V. THE SEARCH FOR DURABLE SOLUTIONS

Eight years after the 1991-92 mass exodus of Rohingya to Bangladesh, a durable solution for all the refugees has still not been found. Repatriation continues to be promoted while the structural causes of flight persist. At the same time as refugees are returning from Bangladesh to Arakan State, other Rohingya are continuing to leave Arakan to seek asylum in Bangladesh. This dynamic poses serious questions about the durability of the repatriation program.

Ultimately, there will be no durable solution to the Rohingya refugee problem until Burma complies with its obligations under international law and respects the basic rights of its Rohingya minority. To this end, the international community, including the U.N. and the Association of South East Asian Nations (ASEAN), must press the Burmese government to undertake fundamental reforms in its treatment of the Rohingya. In the meantime, both intermediate and long-term solutions must be sought for the remaining Rohingya in Bangladesh.

The refugee regime offers three durable solutions for refugees: voluntary repatriation, local integration, and resettlement. The principal objective of each durable solution is to restore national protection to refugees. The suitability and availability of solutions may vary for different groups of refugees or even for refugees within the same population. It is the responsibility of UNHCR, with the cooperation of the home and host states as well as the international community, and in consultation with the refugees, to identify the appropriate solutions for a given population.

Voluntary Repatriation

Over the past decade or more, voluntary repatriation, (the voluntary return of refugees to their home countries), has been promoted as the optimal solution to refugee crises. UNHCR has statutory responsibility to seek, promote, and facilitate the voluntary return of refugees to their country of origin. Though the 1951 Convention is silent on the question of voluntariness, the UNHCR Handbook on Voluntary Repatriation states that: "The principle of voluntariness is the cornerstone of international protection with respect to the return of refugees...A person with a well-founded fear of persecution is a refugee, and cannot be compelled to repatriate."⁷⁴ Unfortunately, host countries often press refugees to return before conditions in their homeland have sufficiently improved. For voluntary repatriation to be a durable solution, the home country must be able and willing once again to assume the responsibility of providing for the legal and physical security of the returnee. The international community can play an important role in ensuring that conditions in the country of origin are conducive to return and by supplying the funds necessary for the full reintegration of returnees.

Rohingya repatriation has passed through a number of stages, during which return was not always voluntary. From September 1992 and November 1993, the Burmese and Bangladeshi governments pursued the repatriation of some 50,000 Rohingya refugees through a bilateral memorandum of understanding. UNHCR participated in the repatriation from October 1992 but withdrew in December when it became clear that the principle of voluntariness was not being respected. In November 1993, UNHCR signed an MOU with the government of Burma which allowed the agency access to northern Arakan. A month later, UNHCR began to promote the mass repatriation of Rohingya refugees. Some international NGOs had concerns that refugees were not repatriating voluntarily, an accusation supported by a survey of the populations in the camps.⁷⁵ Repatriation continued until July 1997 when refugees took over both camps in response to Bangladeshi authorities attempts to coerce refugees to return. The refugees barred Bangladeshi officials and UNHCR staff from entering. The repatriation program finally resumed in November 1998. A new problem has arisen since resumption or the repatriation program: obstacles to return. Under international human rights law, all people have the right to return to their own country. Article 13 (2) of the Universal Declaration of Human Rights states, "Everyone has the right to leave any country, including his own, and to return to his country." Reinforcing this principle, article 12 (4) of the 1966 International Covenant on Civil and Political Rights which states, "No one shall be arbitrarily deprived of the right to enter his own country."⁷⁶ For Rohingya who wished to return to Burma upon the 1998 resumption of repatriation, restrictive bureaucratic procedures and conditions put in place by the Burmese authorities have proved an obstacle.

In some instances, the government's conditions are clearly violating the refugees' right to return. Before the Burmese government stopped repatriation in August 1997, it had already cleared for return over seven thousand refugees who had signed voluntary repatriation forms. When the program resumed in November 1998, the Burmese authorities refused to accept these previously cleared refugees; the new round of verifications have been a redundant and time-consuming exercise. When repatriations recommenced, the Bangladeshi RRRC was required each week to submit to the Burmese Immigration and Manpower Department (IMD) a list of those refugees who had volunteered to return to Burma. The Burmese authorities subsequently made a determination of the merits of the residency claim of each refugee. The Bangladeshi government submitted an initial list of 217 families from Kutupalong who had come forward after the restoration of order in the camp requesting to return to Burma.⁷⁷ The RRRC later submitted other lists including lists of all of the seven thousand refugees who had volunteered to repatriate before the program was suspended in August 1997. The refugees on the list of 217 families have been the only ones cleared for repatriation. In response to objections by their Bangladeshi counterparts, Burmese officials stated that they would begin considering names from the other lists but requested that the Bangladeshi government not submit any new names.⁷⁸ The immediate repercussion of the policy is that the 15,000 or so refugees who did not volunteer for repatriation prior to 1997 have effectively been made ineligible for return.



