Aman and Hamsa Vijayaraghavan, Migration & Asylum Project (M.A.P), New Delhi, India

In October 2018, in the first instance of its kind, the Supreme Court of India endorsed the Government’s move to return seven Rohingya men back to conflict-ridden Rakhine State in Myanmar. These men, arrested on charges of illegal entry while attempting to cross the border in 2012, had been in detention for over six years, without access to the UN Refugee Agency (UNHCR), human rights organisations, or lawyers. Having completed their three month-sentence under the Foreigners’ Act, 1946, the men had been moved to a detention centre, where they languished for six years until 2018, when Indian State officials claimed that they had expressed the desire to return to their families. When the news surfaced that the Government was planning to send them back, an urgent application was filed in the Supreme Court seeking a stay on their deportation. In dismissing that application, the Court relied primarily on the government’s contention that the men in question had consented to being returned to Myanmar. Given that the treatment of the Rohingyas in Myanmar has been found, by the UN Fact-Finding Mission, to be “similar in nature, gravity and scope to those that have allowed for genocidal intent to be established in other contexts” besides the determinations of other heinous abuses of human rights and humanitarian law –  this order raised very serious concerns.

Notably, in this context, the Supreme Court’s order was premised on the government’s contention that the Rohingya men had consented to being repatriated. Leaving aside the issue that such consent had not been satisfactorily established before the Court, the question arises as to whether consent obtained in this manner is genuine and can permit the State to encourage and facilitate return. Under international refugee law, the standard of return is linked more to the principle of non-refoulement than anything else and it is important to assess if such returns violate this principle.

In this piece, the authors aim to elaborate on the need to assess the voluntariness of such returns, in the absence of which they may violate the principle of non-refoulement.

Forced repatriation and refoulement

The 1951 UN Refugee Convention does not provide for forced repatriation in any circumstance. In fact, refugees are by definition “unrepatriable” and, consequently, all refugees benefit from the prohibition of forced  return. Even in a situation where the circumstances in connection with which one had been recognized as a refugee have ceased to exist, no one can be forcibly repatriated given that refugee status and cessation are declaratory, rather than being constitutive of rights. As a result,  refugees can be repatriated only if they choose so; and they are the main actors in the contemporary practice of voluntary repatriation.

However, in cases of unresolved conflicts (like that in Rakhine State), host nations sometimes promote return or “encourage” refugees to repatriate citing improvement in the situation of the country of origin, although these may really only be superficial changes. This may include passive measures such as cutting assistance to refugees in the host countries; however, it may also take the form of more active forms of coercion, such as, in this case, detention. In this situation, the return crosses the line from voluntary to forced. In fact, the Special Rapporteur on the situation of Myanmar, Yanghee Lee, has called other efforts for repatriation of refugees to Myanmar as “extremely premature”. Therefore, it is paramount to ascertain the genuine and informed consent of the refugee. Doing otherwise would raise serious questions; and as Chimni warns – “to replace the principle of voluntary repatriation by safe return, and to substitute the judgement of States and institutions for that of the refugees, is to create space for repatriation under duress, and may be tantamount to violating the principle of non- refoulement.”

Genuine consent and its examination

To be truly voluntary, consent to repatriation must be informed. UNHCR recognises the assessment of such voluntariness as an “overriding priority” and points out that a large proportion of the world’s recent returnees have repatriated under some form of duress. This is often marked by the lack of information-sharing with refugees. Frank Ahimbisibwe  highlights what may have been once called voluntary repatriations of Rwandan refugees were later shown to be based on lack of data-dissemination to refugees. Similarly, Mollie Gerver highlights serious issues about consent and return conditions especially in cases where refugees are detained (like in the case of the Rohingyas here), or denied basic rights of residency, or put into enclosed camps in the asylum countries. When a refugee is detained, her choices are far from voluntary especially because detained/encamped refugees cannot always be aware of the risks of returning. Gerver also warns that governments tend to detain more refugees if they succeed in repatriating some, trying to build on how the past detainees were persuaded to return.

The UNHCR’s Handbook on Voluntary Repatriation also dictates that the person must be informed of the conditions in the country of origin so that a decision to repatriate is an informed one. It specifically highlights how a) “voluntariness” should include the absence of measures that push the refugee to repatriate; that there should be no physical, psychological or material pressure on the person; and b) the legal status of the person in the country of asylum must be scrutinised while evaluating the nature of a person’s consent to repatriate (for example, a refugee with no rights in the host nation is more likely to repatriate). Suffice it to say, it should be shown “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”.

In this regard, the Executive Committee of the UNHCR has also recognized the importance of refugees being provided with the necessary information regarding conditions in their country of origin in order to facilitate their decision to repatriate. Additionally, it emphasised the need for ensuring that the terms of guarantees provided by countries of origin and relevant information regarding conditions prevailing there are duly communicated to the refugees before they decide to repatriate.

Sri Lankan reparation process in India

In light of the discussions, a good example is  the repatriation of Sri Lankan Tamils – one of the significant movements that occurred in India pursuant to the 1987 Indo-Lanka Accord. While the text of the agreement did not provide any safeguard with respect to ensuring that such repatriation is voluntary, owing to the importance accorded to the ‘consent’ of refugees in their repatriation, the implementation of this agreement was undertaken in a manner so as to ensure that the refugees were in a position to make an informed choice and the repatriations were voluntary in nature. Thus, pursuant to international negotiations, the Indian government allowed the UNHCR in Tamil Nadu to monitor the voluntary nature of refugee returns. The UNHCR could interview refugees in transit centres or at the point of departure; and a large majority responded positively about the policy. Even state organs – like the judiciary – expressed unwillingness to let any Sri Lankan refugee to be forced to return against their will.  It is also notable that on three occasions in 1989, 1992 and 1996, owing to armed conflict, political violence, general insecurity etc., the repatriation process was also suspended.

Conclusion

Based on the discussion above, it is amply clear that the return of Rohingya refugees is not an instance of a “voluntary” one. No attempt was made to assess the validity of the consent and there is a high indication of its having been induced through duress – owing to a lack of information, the lack of legal status of refugees in India, the government policy towards Rohingyas, and the protracted detention the men had been subjected to. Given the conditions in Rakhine state, it is safe to say that the said return was tantamount to refoulement.

A broader concern, however, is how this may become a precedent for subsequent returns – thereby ignoring the value of consent and the legal requirement to assess the voluntariness of repatriation. This becomes all the more important as the most recent refugee instrument – the Global Compact on Refugees (“GCR”) – allows its signatories the argument that “voluntary repatriation is not necessarily conditioned on the accomplishment of political solutions in the country of origin” (para 87 of the GCR). Such a permissive provision in the GCR would mean to “accept the dilution of the principle of non-refoulement ” where states may start promoting, facilitating returns under duress.  To imply that return is the only option, and that those choosing to remain would face a worse situation, is wholly inimical to giving the refugee a choice.