■ Repatriation
The term repatriation refers to the return of refugees in their country of origin. It differs from other State practices regarding transfer of refugees present on their territory to other third States on the basis of bilateral agreement.
Being a refugee is meant to be a temporary condition, which ends when the situation in the country of origin has changed and the threat on the individual concerned has disappeared. In such cases, a refugee may decide to return or agree to be repatriated to its country of origin. Hence, the Statute of the United Nations High Commissioner for Refugees (UNHCR) entrusts it with the responsibility of “assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities” (Art. 8(c) of the UNHCR Statute, adopted by the United Nations General Assembly (UNGA) Resolution 428 [V] on 14 December 1950).
The 1969 Organization of African Unity (OAU, now called the African Union) Convention Governing the Specific Aspects of Refugee Problems in Africa also notes the importance of repatriation and emphasizes that it must be voluntary (Art. V (1) of OAU Convention on Refugees).
Repatriation of refugees occurs in different contexts:
•when the prevailing conditions have changed in the country they fled (since refugees flee their country to escape individual persecution, their status may be reexamined if the situation changes); •when the host State encourages repatriation if it can no longer afford the burden that the refugees represent. In such a situation, refugees may face various pressures to return to their country of origin.
To be lawful under international refugee law, repatriation of refugees must be voluntary, safe and carried out with dignity. It must always respect the mandatory principle of non-refoulement that prohibits sending people back to a place where their life and safety is in danger.
It is the UNHCR’s responsibility to guarantee that repatriations are lawful and performed on a voluntary basis.
☞ International refugee law has no provisions aimed at protecting individuals within their own country, since, by definition, refugees must have crossed an international border. If they remain in their own country, they are considered internally displaced persons, and their government is entirely responsible for them. Nevertheless, international human rights conventions and international humanitarian law (IHL) set certain limits to States’ sovereignty over their residents.
The 1951 Convention Relating to the Status of Refugees (known as the Refugee Convention) only gives the UNHCR a mandate to protect individuals who have crossed a border.
Hence, this mandate can only be exercised in the State of exile. The protection it provides stops at the border of the State of origin. This means that, in principle, refugees lose the UNHCR’s protection once they decide to return home.
With regard to repatriation, the only guarantee of protection for individuals is the fact that repatriation to their country of origin must be voluntary. The 1969 OAU Refugee Convention reaffirms and emphasizes this principle by stating that the “voluntary character of repatriation shall be respected in all cases and no refugee shall be repatriated against his will” (Article V(1) of OAU Convention on Refugees). Refugees must therefore be able to freely evaluate the appropriateness of a return.
I. THE UNHCR’S ROLE AND OBLIGATIONS IN REPATRIATION OPERATIONS
1. The UNHCR’s Mandate and Role
The UNHCR’s mandate in terms of repatriation can be summarized by the following actions:
•to monitor the voluntary character of refugees’ repatriation;
•to promote the creation of conditions that facilitate voluntary repatriation, done in safety and with dignity;
•to encourage the voluntary repatriation of refugees, once certain preconditions have been met (infra);
•to facilitate spontaneous voluntary repatriation of refugees, should it occur without the preconditions having been met that enable the UNHCR to organize such an event;
•to monitor the status of persons who have been repatriated to their country and the fulfillment of any obligations toward them and to intercede on their behalf, if necessary;
•to undertake activities in support of States’ judicial systems to solve problems at the root of refugee movements;
•to collect funds to support governments’ repatriation or reintegration programs;
•to coordinate non-governmental organizations assistance in this domain, with short- and long-term needs in mind.
In 1980, the UNHCR Executive Committee examined the issue of repatriation in detail and codified what the UNHCR’s role should be in such operations (Conclusion 18, Session XXXI).
Its mandate translates into the obligation to:
•Ensure that the voluntary character of repatriation is respected;
•Cooperate with governments to assist refugees who wish to be repatriated;
•Obtain formal guarantees for the safety of returning refugees;
•Advise refugees on these guarantees and on the prevailing conditions in their country;
•Monitor the situation of returning refugees to their countries of origin;
•Receive the returning refugees and establish projects for their reintegration in their country of origin.
