The "R" word

From December 2010:

Amongst humanitarian aid folk working in complex emergency settings, one of the dirtiest words you can utter is 'refoulement'. Especially when pronounced with a haughty French accent. This term refers to the forcible return of refugees to their country of origin. It is not supposed to happen. Not just a bad idea, but against international law, actually.

The concept is articulated in the 1951 Convention Relating to the Status of Refugees (as well as the 1967 Protocol and the third article of the 1984 Torture Convention). Of course, international law being the effective tool that it is, it only applies to those countries that are party to the convention. The US is party to the 1967 Protocol, but not the Convention. Thailand is party to neither.

Which matters, because the fighting that started last month has not ceased, but is ranging up and down the border, sending refugees spilling across of ahead of it. Thailand has been sending those refugees back as quickly as possible. All the while aid groups have been protesting, because though the fighting may have temporarily paused, it has resumed again and again, leading many to charge that the refugees are returning to unsafe conditions. Today, for the first time, we have word that the Thai Authorities returned refugees where active fighting was still occurring.

Even without the presence of international legal repercussions, merely charging refoulement can often spur international response, and pressure on the alleged offendee. The problem with this, though, is that refoulement is a difficult thing to prove. It requires not only that the refugees are returning to unsafe conditions, but also that the return is forced. There is a body to deal with issues just such as this - UNHCR is the UN's Refugee Agency, and it is tasked with refugee protection. UNHCR is present and active in Thailand, but seems, this time, to be failing in its protection responsibilities.

UNHCR's mandate inherently interferes with its ability to operate as independently as possible - as a UN structure, it works with host governments, and must maintain their goodwill to stay in the country. Thus there is a conflict when a charge such as refoulement could anger a host country enough to prevent UNHCR from being able to do its work, this they are extremely careful about laying this charge.

I saw this in action at a recent meeting of INGOs working with refugees in Thailand. There was an extended discussion of the security situation along the border, and the limited access being granted to the refugees on the Thai side, as Thailand was trying to hurry them back as soon as possible. Numerous organizations reported speaking with people who didn't want to return because of safety concerns, but felt they did not have a choice. IRC called UNHCR out on their failure to fulfill its protection role. The IRC Deputy Director looked the UNHCR Country Director in the eyes, and asked him if he was willing to issue a statement confirming that refoulement had occurred (and indeed, continued to occur). The UNHCR Director dissembled, cited the difficulty proving refoulement, and refused to issue a statement.

If UNHCR cannot provide protection for refugees, to whom does this mandate fall? It will be a pertinent question on this border for some time to come.