The Burmese government also initially insisted that the repatriation accommodate just fifty persons per week. Each Monday, Burmese authorities return a list of approved names to their Bangladeshi counterparts. Bangladeshi camp authorities then transport the refugees to the departure point on Tuesday and return the group to Burma early Wednesday morning. In the first eleven months of the repatriation, the Burmese government rarely approved the return of the full fifty persons in one week. The numbers more often averaged fifteen to twenty persons per week, with the result that the number of refugees in the camps has already gone up due to the number of new births exceeding the number of those returned from the camps to Burma (See table of monthly figures below).⁷⁹ This quota was finally lifted at the close of 1999.

Source: UNHCR Country Office, Dhaka

The Burmese authorities have also refused to receive incomplete families. When one family member is missing, the government has usually not cleared the rest to cross the border. If one family member refuses to repatriate, none is permitted to return. The government has also insisted that the father of each child born in the camps be identified and included in the repatriation. In some instances, the father has abandoned the family for another woman or left to seek work in another part of the country. In other cases the father has been a Bangladeshi citizen. Unable to locate the father, the family is stranded in Bangladesh. In some rare exceptions, the Burmese government has accepted an incomplete family but has stated that the missing member would never again have the right to return to Burma.⁸⁰

In late July 1999, the Burmese Foreign Minister, Win Aung, visited Dhaka to meet with his Bangladeshi counterpart and the Prime Minister. The priority of the Bangladeshi government was to secure a commitment from Win Aung on the expedient return of the remaining Rohingya but to the consternation of the Bangladeshi government, Win Aung made no substantive promises on the repatriation.⁸¹ Apparently to show its displeasure at this, the Bangladesh government told the Burmese commerce minister to postpone a planned visit to the country.⁸² The bilateral agreement of December 1999 to lift the ceiling on the number of weekly repatriations, however, has been to the satisfaction of the Bangladeshi authorities. The move has reportedly led to camp officials pressuring refugees to return and UNHCR has already intervened in a number of cases in early 2000.⁸³

Protection and Prevention: The United Nations in Northern Arakan

Though repatriation continues, the concurrent outflow of Rohingya calls into question the durability of return. In its General Conclusion on International Protection of 1994, UNHCR's Executive Committee stated that "for repatriation to be a sustainable and thus truly durable solution to refugee problems it is essential that the need for rehabilitation, reconstruction, and national reconciliation be addressed in a comprehensive and effective manner." UNHCR pursues reintegration of returnees through three activities: peace-plan operations, human rights protection and advocating the rule of law, and economic and social reintegration.⁸⁴ These activities are fundamental if the Rohingya community is to be solidly anchored in Burma. In order for voluntary repatriation to be sustainable, U.N. agencies must pursue effective protection and development activities in northern Arakan.

UNHCR and other U.N. agencies have a potentially positive role to play in northern Arakan. UNHCR must continue to seek to intervene with the Burmese government and offer genuine protection through actively pursuing an end to forced labor and remedying the problem of Rohingya legal status as root causes of abuse and displacement. In an effort to promote sustainable human development and attack the roots of poverty, other U.N. agencies active in northern Arakan should cooperate in achieving this objective.

UNHCR has attempted to engage the Burmese government in a dialogue on outstanding protection issues including the problems of citizenship, forced labor, freedom of movement, and arbitrary taxation. The agency has submitted recommendations and offered technical assistance but the failure of the SPDC to respond positively reveals a distinct lack of political will in Rangoon to address the problems.

On an organizational level, the number of UNHCR staff in northern Arakan was insufficient to pursue a proper protection role. Before 1997, UNHCR had no staff assigned specifically to protection monitoring responsibilities. In mid-1997, the agency set up a team of four officers headed by a senior legal officer for protection monitoring which improved their capacity to intervene on behalf of the 230,000 returnees. Around one dozen other UNHCR international staff and a group of local employees also monitor developments in tandem with their other duties, such as administering quick impact reintegration projects. Any further downsizing of the UNHCR program in Arakan is likely to put the refugees at risk as the agency's presence and intervention does, in some instances, deter violations by the Burmese authorities. As of April 2000, whether UNHCR will retain any protection role remained unclear, but the organization stated that it intended to maintain at least three staff who would carry out protection monitoring. As UNHCR staff terms expired, however, the Burmese government was blocking the appointment of new staff by refusing to issue visas. UNHCR plans by 2001 to transfer its assistance duties to the UN Integrated Programme (UN-IP), whose list of participants includes all the U.N. development agencies working in the country and which is headed by the country representative of the United Nations Development Programme (UNDP) in his capacity as resident coordinator. The UN-IP will focus on the development and stabilization of the population of northern Arakan.