In 1985, this Executive Committee reinforced the framework of responsibilities for the UNHCR by reaffirming its mandate over repatriation. It ranges “from the outset in assessing the feasibility and, thereafter, in both the planning and implementation stages of repatriation” (Conclusion 40, Session XXXVI at para. (g)). States must recognize that the UNHCR has a legitimate concern for the consequences of the return on individuals, and they should therefore have direct and unhindered access to returnees.
Conclusion 40 also noted that the system of tripartite agreements—among the UNHCR, the country of origin, and the country of asylum—is well adapted to facilitate voluntary repatriation. Unfortunately, there is nothing to prevent governments from organizing repatriation without involving the UNHCR. If no agreement is reached between the UNHCR and the governments concerned or between the two governments involved in the repatriation, the Executive Committee’s conclusions remain simple declarations of intent without any practical effect other than giving permission to the UNHCR to hold a dialogue with the authorities.
The most important aspect of the UNHCR’s role is that it must choose whether to promote or simply facilitate repatriation, based on the circumstances and guarantees obtained. Depending on the approach it chooses its specific obligations toward the refugees are different.
2. The UNHCR’s Obligations when Actively Promoting Repatriation
a. Preconditions to the UNHCR Promoting Repatriation
Certain preconditions must be met before the UNHCR will actively promote repatriation:
•The conditions in the country of origin must show an overall and significant improvement, so as to enable a return in safety and dignity for the majority of the refugees;
•All the parties concerned must undertake to respect the voluntary nature of the return;
•The country of origin must have supplied adequate guarantees concerning the refugees’ safety, including, if possible, formal legal or legislative guarantees;
•The UNHCR must have free and unhindered access to the refugees and returnees;
•The terms and conditions of the return must be set forth in a formal, written repatriation agreement, signed by the UNHCR and the parties concerned.
b. The UNHCR’s Concrete Obligations
When these conditions have been met, the UNHCR can promote a return. This means it may encourage refugees to return and may participate in the entire operation. In such cases, its practical contributions consist of:
•Obtaining access to the entire refugee population and ensuring the voluntary character of their decision to return to their country of origin;
•Undertaking an information campaign to enable the refugees to make their decision with full knowledge of the relevant facts;
•Interviewing, advising, and registering candidates for repatriation, and organizing a safe environment for the return;
•Developing and implementing (directly or through partners) rehabilitation and reintegration programs;
•Monitoring the legal, physical, and material safety of the returnees.
3. The UNHCR’s Obligations when Facilitating Repatriation
When the UNHCR considers that the conditions under which it would actively promote repatriation have not been met, but the refugees wish to return anyway and are undertaking their own spontaneous repatriation, it can decide to facilitate such repatriation in an attempt to improve the safety of the returnees and to offer them material assistance.
a. Conditions to the UNHCR Facilitating a Spontaneous Repatriation
The only condition on which the UNHCR bases its decision to participate in this form of repatriation is the fact that refugees have requested to be repatriated voluntarily. The UNHCR must therefore be able to determine whether the decision was strictly voluntary or if any form of pressure was applied to force or influence the decision.
This form of intervention takes place without an agreement between the UNHCR and the government authorities establishing the terms and conditions of the return and without the country of origin’s formal guarantees that ensure the safety of the returnees.
In such circumstances, the UNHCR’s role is clearly more ambiguous than in other situations, and its support for such operations is based on respect for refugees’ decision to return home and not on the UNHCR’s legal and material ability to protect them.
b. The UNHCR’s Role in Spontaneous Repatriations
In such circumstances, the UNHCR’s role is to do the following:
•Supply information concerning the conditions in the country of origin, in general, and in the areas to which the refugees will return, in particular. This information must be complete and reliable. •Provide material assistance to those returning.
•Inform the returnees of the limits of the protection and assistance that the UNHCR is able to supply in this situation (e.g., the fact that UNHCR will not be present in the reinstallation zones, that there is no written agreement between the UNHCR and the country of origin setting forth clear guarantees, etc.).
•Inform the refugees of the obstacles they may encounter during their return or reinstallation.
•Whenever possible, the UNHCR must seek to improve the safety of the returnees in their country of origin. Once the return has taken place, the UNHCR must try to negotiate amnesties and guarantees, as well as agreements concerning its own presence in the area to which the refugees will return.
