“Voluntary” Repatriation

Voluntary repatriation has been upheld as the ideal durable solution for refugees by the Executive Committee of the UN High Commissioner’s Programme (‘Ex Com’) and has its roots in efforts to prevent forced repatriation practices in the wake of the Second World War. The United Nations High Commissioner for Refugees (UNHCR) is mandated to assist states to facilitate durable solutions for refugees, which have been traditionally understood to be voluntary repatriation, local integration and resettlement to a third country. Voluntary repatriation is, however, not ideal for many refugees, especially not for women.

While refugees can return at any time of their own volition, this article focuses on the voluntary repatriation undertaken by the UNHCR or states, which is criticised for prioritising state interest over refugee protection. The interpretation of the law of voluntary repatriation by the UNHCR and states is problematic, as it is based on a ‘handful of legal norms…prone to concealing its complexity’. The gendered nature of war and eventual repatriation means, as Grabska’s research shows, ‘that women’s and men’s experiences in situations of displacement vary with regard to the contexts of their exile and the circumstances of their post-war emplacement’. The result for women is a return to danger and risk of repeated displacement, as highlighted by the situations of Afghan women repatriating from Pakistan or Rohingya women repatriating from Bangladesh to Myanmar.

Against this background, this piece argues that voluntary repatriation fails to recognise women’s experiences and their voices, and re-imagines it as a re-entry into a political community that includes their rights. Precisely, this blog uses feminist approach(es) to understand how voluntary repatriation in international refugee law fails to account for women’s experiences. There is no single feminist approach. In a leading article in the 1990s on feminist approaches to international law, Charlesworth, Chinkin and Wright recognise that  diversity of voices is not only valuable, but essential. Acknowledging the centrality of this diversity and self-reflection in undertaking the analysis, this article adopts Chinkin’s approach to describe how the structures, processes, and methodologies of international law marginalize women by failing to take account of their lives or experiences. It contributes to a broader feminist project in international refugee law that seeks to both destabilize and transform the law.

What is Voluntary Repatriation in International Refugee Law?

Voluntary repatriation is a durable, or permanent, solution to refuge. Article 1(1) of the 1950 Statute of the Office of the United Nations High Commissioner for Refugees (the ‘UNHCR Statute’) tasks the UNHCR with ‘seeking permanent solutions for the problem of refugees by assisting Governments […] to facilitate the voluntary repatriation of such refugees’. State parties to the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (together the ‘1951 Refugee Convention’) are required to cooperate with UNHCR in the exercise of its functions (1951 Refugee Convention, Article 35).

The UNHCR concludes legally binding tripartite agreements with countr(ies) of asylum and the host country governing voluntary repatriation. They set out the process and criteria for so-called “voluntary” repatriation and they provide for a return to the country of origin in the time between an individual’s recognition as a refugee in the asylum country and the cessation of this status. Cessation of refugee status applied in the context of voluntary repatriation in the country of asylum requires an assessment whether a fundamental, stable and durable change in the country of origin has taken place [Article 1C(5) and 1C(6) of the 1951 Refugee Convention].

Voluntary repatriation requires international cooperation of third states to offer alternative durable solutions, such as resettlement. The 1951 Refugee Convention recognises the need for international cooperation, as ‘the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation’ (preambular para 4). Although it has some legal force, it is debated whether this cooperation is voluntary or required. In practice, cooperative responses to refugee situations have entailed a choice of solutions. Without these choices, repatriation cannot be truly voluntary.

Beyond international refugee law, Goodwin-Gill and McAdam explain voluntary repatriation ‘squarely in a human rights context’. Voluntary repatriation invokes the right to return under international human rights law [Article 13(2) Universal Declaration of Human Rights].  The principles for return are voluntariness, safety and dignity. While the legal basis for voluntary repatriation may seem straightforward, it is mired with inconsistency and contradictions in its interpretation and practice.

Returning Women to Danger

Voluntary repatriation is often not voluntary for women, nor a permanent solution. It risks returning women to the harm they fled from or worse. “Voluntary” repatriations to Afghanistan and Myanmar illustrate this. Afghan women who were repatriated from Pakistan under an agreement between Pakistan, Afghanistan and UNHCR in 2016 were reportedly coerced by Pakistan to leave inter alia through raids on their homes violating their dignity and owing to fears for their children. Upon return to Afghanistan, women’s activists reported risk of death and increased danger.

Similarly, the return of Rohingya women to Myanmar from Bangladesh (following the 1977 and 1992 exodus respectively) was not voluntary. Women who returned endured institutionalised violence based on their gender as well as deteriorated legal status for them and their children. Following what the UN found to be a campaign of violence against women by the Myanmar military, many fled to Bangladesh in 2017 or risked their lives to flee by sea. Once again, controversial plans for their return from Bangladesh to Myanmar fail to address ongoing risks to women.

In practice, voluntary repatriation is governed more by politics than law in what Chimni describes as an exploitative international system. Its roots in preventing forced return seem like a distant memory. Long explains that ‘[i]nstead of confronting the national-liberal paradox at the heart of repatriation, states have tended to continue to promote refugee return using the language of liberal rights, despite being motivated by very illiberal national political concerns’. This results in the exclusion of women’s rights, as well as the rights of other marginalised groups, in practice.

