A Balancing Act: Navigating Fundamental Tensions in UNHCR’s Engagement in the Rohingya Crisis

Recently, the Office of the High Commissioner for Human Rights published a report detailing the indiscriminate violence unleashed on the Rohingya in October 2016. This report follows a largely uniform pattern of human rights advocacy adopted by various organizations responding to the Rohingya issue. The goal – which is perfectly sound – is to compel the perpetrators of violence in Myanmar to stop the atrocities. To outside viewers, this appears to be the one human rights issue at stake. But in fact, there are three other crucial dimensions to this human rights crisis – refugees, internally displaced persons (IDPs), and statelessness – all of which require different forms of engagement. The example of how UNHCR – the UN Refugee Agency – is involved in the crisis powerfully demonstrates how these three dimensions are often in tension with one another, raising the need for careful navigation and a delicate balancing act as UNHCR seeks to function in the complex environment. And while the law can become a mitigating factor, the weakness of the international legal architecture prevents it from becoming effective in many cases.

UNHCR’s work with Rohingya refugees primarily involves engagement with States that host the refugees. In Bangladesh, for example, UNHCR runs two official camps and supports about 32,000 refugees living there. But it also has to advocate with the Bangladeshi government to recognize the refugee status of some 200,000 to 500,000 undocumented Rohingya. This reveals an intrinsic tension between UNHCR’s two goals: while it is crucial for UNHCR to advocate for the undocumented, it cannot advocate too forcefully for protection because there is a risk that Bangladesh could kick UNHCR out of the country, at which point the 32,000 refugees in the camps would also lose protection and support. The international legal framework can become crucial for UNHCR to navigate aspects of this tension. The 1951 Refugee Convention gives UNHCR the mandate to protect all refugees, and even though States like Bangladesh have not signed the Convention – and so cannot be held to the responsibilities outlined in it – there are some principles of international law – such as non-refoulement – that have become universally applicable over time and do apply to Bangladesh. While Bangladesh may not afford complete protection to refugees, it also cannot legally send them back to Myanmar where they are likely to be persecuted. This at least gives UNHCR some legal basis to press its claims.

International law is not as strong on statelessness. There are two conventions – 1954 and 1961 – that revolve around statelessness, but they are among the least ratified human rights mechanisms in the world. Moreover, UNHCR only officially received a mandate to deal with statelessness in 1995, making it a fairly recent development. The legal framework for IDPs is even shakier. There are no treaties regulating the treatment of IDPs, and the only relevant provisions for internal displacement come from certain aspects of international human rights and humanitarian law. UNHCR also does not have an official mandate on IDPs. Since no other international organization is responsible for them, UNHCR has unofficially taken up this role, although it does not have any clear legal legitimacy to do so. A weaker legal architecture means that the law cannot become a crucial mitigating factor in some of the tensions inherent in UNHCR’s work on statelessness and IDPs, tensions that are even more complex than in the case of refugees.

Unlike with refugees where the most important actors are regional States, the primary stakeholder for statelessness and IDPs is the Myanmar government. Under international law, Myanmar has sovereignty over its territory; every major action that UNHCR takes in has to be with the permission of the government. Aiding IDPs is largely about direct delivery of services. UNHCR is active in most IDP camps in Myanmar, which house 185,000 displaced Rohingya. Eradicating statelessness on the other hand can only be done by the government since it is based on national recognition, and so government cooperation becomes even more crucial. The majority of work that UNHCR can do on the issue revolves around advocacy with the government to extend that recognition and protection to the Rohingya. The same fundamental tension that exists in the Bangladesh case exists here: UNHCR must maintain a delicate balance between direct delivery of humanitarian aid and advocacy for protection in order to continue doing both. And maintaining that balance requires continuous trade-offs between its activities on both issues.

While some of the tensions between engagements on the three dimensions are not unique to Myanmar, UNHCR has navigated the challenges far more effectively in some other theatres of operation. For example, UNHCR works on all three spheres in the Levant as a result of the conflicts in Syria and Iraq. And while there are multiple other issues that the organization is facing in that region, it has – so far – navigated most tensions between statelessness, refugees and IDPs, having successfully increased birth registration of Syrian refugee children to prevent statelessness while continuing its engagement with refugees and IDPs. The protracted refugee crisis in Myanmar, however, has created a much more complex – and sensitive – political climate to work in. While this should not absolve UNHCR of criticisms – it has in the past been involved in questionable efforts to ‘voluntarily’ repatriate Rohingya from Bangladesh to Myanmar – it does raise fundamental questions about the limited efficacy of UNHCR in certain environments.