•If the UNHCR succeeds in obtaining permission to be present in the area to which the refugees are returning, it must exercise its monitoring responsibilities as much as possible, in agreement with the local authorities.
**☞ Repatriation in Times of Conflict
If an armed conflict is under way, the UNHCR cannot promote repatriation but can facilitate such a movement if it occurs spontaneously. In such cases, its role is restricted to making sure that:
•the repatriation is genuinely voluntary;
•the refugees have all the necessary information to make an informed decision;
•the country of origin is not opposed to the return; and
•the refugees’ reasons for returning are pacific, not military.
The UNHCR always has the authority to request direct and unhindered access to the returnees, so as to monitor the conditions of their return, by insisting that the protection of returnees is always of legitimate concern to the UNHCR (Conclusion 40, Session XXXVI, 1985). However, if the country of origin has no previous agreement with the organization, it will have no obligations in this respect.
In times of conflict, the UNHCR’s legal instruments do not enable it to protect refugees efficiently. If a refugee camp is bombarded or attacked, for instance, it is difficult to say that the population movement that results is of a voluntary nature. The relevant rules of IHL are therefore more appropriate in such situations than the rules of refugee law: the former ensure the protection of refugees as civilians. The entire Fourth Geneva Convention Relative to the Protection of Civilians in Time of War, Common Article 3 to the four Geneva Conventions, and Additional Protocol II, relating to the Protection of Victims of Non-International Armed Conflicts, can always be invoked to protect refugees, returnees, or persons displaced inside their own country. As well regarding the specific case of prisoners of war, IHL customary rule 128 and article 118 of the Third Geneva Convention specifies that they must be released and repatriated right after the cessation of active hostilities. Finally, it should be stressed that an “unjustifiable delay in the repatriation of prisoners of war or civilians” constitutes a grave breach of Additional Protocol I per its article 85(4)(b).
➔ </content/article/3/civilians>__ ▸ Civilians; </content/article/3/civilians/>__ ▸ Detention; </content/article/3/detention-1/>__ ▸ Internally displaced persons </content/article/3/internally-displaced-persons>__ ▸ Population displacement; </content/article/3/population-displacement/>__ ▸ Protection </content/article/3/protection>__
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II. OPERATIONAL PRINCIPLES GOVERNING REPATRIATION
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1. The Voluntary Character of Repatriation
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The principle safeguarding the voluntary character of any repatriation is the cornerstone of the international protection of refugees. Although it is not expressly set forth in the 1951 Refugee Convention, it is derived directly from the principle of non-refoulement, which is set forth in the Convention: it is forbidden to send individuals back to countries where they fear for their safety.
The 1969 OAU Refugee Convention does establish explicitly that the “voluntary character of repatriation shall be respected in all cases” and that no refugee shall be repatriated against his or her will (Art. V of the OAU Convention).
In practice, given that the protection offered by the UNHCR stops at the border of the country of origin, any involuntary repatriation is equivalent to refoulement (forced return).
The UNHCR must monitor the voluntary character of repatriation with regard to:
•the conditions in the country of origin (the refugees must have access to reliable information before leaving); and
•the situation in the country of asylum (which must allow freedom of choice).
It must also make sure that the factors that draw the refugees to return to their country of origin are the driving force, not the constraints compelling them to leave the country of asylum.
a. How to Determine Whether Repatriation Is Voluntary ?
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•The UNHCR must have free, direct, and unhindered access to the refugees.
•It must be able to evaluate any changes in the refugees’ situation in the camps or other installations that might be influencing their decision to return.
•It must be able to ensure that the individual choices of refugees are independent of any collective decision to return.
•The UNHCR representatives must make sure that they do not speak only to the refugees’ representatives. They must consult the refugees themselves and, in particular, groups of women refugees, to verify that the leaders genuinely represent the will and interest of the refugees as a whole.
b. A Repatriation Is Not Voluntary when:
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•the authorities of the “host” country remove any possibility for the refugees to have freedom of choice by imposing coercive measures such as decreasing the refugees’ vital supplies, housing them in hostile or dangerous areas, or encouraging xenophobia among the local population;
•the different factions among the refugee population, or political organizations in exile, influence the refugees’ decisions —this may take place directly, using physical pressure, or indirectly, through actions such as misinformation campaigns;
•certain interest groups in the host State discourage repatriation by disseminating false information.