As a member of the UN-IP, UNDP has a potential role in addressing some of the long-term human rights issues in northern Arakan as they pertain to development. Traditionally, the UNDP mandate has not included any protection monitoring role beyond keeping tabs on its own specific projects but in recent agreements with the Office of the UN High Commissioner for Human Rights, UNDP has sought to integrate human rights and sustainable development into its work.⁸⁵ In its policy paper "Integrating Human Rights with Sustainable Human Development," UNDP has incorporated civil, political, economic, social, and cultural rights into its definition of the right to development. The paper points to poor governance and poverty as two of the principal culprits in the denial of rights and clearly states the organization's determination to combat both. A report prepared in Burma by the U.N. Working Group there draws attention to the country's numerous obstacles to sustainable development. In one section, the report addresses the insecurity of the Rohingya in northern Arakan and their marginalized position due to their legal status.⁸⁶ If UNDP maintains an organizational position that poverty constitutes a deprivation of basic rights and if in Burma insecure legal status results in poverty, low levels of education, and lack of opportunities in society, then seeking solutions to the condition of the Rohingya in northern Arakan falls directly within the purview of UNDP. Nevertheless, UNDP does not have a specific protection mandate nor does it have the institutional capacity to tackle the contentious protection issues of northern Arakan.⁸⁷ UNDP and other agencies could, however, seek to support existing UNHCR initiatives on the issue of citizenship. It is unclear whether, as the UN-IP proposal stands, UNHCR will maintain any presence in Arakan after the initiation of the UN-IP. UNHCR, with its clear mandate for protection of refugees and returnees, should have an explicit role in the immediate future of U.N. operations in Arakan.

Local Integration

Local integration involves the long-term, or permanent settlement of refugees in the country of first asylum. The success of local integration depends on several factors. These include first and foremost the willingness of the refugees to settle locally; second, the receptiveness and commitment of the host country and local population towards the integration of refugee populations; third, access to livelihoods and means for economic survival; and fourth, and finally, opportunities for refugees to acquire citizenship and achieve full integration into the host society.⁸⁸ The international community can also share responsibility by providing financial assistance to the host government, local communities, and to the refugees to assist in their integration into the host society.

In Bangladesh, the government is acutely aware of local sensitivities surrounding land allocation and population pressure and has unequivocally rejected all recommendations of local integration. The most densely populated country on earth, Bangladesh has a population of 127 million people and a landmass of approximately 84,000 square miles, much of which seasonal floods annually inundate. In its statement to the 1999 UNHCR Executive Committee meeting, the Bangladeshi delegation said:

The long presence of Myanmar refugees in Bangladesh has not been without cost to our already fragile socio-economic structure. The strains on local government, the infrastructure and on the local population have been heavy. It has therefore been our endeavor to ensure their voluntary repatriation to their homeland in safety and dignity, within the shortest period of time...We believe that each and every refugee has a right to return home. To this score, we would urge the Government of Myanmar to intensify their efforts in ensuring their early return.⁸⁹

The official position of the government is that it will not entertain any notion of local integration. The reality is that Bangladeshi society has allowed for integration for decades, if not centuries. Because of ethnic affinities, a porous border, and a common history Rohingya have been integrated into Chittagonian society. As is revealed by the large undocumented caseload, the Rohingya have been able to make their way into the economy and, in some instances, play a role in the local community. The government apparently fears that institutionalizing what is already happening on the ground would attract still more Rohingya, serving as an additional "pull" factor.

Despite the Bangladeshi government's reservation, local integration might be a feasible solution if international donors and the U.N. commit to providing assistance. Sharing the financial burden of integrating the Rohingya into the broader society is one option. Local integration, as is the case with all durable solutions, must be voluntary. Rohingya who choose local integration should have the option of becoming Bangladeshi citizens but until that time should enjoy all the rights and protection associated with citizenship.

