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Repatriation of Refugees under International Law*

Published online by Cambridge University Press:  07 July 2009

Peter van Krieken
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This article deals with repatriation. It is now generally agreed that repatriation should be considered the best of the durable solutions to refugee problems, if, of course, it is a feasible option. In view of the strength of the bond between a refugee and his country of origin, promotion of repatriation would seem to be advisable, unless it is clear that the returnee would face serious problems upon his return. Anyone who has a well-founded fear of being persecuted should, of course, be considered a genuine refugee, and it would be quite wrong to put any pressure on such a person to return to a country which he fled for legitimate reasons. The same would be true for the displaced person who left his country owing to man-made or natural disasters. In general, the stay abroad of refugees and displaced persons is not necessarily unlimited and due attention should therefore be paid to fundamental changes in the circumstances in the country of origin, and even to relevant acts of the person concerned.

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Articles
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Netherlands Yearbook of International Law , Volume 13 , December 1982 , pp. 93 - 123
Copyright
Copyright © T.M.C. Asser Press 1982

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References

1. The Convention relating to the Status of Refugees, 28 July 1951 (189 UNTS p. 137), entered into force on 22 April 1954, and the Protocol relating to the Status of Refugees, 31 January 1967 (606 UNTS p. 267), entered into force on 4 October 1967. The Member States are mainly Western European, African and American, though some Asian countries recently acceded.

2. Art. 1.A. (2) of the 1951 Convention.

3. The mandate of the High Commissioner is based on the Statute of his Office (Annex to GA Res.428 (V), dated 14 December 1950). The definition of a refugee given in this Statute is virtually the same as that in the 1951 Convention. However, subsequent GA resolutions have widened the High Commissioner's mandate. Cf. 26 NILR 1979 p. 26.

4. Art. I paras. 1 and 2 of the 1969 OAU Convention (Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969, UN Doc. UNHCR/131/69. 691 UNTS p. 14; entry into force: 20 June 1974). Definition of the term “refugee”: “1. For the purpose of this Convention the term ‘refugee’ shall mean every person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it. 2. The term refugee shall also apply to every person who, owing to external agression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality” (emphasis added). Cf., van Krieken, “African Refugee Law”, 45/46Yearbook of the AAA 1975/76 (1980), pp. 119–138.Google Scholar

5. Cf., Art. 33 of the 1951 Convention.

6. Cf., on the Franco-Russian, conflict: La Documentation Française; Notes Documentaires et Etudes, No. 801 (Paris, 13 January 1948)Google Scholar; on the Russo-Bulgarian, disagreement: La Mission de la Croix Rouge Russe en Bulgarie et le Rapatriement des Réfugiés Russes (Réponse du Gouvernement Bulgare) (Sofia, 1924)Google Scholar. 29 Revue Internationale de la Croix-Rouge (1947), p. 791 et seqGoogle Scholar. gives a report on the repatriation of Prisoners of War during war-time. An article on the return of Soviet Citizens residing in France in the Krasnaia Zvezda of 26 September 1947 was reprinted (in French) in La Documentation Française, No. 1077 (5 October 1947). See also “Rapatriement des Enfants Grecs Déplacés” in 32 Revue Internationale de la Croix-Rouge (1950) pp. 591–622Google Scholar. Agreements on new borders have often been followed by an exodus of nationals of the state formerly in charge of the territory concerned. The word “repatriation” may, in fact, not be the right term to use, but on 25 March 1957 Poland and the Soviet Union agreed on the further “repatriation” of Polish citizens from the USSR: “Das sowjetisch-polnische Abkommen vom 25. Marz 1957 über weitere Repatriierung von Polen aus der Sowjetunion”, 18 Zaörv (1957-1958) pp. 324–328Google Scholar. Cf. also, Bracey, B.L., “Practical Problems of Repatriation and Relocation,” 21 International Affairs (1945) pp. 295–305CrossRefGoogle Scholar. Detailed information on the period 1944–1948 can be found in Herremans, M-P., Personnes Deplacées (rapatriés, disparus, réfugiés) (Brussels, 1948).Google Scholar

7. The Americas being an exception, see the Convention on Territorial Asylum, Caracas, 28 March 1954. A Conference on territorial asylum in Geneva in 1977 ended in failure; what remains is the Declaration on Territorial Asylum, adopted by the GA on 14 December, 1967, GA Res 2312 (XXII). The 1969 OAU Convention contains an article on asylum, stating that the Member States” … shall use their best endeavours … to receive refugees and to secure (their) settlement …” (Art. III).

8. Chapter III of the 1951 Convention deals with gainful employment: Art. 17 with wage-earning employment; Art. 18 with self-employment and Art. 19 with the liberal professions.