Contradictions and Inconsistency

The understanding of voluntary repatriation in international refugee law literature and UNHCR guidance entails two main problems, which serve to obfuscate women’s experiences and effectively eliminate their voices.

The first problem is an inherent contradiction where states or the UNHCR undertake voluntary repatriation before refugee status ceases, since refugees are ex definitio unrepatriable persons. Such returns risk refoulement, i.e. the prohibition of return of an individual to persecution or serious harm [Article 33(1) of the 1951 Refugee Convention], since it fails to recognise the wide-ranging serious harm that women face on return. Systematic and institutional violence transcends any public-private divide, from domestic violence undertaken with impunity to targeting of LGBTIQ+ women by society and state.

Even where cessation precedes large-scale voluntary repatriation, it does not offer adequate protection for women. While the definition of a refugee has evolved since the 1990s to include women’s experiences of ‘gender-based persecution’ and intersecting grounds for this harm, the cessation of the refugee status has not. I have written elsewhere that the law of cessation of refugee status does not adequately incorporate women’s rights. Analysis of women’s experiences is critical to cessation because fundamental changes for men may not be changes at all for women. This is the case, for example, when ‘democratic transitions’ put into power warlords accused of sexual violence with ongoing impunity.

While voluntary repatriation by the UNHCR and states has a human rights dimension, it does not entail a comprehensive analysis of threats women face to prevent refoulement.  All Ex Com conclusions and UNHCR guidance on voluntary repatriation were reviewed for this piece, revealing that women’s rights are included but in a limited way. The criteria in ‘safety’ and ‘dignity’, for example, are interpreted to include particular rights of women – such as land, housing and property rights or physical safety. This falls short of requiring a comprehensive analysis of serious harm to women upon return.

The second problem is the process for undertaking voluntary repatriation, since it does not meaningfully include the participation of refugee women. Tripartite agreements are concluded without the involvement of refugee women, nor are refugee women generally included in the commissions established to implement these agreements. The absence of women means that gender harm is likely to be overlooked or misinterpreted in these agreements and their implementation. This failure perpetuates patriarchal experiences from which they may have fled or continue to experience.

The UNHCR Guidelines of 1996 require the participation of women at all stages of voluntary repatriation, including in peace negotiations or identifying risks, often aspirational rather than enforced. Women should be included in voluntary repatriation processes through ‘go and see’ visits or other information campaigns. They should sign a voluntary repatriation agreement independently from other family members, so that they can express ongoing protection concerns of a delicate nature, such as fear of harm for breaching cultural norms, which requires gender-sensitive procedures. The bar is high, as are the stakes of wrongful returns.

Transforming Voluntary Repatriation: A Feminist Approach

Voluntary repatriation is more than a physical return to a country. Long explains that  ‘[r]epatriation cannot be understood as a simple return ‘home’. Like all ‘solutions’ to displacement [caused] by rights-deprivation, repatriation is a political act which centres on ‘(re)admission of refugees to the national political community as citizens.’  One way such return to political community can be realised for women is through the inclusion of their experiences and voices using feminist approaches.

First, nuanced information about women’s experiences should be included in voluntary repatriation agreements and policies. These agreements should include reports on women’s rights from local women’s organisations or the UN, which regularly report on women, peace and security and women’s rights by theme and context. This information must be regularly updated by refugee women themselves, who can best articulate their concerns about voluntary repatriation that change over time. The inclusion of women’s rights in voluntary repatriation agreements is not enough.

Second, there must be an individual process for women to participate in voluntary repatriation decisions. Literature and the UNHCR’s guidance on durable solutions ignores the reality of diversity of refugee women, according to Yacob-Haliso. Their situations vary depending on past experiences of trauma, sexual and gender orientation, political activism and other factors. Where voluntary repatriation agreements are in place, there must be an individual process for women to express ongoing risk of harm and opposition to return. And, where there are ongoing protection needs, this individual process must be accompanied by secure legal status and choices of durable solutions for those who cannot return.  A re-imagined voluntary repatriation protects refugee women’s autonomy.

Third, silence of women in the voluntary repatriation process should not be read as complicity. Heathcote and Kula suggest abandoning the idealised white subject of legal feminism with a powerful manifesto for silence. From silence meaning emerges, including a political statement or a journey of sense-making. Where women have not been able to participate in an individual process of cessation or voluntary repatriation agreements, their silence cannot be implied by states and the UNHCR to assume agreement. Silence may be an expression of rejection to return.

Where states and the UNHCR undertake voluntary repatriation without including women’s experiences, they risk participating in a cycle of oppression from which women flee and continue to experience in displacement. Voluntary repatriation must not simply relocate the site of harm for women. Long argues that through repatriation, ‘refugees may rebuild their state-citizen relationship while also being involved in transnational or seasonal migration, or holding regional or dual citizenships’. A feminist approach balances women’s rights against state interests, promoting voluntariness and a permanent solution. It offers hope to improve voluntary repatriation not only for refugee women but for all refugees.

Acknowledgement: Thanks to Jane McAdam, Madeline Gleeson, Tristan Harley and Tara Gutman for reviewing earlier drafts. All mistakes are the author’s own.