Temporary residence, through which the Rohingya could pursue a more normal life in Bangladesh until an improvement in the situation in Burma could facilitate return, is a less ideal option but one that could achieve some of the basic objectives of full local integration. If the remaining Rohingya refugees received temporary residence, they could seek legal employment and enroll in education - opportunities they have been unable to enjoy since their arrival in the camps - as well as enjoy the legal protections available to other foreign visitors.

Resettlement

Resettlement is the transfer of a refugee from the country of first asylum to a third country which has agreed to provide the refugee with protection.⁹⁰ Resettlement was most widely used as a solution to refugee outflows during the 1980s when some 700,000 Vietnamese refugees were resettled, in mainly industrialized countries.⁹¹ Resettlement is an appropriate protection strategy for refugees whose safety and security cannot be secured in the country of first asylum or who have special humanitarian needs which cannot be met in the country of first asylum. It is also an appropriate durable solution for those who are unable or unwilling to return to their own country or to locally integrate in their country of asylum.⁹² Resettlement is also a mechanism whereby wealthier countries can share the responsibility for the global refugee problem.⁹³

Until now there has been little resettlement of Rohingya from Bangladesh. Of the 22,000 refugees remaining in the camps in Bangladesh, at least some 7,000 have at one time expressed a willingness to repatriate to Burma. Durable solutions must therefore be sought for the remaining 15,000 Rohingya, many of whom have spent nearly a decade languishing in the camps. Third country resettlement may be an option for some of these people, especially those who can not return to Burma due to fear of persecution. Governments should consider resettlement options for Rohingya refugees who are unable or unwilling to return to Burma or to stay in Bangladesh. This would also be an effective way in which the international community could share responsibility for the Rohingya refugee crisis.

Human Rights Watch

Asia Division

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74 UNHCR, Handbook on Voluntary Repatriation: International Protection, (Geneva: UNHCR) 1996, p. 10.

75 See MSF-France and MSF-Holland, "MSF's Concerns on the Repatriation of Rohingya Refugees from Bangladesh," May 1, 1994; and MSF-France and MSF-Holland, "Awareness Survey: Rohingya Refugee Camps, Cox's Bazar District, Bangladesh," March 15, 1995.

76 Burma has not ratified the International Covenant on Civil and Political Rights.

77 Human Rights Watch discussion with UNHCR Country Office, Dhaka, August 13, 1999.

78 Discussion with the Refugee, Relief and Repatriation Commissioner's Office, Cox's Bazar, August..., 1999. The names of all of the approximately 7000 persons whom the Burmese had cleared in 1997 have been sent to the Burmese side. This leaves some 15,000 whose names have never been submitted.

79 Human Rights Watch discussion with humanitarian relief agency's medical personnel, Cox's Bazar, August 9, 1999.

80 The most recent stipulation, initiated in November 1999, requires that the Burmese government screen all returnees to verify voluntariness. When the Rohingya reach the Burmese bank of the Naf River, officials interview each person to insure they have returned willingly, allowing for an opportunity to return to Bangladesh. There have been no cases of Rohingya reporting involuntary return to the Burmese officials since this policy began.

81 "All Rohingyas must go back," New Nation, July 21, 1999.

82 M. Anwarul Haq, "Bangladesh stalls visit of Myanmar minister: Non-committal attitude on Rohingyas," Daily Star, July 22, 1999.

83 Human Rights Watch correspondence with development worker, February 14, 2000.

84 See UNHCR, The State of the World's Refugees: A Humanitarian Agenda, (London and New York: Oxford University Press) 1997, pp. 168-169, 172-174.

85 See United Nations Development Programme, Integrating Human Rights with Sustainable Human Development: A UNDP Policy Document, (New York: UNDP) January 1998.

86 United Nations Working Group, Human Development in Myanmar, (Yangon: UN Working Group) July 1998

p. 12.

87 For an assessment of UNDP's protection monitoring capacity see Human Rights Watch, Failing the Internally Displaced: The UNDP Displaced Persons Program in Kenya, (New York), 1997.

88 UNHCR, The State of the World's Refugees, 1997, pp. 92-93, 96-97.

89 Statement of the Bangladeshi representative to the UNHCR Executive Committee, 1999.

90 UNHCR, Resettlement Handbook, (Geneva: UNHCR, Division of International Protection), July 1997, p. 2.

91 For a history of the asylum and resettlement of Indochinese refugees see W. Courtland Robinson, Terms of Refuge: The Indochinese Exodus and the International Response, (London and New York, Zed Books, Ltd.) 1998.

92 UNHCR, The State of the World's Refugees: A Humanitarian Agenda, (London and New York: Oxford University Press) 1997, pp. 86, 88-89.

93 Ibid., p. 89.