9. Grahl-Madsen, A., The Status of Refugees in International Law, Vol. 1 (Leyden, 1966) pp. 379–92.Google Scholar

10. But see Grahl-Madsen, op.cit., p. 401. An amnesty may definitely have an impact on the well-founded fear of being persecuted. It is agreed that prosecution for crimes committed for political purposes may amount to persecution. In this respect, e.g., Art. 6 of the Repatriation Proclamation concerning Ethiopian refugees residing in Djibouti is of the utmost importance: “Any Ethiopian refugee in the Republic of Djibouti who returns to Ethiopia in accordance with this Proclamation is hereby exempted from all prosecutions for any crime committed by him for political purposes before he left Ethiopia or prior to the date of his return to Ethiopia”. (Proclamation No. 183/1980, 16 June 1980, Negarit Gazeta (1980) p. 97). However, the amnesty law itself does not make it impossible that a refugee may continue to be considered a refugee, e.g., when it is likely that the refugee will face serious problems following his return due to his outspoken political opinions. Therefore, an amnesty law certainly has an impact on the “change of circumstances” clause, but does not exclude the continued existence of a well-founded fear of being persecuted.

11. Also, e.g., Resolutions 1039 (XI) of 23 January 1957; 1166 (XII) of 26 November 1957; 1388 (XIV) of 20 November 1959; 1499 (XV) of 5 December 1960; 34/60 of 29 November 1979; etc.

12. A first Draft Convention on. Territorial Asylum, however, does contain an article dealing with voluntary repatriation which reads: “If an asylee should voluntarily and in full freedom express his desite to return to the territory of the State of his nationality or former habitual residence, the State granting asylum and the State of the asylee's nationality or former habitual residence as well as all other States concerned, shall facilitate his repatriation”. A group of experts which had been established on the basis of a GA Resolution reworded the draft as follows: “If an asylee should, of his own free will, express his desire to return to the territory of the State of his nationality or former habitual residence, neither the Contracting State granting asylum nor any other Contracting State shall place any obstacles in the way of his repatriation.” (GA 30th session; A/10177, p. 26). This art. 6 of the Draft was, however, not discussed during the January 1977 Geneva Conference on Territorial Asylum.

13. It is worth mentioning in this respect that the voluntary character of the repatriation of Prisoners of War has never been fully agreed upon. On the contrary, discussions have dealt mainly with the question whether the country where a POW finds himself, enjoys the right to grant this POW refuge and/or asylum. Art. 118 of the third 1949 Geneva Convention states that: “ … Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”.

Three kinds of peace (truce, armistice) agreements can be differentiated, providing for:

- the simple exchange of all POW s;

- the exchange of all POWs, with the condition that a general pardon or amnesty will be declared for all involved;

- the exchange of only those POWs who wish to return.

All these elements can be found, e.g., in the 1919 Versailles Peace Treaty. However, obligatory return seems to prevail. This has only been amended by developments in the law on a-sylum, the non-refoulement principle in particular. It can, therefore, be concluded that this principle prevails over the strict character of Art. 118 of the third 1949 Geneva Convention. Consequently, the country of refuge is obliged to return a POW, who should be considered a former refugee. C.f., Van Krieken, , Deserteurs, Dienstweigeraars en Asielrecht (Assen 1976), pp. 50–5.Google Scholar

14. Here, reference should be made to the Thai-Cambodian repatriation programme of June-July 1980. It can be assumed that the (erstwhile) refugees returned voluntary as the necessary documents had been duly filled in, but the situation in Kampuchea made the observer fear the worst. In a Joint Communique issued at the conclusion of the 13th ASEAN Foreign Ministers' Meeting (Kuala Lumpur, June 1980) the following can be found in para. 22: “The Foreign Ministers of Indonesia, Malaysia, the Philippines and Singapore expressed full support for the programme of voluntary repatriation of Kampuchean refugees carried out by the Government of Thailand in co-operation with the UNHCR and other international and voluntary agencies. They expressed their conviction that it is the legitimate right of these people to return to their own country, to resume their livelihood if it is their wish to do so. They also recognised that such action is in full accord with humanitarian principles and constitutes the most natural solution to the problem.”

15. The US and France tried (in vain) to torpedo the inclusion of “repatriation” and “assimilation” as possible UNHCR tasks, Holborn, L.W., Refugees: A problem of our Time, (Metuchen, N.J. 1975) pp. 72. 73.Google Scholar

16. The first time that the UNHCR was expressly requested to assist repatriated people was in December 1961, in a resolution on refugees from Algeria in Morocco and Tunisia; the GA requested the UNHCR to “…use the means at his disposal to assist in the orderly return of those refugees to their homes and consider the possibility, when necessary, of facilitating their resettlement in their homeland as soon as circumstances permit;…”. GA Res. 1672 (XVI), 18 December 1961.

17. ExCom, No. 18 (XXXI) Voluntary repatriation.

18. As of 31 December 1980, only 21 of the 50 OAU Member States had acceded to the OAU 1969 Convention, viz., Algeria, Benin, Burundi, Central African Republic, Congo, Ethiopia, Chana, Guinea, Liberia, Mauritania, Morocco, Niger. Rwanda, Senegal, Seychelles, Sudan, Togo, United Republic of Tanzania, Upper Volta and Zambia.

