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Rohingya Repatriation and the Problem of Consent

By Mollie Gerver

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Between 1991 and 1992, approximately 250,000 Rohingya refugees fled violence, persecution, and forced labour in Myanmar. They crossed into Bangladesh where they were protected from deportation, but eventually forced into enclosed camps without sufficient food and education. To escape these conditions most returned to Myanmar, their return arranged by the United Nations High Commissioner for Refugees (UNHCR).

At the time, UNHCR faced criticism for making return possible: not only was return often unsafe, but it was clearly involuntary, given that life in Bangladesh had become unbearable. If Rohingya refugees’ choices were involuntary, they could not give UNCHR their valid consent to return, and so UNHCR had committed a wrong. But UNHCR could have provided a defence: if life really was unbearable in Bangladesh, it seemed better to help with return than provide no help at all.

Twenty-seven years later, UNHCR faces the same scenario after roughly 700,000 Rohingya have fled persecution in Myanmar, obtaining protection in Bangladesh but finding themselves forced into enclosed camps with inadequate nutrition and education. UNHCR has yet to offer transport home – this is paid for by the Bangladeshi government itself – but it offered special short trips for refugees wishing to see what life is like in Myanmar before making a final decision. Eventually UNHCR may take a more active role in arranging final repatriation. It is not clear it should: if it does, it will have failed to obtain refugees’ voluntary consent to an unsafe return; but if it does not, then refugees will remain without rights in Bangladesh.

UNHCR has faced similar ethical dilemmas throughout the last three decades. In the 1980s it helped with return from Djibouti to Ethiopia, when many refugees felt compelled to return after food aid was discontinued. In the early 2000s it helped with return from Pakistan to Afghanistan, when many refugees felt compelled to return to avoid imprisonment by Pakistani authorities. In the 2010s it helped with return from Kenya to Somalia, when many refugees felt compelled to return to avoid potential deportation by Kenyan authorities. Non-governmental organisations (NGOs) often find themselves similarly helping with involuntary return. For example, in my own research amongst 126 refugees returning from Israel to South Sudan, over 20% returned with the help of a private NGO. One former refugee I interviewed in Juba told me that she returned partly because:

every day started with a mess. You go outside and they tell you, “Go back to your country! Why are you here? Your country has money! Go home!” In June [the Israeli government] took my husband’s visa and said, “We will not give you a new visa.” We were left without work for two months. I said, “What? What will I do . . .?” So I thought, “I will say thank you to God that we are healthy and go back.”

Perhaps Venessa should not have been assisted with her return, given that she was essentially coerced into her decision by the lack of a work visa and likely imprisonment later on. But perhaps it was better that Vanessa had the option of returning rather than no option at all.

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To consider what UNHCR and NGOs ought to do, we must address a pressing question: can refugees give their valid consent to return when faced with coercion by the government?

When I use the word ‘valid consent’ I mean a person giving permission to do what is normally obligatory to avoid. For example, if a patient gives valid consent to surgery, she gives permission to the surgeon to insert a scalpel into her body, an act that the surgeon is obligated to avoid in the absence of consent. Valid consent may very well be valid even if there are only injurious alternatives. The patient is capable of giving valid consent to life-saving surgery, even though the alternative to surgery is death.

As such, we might claim that cases of “third party coercion” are also cases of valid consent. Imagine that Abbey threatens to shoot Babu if he does not buy Cathy’s watch. Cathy sells Babu her watch because she does not want him shot by Abbey. Babu’s consent seems valid for Cathy, in that his consent makes it permissible for Cathy trade her watch for his money. Of course, Cathy would have an obligation to later give back the money to Babu once the threat has subsided, but Cathy has not wronged Babu at the time of the transaction and if she cannot later undo the transaction, then she has not wronged Babu even though his consent was under duress. One could similarly argue that refugees’ consent is valid for UNHCR, even if it is not valid for the government which coerces them to leave.

However, according to some theories, consent would be invalid for Cathy if she could easily persuade Abbey to put her gun down. Cathy should do this, instead of selling her watch. In other words, Cathy’s duty is to get Abbey to stop threatening Babu, and therefore Babu’s consent is not valid for Cathy. This approach is consistent with the Good Samaritan principle, which holds that agents should help those in great need if they easily can. If there is nothing that Cathy can do, then Babu’s consent is perfectly valid for her, but not if she can easily stop Abbey’s violent threat.

