The number of Burundian refugees returning from camps in western Tanzania increased markedly in May and June. Close to 5,000 from camps in Kibondo, Tanzania went back to Ruyigi and Makamba in the month of May alone, despite the continuing insecurity in those provinces.240Another 22,000 Burundian refugees returned from Tanzania in 2003 to northern Burundi, a region thought to be relatively safe until the past few months. At the same time, in the last year some 6,770 Burundian refugees have fled the continued conflict in Burundi to Tanzania, some 200 of them during May 2003.241 Altogether some 100,000 refugees returned as part of a “voluntary repatriation” program from March 2002 to November 2003, but another 500,000 reportedly remained in Tanzania.242
Although Burundian politicians hailed the returns as proof of the success of the transition to a Hutu presidency, returning refugees interviewed along the road all told a Human Rights Watch researcher that they left because conditions of life had gotten worse in Tanzania. They said that Tanzanian authorities had forbidden them to leave the camps, a measure that cut the supplementary income that many had earned by cultivating fields for local farmers or by trading in local markets. The United Nations High Commissioner for Refugees (UNHCR) confirmed that these restrictions were put in place by the Tanzanian authorities, ending opportunities for refugees to cultivate crops or engage in other activities to supplement their income within a four-mile radius of the camp.243 According to one refugee interviewed by a Human Rights Watch researcher, “Those of us who dared to go out anyway were killed by Tanzanian soldiers and women were raped.” 244The food ration was reduced by 50 percent in January 2003, although in May it was restored to about 72 percent of what it had been.245 This reduction may have resulted from real problems of food supply rather than from a political decision, but it nonetheless pushed more Burundians to think of going home.
In addition Tanzanian authorities reportedly held meetings in the camps to persuade people to leave. One father who had just walked a hundred miles in three days showed the swollen and injured feet of the young children who had accompanied him and said, “We were told that if we stayed, we would die.”246
When refugees return under such conditions of coercion, the returns are involuntary and constitute a violation of fundamental norms of international customary law. As UNHCR has stated, “[t]he principle of voluntariness is the cornerstone of international protection with respect to the return of refugees…it follows directly from the principle of non-refoulement247: the involuntary return of refugees would in practice amount to refoulement.”248 UNHCR has gone on to note that
At a meeting in Geneva in late June, where a Human Rights Watch representative was present, a Tanzanian government official admitted that Tanzania had violated its nonrefoulement obligations by forcing the Burundians to return in May and early June, 2003, but said that “corrective measures have been taken.”250
Despite the miserable condition of many of the returnees to Burundi, UNHCR provided them only with minimum humanitarian assistance, not with the full package of assistance that would help them through the first three months. Conditions in Ruyigi and other southern provinces were too insecure, they said, to justify an assisted repatriation, with the more extensive assistance that would trigger. They described the current wave of returns as “spontaneous repatriation,” an accurate description in that the returns were not part of an “organized repatriation” by UNHCR.251 But in the eyes of the returnees, they are coming back because they have no choice. UNHCR fears that providing a full package assistance would attract further returnees to areas currently too unstable to assure satisfactory reintegration, which is an understandable concern. At the same time, UNHCR itself has noted that its
The National Commission for Rehabilitation of Victims of War (Commission Nationale de Réhabilitation des Sinistrés, CNRS), provided for in the Arusha Accords, is supposed to take charge of reintegrating returnees. Originally conceived of as an autonomous agency with decision-making powers, it was later subordinate to the Ministry of Reintegration, a measure that is likely to hinder its efficient functioning.253
The Pretoria Protocols of October and November 2003 may spur new, large-scale returns of refugees. Those who come, like those who have already returned, will find a country sunk in poverty and troubled by continuing insecurity. Most exhaust their meager food rations even before arriving back in communities that may be too fragile to absorbthem. And the ultimate political and military problems that drove them to flee remain unresolved.
In a change in position apparently spurred by the signing of the Pretoria Protocols, the head of the UNHCR, Rudd Lubbers, called on November 7 for such a “massive repatriation” of Burundian refugees from Tanzania. The Burundian minister in charge of repatriation expressed the hope that UNHCR would now provide greater aid to facilitate this return.254 Should sufficient aid not be forthcoming, a large-scale return risks destabilizing the communities that will be receiving the returnees.
240 Human Rights Watch interview, Ruyigi, June 16, 2003.
241 See UNHCR, Kibondo, “Returns to Burundi Rise Amid Fears of Pressure in Tanzanian Camps,” June 2, 2003.
242 “Malgré plusieurs mises en garde, le HCR considère que le moment est venu pour un rapatriement massif de réfugiés burundais,” Arib News, November 8, 2003.
243 UNHCR, “Burundi: UNHCR Concerned over Voluntariness of Returns from Tanzania,” Briefing Notes, June 3, 2003.
244 Human Rights Watch interviews, on the road between Nyabitare and Gisuru, at Gisuru, and at Nyabitare, June 16, 2003.
245 OCHA Mission Brief, Visit to Burundian cmps in Tanzania, June 6, 2003.
246 Human Rights Watch interview, on the road between Nyabitare and Gisuru, June 16, 2003.
247 Non-refoulement is the obligations of states not to return refugees to the frontiers of territories where their lives or freedom are under threat. International customary law is defined as the general and consistent practice of states followed by them out of a sense of legal obligation. That nonrefoulement is a norm of international customary law is well-established. See, e.g. Executive Committee (ExCom) Conclusion No. 17, Problems of Extradition Affecting Refugees, 1980; No. 25, General Conclusion on International Protection, 1982; Encyclopedia of Public International Law, Vol. 8, p. 456. UNHCR’s ExCom stated that nonrefoulement was acquiring the character of a peremptory norm of international law, that is, a legal standard from which states are not permitted to derogate and which can only be modified by a subsequent norm of general international law having the same character. See ExCom Conclusion No. 25, General Conclusion on International Protection, 1982.
248 UNHCR, Handbook on Voluntary Repatriation, 1996, p. 10. The Handbook states that voluntary returns require 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 or negative pull-factors, such as threats to property, in the home country.” Also, returns should “take place in conditions of safety, dignity and security.” This standard necessitates return “which takes place under conditions of legal safety. . .physical security. . .and material security. . . .[Returnees should be] treated with respect and full acceptance by their national authorities, including the full restoration of their rights.” Although the Handbook is not binding international law, it provides a set of guidelines derived from international law by which the behavior of UNHCR and governments during repatriation may be judged. It is also based on several ExCom Conclusions, such as ExCom Conclusion No. 18 (1980), ExCom Conclusion No. 40 (1985), ExCom Conclusion No. 74 (1994), which reflect international human rights norms as well as interpretations of the Refugee Convention.
249 UNHCR, Handbook on Voluntary Repatriation, p. 42 (emphasis in original).
250 Statement of the Government of Tanzania, UNHCR Standing Committee, Geneva, Switzerland, June 25, 2003 (notes on file with Human Rights Watch).
251 UNHCR Handbook on Voluntary Repatriation distinguishes between organized and spontaneous repatriation at p. 23.
252 UNHCR Repatriation Handbook, 1996, p. 23.
253 Protocol IV, Article 4 of the Arusha Accords ; Agence Burundaise de Presse, “Clarification des limites de la Commission nationale de rehabilitation des sinistrés,” June 26, 2003.
254 “Malgré plusieurs mises en garde, le HCR considère que le moment est venu pour un rapatriement massif de réfugiés burundais,” Arib News, November 8, 2003.