.

Mainstreaming Gender and Age

Fifth, issues of gender and age must be mainstreamed in the Conclusion, and we were disappointed to see that the Standing Committee paper was wholly inadequate in this respect. The Conclusion must refer to the particular safety concerns faced by women, men, boys, girls and the elderly.

For example, refugee women often do not receive individual counseling about return or a chance to sign the voluntary repatriation form. Many returnee women are denied their rights to land, property and inheritance, or even to care for their children. Nationality laws may work particularly harshly against women, at times stripping those who have married foreign nationals of their citizenship or preventing women from passing their nationality on to their children. Lack of access to personal documentation often results in exploitation and a denial of fundamental rights.

The safety of children, particularly separated children, is often precarious in the context of voluntary repatriation. Families who have cared for children in countries of asylum may leave them behind when repatriating. On return, separated children are at increased risk of physical abuse, sexual exploitation, and labour exploitation and are frequently denied access to property, education, and social and health services.¹² While the Standing Committee paper recognizes the right to family unity in general terms, reference should be made to the need to continue with family tracing and reunification activities for separated children even after repatriation. The Inter-Agency Guiding Principles on Unaccompanied and Separated Children¹³, referred to in the Standing Committee paper on "Implementation of the recommendations on the Independent Evaluations on Refugee Women, Children and Community Services" contain a number of provisions which may be considered for inclusion in the Executive Committee Conclusion.

Sexual and gender based violence (SGBV), including as a means of retribution, as a form of exploitation, and within the family, is a serious problem¹⁴ which impacts on women and girls, and sometimes boys and men. The Executive Committee Conclusion must explicitly include standards aimed at preventing SGBV, ensuring legal, psychosocial and medical support for survivors, and preventing further SGBV.

Despite reference to the importance of mainstreaming age, the elderly are frequently neglected by national authorities and the international community. Often having lost the support mechanisms which they relied upon, many older people unexpectedly find themselves caring for grandchildren and young dependents whose parents are missing. Problems of health and mobility of elderly returnees can pose particular problems in the context of return, and the safety concerns of the elderly should also be reflected in the Conclusion.

Transitional Justice

Sixth, greater emphasis should be placed on transitional justice issues, as a mechanism for ensuring accountability for past abuses of human rights and as a means for preventing new violations of human rights following return.

As the Standing Committee paper notes, sustainable return depends on a comprehensive set of rule of law strategies, dealing both with the past and the future. The Conclusion must clearly state that ending impunity and ensuring accountability for serious past crimes is the foundation for sustainable return. Gender must be taken into account in all transitional justice systems, mechanisms, and strategies and women must have full access to the rule of law. UNHCR should work to ensure that traditional conflict resolution mechanisms do not violate international human rights principles.

Working with Returnees and NGOs

Finally, UNHCR must work in partnerships not only with UN agencies,¹⁵ but also returnees themselves and the NGO community. The Conclusion should refer to the obligation of UNHCR to mainstream gender equality and work in partnership with returnee women and men, including elderly members of the community, as well as girls and boys, to ensure a safe and sustainable return. The critical contribution of NGO partnerships in all aspects of the voluntary repatriation and return process, which is recognized in UNHCR's Statute,¹⁶ should also be mentioned.

UNHCR's Policies and Operations

However, standards and principles in themselves are insufficient. It is important that the principles set out in Executive Committee Conclusions find their way into UNHCR policies and operations.

We are concerned that the 4Rs framework - Repatriation, Reintegration, Rehabilitation and Reconstruction - makes no reference to the 5th R - Reconciliation¹⁷ - or the 6th R - Rights, both of which are essential for sustainable return. We would strongly recommend that UNHCR revise its 4Rs framework to incorporate human rights standards and the concept of reconciliation.

Finally, at the end of the day, the actual situation in countries of origin provides the most compelling case for ensuring that human rights are respected in the context of return. Conflict and violence characterize the situation facing returnees in countries from Afghanistan to Kosovo to the Democratic Republic of Congo. Even in Angola, one of UNHCR's more promising voluntary repatriation operations, returning refugees and internally displaced persons are being forced from transit centres, living in mined areas, and lack access to personal documentation.

In closing, it is worthwhile to reflect on the words of a Burundian refugee in Tanzania, when asked about her hopes for the future. She said, "Regarding the future, I wish first of all that there should be peace at home and not just any kind of peace. Not the one we usually hear about and then you go back home and fights break out again - but we want real peace so that we can go back home with our children, so that our children can have the same life that we did when we were young."

The NGO community recognizes that ultimate responsibility for ensuring respect for human rights and the restoration of national protection lies with the Governments in countries of origin. But UNHCR and its Executive Committee have a critical role to play in ensuring that these Governments fulfill their obligations to their citizens, so that all displaced women and men can return home, with their children, to real peace.

Thank you.