With repatriation to dangerous countries, we may ask if UNHCR can easily raise money for basic necessities and legal aid to avoid coercive conditions. If it instead raises money for repatriation, then it fails to honour the Good Samaritan principle. Moreover, UNHCR may have costlier duties besides those arising from the Good Samaritan principle. UNHCR was created to protect vulnerable refugees, and so should be held to a higher standard in protecting these refugees. It may be morally required to lobby for policy changes, provide legal aid, and raise money for necessities. Demanding costly duties from Cathy, by contrast, could infringe on her right to a personal life. While UNHCR staff also have a personal life, they have voluntarily agreed to allocate an insulated portion of their lives to the goals of the organization, so their personal lives are not infringed.
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There may be situations where UNHCR and organisations do work hard to end coercive conditions, but fail to create significant change. In such cases, assisting with return may be legitimate. Perhaps this is the case in Bangladesh today, where UNHCR has been expanding its efforts to improve conditions, delivering food and petroleum to an expected 500,000 refugees, and constructing engineering works to prevent life-threatening mud slides during the monsoon season. If UNHCR is genuinely doing the most it can to improve conditions, and refugees still lack sufficiently good conditions to ensure their return is voluntary, assisting with their return may still be acceptable as a last-resort.

This conclusion is predicated on the assumption that helping with repatriation does not itself cause governments to force even more refugees into camps or destitution. For example, when UNHCR began facilitating return for Rohingya refugees in the 1990s, the Bangladeshi government increased the number of refugees forced into camps to encourage more to return, seeing that return was now easier as a result of UNHCR. It is possible that, if UNHCR today provides further resources for repatriation, the Bangladeshi government will further limit the mobility of refugees as a result. If refugees will only repatriate to avoid living in camps, and they can avoid living in camps if UNHCR refrains from helping with repatriation, then UNHCR ought to refrain from helping with repatriation.

Cases become more complicated when multiple agents are providing repatriation assistance. For example, the Bangladeshi government today offers its own repatriation services, and so even if it forces refugees into camps to encourage them to return, refugees are not dependent on UNHCR for returning. It is therefore unlikely that UNHCR would be the sole cause of the government’s coercive practices.

In such cases, UNHCR may still be acting wrongly according to other criteria. Sometimes, a person acts wrongly by influencing an event, even if their actions were not necessary for the general event to occur. For an example of such a phenomenon, imagine there is an assassin, and she pulls her trigger, leading the bullet to shoot out of her barrel into the heart of a victim, unjustly killing him on the spot. She also has a thousand backup assassins, who are all working independently from her, and who would have killed the victim had she not killed him first. As such, she was not necessary for his death, or even almost necessary for his death. She still causally contributed to his death if she influenced the particular way the death transpired. This would be the case if, in a world without her, the bullet would have flown in a slightly different direction, piercing the victim’s heart in a different place, while in a world without other assassins, her bullet would have still flown in the same direction as it really did, piercing the victim’s heart in the same way. She causally contributed to the event by being necessary for the way the event transpired, even though she was not necessary for the general event to occur. We might similarly claim, even if refugees will experience coerced return regardless of whether UNHCR is involved, UNHCR can still influence the particular coerced return that occurs.

In cases where we causally contribute to injustice by influencing an event, such causal influence may still be justified if the influence is significantly helpful for the victim. The assassin, for example, may know she can more accurately shoot the victim directly at the centre mass of his body, leading to a quicker death compared to the backup assassins. If the assassin is in no way responsible for the presence of other assassins, and is shooting the victim only to reduce suffering, pulling the trigger may be morally justified. In a similar manner, UNHCR can justifiably help with repatriation in cases where, though the help influences the general coercion which occurs, it can also ensure a much safer return than would otherwise take place. In the case of Rohingya refugees in Bangladesh, perhaps UNHCR can ensure a much safer return than if refugees return via the government program. It remains the case that, if UNHCR cannot improve safety, it should avoid helping with return.

 

Disclaimer: Any views or opinions expressed on The Ethical War Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations. 

Published 30th November 2018

Mollie Gerver

Lecturer in Political Theory, University of Essex

Dr. Mollie Gerver is a Lecturer in Political Theory at the University of Essex, and the author of The Ethics and Practice of Refugee Repatriation (Edinburgh University Press).

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