Human Rights Watch welcomes overall the clarifications and developments in international protection for refugees set forth in the Handbook on Voluntary Repatriation. We also welcome statements of policy in the handbook regarding UNHCR's interactions with other humanitarian relief organizations. UNHCR now maintains in its Handbook on Voluntary Repatriation that it is important that "[a]s part of confidence-building, [UNHCR] be as transparent as possible about [its] aims and objectives as well as implementation mechanisms when dealing with refugees."49 As the Tajikistan return operation shows, UNHCR obfuscation of its program goals sows suspicion among refugees, not only of UNHCR itself, but of all international aid organizations. (See above in "`Push' Factors.")
While on the whole, these guidelines appear to strengthen protection standards for refugees, the Handbook on Voluntary Repatriation may in certain instances weaken such protections. Human Rights Watch is especially concerned about the Handbook's seemingly competing definitions of "voluntariness." Although the Handbook on Voluntary Repatriation develops a strongly worded set of standards to ensure that a repatriation is voluntary, founded on the principle that voluntariness is fundamental to the protection of refugees faced with the possibility of voluntary repatriation, there appears at the same time to be a contradiction between such standards and the general definition of voluntary repatriation appearing elsewhere in the handbook.
The Handbook on Voluntary Repatriation for example observes "[a]s a general rule" that, in order for a repatriation to be deemed voluntary, "UNHCR should be convinced that the positive pull-factors in the country of origin are an overriding element in the refugees' decision to return rather than possible push-factors in the host country . . . ."50 Such a formulation of voluntary repatriation evidently assumes that push-factors are likely to be present in any voluntary repatriation, contradicting apparent axioms of voluntary repatriation set forth elsewhere in the handbook , such as: "Voluntariness means . . . the absence of measures which push the refugee to repatriate . . . ."51 While the "general rule" definition may reflect the practical view that a pure notion of voluntary repatriation is unrealistic, it dilutes the understanding of free choice to be offered the refugee, which so much of the handbook seeks to establish. Human Rights Watch is concerned that such a loose definition of voluntariness leaves too much room for the creep of factors that deprive refugees of choice when faced with return. The handbook does not, of course, provide any guidance on how UNHCR would "weigh" the pull factors against the push factors in deciding whether or not to promote voluntary repatriation.
Of course, refugees retain the fundamental human right to return to their country of origin regardless of the conditions of the repatriation or the conditions in their country. However, this right becomes meaningless where conditions exist that impair its free exercise.
There are also several important aspects of protection not addressed in the Handbook on Voluntary Repatriation. Given that almost no refugee crisis permits implementation of all of the safeguards for voluntary repatriation set forth in the Handbook on Voluntary Repatriation, there may be a need to consider further guidelines governing the role UNHCR should play in situations that do not fit within the circumstances required for the promotion of voluntary repatriation. In practice, UNHCR is likely to face a situation where it seeks to cobble together various protection elements in the face of hostility from the government of the receiving country or the country of origin, making the adherence to some protection standards difficult. It may, therefore, be helpful to consider the types of actions UNHCR should take in the face of governments that violate their obligations to protect refugees.52 For example, the guidelines for UNHCR's role in voluntary repatriation programs do not contemplate such a limited role in protection as that played by the organization in the Sri Lankan repatriation.
UNHCR does set forth a separate set of guidelines for assisting voluntary repatriation in those situations where it feels that there has not been a fundamental change in circumstances in the country of origin. These guidelines have been issued under the rubric of "facilitation" of repatriation.53 UNHCR defines facilitation of voluntary repatriation as its operational support for
refugees [who] indicate a strong desire to return voluntarily and/or have begun to do so on their own initiative, even where UNHCR does not consider that, objectively, it is safe for most refugees to return. This term [facilitation] should be used only when UNHCR is satisfied that refugees' wish to return is indeed voluntary and not driven by coercion.54
However, this restricted role of facilitating repatriation cannot be carried out where UNHCR does not have the access to refugees necessary to determine whether the repatriation could be considered voluntary. UNHCR should at a minimum demand access to refugees in the receiving country before engaging in any repatriation program. Otherwise, the organization risks lending legitimacy to refoulement. Yet, the Handbook on Voluntary Repatriation does not offer guidance on how UNHCR's protection guidelines may be strengthened in such situations.
Finally, the Handbook on Voluntary Repatriation fails to discuss guidelines for return of persons who have been granted temporary protected status. Temporary protection, in UNHCR's words, is a "useful method." Temporary protection is indeed useful in that it allows large numbers of people to get out of harm's way in a relatively short period of time. However, UNHCR has had to emphasize temporary protection as "return oriented protection," often in order to convince governments to take the asylum seekers at all. Policy statements from UNHCR suggest an emphasis on the safety of the return of temporarily protected people over the voluntariness of their return. Perhaps such an approach has been taken precisely because temporary protected status is usually perceived to encompass people outside of the classic refugee categories whose return, therefore, may not constitute the voluntary return of 1951 Convention refugees.
However, Human Rights Watch believes that those who come under temporary protection are almost certainly refugees under the 1951 Convention. In a world where ethnic hostility fuels many civil wars, the largest groups of refugees in the world granted some form of temporary protection comprise people who have been driven to flight by persecution on grounds of race, religion, nationality or membership in a particular social group-all classic bases for refugee status. It is arguable then that the creation of a new category labeled temporary protection may have unwittingly offered refugee-phobic receiving countries a convenient means of sidestepping their obligations under the 1951 Convention. Human Rights Watch is concerned that temporarily protected persons may not be afforded a full opportunity to raise claims for traditional refugee status under the 1951 Convention. Furthermore, States may delay processing asylum claims of temporarily protected persons until they have deemed conditions in the country of origin to be safe. Such delays may be detrimental to asylum claims, for example, in States where refugee status is not granted on the basis of past persecution alone. Notwithstanding UNHCR's request that governments grant temporarily protected persons the opportunity to apply to refugee status under the 1951 Convention, the question of the return of temporary protected persons is not dealt with at any point in the handbook.
51 Ibid., p. 10 (emphasis added).
52 In some instances, the Handbook on Voluntary Repatriation indicates that UNHCR must take action: "Where there are indications or there is evidence that the freedom or security of returnees is at risk due to a lack of adequate state protection, UNHCR should do whatever it can to remedy the situation and relieve the plight of the returnees." Handbook on Voluntary Repatriation, p. 66.