19. Conference on the Situation of Refugees in Africa, Aiusha, Tanzania, May 1979. Cf., Van Krieken, op.cit. in n. 4 p. 136.

20. CM/Res. 296 (XX).

21. CM/Res. 399 (XXIV), February 1975.

22. CM/Res. 727 (XXXIII), July 1979.

23. HCR/120/31/80 - GE. 81–00069.

24. E.g., GA Res 34/60, para. 3c cited above.

25. See n. 16.

26. UNHCR's Annual Report, GA (VII) Off.Rec. 16 October 1953, p. 99.

27. Holborn, op.cit., pp. 73, 325–326, 395–397; GA Resolutions 1006 ES-II, 1039 (XI), 1129 (XI) (1956, 1957).

28. Holborn, op.cit. p. 1008.

29. Holborn, op.cit. p. 1021.

30. Holborn, op.cit. p. 1024.

31. Cf., Van Krieken, op.cit. in n. 13 pp. 275–76.

32. The Democratic Republic of the Sudan Relief and Resettlement Conference on Southern Region (Khartoum 1972) p. 13.Google Scholar

33. Chapter III of the Protocols on Interim Arrangements deals with amnesty and judicial arrangements.

Art. 1 reads: “No action or other legal proceedings whatsoever, civil, or criminal shall be instituted against any person in any Court of Law for, or on account of, any act or matter done inside or outside the Sudan as from the 18th day of August, 1955 if such act or matter done in connection with mutiny, rebellion or sedition of the Southern Region.”

Chapter IV deals with repatriation and resettlement. Commissions were set up to take the various measures to streamline repatriation and resettlement. The repatriation commissions were composed of at least three members: representatives of the Central Government, the Southern Region and the UNHCR. The resettlement and rehabilitation commissions had to deal with the following groups:

“A. Refugees from neighbouring countries.

B. Displaced persons resident in the main centres in the Southern Region and other parts of the Sudan.

C. Displaced persons including residual Anya-Nya personnel and supporters in the bush.

D. Handicapped and orphans.”

34. UNHCR Report, “Nursing a Miracle” (The role of the Office of the United Nations High Commissioner for Refugees in the UN Emergency Relief Operation in the South Sudan) (Geneva 1973) p. 7.Google Scholar

35. See n. 34, UNHCR Report, p. 17 Cf. also, Holborn, op.cit. pp. 1346–65. Apart from the UN Resolutions quoted above, reference should also be made to ECOSOC Resolutions 1741 (LIV) May 1973, 1799 (LV) July 1973, 1877 (LVII) July 1974, and GA Res 2958 (XXVII) December 1972.

36. Cf. also GA Res 2793 (XXVI) December 1971; and Security Council Res 307 (1971).

37. UNHCR Report, A Story of Anguish and Action (The United Nations focal point for assistance to refugees from East Bengal in India) (Switzerland 1972)Google Scholar. Also, Holborn, op.cit. pp. 768–9.

38. A breakdown can be found in Holborn, op.cit. p. 787.

39. UNHCR's report to the GA 29th session, Doc A/9612/Add.2; and Executive Committee of the High Commissioner's Programme, 26th session, report 1974–1975, GA Doc A/Ac. 96/516, p. 72.

40. GA Doc A/AC. 96/564 p. 75.

41. GA Doc A/AC. 96/534 annex II.

42. Another development concerned assistance to displaced persons who were outside their country of origin, but not regarded as refugees. This concerns a method of avoiding political and legal problems, particularly vis-à-vis the country of refuge (e.g., Thailand). Victims of man-made disasters do not automatically fall under the 1951 Convention, nor the Statute, as the persecution element may be lacking. In this respect, it is worth recalling that the 1969 OAU Convention has incorporated this group under its definition of “refugees”.

43. The 34th ordinary session of the OAU Council of Ministers in Addis Ababa, which was brought forward by a fortnight.

44. The High Commissioner, in a speech on 24 June 1980, indicated that the needs amounted to some $110 million.

45. GA Doc A/AC. 96/532 p. 4.

46. GA Doc A/AC. 96/564 p. 75.

47. Other recent UNHCR repatriation programmes were carried out in Nicaragua and Equatorial Guinea (1979).

48. ECOSOC, UNHCR Report E/1980, May 1980, pp. 37, 38; and GA Doc A/AC. 96/ 564 August 1979 p. 134.

49. GA Doc A/AC 96/564, August 1979 p. 89; and ECOSOC, UNHCR Report 1980/79, May 1980 p. 28.

50. Zairois who did not flee the country, but had committed an offence against the internal or external security of the state were also pardoned: Ordonnance-Loi no. 78/019, 11 July 1978.