2. Defining a “Safe Return”
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A safe return has the following characteristics:
•There are judicial conditions that will make it safer for the returnees (e.g., amnesties, public guarantees of individual security, non-discrimination laws, no risk of reprisals or persecution as a result of the return).
•Physical security is guaranteed (from protection against armed attacks to protection from the threat of land mines).
•Material safety is ensured (access to land, to means of general subsistence, etc.).
These elements can be integrated into any tripartite agreements among the UNHCR, the country of origin, and the country of asylum.
3. Returning in Dignity
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This principle is vaguer than the previous two. It implies that the honor and human dignity of individuals must be respected. Refugees must be able to return home unconditionally, and, if they decide to do so spontaneously, they must be able to do so at their own speed and not in convoys where they are forced to walk. They must not be separated from their families, must be treated with respect, and must be accepted by national authorities who commit to granting them their universal human rights.
In practice, to monitor that the principles of safety and dignity are being respected, the UNHCR must evaluate the following elements:
•the physical safety of the refugees at every stage in their return (on the road, during and after their return, when they are received, at their final destination);
•the respect for family unity;
•the attention granted to vulnerable groups (e.g., the sick and wounded, the elderly, pregnant women, children, etc.);
•the alleviation of formalities at the border;
•the authorization given to the refugees to bring all their transportable belongings with them;
•the respect for the school year and agricultural calendars throughout the course of these events;
•freedom of movement;
•the respect for human rights.
➔ Asylum </content/article/3/asylum>__ ▸ Camps </content/article/3/camps>__ ▸ Discrimination </content/article/3/discrimination>__ ▸ Family </content/article/3/family>__ ▸ Internally displaced persons </content/article/3/internally-displaced-persons>__ ▸ Persecution </content/article/3/persecution>__ ▸ Population displacement </content/article/3/population-displacement>__ ▸ Protection </content/article/3/protection>__ ▸ Refoulement (forced return) and expulsion; </content/article/3/refoulement-forced-return-and-expulsion/>__ ▸ Refugees </content/article/3/refugees>__ ▸ United Nations High Commissioner for Refugees </content/article/3/united-nations-high-commissioner-for-refugees>__
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For Additional Information:
Barnett, Michael and Finnemore, Martha, Chapter 4: “Defining Refugees and Voluntary Repatriation at the United Nations High Commissioner for Refugees”, in*Rules for the World , Cornell University Press, 2012.
Chetail, Vincent, “Voluntary repatriation in public international law: concepts and contents”, Refugee Survey Quarterly , Vol. 23, No.3, Voluntary Repatriation: Achievements and prospects (2004), p.1-32.
Cwik, E., Marissa, “Forced to Flee and Forced to Repatriate? How the Cessation Clause of Article 1C (5) and (6) of the 1951 Refugee Convention Operates in International Law and Practice”, Vol. 44, issue 3, V anderbilt Law Review , May 2011, p.711-743.
Lawyers Committee for Human Rights. General Principles Relating to the Promotion of Refugee Repatriation . Geneva: UNHCR Documentation Center, 1992.
Shields Delessert, Christiane, “Release and Repatriation of Prisoners of War at the End of Active Hostilities: A Study of Article 118, paragraph 1, of the Third Geneva Convention Relative to the Treatment of Prisoners of War”, Zurich, Schulthess, Polygraphischer Verlag, American Journal of International Law , Vol. 5, 1977, 225 pages.
UNHCR, Policy Framework and Implementation Strategy. UNHCR’s role in support of the return and reintegration of displaced populations , 2008. Available at https://www.unhcr.org/media/31735
Ullom, Vic, “Voluntary Repatriation of Refugees and Customary International Law”, Vol. 29, No.2, Spring, Denver Journal of International Law and Policy, 115 (2001), p.115-149. Available at https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1494&context=djilp
Vijayaraghavan Aman and Hamsa, The Illusion of Consent – Voluntary Repatriation or Refoulement? , 2019. Available at https://internationallaw.blog/2019/09/25/the-illusion-of-consent-voluntary-repatriation-or-refoulement/
Zieck, Marjoleine, “Reimagining Voluntary Repatriation” in The Oxford Handbook of International Refugee Law , Oxford: Oxford University Press, 2021, p. 1064-1079.