NOTES

1. Executive Committee of the High Commissioner's Programme Standing Committee 30th Meeting, Legal Safety Issues in the Context of Voluntary Repatriation EC/54/SC/CRP.12 of 7 June 2004 para. 6. The importance of human rights standards in the context of return are also articulated in the Note on International Protection, A/AC.96/898 of 3 July 1998 and Executive Committee of the High Commissioner's Programme Standing Committee 2nd Meeting, UNHCR's Protection Role in Countries of Origin, EC/46/SC/CRP.17 of 18 March 1996 para. 6.
2. In 1980, there were approximately 7 million internally displaced persons in 10 countries. By 1990, there were 22 million internally displaced persons in 23 countries and by 2000, the number of internally displaced persons was estimated at between 20 to 25 million in over 50 countries. Today there are approximately two internally displaced persons for every refugee in the world. S. Schmeidl "Comparative trends in forced displacement: IDPs and refugees, 1964-96" in Internally Displaced Persons: A Global Survey, Global IDP Survey of the Norwegian Refugee Council, J. Hampton Ed., London 1998 and Statement by the Representative of the Secretary-General on Internally Displaced Persons, Dr. Francis M. Deng, to the Economic and Social Council (ECOSOC) - Humanitarian Segment, 21 July 2000.
3. While UNHCR's Statute does not make any reference to internally displaced persons, Article 9 provides that the High Commissioner shall "engage in such additional activities … as the General Assembly may determine, within the limits of the resources placed at his disposal." Successive General Assembly resolutions have acknowledged UNHCR's particular humanitarian expertise and encouraged its involvement in situations of internal displacement.
4. See ExCom Conclusion 75 (XLV) 1994;UNHCR Internally Displaced Persons: The Role of the United Nations High Commissioner for Refugees EC/50/SC/INF.2 of 20 June 2000; UNHCR Protection Aspects of UNHCR's Activities on Behalf of Internally Displaced Persons, EC/SCP/87 of 17 August 1994.
5. The United Nations Guiding Principles on Internal Displacement (extract from the document E/CN.4/1998/53/Add.2, dated 11 February 1998) articulate, in principle 28. 1, the right of internally displaced persons to voluntarily return to their homes or places of habitual residence in safety and dignity.
6. ExCom Conclusion 75 (XLV) of 1994 in para. (m) provides that international human rights law, international humanitarian law, and in many cases national law includes norms for the security and the protection of the internally displaced.
7. Executive Committee of the High Commissioner's Programme Standing Committee 30th Meeting, Legal Safety Issues in the Context of Voluntary Repatriation EC/54/SC/CRP.12 of 7 June 2004 paras. 1 and 8.
8. For specific examples please see Refugee Action and the Refugee Council, Voluntary Returns to Afghanistan Programme: Programme Review (forthcoming) and Refugees International: Forced Back: International Refugee Protection in Theory and Practice, May 2004.
9. This is evident in the active steps taken by UNHCR to encourage returns to Afghanistan from Pakistan and Iran. UNHCR and host governments should take all necessary steps to avoid misleading refugees by appearing to endorse voluntary repatriation when conditions are not suitable to sustain returns.
10. Without physical safety, such as the absence of mines, a returnee family cannot recover its property, which relates to legal safety. Without documentation, an aspect of legal safety, a returnee child often has no access to education, which relates to material safety.
11. For example the right to life, liberty and security of the person and freedom from torture and cruel, inhuman or degrading treatment or punishment underline the concept of physical safety. The rights to a nationality, to family unity, to identity, to own property, to an effective remedy, to a fair and public hearing are all included in the concept of legal safety. Material safety is based on the rights to an adequate standard of living, education, health, food and health services.
12. In Rwanda today, there are approximately 400,000 separated children. While most of them are living in family situations, they face problems of abuse, exploitation, lack of access to education and denial of property rights. Children in child-headed households are particularly vulnerable. Many children, both girls and boys, are living on the streets, where they are at further risk of abuse and exploitation by the police. See Human Rights Watch, Lasting Wounds: Consequences of Genocide and War on Rwanda's Children, April 2003.
13. 1 January 2004
14. See UNHCR, Sexual and Gender-Based Violence Against Refugees, Returnees and Internally Displaced Persons: Guidelines on Prevention and Response, May 2003 which discusses SGBV in the context of return at p. 20.
15. The Standing Committee paper only refers to UNHCR's partnerships with UN agencies.
16. Statute of the Office of the United Nations High Commissioner for Refugees, G.A. res. 428 (V), annex, 5 U.N. GAOR Supp. (No. 20) at 46, U.N. Doc. A/1775 (1950), Arts 1 and 8(c).
17. The importance of reconciliation for sustainable return has been recognized in ExCom Conclusion 85(XLIX) of 9 October 1998. See also, UNHCR, Voluntary Repatriation, Global Consultations on International Protection EC/GC/02/5 of 25 April 2002; UNHCR, Annual Theme: Repatriation Challenges, A/AC.96/887 of 9 September 1997: UNHCR, Reintegration in the Transition from War to Peace of 1 September 1997.