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Savitri Taylor

The international community is set on repatriating rather than resettling Rohingya refugees, but, against the backdrop of history, the challenge is ensuring it is safe, sustainable and freely chosen.

At the end of 2019, the world’s fifth-largest source country for refugees was Myanmar. The vast majority of these 1.1 million refugees were stateless Rohingya. There were 854,704 Rohingya living in Bangladesh, the majority of whom had fled there in the latter part of 2017. There were also displaced Rohingya living in Malaysia (almost 100,000), India (17,730), Indonesia (582) and Thailand (119). What these refugees need is a durable solution to their plight.

Theoretically, there are three possible durable solutions: local integration, third-country resettlement or voluntary repatriation. Of these, voluntary repatriation is usually said to be the preferred solution. Often it is framed in terms of the human right to return to one’s own country, which it is assumed all refugees wish to exercise. Whether or not this assumption is correct, it is certainly the case that voluntary repatriation is the solution preferred by the international community. This is especially so where there has been mass movement of refugees, as in the case of the Rohingya, because voluntary repatriation then is seen as being the only practical solution.

Considering themselves to be already overburdened by being forced to provide temporary refuge, none of the host countries has been prepared to locally integrate Rohingya refugees or indeed any other refugees. They are even less prepared to do so now that the COVID-19 pandemic has compounded their domestic problems. As for third-country resettlement, the number of places on offer worldwide has long fallen far short of need. The situation worsened when the United States under the Trump administration decided to curtail its refugee resettlement program drastically and has worsened again as a result of COVID-19-related border control measures being taken around the world. Moreover, host countries regard third-country resettlement as a double-edged sword. Their fear is that hope of such resettlement may attract far more refugees to their territory than are ever actually resettled. For example, in 2010, this fear caused Bangladesh to shut down a program under which 920 Rohingya were resettled in developed countries between 2006 and 2010. Although some Rohingya in Bangladesh still hold out hope that third-country resettlement will resume, there is no indication that the government has changed its position on the matter. With local integration and resettlement ruled out, the only option remaining is voluntary repatriation. 

Repatriation of refugees must be voluntary because forced repatriation of persons with that status would violate the customary international law prohibition on refoulement (i.e. deportation to a place of persecution).1  In its Handbook for Repatriation and Reintegration Activities, the Office of the United Nations High Commissioner for Refugees (UNHCR) defines voluntary repatriation as ‘the free and voluntary return to one’s country of origin in safety and dignity’. The Handbook also emphasises that, in order to qualify as a durable solution, repatriation must be sustainable. Host states pay lip service to these principles but are not particularly concerned to uphold them. Unfortunately, UNHCR, which is wary of jeopardising its relationships with States, does not always match its practice to its rhetoric either. The Rohingya are aware of these realities from painful past experience. In 1977, the Myanmar military caused about 200,000 Rohingya to flee to Bangladesh. By the end of 1979, most of them had repatriated.2 In 1992, about 260,000 Rohingya fled to Bangladesh to escape persecution.3 Within a few years, almost all had been repatriated. In the first instance, UNHCR was a silent observer of the Bangladesh government’s repatriation program; in the second instance, UNHCR was, from 1994, an active participant in the government’s repatriation program.4 In neither instance was repatriation freely chosen, safe, dignified or sustainable. Against this background, the remainder of this article takes a close look at repatriation efforts in relation to the displaced Rohingya currently being hosted by Bangladesh.

On 23 November 2017, the governments of Bangladesh and Myanmar signed a Memorandum of Understanding (MoU) on repatriation of the Rohingya and set up a Joint Working Group to negotiate the details.5 Myanmar has agreed to permit repatriation of ‘verified displaced persons’ pursuant to this bilateral arrangement. Bangladesh has been providing Myanmar with detailed information about the Rohingya refugees it is hosting for the purposes of verification. In 2018 and 2019, Bangladesh handed over details of about 106,000 Rohingya to Myanmar. In March 2020 it handed over the details of a further 492,000 Rohingya, at the same time complaining that Myanmar had so far ‘verified a very insignificant number’.

The MoU between Bangladesh and Myanmar contemplated the involvement of UNHCR and other UN agencies in the process.6 On 13 April 2018, UNHCR and the Bangladesh government signed an MoU setting out the terms on which they would cooperate to achieve voluntary return of Rohingya to Myanmar. Further, on 6 June 2018, UNHCR, the United Nations Development Programme (UNDP) and the Myanmar government signed a 12-month MOU setting out the terms on which they would cooperate to achieve the same end. On 27 May 2019, the June 2018 MoU was extended for a period of a year, and on 11 May 2020 it was extended again, to June 2021.

The MoU between UNHCR, UNDP and Myanmar places overall responsibility for the safety, reception and reintegration of returnees on the Myanmar government. Apparently, Myanmar has been building Reception and Transit Centres for returnees and also identifying possible places for them to live on an ongoing basis.7 The MoU also promises UNHCR and UNDP access to Rakhine State to enable UNHCR to discharge its protection mandate and both agencies to conduct needs assessments and implement development projects to support returnees and their local communities. However, UNHCR has since indicated that, in practice, the access given to the UN agencies has not been sufficiently predictable or effective. As at 10 March 2020, they had only managed to conduct needs assessments in about 10 per cent of villages in the northern region of Rakhine State and were implementing development projects in only about one-third of these.

At the time of entering into both the April 2018 MoU and the June 2018 MoU, UNHCR emphasised that the conditions in Myanmar were not yet conducive to safe, dignified and sustainable return because the root causes of displacement remained unaddressed by the country’s government. The June 2018 MoU contains a commitment by the Myanmar government to implement the recommendations of the Advisory Commission on Rakhine State - i.e. to address the root causes of displacement by giving freedom of movement and other basic rights to the Rohingya as well as a clear pathway to citizenship. However, words are not actions, so the Bangladesh government’s decision to attempt repatriation in mid-November 2018 was, to say the least, premature. At that time, at the request of the Bangladesh government, UNHCR assessed the voluntary return intentions of 2,000 refugees who had been approved for return by Myanmar. It found that none of those assessed was willing to return and reiterated its view that conducive conditions for return were absent.8 To its credit, Bangladesh did not proceed with repatriation.

In late July 2019, a Myanmar government delegation visited Cox’s Bazar and held confidence-building discussions with the refugees living there. The following month, UNHCR was asked by the Bangladesh government to assess the voluntary-return intentions of 3,450 refugees who had been approved for return by Myanmar. Once again UNHCR found that the refugees assessed were unwilling to return, and once again Bangladesh did not proceed with repatriation, although it had already put in place the logistics for doing so. The continued reluctance of refugees to return was unsurprising. In September 2019, the Independent International Fact-Finding Mission on Myanmar reported to the UN Human Rights Council that the root causes of Rohingya displacement, in particular the ‘genocidal intent’ of the Myanmar government remained unabated and it was, therefore, ‘unsafe, inhumane, unsustainable and impossible for Rohingya to return’.9  

The situation in Myanmar has got worse rather than better since the Fact-Finding Mission’s report was written. So far, UNHCR has held the line in asserting that conditions are not conducive to voluntary repatriation. So far, the Bangladesh government has not demurred from the proposition that repatriation must be voluntary. So far, we can continue to hope that both actors have learned from past mistakes and will not repeat them.

 

Dr Savitri Taylor is an Associate Professor in the Law School at La Trobe University in Australia. She has been researching and publishing on Australian, Asia-Pacific and international refugee law, policy and practice for almost 30 years.

 

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Endnotes
The Kaldor Centre plays a vital role in developing legal, sustainable and humane solutions for displaced people around the world.